P L D 1960 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.-This is an appeal by special leave from a judgment of the High Court of West Pakistan at Lahore dismissing an application for a writ of mandamus or any other appropriate writ. Ghairat Hayat appellant who was employed as a clerk in the Central Ordnance Depot, Rawalpindi was dismissed froth service by the Commandant of the Depot on 22nd October, 1955: The charge-sheet that was served on him under the rules alleged that he had committed an act prejudicial to good order and discipline as C. O. D. employee in that he on or about the 27th November, 1954, created agitation amongst his co-workers thereby causing hindrance in the performance of their legitimate duty and he was required to submit his explanation to the charge. He submitted no explanation but asked for further particulars of the charge, namely, the place where, the time when, and the manner in which be had caused the alleged agitation. By his order dated the 15th September, 1955 the Commandant informed the appellant that his explanation had been carefully considered and found unsatisfactory and that he should now show cause why he should not be removed from service. In reply the appellant submitted that in his earlier statement he had asked for further particulars and not submitted any explanation and that he was unable, to understand how he had been informed that his explanation had been carefully considered and found to be unsatisfactory. He again asked for further particulars of the agitation charged before he submitted his explanation on the facts. The Commandant, however, by his order dated the 22nd October, 1955, dismissed him from service with effect from 15th December, 1954. The appellant moved in the High Court an application for a writ of mandamus alleging as the ground of the application that the constitutional requirement of giving him a reason able opportunity to show cause had not been satisfied. This application was dismissed for the reason that the appellant was neither a member of a Civil Service nor holding a civil post under the Crown and that therefore subsection (3) of section 240 of the Government of India Act which entitled him to a reasonable opportunity to show cause against dismissal was not applicable to his case. The correctness of this view has been questioned before us by Sardar Muhammad Iqbal, learned counsel for the appellant, but after hearing him and considering the relevant constitutional provisions we are of the opinion that the judgment of the High Court was right and that this appeal should be dismissed. The appellant was on the establishment of the Ordnance Depot which is essentially a Military institution. Under section 238 of the Government of India Act the provisions of section 235 apply in relation to persons who, not being members of His Majesty's Forces, hold, or have held, posts in India connected with the equipment or administration of those Forces or otherwise connected with defence, as they apply in relation to persons who are, or have been, members of those Forces. It is not disputed that the personnel of the Depot in which the appellant was employed come within the purview of this section. Section 235 provides that the Secretary of State may from time to time specify what rules, regulations and orders affecting the conditions of service of all or any of His Majesty's Forces in India shall be made only with his previous approval. The provision under which the appellant was proceeded against was rule 6 of the Indian Army Order 1302 of 1945 and there is nothing to show that the Secretary of State had required such orders to issue only with his previous approval. The point is not however of any importance because what has to be determined in this case is whether the appellant was a. member of a Civil Service or held a civil post under the Crown for the purposes of subsection (3) of section 240 of the Government of India Act and the answer to this question in the state of the record must clearly be in the negative. The appellant was an employee of the Ordnance Depot which is an important Military Department and there is nothing to indicate that that Organization either employs persons on civil posts or borrows the services of members of any civil service and that the appellant belonged to any such: service. And if the appellant does not answer the description of "such person" in subsection (3) of section 240, it is obvious that he did not have the constitutional right to a reasonable opportunity of showing cause against dismissal. This right was given to him by the rules which have been referred to in the judgment of the High Court as mere instructions as distinguished from statutory rules, but even if it be supposed that the instructions amounted to such rules that would not give the appellant a right of action or a right to invoke the jurisdiction of the High Court because he must be deemed to be holding his post subject to the incident that its incumbent could be dismissed at pleasure by a competent officer acting on behalf of His Majesty. We, therefore, dismiss this appeal, but in the circumstances, we make no order as to costs. A. H. Appeal dismissed.