JUDGMENT

Gita Mittal, J.

1. By way of the present writ petition, the petitioner has assailed the findings and sentence dated 14th October, 1997 of the Summary Security Force Court (`SSFC' hereafter) as well as the order dated 26th September, 2007 passed by the Director General of the Border Security Force, respondent no.2 herein, upholding the same.

2. The petitioner was enrolled as a constable with the Border Security Force Court on or about 26th/27th December, 1988. In the year 1996, the petitioner was posted at the Station Headquarters, BSF Siliguri and was attached to the 137th Battalion of the BSF. While so serving with the 137th Battalion, the petitioner was served with a charge sheet dated 12th April, 1996 issued by the commandant of the battalion under Rule 53(2) of the Border Security Force Act, 1969 (BSF Act, 1969 hereafter) making the following allegations against the petitioner:

"Charge No.1 BSF ACT SECTION-40 AN ACT PREJUDICIAL TO GOOD ORDERS AND DISCIPLINE OF THE FORCE (At about 1630 hrs on 08.04.1996 at B.S. Bari BOP picked up quarrel with Bus Driver, Conductor and passengers of NBSTC Bus No. WST-2384.)

Charge No.2 BSF ACT SECTION-26

INTOXICATION ( At about 1630 hrs. on 08.04.1996 was found in a state of intoxication at BS Bari BOP)"

3. The commandant directed trial of the petitioner on these charges by a Summary Security Force Court (`SSFC' hereafter). The petitioner was found guilty in these proceedings and was dismissed from service by an order passed on 1st June, 1996.

4. The petitioner was thereafter served with a communication dated 27th August, 1996 from the Headquarters, 137th Battalion, BSF informing him that the Inspector General, BSF, North Bengal had set aside the trial proceedings on the ground of illegality. As a result, by an order dated 11th October, 1996, the respondents reinstated the petitioner into service w.e.f. 8th September, 1996 and adjusted him against an existing vacancy of constable in the 34th Battalion BSF. The period of the petitioner's absence w.e.f. 1st June, 1996 to 7th September, 1996 was regularised by granting 99 days earned leave.

5. A fresh offence report was prepared against the petitioner as per Rule 44 of the BSF Rules. The petitioner was allegedly heard by the Commandant of the 34th Battalion on 26th May, 1997 in compliance with Rule 45 of the BSF Rules. The petitioner was now served with an order dated 26th May, 1997 issued by the officiating commandant of this battalion, informing him that he was charged under Sections 40 & 26 of the BSF Act, 1968 and that Shri P.S. Bhatti would prepare the record of evidence against him in compliance with Rule 48 of the BSF Rules.

6. The record of evidence was prepared by this officer and placed before the commandant of the 34th Battalion. The record of evidence was considered by the commandant and an order dated 2nd October, 1997 was passed by him. It was thereby directed that the petitioner would be tried by an SSFC on 4th October, 1997, tentatively for offences committed on 8th April, 1996 under Sections 40 & 26 of the BSF Act, 1968. The petitioner was directed to intimate the names of persons from whom he wanted one to be appointed as a friend of the accused. Additionally, a copy of the chargesheet and the record of evidence was enclosed.

7. The chargesheet dated 27th September, 1997 would show that it was identical to the charge sheet of 12th April, 1996 served on the petitioner for which the petitioner had been tried earlier. The only difference between the two was in the battalion of the issuing authority.

8. The petitioner was kept in close arrest between 3rd October, 1997 when the SSFC began its proceedings till 17th October, 1997 when the findings of guilt on both the charges against him was returned. On the same date, the petitioner was sentenced to dismissal from service by the SSFC.

9. The petitioner assailed the findings and sentence of the SSFC by way of writ petition being WP (C) No.130/20