Judgment

SARKAR, J. : The respondent was employed as a mistry in a telephone workshop belonging to the appellant, the Union of India. There appears to have been a strike in the workshop and thereafter on July 9, 1949, for what reason it does not appear from the record, the respondent was put under detention under the Bombay Public Security Measures Act. On July 21, 1949, the manager of the workshop suspended the respondent from duty with effect from the date of his detention. The order of suspension stated that the respondent was not entitled to any subsistence allowance during the period of suspension. On March 29, 1950, the manager passed in order terminating the service of the respondent with effect from July 9, 1949, the date on which he was suspended. He was given one month s pay in lieu of notice. The respondent was released from detention on October 25, 1950, by an order made by the High Court at Bombay. He had been in detention from July 9, 1949, till October 25, 1950, during which period the orders suspending him and terminating his service were passed.

2. After his release, the respondent started proceedings under the Payment of wages Act for arrears of his dues from the appellant, as a result of which he obtained payment of subsistence allowance for the period during which he had been suspended.

3. The respondent had also made a representation to the manager for reinstatement after he had been released. This representation was rejected. He there upon filed a suit in the Bombay City Civil Court and out of this suit the present appeal arises. In that suit he contended that the orders of his suspension and termination of service were laid for various reasons but only two of them are relevant for the purpose of this appeal. He first said that the orders were in violation of Art. 311 of the Constitution as he had not been given proper opportunity to show cause why they should not be made. He also said that the order terminating his service violated Arts. 14 and 16 of the Constitution as he had been "arbitrarily picked up and sacked." He claimed that the orders should be declared void and illegal and also claimed a decree for Rs. 4,896/- on account of arrears of salary from March 30,1950, till the date of the suit.

4. The trial Court held that he was a temporary employed and the termination of his service being in terms of the contract of his employment, no question as to a violation of Art, 311 of the Constitution arose. It appears to have been conceded in the trial Court that if Art. 311 "is not made applicable to the case of the Plaintiff, Arts. 14 and16 cannot apply to the plaintiff s case." In this view of the matter the trail Court dismissed the suit, having rejected the other points raised by the respondent.

5. The respondent appealed to the High Court at Bombay. The High Court affirmed the findings of the trial Court that the respondent was a temporary employee and that there had been no violation of Art. 311, The High Court however held that "the Plaintiff s plea that he was arbitrarily picked out and sacked remained unanswered in the further Written Statement of the Defendant, and, therefore, the allegation must be taken to be admitted." The respondent s plea above referred to was added to the plaint by an amendment and hence the reference to the further written statement. The High Court gave an opportunity to the appellant to amend the written statement but the appellant did not avail itself of that opportunity. In the view that the appellant had admitted the allegation that the respondent had been arbitrarily picked out and sacked, the High Court held that Art.16 of the Constitution had been violated. The High Court hereupon allowed the appeal and made the declaration sought by the respondent and also passed a decree in his favour for Rs, 12,157/- on account of salary up to September 9, 1957. The Union has appealed from this judgment.

6. Two questions arise, First, as to Art. 311. It was said that even a temporary s