K P SHANKERLINGAM Vs. UNION OF INDIA

JUDGEMENT

(1.) After I had delivered judgment in this case (on June 24th and 25th, 1959) in the case of Balkrishna Bapuji Karkhanis v. State of Bombay, Suit No. 276 of 1954, Mr. R. L. Dalal on behalf of the State contended that by reason of the provisions of Article 310 of the Constitution, the plaintiff in that case was not entitled to maintain his action for a declaration that the order of termination of his services was wrongful and that he was continuing in service in spite of that order. Mr. Dalal relied upon the decision of this Court in Jagdish Dajiba v. Accountant General of Bombay, 60 Bom LR 241: (AIR 1958 Bom 283) in support of that contention. That suit was after considerable arguments settled in Court. This contention appeared to me to be a contention which ought to have been argued and considered in this case. The parties had asked for adjournment of this suit for ascertaining the amount which would be payable by the defendants to the plaintiff in accordance with the judgment. The matter accordingly was not finally disposed of.

(2.) On this suit coming up for hearing on July 13th, 1959. Mr. Baptista raised the contention that the plaintiff's suit was not maintainable. He based his contention on the provisions in Article 310 of the Constitution. He in that connection applied for an amendment of the written-statement in terms of the draft which is now on the record of this suit. The contention was a contention of law and in my view covered by the issues Nos. 11 and 13 in this suit. I accordingly held that the amendment to be unnecessary and refused the application made for amendment. The Defendant's Counsel were aware that this contention would be made and were prepared to meet the same.

(3.) Mr. Baptista has drawn my attention to the provisions of Articles 309 to 313 of the Constitution. His contention is that the tenure of employment of a Government servant is only during the pleasure of the President and/or the Governor and that in respect of his dismissal from service he can have no justiciable cause of action unless there is express provision in the Constitution under which he is entitled to protection. To appreciate this contention it is necessary to refer to the provisions in Articles 310 and 311 of the Constitution. Relevant parts of Articles 310 and 311 provides as follows: