JUDGMENT

Nanavati, J.-The respondent, a constable in the BSF, filed a suit for declaration that the order of his dismissal from service was illegal and void and for a mandatory injunction directing the appellants to take him back in service. The suit was partly decreed. The declaration as prayed for was granted but mandatory injunction was refused. Both the parties filed appeals against the said judgment. The appeal filed by the respondent was allowed and that of the appellant was dismissed. The appellant then filed a second appeal in the Delhi High Court but that was also dismissed. The appellant has therefore filed this appeal after obtaining special leave.

2. The relevant facts are that the respondent was enlisted as a constable in the BSF. On 21.12.83 he was found absent in the Coy Roll Call. He was also not found in the lines. He remained absent thereafter also. So on 21.1.1984, a notice was given to him to report for duty forthwith but he did not turn up. One more notice was given to him but there was no response from him. Thereafter, an enquiry was ordered under Section 62 of the BSF Act. Ultimately he was deemed to be a deserter. On 20.4.1984 because of his continuous absence