VYAS, J. - (1.) BY this petition, the petitioner has prayed for quashing of the order dated 10. 11. 2003 passed by Summary Security Force Court (hereinafter, for short "the SSF Court") which was further confirmed vide order dated 1. 12. 2003 by the D. I. G. B. S. F. Barmer and the order dated 21-22. 9. 2004 whereby the appeal filed by the petitioner has been dismissed.
(2.) THE contention of the learned counsel for the petitioner is that he was substantively working in B. S. F. since 5. 9. 1986 and served the respondent Department with utmost sincerity and dedication. During his service tenure, he received cash rewards from I. G. B. S. F. , 9 Commendation Rewards from the D. I. G. And 10 from Commandant. As per the facts of the case, till 2003 only two punishments were inflicted against him with regard to absence without leave and over staying on leave and till 2003 his service record was unblemished and there is no charge against the petitioner for committing any offence involving moral turpitude. According to the petitioner some dispute arose in between the respondent No. 5 and him and it resulted in verbal altercation at the shooting range in Punjab in the year 1990 and petitioner had verbally reported the incident to the I. G. B. S. F. Punjab Frontier. Due to that reason, Shri A. K. Tambe was annoyed with him and the moment he joined the 20 Bttn. B. S. F. , he had verbally threatened him that "i will see you". On 28. 10. 2003, the petitioner was served with charge-sheet under Section 26 of the B. S. F. Act, 1968 and before serving charge-sheet, the petitioner was placed under close arrest at Headquarter 20 Bn. B. S. F. Barmer on 29. 10. 2003. On 29. 10. 2003, the respondent No. 5 directed Shri S. S. Choudhary to prepare a detail report and to conduct the Record of Evidence. On 7. 11. 2003, the petitioner was informed that a SSF Court is going to be held at Headquarter 20 Bn. B. S. F. on 10. 11. 2003 and the petitioner is to be tried for committing offence under Section 26 of B. S. F. Act, 1968. Further it was informed that he may appoint a friend of the accused for defending his case and the name of friend was to be informed to the Office on 8. 11. 2003. The contention of the petitioner is that he never appointed Shri A. K. Tambe as his friend in the proceedings but he was shown to have been appointed as friend of accused to defend him in SSF Court trial. It is very strange that in the SSF Court, without his consent Shri A. K. Tambe was appointed as friend but while recording guilty of the petitioner under Rule 142 of the B. S. F. Rules, 1969, the Presiding Officer convicted the petitioner with sentence of dismissal from service vide order dated 10. 11. 2003. The said order was confirmed by the respondent No. 4 vide order dated 1. 12. 2003. Being aggrieved with the aforesaid orders, an appeal was filed by the petitioner and that too was dismissed. In above circumstance, the petitioner was compelled to file writ petition before this Court, which was registered as SB Civil Writ Petition No. 3288/2004 in which the sentence awarded by SSF Court was challenged but at that time the appeal filed by the petitioner under Section 117 (2) of the B. S. F. Act was pending, therefore, the above writ petition filed by the petitioner was dismissed and the respondents were directed to expedite the hearing of the appeal. The appeal filed by the petitioner was, thereafter decided in very casual manner while observing that "the issues raised in your petition have been considered very carefully in the light of relevant records, legal provisions and evidence in Summary Security Force Court trial proceedings. After detail consideration and a careful scrutiny of all the facts and circumstances of the case, the DIG, B. S. F. Has rejected your petition being devoid of merit". The petitioner has challenged whole of the proceedings in which, on the basis of recording the plea of guilt by the petitioner he has been penalized with the penalty of dismissal from service.
(3.) LEARNED counsel for the petitioner has raised following grounds to quash the penalty order dated 10. 11. 2003 and order of the appellate authority before this Court : (1) the order impugned passed by SSF Court dated 10. 11. 2003 and confirmed vide order dated 21-22. 9. 2004 by the DIG, B. S. F. , Barmer are arbitrary and illegal and have been passed in very causal manner without going through the evidence available on record; (2) the petitioner never appointed Shri A. K. Tambe as his friend in the proceedings because there was quarrel in between the petitioner and Shri A. K. Tambe, therefore, there was no question to appoint him as friend in the proceedings; (3) the Presiding Officer had committed breach of Rule 48 of the B. S. F. Rules, 1969 because while preparing the record of evidence the Officer acts like a senior clerk only and the only duty assigned to him is to record the evidence as stated by the witnesses and also to take down the questions asked by the accused to the prosecution witnesses and the answers given by them. In fact Recording Officer has no right whatsoever to ask any question to the prosecution witnesses. He can at the most ask the questions to the defence witnesses. Therefore, whole proceedings is in violation of Rule 48 of the Rules of 1969; (4) as per the petitioner, not a single person had seen him to consume the liquor. In fact the so called half filled bottle of liquor was also not recovered at the instance of the petitioner and nobody had seen the petitioner bringing the above mentioned bottle. The said bottle was recovered from open place and the bottle was never sent for F. S. L. to confirm whether it contained liquor or not; (5) the most important ground is that before recording plea of guilty the procedure provided under Rule 142 (2) of the BSF Rules was not complied with which is mandatory in nature. It is vehemently submitted that the petitioner never pleaded guilty before SSF Court trial in fact he had repeatedly requested for cross-examining the witnesses and to produce his evidence in defence, but no opportunity was given and straightaway while observing the word "guilty", the penalty has been inflicted against the petitioner. As per the petitioner before recording guilty the respondents were under obligation to follow Rule 142 (2) of the BSF Rules 1969 but before recording finding of guilty, the Court never ascertained from the petitioner whether he has understood the nature of charge to which he has pleaded guilty, so also never informed him the general effect of that plea and meaning of the charge to which he has pleaded guilty. Further, it is submitted that there is no signature upon the proceedings in which guilty has been recorded, therefore, whole proceedings initiated against the petitioner is required to be vitiated. It is also submitted that since 19. 10. 2004, the petitioner was in custody and all the proceedings were undertaken when the petitioner was in close arrest, therefore, whole proceedings are against the principles of natural justice. Therefore, the orders impugned may kindly be quashed. As per the petitioner he was illegally implicated in false case of intoxication because there is no eye-witness to prove that the petitioner had consumed liquor while on duty. ;