Gujarat High Court
Mansangbhai Salubhai Chaudhari vs Union Of India & on 11 September, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/FA/967/1991 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 967 of 1991
==============================================================
MANSANGBHAI SALUBHAI CHAUDHARI....Appellant(s)
Versus
UNION OF INDIA & 1....Defendant(s)
==============================================================
Appearance:
MR MB GANDHI, ADVOCATE for the Appellant(s) No. 1
MR KARTIK V PANDYA, ADVOCATE for the Defendant(s) No. 1-2
==============================================================
CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 11/09/2015
ORAL ORDER
1. This appeal is filed under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, inter alia challenging the judgment and decree dated 30.07.1991 passed in Civil Suit No.2381 of 1984 by learned Judge, City Civil Court No.9, Ahmedabad.
2. Heard learned advocate Mr. M.B.Gandhi for the appellant and learned advocate Mr. Kartik V. Pandya for respondent No.1.
3. Learned advocate Mr. Gandhi for the appellant submitted that the appellant - original plaintiff has instituted a suit against the respondents - original defendants, inter alia stating that in response to notice issued for recruitment in the Border Security Force, the appellant and was selected for training. The appellant, thereafter Page 1 of 6 HC-NIC Page 1 of 6 Created On Thu Sep 17 01:10:42 IST 2015 C/FA/967/1991 ORDER received letter from Additional Deputy Director, Security Force, Gujarat, whereby he has been intimated about his selection as constable in Border Security Force. The appellant, therefore, reported as per the direction and he was sent for training to Indore. After completion of 7 months of the training period, he was served with an order of March, 1984 intimating him that he is discharged from service with effect from 01.04.1984 on the ground that he was overage by 1 year and 10 days. The said order was issued by respondent No.2. Learned advocate for the appellant submitted that during the public interview the appellant had produced the School Leaving Certificate in which the date of birth of the appellant was clearly mentioned and if in fact the appellant was overage as mentioned in the discharge order, the order of his selection should not have been issued. Mr. Gandhi further submitted that the aforesaid act of the respondent No.2 is against the principles of natural justice. He further contended that the dismissal order is given by the respondent No.2, who is below in rank than the appointing authority and that the order is violative of Article 311 of the Constitution of India. Mr. Gandhi further submitted that the appellant had, therefore, instituted a suit and prayed that the order of discharge be declared null and void, against the principles of natural justice, without jurisdiction and for direction calling Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Sep 17 01:10:42 IST 2015 C/FA/967/1991 ORDER upon the defendants to continue the plaintiff in service and for necessary consequential reliefs.
4. Mr. Gandhi would contend that the learned trial Court though found several aspects in favour of the appellant, ultimately erred in not passing the decree. He further submitted that the learned trial Court ought to have held that when the plaintiff - appellant was appointed, by a simple letter of discharge, the services of the plaintiff- appellant cannot be terminated. Mr.Gandhi further submitted that the learned trial Court committed an error in not considering the fact that at the time of recruitment all the certificates were produced and in spite of that the appellant was selected and was sent for training at Indore. Mr. Gandhi also contended that though the learned trial Court came to the conclusion that the authority, who had issued the discharge order is lower than the appointing authority, the learned trial Court did not give effect to the said order as illegal one.
5. On the other hand, learned advocate Mr. Kartik V. Pandya for the respondents submitted that the learned trial Court has rightly dismissed the suit instituted by the appellant. Learned advocate thereafter referred the contents of para 19 of the impugned judgment and submitted that as per stipulation No.3, approval by the Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu Sep 17 01:10:42 IST 2015 C/FA/967/1991 ORDER competent authority is necessary for all the 77 candidates including the 17 candidates, who are required condonation, whether they are over-age or under-age, and without approval they could not be enrolled. Learned advocate submitted that as per stipulation No.3, before sending the appellant for training, he has been briefed thoroughly that if his case for condonation is rejected by the competent authority, he will be discharged from service immediately and therefore, now, it does not lie in the mouth of the appellant being one of 17 such candidates, to contend that the discharge order is null and void. He, therefore, submitted that the learned trial Court has not committed any error, which requires any interference by this Court. This Court may, therefore, dismiss the appeal.
6. I have heard the learned advocates for the parties. I have also gone thorough the documents produced on record and the impugned judgment and decree passed by the learned trial Court.
7. From the record, it appears that the appellant was selected as Constable in Border Security Force and he was sent for training at Indore. During the training period, after about 7 months, respondent No.2 issued an order intimating him that he is discharged from service with effect from 01.04.1984 on the ground that he was overage. The appellant has, Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Sep 17 01:10:42 IST 2015 C/FA/967/1991 ORDER therefore, instituted a civil suit before the City Civil Court at Ahmedabad. The learned trial Court, after appreciating the evidence led by both the parties and after considering the arguments advanced by the learned advocates for the parties, dismissed the suit. Being aggrieved by and dissatisfied with the impugned judgment, the appellant - original plaintiff has preferred present appeal.
9. The learned trial Court, after referring Exh.24, has specifically observed in para 19 as under:
"....Exh.24 is the report given by BSTT Branch. It says that as per the approval given by DIG, BSF, Gujarat, on the note- sheets dated 27th June, 1983, call letters were issued to 100 selected candidates to report to this HQ on today for further proceeding to BSF CSWT, Indore for basic training.
Out of 100 candidates, 77 candidates including 17 candidates who are required condonation have reported to this HQ today. Thereafter the names of the candidates are given and the report for which condonation is to be made is mentioned. Stipulation No.3 is more important which steers everything. It reads as follows:-
"If approved all the 77 candidates including above 17 candidates required condonation may be sent to BSF, CSWT, Indore for basic training. Before dispatching them to CSWT, Indore, the 17 candidates who are required condonation Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu Sep 17 01:10:42 IST 2015 C/FA/967/1991 ORDER will be briefed thoroughly that if their cases for condonation are rejected by the competent authority, they will be discharged from service immediately."
10. Thus, it is clear from the above observations made by the learned trial Court that stipulation No.3 is very specific which provides that the 17 candidates who are required condonation will be briefed thoroughly that if their cases for condonation are rejected by the competent authority, they will be discharged from service immediately. Thus, the appellant had joined the training with clear understanding that if his case for condonation is rejected then he will be discharged from service immediately and therefore now the appellant cannot raise a dispute that the discharge order is without any authority or null and void. In this view of the matter, in the opinion of this Court, the learned trial Court has not committed any error in dismissing the suit, which requires any interference by this Court.
11. In view of the aforesaid discussion, the appeal stands dismissed.
(VIPUL M. PANCHOLI, J.) Jani Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Sep 17 01:10:42 IST 2015