A person who is absent from duty without leave for a period of 30 days and who is subsequently declared a deserter can be dismissed or removed from service by the Director General or Inspector General of the Border Security Force.

N.K.Kapoor, J.

1. This is defendants regular second appeal.

2. The plaintiff filed a suiL for declaration to the effect thaL he is an employee of the Border Security Force and hence is entitled to join service as well as to pay, powers and privileges of his service and the order of termination alleged lo have been passed by the authority is illegal.

3. Briefly put, the plaintiff was selected as a Head Constable who joined his duties on 30.9.1975. On 19.4.1982 he proceeded on sanctioned leave for 90 days. According to the plaintiff, he could not join the Battalion as he had no knowledge of its present location and so had been writing various letters to various authorities in the Border Security Force to know about the exact location of the Battalion so that he could rejoin but he did not receive" any reply. It is on August 20,1984 that he filed an application seeking permission to rejoin the Border Security Force to which he received reply dated 12.11.1984 that he cannot now be permitted to join ssrvicc as his services stand terminated. Hence, the present suit.

4. The defendants in their written statement stated that the plaintiff proceeded on leave on 19.4.1982 for 90 days only and thereafter abstained and only expressed his desire to join vide his application dated 20.8.1984 i.e. almost after a gap of two years. Since he did not join, his services were terminated vide order dated 13.5.1983. In fact, as per letter dated 28.7.1982 he was informed that his leave has expired and so he should resume duty forthwith failing which legal action will be taken. No reply was received by the defendant and ultimately he was declared a deserter and so his name was struck off w.c.f. 19.7.1982.

5. On the pleadings of the parties, following issues were framed ;-

1. Whether the Court has jurisdiction to try the suit. OPP

2. Whether a legal and valid notice was served ? OPP

3. Whether the suit is maintainable ? OPP

4. Whether the plaintiff is entitled to declaration prayed for ? OPD

5. Whether the termination is legal and binding ? OPD

6. Relief.

6. The trial Court decided issues No. 1, 2 and 3 in favour of the plaintiff and issues No.4 and 5 against Ui£ defendants and so decreed the suit as prayed lor.

7. The mailer was again examined by the lower appellate Court which loo found no merit in the same and so dismissed the appeal as well.

8. With a view to seek reversal of the judgment and decree of the Courts below, learned counsel for the appellants has once again urged lhat the Courts below have, in fact, erred in law in not properly perusing the relevant provisions of the Act and the Uules which unmistakenly prove it a case of desertion by the plaintiff Lading to his termination by passing a valid order by the competent authority. According to ihe counsel, the proceedings were conducted in terms of Section 62 of the Border Security Force Act, 1%8 (for short the Act) and Rule 177 of the Border Security Foice Rules (for short the Rules) and so the impugned judgment deserves to be .-.et jside. Elaborating, the counsel made reference to Section 11, 62 of the Act and Rule 177 of the Rules. According to the counsel, as per Section 11 of ihe Act, the Director General or the laspector General can dismiss, or remove from service or reduce to a lower grade, rank any person subject to this Act other lhan an officer. As per Section 62 of the Act, an enquiry can be held into absence without leave i.e. in case a person absents from duty without due authority for a period of $0 days a Court of Enquiry shall be appointed which would examine the matter and in case it comes to the conclusion that the person has remained absent it shall record it so. Vide Section 62(2) of the Act if su«-h a person is declared to be absent and who does not afterwards surrenders or is not apprehended, he is deemed to be a deserter. Once a person is declared to be a deserter, he could be dismissed or removed from service in terms of Rule 177 of the Rules and so the terminat