1. The instant Letters Patent Appeal which already stands admitted way back on 06-11-2002 and now before us for its final disposal is directed against the judgment/order dated 26-04-2002 of learned Single Judge vide which order dated 23.8.1998 whereby dismissing respondent/writ petitioner-Shailendra Kumar from service stands quashed directing the appellants (respondents in the main writ petition) to reinstate him with all consequential and monetary benefits. 2. We have feel the necessity of giving flash back of facts of the present case in brief:- Shailendra Kumar-respondent/writ petitioner (hereinafter to be referred as petitioner) was enrolled as constable in Border Security Force in July, 1990. He was transferred from 126 Bn. to 199 Bn. stationed at Srinagar. He was granted 15 days Earned Leave for visiting his native place by the concerned authority and was supposed to report back on 05-05-1998, whereas he joined his duties late by 13 days for which he was punished under Section 53 of the Border Security Force Act, 1968 (for short hereinafter to be referred to "as BSF Act") and awarded 14 days imprisonment in Force custody. During custody period, he is stated to have committed another offence by refusing to do pack drill which is a part of routine for prisoners undergoing Rigorous Imprisonment for which disciplinary action was initiated and ultimately he was dismissed from service which order now stands quashed by the learned writ Court primarily on the ground that the participation of appellant No.3 in the Summary Security Force Court was un-desirable as there was a reasonable apprehension in the mind of the writ petitioner that he would not be fair in his dealings. Other view taken by the learned Writ Court is that the punishment awarded to the writ petitioner was disproportionate to the misconduct for which he was charged. If one peruses the impugned judgment carefully, primarily the whole proceedings have been held vitiated on the basis of the bias projected by writ petitioner against appellant No.3 (Commandant), operative part thereof, for reference reads thus:- "Since I have held the whole proceedings of the Summary Security Force Court as having been vitiated on the basis of the bias entertained by the Commandant against the petitioner, the order dated 23.8.1998 passed by the Commandant suffers from the same vice. Consequently, the order passed by the Director General, BSF, being the appellate authority, on the statutory petition of the petitioner, too cannot be sustained because the order was one of affirmation. 3. It needs to be mentioned here that for arriving at the aforesaid conclusion the writ Court has based its view on factual aspect of the matter which is borne out from the record. 4. Mr. Ajay Sharma, learned CGSC for the appellants who was also representing Union of India before the learned writ Court makes a statement at the bar that the relevant record was made available to the learned writ Court. He has produced the same before us also. 5. Heard Mr. Sharma learned CGSC appearing for the appellants and Mr. Rahul Bharti, Advocate learned counsel for respondent at length. 6. Mr. Sharma primarily submits that the proceedings of Summary Security Force Court (for short S.S.F.C) are normally not made subject to judicial review by this Court under Article 226 of the Constitution of India. These proceedings are not made subject matter of even superintendence under Article 227 of the Constitution. The S.S.F.C was properly constituted and no challenge was thrown by writ petitioner to its composition, as such, the finding arrived at by it is not open to challenge it in the writ petition. The petitioner had also filed an appeal against the order of dismissal of service before the concerned authority and failed. Therefore the writ petition was liable to dismissed on this short ground alone. 7. Mr. Sharma then submits that even, otherwise, the learned writ Court should not have gone deep into minutest procedural aspect of the proceedings while setting aside the order of dismissal. The petitioner was tried by appellant-3 empowered under Section-70 (1) of the BSF Act by following the due procedure. The petitioner, in fact, had admitted his guilt and surrendered himself to the mercy of S.S.F.C and, therefore, could not question the order of dismissal on any count.. 8. Strengthening his case on the aforesaid aspects, Mr. Sharma submits that the instant appeal deserves to be allowed which argument is strongly opposed by Mr. The petitioner, in fact, had admitted his guilt and surrendered himself to the mercy of S.S.F.C and, therefore, could not question the order of dismissal on any count.. 8. Strengthening his case on the aforesaid aspects, Mr. Sharma submits that the instant appeal deserves to be allowed which argument is strongly opposed by Mr. Bharti learned counsel for the petitioner submitting that after the petitioner was released from the custody on serving his 14 days imprisonment which ended on 06-07-1998, he was slapped with an order of suspension passed by appellant No.3 (Commandant) on 09-07-1998 itself on the allegation of willful defiance of the authority and on the same date another order was also passed by appellant No.3 vide which one B.A. Shah, Assistant Commandant of 199 Bn B.S.F was to prepare the record of evidence against the petitiooner. He submits that during the process of recording of the evidence the factum of bias against appellant No.3 had come on record from the mouth of B.S.F official only which fact ultimately weighed with the learned writ Court while setting aside the order of dismissal passed by appellant No.3 only. 9. According to Mr. Bharti, the inquiry, otherwise, held against the petitioner was not in accordance with Chapter-VII of the Border Security Force Rules, 1969 (for short to be referred as BSF Rules) dealing with investigation and summary disposal. He submits that may be the learned writ Court has not dealt with this issue while deciding the main writ petition and allowed it primarily on the ground of appellant No.3 being biased against petitioner, yet this legal aspect is still open for debate as the petitioner had questioned the order of dismissal on this ground as well as is evident from the averments spelled out in the writ petition. Mr. Bharti lastly submits that the petitioner is virtually starving as he is out of job for the last about 12 years. Therefore, the instant appeal not only calls for dismissal simplicitor but with hefty cost to be imposed. 10. We have given our thoughtful consideration to the submissions advanced by learned counsel for both sides and gone through the writ court record. The record produced by Mr. Sharma is also perused by us carefully. 11. Therefore, the instant appeal not only calls for dismissal simplicitor but with hefty cost to be imposed. 10. We have given our thoughtful consideration to the submissions advanced by learned counsel for both sides and gone through the writ court record. The record produced by Mr. Sharma is also perused by us carefully. 11. Commenting upon the evidence recorded against the petitioner by the concerned authority (Assistant Commandant) on the direction of appellant No.3 (Commandant) will not call for a detailed discussion by us as learned writ Court had already entertained into that aspect deeply and returned a categoric finding of a bias against the petitioner. We will, however, refer to same aspect of it also at its relevant stage. What is most disturbing and apparent on record is that a complete go by has been given to the prescribed procedure in holding the enquiry against the petitioner. Admittedly the case of the petitioner falls within Rule-43 of Chapter-VII of B.S.F. Rules as he is not an Officer or a Subordinate Officer. The allegation for the offence for which he was to be tried was to be reduced in writing as per appendix-IV attached of the BSF Rules According to Mr. Sharma the writ petitioner was duly served with the offence report in the prescribed format on 09-07-1998 in which it was made clear to him the place and date of offence shown in column No.1 of the offence report. It is from 24-06-1998 to 06-07-1998. The said report is available on the original record produced by Mr. Sharma. To this extent, we agree with him. 12. Let us now switch over to Rule-45 of BSF Rules which deals with hearing of the charge against an enrolled person. For reference, it is reproduced as under:- "45. Hearing of the charge against an enrolled person:- (1).................................. The said report is available on the original record produced by Mr. Sharma. To this extent, we agree with him. 12. Let us now switch over to Rule-45 of BSF Rules which deals with hearing of the charge against an enrolled person. For reference, it is reproduced as under:- "45. Hearing of the charge against an enrolled person:- (1).................................. (2) After hearing the charge under sub-rule (1), the commandant may,-] (i) award any of the punishments which he is empowered to award, or (ii) dismiss the charge, or (iii) remand the accused, for preparing a record of evidence or for preparation of an abstract of evidence against him, or (iv) remand him for trial by a Summary Security Force Court: Provided that, in cases where the Commandant awards more than 7 days’ imprisonment or detention he shall record the substance of evidence and the defence of the accused: We have not felt the necessity of reproducing the entire Rule in verbatim as we are concerned with sub-rule (3) of Rule-45 which states that once the charge is not dismissed, the record of evidence will be prepared. Admittedly in the present case, Assistant Commandant on the direction of Commandant has recorded the evidence against the petitioner. 13. After following the aforesaid procedure as envisaged in Rule-45, Rule-51 is attracted which empowers the Commandant to take certain actions after going through the record or abstract of evidence i.e to dismiss the charge, or rehear the charge and award one of the summary punishments, or try the accused by a Summary Security Force Court where he is empowered to do so, or to refer that to the competent authority to convene a court for the trial of the accused. 14. The charge sheet is to be prepared under Rule 53(2) of Chapter-VIII of BSF Rules. A perusal of writ Court record and original record produced by Mr. Sharma shows that charge sheet under Rule 53(2) was prepared by Gursharan Singh Commandant 199 Bn. BSF on 9th of July, 1998, whereas on this very date the offence report was also read to him under Rule-43 of BSF rules. It is not understandable that on the same date these two procedural formalities are completed skipping the entire procedure to be followed in between. 15. BSF on 9th of July, 1998, whereas on this very date the offence report was also read to him under Rule-43 of BSF rules. It is not understandable that on the same date these two procedural formalities are completed skipping the entire procedure to be followed in between. 15. The factual aspect of the matter is that the evidence recorded against the petitioner while following the procedure adopted under Rule 45 of the BSF Rules ended in the first week of August, 1998 for the purposes of resorting to Rule 51. But as stated above, the Commandant had already framed the charge sheet against the writ petitioner under Rule 53 (2) of BSF Rules, on 9th July, 1998. It is like putting the cart before the horse. There can not be any better case than the one at hand which would speak volumes of non adhering to the procedure provided under the Act, that too by a Senior Officer to the rank of the Commandant. It leads us to draw an inference very comfortable that appellant No.3 (Commandant) had already made up his mind to punish the petitioner for certain reasons. It is not a fair approach and deserves to be condemned. 16. Let us now make some observations on the evidence put forth by the appellants’ side against the petitioner after offence report was read to him under Rule-43 of BSF Rules. Our attention, in particular has been drawn to prosecution witness No.10 (Yadvendra Singh) who when stepped into witness box stated that petitioner had told him that Commandant abused and threatened him saying in so many words "ki main tumko marwa doonga". We are reproducing relevant part of the statement of said witness. It reads:- "I after informing the Comdt sh. Gursharan Singh went to unit Quarter Guard alongwith Adjt and duty NCO. On reaching the Q.G. I met all the prisoners in the Cell namely CT Shailendra Kumar, CT Hotam Singh and CT Upendra Singh, CT Mathew (78 Bn) and CT Suresh Kumar. I enquired from Const. Shailendra Kumar as to why he has refused to do pack drill. He informed that when I was marched in the office of Comdt. by BHM in the presence of Adjutant, Comdt. after reading my charge had asked me the state to which I belong and the reasons for overstayal from leave. I enquired from Const. Shailendra Kumar as to why he has refused to do pack drill. He informed that when I was marched in the office of Comdt. by BHM in the presence of Adjutant, Comdt. after reading my charge had asked me the state to which I belong and the reasons for overstayal from leave. Before he could explain, Commandant had abused him and threatened, in the following words "ki main tumko marwa doonga" and words to that effect. Constable Shailendra Kumar was explained by me that if he had grievances against the Comdt. Or any one else in the BN there was the proper way/procedure to redress his grievances but he should obey the orders of Comdt. first and thereafter redress his grievances. However, inspite of my advice the individual refused and said that he had already written a letter to his home informing them that in case any untoward incident happen with him, the Comdt. of the unit should be blamed as he had threatened him in his office with dire consequences. Thereafter........................................ Sd/- xxx (Yadvendra Singh ) Second-in-Command 199 BN BSF IRLA -- 3035 (PW-10)" 17. Another fact apparent on record and also been taken note of by the learned writ Court, is that the signatures of the petitioner do not appear while pleading guilty and there is no indication that he was even asked to sign the statement of plea of guilt to the charge. Observation of the learned writ Court is that in every case it is not possible to find direct evidence of personal bias but it has to be inferred from the circumstances of the case and thereafter only the learned writ Court took it as a case of bias entertained by Commandant (appellant No.3) against the petitioner. We are totally in agreement with the view taken by the learned writ Court. In our considered view, this is not the case of bias only as already observed by the learned writ Court, but also full of procedural irregularities committed by appellant No.3 the then Commandant which would leave no room of doubt in our mind holding that he, for reasons best known to him was totally against the petitioner and bent upon to punish him one way or the other. 18. 18. In a very recent appeal, the Hon’ble Supreme Court while dealing with a judgment of Delhi High Court passed in January, 2008 has taken a serious note of the practice of adopting summary court martial proceedings for sacking lower rank army personnel and directed the Chief of the Army Staff to explain if there are any guidelines to prevent its abuse. It is observed by their lordships that the Commandant or the Unit Officer not only acts as a prosecutor and investigator but also is the judge. This procedure is adopted only in the case of lower rung personnel like sepoys, havildars, naiks and lance naiks. In this case, Hon’ble Delhi High Court had quashed the dismissal orders passed against certain sepoys on the basis of summary trial proceedings, aggrieved thereof, the Centre had filed the SLP in the Hon’ble Apex Court. 19. At the cost of repetition, we may observe here that although the learned writ Court has primarily quashed the order of dismissal on the issue of bias in the mind of appellant No.3 (Commandant) against the petitioner but we can not refrain ourselves observing that the entire procedure adopted in this case for holding enquiry against him is improper, and totally irregular for which primarily the Commandant (appellant No.3) is to be held responsible. Therefore, the impugned judgment quashing the order of dismissal from service slapped upon the writ petitioner deserves to be up-held as we do not find the same suffering from any flaw, in turn the petitioner deserves to be put back to service with all consequential benefits. Ordered accordingly. 20. May be the order of dismissal faced by the writ petitioner stands quashed by us, still he can not escape his liability from facing a fresh inquiry, that too of a charge of disobeying in such manner as to show a willful defiance of authority. The charge on the face of it is of serious nature and if ultimately proved has its far reaching effect, that too in a case of an employee of a disciplined Force. During the course of the arguments, Mr. Bharti very fairly submitted before us that in case the writ petitioner is allowed to report back for duty, he can not escape from facing an inquiry for the charge for bringing it to its logical end. During the course of the arguments, Mr. Bharti very fairly submitted before us that in case the writ petitioner is allowed to report back for duty, he can not escape from facing an inquiry for the charge for bringing it to its logical end. We, therefore, observe that in case the petitioner reports back to his duty, the concerned authority shall be at liberty to initiate fresh inquiry against him for the aforesaid charge which undoubtedly shall be brought to its logical end adhering due procedure established by law. 21. We would have certainly imposed some cost upon appellant No.3 (the then Commandant) for the gross irregularities committed by him in the present case but for the fact that after putting the petitioner to notice, we heard both the sides and found it to be a case of admission. The judicial wrangles have also caused delay in disposal of the instant appeal. We are also conscious of the fact that the petitioner remained out of job for reasonably long period, but is now put back to service with all consequential benefits including monetary one. Therefore, we do not intend imposing any cost in this case. 22. The net result is that the instant appeal stands dismissed in the aforesaid terms alongwith CMP(s), if any. 23. Record retained by us be returned forthwith to Mr. Ajay Sharma, CGSC.