# Union of India & others v. Indrajit Tewari

- **Citation:** (2012) 2 ILRA 523
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-18
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-others-v-indrajit-tewari-42296
- **Pages:** 9

## Headnote

Constitution of India, Article 311 (2)-
Dismissal
order-member
of
Border
Security
Force-suit
for
declaration
seeking
dismissal
as
nullity-as
no
opportunity of hearing as provided in
Article 311 (2) given that no charge
sheet-no inquiry conducted-Trail Court
Decreed the suit-1st Appellate Court
dismissed suit as protection of Article
311 (1) not available-Second Appeal
partly allowed-as plaintiff/Respondents
not holding Civil Post-no question of
protection of Article 311 (2)-remanded
back before Appellate Court to adjudge
the validity of dismissal order under BSF
rule.

Held: Para 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.
Case law discussed:
(1981) 2 SCC 103 (Paragraph no. 6); 1996 AIR
SC 2881 (paragraph No. 5); 1995 Supp (4)
SCC 286(paragraph No. 59); 1981 (3) SLR
page 686; AIR 1971 SC 2111; (1996) 7 SCC
546; (1979) 2 SCC 463; 1971 Supreme Court
2111

## Text

2 All] Union of India & others V. Indrajit Tewari
523

17. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

Second Appeal No. - 193 of 2005

Union of India & others
...Appellants
Versus
Indrajit Tewari

 ...Respondents

Counsel for the Appellants
Sri U.N. Sharma
C.S.C.
Sri S.K. Rai

Counsel for the Respondents:
Sri I. N. Singh
Sri Ajai Yadav
Sri Raj Nath Pandey

Constitution of India, Article 311 (2)-
Dismissal
order-member
of
Border
Security
Force-suit
for
declaration
seeking
dismissal
as
nullity-as
no
opportunity of hearing as provided in
Article 311 (2) given that no charge
sheet-no inquiry conducted-Trail Court
Decreed the suit-1st Appellate Court
dismissed suit as protection of Article
311 (1) not available-Second Appeal
partly allowed-as plaintiff/Respondents
not holding Civil Post-no question of
protection of Article 311 (2)-remanded
back before Appellate Court to adjudge
the validity of dismissal order under BSF
rule.

Held: Para 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.
Case law discussed:
(1981) 2 SCC 103 (Paragraph no. 6); 1996 AIR
SC 2881 (paragraph No. 5); 1995 Supp (4)
SCC 286(paragraph No. 59); 1981 (3) SLR
page 686; AIR 1971 SC 2111; (1996) 7 SCC
546; (1979) 2 SCC 463; 1971 Supreme Court
2111

(Delivered by Hon'ble Manoj Misra, J.)

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,
524 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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.
2 All] Union of India & others V. Indrajit Tewari
525

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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i{k viuk okn O;; Lo;a ogu djsxsA

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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 a0.00"n 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 ?"
526 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

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
2 All] Union of India & others V. Indrajit Tewari
527
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 defendantappellant
and
against
the
plaintiffrespondent.

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
528 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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 DirectorGeneral 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.

(4)-(5) * * *

(6) The person concerned shall within
seven days from the receipt of information
furnished to him under sub-rule (3) inform,
in writing, the Director-General :

(a) his acceptance or denial of the
allegations;
2 All] Union of India & others V. Indrajit Tewari
529

(b) any material or evidence he
wishes to be considered in his defence;

(c) names of witnesses whom he
wishes to cross examine; and

(d) names of witnesses whom he
wishes to examine in his defence.

(7) Where the person concerned has
expressed a wish to cross-examine any
witness or to produce witnesses in defence,
the Director General shall appoint an
enquiry officer who shall be an officer
superior to the person against whom it is
proposed to take action and had not taken
any part previously in the investigation
into the matter."

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
530 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
(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,
underofficers 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
2 All] Chaudhary V. Smt. Prabhawati
531
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.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

SECOND APPEAL No. - 500 of 2012

Chaudhary

 ...Petitioner
Versus
Smt. Prabhawati

 ...Respondent

Counsel for the Petitioner
Sri Rajesh Kumar Chitragupt
Sri Siddhartha Srivastava

Counsel for the Respondent:
Sri Rakesh Kr. Tripathi
Sri Sharad Chandra Singh

Code of Civil Procedure-Section 100Second Appeal-cancellation of gift deeddismissed by Courts below-questioned
on ground in gift deed valuation of
property shown Rs. 40,000/-hence a sale
transaction-that the donor even after
gift remained in possession-concurrent
finding of fact recorded by Court belowmere showing valuation of property not
sale transaction-gift deed acted uponname of donor mutated in revenue
record-continuation of possession having
relation of father-daughter-permissible
in eye of law-no substantial question of
law involve-appeal dismissed.

Held: Para 10 and 15

So far as the first point is concerned, I
have perused the gift-deed, which has
been brought on record by means of an
affidavit
in
support
of
the
stay
application. From a perusal of the