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PETITIONER: OUS KUTILINGAL ACHUDAN NAIR AND ORS

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT20/11/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SHINGAL, P.N.

CITATION:  1976 AIR 1179            1976 SCR  (2) 769  1976 SCC  (2) 780  CITATOR INFO :  F          1983 SC 658  (10)  E&R        1987 SC 379  (10)  F          1987 SC 413  (2)

ACT:      Constitution of India, 1950-Art. 33-Scope of.      Army Act,  1950, S.. 2(1)-Civilian employees of defence establishments-If could form trade unions.

HEADNOTE:      On the  question whether  civilian employees of Defence Establishments have  the right  to form  trade unions  under Art, 19(1) (c) of the Constitution, ^      HELD:  Article  33  of  the  Constitution  provides  an exception to  the Preceding  Articles in  Part III including Act. 19(1)(c).  By Art. 33, Parliament is empowered to enact law determining  to what  extent any of the rights conferred by Part  III shall.  in their  application to the members of the armed  forces or  forces charged with the maintenance of public order, be restricted or abrogated so as to ensure the proper discharge  of their  duties and  the  maintenance  of discipline among them. [770GH, 771A]      By virtue  of s.  2(l) of  the Army  Act,  the  Central Government  was  competent  to  make  rules  restricting  or curtailing the  Fundamental Rights  of civilian employees of Defence Establishments  to  form  trade  unions  under  Art. 19(1)(c)  of   the  Constitution.  Although  they  are  non- combatants and  are in  some matters  governed by  the civil service regulations,  yet they  ar? integral  to  the  armed forces. They  answer the  description of  the members of the armed forces within the contemplation of Art. 33. [771-B-D]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 18 ’1 of 1974.      Appeal by  special leave  from the  judgment and  order dated the 18th June 1974 of the Andhra Pradesh High Court at

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Hyderabad in Writ Appeal No. 460 of 1974.      K. R. Nambiar for the appellant.      L. N.  Sinha, Sol.  General of India and Girish Chandra for respondents.      The Judgment of the Court was delivered by      SARKARIA, J. This is an appeal by special leave against a  judgment  of  the  High  Court  of  Andhra  Pradesh.  The appellants are  office-bearers of the Civil Employees Unions in the  various Centers  of the  Defence  Establishments  of Secunderabad and  Hyderabad. They  filed a  writ petition in the High  Court to  impugn the  authority of the Commandants (Respondents 2  and  3  herein)  in  declaring  the  Unions, represented by the appellants as unlawful associations.      The Registrar  of Trade-Unions  had issued Certificates of Registration  to  the  four  Unions  represented  by  the appellants between  1954 and  1970. The General Secretary of Class IV,  Civil Employees  Union, Bolaram, Secunderabad was informed, per letter dated 770 12-5-1971, by  the Under  Secretary  of  the  Government  of India, Ministry  of Defence  that their  Unions could not be granted recognition as these employees being in the Training Establishments,  were  not  entitled  to  form  Unions.  The Commandant also  issued a  notice to  the appellants to show cause why  disciplinary action be not taken against them for forming this unlawful association.      The main  ground taken  in the  petition was  that  the impugned action  was violative of their fundamental right to form associations  or Unions  conferred by  Art. 19(1)(c) of the Constitution.      In their  reply-affidavit, the respondents averred that the Civilian  Non-Combatants in  the Defence  Establishments were governed  by the  Army Act  and were duly prohibited by Rules framed  thereunder from  joining or  forming  a  Trade Union; that  the associations  in question  were  formed  in breach of  that prohibition,  and  were  therefore,  validly declared illegal.      The learned  Judge of  the High  Court, who  tried  the petition, held  that the  right of  the appellants  to  form associations given  by Art.  19(1) (c)  of the Constitution, had been  lawfully taken  away. He accordingly dismissed the petition.      The appellants carried an appeal to the appellate Bench of the  High Court.  The Bench  dismissed the appeal holding that the impugnea action was not without jurisdiction.      The main  contention of  Mr. K.  R. Nambiyar, appearing for the  appellants  is  that  the  members  of  the  Unions represented  by  the  appellants,  though  attached  to  the Defence Establishments,  are civilians’, designated as "Non- Combatants Un-Enrolled".  They  include  cooks,  chowkidars, laskars,  barbers,   carpenters,  mechanics,   boot  makers, tailors  etc.   They  are  governed  by  the  Civil  Service Regulations for  purposes of discipline, leave, pay etc. and are also  eligible to  serve upto the age of 60 years unlike that of  the members  of the  Armed Forces. In view of these admitted facts,  proceeds the  argument, these categories of civilian employees,  attached to the Defence Establishments, could not  be validly  called "members  of the Armed Forces" covered by Art. 33 of the Constitution. The points sought to be made  out are: that the members of the appellants’ Unions are not  subject to  the Army  Act as they do not fall under any of  the categories  enumerated in sub-clauses (a) to (i) of s.  2 of  the Army  Act,  1950,  and  that  the  impugned notifications are ultra vires the Army Act and are struck by Arts. 19(1)(c) and 33 of the Constitution.

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    For  reasons  that  follow,  the  contentions  must  be repelled.      Article 33 of the Constitution provides an exception to the pre  ceding Articles  in Part  III including  Art. 19(1) (c). By  Article 33,  Parliament is  empowered to  enact law determining to  what extent  any of  the rights conferred by Part III  shall, in their application, to the members of the Armed Forces  or Forces  charged with  the main  tenance  of public order, be restricted or abrogated so as to ensure 771 the proper  discharge of their duties and the maintenance of discipline among them.      In enacting  the Army  Act,  1950,  in  so  far  as  it restricts or  abrogates any of the fundamental rights of the members  of   the  Armed   Forces,  Parliament  derives  its competence from  Art.33 of the Constitution. Section 2(1) of the Act  enumerates the  persons  who  are  subject  to  the operation of  this Act.  According to sub-clause (i) of this section, persons  governed by  the Act, include "persons not otherwise subject to military law who, on active service, in camp, on  the march or at any frontier post specified by the Central Government  by  notification  in  this  behalf,  are employed by,  or are in the service of, or are followers of, or accompany any portion of the regular army."      The members of the Unions represented by the appellants fall within  this category.  It is  their duty  to follow or accompany the  Armed personnel on active service, or in camp or on the march. Although they are non-combatants and are in some matters  governed by the Civil Service Regulations, yet they are  integral to  the Armed  Forces.  They  answer  the description of  the "members of the Armed Forces" within the contemplation of  Art. 33.  Consequently, by virtue of s. 21 of the  Army Act,  the Central  Government was  competent by notification to  make rules  restricting or curtailing their fundamental rights under Art. 19(1) (c).      Rule  19(ii)   of  the  Army  Rules,  1954,  imposes  a restriction on the fundamental rights in these terms.           "No persons  subject to  the Act shall without the      express sanction of the Central Government:           (i)       xx        xx        xx           (ii) be  a member  of, or be associated in any way      with, any  trade union or labour union, or any class of      trade or labour unions "      In exercise  of its  powers under s.4 of the Defence of India Act, the Government of India has by notification dated 11-2-1972, provided  that all  persons not  being members of the Armed  Forces of  the Union,  who  are  attached  to  or employed with or following the regular Army shall be subject to the  military law. The Army Act, 1950, has also been made applicable to them. By another notification dated 23-2-1972, issued under  r.79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act.      Section 9  of the Army Act further empowers the Central Government to  declare by  notification, persons not covered by s. (i) of s. 3 also as persons on active service. 772      In view  of these notifications issued under s.4 of the Defence of  India Act and the Army Rules, the appellants can no longer  claim any fundamental right under Art. 19 (1) (c) of the Constitution.      The appeal  fails and  is dismissed.  There will  be no order as to costs. P.B.R.                                      Appeal dismissed 773

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