JUDGMENT :

Heard Ms. Zairemsangpuii, learned CGC for the appellants and Mr. B. Lalramenga, learned counsel for the respondents.

2. This appeal has been filed against the Judgment & Order dated 25.02.2022 passed by the learned Single Judge in WP(C) No. 150/2019, which had set aside the impugned order of dismissal dated 01.03.2019, issued by the Commandant, 1st Battalion BSF, on the ground that the General Security Force Court (GSFC) Order dated 07.12.2018, which came to a finding that the respondent was guilty of the charge punishable under Section 10 of the POCSO Act, 2012 did not convict the appellant, as the word ”convicted” was absent in the impugned order. The learned Single Judge followed the judgment of a Co-ordinate Bench of this Court in the case of Rajib Choudhury Vs. Union of India & Ors., reported in 2015 (1) GLT 185, wherein it held that the finding recording the opinion of the Court that the accused was guilty of the charge did not crystalize into an order of conviction, unless there was an order of conviction.

3. The brief facts of the case is that the respondent, who was a Constable in the Border Security Force (CSF), was found to have molested a 12 year old girl by forcibly touching her breast. Thereafter, on the basis of a complaint and an enquiry conducted, proceedings were initiated against the respondents before the GFSC. The GFSC came to a finding that the respondent was found guilty of the charge under Section 10 of the POCSO Act, 2012. However, without convicting the respondent and using the word ”convicted” the respondent was sentenced to suffer imprisonment for 5 years and also dismissed from service. The respondent filed a pre-confirmation petition dated 12.12.2018 against his sentence by the GSFC. The pre-confirmation petition was rejected on 06.02.2019 by the Confirming Authority. Thereafter, the impugned Order dated 01.03.2019 was issued by the Commandant, 1st Battalion, BSF sentencing the respondent to suffer imprisonment for 5 years and to be dismissed from service.

4. Being aggrieved by the impugned Order dated 07.12.2018 passed by the GSFC, Confirmation Order dated 06.02.2019 and impugned Order dated 01.03.2019, the petitioner filed WP(C) No. 150/2019.

5. WP(C) No. 150/2019 was allowed vide Judgment & Order dated 25.02.2019 by the learned Single Judge, by setting aside the impugned Orders dated 07.12.2018, 06.02.2019 & 01.03.2019, by taking recourse to and applying the judgment of another learned Single Judge of this Court in Rajib Choudhury (Supra), wherein it held that the finding recording the opinion of the Court that the accused was guilty of the charge did not crystalize into an order of conviction, unless there was an order of conviction. The learned Single Judge in this case held that though the GFSC had found the respondent to be guilty of the charge under Section 10 of the POCSO Act, the respondent was not convicted by the GFSC. The learned Single Judge was thus of the view that though the respondent was guilty of the charge, the same did not crystalize into an order of conviction. As the view of the GFSC not being the final, formal and conclusive determination of guilt, any punishment imposed under Section 48 of the Border Security Force Act would be illegal and untenable in the absence of the respondent being convicted by the GFSC. Thus, the learned Single Judge, by relying upon the judgment in the case of Rajib Choudhury Vs. Union of India & Ors., reported in 2015 (1) GLT 185, directed the appellants to reinstate the respondents, vide the impugned judgment and order passed in WP(C) No. 150/2019.

6. Being aggrieved by the impugned Judgment & Order dated 25.02.2019 passed by the learned Single Judge in WP(C) No. 150/2019, the appellants have approached this Court.

7. The learned CGC submits that the absence of the word ”convicted” in the GSFC Order dated 07.12.2018, while coming to a fi