NAUBAT RAI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a rule obtained by Naubat Rai, who was at one time the Manager of the Military Dairy farm in Ambala Cantonment and previous to that at Bangalore at all relevant times praying for an appropriate writ to issue against the order of his removal from service passed on the 17th or 19th of November 1951. The petition was originally filed on 22-11-1951, which was supported by an affidavit and a supplementary petition was filed on 22-4-1952 which gives some additional facts and grounds.

(2.) THE petitioner alleges that he was in the service of the Military Farms Department of the government of India for about 29 years and was due to retire in July 1952. One of the annexures attached to the petition shows that he has chosen the new pension rules; that he had been granted a gazetted status as from 8-8-1945 (vide annexure A), that on 6-9-1949 an enquiry was instituted against him at the instance of one Jamadar Kishan Singh who complained that the petitioner was using a car belonging to a military contractor and that cleaner Yaqub put in four gallons of petrol belonging to the military in this car which was standing in the compound of the petitioner. Thereupon, it is alleged, a Court of Enquiry was constituted by the Sub Area Commandar, bangalore, who recorded statements of witnesses behind the back of the petitioner on 8-9-1949, that the Court of Enquiry gave its finding on 12-9-1949, which is annexure C/1, that on the next day, i. e. , 13th September, the Sub-Area Commander suspended the petitioner but sub-sequently on his representation this order of suspension was set aside on 17-9-1949, that on 9-11-1949 a charge-sheet was sent to the petitioner to which he was to submit his defence before the 16th november, the charge-sheets being Annexures G and H, but no statement of the allegations on which the charges were framed was sent to him as required by Army Instructions, India, No. 212 of 1949. On 19-11-1949, the petitioner submitted his statement which is annexure I. Continuing, it is alleged that on 20-6-1950 the Assistant Director of Military Farms sent a communication to the petitioner asking him if he wished to further cross-examine any witnesses and this is Annexure J. In reply to this a written statement dated 31-7-1950 was sent and this is annexure K. A letter D/-25-9-1951, Annexure L, was sent to the petitioner along with annexure M D/- 21-9-1951 calling upon him to show cause why he should not be removed from service. To this an explanation dated 7-10-1951. Annexure N, was sent and he was finally removed bv an order, which is annexure O, dated 17th/19th November 1951 removing the petitioner from service with effect from 24-11-1951. The petitioner attacks the legality of this order which he submits is opposed to the mandatory rules of procedure on the ground that the provisions of Article 311, Constitution of India, had not been complied with, that along with the charge-sheets the statement on which each charge was based was not communicated, that the witnesses on the strength of whose statements he was found guilty were not examined in his presence, that the Sub Area Commander, Bangalore, had no authority to constitute the Court of Enquiry and he had no jurisdiction over the petitioner, that no disciplinary action could be taken against the petitioner for an offence which had not been clearly proved (reliance for this was placed on Army Instructions (India) No. 212 of 1949), and that the findings of the Court were vague and indefinite as to the guilt of the petitioner and he had been materially prejudiced by "the erroneous mode in which the proceedings have been conducted and decision taken". The prayer clause was as follows : "that therefore the petitioner prays as under : (a) that this Hon'ble Court may be pleased to hold that the proceedings against the petitioner ending with his removal were contrary to law and in violation to the petitioner's constitutional rights; (b) that this Hon'ble Court in the exercise of powers granted under Articles 226 and 227 of the constitution of India may be pleased to direct that as the order of the removal of the petitioner is void and of no legal effect the petitioner be not removed from service; (c) that pending the final disposal of this petition this Hon'ble Court may be pleased to pass an 'ad interim' order restraining the respondents from removing the petitioner with effect from 24-11-1951; and (d) that this Hon'ble Court may be pleased to pass such other orders or give directions either in addition or in the alternative as it may deem expedient in the circumstances of the case. "

(3.) IN the supplementary application made on 22-4-1952, it was alleged that the petitioner was a civilian Gazetted Officer and this was said to be clear from certain letters referred to in paragraph 4 of the petition, that he continued to hold the position of a gazetted officer beginning from 8-8-1945, that on 16-8-1949 the Ministry of Defence appointed the petitioner as a Farms officer, that at the time of the offence he was a Farms Officer and therefore he could not be dismissed or removed from service except by the order of the Ministry of Defence, and therefore the order of the Director of Farms removing the petitioner from service was without jurisdiction and illegal. It was further stated in the petition that the proceedings of the Court of Enquiry beginning from its constitution and right up to the order of removal were without jurisdiction and ultra vires on the ground that the Court of Enquiry was not constituted at the instance of an officer entitled to constitute a Court, that the result of the enquiry was not sent to the Director of Remount, veterinary and Farms, and that the constitution of the Court of Enquiry was not proper as there was no officer of the Department of Farms or the Court of Enquiry. The legality of the order was further attacked on the ground that the statements on which esch charge was based had not been supplied nor the opinion of the Sub-Area Commander Bangalore or of the General Officer commander-in-Chief, Southern Command, given to the petitioner and the Court of Enquiry was held as if the Army Act applied and that the Public Service Commission had not been consulted as required by Article 320 (3), Constitution of India.