HUKUM CHAND MALHOTRA Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal by special leave and the only question for decision is if the order of the President dated October 1, 1954 removing the appellant from service with effect from that date is invalid, as claimed by the appellant, by reason of a contravention of the provisions of Art. 311 (2) of the Constitution.

(2.) The short facts are these. The appellant stated that he joined permanent Government service, on April 4, 1924. In 1947, before partition, he was employed as Assistant Secretary, Frontier Corps of Militia and Scouts in the then North -Western Frontier Province, under the administrative control of the External Affairs Department of the Government of India. The appellant stated that the post which he held then was a post in the Central Service, Class II. After partition, the appellant opted for service in India and was posted to an office under the Ministry of Commerce in the Government of India in October, 1947. In December, 1949 he was transferred to the office of the Chief Controller of Imports, New Delhi, to clear off certain arrears of work. In August 1951 he was posted as Deputy Chief Controller of Imports, Calcutta, and continued to work in that post till September, 1952. He then took four months' leave on average pay and on the expiry of his leave on January 24, 1953, he was transferred as Section Officer in the Development Wing of the Ministry of Commerce. The appellant thought that the order amounted to a reduction of his rank and he made certain representations. As these representations bore no fruit, he applied for leave preparatory to retirement on February 6, 1953. In that application the appellant stated:

(3.) The appellant then moved the Punjab High Court by a petition under Art. 226 of the Constitution in which his main contentions were (a) that he had no opportunity of showing cause against the action proposed to be taken in regard to him within the meaning of Art. 311(2) of the Constitution and (b) that he had asked for leave preparatory to retirement and accepted service under Albert David and Co. Ltd., in the bona fide belief that Government had no objection to his accepting such private employment. Dulat J., who dealt with the petition in the first instance, held against the appellant on both points. He found that there was no contravention of the provisions of Art. 311(2) of the Constitution and on the second point, he held that on the facts admitted in the case there was no doubt that the appellant had accepted private employment in contravention of the rules governing the conditions of his service and there was little substance in the suggestion of the appellant that he had no sufficient opportunity to produce evidence.