JUDGMENT A.B. Pal, J. 1. The Petitioner was a Lance Naik in the Border Security Force (for short 'BSF'), who in the present writ petition has called in question the legality and validity of the order of his dismissal from service passed by Deputy Inspector General, SHQ BSF TRA(S) on 26th October, 1995, which was corrected later by order dated 8th June, 1996. 2. The Petitioner entered into service in April, 1986 as Constable and in 1993 he was promoted to the post of Lance Naik in 81 Bn. BSF, Salbagan. In 1995 he came to be attached to SHQ, BSF, TRA(S), Gokulnagar. On 5.9.1995 certain valuable materials including one generator set (1.5 kv., Sriram Honda), 12 volt. Battery (Exide) and ceiling fans were found to be missing from the store and an investigation was launched by P.W.1, JBS Gurung, SUB(T) and P.W.2, P.K. Paul, SI (Vig.) under the order of the competent authority. During investigation, it came to light that constable Maquebul Hussain committed theft of those articles and on 2.9.1995 he proposed to the Petitioner herein to sell the generator at a price of Rs. 8,000/- only. The Petitioner agreed to buy the same at a price of Rs. 6,000/- only. Though Maquebul Hussain refused to give any document and agreed to sell the generator at Rs. 6,000/- against its original price of Rs. 14,000/-, the Petitioner bought the same and kept it in his brother's house at Ramnagar Road No. 4. The investigation further revealed that the Petitioner admitted about his buying the generator, but pleaded his ignorance that it was a stolen property. Following his statement, the investigating officers conducted search in the house of the brother of the Petitioner and recovered the generator. The fact that the generator valued at Rs. 14,000/- was sold at a price of Rs. 6,000/- only by a constable, who was not supposed to deal with such article and the Petitioner agreeing to buy the same without any document or verifying wherefrom Maquebul Hussain obtained the same gave rise to a suspicion in the mind of the authorities concerned that the Petitioner had purchased the article knowing or having reason to believe that it was a stolen article, which is an offence punishable under 30 of the Border Security Force Act, 1968 (for short 'Act'). Separate proceedings were drawn against Moquebul Hussain and the Petitioner herein. Separate proceedings were drawn against Moquebul Hussain and the Petitioner herein. The charge initially framed by the DIG against the Petitioner reads as follows: The accused No. 868110288 Rank. L/NK Name. Mihir Kanti Choudhury of SHQ BSF Tripura (South) is charged with: BSF Act Section 32(a) Making away with stolen Govt. Property In that he, at 0600 hrs on 3 Sept. 95 helped No. 90192196 Constable Maquebul Hussain in making away with the property i.e. Sri Ram Honda 1.5 KV belonging to Government. But Section 32(a) under which he was charged provides as follows: 32. Any person subject to this Act who commits any of the following offences, that is to say, (a) makes away with, or is concerned in making away with, any arms, ammunition equipment, instruments, tools, clothing or any other thing being the property of the Government issued to his for his use or entrusted to him; shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend, in the case of the offences specified in Cause (a), to ten years.... It would appear from above that the factual position did not warrant a charge under Section 32(a) of the Act and, therefore, later the charge was modified to one under Section 30(d) of the Act, which provides as follows: The accused No. 868110288 Rank. L/NK Mihir Kanti Chaudhury of SHQ BSF TRA (S) attached with 103 Bn BSF is charged with: Under Section 30(d) Act, 1968 Dishonestly receiving theft BSF Property belonging to the Government. In that he, at Gokulnagar SHQ BSF TRA(S) on 3rd Sept. 1995 at about 0600 hrs dishonestly received one portable Generator set (Sri Ram Honda) bearing No. EM-93-0001594 of 104 Bn BSF the property belongs to Government from No. 90192196 Constable Maquebul Hussain of. 97 Bn BSF knowing it to be stolen. Section 30(d) of the Act provides that any person subject to this Act who dishonestly receives or retains any such property in respect of which any of the offences under Clauses (a), (b) and (c) has been committed, knowing or having reasons to believe the commission of such offences shall, on conviction by a Security Force Court, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned. As noted above, the charge against the Petitioner on the basis of the result of the investigation was that he had received the generator set, a stolen property of the Government knowing or having reason to believe that it was a stolen property and thus the charge under Section 30(d) of the Act was considered to be appropriate one in the facts and circumstances of the case. The charge was framed by the Commandant, 103 Bn BSF. 3. The Summary Security Force Court (for short 'SSFC') before which the proceeding against the Petitioner commenced was presided over by D.V. Saraswat, the Commandant of the Battalion. The charge was read over and explained to the accused-Petitioner, who pleaded guilty to the charge even though he was informed the effect and consequence of such a plea. Before the order of penalty of dismissal from service was issued on 12.10.1995, after the plea of guilt was recorded, the statements of witnesses were recorded by one J.P. Syal, the person appointed as recording officer. Six witnesses were examined by the recording officer of whom P.W.1, JPS Gurung and P.W.2, PL Paul conducted the investigation, searched and seized the stolen generator. P.W.3, Mohan Singh and P.W.4, Maipak Singh were also examined on the same date, i.e. on 18.9.1995. The other accused Moquebul Hussain, who is alleged to have committed the theft and sold the stolen generator to the Petitioner herein was also examined as P.W.5 on 25.9.1995. P.W.6, Jagdish Singh was also examined on 25.9.1995. The statements of these witnesses established the undisputed fact that the Petitioner herein had received the stolen generator from Moquebul Hussain, who also faced another proceeding on the charge that he had stolen the generator and other articles, which were the properties of the Government. The Petitioner herein has assailed the impugned order of dismissal on several grounds of which the main contention is that he was a bonafide purchaser without knowing that the generator was stolen by Moquebul Hussain. He admitted that he had purchased the same without any knowledge about the offence committed by Moquebul Hussain and for that reason an offence punishable under Section 30(d) of the Act cannot be said to have been made out and consequently the impugned order of punishment, which is shockingly disproportionate to the alleged offence is not legally sustainable. 4. I have heard Mr. 4. I have heard Mr. P. Roy Barman, learned Counsel for the Petitioner and Mr. P.K. Biswas, learned Assistant S.G. for the Respondents. 5. Mr. Roy Barman advanced his first submission that the initial charge under Section 32(a) of the Act was unwarranted and not supported by the prosecution case and being framed by DIG, who was not competent to frame the same, the entire proceeding was void ab initio. In support of his submission, he has referred to the provision of Rule 45B of the Border Security Force Rules, 1969 (for Short 'Rules'), which provides that the charge against an officer or subordinate officer shall be heard by his Commandant only. It is his submission that the initial charge having been framed by the DIG, who was not competent to hear the charge, the proceeding was bad in law. This submission of Mr. Roy Barman is not acceptable for the reason that the Petitioner was a Lance Naik at the relevant time, who came under the category "under-officer". The other two higher Grades as per Rule 40A of the Rules are "officer" and "subordinate officer". Rule 45 deals with "officers" and "subordinate officers" only, but not "under-officers" and, therefore, the same has no application in the present case. Rule 45, however, provides that the charge against an enrolled person shall be heard by the Commandant of the accused. A Lance Naik is not an enrolled person. Keeping aside this controversy, it is the admitted position that the SSFC, which was summoned to hear the charge was presided over by the Commandant of the Force, who again, before proceeding against the Petitioner herein, framed a fresh charge under Section 30(d) of the Act and, therefore, the submission of Mr. Roy Barman that an appropriate and competent officer did not frame the charge has no substance at all as he does to dispute that the Commandant was the only competent officer to hear the charge. 6. The other submissions for assailing the impugned order of punishment advanced by Mr. Roy Barman may be noted as follows: (a) The generator was not given to the Petitioner or entrusted to him and, therefore, the charge under Section 32(a) of the Act was not applicable; This submission is not tenable, as I have discussed above, for the reason that the charge was later modified by the Commandant presiding over the SSFC. Roy Barman may be noted as follows: (a) The generator was not given to the Petitioner or entrusted to him and, therefore, the charge under Section 32(a) of the Act was not applicable; This submission is not tenable, as I have discussed above, for the reason that the charge was later modified by the Commandant presiding over the SSFC. (b) Two dismissal orders have been passed modifying the first by the latter both of which have been assailed in the present writ petition. The first dismissal order mentioned that as the Petitioner was convicted under Section32(a) of the Act, the SSFC dismissed him from service. The second dismissal order, which was in partial modification of the first one, stated that as the Petitioner was convicted under Section 30(d) of the Act, he was dismissed from service. These two orders clearly demonstrate a disturbing position in the administration of the BSF that the authority concerned has no application of mind while passing the order of dismissal; On careful perusal of the two orders, it would appear that the error, which crept into the first order, was only with regard to the section under which the accused-Petitioner was convicted. Though he was charged under Section30(d) of the Act and after the conclusion of the proceeding dismissed thereunder, Section 32(a) was mentioned undoubtedly due to oversight and that cannot be the ground for holding that there was no application of mind. Clerical and typographical error cannot always be avoided. (c) The punishment was solely based on the admission of guilt by the accused-Petitioner though the settled legal position is that contention or admission cannot be the sole basis for sustaining a conviction; Though it is not res integra that contention/admission cannot be the sole basis of conviction, as submitted by Mr. Roy Barman, a perusal of the records would go to show that the recording officer recorded statements of six witnesses, all of whom corroborated each other and whose statements unmistakably proved that the accused-Petitioner received the stolen generator from Moquebul Hussain at a low price of Rs. 6,000/- only, though its price was Rs. 14,000/-, without making an inquiry wherefrom the constable had purchased the same. He also did not insist for any document as a proof of the transaction and he hid the same immediately after purchase in the house of his brother in Ramnagar Road No. 4. 6,000/- only, though its price was Rs. 14,000/-, without making an inquiry wherefrom the constable had purchased the same. He also did not insist for any document as a proof of the transaction and he hid the same immediately after purchase in the house of his brother in Ramnagar Road No. 4. This attending circumstances together with the admission to the charge during the course of proceeding established to the SSFC that the accused-Petitioner was guilty of an offence of receiving stolen property knowing it to be stolen, which is punishable under Section 30(d) of the Act. (d) The SSFC passed the sentence in the findings of conviction and that the sentence so imposed was not confirmed by appropriate authority as required by Section 114(2) of the Act; This submission of Mr. Roy Barman is of no merit, particularly for the reason that when the charge was read over and explained to the accused-Petitioner and he pleaded guilty to the charge, there was no scope of making elaborate finding for the purpose of conviction. The statements of witnesses recorded by the recording officer and the admission of the accused-Petitioner left nothing more to be recorded as finding and, therefore, the conviction was correctly recorded by the Commandant. For the same reason, the other submission that for non-recording of the findings, the Petitioner could not make any adequate representation, does not survive. 7. After having discussed the points raised by the learned Counsel for the Petitioner, the most important question, which touches the maintainability of the present writ petition is now to be adverted to. It has been admitted in paras 17 and 18 of the writ petition that the Petitioner had preferred an appeal before the Inspector General against the conviction and sentence, which was turned down. Thereafter, he preferred an appeal before the Director General of BSF against the conviction and sentence, which could evoke no response even at the time of filing of the writ petition. Para 19 of the writ petition reads as follows: 19. That, be it mentioned here that in his fruitless attempt to get justice the Petitioner also preferred a prayer against the order of dismissal passed in pursuance of sentence of the SSFC to the Director General of BSF, i.e. the Res. No. 2. In that prayer the Petitioner made an impassioned plea for justice after detailing all the factual matrix. That, be it mentioned here that in his fruitless attempt to get justice the Petitioner also preferred a prayer against the order of dismissal passed in pursuance of sentence of the SSFC to the Director General of BSF, i.e. the Res. No. 2. In that prayer the Petitioner made an impassioned plea for justice after detailing all the factual matrix. But no response has yet been made to that prayer of the Petitioner. To this, the Respondents in their counter-affidavit replied that the Petitioner had filed an appeal before the Director General of BSF, but before disposal of the said appeal the present writ petition was filed. Section 117 of the Act deals with filing of appeal, which is gainfully quoted below: 117. Remedy against order, finding or sentence of Security Force Court.- (1) Any person subject to this Act who considers himself aggrieved by any order passed by any Security Force Court may present a petition to the officer or authority empowered to confirm any finding or sentence of such Security Force Court, and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates. (2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any Security Force Court which has been confirmed, may present a petition to the Central Government, the Director-General, or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director-General, or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit. It would appear that under Sub-section (1) of Section 117 of the Act, the aggrieved person may prefer a petition against any order passed by the SFC to the confirming authority. It would appear that the appeal to the. Inspector General was under Sub-section (1) against confirmation of the conviction and sentence and was, however, turned down implying thereby that the same was confirmed. Under Sub-section (2) of that section, the aggrieved person has the opportunity to present a petition to the Central Government, Director General or any prescribed officer superior in command and accordingly, the Petitioner herein filed an appeal to Director General, BSF. Under Sub-section (2) of that section, the aggrieved person has the opportunity to present a petition to the Central Government, Director General or any prescribed officer superior in command and accordingly, the Petitioner herein filed an appeal to Director General, BSF. From the writ petition and the counter-affidavit, it becomes evident that the appeal before the Director General is still pending and before disposal of the same, the present writ petition has been filed. 8. It is no longer res integra that a writ petition is filed in public law remedy. It has been settled by a long catena of decisions that when right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This view by the Apex Court has been taken in Seth Chand Ratan v. Pandit Durga Prasad reported in AIR 2003 SC 3078 . Para 13 of that judgment reads as follows: 13. Even otherwise, the view taken by the Division Bench of the High Court for repelling the objection of the Appellant regarding the maintainability of the writ petition, that an alternative remedy does not divest the High Court of its powers to entertain petition under Articles 226 and 227 of the Constitution, has hardly any application on the facts of the present case. It has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the Court in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or Tribunal to take the action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. In the present case, the alternative remedy of challenging the judgment of the Court was not before some other forum or Tribunal. On the contrary, by virtue of Sub-section (3) of Section 27 of the Act, the order passed by the Court amounted to a decree against which an appeal lay to the High Court. When the party had statutory remedy of assailing the order passed by the District Court by filing an appeal to the High Court itself, he could not bypass the said remedy and take recourse to proceedings under Articles 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the Statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount or fulfillment of some other conditions for entertaining the appeal. 9. Mr. Roy Barman has placed reliance on Union of India v. Haish Chandra Goswami reported in (1999) 4 SCC 575 , which dealt with Army Rule 37(3) regarding court martial and the consequences of passing order without application of mind. This decision, in my view, has no application in the present case for the reasons noted above. 10. For the above discussions, this writ petition appears to be premature because of the pendency of the appeal before the Director General, BSF and consequently, on this ground alone the same is dismissed with direction to the said appellate authority to dispose of the same within a period of three months from the date of passing of this order. No cost. Petition dismissed