Case Note & Summary
The Supreme Court of India dismissed an appeal by certificate from a judgment and decree of the Punjab High Court (Circuit Bench, Delhi) in a service termination dispute. The appellant, Lekh Raj Khurana, was appointed in 1942 as a Labour Supervisor in the Army Ordnance Corps. He was later designated as Supervisor, Army Ordnance Corps, a civilian post under the Crown in India. In September and October 1950, while posted at Shakurbasti, Delhi State, he was served with chargesheets by the Ordnance Officer, Administration, alleging serious false allegations against his superior officer Maj. H. S. Dhillon. The appellant sought time and copies of documents to prepare his defence. On May 26, 1951, while the inquiry was pending, he was served with an order by the Ordnance Officer, Administration, giving him one month's notice of discharge with immediate effect, stating that his services would be terminated on June 25, 1951. The appellant challenged the legality of this order principally on the grounds that it was passed by an officer subordinate to his appointing authority, that no inquiry as required by Fundamental Rules and the Constitution had been held, that no adequate opportunity was afforded to him to defend himself, and that the order was vitiated by mala fides. He filed a suit for a declaration that the termination order was wrongful, illegal and void, and that he still continued in service as Supervisor, Army Ordnance Corps. The Union of India in its written statement contended that the appellant had been appointed as a Labour Supervisor on the Extra Temporary Establishment by the COO/Ordnance Officer Incharge, Ammunition Depot, Kasubegu, under the authority of Financial Regulations, and not by the Governor-General. It was pleaded that the Government of India decided through Army Headquarters letter dated May 25, 1951, to terminate services by one month's notice, and the Ordnance Officer, Administration was competent to serve the notice under Army Order No. 1202/1943. The trial court decreed the suit, holding that Article 311 of the Constitution applied and the removal was not ordered by the appointing authority. The Additional District Judge, Delhi, allowed the respondent's appeal, holding that Article 311 was not applicable because the appellant held a post connected with defence, and that the services were terminated under Rule 5 of the Civilians in Defence Services (Temporary Service) Rules, 1949 by the proper authority. The appellant's appeal to the High Court was dismissed. The High Court found that the appellant's salary was paid from the estimates of the Ministry of Defence and he was intimately connected with the defence of the country, though not as a combatant. It held that Articles 309 and 310 were applicable but Article 311 was inapplicable. It also held that breach of the rules did not give a right to go to court, relying on R. Venkatarao v. Secretary of State, and rejected the mala fides allegation. Before the Supreme Court, the appellant argued that Article 311 applied, and alternatively that Section 240 of the Government of India Act, 1935, applied because his conditions of service were governed by rules framed under Section 241(2) of that Act. The Supreme Court held that the question of Article 311 was concluded by two earlier decisions: Jagatrai Mahinchand Ajwani v. Union of India and S. P. Bahl v. Union of India, which held that an Engineer in Military Service drawing salary from Defence Estimates could not claim protection of Article 311(2). The Court declined to consider Section 240 of the Government of India Act, 1935 because the order of discharge was made after the Constitution came into force and the appellant had not relied on that section in the courts below. On justiciability, the Court held that the High Court's view that the rules were not justiciable could not be sustained. The breach of a statutory rule in relation to conditions of service would entitle the aggrieved government servant to have recourse to the court for redress, as held in The State of Uttar Pradesh v. Ajodhya Prasad and State of Mysore v. M. H. Bellary. However, on facts, the Court found that the order of discharge was passed by the appointing authority because the notice was served under instructions from Army Headquarters and the respondent's evidence showed the Government's decision. The Court declined to reopen the finding on mala fides, as it was not challenged before the High Court, and held that in the absence of Article 311 protection, the rule of natural justice could not be invoked under the general law of master and servant. Consequently, the Supreme Court dismissed the appeal, affirming the High Court's judgment.
Headnote
A) Constitution of India - Article 311 - Applicability to Defence Civilian Posts - Constitution of India, 1950, Article 311 - Civilian employee holding a post connected with Defence cannot claim protection under Article 311. The appellant, a Supervisor in Army Ordnance Corps paid from Defence Estimates, was held to be not entitled to Article 311 protection, following Jagatrai Mahinchand Ajwani v. Union of India and S. P. Bahl v. Union of India. Held that Article 311 inapplicable (Paras 1-5). B) Service Law - Statutory Rules - Justiciability - Civilians in Defence Services (Temporary Service) Rules, 1949, Rule 5 - Breach of statutory rules in relation to conditions of service entitles aggrieved government servant to have recourse to court for redress. The High Court's view that the rules were not justiciable was incorrect. Held that the rules are justiciable (Paras 6-7). C) Service Law - Termination Order - Proper Authority - Civilians in Defence Services (Temporary Service) Rules, 1949, Rule 5 - Order of discharge passed by appointing authority as evidenced by instructions from Army Headquarters was valid. The appellant failed to show that order was passed by subordinate authority. Held no substance in contention (Paras 8-10). D) Constitutional Law - Natural Justice - General Law of Master and Servant - Constitution of India, 1950, Article 311 - In absence of Article 311 protection, rule of natural justice cannot be invoked under general law of master and servant. The appellant was not entitled to opportunity of showing cause. Held that natural justice not applicable (Paras 11-12). E) Service Law - Mala Fides - Finding of Fact - Not mentioned - High Court's finding on mala fides was against appellant and not challenged; cannot be reopened. Held that finding accepted as final (Paras 11-12).
Issue of Consideration
Whether Article 311 of Constitution of India, 1950 applies to a civilian employee holding a post connected with Defence; whether breach of statutory rules relating to conditions of service is justiciable; whether the termination order was passed by an authority subordinate to the appointing authority; whether rule of natural justice can be invoked under general law of master and servant in absence of Article 311 protection; whether the finding of mala fides can be reopened in appeal
Final Decision
Appeal dismissed. Supreme Court upheld High Court's judgment, holding that Article 311 was inapplicable to appellant because he held a post connected with Defence; that the view that rules were not justiciable was incorrect but the termination was valid as passed by appointing authority; that natural justice not applicable; that mala fides finding final.
Law Points
- Article 311 of Constitution of India
- 1950 does not apply to civilian employees holding posts connected with Defence
- breach of statutory rules relating to conditions of service is justiciable and entitles aggrieved government servant to court redress
- order of termination passed by appointing authority is valid
- rule of natural justice cannot be invoked under general law of master and servant absent Article 311 protection
- finding on mala fides cannot be reopened in appeal
