Judgment

GROVER, J.: - This appeal by certificate from a judgment of the Punjab High Court (Circuit Bench), Delhi arises out of a suit filed by Harishankar Khanna, who is now dead, for a declaration that his discharge from service by the officer Commanding Engineering Stores Depot (O. C. E. S. D.) Karachi dated July 15. 1946 was illegal, without jurisdiction and ineffective and that it should be declared that he was continuing in service. The suit was decreed by the trial Court principally on the ground that he had not been dismissed by the proper authority and; that the provisions of Section 240 of the Government of India Act, 1935, had been contravened. The appeal of the respondent to the Additional District Judge failed. The High Court, however, reversed the decision of the Courts below and dismissed the suit.

2. The case of the appellant as laid in the plaint was that he had joined the Central Provisions Office (C. P. O.) as a Clerk in December, 1941 and in March, 1945 he was absorbed in the office of the Engineer-in-chief, Army Headquarter as an Upper Division Clerk. In December, 1945 he was transferred to the office of the Officer Commanding Engineers Stores Depot, Karachi. In March, 1946 he was granted 15 days leave with permission to go to Delhi. During that period he fell ill and was obliged to take sick leave under medical advice. While he was ailing and confined to bed the O. C. E. S. D. Karachi summarily, illegally and against rules discharged him by means of a letter dated July 24, 1946 although his application for leave was supported by proper medical certificate. He made representations but was only given one month s pay in lieu of notice in the year, 1951. The main point raised in the plaint was that the order of discharge had been made by an authority that was different from the appointing authority. In the written statement it was admitted that Khanna had been granted 16 days leave from March 1946 to April 9, 1946. He subsequently applied for extension of leave from April 10. 1946 to June, 25, 1946. He was due back for duty on June 26, 1946 but on expiry of that leave also he neither reported back for duty nor submitted any application for further extension of leave. He was consequently discharged-from service with effect from July 15. 1946 in accordance with Article 229, Civil Service Regulations. It was claimed that under that regulation by which the civilians working in the Defence Establishment were governed no notice of discharge was necessary.

3. The main issue which required determination was whether the order of discharge or dismissal of Khanna was wrong, invalid and ultra vires. It was found that Section 240 (1) of the Government of India Act had not been complied with inasmuch as Khanna had been discharged from service by an authority subordinate to that by which he had been appointed and that he had also not been afforded a reasonable opportunity of showing cause against his discharge or removal in terms of Section 240 (3). The suit was held to be within time and a. decree was granted by the trial Court that the discharge of Khanna from service was void and inoperative and that he continued to be in service of the Union of India. In the appeal of the respondent the Additional District Judge felt that it was very likely that Khanna had sent an application for extension of leave for the period beyond June 25, 1946 and his application somehow got mislaid in the office of the Engineer-in-chief. As he had not been given any opportunity to show cause against his proposed dismissal the view of the trial Judge was upheld and the decree was confirmed.

4. When the matter was taken in appeal to the High Court it was heard along with other appeals including the companion appeal (C. A. 1719/67) of Lekh Raj Khurana the judgment in which has been delivered today. On the question of the applicability of Article 311 of the Constitution the High Court expressed the same view which has already been mentioned in the afore