Full Judgment Text
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PETITIONER:
UNION OF INDIA & ANR.
Vs.
RESPONDENT:
K.S. SUBRAMANIAN
DATE OF JUDGMENT30/07/1976
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SINGH, JASWANT
CITATION:
1976 AIR 2433 1977 SCR (1) 87
1976 SCC (3) 677
CITATOR INFO :
F 1982 SC1407 (26)
R 1985 SC1293 (122)
RF 1988 SC 501 (5)
R 1988 SC1531 (46)
F 1989 SC1335 (33)
ACT:
Central Civil Service (Classification, Control and Ap-
peal) Rules, 1965 Scope of--Rules applicable only when
disciplinary proceedings are taken.
Constitution of India, 1950, Arts. 309, 310 and
311--scope of Art. 310 vis-a-vis, Arts. 309 and 311.
Practice--Duty of High Court where there is conflict
between the views expressed by Divisional benches and larger
benches of the Supreme Court.
HEADNOTE:
Respondent was a welder in the Civilian Defence Forces.
On his services being terminated, without stating any rea-
son, he filed a suit for damages for illegal termination on
the basis that he would have continued in service upto the
age of 60 instead of being thrown out at the age of 41. The
trial Court gave a decree for damages which was affirmed by
the High Court on the ground. that the doctrine of post held
during the pleasure of the President, contained in Art. 310,
does not authorise the termination without complying with
the procedure prescribed by the Central Civil Service’s
(Classification, Control and Appeal) Rules, 1965, framed
under Art. 309.
Allowing the appeal to this Court,
HELD: (1) The Rules deal principally with the procedure
for disciplinary proceedings and penalties and appeals and
reviews against orders passed under the rules. They are
applicable if disciplinary proceedings had been taken
against the respondent, but they do not make disciplinary
proceedings incumbent or obligatory whenever the services of
a person are terminated. In the present case there were no
disciplinary proceedings against the respondent.
[92 D-E]
(2) The mere termination of the service. by an apparent-
ly innocent order, of a Government servant in permanent
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service, in the sense that he is entitled to remain in
service until he reaches the age of retirement, could be
deemed, in a given case, to be a punishment. But, in that
event, there had to be a finding on the rule or order under
which the respondent was entitled to continue in service
until he reached the age of 60. There is no reference to
any such rule and there was no finding that any punishment
was imposed upon him or that his services were terminated as
a measure of punishment for any wrong done by him or for
incompetence. [94 C; 93 G]
P.L. Dhingra v. Union of India AIR 1958 SC 36 @ 47 referred
to.
(3) Even assuming that the respondent was constructive-
ly punished, there is no legal obligation to apply the
Rules. The legal obligation to apply them to every case of
punishment, flows from the provisions of Art. 311 and is
confined to holders of posts covered by Art. 311. But the
provisions of Art. 311 do not apply to the respondent since
they do not apply to the holder of a post connected with
defence. [94 E]
L.R. Khurana v. Union of India [1971] 3 SCR 908 followed.
(4) Terefore, when no disciplinary proceedings are
instituted, the Rules will not at all apply, and there is no
other rule dealing with the conditions under which the
service, such as that of the respondent. may be terminated.
Since there was no violation of any rule no question of a
conflict between a rule framed under Art. 309 and the doc-
trine of pleasure contained in Art. 310, which applies to
all Government servants including those in the services
connected with defence, arises in the present case. [94 G]
88
(5) The High Court in dealing with the question consid-
ered the view of a Divisional Bench of this Court in two
cases, merely quoted the views expressed by larger Benches
of this Court, and then observed that these were insuffi-
cient for deciding the point before it. The High Court did
not act correctly in thus skirting the views expressed by
larger Benches of this Court. The proper course for the
High Court was to try to find out and follow the opinions
expressed by the larger Benches in preference to those
expressed by smaller Benches. This practice is followed
even by this Court and has crystallized into a rule of law.
If, however, the High Court was of opinion that the views
expressed by larger Benches of this Court were not applica-
ble to the facts of the present case it should have said so,
giving reasons in support. [92 A-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 212
of 1975.
(Appeal by Special Leave from the Judgment and
Order dated 26-6-1974 of the Kerala High Court in
A.S. No. 510/72).
L.N. Sinha, Sol. Genl. of India, Shaymla Pappu
and Girish Chandra for the appellant.
A.S. Nambiar for the respondent.
The Judgment of the Court was delivered by
BEG, J.--The Union of India and the Commander, Officer-
incharge, Naval Base, Cochin, are the appellants before us
by grant of special leave against a judgment and decree of a
Division Bench of the High Court of Kerala. The Division
Bench had affirmed the decision of a learned subordinate
Judge awarding Rs. 25,000/- as damages, together with inter-
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est @ 6% per annum, to the plaintiff-respondent for the
illegal termination of the respondent’s services. The
plaintiff respondent was serving as a Welder, Grade II, in
the Civilian Defence Forces at the Naval Base, Cochin, at
the time of this allegedly illegal termination of service by
an order of 25th October, 1968, of the Govt. of India,
Ministry of Defence.
Special leave was granted on condition that the appel-
lants Will bear the costs of the respondent in any event.
The point of law sought to be canvassed before us is: Does
the doctrine that a Central Govt. servant holds his post "at
the pleasure of the President", contained in Article 310 of
the Constitution, authorise the passing of an order of
termination of services, without assigning any reason what-
soever, of the holder of a post "connected with defence ?"
There is no finding anywhere that the services of the
plaintiff respondent were terminated as a measure of pun-
ishment for any wrong done by him or for incompetence,
although, a perusal of the pleadings would show that the
appellants denied the assertions of the plaintiff respondent
that he was efficient and entitled to promotions as he had
qualified for them by passing certain tests.
The Subordinate Judge had awarded only Rs. 25,000-. out
of a claim of Rs. 75,000/- made on the ground that, but for
illegal termination of the service of the plaintiff-respond-
ent, the-plaintiff would have continued in service upto the
age of 60 years and duty promoted instead of being thrown
out of service at the age of 41. The plaintiff respondent
alleged that the termination of his service, without giving
any reason whatsoever, was contrary to, rules made under
Article 309. A glance at paragraph 4 of the plaint shows
that the violation of rules
89
relating to conduct of disciplinary proceedings was alleged
by the petitioner. In paragraph 5 of the plaint, however,
he alleged:
"As per the terms of appointment and the rules
governing the service of the petitioner,, he is
entitled normally to continue in service till the
age of 60. If his service had not been terminated
as per the impugned order, the petitioner would
have been entitled to continue for a further
period of 19 years and 8 months".
He proceeded to assert:
"Due to the illegal termination, the peti-
tioner had lost a valuable right vested in him by
virtue of his appointment and guaranteed by the
Constitution of India and the rules framed thereun-
der namely a right to continue in service for the
full period of 19 years and 8 months and thus to
gain a livelihood for himself and his family".
A perusal of the judgment of the Division Bench shows
that the only point really considered by it was whether the
pleasure of the President mentioned in Article 310 of the
Constitution, can over-ride rules made under Article 309 of
the Constitution.
The High Court had explained away a passage cited from
State of U.P. & Ors., v. Babu Ram Upadhya(1) by observing
that it did not support the argument that rules made under
Article 309 of the Constitution did not control the pleasure
of the President, under Article.310, which was to be
subject to matters otherwise expressly provided in the
Constitution. The passage so explained away runs follows :.
"If there is a specific provlsion in some part
of the Constitution giving to a Government servant
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a tenure different from that provided for in Art.
310, that Government servant is excluded from the
operation of Art. 310. The said words refer,
inter alia,, to Arts. 124, 148, 218 and 324 which
provide that the Judges of the Supreme. Court, the
Auditor General, the Judges of the High Courts and
the Chief Election Commissioner shall not be re-
moved from their offices except in the manner laid
down in those Articles. If the provisions of the
Constitution specifically prescribing different
tenures were excluded from Art. 310, the purpose of
that clause would be exhausted and thereafter the
Article would be free from any other restrictive
operation. In that event, Art. 309 and 310 should
be read together, excluding the opening words in
the latter Article, namely, "Except as expressly
provided by this Constitution". Learned Counsel
seeks to confine the operation of the opening words
in Art. 309 to the provisions of the Constitution
which empower other authorities to make rules
relating to the conditions of service of certain
classes of public servants:, namely Arts. 146(2),
148(5) and 229(2). That may:be so, but there is no
reason why Art. 310. should
(1) A.I.R. 1961 S.C. 751.
8--1003 SCI/76
90
be excluded therefrom. It follows that while
Art. 310 provided for a tenure at pleasure of the
President or the Governor, Art. 309 enables the
legislature or the executive, as the case may be,
to make any law or rule in regard, inter alia, to
conditions of service without impinging upon the
overriding power recognised under Art. 310".
The Kerala High Court relied on Union of India
v. J. N. Sinha & Anr.,(1) to hold that doctrine of
office held at the pleasure of the President was
subject to rules made under Article 309 of the
Constitution, and pointed out that it was held,
inter-alia, by a Division Bench of this Court (at
p. 42):
"A Government servant serving under the Union
of India holds his office at the pleasure of the
President as provided in Article 310 of the Consti-
tution. But this "pleasure" doctrine is subject to
the rules or law made under Article 309 as well as
to the conditions prescribed under Art.311 ".
The High Court also relied on State of Madhya
Pradesh & Ors. v. Shardul Singh,(2) where the same
Division Bench of this Court had held inter-alia
(at p. 111 ):
"Article 310(1) of the Constitution declares
that every person who is a member of Civil service
of a State or holds any civil post in a State holds
office during the pleasure of the Governor of a
State. But the pleasure doctrine embodied therein
is subject to the other provisions in the Constitu-
tion. Two other Articles in the Constitution which
cut down the width of the power given under Article
310 (1) are Articles 309 and 311. Article 309
provides that subject to the provisions of the
Constitution acts of the appropriate Legislature
may regulate the, recruitment, and conditions of
service of persons appointed, to public. services
and posts in connection with the affairs of the
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Union or of any State. Proviso to that Article
says:
’Provided that it shall be competent for the
President or such 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 and posts in connection with the af-
fairs of the State to make rules regulating the
recruitment, and the conditions of service of
persons appointed, to such services and posts until
provision in that behalf is made by or under an Act
of the appropriate Legislature under this article,
and any rules so made shall have effect subject to
the provisions of any such Act ."
The High Court then referred to N. Ramanatha
Pillai v. State of Kerala & Anr.,(3) a decision of
5 learned Judges of this Court, in which Ray CJ.,
speaking for the Constitution Bench of this
Court,
(1) A.I.R. 1971 S.C. 40. (2) [1970] (1)
S.C.C. 108 at 111.
(3) A.I.R. 1973 S.C. 2641 at 2645.
91
while considering the power of the Govt. to create,
continue, and abolish a post said (at p. 2645):
"Article 309 provides that subject to the.
provisions of the Constitution, Acts of the
appropriate Legislature may regulate the recruit-
ment and conditions of service of persons appoint-
ed, to public services and posts in connection with
the affairs of the Union or of any State. There-
fore, Acts in respect of terms and conditions of
service of persons are contemplated. Such Acts of
Legislature must however be subject to the provi-
sions of the Constitution. This attracts Article
310 (1). The proviso to Art. 309 makes it compe-
tent to the President or such 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 and posts in con-
nection 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 Gover-
nor therein specified. Article 309 is, there-
fore, to be. read subject to Article 310".
The High Court, after citing the passage set out
above, said: "We do not understand the above
passage as suggesting that Article 310 cannot in
any manner be controlled by Rules framed under
Article 309".
After a consideration of decisions of this Court in
this manner it -expressed its views as follows:
"These cases, we think, sufficiently indicate
that while it may be open to the PreSident or to
the Governor to dismiss a civil servant at pleas-
ure, if Rules have been framed under Article 309 of
the Constitution to regulate the mode and manner
of termination of service, these .have to be com-
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plied with. This, we think, is reasonable and
understandable enough on first principles. If the
untrammelled pleasure of the President has been
subjected to Rules framed by the President himself
in regard to the manner of termination of service,
the pleasure must be subject to such Rules".
The Division Benh of the High Court then re-
corded its conclusion:
"We are therefore of the opinion that in the
instant case, the Civil Services (Classification,
Control and Appeal) Rules, having been framed under
Article 309 of the Constitution, the same had to
be followed before the respondent’s service was
terminated. The same not having been admittedly
complied with, the finding of the’ Court below that
the termination is illegal was correct and requires
no interference. No arguments were addressed on
the quantum of damages awarded".
92
We do not think that the difficulty before the High
Court could be resolved by it by following what it consid-
ered to be the view of a Division Bench of this .Court in
two cases and by merely quoting the views expressed by
larger benches of this Court and then observing that these
were insufficient for deciding the point before the High
Court. It is true that in each of the cases cited before
the High Court, observations of this Court occur in a con-
text different from that of the case before us. But, we do
not think that the High Court acted correctly in skirting
the views expressed by larger benches of this Court in the
manner in which it had done this. The proper course for a
High Court, in such a case, is to try to find out and follow
the opinions expressed by larger benches of this Court in
preference to those expressed by smaller benches of the
Court That is the practice followed by this Court itself.
The practice has now crystallized into a rule of law de-
clared by this Court. If, however, the High Court was of
opinion that the views expressed by larger benches of this
Court were not applicable to the facts of the instant case
it should have said so giving reasons supporting its point
of view.
we have perused the Central Civil Service (Classifica-
tion, Control and Appeal) Rules of 1965, (hereinafter re-
ferred to as ’1955 Rules’) which deal principally with
procedure for disciplinary proceedings and penalties and
appeals and reviews against orders passed under the rules.
There is no rule there dealing with the conditions under
which a service such as that of the plaintiff respondent may
be terminated. We fail to see any rule made under Article
309 of the Constitution which was violated by the impugned
order of termination of service of the plaintiff-respondent.
We do not consider ourselves called upon to. decide a ques-
tion which has really not arisen in the case. before us.
The 1965 Rules are applicable when disciplinary proceed-
ings are taken. They do not make disciplinary proceedings
under the rules incumbent or obligatory whenever the
services of a person covered’ by these rules are terminated.
The obligation to follow the procedure for punishment laid
down in the rules flows from the provisions of Article 311
of the Constitution. And, as the opening words of Arti-
cle 310 show, the doctrine of office held at the pleasure of
the’ President does not apply to cases covered by Article
311.
Rule 3 of the above mentioned rules begins. as
follows:
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"3. Application.--(l ) These rules shall apply
to every Government servant including every
civilian Government servant in the Defence Serv-
ices, but shall not apply to-
(a) any railway servant, as defined in rule
102 of volume I of the Indian Railway Establishment
Code,
(b) any member of the All India Services, (c) any
person in casual employment,
(c) any person in casual employment,
(d) any person subject to discharge from service
on less than one month’s notice.
(e) any person for whom special provision is
made, in respect of matters covered by these
rules, by or under
93
any law for the time being in force or by or under
any agreement entered into by or with the, previous
approval of the President before or after the
commencement of these rules, in regard to
matters covered by such special provisions;
(2) Notwithstanding anything contained in
sub-rule (1), the President may by order exclude
any class of Government servants from the operation
of all or any of these rules.
(3) Notwithstanding anything contained in
sub-rule (1), or the Indian Railway Establishment
Code, these rules shall apply to every Government
servant temporarily transferred to a Service or
post coming within exception (a) or (e) in sub-
rule (1 ), to whom, but for such transfer, these
rules would apply.
(4) If any doubt arises-
(a) whether these rules or any of them apply to
any person, or
(b) whether any person to whom these rules
apply belongs to a particular service
the matter shall be referred to the President, who
shall decide the same".
Even if the parties were governed by these rules, because
the plaintiff held a civil post in one of the Defence;
Departments, yet there must be some violation of one of
these rules, which were no doubt framed under Article 309
read with clause 5 of Article 148 of the Constitution,
before any question of a conflict between a rule framed
under Article 309 and the provisions of Article 310 could
possibly arise. We fail to see such a conflict here.
These rules merely lay down procedure for matters cov-
ered by Article 31 l of the Constitution. There is no
doubt that proceedings under Article 311 of the Constitution
constitute an exception to the doctrine of pleasure con-
tained in Article 310 of the Constitution. But, in the case
before us, no question of any disciplinary proceedings has
been discussed because it did not arise at all. There is no
finding that any punishment was imposed upon the
plaintiff-respondent. It may be that mere termination of
service, when the plaintiff.respondent was holding a perma-
nent post and entitled to continue in service until 60
years of age, may constitute punishment per seven when the
termination of service is not meant as a punishment. But, in
that event,, there had to be a finding on the rule or order
under which the plaintiff was entitled to continue in serv-
ice. until he reached the age of 60 years. The High Court
had cited no rule made under. Article 309 to show that there
was any such provision.
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In P.L. Dhingra v. Union of India(1) Das, CJ.,
speaking for the majority of a Bench of five judges
of this Court, said (at p. 47):
"It has already been said that where a
person is appointed substantively to a permanent
post in Government service.
(1) A.I.R. 1958 S.C. 36 at 47.
94
he normally acquires a right to hold the post until
under the rules, he attains the age of superannua-
tion or is compulsorily retired and in the absence
of a contract, express or implied, or a service
rule,. he cannot be turned out of his post unless
the post itself is abolished or unless he is guilty
of misconduct, negligence, inefficiency or. other
disqualifications and appropriate proceedings are
taken under the service rules read with Art. 311
(2). Termination of service of such a servant so
appointed must per se be a punishment, for it
operates as a forfeiture of the servant’s rights
and brings about a premature end of his employ-
ment".
The propositions laid down in Dhingra’s case (supra) by
this, Court mean that, unless a legally justifiable ground
is made out for the termination of the service of a Govern-
ment servant. in permanent service, in the sense that he is
entitled to remain in service until he’ reaches the age of
retirement, he could be deemed in a given case to be pun-
ished by an apparently innocent order of termination of
service. If, however, the respondent belonged to a class of
government servants the tenure or conditions of whose serv-
ice was subject to the over-riding and unqualified sway of
the power to terminate his services at will, by reason of
Article 310(1) of the Constitution, we doubt whether he
could claim to be a "permanent" servant, who could continue,
as of right, in service until he reaches the age of super-
annuation. At any rate, he could not be a "permanent"
Government servant of the same class as one protected by
Article 311.
Even if we were to hold that the plaintiff-respondent
was constructively punished, the provisions of Article 311,
unfortunately, do not apply to such a Government servant as
the respondent was. Whereas the power contained in Article
310 governs all Government servants, including those in the
services connected with defence, the benefits of Article
311, which impose limitations on the exercise of this power
in cases of punishment, do not extend to those who hold
posts "connected with defence". Constitution Bench of this
Court has held, after a review of relevant authorities,
this to be the position of the. holder of a post such as
that of the plaintiff-respondent in L. R: Khurana v.
Union of India. (1)
As the plaintiff-respondent was not entitled to the
protection of Article 311, the only effect of the 1965
Rules upon his case is that they could be applied if disci-
plinary proceedings had been taken against him as the
holder of a post "connected with defence". In other eases
of such servants,. where no such disciplinary proceedings
are instituted (and none were started against the
plaintiff-respondent), the 1965 Rules, governing procedure
for. punishments to be imposed, will not apply at all.
There is no legal obligation to apply those rules here. The
legal obligation to apply them to every case of punish-
ment, flowing from Article 311, is confined to holders of
posts covered by Article 311. On this question, we are
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bound by the decision of a bench of five learned Judges of
this Court in Khurana’s case (supra).
(1) [1971] 3 S.C.R. 908.
95
We were asked to import the obligation to apply the
procedure prescribed by Article 311 to a case such as the
one before us by invoking the aids of Articles 14 and 16.
Apart from the fact that these .Articles could not be in-
voked against a discrimination made by Constitutional provi-
sions, no such case was set up earlier. We cannot permit it
at this stage.
The only ground on which the respondent had assailed the
order of termination of his service was non-compliance of
1965 Rules, which meant’ that he claimed the protection of
Article 311 of the Constitution. But for the reasons given
above, this protection is not available to him. Therefore,
this appeal must succeed.
Consequently, we allow this appeal, set aside the judgment
and decree of the High Court and ,dismiss the plaintiff’s
suit. But: in the circumstances of the case, the appellant
will, in keeping with the undertaking given at the time of
grant of special leave, bear the costs of both sides
throughout.
Appeal allowed.
V.P.S.
96