JUDGMENT : 1. The petitioner was appointed as a Constable in BSF in the year 2000. He was found to be suffering from tuberculosis and remained under treatment in BSF Hospital, wherefrom he was referred to Chest Disease Hospital, Jammu. He remained there under treatment for 9 months. The petitioner was sent for training at STC, BSF Udhampur despite the fact that he had intimated his superiors about the disease, he was suffering from. On 20.02.2003, at the training ground due to severe pain, the petitioner almost collapsed but his instructor instead of taking him to Hospital or showing any sympathy; assaulted, slapped and kicked him several times and used filthy language against him. The petitioner, as such, left for Jammu for better treatment. On 21.02.2003, the petitioner being unable to move to his unit stationed at Sunderbani, sent a detailed representation to the IG, BSF Paloura and its copies to DIG, Udhampur and to his Commanding Officer. After recovering from the disease, the petitioner reported for duty but was arrested and awarded punishment for 7 days rigorous imprisonment. Thereafter, the petitioner was again sent for the same rigorous training at STC, Udhampur and the same Instructor against whom the petitioner had made complaint told him that he would make the petitioner do such exercises which would be fatal for him as he had dared to report against him. On being confronted with such a situation, the petitioner left a leave application with his immediate In-charge and left for Jammu, where he remained under treatment for about 30 days. The petitioner claims to have reported on duty on 10.04.2003 but on 23.04.2003, he was again arrested and put behind bars. 2. It is averred in the petition that the petitioner was charged under Section 19 (a) of the BSF Act 1968. A Summary Security Force was constituted and after the completion of the trial, which was a sham trial, the petitioner was convicted vide order dated 10.05.2003 and dismissed from service. The petitioner through the medium of the present petition has assailed the order dated 10.05.2003 (for short “the order impugned”), whereby the petitioner was convicted and sentenced. A further prayer has been made by the petitioner that the respondents be directed to allow the petitioner to join duty and pay all emoluments and other benefits, which he was availing before the dismissal. 3. A further prayer has been made by the petitioner that the respondents be directed to allow the petitioner to join duty and pay all emoluments and other benefits, which he was availing before the dismissal. 3. The petitioner has assailed the order impugned on the following grounds: A. That the petitioner could not have been charged for any offence under section 19 (a) of BSF Act, as the petitioner had applied for leave on medical grounds as he was having a serious health problem. B. That the petitioner was not allowed to cross-examine the prosecution witnesses and, he never stated that he did not want to cross-examine those witnesses. C. That the petitioner was required to be tried by a General Security Force Court and not by a Summary Security Force Court (for short “the SSF Court”). D. That ADIG was not competent authority to order for trial by a Summary Security Force, as provided under Section 80 of the BSF Act. 4. The respondents have filed the response stating therein that the petitioner was appointed as a Washer-man in the 29 Bn BSF on 09.12.1996 and later he was re-mustered from Washer man to Constable on his own request on 11.05.2000. He joined 136 Bn BSF on 28.02.2000 on permanent posting from 29 Bn BSF. The petitioner was admitted in Chest Disease Hospital Medical College, Jammu w.e.f. 05.02.2001 to 14.02.2001. He was discharged with the advice to take bed rest for one week and to come for follow up consultation. Considering his health, the Medical Board was constituted and as per recommendation, he was placed under Low Medical Category and after considering the level of recovery his medical category was upgraded, as he was fit to undergo basic recruit training. He was placed in Low Medical Category only for a short period of 6 months from 07.03.2002 to 07.09.2002 on the recommendation of the Medical Board. Subsequently on 08.11.2002, the medical category of the petitioner was upgraded to SHAPE-1. He was then sent to Subsidiary Training Centre, BSF, Dhar Road Udhampur by 136 Bn BSF to undergo basic recruit training on 05.12.2002, which is mandatory to become a Constable for which he was re-mustered from Washer man, a Class-IV Post. The petitioner reported at STC, Udhampur on 05.12.2002 with Medical category “AYE” as per the Medical certificate issued by the Unit Medical Officer, 136 Bn BSF. The petitioner reported at STC, Udhampur on 05.12.2002 with Medical category “AYE” as per the Medical certificate issued by the Unit Medical Officer, 136 Bn BSF. The petitioner reported to MI Room STC Udampur on 20.02.2003 with same ailment from where he was referred to TB Center, District Hospital Udhampur for check-up but instead of reporting at Civil Hospital, he absconded from 20.02.2003 to 25.02.2003, thereby absenting himself without leave. 5. It has been further stated that he had earlier remained absent for 32 days w.e.f. 16.09.2001 to 17.10.2001 and was awarded 14 days pay fine on 21.10.2001. For remaining absent without leave w.e.f. 10.12.2002 to 17.12.2002, the petitioner was awarded 7 days extra Guard Duty. Thereafter, for remaining absent without leave w.e.f. 20.02.2003 to 25.02.2003, the petitioner was awarded 7 days rigorous imprisonment in force custody. It is further stated that the petitioner absented himself without leave w.e.f. 11.03.2003 to 10.04.2003 for a period of 31 days. The petitioner was charged under Section 19 (a) of BSF Act and tried by SSF Court after he was arrested on 23.04.2003. It has been stated by the respondents that the proper procedure as prescribed by the BSF Act and Rules made thereunder, was followed by the Disciplinary Authority and ADIG was the Commandment of STC Udhampur, so he alone was competent to convene the SSF Court. The respondents have also pleaded that the allegations of assault and humiliation levelled by the petitioner against Instructor were enquired and found false. The respondents have denied that the petitioner submitted any application for grant of leave on medical grounds. 6. The rejoinder has been filed by the petitioner stating therein that the petitioner never pleaded guilty and the provisions contained in Rules 142 and 143 of BSF Rules, have not been complied with by the respondents. Besides, it has also been stated that the provisions contained in Rules 43 and 45 have not been followed by the respondents. 7. Ms. Surinder Kour, learned Senior Counsel for the petitioner vehemently argued that the Summary Security Force Court has not been convened by the competent officer and also that the petitioner never pleaded guilty to the charge and in fact a fast and farce trial, without following the mandatory procedure, was conducted, wherein the whole proceedings of the trial were concluded on the same day i.e. 10.05.2003 by 14:00 hours. She laid much stress that the provisions contained in Rule 142 were not complied and the petitioner has been convicted and sentenced despite the fact that he never pleaded guilty and had the petitioner pleaded guilty to the charge, the Summary Security Force Court would have obtained the signatures of the petitioner. Ms. Kour also urged that the provisions contained in Rule 48 were not followed by the Officer concerned during preparation of the record of evidence. The learned Senior Counsel relied upon the judgment of Hon’ble Apex Court in Union of India and others vs. B.N. Jha, AIR 2003 SC 1416 , and judgment of this Court in Chanchal Singh vs. Union of India, 2003 (3) JKJ 381 (HC) 8. Per contra, Mr. Sandeep Gupta, learned CGSC, submitted that the provisions contained in BSF Act and Rules framed there under, have been meticulously followed during the preparation of record of evidence and also while conducting the trial of the petitioner by the SSF Court. He further submitted that ADIG was the Commandment of STC Udhampur and as such, he was competent to convene SSF Court for trial of the petitioner. He also urged that taking into consideration the past conduct of the petitioner, he was dismissed from the service. 9. Heard learned counsel for the parties and perused the record of the case. 10. The first contention raised by the petitioner is that the SSF Court was not validly convened. In terms of Section 70 of the BSF Act, a SSF Court may be held by the Commandment of any Unit of the Force and he alone shall constitute the Court. As per Section 2(f) of the Act, the “Commandant” means an officer who is discharging the functions of Commandant in the Unit. The respondents have specifically pleaded that the ADIG, STC Udhampur was the Commandant of STC Udhampur and the petitioner has not been able to dispute the status of ADIG as Commandment of STC Udhampur. Further, as per the mandate of Section 74 of the Act, a SSF Court may try any person, subject to the Act and under the command of the officer holding the Court, except an officer or a subordinate officer and further the SSF Court may pass sentence except the sentence of death or of imprisonment for a term exceeding the limit as prescribed in section 74(5) of the Act. As such, there is no force in the contention of the petitioner and accordingly, the same is rejected. 11. The second contention of the petitioner is that the provisions contained in Rule 43, 45 and 48 of the BSF Rules have not been followed. The perusal of the record reveals that offence report in terms of Rule 43 was prepared in accordance with the format as laid down in Appendix IV of the BSF Rules. The charge was read over and explained to the accused on 25.04.2003 and the Deputy Commandment ordered for preparation of record of evidence Sh. SPS Malik, Recording Officer on same date itself. The Recording Officer, Sh. SPS Malik recorded the statements of three witnesses, namely, Ct. Mohd. Almeen, HC Ajit Singh and ASI Pankaj Kumar. The petitioner was granted an opportunity to cross-examine all the witnesses but he declined. Thereafter, the petitioner was cautioned in terms of Rule 48(3) of BSF Rules and was asked whether he wished to make a statement but the petitioner declined to make any statement. Thereafter, the Recording Officer gave a certificate in terms of Rule 48(8) of BSF Rules. The petitioner has signed the record of evidence. After preparation of the record of evidence, the ADIG STC, Udhampur convened the Summary Security Force Court vide convening order dated 08.05.2003. From the record, this Court finds that there is no infraction of any procedure prescribed under Rules 43, 45 and 48 of the BSF Rules while preparing the record of evidence, therefore, this contention of the petitioner is also rejected. 12. The last contention raised by the petitioner is that the petitioner never pleaded guilty but the SSF Court in utter disregard of the provisions contained in Rule 142 of BSF rules convicted and sentenced the petitioner with dismissal from the service. The learned Senior Counsel for the petitioner buttressed this contention by submitting that no signature of the petitioner was obtained by the SSF Court while recording the plea of guilt, which clearly shows that the petitioner never pleaded guilty to the charge. A perusal of the record of the SSF Court held on 10.05.2003 for trial of the petitioner reveals that the plea of admission of the guilt by the petitioner has been recorded by the SSF Court on page “B” of the record. A perusal of the record of the SSF Court held on 10.05.2003 for trial of the petitioner reveals that the plea of admission of the guilt by the petitioner has been recorded by the SSF Court on page “B” of the record. The relevant portion is extracted as under: “the accused having pleaded guilty to the charge, the court read and explained to the accused the meaning of charge to which he has pleaded guilty and ascertains that the accused understands the nature of charge to which he has pleaded guilty. The court also inform the accused the general effect of that plea and the difference in procedure which will be followed consequent to the said plea. The court satisfies itself that the accused understands the charge and the effect of that plea and the difference in procedure which will be followed consequent to the said plea. The provision of rule 142 (2) are complied. 13) In the year 2011, a proviso was appended to sub-rule (2) of Rule 142 which provides that after recording the plea of guilty, signature of the accused and the friend of the accused shall be obtained. This proviso was not applicable in the year 2003 when the petitioner was tried by the SSF Court. But the Hon’ble Supreme Court in case titled “Union of India & Ors. v. Jogeshwar Swain”, LiveLaw (SC) 758 has held that there was no embargo in obtaining the signature of the accused on the minutes of the proceedings to lend credence to the making of plea of guilt. Absence of signature on the minutes of the proceedings becomes relevant and important when the accused denies to have made any such admission of guilt during the proceedings. In fact, the mode and manner in which the plea of guilt of the petitioner has been recorded by the SSF Court in the instant case is identical, as was in the case referred above. It is only the technical compliance but not in spirit of the Rule 142 of the BSF Rules. The relevant portion of the judgment in Jogeshwar Swain’ case (supra) is extracted as under: “41. Before acting on the plea of guilty, compliance of the procedural safeguards laid down in sub-rule (2) of Rule 142 is important as it serves a dual purpose. The relevant portion of the judgment in Jogeshwar Swain’ case (supra) is extracted as under: “41. Before acting on the plea of guilty, compliance of the procedural safeguards laid down in sub-rule (2) of Rule 142 is important as it serves a dual purpose. First, it ensures that before pleading guilty the accused is aware of not only the nature and meaning of the charge which he has to face but also the broad consequences that he may have to suffer once he pleads guilty. This not only obviates the possibility of an uninformed confession but also such confessions that are made under a false hope that one could escape punishment by pleading guilty. The other purpose which it seeks to serve is that it ensures that confessions do not become an easy way out for deciding cases where marshalling of evidence to prove the charge becomes difficult. It is for this reason that sub-rule (2) of Rule 142 requires an SSFC to advise the accused to withdraw the plea of guilty if it appears from the examination of the record or abstract of evidence that the accused ought to plead not guilty. Since, the procedure laid in sub-rule (2) of Rule 142 serves an important purpose and is for the benefit of an accused, in our view, its strict adherence is warranted before accepting a plea of guilty. 42. Reverting to the facts of this case, we notice from the record that the minutes of the proceedings of the SSFC dated 23.07.2005 do not indicate as to what advise was rendered to the accused with regard to the general effect of the plea of guilty taken by him. The minutes dated 23.07.2005 are nothing but a verbatim reproduction of the statutory rule. There is no indication as to how the accused was explained of the broad consequences of him pleading guilty. Verbatim reproduction of the statutory rule and nothing further, in our view, is no compliance of the provisions of sub-rule (2) of Rule 142 of the BSF Rules, 1969. Therefore, we are of the view that the appellants cannot draw benefit from the minutes of the proceedings as to canvass that the plea of guilty was accepted after due compliance of the requirements of sub-rule (2) of Rule 142 of the BSF Rules, 1969. 43. Therefore, we are of the view that the appellants cannot draw benefit from the minutes of the proceedings as to canvass that the plea of guilty was accepted after due compliance of the requirements of sub-rule (2) of Rule 142 of the BSF Rules, 1969. 43. Further, the record of the proceedings of SSFC dated 23.07.2005 does not bear the signature of the accused. No doubt, the requirement of having the signature of the accused on the minutes recording plea of guilty was first introduced by insertion of the proviso to sub-rule (2) of Rule 142 with effect from 25.11.2011. But there existed no embargo in obtaining signature of the accused to lend credence to the making of the plea of guilty. Absence of signature of the accused in this case assumes importance because here the accused denies taking such a plea and looking at the available evidence, pleading guilty appears to be an unnatural conduct. At the cost of repetition, it be observed that the case against the petitioner was in respect of clicking photographs of a lady doctor while she was taking her bath. There was no eye-witness of the incident; the camera was recovered from some other person's house; PW-9, a witness to the keeping of the camera by the accused (i.e., the original petitioner), in her previous statement made no such disclosure; there was no cogent evidence with regard to ownership of that camera; and, above all, even the reel was not developed to confirm the allegations. In these circumstances, when there was a challenge to the making of such confession before the High Court, a very heavy burden lay on the non-petitioners (appellants herein) to satisfy the conscience of the Court that the plea of guilty was recorded after due compliance of the procedure prescribed by the BSF Rules, 1969. As we have already noticed that there was no proper compliance of the procedure prescribed by sub-rule (2) of Rule 142 of the BSF Rules, 1969, absence of signature of the accused in the minutes further dents the credibility of the SSFC proceeding. The High Court was therefore justified in looking at the evidence to find out whether punishment solely on the basis of confession (i.e., plea of guilty) was justified.” (emphasis added) 14) Thus, it is evident that the plea of guilt recorded by the SSF Court is not in accordance with law. The High Court was therefore justified in looking at the evidence to find out whether punishment solely on the basis of confession (i.e., plea of guilty) was justified.” (emphasis added) 14) Thus, it is evident that the plea of guilt recorded by the SSF Court is not in accordance with law. Therefore, the order of conviction and sentence dated 10.05.2003 is not sustainable in the eyes of law. 15) Since there has been no adjudication of charge framed against the petitioner on merits by the SSF Court, as the petitioner was convicted solely on the basis of admission of guilt by the petitioner, this Court deems it proper to dispose of the writ petition in terms of the following directions: a. The order dated 10.05.2003 is quashed and the respondents are directed to re-instate the petitioner forthwith. b. The respondents shall be at liberty to hold de novo trial against the petitioner with in the period of three months from the date of this order and the service benefits for the period w.e.f. 10.05.2003 till the conclusion of the trial shall remain subject to the outcome of the trial. c. In the event, the respondents decide not to hold de novo trial, the petitioner shall be entitled to full consequential benefits except salary to the extent of 50% w.e.f. 10.05.2003 till he is reinstated. 16) Record be returned to the learned counsel for the respondents forthwith.