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.
4. Defendants contested the suit by filing written statement thereby claiming, inter-alia, that the Commandant was authorized under Section 11(2) of Border Security Force Act (hereinafter referred to as B.S.F. Act) read with Rule 177 of Border Security Force Rules (hereinafter referred to as B.S.F. Rules) to dismiss or remove a person of the rank of a Constable, as was the plaintiff. It was claimed that the plaintiff had remained unauthorisedly absent for which a show cause notice dated 10.11.1984 was served on the plaintiff. It was claimed that the provisions of Article 311(1) as also the provisions of Article 311(2) of the Constitution of India were not applicable to B.S.F as it is one of the Armed Forces under Union of India and that the power of dismissal was exercised in accordance with the provisions of the B.S.F Act and the rules framed thereunder. It was further claimed that the suit was bad for want of a valid notice under Section 80 C.P.C and was also barred under Section 34 of the Specific Relief Act.
5. On the pleadings of the parties, six issues were framed, which are as under:-
(i) Whether the order passed by the defendant No.3, as against the plaintiff, on 13.03.1985, was illegal?
(ii) Whether the suit was maintainable?
(iii) Whether the suit was properly valued and court fees sufficiently paid?
(iv) Whether the notice under Section 80 C.P.C was valid ?
(v) Whether the suit was barred under Section 34 of the Specific Relief Act ?
(vi) To what relief the plaintiff was entitled ?
6. The trial court by its judgment and decree dated 31.07.1987 dismissed the suit on the ground that the notice under Section 80 C.P.C was not given. However, with respect to all other issues, finding was recorded in favour of the plaintiff.
7. Aggrieved by the decision of the trial court, the plaintiff went up in appeal, whereby the judgment and decree of the trial court was set aside by judgment and order dated 3.9.1990 passed by 2nd Additional District Judge, Ballia in Civil Appeal No.162 of 1987 and the matter was remanded back to the trial court in the following terms:-
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8. Upon remand, the trial court after hearing the parties decided all the issues afresh and in favour of the plaintiff. The suit of the plaintiff was decreed by holding that the order dated 13.03.1985 was illegal, null and void with a direction to treat the plaintiff in service and to pay all the arrears payable to him. While decreeing the suit of the plaintiff, the trial court found that the plaintiff was entitled to the protection under Article 311(1) and (2) of the Constitution of India. It further found that no notice was given to the plaintiff as was required by Rule 20(2) of the B.S.F Rules. The trial court further found that a valid notice under Section 80 C.P.C was given. However, while deciding the issue No.1, the trial court held that the Commandant had power to dismiss a person of the rank of Constable in exercise of his power under Section 11 (2) of the B.S.F Act read with Rule 177 of the B.S.F Rules.
9. Aggrieved by the judgment and decree of the trial court, the defendants went up in appeal, which was dismissed by judgment and decree dated 29.11.1995. While dismissing the appeal, the appellate court confined the hearing of the appeal only to the validity of the notice under Section 80 C.P.C on the ground that no cross objection was filed by the defendants to the findings recorded by the trial court in its judgment and decree dated 31.07.1987, on an appeal preferred by the plaintiff, therefore, the said findings had become final between the parties. Aggrieved by the judgment and decree of the lower appellate court, the present second appeal has been filed, which was admitted on 18.05.2010 on the following substantial questions of law:-
"1. Whether the power of the prescribed authority under Section 11(2)& (4) of the Border Security Force Act read with rule 177 of the Border Security Force Rules is absolute and independent or dependent upon rule 20 of the B.S.F. Rules and prior to exercise of that power an inquiry under Rule 20 is a must?
2. Whether the protection granted to a civil servant under Article 311(2) of the Constitution of India is available to personnel of the Border Security Force the same being a part of the Armed Forces under the Union of India ?"
10. I have heard Sri S.K. Rai, learned counsel for the appellants and Sri Raj Nath Pandey, learned counsel for the respondent and have perused the record.
11. At the outset, it may be mentioned that during the course of arguments, on 09.05.2012, the counsel for the appellants submitted that a vital substantial question of law, which was involved, and proposed in the memo of appeal, could not be framed. Accordingly, by order dated 09.05.2012, an additional substantial question of law no.3 was framed, as under:-
"3. Whether the appellate court while dismissing the appeal was justified in confining itself to issue No. 4 alone when the appellate court while remanding the case back to the trial court for decision afresh had set aside the judgment and order dated 31.07.1987 and after remand, the trial court had decided all the issues afresh in accordance with law and the defendant-appellants in appeal had challenged the entire judgment of the trial court?"
12. Consequently, the hearing of the appeal was adjourned to the next date i. e. 10.5.2012, and on 10.05.2012, the counsel for the parties were heard again on all the three questions that were framed.
13. The submission of the counsel for the appellants is that the appellate court committed manifest error of law by confining the hearing of Civil Appeal only to the validity of the notice under Section 80 C.P.C. It was submitted that the trial court's entire judgment and decree dated 31.07.1987 was set aside and the matter was remanded back for a fresh decision. Accordingly, any finding that might have been recorded by the trial court in favour of the plaintiff in the judgment dated 31.7.1987 stood wiped off. Moreover as the trial court proceeded to record fresh findings on all issues, therefore, the appellate court ought to have addressed itself to the correctness of the decision on all issues and not confined itself on issue no.4, which related to the validity of the notice. It was further submitted that in the remand order the appellate court had not even touched, much less approved, the findings of the trial court on issues other than issue no.4, therefore, it was open for the appellate court to adjudicate on all issues after the trial court had passed a fresh judgment and decree, which covered all the issues. In support of his contention, the counsel for the defendant-appellant cited Apex Court decisions in Kshitish Chandra Bose v. Commissioner of Ranchi reported in (1981) 2 SCC 103 (paragraph No.6); Preetam Singh v. Assistant Director of Consolidation reported in 1996 AIR SC 2881 (paragraph no.5) and Most Rev. P.M.A. Metropolitan And Others versus Moran mar marhotma and Another reported in 1995 Supp (4) SCC 286 (paragraph 59).
14. The counsel for the appellant further submitted that the provisions of Articles 311 (1) & (2) were not attracted to defence personnel including members of B.S.F., as they do not hold "Civil Post" under the Union. It was contended that members of B.S.F. are governed by BSF Act and the Rules framed there under. He placed reliance on a decision of Punjab & Haryana High Court in the case of Bhagat Ram versus Union of India & others 1981 (3) SLR page 686. In this case, the Court, relying on the Apex Court's decision in the case of Lekh Raj Khurana versus The Union of India reported in AIR 1971 SC 2111, held that member of BSF cannot claim protection of the provisions of Article 311(1) & (2) of the Constitution of India, as they do not hold "Civil Post" under the Union. Counsel for the appellant also placed reliance on two Apex court's decisions i.e. Gauranga Chakraborty versus State of Tripura (1989) 3 SCC 314 and Union of India & others versus Ramphal (1996) 7 SCC 546.
15. Per Contra, the learned counsel for the plaintiff-respondent submitted that the lower appellate court rightly denied the opportunity to the defendants to challenge the findings on issues other than the validity of the notice under Section 80 C.P.C., as the defendants could have, but they did not, challenge the adverse findings recorded by the trial Court in its judgment dated 31.03.1987, by exercising their right under Order 41 Rule 22 C.P.C. It was further contended that even if the provisions of Article 311(1) & (2) of the Constitution of India were not attracted, the principles of natural justice, as embodied in Sub Rule (2) of Rule 20 of the BSF Rules were required to be complied with and since the trial court's finding was there that giving of such notice was not proved, the decree of the trial court could not be faulted.
16. Having considered the rival submissions of the learned counsel for the parties I'm of the view that once the entire judgment and decree of the trial court dated 31.3.1987 was set aside by the appellate court without specifically approving the findings recorded by the trial court and the trial court was required to decide the suit afresh, which it did by deciding all the issues, the findings, if any, recorded in the judgment dated 31.3.1987 did not survive even though no appeal or cross-objection was preferred by the defendants against those findings. More so, there was no question for the defendants to have filed an appeal against the findings inasmuch as the decree was in their favour and they were not aggrieved with any part of the decree. Even otherwise, from the decisions cited by the learned counsel for the appellant, as also from paragraph no.6 of the Apex Court's decision in the case of Sukhrani V. Hari Shanker reported in (1979) 2 SCC 463 it is clear that though a decision given at an earlier stage of suit will bind the parties at later stages of the same suit, but it is equally well settled that because a matter has been decided at an earlier stage by an interlocutory order and no appeal has been taken therefrom or no appeal did lie, a higher court is not precluded from considering the matter again at a later stage of the same litigation. Accordingly, in any view of the matter this court is not precluded from examining the correctness of the decision of the courts below on all issues. I, therefore, answer question no.3 in favour of the defendant-appellant and against the plaintiff-respondent.
17. So far as question no.1 is concerned it is no longer res integra consequent to the decision of the apex court in the case of Union of India & Others versus Ram Phal (supra), as would be evident from paragraphs 6, 7 and 8 of the judgment, which are being reproduced herein below:
"6. In Gouranga Chakraborty Vs. State of Tripura and Another [1989 (3) SCC 314], this Court has held that the services of the enrolled persons under the BSF Act are governed by the provisions of the Act as well as the rules framed thereunder and that the power under Section 11(2) of the Act empowering the prescribed authority, i.e. the Commandant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with Rule 177 of the said Rules is an independent power which can be validly exercised by the Commandant as a prescribed officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same. Though in the order of dismissal it was not stated under which provision of law it was passed, the appellant had disclosed in the written statement that it was passed under Section 11(2) of the Act. Therefore, the view taken by the courts below that the order of dismissal could not have been passed without first holding an enquiry by the Security Force Court and that the Commandant had no authority to pass such an order under Section 11(2) of the Act is clearly erroneous.
7.We are, however, not able to agree with the contention raised by the learned Additional Solicitor General that for exercising power under Section 11(2) of the Act no enquiry is required to be held and considering the nature of the Force and the utmost necessity of maintaining discipline giving a show cause notice should be regarded as sufficient compliance with the principles of natural justice. Section 11 is silent in this behalf and it appears that earlier there was no Rule indicating the circumstances and the manner in which that power was to be exercised. But now we find that the Rules contain such a provision. Rule 20 provides for termination of service for misconduct. The relevant part of the rule reads as under :
"(1) Where in the opinion of the Director General a person subject to the Act has conducted himself in such manner whether or not such conduct amounts to an offence, as would render his retention in service undesirable and his trial by Security Force Court inexpedient, the Director-General may inform the person concerned accordingly.
(2) The Director General shall further inform the person concerned that it is proposed to terminate his services either by way of dismissal or removal (S.11) (3) The Director General shall furnish the particulars of allegations and the report of investigation (including the statement of witnesses, if any, recorded and copies of documents, if any intended to be used against him) in cases where allegations have been investigated:
Provided that where the allegations have not been investigated, the Director-General shall furnish to the person concerned the names of witnesses with a brief summary of the evidence and copies of documents, if any, in support of the allegations.
Rule 21 provides for appointment of an enquiry officer and the procedure to be followed by him. Rule 22 provides for imposition of penalty. Sub Section 4 of Section 11 makes the exercise of any power under that section subject to the provision of the Act and also the Rules. Therefore, after introduction of Rule 20 in the Rules it cannot be validly contended that no enquiry need be held while exercising the power under Section 11(2). We will now examine if the prescribed procedure was followed in this case. The show cause notice clearly appears to have been issued in terms of sub-rule 1 of Rule 20. It reads as under :
"You have been absent without leave with effect from 21st Dec.,83. I am of the opinion that because of this absence without leave for such a long period. Your further retention in service is undesirable. I, therefore, tentatively propose to terminate your service by way of dismissal. If you have anything to urge in your defence or against the proposed action, you may do so before 4.5.84. In case no reply is received by that date, it will be inferred that you have no defence to put forward."
8. The first sentence in the notice that "You have been absent without leave with effect from 21st Dec.,83" satisfied the requirement of sub-rule (3). When it further stated that "I am of the opinion that because of this absence without leave for such a long period, your further retention in service is undesirable it complied with the requirement of sub-rule (1) and as required by sub-rule (2) it was further stated therein that "I therefore, tentatively propose to terminate your service by way of dismissal". The respondent was called upon to show cause within seven days as required by sub-rule 6. No further inquiry was held; but we find that nothing further was required to be done in this case. The respondent did not reply to the notice. There was no denial of the allegations and no request to hold an enquiry. Therefore, it was not incumbent upon the Director General to appoint an enquiry officer to conduct an enquiry in the manner prescribed by Rule 21. Thus the prescribed procedure was followed before passing the dismissal order. The courts below have failed to appreciate the correct position of law and the facts. It was therefore wrongly held that the order of dismissal was illegal as it was not in accordance with the provisions of the Act and the Rules."
18. As regards question no.2, the decision of the Punjab & Haryana High Court in the case of Bhagat Ram (supra) is well considered and I'm in respectful agreement with the same. The learned counsel for the plaintiff respondent could not produce any authority to show that the law laid down in Bhagat Ram's case (supra) was not good law for any reason whatsoever. Paragraph no.8 of the decision in Bhagat Ram's case is being reproduced below:
"8. The first and foremost question as raised by the learned counsel for the petitioner in both cases was that the impugned action and orders were violative of Article 311 of the Constitution. There is no gainsaying the fact that Article 311 of the Constitution provides for guarantees with regard to dismissal, removal or reduction in rank of persons employed in civil capacities under the Union of State. Article has obvious reference to civil service. Under Entry 2 of List 1 of the Seventh Schedule to the constitution, the Parliament has been given the power to make laws with regard to the naval, military and air force as also to any other armed forces of the Union. In other words, besides the regular naval, military and armed forces, the Parliament can authorise the raising of any other kind of armed forces of the Union. Deriving power from that source in the constitution of India, the Parliament had enacted the Border Security Force Act, 1968 which provides for the Constitution and regulation of an armed force of the Union for ensuring the security of the borders of India and for matters connected therewith. Under section 3 of the said Act, all officers, subordinate officers, under-officers and other officers enrolled under the Act are put as subject to the Act, wherever they may be, and all those persons are required to remain so subject until retired, discharged, released, removed from the force in accordance with the provisions of this Act and the Rules. Section 4 provides for the constitution of the force and section 6 provides for the enrollment to the force. Section 6(2) provides that notwithstanding anything contained in the Act and the Rules, every person who has for a continuous period of three months been in receipt of pay as a person enrolled under the Act and borne on the rolls of the Force shall be deemed to have been duly enrolled. Thus a complete enclosure is provided to preserve the force's sensitivity and integrity. There is no escape from the conclusion that officers, subordinate officers, under-officers and other persons enrolled under the Act remain subject to the Act so long as they remain in service. The petitioner of either case being a Sub-Inspector was concededly a subordinate officer under rule 14(1)(b) of the B.S.F. Rules, 1969 framed under the Act. There is also no manner of doubt that the B.S.F. being part of the Armed Forces of the Union and hence part of the defence services bears an apparent distinction from civil services of the Union and this distinction takes the defence service out of the ambit of Article 311 of the Constitution. And if that is so, neither of the petitioner is entitled to invoke even principles of natural justice under the general law of master and servant. The principle is well settled in Lekh Raj Khuran v. The Union of India, 1971 Supreme Court 2111, a judgment rendered in appeal arising from a decision of this Court. Thus neither Article 311 of the Constitution nor breach of the alleged principles of natural justice can be invoked by the petitioners in the instant cases and on that score their contentions stand repelled."
Accordingly, question no.2 is answered in favour of the appellant and it is held that the protection under Article 311(2) of the Constitution is not available to a personnel of the Border Security Force, as he does not hold a "Civil Post" under the Union or a State.
19. In view of the answers to questions 1 and 2, the decision of the trial court on issue no.1, that the order of termination, apart from other provisions, was in violation of the provisions of Article 311 (1) and (2), requires reconsideration. However, considering the dicta of the Apex Court in the case of Union of India versus Ram Phal (supra), it still has to be seen whether the termination was in accordance with the provisions of the BSF Rules or not. As no finding has been recorded on that score by the appellate court, I consider it appropriate to remand the matter to the lower appellate court to test the validity of the order of termination in accordance with the law.
20. As there is no challenge to the finding recorded by the courts below on Issues No.2, 3, 4 and 5, the same shall be treated to have been settled between the parties.
21. For the reasons aforesaid, the appeal is partly allowed. The judgment and decree dated 29.11.1995 passed by the Civil Judge (Senior Division), Ballia in Civil Appeal No. 35 of 1994 is hereby set aside. The matter is remanded back to the lower appellate court to decide the appeal afresh, in the light of the observations made herein above. The hearing of the appeal shall be confined to Issues no.1 and 6 only, all the other issues shall be treated as having become final between the parties. Since the matter is very old, I direct the Registry to forth with send back the record of the court below. The court concerned shall endeavour to decide the appeal of the defendant-appellant in an expeditious manner, preferably within a period of three months from the date of receipt of the record or from the date of production of certified copy of this order, whichever is later. There is no order as to costs.
Order Date :- 18.05.2012 Sunil Kr Tiwari