The authorities cannot arbitrarily switch from proceedings under Rule 48 to Rule 26 of the BSF Rules without providing sufficient material to show that it was impracticable or inexpedient to continue the proceedings under Rule 48.

( 1 ) THE petitioner was enrolled as constable in the Punjab Armed Police on 15. 11. 62 and then joined Border Security Force as Head Constable in the year 1968 and was confirmed in the BSF as Head Constable with effect from 14. 11. 72.

( 2 ) ON the intervening night of 30/31 3-74 in appreciation and recognition of his good work during the ambush laid down in the area of BOP Dal Forward and capturing 37 Kgs. of Opium, (he petitionerwas given appreciation certificate on 30. 4. 74. Another certificate was issued to him in recognition of exceptionally good work done and displaying exceptional industry and acuteness during the year 1973-74 under CRP Rule 53-A Clause (d ). The petitioner was? awarded the certificate in appreciation to the incident which occured on the intervening night of 30/31-3 74 when he along with his other colleagues opened fire on a gang of smugglers who were trying to cross the border post and in the process captured 37 kgs. of Opium though the smugglers escaped.

( 3 ) MR. V. P. Sharma, learned counsel for the petitioner, has challenged the proceedings initiated against the petitioner pursuant to Rule 48 of the Border Security Force Rules wherein the record of evidence was prepared, on many grounds. He has also assailed the dismissal of service of the petitioner pursuant to Rule 26 of the Rules on the ground that once the petitioner was proceeded by invoking Rule 48 of the BSF Rules initially and record of evidence was prepared from 11. 9. 74 till 25. 9. 74 the respondent could not make out a case on the basis of record of evidence recorded under Rule 48 of the Rules to get rid of the petitioner by invoking Rule 26 of the Rules and terminating the services on the ground of unsuitability in terms thereof on 26. 2. 75. Mr. Sharma has contended that once the authorities have decided to take re-course to Rule 48 they should have either ordered for an action contemplated under the BSFAct and the Rules framed thereunder for a trial or have REFERRED TO the matter to an appropriate court having jurisdiction. Mr. Sharma has further contended that assuming that the Commandant was appointing authority of the petitioner the Commandant has not applied his mind but has simply complied with the orders of the superiors as termination of petitioner was decided on 8. 1. 75 and, therefore, show cause notice dated 16. 1. 75 in terms of Rule 26 and order of compulsary retirement dated 26. 2. 75 was merely a formality and contrary to the provisions of BSF Rules.

( 4 ) MR. Sharma has further contended that it is unconceivable that on the one hand the respondents themselves have given appreciation certificates for gallantry of the petitioner and on the basis of same action he could be punished on the testimony of Mukhtiar Singh who was a known smuggler and enough evidence was led before the respondent that the said Mukhtiar Singh had an altercation with the petitioner and that if the allegation of Mukhtiar Singh was correct then it is unconceivable that he could have opened fire on the said Mukhtiar Singh and Sajan Singh if he had accepted the money as alleged. Mr. Sharma has further contended that the allegations against petitioner constituted a criminal offence punishable under Sec. 31 of the Border Security Force Act, 1968 and triable by both criminal court and security force court and as such a decision was required to be taken as to before which court the proceedings could be instituted in terms of the provisions of Sec. 80 of the BSFAct, l968, and Rule 41 of the BSF Rules, 1969 and non-compliance of these provisions has vitiated the subsequent investigation and summary disposal and recording of evidence under Rule 48 of the Rules arid, therefore, the impugned orders are null and void.

( 5 ). IN support of his submissions, learned counsel forthe petitioner has cited Lt. Col. Jagga Singh Vs. Union of India and Another 1995 (IV) Apex Decision (Delhi) 333; Ex.- EM Vinod Prasad Vs. Union ofindia and Others Civil Writ