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IN THE HIGH COURT OF BOMBAY
K.K. Desai, J.
Appellants: Tara Singh Uijagar Singh
Vs.
Respondent: Union of India
Suit No. 1336 of 1952
Decided On: 22.09.1953
Counsels:
For Appellant/Petitioner/Plaintiff: K.L. Gauba, Adv.
For Respondents/Defendant: Kher and Ajit Mehata, Advs.
CONSTITUTIONAL LAW - ARTICLE 310 AND 311 - CIVILIAN EMPLOYEE IN DEFENCE SERVICE - TENURE OF OFFICE - PROTECTION UNDER ARTICLE 311 - ARMY INSTRUCTIONS - BINDING FORCE - JURISDICTION OF COURT - STATUTORY NOTICE UNDER SECTION 80 OF THE CODE OF CIVIL PROCEDURE - SUFFICIENCY.
Fact of the Case:
Plaintiff, a civilian employee in Defence Service, was dismissed from service without being given an opportunity to defend himself in accordance with Army Instructions. He filed a suit for declarations that the order of dismissal was illegal and void and that he continues in the service of the Union and for arrears of salary on that basis.
Finding of the Court:
1. The plaintiff did not hold a civil post under the Union and was not entitled to protection under Article 311 of the Constitution. 2. The Army Instructions referred to in the plaint were not binding on the Union and the non-observance of the rules contained in those Army Instructions did not give any cause of action to the plaintiff. 3. The validity of dismissal of the plaintiff was not justiciable and the Court had no jurisdiction to give any relief to the plaintiff.
Issues: 1. Whether the plaintiff held a civil post under the Union and was entitled to protection under Article 311 of the Constitution? 2. Whether the Army Instructions referred to in the plaint were binding on the Union and the non-observance of the rules contained in those Army Instructions gave any cause of action to the plaintiff? 3. Whether the validity of dismissal of the plaintiff was justiciable? 4. Whether the plaintiff was entitled to any relief? 5. Whether the statutory notice given by the plaintiff under Section 80 of the Code of Civil Procedure was proper?
Ratio Decidendi: 1. Article 310(1) of the Constitution provides that every person who holds any post connected with defence holds office during the pleasure of the President. 2. Article 311 of the Constitution provides protection to certain persons, including members of a civil service of the Union or a State and persons holding a civil post under the Union or a State. 3. A person holding a post connected with defence is not entitled to the protection of Article 311. 4. The Army Instructions are not binding on the Union and do not have the force of affecting the provisions of Article 310 regarding the tenure of office of persons employed in the service of the Government of India or State.
Final Decision: The suit was dismissed with costs.
(2) The sole ground on which the plaintiff based his claim was the right which according to the plaintiff he had under Army Instructions in India No. No. 212/49 dated 25-6-1949. These instructions contain detailed procedure for departmental enquiry in connection with orders of dismissal or removal of a civilian government servant employed in defence services. These instructions inter alia provide for giving an opportunity to all employed in defence services. These instructions inter alia provide for giving an opportunity to all employees for hearing and cross-examining the evidence in support of any charge and also for submitting written-statement and evidence in defence and for a due and complete hearing. The plaintiffs contention in the plaint is that these rules of procedure in departmental enquiry were not observed in his case and therefore his dismissal is wrongful.
(3) The short facts leading to this suit are as follows: On 15-8-1933 the plaintiff was initially employed at Bombay as a temporary clerk. In connection with this employment the plaintiff signed a printed form of agreement dated 5-1-1934. This agreement was not signed on behalf of the Government of India and remained escrow. In December 1935 the plaintiff was appointed a temporary Overseer. In March 1940 the plaintiff was appointed Overseer on permanent substantive basis and then he signed a printed form of agreement dated 21-6-1940. (Ex. 5 in this suit) This agreement is executed (on behalf of the Governor General in Council by Garrison Engineer. Wellington As appears from his service book, the plaintiff was discharging his duties at Wellington for a considerable time before March 1940. In about July 1941 the plaintiff was appointed temporary Sub-Divisional Officer and was made permanent in that post in August 1941. The parties have proceeded with this suit on the footing and basis that at all material times the agreement dated 21-6-1940 governed the parties.
(4) After the plaintiff was transferred to and served at different places in June 1951 the plaintiff was stationed at Baroda as a Sub-Divisional Officer attached to a Miliary Camp situate at Baroda. The plaintiffs salary then was Rs. 480/- (Rs. 350 as basic pay and Rs. 130 being dearness and other allowances.) It appears that on 6-5-1950 the plaintiff got prepared an indent No. G-30801-A dated 6-5-1950 for striking off a quantity of 1 1/2 tons of coal from stocks that were in his charge. The Accounts Office having reported that there was no basis for such an indent being prepared, inquiries were instituted. On 27-3-1951 the plaintiff was served with a charge-sheet along with certain documents in support of the charge in respect of the aforesaid 1 1/2 tons of coal. The relevant part of the charge served on the plaintiff runs as follows:
"Committing an act prejudiciaal to good order and departmental discipline involvin frandulent issue and misappropriation of Government Stores in that he while employed as Suprerintendent B/R Gde. I at Baroda on 6-5-1950 struck off ledger charge 1 1/2 tons of steam coal on indent No. . . . By a reply dated March 29, 1951 the plaintiff admitted having made out the indent. He however gave explanations as to why he had made "a consolidated indent to regularise the issue for accounting purposes." The plaintiffs explanations were not acceptable to the authorities and by a show cause notice dated 5-9-1951, the Commander, Works Engineers, Bombay refered to the aforesaid charge against the plaintiff and further stated as follows:
"The Chief Engineer, Southern Command, Poona, has after duly considering your statements of defence and all relevant documents, proposed
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