UNION OF INDIA AND OTHERS Vs. INDRAJIT TEWARI

JUDGEMENT

(1.) This is defendants' appeal against the judgment and decree dated 29.11.1995 passed by the Civil Judge (Senior Division), Ballia in Civil Appeal No. 35 of 1994 arising out of an Original Suit No. 453 of 1985.

(2.) Original Suit No. 453 of 1985 was instituted by the plaintiff-respondent for declaration that the order dated 13.03.1985 passed by the Commandant, 56th Battalion, Border Security Force is non-est and non-existent in the eye of law and that the plaintiff continues to serve as Constable of the Border Security Force as well as to allow the plaintiff to resume his duties as Constable, and further for a mandatory injunction thereby directing the defendants to make payment of arrears of salary to the plaintiff-respondent as also the regular payment of the monthly salary.

(3.) Plaint case, in short, was that the plaintiff was appointed on 19.08.1970 as Constable (Motor Driver) and, at the relevant time, was posted at 56th Battalion, B.S.F at Attarai, District West Durgapur (West Bengal). It was claimed that the Commandant of the said Battalion (the defendant No.3) without jurisdiction, on 13.03.1985, passed an order of dismissal, which was null and void as the right to dismiss the plaintiff was vested in the Inspector General of Border Security Force (the defendant No.2). It was, thus, claimed that the defendant No.3 being an authority subordinate to the defendant No.2 had no jurisdiction to pass the order of dismissal and, as such, the order was contrary to the provisions of Article 311(1) of the Constitution of India. It was further claimed that no disciplinary proceeding was initiated, no charge-sheet was issued and no enquiry was conducted, therefore, the dismissal was also in violation of the provisions of Article 311(2) of the Constitution of India. It was further pleaded that no show cause notice was given to the plaintiff and he was also not informed of the charges. It was claimed that the ground of dismissal i. e. the plaintiff was unauthorisedly absent, was not correct inasmuch as the plaintiff had submitted an application for leave, the rejection of which, if any, was not informed to the plaintiff. Thus, in nutshell, the plaintiff had challenged the order of dismissal on the ground of lack of authority as also for violation of principles of natural justice.