Judgment : BANERJEE, J. (1) Respondents Version: Janak Raj Digra (hereinafter referred to as "Janak") joined Border Security Force (hereinafter referred to as "BSF") as constable on April 25, 1978. He was promoted in the rank of Sub-Inspector on June 11, 1996. On June 7, 1999 while he was posted at Srinagar in the State of Jammu and Kashmir he was implicated on an alleged charge of rape of a minor girl. The said case was pending as on the date of the filing of the affidavit before the learned trial Judge. However, the ultimate result was not made known to us. The statement in the said case was recorded in English. Janak signed the said statement in English. In December, 1999 122, Battalion in which Janak was a member was shifted to Calcutta. The Battalion was deployed at Indo-Bangladesh Border. On March 28, 2000 on a surprise raid Janak along with constable Jagdish Kumar and Sohanlal seized two pipe guns from the miscreants. The pipe guns were kept in the boat after it had been seized while the raiding party had been patrolling in a boat in Sunderban area. Janak, however, did not deposit the seized pipe guns which were lost from his custody. He was charge-sheeted and proceeded in a Staff Court of Enquiry who investigated into the matter. Janak ultimately suffered punishment from dismissal of the service under the provisions of Border Security Force Act, 1968 (hereinafter referred to as the "said Act of 1968"). Before he was inflicted the punishment of dismissal of service he was summarily tried on the offence of indicipline under Section 40 of the said Act and suffered a punishment of severe reprimand. (2) Janaks Version: He was posted for a substantial period in the border State of Jammu and Kashmir. Altogether he had unblemished service career for about twenty-one years when he got thirty-two awards and/or medals including one commendation award for arresting inter border miscreants and/or militants in Panthochawak and Rainamari when two militants were apprehended from the said area being Indo-Pakistan border at Jammu and Kashmir. Just before the Battalion shifted to West Bengal he was implicated in a rape case although he was not at all involved in any such unfortunate incident. (3) On the subject incident Digra stated that he had seized the pipe guns and kept it in the boat. Just before the Battalion shifted to West Bengal he was implicated in a rape case although he was not at all involved in any such unfortunate incident. (3) On the subject incident Digra stated that he had seized the pipe guns and kept it in the boat. During shifting of duty and changing of placement the said arms got misplaced and as such he was not in a position to deposit the same in the armory. Procedural Controversy: (4) The authority suspended Janak and asked him to face Staff Court of Enquiry. He was asked to sign a statement written in English. He requested the authority to record the statement in Hindi which they refused. He also refused to sign the recorded statement in English. He was thus summarily tried under Section 40 of the said Act for refusing to sign the statement and suffered an order of severe reprimand. He approached the learned Single Judge when the learned Single Judge asked the authority to supply him the statement in Hindi, in fact the learned Counsel appearing for BSF conceded to that extent as would appear from the order of the learned Single Judge. According to Janak, despite such order being passed he was not served with the Hindi statement, on the other hand he was asked to have it translated in Hindi. Janak filed his second writ petition being W. P. No. 2081 of 2001, inter alia, praying for setting aside of the order of suspension as well as proceedings initiated against him. He obtained an interim order to the extent that the proceedings would go on. However, the authority would not pass any final order. The writ petition was dismissed for default. It was later on restored. However, in the meantime the authority passed the final order of dismissal from service. With the leave of the Court Janak made an application for amendment of the writ petition to the extent that the Rule 174(2) of the BSF Rule, 1969 was ultra vires the BSF Act, 1968 and the said rule should be struck down. Writ Petition and the Result: (5) The writ petition was finally heard by the learned Single Judge. His Lordship disposed of the writ petition by judgment and order dated June 21, 2002 appearing at pages 11-136 of the Paper Book. Writ Petition and the Result: (5) The writ petition was finally heard by the learned Single Judge. His Lordship disposed of the writ petition by judgment and order dated June 21, 2002 appearing at pages 11-136 of the Paper Book. On perusal of the said judgment and order it appears that the learned Single Judge considered the legal plea raised by Janak to the extent that the Rule 174 was ultra vires the Act of 1968 . His Lordship, however, did not go into merits of the matter. His Lordship rejected the legal plea raised by Janak and held that the rule was perfectly framed and did not have any Constitutional flaw. After observing as such, His Lordship granted liberty to Janak to prefer departmental appeal against the order of dismissal which came during the pendency of the writ petition. This Appeal: (6) Being aggrieved and dissatisfied with the judgment of the learned Single Judge Janak preferred the instant appeal. Janak, however, did not avail the liberty granted by His Lordship in filing the departmental appeal against the order of dismissal. We heard the appeal on the above mentioned dates. Contention of the Appellant: (7) Mr. Asish Kumar Sanyal, learned Counsel appearing for the appellant, contended that under Section 62 of the BSF Act, 1968 Staff Court of Enquiry could only be constituted to investigate into the allegation of unauthorised absence. Under the said Act of 1968 apart from Section 62 there was no other provision where Staff Court of Enquiry could be entrusted to investigate. Hence, Rule 174 empowering the Staff Court of Enquiry to investigate into the several offences other than the offence of unauthorised absence ultra vires the Act itself and hence should be struck down. Cases Cited: (8) In support of his contention Mr. Sanyal relying upon the following decisions:-(i) All India Reporter, 1984, Supreme Court, Page 1543 (Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupesh Kurmarsheth etc. etc.), (ii) All India Reporter, 1997, Supreme Court, Page 2502 (Agricultural Market Committee v. Shalimar Chemical Works Limited), (iii) All India Reporter, 2000, Supreme Court, Page 1069 (Kunj Behari Lal Butail and Ors. v. State of H.P. and Ors.), (iv)AII India Reporter, 2003, Supreme Court, Page 1191 (State of Madhya Pradesh and Anr. v. Paritosh Bhupesh Kurmarsheth etc. etc.), (ii) All India Reporter, 1997, Supreme Court, Page 2502 (Agricultural Market Committee v. Shalimar Chemical Works Limited), (iii) All India Reporter, 2000, Supreme Court, Page 1069 (Kunj Behari Lal Butail and Ors. v. State of H.P. and Ors.), (iv)AII India Reporter, 2003, Supreme Court, Page 1191 (State of Madhya Pradesh and Anr. v. Bhola alias Bhairon Prasad Raghuvanshi), (v) All India Reporter, 2004, Supreme Court, Page 218 (S. Samuel, M.D., Harrisons Malayalam and Anr. v. Union of India and Ors.), (vi) All India Reporter, 2005, Supreme Court, Page 69 (Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Ors.), (vii) All India Reporter, 2006, Supreme Court, Page 3480 (Kerala Samsthana Chethu Thozhilali Union v. State of Kerala). (9) Further Contention of the appellant: Mr. Sanyal contended that the proposition of law so decided by the Apex Court referred to above, should be read in the context Of the factual matrix involved herein. According to Mr. Sanyal, the learned Single Judge could not apply the ratio decided in the case of Maharashtra State Board of Secondary and Higher Secondary Education and Anr. (supra) without appreciating the facts involved in the instant case. Mr. Sanyal further contended that Section 141 of the said Act of 1968 empowered the subordinate authority to frame rules. Such delegated power could not override the original provisions of the said Act of 1968. Mr. Sanyal, further contended that in absence of appropriate guideline the said rule being Rule 174 could not be sustained. (10) On factual matrix Mr. Sanyal contended that Janak during his service career earned thirty-two medals and/or commendations. The authority should have considered such aspect before dismissing him from service. (11) Contention of the Respondents: Opposing the appeal Mrs. Anawari Querashi, learned Counsel appearing for the respondent authorities took us to various findings of the learned Single Judge appearing at pages 130, 131 and 133 of the Paper Book. Mrs. Querashi contended that the learned Judge rightly held that the said rule was properly framed and could not be said to be illegal. Mrs. Querashi further contended that His Lordship granted liberty to Janak to prefer departmental appeal which he failed to avail. She prayed for dismissal of the appeal. Mrs. Querashi contended that the learned Judge rightly held that the said rule was properly framed and could not be said to be illegal. Mrs. Querashi further contended that His Lordship granted liberty to Janak to prefer departmental appeal which he failed to avail. She prayed for dismissal of the appeal. (12) Our View on the Legal Issue: Let us first decide the legal issue raised by the appellant before the learned Single Judge as well as before us. (13) Section 62 and Section 141 of the said Act of 1968 are quoted below:- "62. Inquiry into absence without leave- (1) When any person subject to this Act has been absent from duty without due authority for a period of thirty days, a Court of inquiry shall, as soon as practicable, be appointed by such authority and in such manner as may be prescribed; and such Court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries and if satisfied of the fact of such absence without due authority or other sufficient cause, the Court shall declare such absence and the period thereof and the said deficiency, if any, and the Commandant of the unit to which the person belongs shall make a record thereof by the prescribed manner. (2)............................................................................ "141. Power to make rules- (1) The Central Government may, by notification, make rules for the purpose of carrying into effect the provisions of this Act. (2)............................................................................ "141. Power to make rules- (1) The Central Government may, by notification, make rules for the purpose of carrying into effect the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for: (a) the constitution, governance, command and discipline of the Force; (b) the enrolment of persons to the Force and the recruitment of other members of the Force; (c) the conditions of service (including deductions from pay and allowances) of members of the Force; (d) the rank, precedence, powers of command and authority of the officers, subordinate officers, under-officers and other persons subject to this Act; (e) the removal, retirement, release or discharge from the service of persons subject to this Act; (f) the purposes and other matters required to be prescribed under Section 13; (g) the convening, constitution, adjournment, dissolution and sittings of Security Force Courts, the procedure to be observed in trials by such Courts the persons by whom an accused may be defended in such trial and the appearance of such persons thereat; (h) the confirmation, revision and annulment of, and peritions against, the findings and sentences of Security Force Courts; (i) the [Forms of Order] to be made under the provisions of this Act relating to Security Force Courts and the awards and infliction of death, imprisonment and detention; (j) the carrying into effect of sentences of Security Force Courts; (k) any matter necessary for the purpose of carrying this Act into execution, as far as it relates to the investigation, arrest, custody, trial and punishment of offences triable or punishable under this Act; (l) the ceremonials to be observed and marks of respect to be paid in the Force; (m) the convening of, the constitution, procedure and practice of, Courts of inquiry, the summoning of witnesses before them and the administration of oaths by such Courts; (n) the recruitment and conditions of service of the Chief Law of Officer and the Law Officers; (o) any other matter which is to be, or may be prescribed or in respect of which this Act makes no provisions or makes insufficient provisions and provision is, in the opinion of the Central Government, necessary for the proper implementation of this Act. (3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or [in two or more successive session and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the order or bothy Houses agree that the order should not be made the order shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." (14) Rule 174 of the BSF Rules, 1969 is quoted below:- "174. Courts of inquiry when to be held- (1) A Court of inquiry may be held to investigate into any disciplinary matter or any other matter of importance. (2) In addition to a Court of inquiry required to be held under Section 62, a Court of inquiry shall be held in the following cases:- (a) (i) All unnatural deaths of persons subject to the Act or of other persons within the Force lines, an immediate report shall be sent through the messenger to the Officer-in-Charge of the Police Station within whose jurisdiction the place of such unnatural death is. (ii) In cases when such report cannot, for any reason be delivered within a reasonable time, a Court of inquiry shall be held into such unnatural death. (iii) Immediately on receipt of information of an unnatural death the Commandant or the senior most officer of the Battalion present shall prepare a report on the proforma set out in Appendix XIII. (b) All injuries sustained by persons subject to the Act which are likely to cause full or partial disability. The Court shall in such case determine whether such injuries were attributable to service or not. (c) All financial irregularities, losses, theft and misappropriation of public or Force property, where it is necessary to obtain the order of a superior officer on such irregularities, loss, theft or misappropriation. (d) All losses of secret documents and any other material of secret or above security classification. (c) All financial irregularities, losses, theft and misappropriation of public or Force property, where it is necessary to obtain the order of a superior officer on such irregularities, loss, theft or misappropriation. (d) All losses of secret documents and any other material of secret or above security classification. Such a Court of inquiry shall be ordered by an officer or authority superior to the unit Commandant having the lost document or material on its charge. (e) All damage to private persons or property in respect of which there is likely to be a claim against the Government or the Force." (15) On a plain reading of Section 62 it appears that a Staff Court of Enquiry could be constituted for the purpose of investigating into the charge of unauthorised absence. Section 141 enables the authority to frame rules for the purpose of implementation of the provisions of the Act of 1968 which includes Section 62. Section 141(3), inter alia, provides that after framing of the rules under sub-section (1) the same would require ratification and/or approval of both House of Parliament. The authority framed the rules being BSF Rules, 1969 including Rule 174 which clearly provides that a Staff Court of Enquiry could be constituted for investigating into the complain in respect of several eventualities including that of as provided in Section 62 of the said Act of 1968. (16) We have perused the Apex Court decisions cited by Mr. Sanyal referred to above. On a combined reading of the Apex Court decisions our understanding of the law on the subject is as follows :- (i) Once a subsidiary legislation is entrusted to frame rules and regulations under the Act they cannot widen the scope of the Act or the policy laid down thereunder and should restrict itself to the mode of implementation of the policy and purpose of the Act. (ii) The constitutionality of a rule or regulation has to be judged only by a three fold test- (a) Whether the provisions of such regulation fall within the scope and ambit of the power conferred by the statute on the delegate. (b) Whether the regulations/rules framed by the delegate are to any extent inconsistent with the provisions of the parent enactment. (c) Whether the rules and/or regulations infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution. (b) Whether the regulations/rules framed by the delegate are to any extent inconsistent with the provisions of the parent enactment. (c) Whether the rules and/or regulations infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution. (iii) When a power is delegated under the supportive legislation without laying down any guideline it cannot be exercised by creating any substantive right or obligation or disability not contemplated in the Act itself. (iv) The delegate is not intended to travel other than the object of the legislation. Its function is to serve and promote that object and such power would not support any attempt to widen the purpose of the Act by adding new and different means of carrying them out or to debar from its ends. (v) Compliance with the laying requirement or even approval by a resolution of Parliament does not confer any immunity to the delegated legislation but it may be a circumstance to be taken into consideration along with other factors to uphold its validity, although as earlier seen a laying clause may prevent the enabling Act being declared invalid for excessive delegation. (17) If we narrow down the proposition and sum it up we would find- (i) The delegated legislation must carry out the intent of the Act and must not travel beyond the parameters. (ii) The legislation must not offend the basic structure of the Constitution including the fundamental rights guaranteed therein. Our View on the Case in Hand: (18) Let us now apply the proposition of law in the instant case. Janak initially objected to the procedure adopted by the authority by appointment of Staff Court of Enquiry in the first writ petition. His Lordship did not accept such contention and merely asked the authority to supply him Hindi version of the enquiry proceeding meaning thereby His Lordship did not accept the challenge thrown to the Staff Court of Enquiry by the first writ petition. In such case whether such challenge for the second time in an independent writ petition would lie or not, is a question which cannot be brushed aside. (19) The learned Judge, however, dealt with the issue elaborately. The said Act of 1968 dealt with the functioning of the Force including maintaining discipline in Force and punishing the erring members by conducting appropriate proceedings against them. (19) The learned Judge, however, dealt with the issue elaborately. The said Act of 1968 dealt with the functioning of the Force including maintaining discipline in Force and punishing the erring members by conducting appropriate proceedings against them. Section 62 is one of the said provisions which deals with the issue of unauthorised absence. It is true that the Staff Court of Enquiry was specifically mentioned in Section 62. Chapter-III of the said Act of 1968 deals with various offences where Staff Court of Enquiry was not contemplated. Section 141 empowers the delegate to frame the rules for the purpose of implementation of the mandate of the Act. Rule 174 stipulates that in a Court of Enquiry the enquiry could be conducted for trial of the offences mentioned in various provisions of the Act including Section 62. If we give a rigid meaning of it we would have to accept Mr. Sanyals contention that since Staff Court of Enquiry was not specifically mentioned any where except Section 62 Rule 174 could not widen the power of the Staff Court of Enquiry which was not contemplated in the Act itself. (20) We wish to look at the problem from a different angle. Staff Court of Enquiry is a procedure which is in conformity with the principles of natural justice whereby an accused is entitled to be tried on an allegation before he was inflicted any punishment for the same. The Act of 1968 also provides for conviction of the erring members through Security Force Court. The Security Force Court imposes punishment considering the evidence brought before it whereas Staff Court of Enquiry carries out an investigation before any punishment is inflicted. On a liberal construction we find that neither Rule 174 offends any provisions of the Constitution nor it offends any provisions of the said Act of 1968. It also does not widen the scope of the Act of 1968 or independently postulates any mandate dehors the provisions of the said Act of 1968. Hence, we are unable to hold that the said rule ultra vires the Act of 1968 or the Constitution. We are in full agreement with the learned Single Judge when His Lordship rejects the prayer for striking down Rule 174. (21) The question now remains what would be the fate of the appellant. Learned Single Judge did not go into the merits of the matter. We are in full agreement with the learned Single Judge when His Lordship rejects the prayer for striking down Rule 174. (21) The question now remains what would be the fate of the appellant. Learned Single Judge did not go into the merits of the matter. On a plain reading of the judgment it also appears to us that probably the appellant did not make any elaborate submission on facts as possibly he was sure about his success on the legal issue. His Lordship granted liberty to Janak to prefer an appeal from the order of the Security Force Court against the punishment of dismissal from service. (22) On the analysis of the factual matrix including those which are disputed questions we would find that even if we give full credence to what the authority had said in their pleadings we would find that it was a case of sheer negligence and/or latches on the part of Janak as he did not take adequate care and caution to safeguard the confiscated and/or seized arms which were lost to the authority. The authority proceeded on the basis that he intentionally misappropriated the same. We refuse to believe. A member of the Force having twenty-one years unblemished service since his joining upto 1999 when he was implicated in a rape case just before his posting in West Bengal in Indo-Bangladesh Border and the person having thirty-two awards to his credit including one for apprehending two militants in Jammu and Kashmir Border where he was posted for about two years, would not involve himself in misappropriating two pipe guns which did not have any substantial worth. He must have dealt with sophisticated weapons through out his service career. There was no allegation of misappropriation, at least not raised before us. We are not told about the fate of the alleged rape case. It would be hard for us to believe that for his personal gain he deliberately misappropriated the pipe guns as alleged. (23) Two incidents were of 1999. The matter was pending before the learned Single Judge for about sixteen months and thereafter before the Division Bench for last seven years. We are of the view that if we set aside the entire proceeding and send it back to the authority to start the same de novo it would be a grave injustice to the authority as well as to Janak. We are of the view that if we set aside the entire proceeding and send it back to the authority to start the same de novo it would be a grave injustice to the authority as well as to Janak. Learned Single Judge granted him liberty to prefer appeal. We extend the time to prefer such appeal. The appellate authority would consider his appeal in accordance with law by affording him adequate opportunity of hearing ignoring the delay in case the appeal is filed within four weeks from date. (24) While disposing of the appeal the appellate authority must bear in mind the observations made by us in the judgment on the factual matrix and the authority must consider whether any lesser punishment could be inflicted upon him. Such exercise must be done and the order of the Appellate Authority must be communicated to the appellant within eight weeks from the date of preferring of the appeal. (25) The appeal is disposed of without any order as costs.