Lekh Raj Khurana Vs. Union of India
 INSC 72 (3 March 1971)
SIKRI, S.M. (CJ) MITTER, G.K.
REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 2111 1971 SCR (3) 908 1971
SCC (1) 780
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.
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
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,
 2 S.C.R. 671 and State of Mysore v. M. H. Bellary,  7 S.C.R. 471,
In the present case the order of discharge
has been passed by the ,appointing authority as required by rule 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.
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
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 showing
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 In charge,
Ammunition Depot, Kasubegu under t authority of Financial Regulations, India,
Part 1, Volume and not by the Governor General. It was pleaded, 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 Ministry 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 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
(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.
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 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)  2 S.C.R.671.
(2)  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
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
R.K.P.S. Appeal dismissed.