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 section P Nayar for the respondent
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 section 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 COOOrdnan Officer Incharge 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 12021943 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 article 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 article 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 vs 911 Secretary of State1 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 article 311 of the Constitution stands concluded by two decisions of this court
In Jagatrai Mahinchand Ajwani vs Union of India2 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 article 3112 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 section P Bell vs Union of India 3
Both these decisions fully cover the case of the appellant so far as the applicability of article 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 section 2412 of the Government of India Act 1935 he was entitled to the protection of section 240 of that Act
Chapter I of Part 10 of that Act related to the Defence Services
According to sections 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 2401 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 AIR 1937 PC 31
3 C A 1918 of 1966 dt
8 3 68
14 L1100sup
CI72 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 s240 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 section 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 section 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 vs Ajodhya Prasad1 and State of Mysore vs M R Bellary1
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 SCR671
2 1964 7 SCR471
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
RKPS Appeal dismissed


Summary:
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 vs Union of India CA 1185 of 1965 dt 6 2 67 and section P Bahl vs Union of India CA 1918 of 1966 dt 8 3 68 followed
iiThe 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 vs Secretary of State AIR 1937 PC 31 The State of Uttar Pradesh  Others vs Ajodhya Prasad and State of Mysore vs M H Bellary   referred to
In the present case the order of discharge has been passed by the appointing authority as required by rule 5
iiiIn 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
ivAs 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