# LEKH RAJ KHURANA v. UNION OF INDIA

- **Citation:** [1971] 3 S.C.R. 908
- **Court:** Supreme Court of India
- **Decided:** 1971-03-03
- **Case number:** Civil Appeal No. 1719 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lekh-raj-khurana-v-union-of-india-5453
- **Pages:** 6

## Headnote

908
LEKH RAJ KHURANA
v.
UNION OF INDIA
March 3, 1971
IS. M. SIKRI, C.J., G. K. MITTER, K. s. HEGDE, A. N. GROVER
AND P. JAGANMOHAN REDDY, JJ.]
Constitution of India,
1950--Articlc 3ll-Civi1ian employee of
Dejence Service-If entitled to protec(ion of Article.
Slatutory Rules-Breach of-justiciability Natural Justice-If can be
invoked under general law of 1naster and servant.
The appellant was. appointed in 1942 as Labour Supervisor, Army
Ordance Corps.
In 1951, pending inquiry into certain charges against'
him his ·service was terminated by givin~ him one month's notice under
rule 5 of the Civilians in Defence Services (Temporai:v Service) . Rules,
1949.
He challenged the kgality of the order of termination on the
grounds that it had been passed by an officer subordinate to the a1,1thority who appointetl him and that no adequate opportunity had been
afforded to him of defending himself.
He also alleged that ·the Order
was vitiated by ma/a /ides.
In the appellant's appeal against the dismissal
·Of his suit the High Court held that Article 311 of the Constitution was
inapplicable, that breach of the Rules did nor give an aggrieved party
a right to go to the Court and that the Order was not vitiated by
ma/a fides.-Dismissing the appeal to this Court.
HELD : The appellant, holding a post connected with Defence cannot
claim the protection of Article 311 of the Constitution.
Jugatrni Mahinchcnd Ajwani v. Union of India C.A. 1185 ·of 1965 dt.
6-2-67 and S. P. Bahl v. Union of India C.A. 1918 of 1966 dt. 8-3-68;
followed.
(ii) The view of the High Court that the rules are not justiciable
.cannot he sustained.
Breach of statutory rules in relation to conditions
·Of service would ·entitle the aggrieved government servant to have recol.frsc
to the court for redress.
R. Venkataro v. Secretary of State, A.I.R. 1937 P .C. 31, T/ie State
.of Uttar Pradesh & Others v. Ajodhya Prasad, [1961) 2 S.C.R. 671 and
State of Mysore v. M. H. Bellary, [1964) 7 S.C.R. 471, referred to.
Jn the present case the order of. discharge has been passed by the ·
,~ppointing authority as required by rule 5 ..
(iii) In the appeal before this Court the finding on the point of
ma/a fides must be accepted as final and the appellant cannot be allowed
·to re-agitate that n1atte~s.
A
B
c
D
F
F
G
(iv) As regards the applicability of the rule of natural justice it has
H
not been shown how under the general Jaw of master and selrvant, in the
I
absence of any protection conferred by Article 311 of the Constitution,
"Such a rule can be invoked.
•
I
-
LEKHRAJ v. UNION (Grover, !.)
909
A

## Text

908
LEKH RAJ KHURANA
v.
UNION OF INDIA
March 3, 1971
IS. M. SIKRI, C.J., G. K. MITTER, K. s. HEGDE, A. N. GROVER
AND P. JAGANMOHAN REDDY, JJ.]
Constitution of India,
1950--Articlc 3ll-Civi1ian employee of
Dejence Service-If entitled to protec(ion of Article.
Slatutory Rules-Breach of-justiciability Natural Justice-If can be
invoked under general law of 1naster and servant.
The appellant was. appointed in 1942 as Labour Supervisor, Army
Ordance Corps.
In 1951, pending inquiry into certain charges against'
him his ·service was terminated by givin~ him one month's notice under
rule 5 of the Civilians in Defence Services (Temporai:v Service) . Rules,
1949.
He challenged the kgality of the order of termination on the
grounds that it had been passed by an officer subordinate to the a1,1thority who appointetl him and that no adequate opportunity had been
afforded to him of defending himself.
He also alleged that ·the Order
was vitiated by ma/a /ides.
In the appellant's appeal against the dismissal
·Of his suit the High Court held that Article 311 of the Constitution was
inapplicable, that breach of the Rules did nor give an aggrieved party
a right to go to the Court and that the Order was not vitiated by
ma/a fides.-Dismissing the appeal to this Court.
HELD : The appellant, holding a post connected with Defence cannot
claim the protection of Article 311 of the Constitution.
Jugatrni Mahinchcnd Ajwani v. Union of India C.A. 1185 ·of 1965 dt.
6-2-67 and S. P. Bahl v. Union of India C.A. 1918 of 1966 dt. 8-3-68;
followed.
(ii) The view of the High Court that the rules are not justiciable
.cannot he sustained.
Breach of statutory rules in relation to conditions
·Of service would ·entitle the aggrieved government servant to have recol.frsc
to the court for redress.
R. Venkataro v. Secretary of State, A.I.R. 1937 P .C. 31, T/ie State
.of Uttar Pradesh & Others v. Ajodhya Prasad, [1961) 2 S.C.R. 671 and
State of Mysore v. M. H. Bellary, [1964) 7 S.C.R. 471, referred to.
Jn the present case the order of. discharge has been passed by the ·
,~ppointing authority as required by rule 5 ..
(iii) In the appeal before this Court the finding on the point of
ma/a fides must be accepted as final and the appellant cannot be allowed
·to re-agitate that n1atte~s.
A
B
c
D
F
F
G
(iv) As regards the applicability of the rule of natural justice it has
H
not been shown how under the general Jaw of master and selrvant, in the
I
absence of any protection conferred by Article 311 of the Constitution,
"Such a rule can be invoked.
•
I
-
LEKHRAJ v. UNION (Grover, !.)
909
A
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1719 of
1967.
AppeaJfrom the judgment and decree dated May 23, 1961 of
the Punjab High Court, Circuit Bench at Delhi in Regular Second
Appeal No. 43-D of 1956.
B
N. N. Keswani, for the appellant.
V. A. Seyid Muhammad and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Grover, J.
This is an appeal by certificate from a judgment
c
and decree of the Punjab High Court
(Circuit Bench, Delhi}
by which the suit filed by the appellant for a declaration that
the order dated May 26, 1951 directing' his removal from ser11ice
was wrongful, illegal and void and that he still continued to be
in the service of the respondent as Supervisor, Army Ordnance
Corps
D
E
F
G
According to the allegations in the plaint the appellant was
appointed by the Governor-General in July 1942 as Supervisor.
Army Ordnance Corps which, according to him, was
a civil
post under the Crown in India.
In the months of September
and October, 1950 the appellant was served with chargesheets
by the Ordnance Officer, Administration,
Shakurbasti,
Delhi
State, where he was poste<l at that time calling upon him to
submit his defence to th! charges of making serious false allegations against his superior officer Maj. H. S. Dhillon. The appellant asked for grant of time for submitting his defence and he
also demanded copies of certain documents etc to prove his case.
On May 26, 1951 while this inquiry was pending he was served
with an order by the Ordnance Officer, Administration, Sbakurbasti, Delhi which was as follows:-
"Under instructions received from Army Headquarters you al'! hereby given one month's notice of
disc~arge with immediate effect, services being no longer
reqmred.
Your services will be terminated on 25th
June, 1951" .
. 'J'.he appellant challen.ged the legality of the
above
order
prmc1pal!y on th.e ground that it ha? been passed by an officer
who wa~ su~ord~~ate to ~he authonty who appointed him and
H
that no !n.qutry
as requ1r~d ~y Fundamental Rules and under
the provmons of the C'onstttuhon of India" had been held · ti·
ma~ter of allegations airninst him and that no adequate ~~po~:
tumty had been afforded to him of defending himself or of show-
910
SUPREME COURT REPORTS
[1971 J 3 S.C.R.
ing cause against the action proposed to l:Je
taken. He also
raised the question of the order being vitiated by mala fides.
In the written statement filed by the Union of India it was stated
that the appellant had been appoined as a Labour Supervisor in
he Extra Temporary Establishment by the COO/Ordnance
Officer Incharge, Ammunition Depot, Kasubeg:u under the
authority of Financial Regulations, India, Part I, Volume
25
and not By the Governor General.
It was pleaded, inter a!ia,
that it was decided by the Government of India vide
Army
Headquarter's letter dated May, 25, 1951 to terminate the services py serving one month's notice.
Consequently a notice of
discharge froni the service was given to him by the Ordnance
Officer, Administration, who was competent to serve the notice
on him under the authority of the Army Order No. 1202/ 1943.
react in conjunction with Financial Regulations refered to before.
A
B
c
The sole material issue which was framed was wh-~ther the
D
order dated May 26, · 1951 removing the appellant from 'ervice.
was illegal, wrong, void, ultra vires and inoperative. The trial
judge held that Art. 311 of the Constitution was applicable to
the case of the appellant and that his removal had not been
. ordered by the appointing authority. The suit was decreed.
respondent preferred an appeal which was decided by the Additional District Judge, Delhi. It was held by him that Art. 31 I
was not applicable to the appelant as he held a post connected
with defence.
According to the learned judge the. ar?ellanfs
services were terminated under Rule 5 of the Civi!ians·in Defence
(Temporary Services) Rules, 1949, hereinafter called the 'Rules'.
It was found that the order terminating the services had been
passed by the proper authority.
The appeal was allowecl and
the suit was dismissed. !he appellant appealed to the High
Court which was dismissed.
His appeal was heard along with
certain other appeals in which similar points were involved. It
was found that the s'alary of the appellant was paid ou:t cf the
esiimates of the Mnistry of Defence and he was intimately connected with the defence of the country not as a combatant but
as a person holding a post the object of which was exclusively
to serve the Military Department. In the opinion of the High
Court Articles 309 and 310 were applicable to the case of the
appellant but Article 311 was inapplicable. ·On the question
whether the services of the
appellant were terminated without
complying with the rules the High Court expressed the view
that the breach of such rules did not give the aggrieved party
a right to go to the court . Reliance in that connection was
placed on the decision of the· Privy Council in R. Venkatarao v.
E
F
G
H
I
A
B
c
D
E
F
I
G
H
LEKH RAJ v. UNION (Grover,/.)
911
Secretary of State(1) .aaid certain other cases in which that decision was followed. In the case of the appellant the only other pOint
which appears to have appear to have been argued on his be·
half and which was decided by the High Court related to the
allegation of mala fides. The decision went against him on that
point.
The question whether the case of the appellant was governed
by Art. 311 of the Constitution stands concluded by two decisions of this court. In Jagatrai Mahinchand Ajwani v.
Union
of lndia( 2 ) it was held that an Engineer in the Military Service
who was drawing hise salary from the Defence Estimates could
not claim the protection of Art. 311 (2) of the Constitution. In
that case also the appellant was found to have held a post connected with Defence as in the present case.
This decision was
followed in S. P. Behl v. Union of India('): Both these decisions
fully cover the case of the appellant so far as the applicability
of Art. 311 is concerned.
Learned counsel for the appellant sought to argue that since
the appellant was admittedly governed by the rules which framed under s. 241(2) of the Government of India Act 1935 he
was entitled to the protection of s. 240 of that Act.
Chapter
I of Part 10 of that Act related to the Defence Services. According to ss. 238, 235, 236 and 237 were applicable to persons
who not being members of His Majest's Forces held or had held
posts in India connected with the equipment or administration of
those forces or otherwise connected with Defence as they applied
in relation to persons who were or had been members of those
forces.
Section 240, to the extent it is material was in the
following terms:-
"240( 1) Except as expressly provided by thi~ Act,
every person who is a member of ! a civil service of
the Crown in India, or holds any civil post under the
Crown in India, holds
office during His Majesty's
pleasure.
(2) No such person as aforesaid shall be dismissed
from the service of His Majesty by any authority subordinate to that by which he was appointed.
( 3) No such person as aforesaid shall be dismissed
or reduced in rank until he has been given a reasonable opportunity or showing cause against the aciion
proposed to be taken in regard to him :
(I) AJ.R. (1937) P.C:. 31.
(3) C. A 1918 of 1966 dt. 8-3-68.
14-LI IOOSup.CI/72
(2) C. A. 1185 of 1965 dt. 6-2-67.
912
SUPREME COURT REPORTS
[1971) 3 S.C.R.
Provided .............. " Section 241
provided
for recruitment and conditions of service.
On behalf of the appellant it was .contended that since· his
conditions of service were governed by the rules which were
framed under the above section, s.240 was clearly applicable
and his services could not h\lve been terminated in terms of subs. (2) of that section by any authority subordinate to that by
which he was appointed nor could he be dismissed or reduced
in rank until he had been given a reasonable opportunity of
showing cause against the action proposed to' be taken in regard
to him. At no stage of the proceedings in the courts below the
appellant relied on s. 240 of the Government of India Act and
rightly so because the order of his discharge or termination of
service was made after the
Constitution had come into force.
It was apparently for that reason that
protection was sought
from Art 311 and not s. 240 of the Government of India Act
1935. We see no reason or .iustification in the present case for
determinil))l; whether a person holding a civilian post which is
'Connect(!(} with the defence and for which he is paid salary and
emolmnents .from the Defence Estimates would be governed by
the .provisions of section 240 of the Government of India Act
if the provisions of that Act were not applicable to the case of
such a servant.
The next question is whether rule 5 of the Rules was applicable and whether the appel!ant could claim the benefi\ of that rule.
It provided, inter-alia, that the service of a temporary :;..,vemment servant who is not in quasi-permanent service shall be liable
to termination at any time by notice in writing given either by the
government servant to the appointing authority or by the appointing authority to the government servant.
The view of the High
Court that the rules were not justiciable cannot be sustained as
the decision of the Privy Council in Venkatarao's case (supra) and
the other cases following that view have not been accepted as laying down the law correctly by this court. It has been held that the
breach of a statutory rule in relation to the conditions of service
would entitle the government servant to have recourse to the court
for redress; vide The State of Uttar Pradesh & Others v. Ajodhya
Prasad(I)
and State of Mysore v.
M. H. Bellary( 2 ). Now
Exhibit P. 3 which is a letter dated May 26, 1951 and which was
produced by the appellant himself shows that one mon.th:s n~tice
of discharge was given by the Ordnance Officer, AdnuRIStration,
under instructions received from the Army Headquarters.
A
<:opy of another letter Exht. P-2 dated May 27, 1951 was pro-
-<iuced according to which it had been decided by the Government
(I) [PSI] 2 S.C.R.671.
(2) [1964] 7 S.C.R.471.
A
B
c
D
{
E
F
I
G
H
_,
·-~--Iit
A
B
c
D
LEKH RAJ v. UNION (Grover, 1.)
913
of India that the services of the appellant be terminated by giving
him one month's notice.
It is true that the original of that let•er
was not produced although it had been summoned by the appellant. It is at least clear that the Ordnance Officer, Administration, had served the notice of discharge under instructions from
the Army Headquarters. In this view of the matter there is no
substance in the contention raised on behalf of the appellant that
the order of discharge had not been made by . the appointing
authority.
At any rate before the High Court there was no
challenge to the finding of the learned District Judge on the point
and a question of fact cannot be allowed to be reopened at this
stage.
The learned counsel for the appellant attempted to reopen
the findiiilg on the question of mala fides and also invoked the rule
of natural justice in so far as the appellant had not been afforded
any opportunity of showing cause against his discharge or tennination of services.
In the appeal before this Court the finding on
the point of ma/a fides mu&t be accepted as final and the appellant
cannot be allowed to reagitate that matter.
As regards the appli·
cability of the rule of natural justice it has not been shown to us
how under the general law of master and servant, in the absence
of any protection conferred by Article 311 of the Constitution
such a rule can be invoked.
The appeal fails and it is dismissed but in view of the cir·
cumstances we leave the parties to bear their own costs in this
E
Court.
R.K.P.S.
Appeal dismissed.