Ravinder Kumar vs Union Of India And Others on 20 October, 2009

RSA No.2135 of 2007                                                            1

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

                                 R.S.A. No. 2135 of 2007
                                 Date of Decision: October 20, 2009



Ravinder Kumar                                       ...........Appellant




                                 Versus




Union of India and others                            ..........Respondents



Coram:       Hon'ble Mrs. Justice Sabina

Present: Mr. Arun Abrol, Advocate for the appellant.
         Mr.S.K. Sharma, Advocate for the respondents


                                 **

Sabina, J.

Plaintiff-Ravinder Kumar filed a suit for declaration. The

said suit of the plaintiff was decreed by the Civil Judge (Junior Division)

Gurdaspur vide judgment and decree dated 22.11.2000. Aggrieved by the

same, the defendant filed an appeal and the same was allowed by the

Additional District Judge Gurdaspur vide judgment and decree dated

15.1.2007. Hence, the present appeal by the plaintiff.

The case of the parties, as noticed by the learned Additional

District Judge, in paras 2 to 4 of its judgment reads as under:-

” 2.The respondent/plaintiff (hereinafter referred to as respondent)

filed suit for declaring order bearing No.1430/STC-

K/DIS/96/2001 dated 13.2.1996 and the order dated 27.8.96, as
RSA No.2135 of 2007 2

illegal, null and void along with all services benefits, on the

averments that he was appointed in B.S.F. as constable on

permanent basis against permanent post. Since his appointment,

he has been discharging his duties efficiently and to the

satisfaction of his superiors. He was undergoing training under

the Commandant’s BSF Kashmir and while his training was about

to be completed, he was dismissed from service vide order dated

13.2.1996 along with two other constables. He preferred an

appeal against the said order, which was dismissed by the

appellate authority vide order dated 27.8.96, received by him at

Gurdaspur. These orders were impugned by the respondent on the

grounds interalia that the same are non speaking; that the orders

have been passed without conducting departmental enquiry; that

he was condemned unheard; that no show cause notice was served

upon him prior to passing order dated 13.2.1996. It was also

averred that the notice served upon the appellants/defendants

(herein after referred to as appellants) under Section 80 CPC did

not yield any result forcing the respondent to file the instant suit.

4. The appellants upon notice contested the suit and in their

written statement apart from raising preliminary objections with

regard to maintainability of the suit in the present form; territorial

jurisdiction of the court to decide the suit and no cause of action

having arisen to the respondent, on merits, admitted that

respondent was enrolled as constable in BSF on 10.2.1995.

However, remaining averments were denied. It was averred that

the respondent was enrolled on temporary basis and he had not
RSA No.2135 of 2007 3

been discharging his duties to the satisfaction of his superiors. It

was averred that the respondent did not complete his training, he

never qualified in FPET and other subjects in spite of

opportunities given to him. He failed to improve his performance.

The respondent was not found to become an efficient member of

the force and consequently, he was discharged from his service

vide order dated 13.2.1996. The appeal of the respondent was

also dismissed by the appellate authority vide order dated 27.8.96.

All the grounds on which the respondent has impugned the said

orders were denied and it was averred that the orders have been

passed as per rules.”

On the pleadings of the parties, the following issues were

framed by the trial Court:-

“1.Whether the plaintiffs is entitled to declaration as prayed for ?

OPP

2. Whether the suit of the plaintiff is not maintainable in the

present form as alleged?OPD

3. Whether the plaintiff has no cause of action to file the present

suit?OPD

3-A Whether this Court has got no territorial jurisdiction to try the

suit?OPD

4. Relief.”

Learned counsel for the appellant has submitted that the

appellant had been discharged from service after one year of his service

without following the due procedure. As per the terms and conditions of the

appointment letter (Exhibit D5), appellant could be discharged during the
RSA No.2135 of 2007 4

first year of service in case he was not likely to become an efficient member

of the force.

Learned counsel for the respondents, on the other hand, has

submitted that as per the notification dated 29.5.1990, the appellant could be

discharged from service in first two years of his service in case he was not

likely to prove an efficient member of the force. Due to inadvertence in the

appointment letter one year of service had been mentioned in clause (4) of

part II, whereas, in view of the notification dated 29.5.1990, it should have

been mentioned as two years.

After hearing the learned counsel for the parties, I am of the

opinion that the instant appeal deserves to be dismissed

Plaintiff, admittedly, was appointed as a Constable on

10.2.1995. The order whereby the appellant was discharged (Annexure P1)

was passed on 13.2.1996. Although in the appointment letter in clause (4)

of part II , it has been mentioned that the appellant could be discharged in

first year of his service in case he was not likely to become an efficient

member of the force,however, as per notification dated 29.5.1990, the said

period had been extended to two years. In these circumstances, the learned

Additional District Judge rightly held that, apparently, due to inadvertence

in the appointment letter, it has been mentioned that the appellant could be

discharged within one year of service instead of two year of his service. A

perusal of the impugned order whereby the appellant was discharged reveals

that the appellant was dismissed from service with effect from 13.02.1996

as he was not likely to become good member of the force Vide order

(Exhibit P2) words `dismissed from service’ were ordered to be treated as

`discharged from service’. In these circumstances, the leaned Additional
RSA No.2135 of 2007 5

District Judge rightly held that the impugned order had been passed by the

defendants as per rules.

No substantial question of law arises in this regular

second appeal which would warrant interference by this Court,

Accordingly, this appeal is dismissed.

(Sabina)
Judge
October 20, 2009

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