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PETITIONER: DIRECTOR GENERAL OF ORDNANCE SERVICES & ORS.

       Vs.

RESPONDENT: P.N. MALHOTRA

DATE OF JUDGMENT30/01/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) MANOHAR SUJATA V. (J)

CITATION:  1995 AIR 1109            1995 SCC  Supl.  (3) 226  JT 1995 (2)    98        1995 SCALE  (1)402

ACT:

HEADNOTE:

JUDGMENT: 1    Delay condoned. 2.   Leave. granted.  Heard counsel for both the parties. 3.   This  appeal is preferred against the judgment  of  the Central  Administrative  Tribunal, New  Delhi  allowing  the Original  Application filed by the respondent and  declaring that  the  order  dismissing him from service  is  void  and declaring further that he should be deemed to have continued in service. 4.   The  respondent is a civilian employee in  the  defence services.  A disciplinary enquiry was held against him in 100 respect  of  certain  charges.  On the  basis  of  the  said enquiry,  he  was dismissed from service  by  the  competent authority  on  22.3.1990.  An appeal preferred  by  him  was dismissed  by  the  appellate authority,  against  which  he approached  the Central Administrative Tribunal.  Number  of grounds were urged by him in the Original Application  filed by  him,  all  of  which were  refuted  and  denied  by  the appellants  (respondents  in the  Original  Application)  in their counter-affidavit. 5.   At  the  time of hearing of original  application,  the counsel  for the respondent raised the submission  that  the CCS  (CCA) Rules, 1965, whereunder the disciplinary  enquiry has  been held, have no application to the  respondent  and, therefore, the entire enquiry was void.  Reliance was placed upon  the decision of the Supreme Court in Union of India  & Anr. v. K.S.Subramanian (1989 Suppl.(1) 331).  The  Tribunal upheld   the   said  plea  and   granted   the   declaration aforementioned.   The Tribunal, however, declined  to  award back  wages  while  directing  at the  same  time  that  the subsistence  allowance paid to the respondent shall  not  be recovered.  The Tribunal also observed that its order  doe,, not  prevent  the appellants (respondents  in  the  original application)  to take appropriate legal proceedings  against the  respondent in accordance with law and in the  light  of

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the  decision  in K.S.Subramanian. With respect to  its  ju- risdiction-to  entertain  an  original  application  from  a civilian employee working in defence services, the  Tribunal held,  following  the  decision of  Calcutta  Bench  of  the Tribunal, that it has the jurisdiction. 6.   When  this SLP came up for admission before us, it  was represented  by the learned counsel for the appellants  that in  an  identical matter, viz., SLP (C) No. 19202  of  1991, this  Court  had granted notice and stay.   Accordingly,  we entertained  the SLP and stayed the operation of  the  order under appeal. 7.   In  K.S.Subramanian  case,  it was held  by  a  3-Judge Bench,  following an earlier decision of this court, that  a civilian  employee in military service "who was drawing  his salary  from  the  Defence Estimates  could  not  claim  the protection  of  Article 311(2) of  the  Constitution".   The Court  added:  "That being the  position,  the  exclusionary effect  of  Article 311(2) deprives him  of  the  protection which he is otherwise entitled to.  In other words, there is no  fetter on the exercise of the pleasure of the  President or the Governor." It was further held that the CCA Rules  of 1965  also have no application to such an employee.  It  was observed  that "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." Accordingly, it was held that the dismissal  of such  an  employee cannot be faulted on the  ground  of  not complying  with the requirements of Article 311(2).  We  may mention  that as far back as 1971, a Constitution  Bench  of this Court held in Lekh Raj Khurana v. Union of India  (1971 (3)  SCR 908) that a civilian employee in Defence  Services, drawing his salary from defence estimates is not entitled to the protection of Article 31 1. We may also mention in  this behalf that in another decision of the three-Judge Bench  in Union of 101 India and Another v. K.S.Subramanian (1977 (1) SCR 87) there are certain observations to the effect that "the 1965  Rules are applicable when disciplinary proceedings are taken", but these observations were made after first recording a finding that the Respondent in that case being a temporary employee, the 1965 Rules had no application to his case.  Though  this case  was not referred to in the later decision in Union  of India and Another v. K.S.Subramanian (1989 Supp. (1) SCC  33 1),  yet it cannot be said that there is  any  inconsistency between  the  two cases (which incidentally  bear  the  same cause title).  As stated above, in the first K.S.Subramanian case,  the employee was only a temporary employee  and  this Court  found that-the 1965 Rules did not contain  any  rule’ which  provided for the termination of an employee like  the one concerned therein.  Even if we read the said decision as holding  that  the 1965 Rules do apply  to  such  employees, particularly  in view of Rule 3(1), even then the  order  of the Tribunal cannot be sustained. 8.   We  are  also  unable  to  see  how  the  decision   in K.S.Subramanian (1989 Supp.(1) SCC 331) could have been  un- derstood by the Tribunal as enabling it to declare that  the dismissal  of the respondent is void and to further  declare that he should be deemed to have been continuing in service. The said decision in fact militates against the  respondent, since  according  to it, the respondent does not  enjoy  the protection  of  Article  311(2) or the 1965  Rules.   It  is

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relevant  to notice that in the last para of  the  Judgment, this Court states: "In the result, the appellants (Union  of India)  succeed on the question of law, but  the  respondent retains  the  decree in his favour purely  on  compassionate grounds".   The  compassionate  grounds  are  state  in  the preceding paragraph. 9.   We  may now refer to the recent decision of this  Court dated September 6, 1994 in Civil Appeal Nos.5392-93 of 1993, Union of India v. Indrajit Datta.  It was also a case  where a  civilian  employee  whose  salary was  paid  out  of  the estimates  of Ministry of Defence challenged his removal  on the  ground  that the aforesaid 1965 Rules,  whereunder  the disciplinary  enquiry was held have no application  to  him. In  that  case too, the Tribunal had set aside  the  removal order on the same ground as in this case.  After noting  the reasoning  of  the  Tribunal, this court  (a  Bench  of  two learned  Judges)  observed: "we see no ground  to  interfere with  the  reasoning  and the  conclusions  reached  by  the Tribunal".   The  Court at the same time,  referred  to  the submission  of the learned counsel for the Union  and  dealt with it in the following words:               "Mr.V.C.Mahajan, learned counsel appearing for               the appellants has, however, contended that by                             following  the procedure prescribed under  the               rules   no   prejudice  was  caused   to   the               respondent,  rather he was benefitted  as  the               rules  of natural justice were  complied  with               before   passing   the   order   of   removal.               According to him, his services could have been               terminated  on the basis of pleasure  doctrine               under Article 310 of the Constitution of India               and simply because he was given an opportunity               to  defend  the  charges he  cannot  have  any               grievance  as no prejudice was caused to  him.               We  find some plausibility in  the  contention               but   keeping   in   view   the   facts    and               circumstances   of  this  case,  we  are   not               inclined  to  go  into the same.   It  is  not               disputed  that  in the  year  1984  respondent               submitted  resignation  to  join  a   shipping               company.  The               102               resignation  was not accepted and  instead  he               was  subjected to the disciplinary  proceeding               under  the  Rules.   We are  not  inclined  to               interfere  with the impugned judgment  of  the               Tribunal.   The  appeals  are  dismissed.   No               costs."                                          (emphasis added) 10.  The teamed counsel for the appellants submits that  the respondent cannot be said to have suffered any prejudice  by following  the  procedure  prescribed  by  1965  Rules.   He submits  that the said Rules are nothing but a  codification of  the  principles  of  natural  justice.   Indeed,  it  is submitted,  they are more specific, more elaborate and  more beneficial  to  the employee than the  broad  principles  of natural justice.  If we assume for the sake of argument that the respondent was entitled to insist upon an enquiry before he could be dismissed, we must agree with the submission  of the  learned counsel for the appellants.  We must  also  say that  this  Court cannot be said to have approved  the  view taken by the Tribunal in that case (which is the same as  in this  case).  In view of the peculiar circumstances of  that case,  this  Court held, "we are not inclined  to  interfere with  the  impugned judgment of the Tribunal."  The  earlier

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sentence  in  the  judgment to the effect that  "we  see  no ground  to interfere with the reasoning and the  conclusions reached  by  the  Tribunal"  must  be  read  alongwith   the subsequent  opinion  aforesaid and in the light of  all  the observations made. 11.   We  must also mention that neither  the  Tribunal  has stated  - nor the respondent has suggested - that there  are any other Rules applicable to disciplinary enquiries against such civilian employees which have not been followed -  much less   has   it  been  stated  that  any  such   Rules   are qualitatively  different or more beneficial to  the  respon- dent. 12.  The  order  under  appeal shows,  that  though  several grounds were raised in the original application filed by the respondent, the only point urged by his counsel at the  time of  arguments  before the Tribunal was the one  relating  to inapplicability   of  the 1965 Rules.  No  other  contention appears to have been urged. 13.  In  the  circumstances, the appeal is allowed  and  the order  of the Tribunal is set aside.  The  order  dismissing the  respondent  as  confirmed by  the  appellate  order  is restored.  No costs. 103