Case: Lekh Raj Khurana, Vs. Union Of India

D/- 8-3-1968 (SC) ) Both these decisions fully cover the case of the appellant so far as the applicability of Art. 311 is concerned. 5. Learned counsel for the appellant sought to argue that since the appellant was admittedly governed by the rules which were trained 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 S. 238, Ss. 235, 236 and 237 were applicable to persons who not being members of His Majestys 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 ts 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 Majestys 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 reasonable opportunity or showing cause against the action proposed to be taken in regard to him. Provided. . . . . . . . " Section 241 provided for recruitment and conditions of service. 6. 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 dearly applicable and his services could not have been terminated in terms of sub-sec. (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. 7. The next question is whether rule 5 of the Rules was applicable 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 justiciable cannot be sustained as the decision of the Privy Council in Venkataraos case, AIR 1937 PC 31 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 aggrieved government servant to have recourse to the court for redress; vide State of Uttar Pradesh v. Ajodhta Prasad, (1961) 2 SCR 679 = (AIR 1961 SC 751 ) and State of Mysore v. M. H. Bellary, (1964) 7 SCR 471 = (AIR 1965 SC 868 ). 8. Now Exhibit P. 3 which is a letter dated May 26, 1951 and which was produced by the appellant himself shows the 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 of India that the services of the appellant be terminated by giving him one months notice. It is true that the original 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. 9.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 servantNow Exhibit P. 3 which is a letter dated May 26, 1951 and which was produced by the appellant himself shows the 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 of India that the services of the appellant be terminated by giving him one months notice. It is true that the original 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.