Dr. Mukundakam Sharma, J.

1. This writ petition is filed by the petitioner against the order of sentence passed by the respondents whereby the petitioner has been dismissed from service. Being aggrieved by the said order, the petitioner also filed an appeal before the appellate authority in the nature of a statutory appeal. The said appeal was disposed of by the appellate authority and the petitioner was so informed by communication dated 3.1.2001 intimating that the appeal filed by the petitioner has been rejected by the Director General as the same was found to be without any merit. Both the aforesaid orders are under challenge in this petition.

2. Before adverting to various pleas raised in this petition, it would be necessary to set out certain background facts leading to passing of the aforesaid order against the petitioner. The petitioner while working as Constable was posted at (Border Out Post) BOP, Banpur, on the Bangladesh Border when an allegation was brought against the petitioner that on 29.7.2000 while performing duty at fence gate No.3 of the Border Out Post, Banpur, he not only did not exercise his authority but also did not prevent smugglers from crossing the border and to go into Bangladesh but in fact allowed the said smugglers to cross the border.

3. In the light of the aforesaid allegations, record of evidence was ordered to be prepared on 8.8.2000 after the petitioner pleaded not guilty to the two charges which were framed against him. The records of the evidence proceedings were placed before us by the counsel for the respondents. During the aforesaid record of evidence proceedings, witnesses were examined and some of the said witnesses were also cross-examined by the petitioner. After completion of the aforesaid record of evidence proceedings, the competent authority passed an order on 12.8.2000 for trial of the petitioner by Summary Security, Force Court on a charge under Section 40 BSF Act. He also appointed the Deputy Commandant to act as friend of the accused at the trial. The records, however, disclose that in the aforesaid trial before the Summary Security Force Court, the charges against the petitioner came to be amended and a charge was framed against the petitioner in the following manner:

"in that he, at BOP Banpur, on 29.07.2000 at about 1155 his., while he was performing the OP Duty at Fence Gate No. 03 of BOP Banpur, accepted illegal gratification from local smugglers for allowing 50-60 bags of sugar to be smuggled out to Bangladesh, through the gate where he was on OP Duty."

4. The aforesaid charge was framed on 12.8.2000 by the Commandant. On 14.8.2000, the proceedings commenced when the petitioner was produced before the Commandant. The charge-sheet was thereafter read out and explained to the petitioner and after reading out the said charge-sheet, a question was put to the petitioner asking him whether he is guilty or not guilty of the charge. The accused answered that he is guilty of the charge.

As the accused pleaded guilty to the charge, the Commandant on the same date proceeded to pass the order of conviction against the petitioner and sentenced him with an order that he shall be dismissed from service. The statutory appeal filed as against the said order was rejected which fact was communicated under letter dated 3.1.2001.

5. Counsel appearing for the petitioner has vehemently submitted that not only the appeal filed by the petitioner was disposed of in a very cryptic manner but even the order of dismissal passed against the petitioner is bad in law as there was total non-compliance of Rule 45 in the present proceedings it was also submitted that the charge on the basis of which the petitioner is convicted and sentenced was based on no evidence at all and, therefore, no sentence could have been awarded to the petitioner. It was also submitted by him that there was non-application of mind in communicating and awarding punishment to the petitioner and also that there is non-applica