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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

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   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

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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

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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

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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.