KAN SINGH, J. - (1.) THE second appeal before me which is by civilian employee of the Defence Department raises the question whether such an employee can challenge the order of his dismissal from service in a civil court.
(2.) JEEWANPURI was appointed as a 'laskar' in the grade of 304--1/2-35 in March, 1952 in Wing No. 3, Indian Air Force Station at Palam by the Commanding Officer of the Wing. In March, 1955 he acquired quasi permanent status. In October, 1957 he came to be transferred to the Air Force Flying College, at Jodhpur on a similar post. At Jodhpur he organised a union of class IV civilians and became its Secretary. This union came to be affiliated with the Indian National Trade Union Congress. On account of his activities the plaintiff came to be served with certain charges, an enquiry was made against him and finally he was visited with the punishment of removal and dismissal from service on the charges framed against him. After serving a notice under sec. 20 C. P. C. to the Union Government, on 10-12-61 the plaintiff brought the suit in the court of Munsiff, Jodhpur. It was pleaded by him, in assailing his orders of removal and dismissal, that proper opportunity to defend himself was not afforded to him as provided by Art. 311 (2) of the Constitution as well as under the Civilians in Defence Services (Classification Control and Appeal) Rules, 1962. He prayed that the orders of his removal and dismissal from service be declared illegal and void and that he was still in service of the Union of India. The Union of India contested the suit. It was, inter alia, pleaded that the provisions of Art. 311 of the Constitution of India were not applicable as the plaintiff was not a holder of any civil post under the Union but was an employee of the Department. According to the defendant the tenure of the plaintiff was at the pleasure of the President and consequently his service could be dispensed with at any time. It was further pleaded that a suit in a civil court was not maintainable. The learned Munsiff framed the following issues : (1) Whether the plaintiff being a person belonging to the Defence Services, his services could be dispensed with at any time ? (2) Whether the present suit is not maintainable ? (3) Whether the suit is barred by time ? (4) Whether the provisions of Art. 311 of the Constitution of India are not applicable in this case ? (5) Whether the Court fee paid is insufficient ? (6) Whether the provisions of Art. 311 of the Constitution of India have not been complied with before the dismissal of the plaintiff from service and if so whether the order of dismissal was illegal and void ? (7) Whether legal enquiry as contemplated under service rules was made before the plaintiff was removed from his service ? (8) Relief? The learned Munsiff did not record any evidence. He held (i) that Art. 311 of the Constitution did not apply to the present case, (ii) the suit was time barred, and (iii) the tenure of the plaintiff being at the pleasure of the President, no suit could be instituted by the plaintiff to challenge his orders of removal or dismissal from service. The learned Munsiff referred to a number of cases such as A. I. R. 1960 Bombay 101, A. I. R. 1952 Travancore Cochin 7, A. I. R. 1956 Calcutta 532, A. I. R. 1956 Bombay 601, A. I. R. 1956 Punjab 42, A. I. R. 1937 P. C. 31, A. I. R. 1964 S. C. 600, A. I. R. 1961 S. C. 751 and A. I. R. 1955 Punjab 166 and came to the conclusion that the question of breach, if any, of the Civilian in Defence Services (Classification Control and Appeal) Rules 1962 did not raise any justiciable issue. In his own words, the conclusion reached by the learned Munsiff was as follows : "the result of the above discussion is that the dismissal of the plaintiff in the exercise of the pleasure of the President is not justiciable in the civil court. Non-compliance of any army instruction No. 82 or Civilians Defence Service Rules would not have any effect on the exercise of the pleasure, because these rules cannot have any overriding power on the pleasure of the President even though it be arbitrary and a suit challenging the arbitrariness of the exercise of the plea sure is not maintainable and liable to be dismissed. " In the result the learned Munsiff dismissed the suit. Aggrieved by the decree of the learned Munsiff the plaintiff went up in appeal to the learned District Judge, Jodhpur. The learned District Judge assigned the appeal to the Senior Civil Judge No. 2, Jodhpur. The learned Senior Civil Judge agreed with the learned Munsiff and dismissed the appeal. It is in these circumstances that the plaintiff has come in further appeal to this court. The learned counsel for the appellant contends that the view taken by the courts below was erroneous. He submits that the courts below had not appreciated the legal position, as expounded by their Lordships of the Supreme Court in State of Uttar Pradesh vs. Baburam Upadhya (1) correctly. The learned counsel further placed reliance on a Full Bench Judgment of the Punjab High Court reported as Shamlal vs. Director, Military Farms, Army Headquarters, New Delhi (2) and Jagan Nath vs. Quarter Master General (3 ). The learned counsel for the respondent on the other hand has tried to support the view taken by the lower courts. Besides referring to the cases noted by the learned Munsiff, the learned counsel cited one more case namely, Tufail Ahmad vs. Union of India (4 ). The first question that calls attention is whether a civilian employee of the Defence Department is a civil servant who can claim protection of Art. 311 of the Constitution. I may read that Article : Art. 311 - Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.- No person who is a member of a civil service of the Union or an All India 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 except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry : Provided that this clause shall not apply - (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge ; or (b) where the authority empowered to dismiss or remove a person to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor as the case may be, is satisfied that in the interest of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. " Now there is a broad division of the Government servants in two classes, namely, those belonging to the Defence Department and others. Even amongst the Government servants under the Defence Department there are two sub categories; those belonging to the Armed Forces who are governed by the Army Act, Air Force Act and Navy Act as the case may be and those who are not so governed. The former will be having a rank in the force but the civilians under the Defence Department would be discharging duties akin to civilians elsewhere and will not be governed by the Army Act, Air Force Act or the Navy Act as they will not be having any rank in the forces. For the service conditions of such civilian employees of the Air Force, the President has made Rules under Art. 309 of the Constitution known as Civilians in Defence Services (Classification Control and Appeal) Rules, 1952 (hereinafter referred to as 'rules' ). Rule 3 of the rules indicates as to who are the persons to whom the rule shall be applicable - They shall apply to every person paid from the Defence Service Estimates and not subject to the Army Act, 1960. Such a person has to be in whole time employment of the Government of India under the Ministry of Defence. Then there are certain excepted categories with which we are not concerned. These rules, inter alia, make provision for the disciplinary proceedings and the award of punishment. One who is familiar with such disciplinary and appeal rules applicable to civil services can atonce say that they are akin to the Civil Services (Classification Control and Appeal) Rules, applicable to the civil services. There is a provision for appeal as well. Rule 14 lays down that any of the penalties specified in rule 13 may be imposed on any person subject to these rules by the Government or by the appointing authority. Rule 15 lays down the procedure for such enquiries and I may read that rule in full: "15. Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of a Service (other than an order based on facts which had led to his conviction in criminal court or by a Court-Martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witness to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. On completion of the 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 removal 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. This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases for special and sufficient reasons to be recorded in writing, be waived where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged". I have gone through the cases cited by learned counsel on either side and find that there is uniformity of judicial opinion that Art. 311 of the Constitution does not govern a civilian employee of the Defence Department. Indeed learned counsel for the appellant too, has not questioned this. The next important question that, therefore, fells to be considered is the applicability of the pleasure doctrine and allied to it is the question whether the pleasure doctrine could be resorted to by any appointing authority inferior to the President. There is also uniformity of judicial opinion on the question that the President's pleasure under Art. 310 of the Constitution is subject only to Art. 311 of the Constitution. In Baburam Upadhya's case (1) the pleasure doctrine was examined at length by their Lordships.
(3.) SUBBARAO J. as he then was, summarised it in para 22 of the judgement as follows: "the discussion yields the following result (l) In India every person who is a member of a public service described in Art. 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 Art. 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 Art. 311 of the Constitution. (4) The Parliament or the Legislatures of State cannot make a law abrogating or modifying this tenure so as to impinge upon the overridd-en power conferred upon the President or the Governor under Art. 310, as qualified by Art 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 Art. 310 of the Constitution read with Art. 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 Art. 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. " It will be evident from the above that under Art. 310 of the Constitution it is the President's or the Governor's pleasure,as the case may be, to appoint or dismiss a Government servant and it can be subject only to the express provisions of the Constitution, namely, Art. 311 thereof and further this pleasure can be exercised only by the President or the Governor as the case may be and cannot be delegated to any subordinate officer. Now when the President or the Governor makes the rules in exercise of his powers under Art. 309 of the Constitution, they have the same force as the law made by the Parliament or State Legislature as the case may be. Therefore, it is an error to call such rules merely instructions. Such law when made has to be complied with by the authorities created under the rules and if they fail to comply with the rules or act in breach thereof then their action is undoubtedly open to judicial review and such authorities cannot rightly take shelter behind the plea that the concerned servant was an employee of the Defence Department and was dismissed at pleasure. The matter might be different if the President himself were to pass the order of dismissal. The position has been considered at length in the Punjab Full Bench case. The history of pleasure doctrine has been traced. The changes it had undergone under the Government of India Act 1935 as well as the Indian Constitution have been pointed out and then the position was examined in the light of Baburam Upadhya's case (1) and other cases. Grover, J. (as then he was) in delivering the judgment of the Full Bench observed that, "if such rules or statutory provisions exist and the competent authority proceeds to exercise power in the matter of taking disciplinary action against a Government servant it is bound to follow the procedure prescribed by such provisions and their non-compliance would be justiciable" In Jagan Nath's case (3) the learned judge observed : "it is now well settled that even if the provisions of Article 311 of the Constitution are not applicable to the case of the petitioner still he is entitled to the protection and the procedure provided by Rules framed under Art. 309 of the Constitution regulating the condition of service and if a public servant is able to show violation of any such Rule the same is justiciable. " This was a case of a civilian employee, namely, a Chowkidar in the Military Farm Depot, Bikaner who was dismissed by the Deputy Director of Military Farm, Headquarter, Southern Command, Kirki on the charge of gross neglect of duty as well as theft of Government property. I am in respectful agreement with this view. Unless the statute itself bars the jurisdiction of a civil court either expressly or by necessary intendment the civil court will be having jurisdiction in a matter like the present when the breach of the relevant statutory rules while ordering the removal or dismissal of the employee is alleged. The Rules for the civilians in Defence Services do not contain any provision by which the jurisdiction of the civil court can be said to be barred. The learned Munsiff and the Senior Civil Judge were, therefore, in error in thinking that the suit was barred. The result is that I allow this appeal, set aside the decree of the learned Senior Civil Judge and remand the case to the learned Munsiff. He shall try all the issues afresh except issues Nos. 1, 2, 4 and 6 which are covered by the present judgment and then decide the case according to law. The costs of the appeal shall abide the result. . ;