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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: S.B. MISHRA

DATE OF JUDGMENT14/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  613            1995 SCC  (5) 657  1995 SCALE  (5)84

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The case  has a chequered career . The respondent while working  as   a  lecturer   in  the   college  of   Military Engineering, pune  was compulsority  retired by  proceeding, dated July  27,1987, as  a measure  of punishment  ,   after following departmental inquiry.He challenged its validity in O .  A . 616/90 contending that he was not supplied with the copy of  the Inquiry   Report and, therefore, his compulsory retirement was  not valid  in law.  Following the  ratio  in RAMZAN KHAN VS. UNION OF INDIA, [1991(1)SCC 588], decided by a bench of three judges,the tribunal by its order dated July 23,1992,    set  aside  the  order  giving  liberty  to  the appellant to  take appropriate  action   from the  stage  of supplying   the copy   of  the Inquiry Report. Ramzan Khan’s ratio was  clarified in  Managing director  ,ECIL & Ors . vs B. Karunakar  & Ors  . [1993  (4) SCC 727] by a constitution bench  where  in  it  was  held  that  the  ratio    had  no application to  cases concluded  by that date. Even to cases to  which   the  ratio  would  apply  ,fresh  enquiry  after supplying the  enquiry  report may be proceeded with and the delinquent officer  must be  deemed to  be under  suspension pending enquiry  and the consequential benefits would depend on the result of the enquiry.           When the  competent officer  exercising the  power under sub-rule  (4) of Rule 10 of CCS  (CC & A) Rules, 1965( for short ‘ Rules ’) passed an order that the respondent was deemed to  be under suspension till the inquiry is completed ,the respondent  again challenged  that order  by filling  a contempt Petition for  non - implementation of the order and in the  impugned order  dated   September   1 ,1992 in C. P. No. 130/92,  the Tribunal  held that  Rule    10(4)  has  no application  since   the  respondent   was  not  kept  under suspension pending inquiry and that, therefore , he  must be deemed to  be in service  and directed to reinstate him with

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all consequential benefits. We are informed that pursuant to the order,  the respondent  has  been  reinstated  with  all consequential benefits and he is continuing in service.           The question  is whether  the respondent is deemed to be  under suspension  . Mr. Dave, learned counsel for the respondent, contended that the Rules have no application and , therefore  ,the respondent  cannot be  treated to be under deemed suspension  .It is  also contended  that since he has also been reinstated the matter became infructuous.           This court  in Jagatrai  mahinchand   Ajwani   vs. Union of  India 1967  SLR 471  and   S. P. Behl vs. Union of India , (C.A. No. 1918 of 1966 decided on march 8,1968) held that the  CCS (  CC &  A Rules  have no  application to  the defence  personnel.   In  fact   ,  Article   310   of   the Constitution, clearly   exempt  them   from the operation of the Rules.  Sub-clause  (1)  thereof  says  that  except  as expressly, provided by the constitution ,every person who is a member   of a defence service or of a civil service of the Union or of an All India 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 as amenable to the action laid by the President   or the Governor, as the case may be.The doctrine of pleasure  was subject  of consideration  by a Bench of  7 Judges in  Moti Lal  Deka vs. Union of India,1964(5) SCR683. It was  held that  Rules made  under proviso  to Article 309 will be  subjected to the doctrine of pleasure as  engrafted under Article  310  of the Constitution. Article  310 has to be read  subject to  Article  311. That ratio was reiterated by another  larger Bench  in Shamsher  Singh   vs. State  of Punjab &  Ors,   1975(1)SCR  814  .This  position  was  also examined  by   a  constitution   bench  in  Union  of  India vs.Tulsiram Patel,  1985(3)SCC, 398. A Bench of three judges of this   Court  in  Union  of  India  and  Anr.  vs  K.  S. Subramanian 1989 supp(1) SCC 331 and of two Judges, to which one of  us (Hansaria,  J.)   was a  member in Union of India vs,Indrajit  Datta  in  C.  A.  5392-93/93  dated  September 6,1994 held  that the  rules   do  not    apply  to  defence personnel.           Thus ,  it   is settled   law  that the Rules made under proviso  to Article  309 will be  subject  to doctrine of   pleasure  enshrined  in  Article  310.  Article  310(1) expressly excludes  the   applicability of the provisions of the   Rules to  the defence  personnels. We, therefore ,hold that CCS  (CC & A) Rules  have no application to the defence personnel. Consequently  the respondent  is not  entitled to the supply  of the Inquiry  Report as contemplated by Clause (2) to  Article   311 of   the  constitution   read with the Rules . As a result, the order of the Tribunal directing the appellant to  supply  the copy of the Inquiry Report  and to take further  action thereon  and to  reinstate him till the inquiry is  illegal. The order of  the Tribunal is set aside .           The appeal is allowed.  No costs.