JUDGMENT

RAY, J.:— Special leave granted. Heard of both the parties.

2. This appeal on special leave is against the judgment and decree passed by the Gauhati High Court on July 15, 1987 in Second Appeal No. 22 of 1981 reversing the judgment and decree dated July 24, 1981 made by the additional District Judge, West Tripura District, Agartala setting aside the judgment and decree passed by the Munsiff, Sadar, Tripura in Title Suit No. 33 of 1973 dismissing the Suit without costs.

3. The plaintiff-appellant was enrolled as a Constable No. 66922189 under 92 Bn, BSF in Tripura and he was serving as such since 1966. He is alleged to have been confirmed in the said post while so posted to B.O.P. at Ajgar Rahamanpur being a member of the 6th platoon under B, Company Commandar Radhanagar. In 1971, he was granted leave from 25-10-71 to 30-10-1971 on account of the death of his father. As the Sradh ceremony could not be performed within the aforesaid time and he was suffering from serious illness he made an application requesting for extension of leave supported by a medical certificate. On December 12, 1971 the appellant received a communication from the Commandant stating that as he was absent without leave from 31-10-1971 so he (the Commandant) was of the opinion that because of this absence without leave for a long period his further retention in service was undesirable. He proposed to dismiss him from service. The appellant was asked to submit his explanation against the imposition of this penalty before December 25, 1971. The appellant sent a telegram on December 21, 1971 but without any redress. On January 5, 1972 he received an order from the Commandant, 92 Bn. BSF informing him that he had been dismissed from service. On January 10, 1972 the appellant again prayed for permitting him to join his service but he was not allowed to do so. The appellant preferred an appeal to the Inspector General, BSF (Police), Government of Tripura on February 1, 1972 which was received by him on February 3, 1972. No relief was granted to him.

4. The appellant as plaintiff after serving a notice under S. 80 of the Code of Civil Procedure and as no redress was given to him, filed Title Suit No. 33 of 1973 in the Court of Munsiff, Sadar, Tripura for a declaration that the order of dismissal from service was illegal and he was still in service.

5. The defendants-respondents contested the suit and pleaded that the plaintiff was absent form duty from 31-10-1971 without any leave at a critical time when India was at war with Pakistan. The Commandant, 92 Battalion, BSF by notice dated December 15, 1971 intimated him that his retention in service was undesirable because of his absence for a long period and as such it was proposed to dismiss him from service. He was given opportunity to urge anything in his defence but he did not avail of it by sending any reply. He was therefore, dismissed from service by the Commandant by order dated January 5, 1972 in accordance with the provisions of Border Security Force Act, 1968 and the Rules framed thereunder.

6. The Munsiff held that the plaintiff was given reasonable opportunity before the Commandant dismissed him from service. The suit was, therefore, dismissed.

7. Against the said judgment and decree the plaintiff filed an appeal which was registered as Title Appeal No. 7 of 1979 in the Court of Additional District Judge, West Tripura District Agartala. The said appeal was allowed and the suit was decreed. It was held that the impugned order of dismissal from service was illegal and bad as the same was not made by Security Force Court and no such Court was constituted. The order passed by Commandant under S. 11(2) of the Act read with Rule 177 of the Rules of 1969 cannot be upheld. It was also held that the impugned order was bad as it was contrary to the constitutional mandate embodied in Art. 311 of the Constitution of India as no opportunity of hearing was given and the procedural safeguards as contained in Chapter