ORDER
Sinha, J.
1. The facts in this case are shortly as follows : The petitioner was an employee in the Military Engineering Service known as M, E. S. In 1940 he joined service as a qualified overseer & subsequently rose to the position of Superintendent of the first grade. It appears that he was appointed by the G. E. Ishapore & subsequently on 21-8-1941 Articles of Agreement were drawn up signed both fay the G. E. Ishapore as also by the petitioner. The Articles of. Agreement recited the prior appointment and then proceeded to enumerate the terms and conditions of service. It is in a form known as Form 'IAPZ 2055'. It is headed as
'Form of agreement to be executed by permanent and temporary clerks, etc. -- applicable to accountants, clerks, cashiers, copyists, agents, storekeepers and all other civilian employees and to be pasted in the service books upon execution.'
The Articles o'f Agreement contained the following clause:
'5. If the Government or the appointing officer shall at any time become desirous of dispensing with the services of the employee, the Government or the appointing officer shall subject to Clause 6 of this agreement give the employee one calendar month's notice in writing of such desire and in default of such notice the employee shall be entitled to receive one month's pay or salary then receiveable by the employee.'
2. By a subsequent amendment made in August 1947 the period of one month was increased to three calendar months. The Articles further provided that in case of gross misconduct the services of the employee could be terminated at any time, without notice.
3. Between 1949 and 1952, a succession of departmental proceedings were taken against the petitioner. On or about 16-6-1949 he was charged with the offence of having thrown away certain military stores. On 22-12-1949 the petitioner applied for ten days' leave in order to go to Eastern Pakistan where he had a home, but he overstayed his leave and did not rejoin till 1-3-1950. A proceeding was started against him on the basis that he had been absent without leave and it was further alleged that he had given a false leave address. On 28-12-1949 apparently when he was in Pakistan, an order had been made for his transfer to the operational area in Kashmir, and communicated to the leave address left by him. As he was not actually at the said address at the time, the information naturally did not reach him. Later on, when he became aware of the order, he made a representation of his inability to proceed to Kashmir. A proceeding was started against him for disobedience of order of transfer, which resulted in his reduction in rank to the position of Superintendent of the second grade. On 4-4-1951 another proceeding was instituted against him on the allegation that he had been guilty of incorrect measurement regarding technical examination of certain bills which had involved the Government in financial loss. That proceeding resulted in the petitioner being reprimanded. Yet another proceeding was started on 17-10-1951 on the allegation that the petitioner had made wrong entries regarding sizes and lengths of certain wooden beams which were to be sawed by a contractor. The petitioner showed cause. On 10-4-1952 the respondent 1 as the G. E. Calcutta Division passed the following order :--
'The competent authority has decided that you are guilty of the charge referred to above and according to the orders conveyed thereon, you are hereby served with three months' notice of discharge in terms of the service agreement executed by you on IAFZ 2055 .....
The notice will take effect from 10-4-52 A. M. and the period of three months' notice wild expire on 10-7-52 A. M. and you will be S. O. S. of M. E. $. w.e.f. the same date viz., 10-7-52 A. M.'
4. On 28-2-1952, the petitioner was charged With neglect of duty by failing to account for stores received and disposing of stores for which he was not competent On 5-3-1952 he filed his representation against it. On 25-4-1952 he was found guilty and fined Rs. 50/- to be deducted from his P and A due to him.
5. The petitioner thereupon made an application to this Court under Article 226 of the Constitution. A rule was issued on 7-7-1952 calling upon the respondents to show cause why the orders dated 10-4-1952 & 25-4-1952 & the proceedings relating thereto should not be declared illegal & ultra vires & invalid and why the operation of the notice dated 10-4-1952 should not be stayed or set aside. Before Bose J., who dealt with the matter, it was urged by the petitioner that there was contravention of Article 311(2) of the Constitution inasmuch as the petitioner had not been given any chance of showing cause against the proposed punishment. A point was taken however by the respondent in that application that the service agreement of the petitioner was not in conformity with the requirements of Section 175(3), Government of India Act, 1935, or Article 299 of the Constitution, and it was therefore void, and the petitioner was not at all a servant of the Union of India. The learned Judge thought that it was an unreasonable and unfair attitude on the part of Government to take up, and did not merit any encouragement. He however felt himself reluctantly compelled to give effect to this contention, holding that the service agreement was not in compliance with law. The petitioner thereupon appealed. The Court of Appeal held that the document dated 21-8-1941 was not the contract of appointment. As will appear from the extract given above, this so-called Articles of Agreement itself recited that the petitioner had been previously appointed by the G. E. Ishapore. The result was that the appeal was allowed, the judgment and the order of Bose J., were set aside, and the case was remanded to the trial Court for a fresh decision on the merits. The respondent in the appeal was to have an opportunity of proving the actual contract upon which the appellant entered the service of the Union of India. This is how the matter has come up before me.
6. At the hearing before me however, the matter took an unexpected turn. Mr. Kar on behalf of the respondents stated that he no longer relied on the point that the petitioner had not been properly appointed or that his appointment was void as not being in compliance with Section 175(3), Government of India Act. He said that he was going to argue that the petitioner had been properly appointed and properly discharged. He rightly said that although neither party was in a position to produce the original agreement, it was clear from the Articles of Agreement dated 21-8-1941 that the petitioner had agreed to certain terms and conditions of service including condition No. 5 set out above. It was argued that the petitioner had been discharged in terms of Clause 5 of the Articles of Agreement by being served with three calendar months' notice.
7. While it is clear that the petitioner, whatever be the nature of his original appointment, is governed by the Articles of Agreement, the question arises as to what is the nature of his employment. Although he is in the Military Engineering Service, it is conceded that he is not a military personnel & is not governed by the Army Act. In fact it is conceded that he Is a civilian employed in military service. This is a point which had arisen in a case which was originally decided by me and which went up on appeal -- 'Atindra Nath Mukherjee v. G. F. Gillot, : AIR1955Cal543 . In spite of every effort, the learned Chief Justice was unable to secure sufficient information as to the status of persons in civilian employment in military service. All that was produced before the learned Chief Justice was Army Instruction No. 212 of 1949, which of course could not be considered as a law under Article 372(1) or Article 313 of the Constitution. Although the matter was decided in March 1955, the attention of the Court was not drawn to the fact that rules had been made by the President acting under the powers conferred by Article 309 of the Constitution, published in the Gazette of India on 2-2-1952 called 'The Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952' (hereinafter referred to as the rules'). For convenience I set out below some of the relevant rules:
'3.' These rules shall apply to every person paid from Defence Services Estimates and not subject to the Army Act, 1950, the Indian Navy (Discipline) Act, 1934, and the Air Force Act, 1950, who is in the whole time employment of the Government of India under the Ministry of Defence, except--
(a) persons so employed only casually or subject to discharge at less than one month's notice.
(b) Persons for whose appointment and conditions of employment special provision is made by or under any law for the time being in force.
(c) Persons in respect of whose conditions of service, pay and allowances, pension, discipline and conduct, or any of them, special provision has been made By agreement entered into before these rules were made or entered into thereafter in pursuance of the provisions of these rules:
Provided that in respect of any matter not covered by the provisions special, to him, his service or his post, these rules shall apply to any person coming within the scope of exception (b) or (c) to whom but for either of these exceptions these rules would apply. ......................
13. The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed upon persons subject to these rules, namely:--....................
(vi) Removal from the civil service of the Govt. which does not disqualify from future employment.
(vii) Dismissal from the civil service of the Government which ordinarily disqualifies from future employment. Explanation 1-- The termination of employment--
(c) of a person engaged under a contract, in accordance with the terms of his contract within the meaning of this rule or of Rule 15; does not amount to removal or dismissal.
15. Without prejudice to the provisions of the Public Servants Inquries Act 1850 no order of dismissal, removal or reduction shall be passed on a member of a Service (other than an order based on facts which had led to his conviction in a criminal court or by a Court Martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. .....
On completion of the enquiry after the authority empowered to impose the penalty has considered the defence and arrived at a provisional conclusion in regard to the penalty to be imposed, the person charged shall, if the penalty is dismissal, removal or reduction, be called upon to show cause within a reasonable time, not ordinarily exceeding a fortnight, against the particular penalty to be imposed. Any representation submitted by the person charged shall be duly taken into consideration before final orders are passed.'
8. Mr. I. P. Mukherji on behalf of the petitioner has framed his argument in the following manner: He admits the existence of the Articles of Agreement dated 21-8-1941. He says however, that the order of discharge that was made on 10-4-1952 is not a discharge in terms of the service agreement, but it is a punishment and therefore amounts to removal or dismissal. That being so, he says that Article 311(2) is attracted. Mr. Mukherji argues that although his client is a civilian in military employ, he should be classified as a civil servant within the meaning of Article 311. In any event, even under the Army Instructions, his client was entitled to have a second chance to show cause and therefore the order of discharge has not been lawful.
9. Mr. Kar opposing the application on behalf of the respondents took several formidable points which I shall now enumerate. The first point which he has tauten is that this application for a writ of mandamus must fail in limine because there has been no demand for justice or denial thereof. I must mention here that Mr. Mukherji on behalf of his client asks for the issue of a writ in the nature of mandamus directing the respondents not to act on the notice dated 10-4-1952 mentioned above. He has not pressed before me the relief asked for regarding the order dated 25-4-1932. In this respect the rule issued is defective because it simply asks for the notice dated 10-4-1952 to be set aside and/or declared illegal, ultra vires and invalid. It also asks for its operation to be stayed. Since it is not a judicial order, I do not see. how it can be set aside or declared illegal or ultra vires. If the petitioner is successful, the proper order would be to issue a writ in the nature of mandamus directing the respondents not to give effect to it. In that view of the matter, the absence of any demand for justice seems to be fatal. It has been laid down by the appeal court in Union of India v. Elbridgo Watson, : [1951]20ITR400(Cal) that in a petition for mandamus the petitioner must state his rights in the matter in question, his demand for justice and the depial thereof. The demand for justice and the denial thereof is not merely a technical point but a point of substance. Banerji, J. said as follows :
'Therefore if the circumstances warranted it, the proper writ would be a writ of mandamus. The prayers in the petition are not in order. However, considering this application as an application for a writ of mandamus -- which we do with great reluctance -- we hold there was no previous demand or refusal of the right which the petitioner sought to enforce before the learned Judge. This is not merely a technical point. This is a point of substance which must be taken into consideration, when the Court issues a writ of mandamus.'
10. Mr. Mukherji referred me to the case of Commr. of Police v. Gordhandas Bhanji, 1952 SO 18 (22) (AIR V 39) (C). It was there held that, there had been a substantial demand and a denial. Bose J. said as follows:
'In any event, an evasion or shelving of demand for justice is sufficient to operate as a denial within the meaning of Section 46. In England the refusal need not be in so many words. All that is necessary is to show that the party complained of has definitely determined not to do what is demanded (see IX Hals-bury's Laws of England Hailsham edition p. 722) and in the United States of America a demand is not required 'where it is manifest it would be an idle ceremony' (See Ferris on Extraordinary Legal Remedies p. 281). The law in India is not different except that there must be demand and denial in substance though neither need be made in so many words.'
11. Mr. Mukherji argues that on the facts of this particular case, it would have been futile for his client to ask for any further relief from the military authorities. This, I am afraid, I cannot accept. The idea underlying the making of demand is that the authorities may have an opportunity of redressing the wrong. It is no argument to say that the authorities are bound to be bard-hearted. That would mean the absolute abolition of the giving of any demand notice. Special circumstances must exist io make such an inference permissible. In Gordhandas' case (C) cited above, the Commissioner of Police Bombay entirely washed his hands in the matter, saying that he was acting under directions of the Government and could do nothing in the matter. It was held that any further demand from him was useless, and that demand of Government was sufficient compliance with the rule. Those are not the facts of this case. In my opinion, there has been no valid excuse put forward for not complying with this salutary rule of law. This would be sufficient to dispose of the matter, but in view of the fact that this matter may again go up to higher Courts, it would be advisable to decide the other points raised,
12. The next point raised by Mr. Kar is that the petitioner is not governed by Article 311 at all. In order to come under Article 311, the petitioner would have to be a member of a civil service of the Union or an all-India service or a civil service of a State or hold a civil post under the Union or State. Regard being had to the facts and circumstances of this case, I fail to see how he could be called a member of the civil service of the Union or as holding a civil post under the Union. It is of course conceded that it does not come under the other categories. Part XIV of the Constitution deals with 'Service under the Union and the States.' Article 309 corresponds to Section 241, Government of India Act, 1935 and empowers the appropriate legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. It is also provided that until provision in that behalf is made by or under an act of the appropriate legislature, it would be competent for the President or his delegate to make rules for the purpose thereof. Article 310 provides that every person who is a member of the defence services or of the civil service of the Union or of an all-India service or holds any office connected with defence or any civil post under the Union, holds office during the pleasure of the President. It will be observed that this Article not only speaks of the defence services but of any post connected with defence. It is clear to me that the petitioner holds a post connected with defence. In other words, he is not a member of the defence services but is a holder of a post connected with defence. The correct description of such a post is given in the rules that have been framed by the President under powers conferred fay Article 309, namely, civilians in defence services.
13. Mr. Kar has drawn my attention to a recent case decided by the Punjab High Court --'Dassmal v. Union of India', . The plaintiff there was a civilian clerk in the R. I. A. S. C. He was given a rank of Suba-dar and it was conceded during the course of the trial that he was governed by the Indian Army Act. It was held that Article 311 did not apply and that all army personnel whether belonging to the defence services or corning within the phrase 'connected with defence service', held office at the pleasure of the Crown and now, at the pleasure of the President, and a suit could not be brought for infringement of any rules,
14. In the present case of course, the petitioner never held an army rank and was not governed by the Army Act. But nevertheless he was a civilian in defence service and not a member of the Civil Service of the Union, nor holding a civil post under the Union. He was holding a post connected with defence. Thus, while Articles 309 and 310 apply in his case, there is no application of Article 311.
15. The next line of argument advanced by Mr. Kar is as follows : He says that assuming that Article 311 applied to the kind of service held by the petitioner, he is out of Court because he is governed by his contract of service, which excludes him both from the operation of the rule applicable to civilians in army employ as well as of Article 311. As set out above, Rule 3 (c) of the Rules, excludes the case of persons whose conditions of service etc. arc covered by an agreement. The agreement in this case, although not an agreement whereby the petitioner was originally appointed, is certainly a collateral document containing the terms of employment. That document provides for dismissal upon three months' notice. According to Mr. Kar, the petitioner's service having been terminated in accordance with his contract, jt is neither removal nor dismissal under Article 311. This brings us to the old question as to whether the particular order of discharge is an order in terms of the contract of appointment, or is by way of punishment de hors it. It has been held that termination of service in terms of the contract is neither removal nor dismissal --'Satish Chandra v. Union of India, : [1953]4SCR655 ; -- 'Shyamlal v. State of Uttar Pradesh', : (1954)IILLJ139SC . If the order of discharge simply enumerated that the petitioner was discharged in terms of his contract of service upon three months' notice, then of course there would be nothing to say. The problem has arisen because of the enumeration in the order itself that the petitioner has been found guilty of a certain offence. The point arose before me in an earlier case as to whether if a charge sheet was framed and a departmental enquiry was held and decided, it could be said that a particular order discharging the employee is not by way of punishment but under the terms of the contract. I have held that the mere fact that there were departmental proceedings does not make a discharge necessarily by way of removal or dismissal. The Government does not act arbitrarily or capriciously, and although it need not advance any reason for terminating the services of an-employee, it generally holds an enquiry to determine whether it will take such a step. This does-not convert the termination into removal or dismissal by way of punishment (judgment in Civil Rule No. 3558 of 1953, D/- 11-5-1954 (Cal) (G)). I have pointed out that the most important document to see was the order itself. This view has been supported by a Divisional Bench of the Patna High Court in -- 'Bhagwandas v. Superintendent, Way & Works, Eastern Rly,', : AIR1956Pat23 .
16. The test is really a simple one, namely, whether the termination is under the contract or as and by way of punishment. It was 'pointed out in 'Shyamlal's case '(F) (supra)', which was a case of compulsory retirement, that termination of employment under a contract does not attach any blame ot stigma to the individual and is not in the way of further employment, whereas removal or dismissal by way of punishment attaches a personal stigma to the employee and is a bar to further employment. The trouble arises in this case because of- the form of the order which purports to be in terms of the contract and yet recites the departmental enquiry and the finding of guilt. Although it is a case on the border line, I am of the opinion, upon an application of the principles enun- ciated above that the order of discharge is in terms' of the contract, even though the departmental enquiry and the finding of guilt is recited therein. I hope in future the authorities will consider the futility of reciting the departmental enquiry or the results thereof in an order of this description which is really a notice in terms of the contract and does not require any reasons to be given. However, since I have held and supported th'e view that a departmental enquiry preceding such a notice is not illegal, but on the other hand desirable, I cannot consistently with such a view, hold that the mere fact that there is a recital in the notice of the fact of the holding of such a departmental enquiry and the results thereof, renders the notice a notice not under the contract. Either it is a notice under the contract or it is not. If the notice did not purport on the face of it to be a notice under the contract, then indeed it would be possible to hold that it is a dismissal de hors the contract, since the notice itself states that it is in terms of the contract, I must hold that it is not a removal or dismissal in terms of Article 311, but termination of contract in accordance . with the articles of agreement mentioned above,
17. The result may be summarised as follows;
1. The petitioner is a civilian employed in defence service.
2. To such a person, Articles 309 and 310 apply but not Article 311.
3. Normally, such a person would be governed by a set of rules promulgated by the President, under Article 309, called the 'Civilians in Defence Services (Classification, Control and Appeal) Rules' (Army Instruction No. 176 of 1955).
4. But the said rules have been made inapplicable (By virtue of Clause 3 (c) of the Rules) to persons in respect of whose conditions of service special provision has been made by agreement, except as to matters not covered by such an agreement.
5. In the present case, the conditions of service of the petitioner are contained in the articles of agreement dated 21-8-1941.
6. Under Clause 5 of the Articles of Agreement, the services of the petitioner can be terminated by three months' notice.
7. The services of the petitioner have been terminated by three months' notice.
8. Such a termination is neither removal nor dismissal under Article 311, even if that Article applied to the petitioner.
9. Thus, the petitioner is neither able to take advantage of Article 311, nor of Clause 15 of the Rules.
10. The petitioner is governed by his contract of service, and if he intends to urge that there has been a breach thereof he must take proper proceedings for that purpose. An application under Article 226 does not lie.
18. Lastly, Mr. Kar has advanced the argument that even if the rules apply, a breach thereof is not justiciable in this Court, because Article 311 does not apply.
This is 4 highly controversial point, and although there is considerable authority in favour of the argument, in view of my findings adumbrated above, it is unnecessary to decide it in this case. I have already stated that Mr. Mukherjee did not press the relief asked for in respect of the order dated 25-4-1952. In regard to that order, it is certainly a punishment inflicted under Clause 13 (iv) of the Rules. It might certainly be argued that the imposition of such a penalty could not have been based upon the articles of agreement which does not deal with it. Under the Proviso to Rule 3, the matter will be governed by the rules. This however would attract the operation of Rule 16, which runs as follows :
'No order imposing the penalty specified in Clause (i), (ii) or (iv) of Rule 13 ..... on any Government Servant to whom these rules arc applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make any such representation, if any, has been taken into consideration before the order is passed.'
19. In the present case, the petitioner was given an adequate opportunity of making a representation and he had made a representation in writing and the representation was duly considered, Therefore the provision of Rule 16 was complied with. In this case, neither Rule 15 nor Article 311 applies and so there was no necessity of an enquiry or a second show cause notice.
20. For the reasons aforesaid, no grounds have been shown for interference by this Court and the application must be dismissed. The rule is discharged. Interim orders, if any, are vacated. There will however be no order as to costs. This does not affect orders as to costs already passed.