ORDER :

Mohammad Rafiq, J.

1. This appeal has been preferred by the Director General, Border Security Force (BSF), New Delhi and other three officers of the BSF, challenging the judgment of the Single Bench of this Court dated 15.11.2017, whereby the writ petition filed by Ex. Constable Padh SD was allowed and the order dated passed by the Commandant 19th Battalion BSF, Shillong-appellant No. 4 herein, dismissing the respondent/writ petitioner from service and the subsequent order dated 05.07.2016 passed by the Deputy Inspector General/CLO (D&L), BSF-appellant No. 2 herein, commuting the sentence of dismissal from service to rigorous imprisonment for 89 days in Force custody and forfeiture of two years of service for the purpose of promotion, were both quashed and set aside.

2. The facts of the case in brief are that the respondent/writ petitioner while serving as a Constable of 'E' Coy under 19th Battalion, BSF, Shillong, was charged under Sections 34(a), 40 and 19(a) of the Border Security Force Act, 1968 (for short the 'Act of 1968') for the following offences:-

"(a) Making a false allegation against a person subject to the Border Security Force Act, 1968 knowing such accusation to be false;

(b) Act prejudicial to good order and discipline in the Force;

(c) Absenting without leave;

(d) Absenting without leave."

3. Upon the Summary Security Force Court convened against the respondent/writ petitioner recording finding of guilt on the aforementioned the above referred to charges, the Commandant 19th Battalion, BSF vide order dated 13.09.2014, awarded him penalty of dismissal from service. Being aggrieved, the respondent/writ petitioner filed writ petition [W.P.(C) No. 177 of 2015] before this Court. While declining to interfere with the impugned order 13.09.2014, this Court disposed of the same vide judgment dated 19.04.2016, directing the respondent/writ petitioner to take recourse to appropriate statutory remedy in accordance with law. The respondent/writ petitioner then preferred an appeal under Section 117(2) of the Act of 1968 read with Rule 167(2) of the Border Security Rules, 1969 (for short the 'Rules of 1969') before the Appellate Authority viz.-the Direction General of BSF, on 02.05.2016. The Appellate Authority allowed the appeal in part and substituted the sentence of dismissal from service by rigorous imprisonment for 89 days in Force custody and forfeiture of two years of service for the purpose of promotion. These two orders have been set aside and quashed by the learned Single Judge vide judgment impugned in the present appeal proceedings.

4. Mr. K. Paul, learned counsel appearing for the appellants has argued that the learned Single Judge has erred in law in not appreciating that the sentence awarded in terms of Section 48 of the Act of 1968 to the respondent/writ petitioner was legal and valid on the finding of the Summary Security Force Court recorded against the respondent/writ petitioner. The respondent/writ petitioner was given full opportunity to defend himself in the proceedings before the Summary Security Force Court for the charges leveled against him of (i) making false accusations to a person subject to the BSF Act knowing such accusation to be false; (ii) an act of prejudicial to good order and discipline of the Force and; (iii) absenting himself without leave, stood proved beyond reasonable doubt. Learned counsel argued that the First Information Report (FIR) filed by the respondent/writ petitioner, alleging sodomy with him, was though registered vide FIR No. 73(6)/2014 under Section 377/34 IPC at Rynjah Police Station, Nongmynsong Outpost but the investigation into that FIR did not substantiate the accusation and the police finally submitted a negative final report therein dated 31.01.2015 to the court of competent jurisdiction. The respondent/writ petitioner did not seek any further investigation