PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
K.S. SUBRAMANIAN
DATE OF JUDGMENT15/12/1988
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
OZA, G.L. (J)
RAY, B.C. (J)
CITATION:
1989 AIR 662 1988 SCR Supl. (3)1074
1989 SCC Supl. (1) 331 JT 1988 (4) 681
1988 SCALE (2)1546
ACT:
Constitution of India, 1950/Articles 309, 310 and 311
Civilian worker in Defence Department-Whether provisions of
Arts. 309-311 applicable-No fetter in the excise of the
pleasure of the President or Governor.
%
Civil Services/Central Civil Services (Classification,
Control and Appeal) Rule 1965: Civil worker in Defence
Departments-Rules-Whether applicable.
Practice and Procedure: Supreme Court-Equitable relief
will not be denied in deserving cases.
HEADNOTE:
The respondent was a permanent and confirmed civilian
worker in the Defence Department and he had a right to
continue till he attained the age of 60 years. His
services, however, were terminated under Article 310 of the
Constitution without assigning any reason. He instituted a
suit for declaration that the termination of his services
was illegal and void ab initio. In the alternative, he
claimed damages or compensation for the illegal termination.
The Trial Court awarded him Rs. 25,000 as damages together
with interest at 6 per cent per annum for the illegal
termination of his services. That decree was confirmed by
the High Court.
The Courts below have proceeded on the basis that
Article 311 (2) of the Constitution was not applicable to
the respondent, but the Central Civil Services
(Classification, Control and Appeal) Rules, 1965 were,
however, applicable.
In the appeal to this Court on behalf of the appellants
it was contended that the reasoning of the Courts below is
untenable and uncalled for. On behalf of the respondent
employee it was contended that the 1965 Rules are applicable
to the respondent and that the decree under appeal should
not be set aside. The poverty of the respondent and the
long drawn litigation by which the respondent was suffered
immeasurably were also highlighted.
PG NO 1074
PG NO 1075
Allowing the appeal on a question of law this Court
HELD: 1. The respondent is not entitled to protection of
Article 311(2) since he occupied the post drawing his salary
from the Defence Estimates. That being the position, the
exclusionary effect of Article 311(2) deprives him the
protection which he is otherwise entitled to. In other words
there is no fetter in the exercise of the pleasure of the
President or the Governor. [1079D-E]
2. The 1965 Rules among others, provide procedure for
imposing the three major penalties that are set out under
Article 311(2). When Article 311(2) itself stands excluded
and the protection thereunder is withdrawn there is little
that one could do under the 1965 Rules in favour of the
respondent. The said Rules cannot independently play any
part since the rule making power under Article 309 is
subject to Article 311. [1079F-G]
L.R. Khurana v. Union of India, [1971] 3 SCR 908 at 911;
Ramanatha Pillai v. The State of Kerala, [1974] 1 SCR 515 at
521 and Union of India v. Tulsi Ram, [1985] 3 SCC 398,
followed.
3. This Court will not deny any equitable relief in
deserving cases. The case on hand cannot be an exception to
that rule and indeed. it is eminently a fit case. [1080F]
JUDGMENT:
CIVIL. APPELLATE JURISDICTION: Civil Appeal No. 212
(NCE) of 1975.
From the Judgment and Order dated 26.6.1974 of the
Kerala High Court in A.S. No. 510 of 1972.
V.C. Mahajan and C.V. Subba Rao for the Appellants.
T.S. Krishnamurthy and N. Sudhakaran for the Respondent.
The Judgment of the Court was delivered by:
K. JAGANNATHA SHETTY, J. This appeal by special leave is
against a judgment and decree of a Division Bench of the
High Court of Kerala.
PG NO 1076
Short factual background is this.
The respondent was appointed on October 15 1951 as an
ordinary industrial labourer at Naval Base Cochin. He was
October 25 1968 his services however were terminated under
Article 310 of the Constitution. No reason was assigned. He
instituted a suit in forma-pauperise for declaration that
the termination of his service was illegal and void ab
initio. In the alternative he claimed damages or
compensation of Rs.75 000 for illegal termination. The trial
court awarded him Rs.25 000 as damages together with
interest at 6 per cent per annum for the illegal termination
of his services. That decree was confirmed by the High Court
of Kerala. This appeal is directed against that Judgment of
the High Court. On July 30, 1976 a Bench of this Court
dismissed the appeal on merits. But upon review that
judgment was set aside and the appeal was ordered to be
listed for fresh disposal. So the matter has come up before
us.
There is no dispute on the material facts. There is no
challenge that the respondent was a permanent and confirmed
civilian worker in the Defence Department. In fact. it is
all admitted position between the parties. He had a right to
continue till he attained the age of 60 years. Article
459(b) of the Civil Service Regulations provides for that.
It reads:
“(b) A workman who is governed by these Regulations
shall be retained in service till the day he attains the age
of sixty years.
Note. In this clause ‘ a workman” means a highly
skilled. skilled. semi-skilled or unskilled artisan employed
on a monthly rate of pay in an industrial or a work charged
establishment .
The courts below have proceeded on the basis that
Article 311 (2) of the Constitution was not applicable to
the respondent but the Central Civil Services
(Classification Control and Appeal) Rules 1965 (for short ”
1965 Rules”) were however. applicable.
Mr. Mahajan for the appellants contends that the
reasoning of the Courts below is untenable and uncalled for.
We think that the counsel is on terrafirma. There cannot be
any dispute as to the non applicability of Article 311(2) to
PG NO 1077
the case of respondent. A civilian employee in Defence
Service who is paid salary out of the estimates of the
Ministry of Defence does not enjoy the protection of Article
311(2). In L.R. Khurana v. Union of India, [1971] 3 SCR 908
at 911, this Court observed:
“The question whether the case of the appellant was
governed by Article 311 of the Constitution stands concluded
by two decisions of this court. In Jagatrai Mahinchand
Ajwani v. Union of India, C.A. 1185 of 1965 dated 6.2.1967
it was held that an Engineer in the Military Service who was
drawing his salary from the Defence Estimates could not
claim the protection of Article 311(2) of the Constitution.
In that case also the appellant was found to have held a
post connected with Defence as in the present case. This
decision was followed in S. P. Behl v. Union of India, C.A.
1918 of 1966 dated 8.3.1968. Both these decisions fully
cover the case of the appellant so far as the applicability
of Article 311 is concerned.”
Now the only question is whether the 1965 Rules framed
under the proviso to Article 309 of the Constitution proprio
vigore apply to the respondent or become inoperative in view
of Art. 310 of the Constitution? Article 310(1) deals with
the tenure of office of persons serving the Union or the
State. It provides:
“Except as expressly provided by this Constitution,
every person who is a member of a defence service or of a
civil service of the Union or of an all-lndia 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 Art. 310(2) deals with cases of persons appointed
under contract. The doctrine of pleasure of the President is
thus embodied under Article 310( l). The scope of this
Article coupled with Article 309 has been explained in
Ramanatha Pillai v. The State of Kerala, [l974] SCR 515 at
52l, where this Court observed:
Article 309 provides that subject to the provisions of
the Constitution, Acts of the appropriate Legislature may
PG NO 1078
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.
Therefore, Acts in respect of terms and conditions of
service of persons are contemplated. Such acts of
Legislature must however be subject to the provisions of the
Constitution. This attracts Article 31()(1). The proviso to
Article 309 makes it competent to the President or such
person as he may direct in the case of services and posts in
connection with the affairs of the Union and for the
Governor of a State or such person as he may direct in the
case of services or posts in connection with the affairs of
the State, to make rules regulating the recruitment and the
conditions of service of persons appointed, to such services
and posts under the Union and the State. These Rules and the
exercise of power conferred on the delegate must be subject
to Article 310. The result is that Article 309 cannot impair
or affect the pleasure of the President or the Governor
therein specified. Article 309 is, therefore, to be read
subject to Article 3l0.
The operation of Rules made under the proviso to Article
309 on the pleasure doctrine embodied under Article 310(1)
has been considered by this Court in Union of India v. Tulsi
Ram, [1985] 3 SCC 398 where it was observed at 483:
“The opening words of Article 309 make that article
expressly ‘Subject to the provisions of this Constitution’.
Rules made under the proviso to Article 309 or under Acts
referable to that article must, therefore, be made subject
to the provisions of the Constitution if they are to be
valid. Article 3 lO( 1) which embodies the pleasure doctrine
is a provision contained in the Constitution. Therefore,
rules made under the proviso to Article 309 or under Acts
referable to that article are subject to Article 310(1). By
the opening words of Article 310(l) the pleasure doctrine
contained therein operates ‘ Except as expressly provided by
this Constitution”. Article 31l is an express provision of
the Constitution. Therefore, rules made under the proviso to
Article 309 or under Acts referable to Article 309 would be
subject both to Article 3l0(1) and Article 311. This
position was pointed out by Subba Rao, J. as he then was. in
his separate but concurring judgment in Moti Ram Deka. case
PG NO 1079
(1964) 5 SCR 683 at 734, namely. that rules under Article
309 are subject to the pleasure doctrine and the pleasure
doctrine is itself subject to the two limitations imposed
thereon by Article 311.
In Tulsi Ram case, the decision in Challappan’s case
(Divisional Personnel Officer, 5.Rly. Y. 1.R. Challappan,
[1976l l SCR 783) which had taken a contrary view. has been
expressly overruled on the ground that rules cannot do what
the second proviso to Article 311(2) denies.”
By virtue of Article 311(2), no civil servant can be
dismissed, removed or reduced in rank except after an
inquiry in which he has been informed of the charges against
him and given a reasonable opportunity of being beard in
respect of the charges. Article 311(2) thus imposes a letter
on the power of the President or the Governor to determine
the tenure of a civil servant by the exercise of pleasure.
Tulsi Ram case concerned with the exclusion of Article
311(2) by reason of second proviso thereunder. We are also
concerned with the exclusion of Article 311(2), if not by
second proviso but by the nature of post held by the
respondent. We have earlier said that the respondent is not
entitled to protection of Article 311(2), since he occupied
the post drawing his salary from the Defence-Estimates. That
being the position, the exclusionary effect of Article
3l1(2) deprives him the protection which he is otherwise
entitled to. In other words, there is no letter in the
exercise of the pleasure of the President or the Governor.
It was, however, argued for the respondent that 1965
Rules are applicable to the respondent, first, on the ground
that Rule 3(1) thereof itself provides that it would be
applicable, and second, that the Rules were framed by the
President to control his own pleasure doctrine. and
therefore, cannot be excluded. This contention, in our
opinion, is basically faulty. The 1965 Rules among others,
provide procedure for imposing the three major penalties
that are set out under Article 311(2). When Article 311(2)
itself stands excluded and the protection thereunder is
withdrawn there is little that one could do under the 1965
Rules in favour of the respondent. The said Rules cannot
independently play any part since the rule making power
under Article 309 is subject to Article 311. This would be
the legal and logical conclusion .
The next contention urged for the respondent depends
upon the admission made by the appellants before the High
Court. The appel lants seem to have admitted before the
PG NO 1080
High Court that the 1965 Rules would be applicable to the
respondent. Relying on this admission it was argued before
us that the decree under appeal should not be set aside. The
poverty of the respondent and the long drawn litigation by
which the respondent has suffered immeasurably were also
high-lighted.
We gave our anxious consideration to this part of the
submission. It is true that the parties appear to have
proceeded before the High Court that the 1965 Rules would be
attracted to the case of respondent. It might be on a wrong
assumption of law. The appellants cannot he estopped to
contend to the contrary. They are not bound by such wrong
assumption of law. Nor it could be taken advantage of by the
respondent. But the submission made before us about the
poverty of the respondent and the long drawn litigation
seems to be appealing. It is a plus point in his favour
under equity. This Court while granting special leave has
imposed a condition on the appellants that they will bear
the cost of the respondent in any event. That was evidently
because of the need to have the law clarified and inability
of the respondent to come up to this Court. There cannot be
any dispute about the poverty surrounding him. He has
instituted the suit as an indigent person. There is yet
another aspect. When the respondent commenced the litigation
and continued up to the High Court the law on the question
was nebulous. It was only thereafter an authoritative
pronouncement was made by this Court with regard to the
impact of Rules made under the proviso to Article 309 on the
pleasure doctrine under Article 310(1). These facts and
circumstances therefore call for a sympathetic consideration
of the case of respondent. This Court will not deny any
equitable relief in deserving cases. The case on hand cannot
be an exception to that rule and indeed it is eminently a
fit F case. We therefore accept the submission made for the
respondent and decline to disturb the decree under appeal.
In the result the appellants succeed on the question on
law but the respondent retains the decree in his favour
purely on compassionate grounds. The appellants also must
pay the cost to the respondent as already bound.
A.P.J. Appeal allowed.