JUDGMENT & ORDER : 1. Heard Mr. A.R Malhotra, learned counsel for the petitioner as well as Ms. Zairemsangpuii, learned CGC for all the respondents. 2. The petitioner has challenged the Order dated 19.10.2009, issued by the respondent No. 4, by which he has been dismissed from service and also the Letters dated 25.05.2010 and 09.08.2010, by which the appeals submitted by the petitioner to the respondents, have been rejected. 3. Brief facts of the case is that the petitioner, who was serving in the Frontier Headquarters, Border Security Force (BSF), Jalandhar was posted to 120 Bn BSF at Lunglei, Mizoram on 20.05.2008. He was issued Movement Order on 25.07.2008. However, the petitioner, who was on leave, did not join his place of posting at 120 Bn BSF at Lunglei, Mizoram. Despite letters issued by the State respondents to the petitioner to join his post, the petitioner did not do so and instead, wrote letters to the authorities stating that he was medically unfit to go to 120 Bn BSF at Lunglei. The petitioner thus prayed for extension of leave by his letters. 4. Consequent to the above, a Court of Inquiry (COI) was held against the petitioner under Section 62 of the BSF Act, 1968, wherein in the opinion of the COI, the petitioner was found to have overstayed his leave without sufficient cause and the Court recommended that disciplinary action should be initiated against the petitioner under the BSF Act. Consequent to the above finding of the Court of Inquiry on 01.11.2008, a Show Cause Notice was issued to the petitioner on 07.11.2008, requesting him to submit his defence against the proposed penalty of dismissal from service. The petitioner submitted his reply dated 20.01.2009 to the Show Cause Notice dated 07.11.2008. However, the respondents issued the impugned dismissal Order dated 19.10.2009. The appeals filed by the petitioner were also rejected by the respondents. 5. The petitioner’s counsel submits that the respondents not having issued any notice to the petitioner prior to the holding of the Court of Inquiry against the petitioner, the entire proceedings and findings of the Court of Inquiry was vitiated and accordingly, the dismissal order had to be set aside. 6. Ms. 5. The petitioner’s counsel submits that the respondents not having issued any notice to the petitioner prior to the holding of the Court of Inquiry against the petitioner, the entire proceedings and findings of the Court of Inquiry was vitiated and accordingly, the dismissal order had to be set aside. 6. Ms. Zairemsangpuii, learned CGC submits that no notice need to be issued to the petitioner in respect of the Court of Inquiry to be held under Section 62 of the BSF Act, 1968, against the petitioner, as a Court of Inquiry under Section 62 of the BSF Act, 1968, is a separate procedure vis-à-vis a Court of Inquiry under Rule 170 & 173 (8) of the BSF Rules, 1968. 7. I have heard the learned counsels for the parties. 8. The issue to be answered lies in a very narrow compass, in as much as, this Court will have to see whether chapter-XIV of the BSF Rules, 1969 would be applicable to a Court of Inquiry held under Section 62 of the BSF Act, 1968. 9. In order to come to a decision, it would be convenient to reproduce Section 62 of the BSF Act, 1968 and Rule 173 & 174 (chapter XIV), of the BSF Rules, 1969, which are as follows:- “Section 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 in the prescribed manner. (2) If the person declared absent does not afterwards surrender or is not apprehended, he shall for the purposes of this Act, be deemed to be a deserter.” “Rule 173. (2) If the person declared absent does not afterwards surrender or is not apprehended, he shall for the purposes of this Act, be deemed to be a deserter.” “Rule 173. Procedure of Courts of inquiry.-(1) The proceedings of a Court of inquiry shall not be open to the public. Only such persons may attend the proceedings as are permitted by the Court to do so. (2) The evidence of all witnesses shall be taken on oath or affirmation. (3) Evidence given by witnesses shall be recorded in narrative form unless the Court considers that any questions and answers may be recorded as such. (4) The Court may take into consideration any documents even though they are not formally proved. (5) The Court may ask witnesses any question, in any form, that they consider necessary to elicit the truth and may take into consideration any evidence, whether the same is admissible under the Indian Evidence Act, 1872 (1 of 1872) or not. (6) No counsel, or legal practitioner shall be permitted to appear before a Court of inquiry. (7) Provisions of section 89 shall apply for procuring the attendance of witnesses before the Court of inquiry. (8) Before giving an opinion against any person subject to the Act, the Court will afford that person the opportunity to know all that has been stated against him, cross-examine any witnesses who have given evidence against him, and make a statement and call witnesses in his defence: [Provided that this provision shall not apply when such inquiry is ordered to enquire into a case of absence from duty without due authority.] (9) The answers given by a witness to any question asked before the Court shall not be admissible against such a witness on any charge at any subsequent occasion except a charge of giving false evidence before such Court. Rule 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. Rule 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. 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.” 10. A perusal of Rule 173 of the BSF Rules, 1969 shows that the proviso to Rule 173 (8) has been inserted by S.O. 2628 (E) dated 25.11.2011. In the present case, the Court of inquiry had been held on 27.10.2008 and concluded on 01.11.2008, prior to insertion of the proviso to Rule 173 (8). Accordingly, the proviso to Rule 173 (8) is not applicable to the present case. 11. In the present case, the Court of inquiry had been held on 27.10.2008 and concluded on 01.11.2008, prior to insertion of the proviso to Rule 173 (8). Accordingly, the proviso to Rule 173 (8) is not applicable to the present case. 11. Rule 174 (2) clearly states that “in addition to a Court of inquiry required to be held under Section 62.” The above clearly shows that Rule 173 & 174 (chapter XIV) of the BSF Rules, 1969 would be applicable to a Court of inquiry held under Section 62 of the BSF Act, 1968. 12. In view of the above facts, it is clear that it was mandatory on the part of the respondents to have issued a Show Cause Notice to the petitioner informing him that a Court of Inquiry was to be held against him and he was to have been made aware of all the charges that were framed against him so as to enable him to participate in the COI. The same not having been done, the entire proceedings in the Court of Inquiry and the consequential findings and decisions made stood vitiated. The consequence of the same is that the dismissal Order dated 19.10.2009 also stands vitiated. Accordingly, in view of the reasons stated above, the Order dated 19.10.2009, issued by the respondent No. 4 dismissing the petitioner from service is hereby set aside along with any consequential orders. The petitioner should accordingly be reinstated into service by the respondents. 13. This Court is not passing any directions with regard to any consequential benefits, entitlements or continuity of service of the petitioner in view of the fact that the Apex Court in the case of Metropolitan Transport Corporation Vs V. Venkatesan, reported in 2009 9 SCC 601 , has held that there is a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow, as a matter of course. The above being said, the respondents are given the liberty to initiate a de novo Court of inquiry against the petitioner after giving him notice of the proposed Court of Inquiry. The entitlements or consequential benefits of the petitioner, if any, will be made subject to the outcome of the Court of Inquiry, if the same is held against the petitioner. The entitlements or consequential benefits of the petitioner, if any, will be made subject to the outcome of the Court of Inquiry, if the same is held against the petitioner. It is needless to add that a COI can be held in the absence of the petitioner, if the petitioner does not appear in the proposed COI after notice is issued to him. 14. The petition is accordingly disposed of.