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1967 Supreme(SC) 37
Supreme Court Of India
J. M. AJWANI
Versus
UNION OF INDIA
Decided On : February 6, 1967
Art. 311 of the Constitution does not apply to members of the defence service or services connected with defence, and their dismissal from service is governed by the relevant rules and regulations framed under Art. 309 of the Constitution.
Headnote:
MILITARY ENGINEER SERVICE - DISMISSAL FROM SERVICE - APPLICABILITY OF ART. 311 OF THE CONSTITUTION - POST CONNECTED WITH DEFENCE - ARMY INSTRUCTIONS NO. 212 - COMPLIANCE - RULES OF NATURAL JUSTICE - VIOLATION - JUDICIAL REVIEW.
Fact of the Case:
Appellant, employed as an Engineer in the Military Engineer Service, was dismissed from service after an inquiry held under Army Instruction No. 212. He challenged the dismissal, claiming protection under Art. 311 of the Constitution and alleging non-compliance with Army Instructions and violation of natural justice.
Finding of the Court:
1. Art. 311 of the Constitution, providing for protection against dismissal from service without an inquiry, applies only to members of civil services, all-India services, and persons holding civil posts under the Union, and not to members of the defence service or services connected with defence. 2. Appellant's post in the Military Engineer Service was a post connected with defence, and therefore, Art. 311 did not apply to his case. 3. Army Instructions No. 212 prescribed the conditions of service for Military Engineers, and the requirements of those Instructions were substantially complied with in the inquiry leading to appellant's dismissal. 4. Appellant's admissions of guilt made during an inquiry against another officer were not inadmissible in the departmental proceeding against him, as the prohibition under Army Rule 158-L applied only to inquiries and trials under the Army Act and not to departmental inquiries. 5. The inquiry, though not strictly in accordance with the rules, was not inconsistent with the rules of natural justice, as appellant never denied the truth of the statements attributed to him, which established the case against him.
Issues: 1. Whether Art. 311 of the Constitution applied to appellant's dismissal from service. 2. Whether Army Instructions No. 212 were complied with in the inquiry. 3. Whether there was a violation of the rules of natural justice in the inquiry.
Ratio Decidendi: 1. Art. 311 of the Constitution applies only to members of civil services, all-India services, and persons holding civil posts under the Union, and not to members of the defence service or services connected with defence. 2. Appellant's post in the Military Engineer Service was a post connected with defence, as it was auxiliary to and directly related to the tasks performable by the defence forces. 3. Army Instructions No. 212 prescribed the conditions of service for Military Engineers, and the requirements of those Instructions were substantially complied with in the inquiry leading to appellant's dismissal. 4. Appellant's admissions of guilt made during an inquiry against another officer were not inadmissible in the departmental proceeding against him, as the prohibition under Army Rule 158-L applied only to inquiries and trials under the Army Act and not to departmental inquiries. 5. The inquiry, though not strictly in accordance with the rules, was not inconsistent with the rules of natural justice, as appellant never denied the truth of the statements attributed to him, which established the case against him.
Final Decision: Appeal dismissed.
Judgment
J. G. SHAH AND J. M., J.
( 1 ) - Appellant in this appeal-joined the Military Engineer Service on 2/07/1941 and in 1947 he was posted at Dehu Road as Superintendent B/r Grade I in the office of the Chief Engineer, Southern Command, Poona. At a court of Inquiry set up to investigate certain charges against one Major S. R. M. Naidu of the Dehu Road Military Establishment the appellant was examined as a witness and in the course of his statement the appellant admitted that he had committed certain gross irregularities and defalcations of public funds. On August 16, 19;0 commander Works Engineer, Poona, served a charge sheet upon the appellant requiring him to submit his defence to the following two charges :-"1. DISHONESTY:- (a) Inlet to defraud-in that he ordered his subordinate Mukand Lal. Superintendent Grade II to fill up falsely muster roll for the period June 2 to June 18, 1949 with names of 30 laborers whereas he knew that only 6 had actually been employed and falsely initialed the same on June 3, 9 and 14, 1949 knowing the said documents to be false. (B) Dishonestly misappropriating the property of government - in that he at Dehu Road dishontstly misappropriated 2600 cubic ft. of stores - the property of the government. 2. FRAUD :- In that he at Dehu Road during May, 1949 prepared exaggerated statements of the re-roofing work carried out as a result of storm damages in Mav, 1949 by the contractors Kaney Lal and Sons and C. S. Sanghvi for which he received a sum of Rs. 200. 00 from the said contractors. "the appellant was supplied copies of the muster roll, the appellants statement in the proceedings before the court of Inquiry, statement made by one Mukand Lal and other relevant documents. By his reply dated 6/11/1950, the appellant submitted that he was a "civilian employee" of the defence establishment and tint the procedure for making an inquiry against him was prescribed by RR. 49 and 55 of the Civil Services (Classification, Control and Appeal) Rules, and not by Army Instruction No. 212. He also claimed that he was "all along treated as an approver de facto" in the case against Major S. R. M. Naidu "who was expected to go up and face a court Martial in due course of time. " The Commander Works Engineer submitted his report to the Chief Engineer, Southern Command. On 5/12/1950), the appellant was informed that the Chief Engineer proposed to dismiss him "from service forthwith" and invited him M show cause why that decision should not be implemented. The appellant submitted his statement on 20/12/1950. By order dated 13/01/1951 the Chief Engineer informed the appellant that he was dismissed from service with effect from 15/01/1951.
( 2 ) THE appellant then filed a suit in the court of Civil Judge, Senior Division, Poona, against the Union of India for a declaration that he "continued to be in service as Superintendent B/r Grade I in the M. E, S. India" and for a declaration that the order of dismissal dated 13/01/1951 was illegal, void and inoperative and alternatively for an order that be reinstated as Superintendent B/r Grade I in M. E. S. India. The principal grounds set up by the appellant were that proceedings against him were held by an authority incompetent in that behalf, that he was denied a fair trial before the Enquiry Officer because his request to inspect certain documents and files and to cross-examine certain witnesses named by him was turned down, that the copies of the statements and documents which the appellant wanted to examine were not made available to him that his request to be heard in person was turned down by the Chief Engineer, Southern Command, Poona, that the enquiry against him contravened the Civil Services (Classification, Control and Appeal Rules, 1955, and other Rules in that behalf, and that the statement attributed to him were made by him "as an approver de facto" on assurances from Major S. K. Anand and Lt. Col. Nautiyal that he would be "completely exonerated from every cha
