Alok Aradhe, J.

1. In this writ petition preferred under Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu and Kashmir, the petitioner inter-alia has assailed the validity of order dated 09.02.2002, by which the penalty of dismissal from service has been imposed on the petitioner after holding the General Security Force Court proceeding against the petitioner. The petitioner also seeks a direction to the respondents to reinstate him in service with all consequential benefits and to accord him promotion to the post of Head Constable. In order to appreciate the petitioner's grievance, few facts need mention, which are stated infra.

2. The petitioner was enrolled in the Border Security Force on 16.04.1987 as Constable (General Duty). The petitioner at the relevant time i.e. on 25th-26th of September, 2000 was posted at the Forward Defence Location of the Border Security Force in Poonch Sector along with one Manoj Kumar of 4 Grandeurs of Army. It is alleged that the petitioner has fired five bullets from his SLR upon the said Manoj Kumar in a state of intoxication. On the aforesaid ground, on 09.10.2000 the petitioner was charged with commission of offences under section 16(c) and section 40 of the Border Security Force, Act 1968 (hereinafter to be referred as the Act). The petitioner was tried by the Summary Security Force Court on 11.10.2000 and was convicted for commission of the said offences and was sentenced to undergo imprisonment for a term of 89 days in force custody along with further punishment of dies-non for the 89 days and loss of increment for a period of one year. However, vide order dated 08.12.2000, the respondents annulled the Summary Force Court trial and sentence dated 11.10.2000 on the ground of lack of jurisdiction, as the same was violative of Section 74(2) of the Act.

3. The petitioner was again put in open arrests and in close arrests by the Commandant 93 Battalion of the BSF and was ordered to undergo fresh trial by a General Security Force Court. The petitioner was again charged for the commission of offences under section 16(c) and section 46 of the Act on the allegation that the petitioner had fired upon Manoj Kumar in a state of intoxication and the charge under Section 307 of RPC i.e. attempt to murder was also levelled against the petitioner. The petitioner was tried by the General Security Force Court, which found that the charge of intoxication against the petitioner was not proved. Accordingly, the charge under section 16(c) was dropped. The charges under section 20(a) and 20(c) were also not found to be proved by the General Security Force Court. However, charge under section 46 of the Act found to be proved and the petitioner was sentenced to undergo six months imprisonment with further punishment of dismissal from the service. Thereupon, the petitioner preferred an appeal. The Director General of the BSF remitted the jail sentence of six months of the petitioner but upheld the punishment of dismissal from service. In the aforesaid factual background, the petitioner has approached this Court seeking relief as stated supra.

4. Learned counsel for the petitioner submitted that the conviction and sentence of the Summary Security Force Court dated 11.10.2000 could not be cancelled on the technical ground like lack of jurisdiction and, therefore, order of cancellation of conviction and sentence imposed by the Summary Security Force Court vide order dated 08.12.2000 is patently illegal. It is further submitted that there was no lack of jurisdiction as the trial of the petitioner took place at the place of incident. It is further submitted that Section 74(2) of the Act, which has been invoked for cancellation of conviction and sentence, does not apply to the case of the petitioner as section 16(c) and section 40 of the Act have not been mentioned under section 74(2) of the Act. It is also submitted that trial by the General Security Force Court