Shah, J.— J.M Ajwani — appellant in this appeal — joined the Military Engineer Service on July 2, 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, 1950 Commander Works Engineer, Poona, served a charge-sheet upon the appellant requiring him to submit his defence to the following two charges:
“1. Dishonesty—
(a) Intent to defraud — in that he ordered his subordinate Mukund Lal, Superintendent Grade II to fill up falsely muster roll for the period June 2 to June 18, 1949 with the names of 30 labourers whereas he knew that only 6 had actually been employed and falsely initialled the same on June 3, 9 & 14, 1949 knowing the said documents to be false.
(b) Dishonestly misappropriating the property of Government — in that he at Dehu Road dishonestly misappropriated 2000 cubic ft. of stores — the property of the Government.
2. Fraud—
In that he at Dehu Road during May 1949 prepared exaggerated statements of the re-roofing work carried out as an result of storm damages in May 1949 by the contractors Kanaya Lal and Sons and C.S Sanghvi for which he received a sum of Rs 200 from the said contractors.”
The appellant was supplied copies of the muster roll, the appellant's statement in the proceedings before the court of Inquiry, statement made by one Mukund Lal and other relevant documents. By his reply dated November 6, 1950 the appellant submitted that he was a “civilian employee” of the defence establishment and that the procedure for making an inquiry against him was prescribed by Rules 49 & 55 of the Civil Services (Classification, Control and Appeal) Rules, and not by Army Instruction No. 212. He also claimed that he was “all along treated as an approved de facto” in the case against Major S.R.M Naidu “who was expected to go up and face a court Martial in due course of time”. The Commander Works Engineer submitted his report to the Chief Engineer, Southern Command. On December 5, 1950, the appellant was informed that the Chief Engineer proposed to dismiss him “from service forthwith” and invited him to show cause why that decision should not be implemented. The appellant submitted his statement on December 20, 1950. By order dated January 13, 1951 the Chief Engineer informed the appellant that he was dismissed from service with effect from January 15, 1951.
11. 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 January 13, 1951 was illegal, void and inoperative, and alternatively for an order that he 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 statements attributed to him were made by him “as an approver de facto” on assurances from Major S.K Anand and Lt. Column Nautiyal that he would be “completely exonerated from every charge against him” if he deposed in the way that he did.
12. The Civil Judge, Senior Division, held that the order dated January 13, 1951 dismissing the appellant was “illegal, void and inoperative” and ordered that the appellant be reinstated as Superintendent B/R Grade I, 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 a service relating to defence was not entitled to the protection of Article 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 Rule 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.
13. The principal question which falls to be determined in this appeal is whether the appellant was holding a “civil post” under the Union and could be dismissed from service only after an enquiry made in accordance with the procedure prescribed by Article 311 of the Constitution. It is common ground that if Article 311 of the Constitution applies to the appellant, the requirements of clause (2) of that Article have not been complied with. By Article 310(1) every person who is a member of a defence service or of a civil service of the Union or of an all-India Service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State. The first part of Article 310 classifies the servants of the Union into five categories: (i) members of the defence service; (ii) members of civil service of the Union; (iii) members of an all-India service; (iv) members holding posts connected with defence; and (v) members holding civil posts under the Union. All these persons by the express declaration contained in Article 310 hold office during the pleasure of the President. But the exercise of the pleasure of the President is neither arbitrary nor absolute. Article 311 provides that no person who is a member of a civil service of the Union or an all-India service or who holds a civil post under the Union shall be dismissed or removed by an authority subordinate to that by which he was appointed, nor shall he be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and is given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, and only on the basis of the evidence adduced during such inquiry. Again if Rules are framed under Article 309 regulating the conditions of service of an employee of the Union, the pleasure of the President will be exercised in the manner provided and subject to the guarantees prescribed by those Rules.
14. Counsel for the appellant contended that the appellant who was employed as an Engineer in the Military Service, was holding a civil post under the Union and on that account he could be dismissed from service after an inquiry made in accordance with the Central Civil Services (Classification, Control and Appeal) Rules. We are unable to accept this argument. The appellant did not hold any military rank: he was not also governed directly by the Army Act. That is common ground: but on the evidence it must be held that he is holding a post “connected with defence”. Regulations framed by the Government of India for the Military Engineer Service, 1936 provide by clause 3 that the Military Engineer Service shall perform engineering services for the authorities specified including the Army generally under instructions from GO, C-in-C, GOs.C Districts, and authorities subordinate to them, Army Ordnance and Clothing Factories under instructions from the C.-in-C., and Superintendents of Factories, the RAF, the RIN, the Civil administration in the North-West Frontier Province, the Civil administration in Baluchistan, Civil Departments of the Government of India as regards certain civil and ecclesiastical works, and in the Kabul Legation. Clauses 5 & 6 set out the works which may be carried out by the Military Engineer Service. By para 70 the technical control over the Military Engineers is vested in the Engineer-in-Chief at Army Headquarters who is the head of the MES, and is exercised through Chief Engineers and the Engineers Executive. By para 119 it is provided that qualified civilians are appointed as SDOs and Surveyor's Assistants by the Engineer-in-Chief. Chief Engineers are vested with full powers, subject to financial Rules and CSR to appoint, administer and control all members amongst others of Superintendent establishment. Posting to and transfers between commands are made by the Engineer-in-Chief.
15. The remuneration of the appellant was payable out of the “defence estimates”. He was appointed by Military authorities and was subject to the control of those authorities, and by the constitution of the service was performing duties connected with defence establishments. The argument of counsel for the appellant that only those persons who hold “ex-cadre posts” in the Military and perform duties which are strictly performable by the defence forces hold posts connected with defence cannot be accepted. In our judgment, the expression “post connected with defence” means posts which are auxiliary to or are directly related or incidental to the tasks performable by the defence forces, or require performance of duties on which the effective functioning of the defence forces both in times of peace and war depends. Applying that test we are unable to hold that the appellant who was appointed by the Chief Engineer, Northern Command, in the Military Engineer Service and was then transferred to perform duties of Superintendent B/R Grade I at Dehu Road Military Establishment in the Military Engineer Service and whose salary was paid out of the defence estimates was not holding a post connected with defence.
16. As already observed Article 311 applies only to the dismissal and removal from service of members of civil service of the Union, or of an all-India service or of persons holding civil posts under the Union and not to the members of the defence service or service connected with defence. Protection of Article 311(2) of the Constitution could not therefore be claimed by the appellant. The Civil Services (Classification, Control and Appeal) Rules apply to persons “in the whole-time civil employment of a Government of India”, and the appellant who holds a post connected with defence is not within that description.
17. The next question which falls to be determined is whether the appellant was removed in exercise of the power under Article 310 vested in the President or whether he was removed from service in exercise of the power conferred by and in the manner prescribed by Rules framed under Article 309 of the Constitution. On this question the materials placed before the court are very obscure. We have no evidence before us as to when the Military Engineer Service was constituted: nor is there any evidence to show whether the Army Instructions dated June 25, 1949 on which reliance has been placed were framed in exercise of any legislative authority or they were purely executive instructions issued by the Defence Department. Counsel appearing for the parties were unable to enlighten us on these questions. But on the view we take, it is unnecessary to probe into those questions. We need only observe that the argument which was advanced before the High Court that the President alone may in his exclusive personal discretion exercise the power under Article 310 has, in our judgment, no force. By Article 73 of the Constitution the executive power of the Union extends to all matters with respect to which the Parliament has power to make laws, and by Article 77(3) the President is competent to make Rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. If the power to determine employment under Article 310 is exercised in the name of the President in accordance with the Rules framed under Article 77 of the Constitution, no objection can be raised to the validity thereof.
18. In the present case, counsel for the Union contends that Army Instructions have been framed prescribing the conditions of service of the Military Engineers, and the requirements of those Army Instructions have been duly complied with. Army Instruction No. 212 on which reliance is placed provides by Rule 6 that:
“No order of dismissal, removal or reduction shall be passed on a Government servant unless he has been afforded an adequate opportunity for defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the persons charged together with a statement of the allegations on which each charge is based and of any other circumstance which it is proposed to take into consideration in passing orders in the case. He will be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegation as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and have such witnesses called as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and statement of the findings and the grounds thereof.
In case a Board of Inquiry is held to investigate into an incident and no formal charges have been framed against anyone at this stage, a Government servant, involved in the incident against whom disciplinary action is contemplated should subsequently on the basis of the findings of that Board of Inquiry, be served with a charge-sheet and asked to put in a written statement in his defence within a reasonable time. He should also be furnished with a copy of the proceedings of the Board of Inquiry and asked whether he wishes further to examine or cross-examine any witness. If he expresses a desire to do so, the officer conducting the enquiry should arrange to summon the witness concerned provided that officer may, for special and sufficient reasons to be recorded in writing, refuse to call a witness.
note 1: This Rule shall not apply where the person concerned has absconded, or where it is for other reasons impracticable to communicate with him.
note 2: All or any of the provisions of the Rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is difficulty in observing exactly the requirement of the Rule and these requirements could be waived without injustice to the persons concerned”.
Rule 8 provides for the notice to show cause. It says:
“On completion of the enquiry after the punishing authority has considered the defence of the accused and arrived at a provisional conclusion in regard to the penalty imposed the accused must, if the penalty proposed is dismissal, removal or reduction, be called upon to show cause within a reasonable time not ordinarily exceeding a fortnight, against the particular penalty proposed to be inflicted. Any representation submitted by the accused in this behalf should be duly taken into consideration before final orders are passed.
* * *”
It is not necessary in this case to consider whether a breach of Army Instruction No. 212 confers a cause of action to the person affected thereby, because in our view, for reasons to be presently set out, we are unable to disagree with the view of the High Court that the appellant having at no stage denied the truth of his statement in the proceeding before the court of Inquiry against Major S.R.M Naidu, “an enquiry would have been fruitless” and that there was no substantial breach of the Army Instruction.
19. Counsel for the appellant submitted that the appellant was not given a personal hearing though he repeatedly asked for such hearing, that he was not given inspection of the documents which he desired to inspect, and no formal inquiry held, nor was presence of witnesses procured for cross-examination even though he insisted upon the presence of such witnesses. It is true that in the letter dated November 1, 1950 calling upon the appellant to submit his defence, the appellant was informed that he will be informed of the date on which he will be heard in person or required to submit his defence in writing as he may desire. Thereafter in his statement dated November 6, 1950, the appellant had stated that he desired to be heard in person by the Chief Engineer, Southern Command, and he further stated in his representation dated December 20, 1950, that he desired to be heard in person and that he had made a request to that effect on November 6, 1950. It may be noticed that the inquiry was made by the Commander Works Engineer and the request made by the appellant was for hearing before the Chief Engineer, Southern Command. Again it appears from the statements made in the representation dated November 6, 1950, that the appellant did not deny the correctness of the statements made by him in the course of the proceeding against Major S.R.M Naidu: he merely contended that those statements were inadmissible in evidence and could not be used against him and that in any event he was in the position of an approver in the case against Major S.R.M Naidu and should on that account “have been let off whatever his faults and given a chance to turn a new leaf”. The appellant did make requests for inspection of certain documents and files. By letter dated September 12, 1950 the appellant was informed that the charge-sheet was based on the proceedings of the court of Inquiry, relevant parts of which had already been shown to the appellant, and he was informed that copies of the summary of evidence taken by Lt. Col.M.M Pillai and Major Shorey were not, therefore, considered necessary, and therefore those documents could not be made available to him for reference. He was also told that he cannot be shown all the files and registers in the Sub-Division and Division, but if he wanted to inspect any “named files or registers”, they will be made available to him “on receipt of information about the subject-matter of the files he wished to refer if the file Numbers were not known to him”. This letter does not justify the grievance sought to be raised before us that the files and registers were withheld from the appellant. The appellant was only told that he may not have a roving inspection of all the files and registers: he was told that whatever documents he wants to inspect will be made available to him if he specified either the file numbers or gave other information relating to the subject-matter from which the files may be traced. He was also told that the relevant parts of the proceedings of the court of Inquiry were shown to him and therefore it was considered unnecessary to supply the summary of the evidence recorded by the officer concerned. By letter dated September 25, 1950 the appellant asked for inspection of the documents referred to in his letter dated September 16, 1950. He was then again asked to furnish details of the documents of which he wanted inspection. It appears that thereafter the certain documents which the appellant desired to inspect were made available to him. By letter dated October 12, 1950 the Commander Works Engineer gave the appellant an opportunity to examine and inspect all documents which were relevant to the charge framed against him and called upon him to submit a list of other document but the appellant failed to do so. Thereafter it does not appear that any further request was made for production of any documents.
20. It appears that no witnesses were examined either before the Commander Works Engineer or before the Chief Engineer. The appellant in the first instance requested that Mukund Lal, Superintendent B/R Grade II, Major S.K Anand, Major S.R.M Naidu and Lt. Col.S.R Nautiyal be kept present “for the purpose of examination or cross-examination”, and he referred to that request again in his letter dated November 22, 1950. By letter dated October 12, 1950, the appellant was informed that Major S.R.M Naidu “had been released from the Army service” and Mukund Lal, Superintendent B/R Grade II had since been discharged and their presence could not be arranged by the Department for cross-examination. He was also told that the cross-examination of Lt. Column Nautiyal and Major S.K Anand was not relevant to the charge framed against him since those officers were not serving at Dehu Road “during the period to which the charge related”. In his representation dated December 20, 1950 before the Chief Engineer, he again requested that three other officers, besides Major S.R.M Naidu, Lt. Column Nautiyal, Major S.K Anand and Mukund Lal, may be kept present for cross-examination, but apparently for reasons already given by the Commander Works Engineer, no arrangements were made for the examination of those witnesses.
21. It is true the inquiry was not held strictly in accordance with the terms contained in Rules 6 & 8 of the Army Instructions. But as observed in this minute made by the Commander Works Engineer, at no stage in his evidence did the appellant deny the charges against him nor did he attempt to refute the evidence which was based on his own admissions before the court of Inquiry, and the assertion made by the appellant that he was “treated as an approver” was not borne out by any record and could not be accepted as correct. The Chief Engineer was of the opinion that the appellant was asking for cross-examination of the witnesses “in order to delay the completion of the inquiry”. In the view of the District Judge the Army Instructions did not provide for a personal hearing and since the appellant had admitted his guilt and had not denied the truth of his statements no prejudice was caused to him because he was not given a personal hearing. The High Court also agreed with this view.
22. The contention of the appellant appears to have been at all relevant stages that the evidence given by him was inadmissible, because of Rule 158-L framed under the Army Rules, and that in any event he was in the position of an approver and he should have been let off whatever were the admissions he made. Rule 158-L of the Army Rules on which reliance was placed provides that:
“The proceedings of a court of Inquiry, or any confession, statement or answer to a question made or given at a court of Inquiry, shall not be admissible against a person subject to military law, nor shall any evidence respecting the proceedings of the court be given against any such person except upon trial of such person for wilfully giving false evidence before the Court.”
We hold that admissions relating to misappropriation of funds, dereliction of duty, or fraudulent conduct made by a witness in a proceeding before a court of Inquiry under the Indian Army Rules are not inadmissible in a departmental proceeding against the witness for determining whether he is fit to be continued in post connected with defence. In our judgment, the prohibition applies in enquiries and trials under the Army Act, and not in departmental enquiries against a public servant in respect of delinquency by him justifying his removal from service, or other punishment. Nor can the witness claim in a departmental enquiry that when he made the admissions he was in “the position of an approver”. Undoubtedly he can show that the admissions were untrue: but if he admits the truth of the statements he cannot claim that the statements be excluded from consideration against him. It was claimed before the Enquiry Officer that the appellant gave evidence against Major S.R.M Naidu at the behest of Lt. Column Nautiyal and Major S.K Anand and the appellant desired to prove that fact, but it was never the case of the appellant that he bore false testimony at the request of those two officers. The statements made by the appellant clearly show that he was guilty of the charges raised against him and the District Court and the High Court have held that even if inquiry has not been held strictly in accordance with the Rules, the appellant was liable to be dealt with in the manner directed by the departmental authorities. Since the order impugned by him could be made on his own admissions the District Court and the High Court held that the inquiry was not inconsistent with the Rules of natural justice. The appellant never denied the truth of the statements attributed to him, and those statements established the case of the State against him. It would be difficult to hold that because the Enquiry Officer did not act strictly according to the Rules a fresh inquiry should be directed to enforce compliance with the Rules. Nor can it be said, having regard to the circumstances of the case, that the view taken by the District Court and the High Court that there was no violation of the Rules of natural justice was unjustified. We will not in an appeal under Article 136 of the Constitution be justified in interfering with the conclusion of the High Court on the question whether there was substantial non-compliance with the Rules of natural justice, or the procedure prescribed by the Army Instructions.
23. The appeal is therefore dismissed. In the circumstances of the case, however, we direct that there will be no order as to costs throughout.