A.K. Banerjee, J. - (1.) Writ petitioner was a constable working in Border Security Force (hereinafter referred to as BSF). The writ petitioner was charge sheeted on the following three charges : JUDGEMENT_61_LAWS(CAL)4_2002.htm In reply to the charge the writ petitioner gave a justification to the extent of that the excess money was his savings out of his salary which he was taking to his native place for handing over the same to his family members. The writ petitioner was tried by Summery Security Force Court and he was awarded punishment of dismissal from service. The order of dismissal has been impugned before me on the following grounds: (i) There had been violation of Rule 49(3) of the Border Security Rules by recording the statement of the writ petitioner on the same day. (ii) There had been no compliance under Rule 52 of the Border Security Force Rules; (iii) No consultation was made by the Commandant in terms of Rule 59 of the Border Security Force Rules; (iv) No Prosecuting Officer was appointed under 62(g) of the said Rules; (v) No examination of witness was made in violation of Rule 146; (vi) There had been violation under Rule 149 with regard to the finding on every charge; (vii) There had been violation of Rule 157(1) read with Rule 122(3) with regard to appointment of friend of the accused.
(2.) With regard to the first issue that there had been violation of Rule 49(3) the respondents in their Affidavit -in -Opposition categorically denied such allegation. However, in my view, the fact of finding excess amount in his possession was an admitted fact. Hence such contention of the petitioner is not at all relevant herein.
(3.) However on the question of constitution of court I find there were some irregularity., From the order dated 31st March, 1997 appearing at page. 32 of the writ petition it appears that the Commandant in terms of Rule 62 issued a convening order. It was contended by the petitioner that a separate charge sheet should have been issued upon the petitioner before proceeding against the writ petitioner before the Summary Court.;