The BSF authorities were not debarred from initiating a retrial for the same offense after the earlier proceeding was set aside, and the petitioner had not ceased to be subject to the BSF Act, thus not entitled to avail the remedy under Section 117 of the BSF Act.

R.B. Misra, J.

1. Heard Mr. Somik Deb, learned Counsel along with Mr. T.D. Majumder, learned Counsel appearing on behalf of the Petitioner. Heard Mr. P.K. Biswas, learned Assistant Solicitor General assisted by Mr. R. Debnath, learned Counsel appearing on behalf of the Respondents.

2. The Present Writ Petition has been preferred under Article 226 of the Constitution for issuance of writ of mandamus seeking direction to the Respondents to scrap the second Summary Security Force proceeding instituted for the same cause of action which has already been dealt with in first summary proceeding and Petitioner has accepted the award thereof, the Petitioner has also prayed to recall second summary proceeding as the same is invalid and unsustainable in law and restrain respondents from going ahead with Second SSF Court Proceeding dated 17.12.2002 (Annexure-P/3) any further and to drop the same immediately.

3. For getting entry in Border Security Force (in short Called 'BSF') the Petitioner had undergone tests and trials and had presented testimonials and documents before the Enforcement Officer, Commandant 08 Battalion, BSF, Majdia, Shema Nagar in the District of Nadia (W.B.). The Petitioner was selected and enrolled as Constable in BSF on 24.5.1989. It appears in reference to some complaint to the BSF Authorities the Petitioner was not in possession of the genuine School certificate, since beginning. The BSF Authorities conducted a Summary Security Force Court Proceeding (in short SSF Court Proceeding) and the Commandant passed an order dismissing the Petitioner from service w.e.f. 10.08.2001. After such order, the Petitioner left the Camp and went to his native place. After lapse of an year, the Petitioner has suddenly received an order dated 09.04.2002 (Annexure-P/2) indicating that the proceedings of dismissal was set aside by Sector Head Quarter, BSF vide its letter dated 29.01.2002, therefore, he is called upon to join 135 Battalion, BSF vide letter dated 25.02.2002. In reference thereto the Petitioner joined duty on 26.08.2002 and was taken on the strength of 735 BSF w.e.f. 27.08.2002 and was posted to 'A' Coy. The case for regularization of his absence was also taken up by Sector Head Quarter, BSF, Faridkot (Punjab) under the provision of the Border Security Force Rules, 1969 (in short called 'BSF Rules'). It appears that the Commandant 135, Battalion BSF issued a letter dated 17.12.2002 to the Petitioner indicating initiation of proceeding in reference to Section-23 of The Border Security Force Act, 1968 (in short called the 'BSF Act') for the same charges.

The text of the order enclosed as Annexure-P/3, however, is subject extracted as below:

Making at the time of enrolment, a wilfully false answer to a question set forth in the prescribed form of enrolment which was put him by the enrolling officer before whom he appeared for the purpose of being enrolled.

In that he,

At Seema Nagar, West Bengal, on 24th May, 1989 when appeared before Commandant 08 Bn. BSF, an Enrolling Officer, for the purpose of being enrolled for service in the Border Security Force to the question put to him 'What are your qualification?' answered 'Matric', whereas he knew the said answer is false.

4. The question involved in the present Writ Petition is as to whether in the facts & circumstances second SSF Court proceeding under the 'BSF Act' and under the 'BSF Rules' may take place for the same charges and offences against the Petitioner for which the Petitioner has already been dealt with in earlier first SSF Court Proceeding and was dismissed by Commandant, BSF, however, was called upon to join duty as if he had never been dismissed because earlier SSF Court Proceeding itself was set aside by Superior Officer/DIG, BSF in exercise his inherent statutory power provided under the Section 115 of 'BSF Act' read with Rule-161 of 'BSF Rules'?

5. According to the Petitioner, he participated in the SSF Court Proceeding conducted earlier and was awarded punishme