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Judges : OZA,RAY,JAGANNATH SHETTY
UNION OF INDIA - Appellant
Versus
SUBRAMONIAN - Respondent
Case No : C.A. No. 212 (NCS) of 1975
Decided On : 12/15/1988
Advocates Appeared :
C.F. Subba Rao; Mahajan; For Appellants N. Sudhakaran; For Respondent
termination - civilian employee - Art.310, Art.311(2), 1965 Rules - Art.310(1), Art.309, Art.311(2) - The court discussed the applicability of Art.310, Art.311(2), and 1965 Rules to the case of the respondent. It concluded that the respondent was not entitled to the protection of Art.311(2) and that the 1965 Rules could not independently play any part since the rule making power under Art.309 is subject to Art.311. The court also considered the admission made by the appellants before the High Court and the poverty of the respondent, ultimately declining to disturb the decree under appeal.
Fact of the Case:
The respondent, a permanent civilian industrial employee, had his services terminated under Art.310 of the Constitution. He filed a suit for declaration that the termination was illegal and void abinitio, and claimed damages or compensation. The trial court awarded him damages, which was confirmed by the High Court. The appeal to the Supreme Court was dismissed on merits, but upon review, the judgment was set aside and the appeal was ordered to be listed for fresh disposal.
Finding of the Court:
The court found that the respondent was not entitled to the protection of Art.311(2) and that the 1965 Rules could not independently play any part since the rule making power under Art.309 is subject to Art.311. Despite the appellants succeeding on the question of law, the respondent retained the decree in his favor purely on compassionate grounds.
Issues: The issues involved the applicability of Art.310, Art.311(2), and 1965 Rules to the case of the respondent, as well as the admission made by the appellants before the High Court and the poverty of the respondent.
Ratio Decidendi: The court's decision was based on the exclusionary effect of Art.311(2) depriving the respondent of the protection he was otherwise entitled to, and the conclusion that the 1965 Rules could not independently play any part since the rule making power under Art.309 is subject to Art.311. The court also considered the admission made by the appellants before the High Court and the poverty of the respondent, ultimately declining to disturb the decree under appeal.
Final Decision: The appellants succeeded on the question of law, but the respondent retained the decree in his favor purely on compassionate grounds. The appellants were also ordered to pay the cost to the respondent as already bound.
1. This appeal by special leave is against a judgment and decree of a Division Bench of the High Court of Kerala.
2. Short factual background is this:
The respondent was appointed on October 15, 1951 as an ordinary industrial labourer at Naval Base, Cochin. He was promoted as a welder Gr. II on September 18,1956. He was confirmed in that post. He was thus a permanent civilian industrial employee. On October 25,1968, his services, however, were terminated under Art.310 of the Constitution. No reason was assigned. He instituted a suit in form a pauperise for declaration that the termination of his service was illegal and void abinitio. 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.
3. 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 an admitted position between the parties. He had a right to continue till he attained the age of 60 years. Art.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 of sixty years.
Note. In this clause, "a workman" means a highly skilled, semi-skilled or unskilled artisan employed on a monthly rate of pay in an industrial or a work charged establishment."
4. The courts below have proceeded on the basis that Art.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.
5. 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 Art.311 (2) to 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 Art.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 Art.311 of the Constitution stands concluded by two decisions of this court. In Jagatrai Mabinchand 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 Art.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 Art.311 is concerned."
6. Now the only question is whether the 1965 Rules framed under the proviso to Art.309 of the Constitution proprio vigore apply to the respondent or become inoperative in view of Art.310 of the Constitution? Art.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-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 St
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