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PETITIONER: RANJIT KUMAR MAJUMDAR

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT28/11/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (1)  51        JT 1995 (8)   350  1995 SCALE  (6)646

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This  short  order  is  to  indicate  the  reasons  for referring this matter to a larger Bench of three Judges.      The petitioner  is holding  a civil post connected with defence. Pending  inquiry  into  certain  grave  charges  in respect of which a criminal prosecution was launched, he was suspended on  February 3,  1995. The  suspension is  ordered under   Rule   10(1)   of   the   Central   Civil   Services (Classification Control and Appeal) Rules, 1965 (The Rules). On February  9, 1995  the petitioner  approached the Central Administrative  Tribunal,  Calcutta  Bench  questioning  the validity of  the order of suspension effected under the said Rules  is   incompetent  and   without   jurisdiction.   The petitioner relied  upon a decision of this Court in Union of India and  Another v. K.S.Subramanian (1989 Supp. (1) S.C.C. 331 : A.I.R. 1989 S.C. 362). The Tribunal, however, rejected the said contention relying upon the later decisions of this Court in  Union of  India v.  Inderjit Datta  (Civil  Appeal Nos.5292-93 of  1993  decided  on  September  6,  1994)  and Director  General  of  Ordnance  Services  &  Ors.  v.  P.N. Malhotra (J.T. 1995 (2) S.C. 98). The Tribunal observed that merely because Article 311(2) has no application to Civilian Employees in  defence services,  it cannot  be said that the 1965 Rules  have no application to them. It referred to Rule 3 of  the said  Rules which  says inter alia, "(T)hese Rules shall apply  to every  government servant including civilian government servants  in Defence Service......". The Tribunal further observed that inasmuch as the suspension in question was not  pending any  departmental inquiry  but  a  criminal prosecution, the  said order  of suspension  is not illegal. The Tribunal  also referred  to  the  implied  power  of  an employer to  suspend his  employee. The  correctness of  the Tribunal’s judgment is questioned herein.      In K.S.Subramanian,  a Bench of three learned Judges of this Court observed:

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    "The 1965  Rules among  others,  provide      procedure for  imposing the  three major      penalties that are set out under Article      31(2). When  Article 31(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 Court  also observed  that "the exclusionary effect of  Article   311(2)  deprives   him  (such   employee)  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." In short, the reasoning is that in  the absence  of the  protective umbrella of Article 311(2), the  1965 Rules  cannot fetter  the exercise  of the pleasure in Article 310(1).      So  far   as  Inderjit   Datta  and   P.N.Malhotra  are concerned, it  was held therein that merely because the 1965 Rules are  followed -  assuming that  the said Rules have no application to  civilian employees  in defence services - no prejudice can  be said  to have occurred to them nor can the inquiry be held to be void on that account. In P.N.Malhotra, it was  explained that the said Rules merely incorporate the principles of  natural justice  in  an  elaborate  and  more satisfactory manner  and that  following the  said Rules  is indeed to  the advantage  of the  employee. The  question in this case however is, if the said Rules have no application, then under  what power  could the  Government have suspended the petitioner?  When we  indicated that  such  a  power  is incidental  to   the  relationship  of  Master  and  servant (reference  was  to  the  decision  of  this  Court  in  The Management Hotel  Imperial, New  Delhi and  others v.  Hotel Workers’ Union (A.I.R. 1959 (S.C.) 942) and that all that it means is  that the  employer would  be bound to pay the full salary and emoluments to the employee even during the period the latter is kept away from service, the learned Additional Solicitor  General   appearing  for  the  Union  Government, demurred. He  submitted that  the decision  of this Court in K.S.Subramanian requires  reconsideration. He submitted that merely because Article 311(2) has no application to civilian employees in defence services, the 1965 Rules cannot be said to be  inapplicable to them, more particularly when the said Rules expressly say that they apply to civilian employees in defence  services.  It  is  submitted  that  no  prohibition against applying  the said  Rules can  be inferred  from the non-applicability of Article 311(2).      We are  of the  opinion that  this is  a  matter  which requires an  authoritative pronouncement  by this  Court. In view of the fact that K.S.Subramanian was decided by a Bench of three  learned Judges,  we think it appropriate that this matter is  placed before a Bench of three learned Judges for hearing. It  is for  that Bench  either to decide the matter themselves or  to refer  it to a larger Bench, if they think it appropriate.      The matter  may be  placed  before  the  Hon’ble  Chief Justice for  orders regarding  the  posting  of  the  matter before a Bench of three learned Judges.