J M AJWANI Vs. UNION OF INDIA

JUDGEMENT

(1.) Appellant in this appeal-joined the Military Engineer Service on 2/07/1941 and in 1947 he was posted at Dehu Road as Superintendent B/r Grade I in the office of the Chief Engineer, Southern Command, Poona. At a court of Inquiry set up to investigate certain charges against one Major S. R. M. Naidu of the Dehu Road Military Establishment the appellant was examined as a witness and in the course of his statement the appellant admitted that he had committed certain gross irregularities and defalcations of public funds. On August 16, 19;0 commander Works Engineer, Poona, served a charge sheet upon the appellant requiring him to submit his defence to the following two charges :-

(2.) The appellant then filed a suit in the court of Civil Judge, Senior Division, Poona, against the Union of India for a declaration that he "continued to be in service as Superintendent B/r Grade I in the M. E, S. India" and for a declaration that the order of dismissal dated 13/01/1951 was illegal, void and inoperative and alternatively for an order that be reinstated as Superintendent B/r Grade I in M. E. S. India. The principal grounds set up by the appellant were that proceedings against him were held by an authority incompetent in that behalf, that he was denied a fair trial before the Enquiry Officer because his request to inspect certain documents and files and to cross-examine certain witnesses named by him was turned down, that the copies of the statements and documents which the appellant wanted to examine were not made available to him that his request to be heard in person was turned down by the Chief Engineer, Southern Command, Poona, that the enquiry against him contravened the Civil Services (Classification, Control and Appeal Rules, 1955, and other Rules in that behalf, and that the statement attributed to him were made by him "as an approver de facto" on assurances from Major S. K. Anand and Lt. Col. Nautiyal that he would be "completely exonerated from every charge against him" if he deposed in the way that he did.

(3.) The Civil Judge, Senior Division, held that the order dated 13/01/1951, dismissing the appellant was "illegal, void and inoperative" and ordered that the appellant be reinstated as superintendent B/r Grade 1, M. E. S. In appeal by the Union of India against the Judgment and decree of the Civil Judge, the District Judge, Poona found that the appellant being employed in s service relating to defence was not entitled to the protection of Art. 311 of the Constitution, and that his case was governed by Army Instruction No. 212 under which a Civil government Servant who is paid his salary from the "defence service estimates" is liable to be dismissed on charges of dishonesty and fraud. The District Judge further held that the documents of which inspection was demanded by the appellant were not relevant to the inquiry proposed to be made against him, that the Army Instruction No. 212 did not provide for a hearing in person, that the appellant was not, in the enquiry against Major S. R. M. Naidu, "an approver de facto" as claimed by him, that he had no right to examine witnesses in response to show cause notice, that the Enquiry Officer in relying upon his statement before the court of Enquiry did not violate r. 158-L of the Indian Army Rules, and that since the appellant did not in his statements deny the charges, no prejudice was caused to him merely because he was not afforded a personal hearing. The High court of Bombay confirmed the decree of the District Judge. The appellant has appealed to this court with special leave.