JUDGMENT : 1. The petitioner in the instant petition filed under Article 226 of the Constitution of India has implored for the following reliefs:- i. To quash Order No. Estt/IstBn/SSFC-MK/2001/13622-822 dated 3.10.2001 (order has not been served on the petitioner), issued by the Adjutant on behalf of Commandant, 01 Bn. BSF, by which the respondents have dismissed the petitioner from service w.e.f. 3.10.2001, and Order No. Estt/IstBn/SSFC-MK/2001/16987-91 dated 22.11.2001, issued by the Adjutant on behalf of Commandant, by which the respondents have treated the period w.e.f. 4.7.2001 to 15.9.2001 as dies-non; and also to quash the proceedings of Summary Security Force Court (if any done) and the Charges (if any) framed against the petitioner, by issuance of Writ of Certiorari; ii. To issue directions to the respondents to consider the case of petitioner for reinstatement and to allow the petitioner to resume/perform his duties on the post of Constable on which the petitioner was working prior to his dismissal from service, by issuance of Writ of Mandamus; iii. To issue directions to the respondents to release the salary of petitioner and to give all other consequential benefits to which the petitioner is entitled to, as also to treat the period of petitioner w.e.f. 3.10.2001 to the date the petitioner rejoins the Unit on ‘duty’ by issuance of a Writ of Mandamus; iv. To issue directions to the respondents restraining them to treat the period w.e.f. 3.10.2001 till the date of joining the petitioner on duty as ‘break in service’ by issuance of Writ of Prohibition; v. To declare Order No. Estt/IstBn/SSFC-MK/2001/13622-822 dated 3.10.2001, (order has not been served on the petitioner) issued by the Adjutant on behalf of Commandant, and Order No. Estt/IstBn/SSFC-MK/2001/16987-91 dated 22.11.2001, issued by the Adjutant on behalf of Commandant, and the proceedings of Summary Security Force Court (if any done) and also the Charges (if any) framed against the petitioner, being ultra vires, unconstitutional and contrary to the provisions of BSF Act and Rules and also contrary to the provisions of law, by issuance of Writ of Mandamus; vi. To issue directions to the respondents to produce all the original record of departmental proceedings (if any done) before this Hon’ble Court by issuance of Writ of Mandamus. 2. To issue directions to the respondents to produce all the original record of departmental proceedings (if any done) before this Hon’ble Court by issuance of Writ of Mandamus. 2. The facts under the shade and cover of which the aforesaid reliefs are prayed by the petitioner are that the petitioner came to be appointed as a Constable in Border Security Force (for short “the BSF”) on 07.07.1990 and allotted No. 90755573 and after undergoing requisite training at STC BSF, Udhampur (J&K), came to be posted in 01 Bn BSF and performed duties in different States at various places earned three cash rewards from the Inspector General, Deputy Inspector Commandant. 3. It is being stated that when the petitioner was on move from Srinagar (J&K) to West Bengal on 04.07.2001, he received a message from his home that his son has been seriously taken ill, whereupon with the permission of the Company Commandar after making a request to avail leave while being halted at Samba (J&K), the petitioner went to his home to see his son and while ensuring treatment of his son at home/hospital, the petitioner applied to the respondents for grant of leave/extension thereof by way of an application which came to be forwarded by the Inspector General, BSF, Jammu. 4. It is being further stated that after the recovery of his son from the ailment, the petitioner approached his Unit for rejoining his duties which he was not permitted to do and instead was told that “he stands dismissed from service” in terms of order No. Estt/IstBn/SSFC-MK/2001/13622-822 dated 03.10.2001 on account of being absent without leave. It is being further stated that pursuant to the order of dismissal dated 03.10.2001, which was never served upon the petitioner, the Adjutant on behalf of the Commandant issued order No. Estt/IstBn/SSFC-MK/2001/16987-91 dated 22.11.2001 providing therein that the period w.e.f 04.07.2001 to 15.09.2001 is treated as “dies-non” and it is only upon receipt of the said order dated 22.11.2001, the petitioner came to know about the order of dismissal of his service dated 03.10.2001. 5. 5. It is being next stated in the petition that the respondents have dismissed the petitioner from service without following the provisions of the BSF Act of 1968 and the BSF Rules of 1969 (for short “the Act of 1968” and “the Rules of 1969”) respectively and without affording an opportunity of being heard inasmuch as without conducting any inquiry. 6. Reply to the petition has been filed by the respondents wherein it is being admitted that the petitioner came to be enlisted as a Constable on 25.08.1990 while after undergoing training, came to be posted in the 1st Battalion on 02.07.1991, however, during his service has remained an indisciplined soldier having over stayed leave on multiple times and also suffered punishments thereof. 7. It is being further stated in the reply that in the month of July 2001 when the Unit of the petitioner was moving out from Internal Security Duty Srinagar to Bn HQ Telliguri, Cooch Behar (West Bengal), and the Battalion was at Transit Camp, Samba (J&K) for further move on 04.07.2001, the petitioner was found absent from the camp leave at 0630 hrs having left behind his personal weapon along with its ammunition, whereupon a letter came to be issued by the Unit to the petitioner on 11.07.2001 asking him to report back to his duties to which the petitioner failed to respond, whereafter in terms of Section 62 of the Act, a Court of Inquiry was held against the petitioner for unauthorized absence vide order dated 26.07.2001, wherein the petitioner was found to be blame worthy and absent from duty, as such, an action under the Act of 1968 and Rules of 1969 came to be recommended by said Court of Inquiry, whereupon a show cause notice along with a copy of Court of Inquiry came to be issued and served upon the petitioner on 21.08.2001. 8. It is being further stated that the petitioner after remaining absent for 74 days voluntarily reported back to his duties at Bn HQ Telliguri on 15.09.2001 and submitted an application for permitting him to enter the Unit which came to be allowed on 15.09.2001 itself. 9. 8. It is being further stated that the petitioner after remaining absent for 74 days voluntarily reported back to his duties at Bn HQ Telliguri on 15.09.2001 and submitted an application for permitting him to enter the Unit which came to be allowed on 15.09.2001 itself. 9. It is being also stated that on 18.09.2001, the petitioner was heard for having committed an offence under Section 19(a) of the Act of 1968 and after hearing him Record of Evidence (ROE) came to be completed on 19.09.2001 and a charge-sheet drawn and handed over to the petitioner on 27.09.2001 against a receipt intimating the petitioner therein the said letter as to whether he wants to have his friend in the proceedings representing him and also the name of the witnesses in defense, if any, he presupposes to produce, in reply to which, the petitioner made a request for providing his friend to represent him in the proceedings, whereafter on the basis of Record of Evidence, a Summary Security Force Court (for short “SSF Court”) came to be ordered on 02.10.2001. 10. It is being next stated that the SSF Court held its proceedings against the petitioner on 03.10.2001 and upon arraignment, the petitioner pleaded guilty to the charges drawn against him under Section 19(a) of the Act of 1968 and after complying with the provisions of Rule of 142(2), the petitioner was found guilty of the charges and awarded sentence as “to be dismissed from service” on 03.10.2001 itself, whereafter the order of dismissal dated 03.10.2001 came to be issued by the Commandant. 11. It is being further stated in the reply filed by the respondents that there has been no violation of either the provisions of the Act of 1968 or the Rules of 1969 and the provisions being sacrosanct came to be followed in letter and spirit and that none of the rights of the petitioner were violated in the process which would entitle him to invoke the extraordinary writ jurisdiction of this Court. 12. It is being lastly stated that the petitioner preferred an appeal against the order of dismissal through his wife before the appellate authority which came to be rejected on 04.04.2002. Heard learned counsel for the parties and perused the record pertaining to the case produced by the counsel for the respondents. 13. 12. It is being lastly stated that the petitioner preferred an appeal against the order of dismissal through his wife before the appellate authority which came to be rejected on 04.04.2002. Heard learned counsel for the parties and perused the record pertaining to the case produced by the counsel for the respondents. 13. Before proceeding to advert to the issues raised by the petitioner in the instant petition, it would be appropriate to refer to the relevant provisions of the Act of 1968 and the Rules of 1969 being germane to the controversy:- - Section 19 of the Act of 1968 deals with “Absence without leave” and provides, inter alia, that any person subject to the Act who absents himself without leave shall, on conviction by a SSF Court, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is this Act mentioned. - Section 48 of the Act of 1968 deals with “Punishment awardable by Security Force Courts” which, inter alia, provides for the punishment of dismissal from service that may be inflicted in respect of offences committed by persons subject to this Act and convicted by a SSF Court. - Rule 43 of the Rules of 1969 provides for a Summary procedure to be followed in respect of an enrolled person subject to the provisions of the Act before conducting Summary Security Force proceedings and deals with the “Offence report” and provides that where it is alleged that a person subject to the Act (other than an officer or Subordinate Officer) has committed an offence punishable there under, the allegation shall be reduced to writing in the form set out in Appendix IV. - Rule 45 of the Rules of 1969 deals with “Hearing of the charge against an enrolled person” and provides that the charge shall be heard by the Commandant of the accused and same shall be read over along with the statement of witnesses, if recorded, to the accused providing an opportunity to the accused to cross-examine the witnesses and also to make a statement in his defense, whereafter the Commandant is empowered either to award punishment to the enrolled person if he is empowered to award or dismiss the charge or remand the accused for preparing a record of evidence or for preparation of an abstract of evidence against him or remand him for trial by a SSF Court. - Rule 48 of the Rules of 1969 deals with “Record of Evidence” and, inter alia, provides that the Officer ordering the record of evidence may either prepare the record of evidence himself or detail another officer to do so and that the witnesses shall give their evidence in the presence of the accused and that accused shall have right to cross-examine the said witnesses, whereafter the accused has to be cautioned to make a statement if he wishes to do so and also to be informed that he may call the witnesses in defense and after the recording of such evidence is completed, the Officer recording the evidence as to give a certificate provided in rule 48 itself. - Rule 51 of the Rules of 1969 deals with “Disposal of case against enrolled person by Commandant after record of evidence” and, inter alia, provides that the Commandant after going through the record or abstract of evidence may (i) dismiss the charge (ii) rehear the charge and award summary punishment or (iii) try the accused by a SSF Court where he is empowered so to do or (iv) apply to a competent officer or authority to convene a Court for the trial of the accused. - Rule 133 of the Rules of 1969 deals with the “Proceeding” of the SSF Court, whereas Rule 138 of the Rules of 1969 deals with “Arraignment of accused” and, inter alia, provides that the accused shall be arraigned on the charges against him and that the said charges on which the accused is arraigned are to be read and if necessary translated and explained to him requiring him to plead separately to each charge. - Rule 139 of the Rules of 1969 deals with the “Objection by accused to charge” and, inter alia, provides that the accused when required to plead to any charge, may object to the charge on the ground that it does not disclose an offence under the Act, or is not in accordance with these rules. - Rule 142 of the Rules of 1969 deals with “General plea of Guilty or Not Guilty” and provides that the accused person’s plea of ‘Guilty’ or ‘Not Guilty’ shall be recorded on each charge providing further that if an accused person pleads ‘Guilty’, that ‘Guilty’ shall be recorded as the finding of the Court but before it is recorded, the Court has to ascertain that the accused understands the nature of charge to which he has pleaded guilty and has to be informed of the general effect of that plea and in particular of the meaning of the charge to which he has pleaded ‘Guilty’ and of the difference in procedure which will be made by the plea of ‘Guilty’ and also has to be advised to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty. - Rule 149 of the Rules of 1969 deals with the “Findings” of the SSF Court and, inter alia, provides that the finding on each charge upon which the accused is arraigned shall be recorded and shall be recorded simply as a finding of “Guilty” or of “Not Guilty”. and; - Rule 152 of the Rules of 1969 deals with “Sentence” and provides that the Court shall award one sentence in respect of all the offences of which the accused is found guilty. 14. and; - Rule 152 of the Rules of 1969 deals with “Sentence” and provides that the Court shall award one sentence in respect of all the offences of which the accused is found guilty. 14. Keeping in mind the aforesaid provisions of the Act of 1968 and the Rules of 1969 and reverting back to the case back in hand, it is the positive case of the respondents in their reply as has been noticed in the preceding paras that the petitioner came to be afforded an opportunity of hearing by the Commandant on 18.09.2001 once he reported back to his duties on 15.09.2001, whereafter the said hearing, Record of Enquiry was ordered on 19.09.2001 and after completion of the process of said Record of Evidence, a copy of charge-sheet and a copy of the Record of Evidence came to be served upon the petitioner on 27.09.2001. It is being further the positive case of the respondents that in terms of letter dated 27.09.2001 itself, the petitioner came to be intimated to provide for the name of his friend and also the name/s of the witnesses he want to produce in defense during the trial. It is further the case of the respondents that on the basis of Record of Evidence, SSF Court was ordered on 02.10.2001 and its proceedings commenced on 03.10.2001 and on the very same date, the petitioner pleaded “Guilty” and, as such, was found to have committed offence under Section 19(1) of the Act of 1968 and consequently, awarded sentence “to be dismissed from service”. 15. Having regard to the aforesaid pleas of the respondents and the Record of Enquiry produced by the counsel for the respondents, it is evident and manifest that the respondents have not followed the summary proceedings envisaged in Rule 43, Rule 45 and Rule 51 of the Rules of 1969 (supra) in letter and spirit and have, in a mechanical manner, proceeded in the matter in the said summary proceedings and referred the matter to the SSF Court for holding proceedings thereto. As has been noticed in the proceeding paras, the SSF Court came to be constituted by the respondents on 02.10.2001 and without formally arraigning the accused-petitioner therein while following Rule 138 and Rules 139 of the Rules of 1969 proceeded to follow the provisions of Rule 142 on the very next date i.e. 03.10.2001. 16. As has been noticed in the proceeding paras, the SSF Court came to be constituted by the respondents on 02.10.2001 and without formally arraigning the accused-petitioner therein while following Rule 138 and Rules 139 of the Rules of 1969 proceeded to follow the provisions of Rule 142 on the very next date i.e. 03.10.2001. 16. Further perusal of the record of the SSF Court would show that the said proceedings have been conducted in a hush-hush manner even while recording the plea of “Guilty” alleged to have been pleaded by the petitioner. A deeper and closer examination of the said plea of guilty recorded by the SSF Court would show that the same as well has been recorded in breach and blatant violation of the object embeded therein Sub Rule (2) of Rule 142. A reference in this regard to the judgment of the Apex Court passed in case titled as “Union of India & Ors. Vs Jogeshwar Swain” reported in 2023 (9) SCC 720 would be relevant herein wherein at para 33, 34 & 35 of the said judgment following has been observed:- “33. Rule 142 of the BSF Rules, 1969 which fall in Chapter XI of the BSF Rules, 1969 deals with the manner in which an SSFC is required to record the plea of guilty. Rule 143 provides for the procedure after the plea of guilty is recorded. The relevant portion of Rule 142 as it stood on the date of the proceeding in question is reproduced below: “142. General plea of “Guilty” or “Not Guilty”.- (1) The accused person’s plea of “Guilty” or “Not Guilty” or if he refuses to plead or does not plead intelligibly either one or the other), a plea of “Non Guilty” shall be recorded on each charge. General plea of “Guilty” or “Not Guilty”.- (1) The accused person’s plea of “Guilty” or “Not Guilty” or if he refuses to plead or does not plead intelligibly either one or the other), a plea of “Non Guilty” shall be recorded on each charge. (2) If an accused person pleads “Guilty”, that plea shall be recorded as the finding of the Court; but before it is recorded, the Court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that plea, and in particular of the meaning of the charge to which he has pleaded guilty, and of the difference in procedure which will be made by the plea of guilty and shall advise him to withdraw that plea if it appears from the record or abstract of evidence (if any) or otherwise that the accused ought to plead not guilty.” 34. A plain reading of sub-rule (2) of Rule 142 would indicate that on the accused pleading guilty, before a finding of “Guilty” is recorded, the SSFC is not only required to ascertain whether the accused understands the nature and meaning of the charge to which he has pleaded guilty but it must also inform the accused of the general effect of that plea and of the difference in procedure which will be made by the plea of guilty. That apart, even if the accused pleads guilty, if it appears from the record or abstract of evidence or otherwise that the accused ought to plead not guilty, the SSFC is required to advise him to withdraw that plea. 35. 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. 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 became 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.” 17. In the light of the aforesaid position of law laid down by the Apex Court qua the provisions of Rule 142 of the Rules of 1969 in the judgment (supra) and considering the plea of guilty recorded by the SSF Court against the petitioner, seemingly is not tenable in law which plea of guilty recorded by the SSF Court as is contained in the record produced by the respondents for convenience and reference is extracted and reproduced hereunder:- “A.1 Answer by the Accused. Guilty. Accused having pleaded guilty to the charge, the court read and explains to the accused the meaning of that change to which he has pleaded guilty and ascertains that the accused understands the nature of the charge to which he has pleaded guilty. The court also informs 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 understand the charge and the 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 his plea of guilty to the charge particularly the difference in procedure. The Provisions of BSF Rule 142(2) are complied with.” 18. The Court satisfies itself that the accused understands the charge and the effect of his plea of guilty to the charge particularly the difference in procedure. The Provisions of BSF Rule 142(2) are complied with.” 18. Viewed thus, what has been observed, considered and analyzed hereinabove, the instant petition succeeds and, accordingly, is allowed and consequently the impugned order dated 03.10.2001 is quashed along with order dated 22.11.2001, as a consequence whereof, the respondents are commanded to reinstate the petitioner in service and to pay him all consequential benefits to which he would be entitled thereto minus the back wages. 19. Disposed of.