http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: LEKH RAJ KHURANA,

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT03/03/1971

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SIKRI, S.M. (CJ) MITTER, G.K. HEGDE, K.S. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 2111            1971 SCR  (3) 908  1971 SCC  (1) 780

ACT: Constitution of India, 1950-Article 311-Civilian employee of Defence Service-If entitled to protection of Article. Statuory  Rules-Breach of-justiciability Natural  Justice-If can be invoked under general law of master and servant.

HEADNOTE: The  appellant was appointed in 1942 as  Labour  Supervisor, Army Ordnance Corps.  In 1951, pending inquiry into  certain charges against him his service was terminated by giving him one month’s notice under rule 5 of the Civilians in  Defence Services (Temporary Service) Rules, 1949.  He challenged the legality of the order of termination on the grounds that  it had  been passed by an officer subordinate to the  authority who appointed him and that no adequate opportunity had  been afforded to him of defending himself.  He also alleged  that the  Order was vitiated by mala fides.  In the  appellant’s appeal against the dismissal of his suit the High Court held that Article 311 of the Constitution was inapplicable,  that breach of the Rules did not give an aggrieved party a right to  go to the Court and that the Order was not  vitiated  by mala fides.-Dismissing the appeal to this Court. HELD : The appellant, holding a post connected with  Defence cannot claim  the  protection  of  Article  311  of   the Constitution. Jugatrai  Mahinchand Ajwani v. Union of India C.A.  1185  of 1965  dt. 6-2-67 and S. P. Bahl v. Union of India C.A.  1918 of 1966 dt. 8-3-68: followed. (ii)The  view  of  the High Court that  the  rules  are  not justifiable cannot be sustained.  Breach of statutory  rules in  relation  to conditions ,of service  would  entitle  the aggrieved  government servant to have recourse to the  court for redress. R.   Venkataro  v. Secretary of State, A.I.R. 1937 P.C.  31, The  State  ,of Uttar Pradesh & Others  v.  Ajodhya  Prasad, [1961]  2 S.C.R. 671 and State of Mysore v. M.  H.  Bellary, [1964] 7 S.C.R. 471, referred to. In  the present case the order of discharge has been  passed by the ,appointing authority as required by rule 5.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

(iii)In  the  appeal before this Court the  finding  on  the point  of  mala  fides must be accepted  as  final  and  the appellant cannot be allowed to re-agitate that matters. (iv)As  regards  the applicability of  the  rule-of  natural justice  it has not been shown how under the general law  of master  and  servant,  in  the  absence  of  any  protection conferred by Article 311 of the Constitution such a rule can be invoked.                 909

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 17-19 or 67. Appeal from the judgment and decree dated May 23, 1961 of  e Punjab High Court, Circuit Bench at Delhi in Regular  Second appeal No. 43-D of 1956. N.   N. Keswani, for the appellant. V.   A. Seyid Muhammad and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Grover,  L This is an appeal by certificate from a  judgment and  decree of the Punjab High Court (Circuit Bench,  Delhi) by  which the suit filed by the appellant for a  declaration that the order dated May 26, 1951 directing his removal from service  was  wrongful, illegal and void and that  he  still continued  to  be  in  the  service  of  the  respondent  as Supervisor, Army Ordnance Corps. According to the allegations in the plaint the appellant was appointed   by   the  Governor-General  in  July   1942   as Supervisor, Army Ordnance Corps which, according to him, was a  civil  post under the Crown in India.  In the  months  of September  and October, 1950 the appellant was  served  with chargesheets   by  the  Ordnance  Officer,   Administration, Shakurbasti,  Delhi State, where he was posted at that  time calling  upon  him to submit his defence to the  charges  of making  serious  false  allegations  against  his   superior officer Maj.  H. S. Dhillon.  The appellant asked for  grant of  time  for submitting his defence and  be  also  demanded copies  of certain documents etc to prove his case.  On  May 26,  1951 while this inquiry was pending he was served  with an  order by the Ordnance Officer,  Administration,  Shakur- basti, Delhi which was as follows--               "Under  instructions received from Army  Head-               quarters  you  are hereby  given  one  month’s               notice  of  discharge with  immediate  effect,               services  being  no  longer  required.    Your               services  will  be terminated  on  25th  June,               1951". The  appellant  challenged the legality of the  above  order principally  on  the ground that it had been  passed  by  an officer  who was subordinate to the authority who  appointed him  and that no inquiry "as required by  Fundamental  Rules and  under the provisions of the Constitution of India"  had been held in the matter of allegations against him and  that no  adequate  opportunity  had  been  afforded  to  him   of defending himself or of show- 910 ing  cause against the action proposed to be taken.  He  all raised the question of the order being vitiated by mala  fid In the written statement filed by the Union of India it  was stat  that  the  appellant had been appointed  as  a  Labour Supervisor   he   Extra  Temporary  Establishment   by   the COO/Ordnan  Officer  Incharge,  Ammunition  Depot,  Kasubegu under  t authority of Financial Regulations, India, Part  1, Volume  and  not by the Governor General.  It  was  pleaded,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

inter  all  that it was decided by the Government  of  India vide  Army  Headquarter’s  letter dated  May,  25,  1951  to terminate  the  services  by  serving  one  month’s  notice. Consequently  a  notice of discharge from  the  service  was given  to him by the Ordnance Officer,  Administration,  who was competent to serve the notice on him under the authority of  the  Army Order No. 1202/1943 read in  conjunction  with ’Financial Regulations referred to before. The  sole  material issue which was framed was  whether  the order dated May 26, 1951 removing the appellant from service was illegal, wrong, void, ultra vires and inoperative.   The trial  judge  held  that Art. 311 of  the  Constitution  was applicable to the case of the appellant and that his removal had not been ordered by the appointing authority.  The  suit was  decreed.  respondent  preferred  an  appeal  which  was decided  by the Additional District Judge, Delhi.   It  :Was held  by  him  that  Art. 311  was  not  applicable  to  the appellant  as  he  held  a  post  connected  with   defence. According to the learned judge the appellant’s services were terminated  under  Rule  5  of  the  Civilians  in   Defence (Temporary  Services)  Rules, 1949, hereinafter  called  the ’Rules’.   It  was  found that  the  order  terminating  the services  had  been  passed by the  proper  authority.   The appeal  was  allowed  and  the  suit  was  dismissed.    The appellant  appealed to the High Court which  was  dismissed. His  appeal  was heard along with certain other  appeals  in which  similar points were involved.  It was found that  the salary  of the appellant was paid out of the  estimates  of the Mnistry of Defence and he was intimately connected  with the  defence  of  the country not as a combatant  but  as  a person holding a post the object of which was exclusively to serve the Military Department.  In the opinion of the  High’ Court  Articles 309 and 310 were applicable to the  case  of the  appellant  but Article 311 was  inapplicable.   On  the question   whether  the  services  of  the  appellant   were terminated  without complying with the rules the High  Court expressed  the  view that the breach of such rules  did  not give the aggrieved party a right to go to the court Reliance in  that connection was placed on the decision of the  Privy Council in R. Venkatarao v.               911 Secretary of State(1) and certain other cases in which  that decision  was followed.  In the case of the  appellant  the only  other point which appears to have appear to have  been argued on his behalf and which was decided by the High Court related to the allegation of mala fides.  The decision  went against him on that, point. The question whether the case of the appellant was  governed by  Art.  311 of the Constitution stands  concluded  by  two decisions  of this court.  In Jagatrai Mahinchand Ajwani  v. Union  of  India(2)  it was held that  an  Engineer  in  the Military  Service  who  was drawing these  salary  from  the Defence  Estimates  could not claim the protection  of  Art. 311(2) of the Constitution.  In that case also the appellant was  found to have held a post connected with Defence as  in the present case.  This decision was followed in S. P.  Bell v. Union of India (3).  Both these decisions fully cover the case of the appellant so far as the applicability of Art.  3 1 1 is concerned. Learned counsel for the appellant sought to argue that since the  appellant  was admittedly governed by the  rules  which framed under s. 241(2) ’of the Government of India Act  1935 he  was  entitled to the protection of s. 240 of  that  Act. Chapter  I  of Part 10 of that Act related  to  the  Defence Services.   According  to  ss. 239, 235, 236  and  237  were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

applicable to persons who not being members of His  Majest’s Forces  held or had held posts in India connected  with  the equipment  or  administration of those forces  or  otherwise connected  with  Defence  as they  applied  in  relation  to persons  who  were  or had been  members  of  those  forces. Section  240,  to  the  extent it is  material  was  in  the following terms:-                     "240(1) Except as expressly provided  by               this  Act, every person who is a member  of  a               civil service of the Crown in India, or  holds               any civil post under the Crown in India, holds               office during His Majesty’s pleasure.               (2)   No  such’ person as aforesaid  shall  be               dismissed  from the service of His Majesty  by               any authority subordinate to that by which  he               was appointed.               (3)   No  such  person as aforesaid  shall  be               dismissed or reduced in rank until he has been               given  a  reason able opportunity  or  showing               cause against the action proposed to be  taken               in regard to him :               (1)   A.I.R. (1937) P.C. 31.               (3)   C, A 1918 of 1966 dt. 8-3-68.               14-L1100sup.CI/72               (2) C. A. 1185 of 1965 dt. 6-2-67.               912               Provided................ Section 241  provided               for recruitment and conditions of service. On  behalf of the appellant it was contended that since  his conditions of service were governed by the rules which  were framed under the above section, s.240 was clearly applicable and his services could not have been terminated in terms  of subs.  (2) of that section by any authority  subordinate  to that by which he was appointed nor could he be dismissed  or reduced  in  rank  until  he had  been  given  a  reasonable opportunity of showing cause against the action proposed  to be taken in regard to him.  At no stage of the proceedings in  the courts below the appellant relied on s. 240  of  the Government of India Act and rightly so because the order  of his  discharge or termination of service was made after  the Constitution  had  come into force.  It was  apparently  for that reason. that protection was sought from Art 311 and not s.  240  of  the Government of India Act 1935.   We  see  no reason or justification in the present case for  determining whether a person holding a civilian post which is  connected with  the  defence  and  for which he  is  paid  salary  and emoluments  from the Defence Estimates would be governed  by the provisions of section 240 of the Government of India Act if  the  provisions of that Act were not applicable  to  the case of such a servant. The  next  question  is  whether rule 5  of  the  Rules  was applique  able  and whether the appellant  could  claim  the benefit  of  that rule.  It provided, inter-alia,  that  the service  of  a temporary government servant who  is  not  in quasi-permanent  service shall be liable to  termination  at any  time  by  notice  in  writing  given  either  by  the", government  servant  to the appointing authority or  by  the appointing authority to the government servant.  The view of the High Court that the rules were not justifiable cannot be sustained   as  the  decision  of  the  Privy   Council   in Venkatarao’s case (supra) and the other cases following that view have not been accepted as laying down the law correctly by  this  court.   It has been held that  the  breach  of  a statutory  rule  in relation to the  conditions  of  service would entitle the government servant to have recourse to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

court for redress; vide The State of Uttar Pradesh &  Others v.   Ajodhya  Prasad(1)  and  State  of  Mysore  v.  M.   R. Bellary(1).   Now Exhibit P. 3 which is a letter  dated  May 26,  1951  and which was produced by the  appellant  himself shows  that one months notice of discharge was given by  the ordnance   Officer,   Administration,   under   instructions received  from  the Army Headquarters.  A  copy  of  another letter Exht.  P-2 dated May 27, 1951 was produced  according to which it had been decided by the Government (1) [1951] 2 S.C.R.671. (2) [1964] 7 S.C.R.471.                   913 of India that the services of the appellant be terminated by giving  him one month’s notice.  It is true that the  origin of  that  letter  was  not produced  although  it  had  been summoned  by  the appellant It is at least clear  that  the. Ordnance  Officer, Administration, had served the notice  of discharge under instructions from the Army Headquarters.  In this  view  of  the  matter there is  no  substance  in  the contention raised on behalf of the appellant that the  order of discharge had not been made by the appointing  authority. At any rate before the High Court there was no challenge  to the finding of the learned District Judge on the point and a question  of fact cannot be allowed to be reopened  at  this stage.   The learned counsel for the appellant attempted  to reopen  the finding on the question of mala fides  and  also invoked  the  rule  of  natural Justice in  so  far  as  the appellant  had not been afforded any opportunity of  showing cause against his discharge or termination of services.   In the  appeal  before this Court the finding on the  point  of mala  fides  must be accepted as final  and  the  appellant cannot be allowed to reagitate that matter.  As regards  the applicability of the rule of natural justice it has not been shown to us how under the general law of master and servant, in the absence of any protection conferred by Article 311 of the Constitution such a rule can be invoked. The appeal fails and it is dismissed but in view of the cir- cumstances  we leave the parties to bear their own costs  in this Court. R.K.P.S.          Appeal dismissed. 914