Nissar Ahmad Kakru, J.
1. The trial by the General Security Force Court (GSFC for short) of the petitioner-Deputy Commandant who at the material time held the rank of Assistant Commandant appears to have originated from the allegation of having slapped and beaten a constable. Trial was clinched by a finding of 'not guilty' by order dated 24.9.1991, When it came to the notice of respondent No. 4 Inspector General of Border Security Force (IG hereinafter), He passed an order on 14-01-1992 (revision order hereinafter) directing re-assembling of the court to reconsider 'not guilty' finding. In compliance with the said order, the GSFC reversed the finding of 'not guilty' and sentenced the petitioner by order dated 24-01-1992 which may be noticed:
'The court sentence the accused IRLA No. 3229 Malkiat Singh Toora Asstt. Commandant of 96 Batallion BSF to :
(i) Take rank and precedence as if his appointment to the rank of Assistant Commandant bore the date 01-07-1987 (1-7-1987);
(ii) Be severely reprimanded.'
2. The order was confirmed by the IG on 31-01-1992. To understand whether GSFC has rightly exercised the power. I may refer to relevant provision of the Border Security Force Rules, 1969 (BSF rules for short). Clause (b) of Sub-rule (3) of Rule 105 reads :
'Where the original finding was one of 'Not guilty' the court shall, before passing the sentence comply with Rules 101 and 102.'
3. A bare perusal of the abovesaid sub rule makes it obligatory upon the GSFC to follow the procedure envisaged by Rules 101 and 102 of BSF rules if the original finding was 'Not guilty'. Admitted position being that the petitioner had earned 'not guilty' finding at the conclusion of the trial. It was, therefore, imperative upon the GSFC to follow the procedure in terms of aforementioned rules in its letter and spirit. Whether procedure prescribed by rules was followed needs to be appreciated in the light of the fact that the 'revision order' required the GSFC to re-assemble on 22nd of January, 1992, accordingly, the process of reconsideration commenced on the said date. What was the GSFC supposed to do Rule 101 assumes significance which is extracted;
'101. Procedure on conviction--(1) If the finding on any charge of the court determining its sentence, and of the conforming authority in considering the sentence, the court, before deliberating on the sentence, shall, whenever possible, take evidence of and record the general character age, service, rank any recognised acts of gallantry or distiguished conduct of the accused any previous convictions of the accused either by Security Force Court or a criminal court, any previous punishments awarded to him by an officer exercising authority under Section 53 or 55 as the case may be the length of time he has been in arrest or in confinement on any previous sentence, and any decoration, or reward, of which he may be in possession or to which he is entitled.
(2) Evidence on the above matters may be given by a witness verifying a statement which contains a summary of entries in the service books respecting the accused and identifying the accused as the person referred to in that summary.
(3) The accused may cross-examine any such witness and may call witnesses to rebut such evidence and if the accused so requests, the service books or a duly certified copy of the material entries therein, shall be produced and if the accused alleges that the summary is in any respect not in accordance with the service books or such certified copy, as the case may be, the court shall compare the summary with those books or copy and if it finds that it is not in accordance therewith, shall cause summary to be corrected or the objection of the accused to be recorded.
(4) When all the evidence on the above matters has been given, the accused may address the court thereon and in mitigation of punishment.
4. The procedure envisaged by BSF Rules necessitates effective deliberations and if the procedure was followed it had to take considerable time but the GSFC has opted for cut short mode as is evidenced from the fact that it re-assembled on 22-01-1992 and returned the finding of 'gulity' and sentnece on 24-01-1992. In view of such hot haste the safeguards guaranteed by statutory rules cannot be said to have shown compliance by any stretch of imagination, not even magically. I have also examined the original record. Its perusal also fails the respondents in showing adherence to the rules obviously, finding of 'guilty' and sentence recorded by the GSFC, besides order of confirmation accorded by the IG are not sustainable in law.
5. It was next contended by LC for the petitioner that the 'revision order' was issued in exparte which could not have been passed without hearing the petitioner in view of the fact that it indicts him. To appreciate the argument it may be relevant to identify the situations which emerge on the admitted set of facts. The 'revision order' had fixed first sitting of the GSFC on 22-01-1992. The petitioner was sentenced just after one day's break. There is no denying that the petitioner was not heard by the IG. Apart from that the 'revision order' does not only direct reconsideration of the matter but makes certain observations. A few, relevant to the issue may be extracted:
'..........When he insisted to get his money back, the accused slept him and beat him a stick. The fact of slapping and beating with a stick has been corroborated by NK Balakrishnan (PW1) and the fact of beating with a stick has also been corroborated by L.NK Oraon (PW2)................Even if the court is not inclined to believe the version of CT Krishna Prasad who is an interested witness, it must be considerd as to why NK Balakrishnan and L.NK Oraon should depose falsely against the accused. There is nothing to show that they had an enmity with the accused.'
6. A bare perusal of the observations makes it manifestly clear that on reappraisal of evidence, the IG has returned a finding to the detriment of the petitioner but without affording him even a pretended hearing. Such cause unveils the facts that the IG had mind set to have the finding of 'not guilty' converted into a finding of guilty. The observations have been so couched that same were bound to influence the GSFC and it did happen so, as is noticeable from the very text of the order of the GSFC. The relevant portion may be reproduced :
'The court having attentively considered the observations..........do not revoke their earlier finding and find the accused guilty of the charge.'
7. In essence the issue to be decided in this case relates to the right of hearing before the confirming authority and a moot question arises whether the confirming authority is bound to hear the accused. The answer to the quetion is in negative if it is a case where confirming authority directs the GSFC to take additional evidence for the simple reason that the aggrieved person is sufficiently safeguard by the procedure laid down in BSF Rule 101. Conversely if the order of confirming authority indicts the accused as is true of the case on hand, opportunity of hearing is a must unless statute excludes the application of rules of natural justice be it impliedly or by necessary implication and in such eventuality it cannot be read into the statutory provisions but fact remains that even an indepth examination of the BSF Act and Rules does not exclude the application of the rules of natural justice, thus it is not a case of conflict between rules of natural justice and statutory provisions.
8. Adverting to the factual aspect relevant to the 'revision order' it has to be borne in mind that it is the observations of the IG which have promoted the GSFC to reverse the finding of 'non guilty' and forms basis of the finding of 'guilty' and sentence. Considering the matter in totality of the circumstances detailed hereinabove, it emerges that the 'revision order' suffers from vice of unfairness and injustice, therefore, wrong done to the petitioner warrants to be set right by exercise of judicial power of this court so as to do substantial justice between the parties.
9. In the result, the petition is allowed. Impugned order dated 14-01-1992, 24-01-1992 and 31-01-1992 (annexure p3, p4 and p5 respectively) are quashed relegating the parties to the position as it existed prior to the 'revision order' leaving the respondent No. 4 free to reconsider the matter in accordance with law. As a consequence thereto, the respondents shall consider the claim of the petitioner for promotion treating the impugned orders non est subject to the outcome of reconsideration aforementioned. No order as to costs.