Decided on April 29,1957



- (1.) This is an appeal by the defendant, Union of India, in a suit dismissed by the trial Court but decreed on appeal by the District Judge, Jullundur.
(2.) Dharam Pal respondent was posted as Assistant Supervisor, Incharge Dalhousie Branch of Military Farm. On 12th March, 1951, be was served with a charge-sheet and required to submit his explanation. The explanation was submitted. By separate letter (Exhibit D-4) dated 1st May, 1951, Dharam Pal informed the inquiry officer that he did not wish to avail of the privilege of an oral enquiry as allowed under the rules. A show-cause notice was then served upon him on 3rd July, 1951. Dharam Pal, in reply to the notice, prayed that an enquiry into the charges be held and also that he may be granted a personal interview. The prayer for an enquiry was refused on the ground that he had refused to avail of the privilege and the matter could not be re-opened. Personal interview was, however, granted to him. Finally, on 11th October, 1951, he was dismissed from service. Dharam Pal brought the present suit for a declaration that the order of his dismissal was illegal, ultra vires and not binding upon him. The principal issue framed in the case was decided against the plaintiff and the suit dismissed by the trial Subordinate Judge. On Dharam Pal's appeal, the learned District Judge has held that the plaintiff ought to have been given a second opportunity to show cause against the action proposed to be taken in respect of him, and since that was not done the suit deserves to be decreed. The appeal was consequently accepted and the suit decreed.
(3.) Shri S.M. Sikri, learned counsel for the appellant, in the first place, contends that Article 311 of the Constitution has no application on the present case, because Dharam Pal plaintiff was holding a 'post connected with Defence'. His alternative argument is that even if Article 311 were applicable, the provisions of the Article, were fully complied with. Article 310 lays down 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 office during the pleasure of the President. The next following Article provides the safeguards to which the services of the Union or a State are entitled. Article 311 while enumerating the persons to whom the Article is applicable does not include amongst them a person who is a member of a Defence Service. The omission is significant, it means that the Article has no application to members of Defence Services or to persons holding any post connected with Defence. The result being that they are not entitled to the guarantee, provided by Article 311 and in their case the pleasure of the President is in no way circumscribed. The learned District Judge while holding that the Article is not applicable to a member of Defence Services omitted to see that it is equally inapplicable to persons holding posts connected with Defence. The matter is fully covered by a recent decision of this Court in Dass Mal v. The Union of India, 1956 0 AIR(P&H) 42. The same view was taken by Sinha, J. in Subodh Ranjan Ghosh v. Major N.A.O. Challaghan, 1956 AIR(Cal) 532. In this latter case the question was whether the protection afforded under Article 311 was applicable to an employee (Superintendent 1st grade) in the Military Engineering Service. It was found that the officer was not holding any military rank nor was he governed by the Army Act. Yet, he was held to be a civilian employed in defence service, to whom Articles 309 and 310 applied but not Article 311.;

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