B.P.KATAKEY, J. - (1.) By this common judgment and order, both the appeals are being disposed of as agreed to by the learned counsels for both the parties, as they pose a common question of law.
(2.) Both the appeals are directed against the judgments and orders dated 03.09.2001 passed by the learned Single Judge in WP (C) No. 223/2001 and WP (C) No. 224/2001 allowing the writ petitions filed by the petitioners by setting aside the orders of dismissal from service dated 10.04.2001 passed by the Deputy Inspector General (DIG), Border Security Force (BSF), TRA (South).
(3.) The facts which have given rise to the present appeals are as under : The writ petitioners in WP (C) No. 223/01 and WP (C) No. 224/01 while serving as Constables under 130 Bn BSF were tried by the Summary Security Force Court (in short, SSFC) on the charge u/s 31(b) of the Border Security Force Act, 1968 (in short, the Act), alleging extortion of a sum of Rs. 50,000/- by them from a civilian, namely Billal Hussain, while they were on OP duty at Kali Mandir on 19.1.98 at about 1800 hours, without proper authority. The said SSFC, after holding the trial vide order dated 30.10.99 recording 'not guilty', acquitted them from the normal charge and also released them from open arrest. The proceeding of the SSFC was thereafter forwarded to the concerned DIG, BSF, who vide order dated 18.4.2000, refused to counter sign the proceedings of the SSFC. Thereafter the DIG, BSF on 26.7.2000, issued notices under Rule 22 of the Rules asking the writ petitioners to show cause as to why they should not be dismissed from service for the misconduct committed by them, as reflected in the said show cause notices, upon recording the satisfaction that it is impracticable to hold a retrial by a SSFC as there is no provision either under the Act or under the Border Security Force Rules, 1969 (in short, the Rules) to remand the finding of the SSFC for revision, even though the record of evidence prepared against them reflects sufficient materials of forcibly snatching a sum of Rs. 50,000/- from a civilian, namely Billal Hussain and forming an opinion that their further retention in service is undesirable. The writ petitioners on receipt of the said show cause notices, submitted their replies denying the allegations levelled against them and further contending that once they were tried by the SSFC under the Act, no action thereafter can be taken by the authority by invoking the provisions of Rule 22 of the Rules, as, after such trial by SSFC, it cannot be said that the trial of such persons is inexpedient or impracticable, which is the condition precedent for exercising the powers under Rule 22 (2) of the Rules. Both the writ petitioners have also filed additional replies to the show cause notices apart from the earlier ones. The DIG, BSF upon consideration of the show cause replies filed by the writ petitioners vide order dated 10.04.2001 dismissed them from service without pension, with immediate effect, in exercise of the power conferred by Rule 22 of the Rules for the misconduct committed by them.;