Delhi District Court
Union Of India vs Ex. Constable Chander Mohan on 22 March, 2012
Union of India Vs Ex. Constable Chander Mohan
IN THE COURT OF SH. VIRENDER KUMAR BANSAL:
ADDITIONAL DISTRICT JUDGE, CENTRAL-08, DELHI.
RCA No. 77/11
ID No. 02401C0406512011
1. Union of India Through Director General
Border Security Force,
Ministry of Home Affairs,
Block No. 10, CGO Complex
Lodhi Road, New Delhi.
2. Office of the Commandant
81 Battalion,
Border Security Force
Dobasipara, Tura, Meghalaya ............ Appellants
VS.
Ex. Constable Chander Mohan
Number-891312340
R/o Village Chwincha, P.O. Pauri
District Pauri Gharwal
State (U.P) ............Respondent.
APPEAL U/O 41 and Section 96 r/w Section 151 CPC against the final judgment and decree dated 29.04.2011 passed by the Court of Sr. Civil Judge, Delhi wherein the suit of the respondent was decreed.
22.03.2012.
ORDER/JUDGMENT
1. The present appeal is preferred against the judgement and decree dated 29.04.2011 whereby the learned Trial Court decreed the suit filed by Ex. Constabale Chander Mohan issuing direction that plaintiff (herein respondent) is entitled to the relief of reinstatement with back wages subject to condition that he will be deemed in service afresh from 17.08.1998 the date when his alleged resignation was taken and as sympathetic attitude had been shown by department for the misconduct of the plaintiff and the plaintiff deserves some punishment and equity lies in favour of the department also to some extent. He be treated in service RCA No. 77/11 1 Of 10 Union of India Vs Ex. Constable Chander Mohan from 17.08.1998 till date with consequential relief and benefits and service break will be counted from the date, he absented lastly from the service before 17.08.1998 from the date when his absence period of 102 days was regularised. The letter dated 18.08.1998 is declared null and void and the defendants are directed to reinstate the plaintiff to his post and to give all the benefits including pension/medical pension, as per rules before 17.08.1998 and thereafter also deeming the service break as aforesaid.
2. The brief facts are that Ex. Constable Chander Mohan (herein referred as plaintiff/respondent) filed suit for declaration and mendatory injunction against Union of India and office of the Commandant 81 Battalion, Border Security Force, Dobasipara, Tura, Meghalaya (herein after referred as appellant/defendants) alleging that the plaintiff/respondent joined the defendant as constable in the year 1989 and posted to different union from time to time. On 01.08.1997, plaintiff/respondent took duty in the unit and necessary orders for regularisation of the plaintiff absent period w.e.f. 31.12.1992 (F.N) to 31.07.1997 (A.N) by granting him kind of leave due and clearing of his pay and allowances for the said period vide order dated 07.07.1997 and 09.08.1997 by the unit Commandant Asstt. Director Co. Plaintiff alleged that despite repeated requests, the pay and allowance was not given to him for the period 31.12.1992 to 31.07.1997 but he was told that no wages or allowance are admissible to him for the month of August, September 1997 during which he was not on duty. In the month of December 1997 the plaintiff/respondent took E.L. of 25 days on account of the death his sister and on 03.04.1998, the plaintiff was referred for Civil Hospital Tura for "Psychiatric Specialist" for treatment and doctor advised him to come after a month on 03.05.1998. On 22.04.1998 wife of the plaintiff wrote a RCA No. 77/11 2 Of 10 Union of India Vs Ex. Constable Chander Mohan letter to the defendant and another letter dated 19.06.1998 . The officers of the defendant/applicant came to the village of the plaintiff/respondent and arrested him on 14.04.1997. They kept him in Chhawla Camp in 25 Bn BSF and kept under their custody for 21 days. There he was forced to sign the resignation letter while he was kept under the quarter guard and conveyed the message by sending their letter dated 17.08.1998 vide letter no. ESTT/DISC-59/98/2031-35. On 24.08.1998, due to the mischievous behaviors of the defendant, plaintiff got acute mental depression and was sent with their constable to his home. He also raised his grievance through letter but no action was taken. Thereafter he issued notice under Section 80 CPC dated 16.04.2001 but no action had been taken and the suit was filed.
3. Appellant/defendants filed the written statement taking the objection that the suit has filed misconceived and not maintainable and is barred by the provisions of Section 41(h),Specific Relief Act. The suit is liable to be dismissed. It is alleged that the plaintiff tendered his resignation to the the director of BSF voluntarily, free from any coercion and his resignation was duly accepted by the defendants,however, it is admitted that he was enrolled in BSF on 01.03.1989 and completed basic recuit training. He was posted in 161 Bn. BSF and further posted to 81, Bn.BSF on 28.01.1991. The competent authority sanctioned 15 days casual leave w.e.f. 11.12.1992 to 30.12.1992 to meet his family. The plaintiff/respondent failed to return to the duty despite reminders and notice. After conducting Court of Inquiry the plaintiff/respondent was declared illegal absent and it was decided to terminate the services. Consequently a Show Cause notice was served upon him at his home address and he was dismissed from service vide order dated 03.09.1993.
RCA No. 77/11 3 Of 10 Union of India Vs Ex. Constable Chander Mohan On 20.12.1996 the plaintiff/respondent submitted an application to DIG, BSF, Shillong for his re-instatement in BSF. The case was considered by the DIG, BSF Shillong and vide order dated 07.07.1997, set aside the order of his dismissal from the force and he was directed to report on 01.08.1997. From the beginning of his re-instatement he remained absented on several occasions which was regularised by sanctioning leave i.e. 48 days OSL w.e.f. 18.01.1998 to 07.03.1998 (FN) regularised by granting 30 days E/L w.e.f. 18.01.1998 to 16.02.1998 and 18 days EOL w.e.f. 17.02.1998 to 06.03.1998. 102 days AWL w.e.f. 05.04.1998 to 15.07.1998 (AN) regularised by granting 102 days EOL. Plaintiff/respondent again deserted from unit lines w.e.f. 05.04.1998. He was apprehended from his home and was handedover to 25 Bn. BSF on 15.07.1998 by the U.P. Police and his total absence period i.e. 102 days was regularised by granting 102 days EOL. On 17.08.1998, the plaintiff/respondent submitted an application for resignation from service on domestic grounds. He was interviewed by the Commandant 81 Bn BSF on 17.08.1998 and entry had been made in personal grievance register page no. 88, srl. No. 58 which is as under:-
" Interviewed Individual. He has got some pressing problems which appear genuine. Resignation from service accepted from 18 Aug. 1998 (AN) without any benefits".
4. Accordingly, discharged. Order was issued. His earlier moved application dated 19.10.2000 regarding re-instatement in the BSF which was dismissed on merits. It is prayed that keeping in view all the facts, the suit is not maintainable. All other facts were denied. Plaintiff/respondent filed replication refuting the averments made in the written statement and reasserted the facts mentioned in the plaint. On the RCA No. 77/11 4 Of 10 Union of India Vs Ex. Constable Chander Mohan basis of the pleadings. Following issues were framed by ld. Trial Court:
1. Whether suit is barred by Proviso to Section 34 of Specific Relief Act? OPD
2. Whether suit is barred u/s 41(h) of Specific Relief Act? OPD
3. Whether this Court has no territorial jurisdiction to try the present suit? OPD
4. Whether plaintiff is entitled to decree of declaration and mandatory injunction as prayed for? OPP
5. Relief.
The case was fixed for PE.
5. Plaintiff himself appeared in the witness box as PW1 wherein he admitted all the facts. He submitted that his absentee period was regularised but the same was not obeyed by the commandant. He also stated that he received the pay and allowances as per rules. He admitted that he has apprehended by the police and handedover to the 5th Battalion on 15.071998. Thereafter, he closed his evidence.
6. On behalf of the defendant,Sh. Ajit Singh, Assistant Commandant with 81 Battalion Border Security Force, appeared in the witness box as DW1 and supported the case of the defendant. During his cross examination nothing material came on record. He denied the suggestion that principal of natural justice were denied to the plaintiff. The affidavit of Mohan Singh was also filed but he was not examined. Thereafter defendant closed his evidence. Learned Trial Court after hearing both the parties passed the impugned order which is under challenge in present appeal.
RCA No. 77/11 5 Of 10 Union of India Vs Ex. Constable Chander Mohan
7. I have heard ld. counsel for the appellant, ld. counsel for the respondent and perused the record.
8. Ld. Counsel for the appellant submitted that ld. Trial Court after considering the entire evidence erred in coming to the conclusion that resignation submitted by the respondent was obtained under duress while he was in custody and quarter guard and the same was accepted contrary to the relevant rules. Ld. Counsel submitted that it is important to note here that on 17.08.1998 respondent was neither in the quarter guard nor under custody but the court came to the conclusion that the respondent submitted the resignation when he was kept under the quarter guard on 15.07.1998. The absent period of 102 days was regularised by the competent authority and he was taken on duty but the court did not appreciate the same. The court also found fault in accepting the resignation of the respondent. Ld. Counsel submitted that as respondent voluntarily tendered resignation from the service and his resignation was accepted as per the rule, therefore, the rule of CCS is not applicable as he has not completed 20 years of the service. There is also no specific procedure reasons for considering/acceptance of the resignation according to the Rule 19 of the BSF Rule.
" Resignation (1) The Central Government may, having regard to the special circumstances of any case, permit any officer of the Force to resign from the Force before the attainment of the age of retirement or before putting in such numbers of year of service as may be necessary under the rules to be eligible for retirement. Provided that while granting such permission the Central Government may:-
1. "Require the officer to refund to the Government such amount as would constitute the cost of training given to that officer or three months pay RCA No. 77/11 6 Of 10 Union of India Vs Ex. Constable Chander Mohan and allowances, whichever is higher, or provided further that an officer of the Force tendering resignation, for accepting a job under Central or State Governments or local bodies, after having been granted cadre clearance for the same or who has completed 10 years of servicer shall not be required to refund the sum as provided herein above.
2. The Central Government may accept the resignation under Sub-rule (1) with effect from such date as it may consider expedient.
3. The Central Government may refuse to permit an officer to resign;
(a) If any emergency has been declared in the country either due to internal disturbances or external aggression;or
(b) If considers it to be inexpedient so to do due to exigencies of service or in the interests of discipline of the Force; or
(c) If the officer has specifically undertaken to serve for a specified period and such period has not expired.
4. The provisions of this rule, shall apply to and in relation to Subordinate Officer and Enrolled Persons as they apply to and in rerlation to any officer of the Force and the powers vested in the Central Government under Sub Rule (1) and (2) shall be exercised in the case of a Subordinate Officer by a Deputy Inspector General and in the case of an Enrolled person by a Commandant."
10 Ld. Counsel submitted that court failed to appreciate that under BSF Rules, there is no such requirement that notice must be issued to the personnel before accepting his resignation and there is no illegality or any violation of rules in the acceptance of the resignation. Ld. Counsel submitted that keeping in view the position particularly when the respondent himself has resigned from the service,there was no reason for the court to pass the order for his re-instatement or to set aside the acceptance of resignation. It is prayed that the order of the learned Trial RCA No. 77/11 7 Of 10 Union of India Vs Ex. Constable Chander Mohan Court be set aside and the appeal be accepted.
11. Learned counsel for the respondent submitted that respondent was admittedly arrested from his village by the police and kept in the custody under quarter guard, he was tortured as has come in the evidence, even the order of the DIG, BSF, Shillong was not complied with by the commandant to release his dues and the wages which clearly shows that they were enimical to him. He was arrested from his village on 14.04.1998. He was kept in custody till 17.08.1998 i.e. for about four months. Thereafter, only after he signed the resignation letter he was released and sent to his village. Ld. Counsel submitted that respondent was mentally upset and he was taken to the hospital. Ld. Counsel submitted that keeping in view all these facts the ld. Trial Court had rightly passed order and prayed that appeal be dismissed and the order of the ld. Trial Court be upheld.
12. After hearing the arguments and going through the record, I found that there is no dispute so far as the fact of his joining the BSF is concerned and also his absence from the duty, his termination of the service and re-instatement which is accepted by the plaintiff during his cross examination. There is also no dispute about the fact that he left the unit after availing 25 days earned leave on account of death of his sister. This was so in December 1997 according to the defendant. Thereafter on 03.04.1998 he was taken to the Psychiatric Specialist for treatment but according to him he was asked by Sh. Dharmender Singh, Dy. Commandant to go home but he deserted the unit on 05.04.1998 without any information and thereafter he was apprehended from his village on 14.04.1998 and brought to the unit on 15.07.1998. There is no RCA No. 77/11 8 Of 10 Union of India Vs Ex. Constable Chander Mohan explanation as to where he remained during this period and why he did not repent in the unit. Though, he alleges that he was asked by Sh. Dharmender Singh to go home but no such suggestion was put to the witnesses that he did not desert the unit, but he was asked by the Dy. Commandant to go home. It is further important to note that immediately after he was brought to the unit as according to the documents and the orders he was handed over to Chhawla Camp in 25 Bn BSF and kept under their custody for 21 days. His leave was regularise which clearly shows on the part of the appellant that there was no ill-will against plaintiff/respondent but his leave was regularised and he was on his duty from thereafter. There is nothing on record even after 15.07.1998 that he was in custody or in quarter arrest. It was on 17.08.1998 that he resigned from the service on domestic grounds. It is important to note here that the authority even interviewed him and noted that the respondent had some pressing problem which appeared to be genuine and thereafter accepted the resignation. It was done on 18.08.1998 and thereafter he returned home with the constable. There was period of almost one month when his absent period was regularised and taken on roles and the date when he resigned. This time was sufficient for him to come out of impression of custody of police in which he was. Therefore, I do not find any merit in the submission that his signature on resignation were obtained under pressure. Even otherwise this all happened in August, 1998. The present suit was filed on n30.06.2001 i.e. Almost after three years. In between he gave notice under Section 80 CCP but that also after more than 2 ½ years of acceptance of his resignation. The onus was upon the plaintiff to show that he is coming to the court with clean hands. During arguments he was specifically asked as to why he did not take any action immediately thereafter as according to him his signatures on the resignation letter were RCA No. 77/11 9 Of 10 Union of India Vs Ex. Constable Chander Mohan obtained under duress but no explanation was coming forward. Even otherwise from the evidence on record there is nothing that his signatures were obtained under dueres particularly when it is clear from the evidence of the plaintiff itself that the custody of the plaintiff/respondent was handed over to the Battalion only on 15.07.1998 and on the same date his 102 days absence was regularised and he was taken on the roles. Under the circumstances, the conclusion arrived at by the learned Trial Court that the record shows that the signatures of the respondent/plaintiff were obtained under duress while he was in custody is not sustainable. Even the conduct of the appellant/respondent shows that earlier also he absented himself and his services were also terminated but the authorities took the lenient view and passed order of his re-instatement with all the benefits. Again after re-instgatement he absented and this time also tendered his resignation and after three years thereafter he woke up coming with the plea that his resignation was taken under dueress and pressure which cannot be believed under the facts and circumstance of the present case.
13. Keeping in view of the above discussion, I found myself unable to agree with the opinion of the learned Trial Court. The order of the ld. Trial Court is not sustainable, the same is set aside. Appeal is accepted. Parties are left to bear their own cost. Decree Sheet be prepared accordingly.
Copy of this order along with Trial Court record be sent back. File be consigned to record room.
Announced in the open court on this 22nd day of March, 2012.
VIRENDER KUMAR BANSAL ADDL. DISTRICT JUDGE:
CENTRAL-08, DELHI.
RCA No. 77/11 10 Of 10
Union of India Vs Ex. Constable Chander Mohan
22.03.2012.
Present: Ms. Jasmeet Kauar, Adv. for the appellant.
Sh. A.K. Nasir, Adv. for the respondent.
Vide separate order, the Aappeal U/O 41 and Section 96 r/w Section 151 CPC against the final judgment and decree dated 29.04.2011 preferred by the appellant is allowed. Parties are left to bear their own cost.
Copy of the order along with Trial Court record be sent back.
File be consigned to Record Rom after due compliance.
VIRENDER KUMAR BANSAL ADDL. DISTRICT JUDGE:
CENTRAL-08, DELHI.
RCA No. 77/11 11 Of 10