(1) THE plaintiff who was a Sub-Divisional Officer and employed as a civilian in Defence service filed this suit inter alia for declarations that "the order of dismissal dated 12-10-1951 is illegal and void" and that "the plaintiff continues in the service" of the Union and for arrears of salary on that basis.

(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 25-6-194

9. 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 5-1-193

4. 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 194

1. 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 Military 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 prejudicial to good order and departmental discipline involving fraudulent issue and misappropriation of Government Stores in that he while employed as Superintendent 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 referred 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 to take the following action: "Mr. Tara Singh should be removed from service without disqualification from further government employment. "

You are hereby required to show cause in writing as to why the proposed action should not be taken. "

(5) BY his letter dated 22-9-1951 the plaintiff denied the charge against him and asked for a chance of defending himself. He referred to the Army Instructions No. 212/49 as giving him the right to a complete hearing before proposed punishment. The plaintiffs grievance is that he was not given any opportunity of hearing in accordance with his request. By an order dated 12-10-1951 the plaintiff was removed from service with effect from October 25, 1951 without disqualification from further government employment An appeal to the Union of India against the order of removal was dismissed. Intimation of such dismissal was given to the plaintiff on june 12, 1952. The plaintiff therefore filed this suit after serving statutory notice dated September 2, 1952.

(6) BY its written-statement The Union did not deny that the plaintiff has had no hearing in accordance with the Army Instructions 212/4

9. The Unions case was that the plaintiff did not ask for a personal hearing when the charge-sheet was served on him and that he was not entitled to ask for a hearing after the appropriate authority had decided that the plaintiff was guilty of the offence mentioned min the charge. The two main contentions which The Union raised were that (I) the plaintiff held "post connected with defence" within the meaning of Article 310 of the constitution, and the grievance of the plaintiff was not justiciable and the plaint therefore did not disclose any cause of action; and (ii) that the cause of action did not arise wholly in Bombay and the plaintiff having failed to obtain leave under clause 12 of Letters Patent, this Court had no jurisdiction. The Union also contended that the notice under S. 80 of the Code of Civil Procedure was defective.

(7) AS regards the two main defences, they arise out of the amendment of the written-statement granted by me on August 25, 1958; at the hearing of this suit. Mr. Kher on behalf of The Union then admitted that the rules mentioned in para 10 of the plaint viz. , Army Instructions No. 212/1949 applied to the case of the plaintiff (as also other civilian posts in the army). Mr. Kher also admitted that the burden of proof as regards substantial issues was on the Union. Issues as regards the quantum of money payable to the plaintiff and other reliefs were reserved by consent of parties till after the decision on issues Nos. 1 to

5.

(8) THE issue as regards jurisdiction of this Court may be disposed of in the first instance as it does not involve any controversy on facts. By para 17a of the plaint the plaintiff submitted that the whole of the cause of action had arisen at Bombay. The plaintiffs case is that at material time he was attached to and employed at Bombay in the Office of the Divisional Engineer and that the order dated October 16, 1951 removing the plaintiff was served on the plaintiff in Bombay on October 25, 195

1. The plaintiff lost his service and employment in pursuance of that order in Bombay and therefore the whole of the cause of action arose at Bombay. In reply to the argument of Mr. Kher on this issue Mr. Gauba contended that the declarations claimed by him in this suit did not arise out of any contract between the parties and that the place where the contract was made was immaterial and of no consequence. He contended that his right to the reliefs of declarations arose out of the Constitution, viz. Article 311 of the Constitution. He contended that his grievance was not based on any breach of contract or agreement and that I should not take into consideration the place of the making of the contract or the place of the making of the order of dismissal in deciding whether the whole of the cause of action has arisen at Bombay. Mr. Kher has not cited any authority relating to the jurisdiction of a Court in connection with a suit based on a contract of employment as between a master and a servant. On prima facie considerations however to me it is obvious that the declarations asked for by the plaintiff must arise out of the contract of employment between the plaintiff and the defendant. It cannot merely arise out of provisions of the Constitution as is suggested by Mr. Gauba. The provisions of the Constitution came to be considered in connection with persons holding civil or military posts as if these provisions stand incorporated into the contracts of employment. These provisions are applied to the facts of each particular case on the footing that they are incorporated in the contract of employment and therefore binding on the Government in each case. The contention of Mr. Gauba that he could have asked for these declarations on the footing of the provisions in the Constitution without pleading the contract of employment or without basing his contention on the footing that the provisions of the Constitution became incorporated into his contract is untenable.

(9) THE contract of employment on which the plaint is based is contained in the agreement dated june 21, 1940 (which is Ex. 5 in these proceedings). As appears from the entries in the service book of the plaintiff as also the agreement dated June 21, 1940, it was signed by both the parties at Wellington outside Bombay. The order of dismissal which is challenged in this suit also admitted was made by the Chief Engineer, Poona, outside Bombay, The contention of Mr. Gauba that since the order was served on the plaintiff in Bombay and the employment was lost in Bombay the whole of the cause of action arose in Bombay seems to me to be untenable. It is this order which is being challenged and the making of this order is essentially a part of the cause of action in this suit. The invalidity of this order is sought to be proved by the plaintiff on the footing that the Army instructions No. 212/1949 are applicable to the case of the plaintiff. The existence of these Army instructions (which admittedly came to be made at Delhi) is an essential fact necessary to be proved in support of the plaintiffs claim. Having regard to these absolutely essential facts having come into existence outside Bombay, I cannot uphold the connection of Mr. Gauba that the whole of the cause of action had arisen at Bombay. I am of the view that it was absolutely essential for the plaintiff to obtain leave under clause 12 of the Letters Patent to enable him to file this suit in this Court. The plaintiff having failed to obtain such leave and the whole of the cause of action having not arisen at Bombay, the plaintiffs plea in that connection in para 17a of the plaint is incorrect. This Court accordingly has no jurisdiction to try this suit.

(10) AS regards the contention of the Union that the plaintiff held "post connected with defence" and that the grievance of the plaintiff is not justicable, it is necessary to refer to the provisions of arts. 310 (1) and 311 of the Constitution which provide as follows: 310 (1). "except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the president. . . . . . . . . " 311 " (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank until be has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. " * * * *

(11) IT is obvious that Art. 310 (1) deals with tenure of office of persons holding posts and offices under the Union or a State. It is also patent on the language of that Article that the tenure as fixed under the Article can only be affected or altered by provisions contained in the constitution itself. By the language of the Article it is made impossible for any other Statute made by Parliament or State Legislature to provide for different tenure of office. The limitation as regards the tenure, if any, must be founded in the Constitution.

(12) ARTICLE 311 which provides for protection of person employed by the Government can only be available to specific persons mentioned in that Article. The protection provided by Article 311 is protection given to a member of (i) a civil service of the Union or (ii) an all-India service or (iii) a civil service of a State or (iv) a person who holds a civil post under the Union or a State. All these specific persons and/or members of each class mentioned in Art. 311 are also mentioned in Art. 3

10. it is however significant that Art. 310 makes specific reference to (a) "a member of defence service" and (b) "persons who hold posts connected with defence. " No reference is made to a "member of defence service" and "persons who hold posts connected with defence" in Art 31

1. Members belonging to these classes have been specifically taken out of the provisions of Art. 311 with intent to deprive them of the protection given to others under Article 31

1.

(13) HAVING regard to the aforesaid position Mr. Gauba contended that the plaintiff held "a civil post under the Union" and was as such entitled to protection under Art 311 and was entitled to a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. This of course is a new contention and is not mentioned in the plaint. It is not included in the statutory notice given under S. 80 of the Code of Civil Procedure. This contention came to be made because on the amendment of the written-statement the Union for the first time in august 1958 relied upon Art. 310 as complete defence to the plaintiffs suit. I have allowed Mr. Gauba to argue on the footing that this contention was included in the plaint only because the plaintiff has had long service with the Government of India and it was necessary to see if the defence raised by the Union of India on the footing of Article 310 was correct.

(14) AS regards the nature of his employment it is admitted by the plaintiff that he was a civilian employee in defence service. It is also admitted by the plaintiff that his salary and allowances came out of the defence expenditure. The description of rules on which the plaintiff relies indicates that they are made with reference to persons in defence expenditure. These rules are admittedly not made for any person who is not holding a civilian post paid from defence expenditure. Mr. Gauba contents that since the plaintiff is described as a civilian employee in defence service he is holding a civil post under the Union. This contention appears to me to be ill-founded. A person holding "civil post under the Union" is classified separately from "a person holding any post connected with defence" in Article 310 (1) of the Constitution. On comparison of the provisions of Art. 310 (1) and Art. 311 it is clear that the person decided as "a member of defence service" or "holding any post connected from Article 31

1. The tenure of office of such a person under Art. 310 (1) was "at pleasure" and yet he was not intended to be given any protection as provided under Art. 31

1. That is the irresistible conclusion one reaches by reason of specific exclusion of such a person Art. 311.

(15) IT is not the contention of Mr. Gauba that "he plaintiff is not holding a post connected with defence. On the contrary the plaint proceeds on the footing and it is admitted that the plaintiff holds a post connected with defence. In my opinion "person holding a post connected with defence" cannot be stated to be include in the class of persons "holding civil post under the union" if the provisions of Art. 310 (1) are read correctly. I do not agree with the contention of Mr. Gauba that the plaintiff held "a civil post under the Union" within the meaning of these two articles. The only class within the plaintiff falls is the class which is described in Art. 310 as "holds any post connected with defence. " I accordingly hold that the plaintiff is not entitled to any protection under Art. 311 and is not entitled to any reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

(16) IN this connection Mr. Kher has relied upon the decisions of this Court in the case of chandra Bhan Varma v. Union of India, (S) AIR 1956 Bom 601 [LQ/BomHC/1956/83] , where in the first Court (S. T. Desai J.) considered and construed the provisions of Art. 310 in regard to "a member of defence service. " The relevant observations in that case are as follows:

"now it is obvious that Art. 310 so far as it relates to a member of the defence service lays down in terms both express and explicit that in the absence of any provision of the Constitution and subject to the execution to which I shall presently refer; "every person who is a member of a defence service or holds post connected with defence holds office during the pleasure of the President. " the limitation or exception contained in the initial part of the Article has no bearing to any such case. * * * * * * * * i find that Art. 310 inevitably leads to the conclusion that a member of the defence service is dismissible at will unless he is protected by any of the restrictions and limitations provided for by the article itself. Restrictions and limitations on the exercise of the "pleasure of the President"

as I have already pointed out are not applicable to the case of the plaintiff and his case would not be justiciable under Art. 310, if it fell under that Article because he could have no right of action against the Union of India for wrongful dismissal. " As regards the rules of procedure made under the Army Act for giving a complete hearing to an alleged defaulter in his defence it was observed in that decision as follows: "then again the sections of the Army Act, and the Rules and Regulations to which I have refered do not, in my judgment lay down any stipulations as to the tenure of service. Moreover as I shall have occasion to point out later on in my judgment these sections do not in any way affect the rule relating to tenure of service being terminable at will. ". . . ". . . . Therefore, even if I were to accept the contention that Art. 310 permits any statute of parliament modifying the general rule contained in it so far as it affects the defence personnel the conclusion would still have to be that the tenure of service was during the pleasure of the president. " referring to the general rule that the tenure of office of serviceman was durante bene placito it was observed that. "there is another consideration of the matter. It seems to me that the principle underlying the rule should apply with greater force to a member of the defence service than to a civil servant. Article 311 of the Constitution and the provisions of S. 240, Government of India Act, 1935 in which there is no reference at all to a member of the defence service are to a degree illustrative of the principle. After considering all the provisions applicable to a person in defence service as also to persons holding civilian posts in defence service it was held in that case that the tenure of office of such a person was at pleasure of the President and any grievance in respect thereof was not justiciable.

(17) THE judgment of S. T. Desai J. came before the Appeal Court in Appeal No. 52 of 1956 and chagla C. J. accepted the ratio of that judgment as correct and held that on a true construction of art. 310 as regards a member of the defence service the tenure of office must be at pleasure of the President and any grievance in that connection was not justiciable.

(18) THE provisions of these Articles came to be considered in the case of Subodh Ranjan Ghose v. N. A. O. Callingham, AIR 1956 Cal 532 [LQ/CalHC/1956/101] . The question there also related to a civilian employed in defence service holding position similar to the plaintiff in this case. It was there also held that a civilian employed in defence service was not entitled to protection under Art. 311 and that his tenure of office was at pleasure of the President and the grievance made by him was not justiciable.

(19) THE question whether a civilian employed in defence service could be classified as a person holding a civil post under the Union came to be considered by Kapur J. in the case of dass Mal v. Union of India, AIR 1956 Punj 42. The plaintiff in that case was a civil clerk employed in the provisions of the Army Act. The contentions raised before me by Mr. Gauba. After considering the relevant provisions of the Government of India Act, 1935, as also the articles 309, 310 and 311 of the Constitution the conclusion that was reached appears in the following words: "in Article 311 (1) a member of a defence service or a person who holds any post connected with defence has been omitted, and in my view this omission has only one meaning that the protection afforded under Art. 311 (1) is not available to the appellant Dass Mal. " the contention raised on behalf of the plaintiff in that suit that he held "a civil post under the union" and was entitled to protection of Art. 311 was negatived.

(20) IN connection with the Army Instruction No. 212/1949 Mr. Kher referred me to a decision in the case of Atindra Nath v. G. F. Gillot, AIR seems to me to be applicable in all respects to the case before me and I take liberty to quote in extenso some of the observations from the judgment of Chakravarti C. J. as regards the Army Instructions: "* * * * The only basis of the Army Instructions mentioned in the affidavits was a resolution of the Government of India in the Military Department, being Resolution No: 2228, published on 22-12-1949 but in exercise of what authority that resolution was passed and whether it was law or an executive decision could not be stated by anyone. As far as we can see, the Government of India Act, 1915-19, that of 1935 and the present constitution all regard the Defence Services as a separate unit altogether, not directly connected with the ordinary organs of the government to which the Civil Services belong and appertain. The successive Constitutions appear to have been concerned with only three organs of the State, namely, the executive, the legislature and the judiciary and if there has been any reference to defence and Defence Services at all, it has been only, except in the case of the 1935 Act, to say that their control lay yested in the Head of the State whether the governor-general or as now, the president. " the Act of 1915-19 merely said in S. 33 that the superintendence, direction and control of the civil and military government of India was vested in the Governor-General in Council. That is the solitary reference to Defence contained in the Act. * * * *" besides affording us these tiny glimpses of how the defence of the country and its military needs were being provided for, the curtain over the subject of Defence is not lifted. The next Act of 1935 is a little more vocal and contains a whole chapter. . . regarding Defence Services. It is chapter I of Part X and consists of sections 232 to 23

9. . . The Chapter provides for the control of Defence appointments, saves old rights of appeal, charges the pay of the members of the Defence Services and other Defence expenditure on the federal revenues and says that those provisions would apply, not only to members of the fighting forces, but also to persons who "hold or have held, posts in India connected with the equipment or administration of those forces or otherwise connected with defence. "

". . . . . The present Constitution of India, however, seems to have gone back to the reference of the Government of India Act of 1915-19 and besides stating in Article 53 (2) that the Supreme command of the Defence Forces shall be vested in the President and that the exercise thereof shall be regulated by law and providing in Art. 310 that except as expressly provided by the constitution, every person who is a member of a defence service or holds any post connected with defence, holds the same during the pleasure of the President, like persons who are members of the civil service, nothing whatever is said about the defence personnel or the conditions of their service. " In that judgment a reference was made to the definition of members of Defence services mentioned in Joint Parliamentary Committee Report which runs as under: "as comprising not only the officers, non-commissioned officers and men of Defence Forces in India but also the corresponding grades of civil officials whose work lies within the sphere of defence and who are paid from the Defence estimates. " it was then observed as follows: "if such be composition of the Defence Services the appellant, like military personnel, strictly so called, would be outside the purview of the provisions relating to the members of the civil services and would be governed by whatever laws or rules orders might be applicable to defence services. . . . "

(21) THE information given to me as regards the "army Instructions" is nothing more than the production of "army Instructions" as evidence in this case. Mr. Gauba contends that these rules appearing in the Army Instructions must have been enacted under S. 241 of the Government of India Act. Neither side, however, is in a position to give me correct information as to under what provisions these Army Instructions have been framed. It appears to me that these are the subject matter of a Government Resolution and made for the purpose of guidance of military authorities in connection with civilians employed in defence service. These rules have no binding force in themselves. These rules are only directory rules. They do not appear to have been made under provisions of any particular Statute. These rules have in any event no force of affecting the provisions of art. 310 regarding the tenure of office of persons employed in the service of government of India or State. The tenure of office of persons employed in such service continues to be at pleasure of the President or the Governor or the Rajpramukh as the case may be.

(22) IN this connection Mr. Kher has referred me to the judgment of Chagla C. J. in Spl. C. A. No. 1061 of 195

6. That was a case of dismissal of an employee from Ordanance Depot at ambarnath. The contention raised before the Division Bench was that the provisions of the industrial Disputes Act which were admittedly applicable even to the government employees came in the way of dismissal of the petitioner in that case and that the dismissal was therefore not effective. Rejecting these contentions it was held that by reason of the provisions of Art. 310 the tenure of office of a government servant employed even in civil service continued to be at the pleasure of the President or the Governor, that even by legislation, (viz. as in that case the industrial Disputes Act) Parliament had no authority to derogate from the provisions of Article 310 of the Constitution. The petitioners petition was accordingly dismissed in that case.

(23) HAVING regard to the decision referred to by me above, I have come to the conclusion that the plaintiff does not hold a civil post under the Union and is not entitled to protection of Art. 31

1. I have also come to the conclusion that the Army Instructions referred to in the plaint are not binding on the Union and the non-observance of the rules contained in these Army instructions do not give any cause of action to the plaintiff. The validity of dismissal of the plaintiff is not justiciable and this Court has no jurisdiction to give any relief to the plaintiff.

(24) THE third contention raised by Mr. Kher related to the statutory notice given by the plaintiff under S. 80 of the Code of Civil Procedure. This notice admittedly does not refer to the reliefs claimed by the plaintiff in this suit. That notice only indicated that the plaintiff would be claiming damages against the Union and did not indicate that the declarations as mentioned in the plaint would be sought against the Union. The plaint and the notice do not refer to Art. 311 of the Constitution.

(25) MR. Gauba has referred me to the commentary of Sir Dinshaw Mulla on S. 80 and also to the decision in Secretary of State v. Chimanlal Jamnadas, 44 Bom Lr 295: (AIR 1942 Bom 161 [LQ/BomHC/1941/112] ). He says that his notice must be constructed liberally and is valid. Having regard to my conclusions on the main contention of the parties as hereinbefore mentioned, I do not propose to decide the issue as to whether the notice under S. 80 in this case is improper.

(26) MY answers to the issues are: negative. Affirmative. No arguments have been pressed before me in respect of issue No.

4. It is unnecessary to answer issue No.

4. Negative. 7, 8 and 9: The plaintiff is not entitled to succeed. In the result the suit is dismissed with costs. Suit dismissed.