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Judgment
R.N. Ray, J.—Heard learned counsel for the appellant who argued at length. Learned counsel Sri AN. Bhargava submitted that he has no instruction in the matter. Sri B.N. Agarwal another learned counsel for the opposite party did not appear though the matter was taken up in the revised list.
The facts of the case in brief are that plaintiffrespondent No. 1 was appointed as Fire Engine Driver in 192Petroleum Platoon Army Supply at Jhansi. Promotion and reclassification of fire service personnel is done by A.S.C. Records (Supply), Bangalore who is the competent authority. According to the plaintiff, he was not given an opportunity but he was terminated, which was illegal and prayed for reinstatement and it was contended that the reversion and dismissal from service were in contravention of Article 311(2) of the Constitution and so those were against natural justice and equity. The learned trial Court did not consider the suit filed by the respondent and the evidence on record but dismissed the suit on the ground that the plaintiff was never employed permanently and as such he was not entitled for the relief claimed for.
Plaintiff preferred an appeal before the learned District Judge, Jhansi and the learned lower appellate court allowed the appeal and held that plaintiff was a permanent employee and was holding a permanent post of Fire Engine Fitter and his reversion was illegal as no opportunity was given to the plaintiff respondent and as such the lower appellate court has allowed the appeal against which this appeal has been preferred.
It has been argued by the learned counsel for the appellant that plaintiffrespondent was appointed as Fire Engine Driver in 192Petroleum Platoon Army Supply Corps, at Jhansi and his services were purely on temporary basis and promotion and reclassification of Fire Service Personnel are done by A.S.C. Records (Supply), Bangalore who is the competent AuthorityMajor Dunn, Officer Commanding 192 appointed plaintiff as Fire Engine Driver and he illegally confirmed him and gave promotion without any authority to do so and when the matter came to the knowledge of A.S.C. Records (Supply), Bangalore who is the competent authority relating to the promotion and reclassification of fire service personnel. He called for an explanation from Major Dunn, Officer Commanding 192Petroleum Platoon A.S.C. Jhansi and thereafter plaintiffrespondent was reverted and the plaintiffrespondent was discharged from service. Thereafter the plaintiff filed a suit before the learned Munsif who held that the appointment letter clearly showed that the plaintiffrespondent No. 1 was appointed as Fire Engine Driver in 192Petroleum Platoon Army Supply Corps, Jhansi against temporary vacancy it was stipulated that his services would be terminated at any time without one month''s notice and there was no documentary evidence to the satisfaction of the learned court below that plaintiff was legally confirmed in service and after dismissal of the suit, plaintiffrespondent filed civil appeal No. 125/76 and the learned District Judge allowed the appeal. The lower appellate Court allowed the appeal and held that plaintiff was a permanent employee and was holding a permanent post of Fire Engine Fitter as such the plaintiffs reversion was illegal since no opportunity was given to the plaintiff respondent of being heard before his reversion and against that judgment and decree passed by the lower appellate Court, this appeal has been preferred.
On perusal of the records, it appears that plaintiffrespondent No. 1 was appointed as Fire Engine Driver in 192Petroleum Platoon Army Supply Corps., Jhansi and that in the appointment it was stipulated that he might be terminated at any time without any notice and he never claimed to be a permanent employee and that the learned advocate for appellant has submitted that the lower appellate Court came to a jumping conclusion and the judgment of the lower appellate Court is erroneous and as such in this way he wanted that this appeal should be allowed.
Duly considered the submissions. Learned Counsel for the appellant submitted that plaintiffrespondent No. 1 was appointed as temporary civilian Fire Engine Driver and nowhere it has been pleaded in the plaint that his services were made permanent and he never claimed himself to be a permanent employee and as such in the absence of pleadings no evidence could be led or looked into by courts. Learned Counsel for the appellant has cited the following decisions AIR 1930 PC 57; AIR 1953 SC 235 (para 22); AIR 1954 SC 458 (para 5) and AIR 1962 Alld 11 (para 8).
It has been further submitted that plaintiffrespondent was never made permanent by the appointing authority i.e. Army Service Corps. Records (Supply) Bangalore. Major Dunn was not the appointing authority. Annual confidential reports could not be looked into as those entries were made without authority as held by the Apex Court in the case reported in AIR 1964 SC 521 (Paras 8 and 9). Plaintiffrespondent after having acted upon the order of reversion"and having worked as fire engine driver for sufficient time could not challenge the order of reversion. Article 311 (2) of our Constitution is not applicable to Civilians in Defence Service; tney are not entitled to protection under Article 311(2). The salary of the plaintiffrespondent was paid out of the estimates of the Defence Ministry and he was connected with the defence of the country not as a combatant, but as a person holding a post the object of which was to exclusively serve the Military Department as civiliandriver as such he could not claim protection of Article 311 (2). In this connection, the following decisions may be relied upon; AIR 1971 SC 211; 1976 SCC (S&L) 492 paras 20&21. As 311(2) was not applicable in the instant case to the benefit of plaintiffrespondent, the rules of natural justice cannot be invoked and the view taken by the learned appellate court is not correct and shall not prevail even under the general law of master and servant. In view of the facts and the circumstances of the case and the decisions of the Hon"ble Apex Court I allow this appeal. The judgment and decree as passed by the learned lower appellate court in civil appeal No. 125/76, stand set aside, but I do not order as to costs as the plaintiffrespondent did not contest here at the time of hearing of the appeal.