P L D 1959 (W (PLP)

YAQUB ALI, J.--‑This order will dispose of Writ Petitions Nos. 10 and 42 of 1957 by Ghairat Hayat and lqbal Muhammad, ex‑employees of the Central Ordnance Depot, Rawalpindi, respectively which proceed on similar facts.

2. The petitioners were employed as extra‑temporary clerks in the Central Ordnance Depot, Rawalpindi, at the relevant time. On the 14th of December 1954, there was a strike in the Depot and the petitioners were alleged, to have participated in it. They were further accused of having made speeches inciting violence, in consequence of which they, along with some others, were tried under sections 21, 25 and 26 of the Punjab Public Safety Act but acquitted. Thereafter, the Commanding Officer of the Central Ordnance Depot, on the 27th of August 1955, served on the petitioners charge‑sheets for committing acts prejudicial to good order and discipline in that they, on or about the 14th of December 1954, had created an agitation amongst their co workers, thereby causing hinderance in the performance of their legitimate duties. A written explanation to the charge was required to be submitted by the petitioners within seven days.

3. Instead of pleading to the charge, Ghairat Hayat peti tioner asked for some more particulars as to the place, time etc. where he was alleged to have committed the prejudicial act. Iqbal Muhammad petitioner denied that he had participated in this strike and relied upon his acquittal under the aforesaid charges in the trial under Public Safety Act and maintained that in view of judicial pronouncement cf his innocence, there was no ground for serving him with a further charge‑sheet. On .the 15th of September 1955, the Officer Commanding wrote to Ghairat Hayat petitioner that as his explanation had been considered and found unsatisfactory, he should, show cause by the 25th of September 1955, as to why he should not be removed from service. On the following day, the Officer Commanding wrote a letter to Iqbal Muhammad petitioner that he had not received his explanation by then and he should show cause as to why he should not be discharged from service. We have seen the departmental file and discovered that the above explanation of Iqbal Muhammad petitioner had reached the office of the Central Ordnance Depot on the 6th of September and, after being commented upon by the intermediary officer, it was placed before the Officer Commanding. The averment in the letter of the 16th of September 1955 addressed to Iqbal Muhammad petitioner that he had failed to submit his explanation was, therefore, erroneous, but, as will be seen presently, it does not affect the merits of the case. In reply to this show‑cause notice, Ghairat Hayat petitioner again failed to plead and insisted that he should be given more information as to where, why and how the alleged agitation was created by him. Iqbal Muhammad petitioner, however, submitted a detailed explanation reiterating his earlier pleas and maintained that he had regularly attended his office from the 1st to the 13th of December 1954, and that on the 14th, when he came to the office as usual, he was, without any reason, arrested by the police. He disclaimed that he was even a member of the Central Ordnance Depot Workers' Union. Both these explanations were considered unsatisfactory by the Officer Commanding, who dismissed them by separate orders on the 22nd of October 1955, with effect from 14th of December 1954. The petitioners have felt aggrieved by the order of their removal on the ground that no reasonable oppor tunity to show cause against it was provided to them as required by subsection (3) of section 240 of the Government of India Act which was in force at the relevant time and applied for issue of an appropriate writ or direction for their reinstatement.

4. Mr. S. A. Mahmud, the learned Additional Advocate-General, who appeared for the State, conceded that if the petitioners' case fell within the ‑'purview of subsection (3) of section 240 of the Government of India Act, the order of their dismissal could not be sustained in law. But he maintained that the petitioners were neither civil servants nor holders of civil posts within the purview of subsection (1) of section 240 of the said Act. He drew our attention to the provisions or section 238 (now repealed) of the Government of India Act which makes the provision of section 235 applicable in relation to persons who, not being members of His Majesty's forces, hold or have held, posts connected with the equipment or administration of those forces or otherwise connected with defence as they apply in relation to persons who have been members of those forces. Section 235 laid down that the Secretary of State may, acting with the concurrence of his advisers, from time to time, specify what rules, regulations and orders affecting the conditions of service of all or any one of His Majesty's forces in India shall be made with his previous approval. That sections 235 and 238 have since been repealed is immaterial for the purpose of ascer taining who were members of civil service of the Crown in India or held any civil post under the Crown within the purview of subsection (1) of section

240. By comparing the provisions of these two sections with section 240, it becomes obvious the t persons who served in connection with the equipment and administration of armed forces or otherwise connected with defence were not intended to be included within the ambit of section

240. Subsection (3) of section 240 applies to " such persons ", meaning thereby persons enumerated in subsection (1) of that section, that is, members of civil service of the Crown or holders of civil posts under the Crown. It must, therefore, follow that as the petitioners were serving in connection with the equipment of the armed forces or were otherwise connected with defence, they were not " such persons " for whose benefit the safeguard embodied in subsection (3) of section 240 was enacted.

5. Our attention was drawn to APO 187 of 1957 which contains instructions for conducting enquiries into charges of misconduct or insubordination, etc. against extra‑temporary employees' such as the petitioners. These instructions provide that the employee concerned shall be afforded an opportunity to defend himself, but assuming that they were not fully complied with in the present case, no cause of action accrues to the peti tioners to maintain these petitions on the basis of disregard of mere instructions as compared to disregard of statutory rules or the provisions of an Act.

6. In the result, both the petitions are dismissed, but there will be no order as to costs. K. B. A. Petitions dismissed.