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Kailashchand Ratan Chand Vs. the General Manager, Ordnance Factory - Court Judgment

LegalCrystal Citation
SubjectService
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 613 of 1964
Judge
Reported inAIR1966MP82; (1969)ILLJ611MP; 1965MPLJ881
ActsConstitution of India - Articles 226, 309, 310, 310(1), 311, 311(1) and 311(2); Defence Sservices (Classification, Control and Appeal) Rules, 1952 - Rule 15
AppellantKailashchand Ratan Chand
RespondentThe General Manager, Ordnance Factory
Appellant AdvocateGulab Gupta, Adv.
Respondent AdvocateR.J. Bhave, Govt. Adv.
DispositionPetition dismissed
Cases ReferredTara Singh v. Union of India
Excerpt:
- - ' the above observations clearly show that no rules under article 309 of the constitution can be made so as to abrogate or modify the 'tenure at pleasure' embodied in article 310 as qualified by article 311 of the constitution;dixit, c.j. 1. the petitioner in this case, who was employed as a machinist in ordnance factory, khamaria (jabalpur), seeks a writ of certiorari for quashing an order made by the general manager of the factory on 5th june 1964 removing him from service. the order of the general manager was upheld in appeal by the director general of ordnance factories, calcutta, and a writ is also sought for quashing the order of the director general of ordnance factories.2. the impugned order was passed as a sequel to a departmental enquiry held against the applicant on the charge that on 12th february 1964 at about 7.30 p.m. he, along with two other workers of the factory, followed from a bus-stand the wife and daughter of one shri raman, also a worker in the factory, and teased them. the departmental.....
Judgment:

Dixit, C.J.

1. The petitioner in this case, who was employed as a machinist in Ordnance Factory, Khamaria (Jabalpur), seeks a writ of certiorari for quashing an order made by the General Manager of the Factory on 5th June 1964 removing him from service. The order of the General Manager was upheld in appeal by the Director General of Ordnance Factories, Calcutta, and a writ is also sought for quashing the order of the Director General of Ordnance Factories.

2. The impugned order was passed as a sequel to a departmental enquiry held against the applicant on the charge that on 12th February 1964 at about 7.30 p.m. he, along with two other workers of the Factory, followed from a bus-stand the wife and daughter of one Shri Raman, also a worker in the Factory, and teased them. The departmental enquiry was held under the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, (hereinafter referred to as the Rules). At the enquiry, the charge was found to be prima facie established, and on 7th May 1965 the General Manager gave a notice to the petitioner to show cause why he should not be removed from service because of his misconduct in following the two ladies. A copy of the propeedings of the Court of enquiry was also furnished to the petitioner. In reply to the show-cause notice, the applicant submitted his explanation which did not satisfy the respondent General Manager. He accordingly made the impugned order removing the applicant from service.

3. The petitioner assails the order passed by the General Manager removing him from service on the grounds that it was made in violation of Article 311(2) of the Constitution and Rule 15 of the Rules; that at the enquiry some material witnesses, including Smt. Raman and her daughter, were not examined; that he was not given an opportunity to lead evidence to support his plea that at the time of the alleged incident he was working in the Factory; and that he was not given a reasonable opportunity of defending himself against the charge of misconduct levelled against him. It is further contended by the applicant that even if he followed the two ladies, his act in doing so did not involve any moral turpitude so as to constitute gross misconduct justifying his removal.

4. In the return filed by the opponent, ft has been stated that as the applicant was employed in Defence Services and did not hold a civil post, Article 311(2) of the Constitution did not apply to him, and that being so the applicant could not challenge the legality of the order of removal even on the ground that it was not passed after complying with Rule 15 of the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952. It has been further averred by the opponent that the disciplinary enquiry held against the petitioner was in fact in conformity with Rule 15; that he was given every opportunity of defending himself against the charge and the action proposed to be taken against him; that the evidence led at the enquiry established beyond doubt that the applicant followed Smt. Raman and her daughter; and that this act of his constituted gross misconduct.

5. In our judgment, this application must be dismissed. The protection given by Article 311 of the Constitution is not available to the petitioner as he was not a member of a civil service of the Union or an all-India service or a civil service of a State; or did he hold a civil post under the Union or a State. The words 'civil post' as used in Article 311 mean an appointment or office on the civil side of the administration as distinguished from a post under the Defence Forces. Consequently the members of Defence Services and persons holding any post connected with Defence are excluded from the purview of Article 311 of the Constitution. It is, therefore, not open to the applicant, to challenge the legality of the order of the General Manager removing him from service on the count that he was not given a reasonable opportunity of showing cause against the charge of misconduct and the action proposed to be taken in regard to him as required by Article 311 of the Constitution.

6. Shri Gupta, learned counsel appearing for the petitioner, did not press before us the argument that the applicant was entitled to the benefit of Article 311(2) of the Constitution. He, however, urged that even though Article 311 did not apply to the applicant's case, still the applicant was entitled to an adequate opportunity of defending himself as laid down in Rule 15 of the rules made under Article 309, namely, the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952; that as he was not given this opportunity, there was a breach of the statutory procedure contained in Rule 15; and that the applicant could, therefore, challenge the legality of the order removing him from service passed in contravention of Rule 15 of the Rules.

7. We are unable to accede to this contention. The Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, are no doubt rules made under Article 309 of the Constitution, It is also true that Rule 15 of the aforesaid rules inter alia provides that no order of removal, dismissal, compulsory retirement or reduction shall be passed on a member of a service unless he has been informed in writing of the grounds on which it is proposed to lake action and has been afforded an adequate opportunity of defending himself. That rule also lays down the procedure to be followed at an enquiry, and further says that on completion of enquiry 'after the authority empowered to impose the penalty has considered the defence and arrived at a provisional conclusion in regard to the penalty to be imposed the person charged shall, if the penalty is dismissal, removal, compulsory retirement or reduction, be called upon to show cause within a reasonable time, not ordinarily exceeding a fortnight, against the particular penalty to be imposed. Any representation submitted by the person charged shall be duly taken into consideration before final orders are passed.'

Rule 15 thus lays down a procedure substantially similar to that which has to be followed for giving a delinquent civil servant a reasonable opportunity as required by Article 311(2) of the Constitution of defending himself against a charge and of showing cause against the action proposed to be taken in regard to him. The Defence authorities are no doubt required to follow the procedure laid down in Rule 15 if they wish to impose on a member of Defence Services the punishment of dismissal, removal, compulsory retirement or reduction. But the argument that if a member of Defence Services is dismissed, removed, compulsorily retired or reduced without following the procedure laid down in Rule 15 and in Breach of that rule, then the order of penalty is illegal and can be quashed by this Court under Article 226 of the Constitution, even though Article 311(2) does not apply, is untenable. Its untenability becomes obvious on a proper appreciation of the effect of the rules framed under Article 309 on the provisions of Articles 310 and 311 of the Constitution.

8. By Article 309 it is provided that subject to the provisions of the Constitution, the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services. The proviso to that article deals with the making of rules regulating the recruitment and conditions of service until provision in that behalf is made by or under an Act of the appropriate Legislature. Article 310 inter alia says that except as expressly provided by the Constitution, every person, who is a member of a defence service or of a civil service of the Union, holds office during the pleasure of the President, and all civil servants who hold Office under a State hold office during the pleasure of the Governor. The expression 'Except as expressly provided by this Constitution' occurring in Article 310 refer to cases of the Judges of the Supreme Court and of the High Courts, the Comptroller and Auditor-General, and the Chief Election Commissioner for whose removal from Office there are express provisions in the Constitution. Article 311 prescribes the conditions which must be fulfilled before a person, who is a member of a civil service, is dismissed, removed or reduced in rank. The extent of the right of a member of defence service or a civil servant in the matter of tenure of his office must be gathered only from a reading of Articles 310 and 311 of the Constitution. In the matter of tenure, he cannot have any right apart from those provisions.

The rules framed under Article 309, which are subject to the provisions of the Constitution, cannot in any way abridge or control the 'tenure at pleasure' doctrine embodied in Article 310. The subjection of these rules to the provisions of the Constitution, arid the opening words of Article 310(1), namely, 'Except as expressly provided by this Constitution', leave no doubt that the rules made under Article 309 cannot abrogate or modify the 'tenure at pleasure' under Article 310 of the Constitution. What Article 311 does is to control the pleasure of the President or the Governor under Article 310. As pointed out by the Supreme Court in Moti Ram v. General Manager North East Frontier Rly. AIR 1964 SC 600, the pleasure of the President or Governor is controlled by the provisions of Article 311, and so the field that is covered by Article 311 'on a fair and reasonable construction of the relevant words used in that article would be excluded from the operation of the absolute doctrine of pleasure. The pleasure of the President or the Governor would still be there, but it has to be exercised in accordance with the requirements, of Article 311'.

It follows, therefore, that in cases not falling under Article 311, that is to say, in cases of persons not falling under the category of persons mentioned in Article 311(1) the pleasure of the President and the Governor is uncontrolled and when such a person is removed or dismissed from service without complying with the provisions of any rules framed under Article 309, he has no right, of action' against the Union or the State, as the case may, be. To say that even in cases where Article 311 does not apply an order of dismissal, removal or reduction in rank can be assailed on the ground of having been made in breach of a rule made under Article 309 of the Constitution is really to hold that the pleasure of the President or the Governor under Article 310 is controlled even in these cases by the rule. The legal enforcement of the rule would be inconsistent with Article 309, and in derogation of the provisions of Article 310 and would amount to giving to the rule-making authority contemplated by Article 309 the power to make rules so as to affect even the powers of the President or the Governor under Article 310 of the Constitution read with Article 311 thereof. As has been stated earlier, the rule-making power under Article 309 cannot be validly exercised so as to affect the provisions of the Constitution including Articles 310 and 311.

9. The view that in cases not falling under Article 311 an order of removal or dismissal cannot be assailed on the ground of having been made in breach of any rule laying down the procedure which must be followed before a penalty is imposed is supported by the pronouncements of the Supreme Court in various cases. In Shyamlal v. State of U.P. 1955 SCR. 26: AIR 1954 SC 369 and Khem Chand v. Union of India, 1958 SCR 1080 : AIR 1958 SC 300, the Supreme Court considered the decision of the Privy Council in R. Venkata Rao v. Secy. of State 64 Ind App 55: AIR 1937 PC 31 where it was held, with reference to the rules made under Section 96B of the Government of India Act, 1915, that while that section assured that the tenure of Office, though at pleasure, would not be subject to capricious and arbitrary action, but would be regulated by the rules, it gave no right to the aggrieved servant, enforceable by action, to hold his office in accordance with those rules. The Privy Council also held that Section 96B and the rules made thereunder only made provisions for the redress of grievances by administrative process. With reference to the position of Government servants under the Government of India Act, 1915, the Supreme Court made the following observations in Khem Chand's case 1958 SCR 1080 : AIR 1958 SC 300 (supra):

'The position of the Government servant was, therefore, rather insecure, for his office being held during the pleasure of the Crown under the Government of India Act, 1915, the rules could not override or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself. The only protection that the Government servants had was that, by virtue of Section 96B(1), they could not be dismissed by an authority subordinate to that by which they were appointed. The position, however, improved to some extent under the 1935 Act which, by Section 240(3), gave a further protection, in addition to that provided in Section 240(2) which reproduced the protection of Section 96B(1) of the Government of India Act, 1915. We have, therefore, to determine the true meaning, scope and ambit of his new protection given by Section 240(3) of the Government of India Act, 1935, which has been reproduced in Article 311(2).'

Both these decisions of the Supreme Court make it very clear that in cases where the doctrine of 'tenure at pleasure' is paramount and not controlled or qualified by the provisions of Article 311, a breach of any rule laying down the procedure that should be followed before imposing the punishment of dismissal or removal by itself cannot give any right of action to the aggrieved Government servant. The principle of what is justiciable is the constitutional right and guarantee under Article 311 arid only those Government servants falling under that article can demand as a matter of legal right this constitutional protection was affirmed by the Supreme Court . in P.L. Dhingra v. Union of India AIR 1958 SC 36 also.

10. Learned counsel for the petitioner strongly relied on State of U.P. v. Babu Ram AIR 1961 SC 751 and State of Mysore v. M.H. Bellary AIR 1965 SC 868 to support his contention that the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, being statutory rules framed under Article 309, a breach of Rule 15 of the Rules in making an order of dismissal or removal from service made the order of punishment illegal and could be quashed by this court under Article 226 of the Constitution. In our opinion, the petitioner cannot derive any assistance from both those cases which are distinguishable from the one before us. In AIR 1961 SC 751 (supra) the Supreme Court dealt with the case of dismissal of a Sub-Inspector of Police to whom Article 311(2) of the Constitution applied. It was held by the Supreme Court that the Police Act, 1861, and the rules made thereunder prescribing inter alia the procedure for removal of a Police Officer, only laid down and regulated the scope and content of 'reasonable opportunity' contemplated by Article 311(2) of the Constitution, and did not in any way affect the powers of the President or the Governor under Article 310 read with Article 311 of the Constitution; and that, therefore, if the appropriate authority takes disciplinary action under the Police Act or tke rules made thereunder against a police officer, it must conform to the provisions of the statute or the rules.

What the Supreme Court held was that if in a case, to which Article 311(2) is attracted, there is a statute or the rules made thereunder defining the scope and content of 'reasonable opportunity' envisaged by Article 311(2) of the Constitution, then for compliance of ^tide 311 (2) it is essential that the provisions of the statute and the rules must be followed. In Babu Ram's case AIR 1961 SC 751 (supra), the Supreme Court had no occasion to consider the case of dismissal or removal of an employee who did not fall within the purview of Article 311 of the Constitution and who relied solely on a rule made under Article 309 prescribing procedure for the removal or dismissal of a Government servant from service. The Supreme Court's decision in Babu Ram's case does not, therefore, in any sense support the petitioner's contention. On the other hand, the observations made therein by the Supreme Court only support the view expressed by us earlier as regards the effect of rules made under Article 309 on the provisions of Articles 310 and 311 of the Constitution. The Supreme Court said in Babu Ram's case AIR 1961 SC 751, (supra)-

'The discussion yields the following results : (1) In India every person who is a member of a public service described in Article 310 of the Constitution holds Office during the pleasure of the President or the Governor, as the case may be, subject to the express provisions therein. (2) The power to dismiss a public servant at pleasure is outside the scope of Article 154 and, therefore, cannot be delegated by the Governor to a subordinate officer, and can be exercised by him, only in the manner prescribed by the Constitution. (3) This tenure is subject to the limitations or qualifications mentioned in Article 311 of the Constitution. (4) The Parliament or the Legislatures of States cannot make a law abrogating or 'modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310, as qualified by Article 311. (5) The Parliament or the Legislatures of States can make a law regulating the conditions of service of such a member which includes proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 of the Constitution read with Article 311 thereof. (6) The Parliament and the Legislatures also can make a law laying down and regulating the scope and content of the doctrine of 'reasonable opportunity' embodied in Article 311 of the Constitution; but the said law would be subject to judicial review, (7) If a statute could be made by Legislatures within the foregoing permissible limits, the rules made by an authority in exercise of the power conferred thereunder would likewise be efficacious within the said limits.'

The above observations clearly show that no rules under Article 309 of the Constitution can be made so as to abrogate or modify the 'tenure at pleasure' embodied in Article 310 as qualified by Article 311 of the Constitution; that where Article 311 applies, the scope and content of the doctrine of 'reasonable opportunity' embodied in Article 311 can be regulated by an Act or rules; and that for compliance of Article 311 it is necessary that the provisions of such a statute or rules should toe followed.

11. In Babu Ram's case, AIR 1961 SC 751 (supra), the Supreme Court noticed the decision of the Privy Council in AIR 1937 PC 31 : 64 Ind App 55 and after pointing out the difference between the position of Government servants under the Government of India Act, 1915, as amended in 1919, under the Government of India Act of 1935, and the Constitution, observed-

'The decisions of the Judicial Committee on the provisions of the earlier Constitution Acts can be substained on the ground that the rules made in exercise of power conferred under the Acts cannot override or modify the tenure at pleasure provided by Section 96B or Section 240 of the said Acts, as the case may be. 'Therefore, when the paramountcy of the doctrine was conceded or declared by the statute, there might have been justification for sustaining the rules made under that statute in derogation thereof on the ground that they were only administrative directions, for otherwise the rules would have to be struck down as inconsistent with the Act'.'

(Underlining (here in ' ') is ours) The statement here in ' ' by us fully supports the view that if in a case, where Article 311 of the Constitution is not applicable, there is a rule purporting to have been made under Article 309 prescribing the procedure to be followed for imposing the penalty of dismissal or removal, then such a rule can be valid only if it is regarded as embodying administrative directions; otherwise the rule would be inconsistent with Article 309 and would be one derogating from the provisions of Article 310 of the Constitution. If Article 311 does not apply, then it is plain enough that the doctrine 'tenure at pleasure' embodied in Article 310 is paramount. Therefore, in the case of Government servants, who do not fall within the purview of Article 311, their tenure of Office during the pleasure of the President or the Governor is unfettered, and consequently the law, as stated by the Privy Council in AIR 1937 PC 31 : 64 Ind App 55 (supra) would continue to apply to them.

12. In the other case, namely, AIR 1965 SC 868 cited by the learned counsel for the applicant, the question that was considered by the Supreme Court was whether on a proper construction of Rule 50(b) of the Bombay Civil Service Rules an officer who, after serving on deputation in another department, is reverted to his parent department, is entitled to nothing more than increments allowable in the time-scale applicable to the substantive appointment which he held at the time of his transfer. While dealing with this question, the Supreme Court made the observation that in view of the decision in Babu Ram's case AIR 1961 SC 751 (supra) it was not disputed before the Court that if there was a breach of a statutory rule framed under Article 309, or which was continued under Article 313, in relation to the conditions of service, the aggrieved Government servant could have recourse to the Court for redress. In Bellary's case AIR 1965 SC 868 no question of the legality of an order of dismissal or removal of a Government servant to whom Article 311 did not apply, arose. In observing that if there was a breach of a statutory rule made under Article 309 in relation to the conditions of service, the aggrieved Government servant could have recourse to the Court for redress, the Supreme Court was not laying down any general proposition that even in cases where Article 311 does not apply, an order of removal or dismissal can be challenged on the basis of a breach of a statutory rule made under Article 309 prescribing the procedure to be followed for imposing the punishment of removal or dismissal.

13. Learned counsel for the applicant then referred us to certain observations in Laxminarayan v. Union of India AIR 1956 Nag 113 and Subodh Ranjan Ghosh v. N.A.O. Callaghan (S) AIR 1956 Cal 532 to support his contention resting on Rule 15. In the Nagpur case, while considering the question of an order made by the Union of India reducing in rank an employee in the Defence Department, a Division Bench of the Nagpur High Court held that Article 311 was not attracted to the petitioner before it. The learned Judges then referred to Clause (6) of Rule 212 of 'Army Instructions (India)' providing that no order of dismissal, removal or reduction should be passed on a Government servant unless he has been informed in writing of the grounds on which it is proposed to take action, and he has been afforded an adequate opportunity of defending himself. They observed that if it were established that the said clause applied to the petitioner whose case they were dealing with, then he would be entitled to a relief from the Court. But they also added that the clause was not applicable. Thus the observation made by the Court' that the petitioner-Laxminarayan would be entitled to relief on the basis of Rule 212(6), if it applied to him, was obiter. The learned Judges did not at all examine whether if Article 311 was not attracted rule 212(6) could at all be invoked.

In similar category are the observations of the Calcutta High Court in the case of (S) AIR 1956 Cal 532 (supra). That was a case of termination of service of a person employed in the Military Engineer-' ing Service. He was employed under an agreement concluded between him and the Government. The learned Judge of the Calcutta High Court held that Subodh Ranjan was a civilian employed in defence service to whom Articles 309 and 310 applied, but not Article 311 of the Constitution. The learned Judge then observed-

'Normally such a person would be governed by a set of rules promulgated by the President under Article 309, called the ''Civilians in Defence Services (Classification, Control and Appeal) Rules.'

adding that the said rules were inapplicable to Subodh Ranjan inasmuch as in respect of his conditions of service special provisions had been made in the agreement concluded between him and the Government. Having held that the rules were not applicable, the learned Judge of the Calcutta High Court had no occasion to consider the question whether when Article 311 did not apply to Subodh Ranjan, he could fall back on the rules for challenging the order terminating his services. The applicant cannot, therefore, derive any assistance from the above two cases.

14. There are, however, other decisions in which a view similar to that we have taken has been expressed. In Union of India v. Ram Chand (S) AIR 1955 Punj 166 a Division Bench of the Punjab High Court held that a suit filed by a Subedar in Ordnance Service for challenging an order made in 1943 discharging him from service did not lie. In that case, Kapur J. made the following observations:

'..... the rule of English Law which had become the rule of Indian Law also that the civil servants hold office during the pleasure of the Crown became very much restricted and the relief came within the Code of Civil Procedure and was regulated by it. When the Constitution of India was framed, the rule that servants of the Government hold office during the pleasure of the President or the Governor, as the case may be, as the heads of the Union of India or of a State was re-enacted in Article 310(1) of the Constitution.. .. .

'But in the case of civil servants the restriction on the exercise of pleasure which was introduced by Section 240 of the Government of India Act, 1935, was re-enacted in Article 311 of the Constitution, but no such restriction was provided for in regard to the Defence Services of the Union and there was none in regard to the Defence Services of the Crown before the Constitution came into force.

'But the law in regard to the Defence services has remained the same. At no time in the constitutional history of India has any similar protection against arbitrary dismissal, removal or reduction in rank been provided in regard to these Services. On the other hand they continued to hold office during the pleasure of the Crown and now they hold office during the pleasure of the President, and therefore the law as was stated by the Privy Council in AIR 1937 PC 31 would continue to apply to them. The question whether their dismissal or removal is arbitrary or not is not a .justiciable issue .....'

A similar view was expressed by Kapur J. sitting singly in Dass Mal v. Union of India AIR 1956 Punj 42 where the learned judge said that if a person holds office at the pleasure of the President and the protection of Article 311 of the Constitution is not available, then it is not for the Courts to put limitation on the exercise of the pleasure by the President by enforcing any rule dealing with conditions of service for quashing an order of removal from service on the ground of it having been made without complying with the rule. The decision in Dass Mal's case AIR 1956 Punj 42 (supra) was followed in Union of India v. Dharampal ILR (1957) Punj 1695.

15. So also, in Tara Singh v. Union of India AIR 1960 Bom 101 it was held that Army Instructions or rules made under Article 309 cannot 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 a State to whom Article 311 does not apply, and that the tenure of office of such persons continues to be at the pleasure of the President or the Governor as the case may be. In the Bombay case also a civilian employed in defence service sought to rely on Army Instructions for challenging the validity of an order made in 1951 dismissing him.

16. For the foregoing reasons, our conclusion is that in this case it cannot be held that though Article 311 is not attracted, yet the petitioner is entitled to invoke Article 15 of the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, for challenging the legality of the order of the respondent General Manager removing him from service. The enforcement of Rule 15 for quashing the impugned order would be inconsistent with Article 309 and in utter nullification of the provisions of Article 310(1) of the Constitution. Even on merits the petitioner has no case. As is evident from the return filed by the repondent, the order of petitioner's removal from service was passed after complying with Rule 15 and giving an adequate opportunity to the applicant to defend himself and was based on adequate evidence.

17. The result is that this petition is dismissed with costs. Counsel's fee is fixed at Rs. 75/-. The outstanding amount of security deposit, if any after deduction of costs, shall be refunded to the petitioner.


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