The central legal point established in the judgment is the importance of following the prescribed procedure under Rule 22 of The Border Security Force Rules 1969, including providing an opportunity to show cause, conducting a trial, and disclosing adverse reports before dismissing or removing a person from service.

B.S. Walia, J.

1. Letters Patent Appeal has been filed against judgement dated 13.07.2001 passed by the Ld. Single Judge in SWP No. 439/1999 whereby the order passed by the appellant dismissing the respondent from service was set aside and the respondent reinstated while leaving the appellant free to pass a fresh order in accordance with law. We have heard Mr. Varinder Kumar, Deputy Commandant, Border Security Force, who has assailed the judgement passed by the Ld. Single Judge inter alia on the ground that the respondent had failed to avail of an efficacious alternative remedy under Rule 28 of The Border Security Force Rules, 1969 (hereinafter referred to as the Rules) therefore was not entitled to any relief under Article 226 of the Constitution of India, that there was no procedural irregularity in the disciplinary proceedings conducted against the respondent and the finding with regard to non-compliance with Rule 20 to 22 was wholly misplaced as the issuance of show cause notice and the Inquiry held against the respondent had provided sufficient opportunity of hearing to the respondent, that the Court of Inquiry held u/s 62 of The Border Security Force Act, 1968 (hereinafter referred to as the Act) beside other material before the Commandant was sufficient for the Commandant to arrive at the conclusion that the trial of the respondent was inexpedient, that the Ld. Single Judge had ignored settled law that it was not open to the court to re-appreciate the reasons for holding of trial of an employee to be inexpedient, that the Ld. Single Judge had failed to take into account that overstay of leave by a member of a disciplined force constituted a very serious offence and could not be permitted to the detriment of discipline in a force like the BSF, that the conclusions by the Ld. Single Judge were based purely on conjectures and surmises, therefore the judgement was not sustainable.

2. A perusal of the impugned judgement reveals that the respondent received notice Annexure C-3 on 01.08.1998 calling upon him to show cause as to why he should not be dismissed from service as he had remained absent without leave w.e.f. 21.05.1998. Contents thereof are being reproduced since the same are relevant for the adjudication of the present appeal:

"You have been absenting without leave with effect from 21.5.98 (FN). After considering the reports relating to your absence, I am satisfied that your trial by a Security Force Court is impracticable but am of the opinion that your further attention in service is undesirable. I, therefore, tentatively proposed to dismiss you from service. If you have anything to urge in your defence against the imposition of the proposed penalty, you may do so before 27 August 98. In case no reply is received within the stipulated period it would be presumed that you have no defence to put forward an ex parte decision will be taken into the matter."

3. The show cause notice was issued in exercise of power under Rule 22(2) of the Rules.

Pursuant thereto, order Annexure A. 1 dated 20.08.1998 was passed by the Commandant, 35 Bn, BSF dismissing the respondent from service w.e.f. 28.8.98 (FN) under Rule 177 and treating the OSL period w.e.f. 21.3.98 to 27.3.19 (FN) and absence period w.e.f. 21.05.98 to 27.08.98 as "Dies--Non" etc.

4. The Ld. Single Judge after taking into account the decision of a Division Bench of the Calcutta High Court in case titled as The Commandant, 70 Battalion, Border Security Force and others v. Anil Bandhu Mitra, besides Rule 22 came to the conclusion that nothing had been brought on record to show as to why it was not possible to hold a Security Force Court or why the elaborate procedure stipulated under Rule 22 had been dispensed with.

5. The Ld. Single Judge relied upon the decision of the Hon'ble Supreme Court in Jaswant Singh v. State of Punjab and others, AIR 1991 SC 385 wherein it was held that there should be sufficient material in existence before power could be invoked under A