Civil Appeal No 212 NCE of 1975
From the Judgment and Order dated 2661974 of the Kerala High Court in AS No 510 of 1972
VC Mahajan and CV Subba Rao for the Appellants
TS 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 Rs75 000 for illegal termination
The trial court awarded him Rs25 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 459b 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
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 3112 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 3112
In LR Khurana vs Union of India  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 vs Union of India CA 1185 of 1965 dated 621967 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 3112 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 section P Behl vs Union of India CA 1918 of 1966 dated 831968
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 article 310 of the Constitution Article 3101 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 article 3102 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 vs 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 311
The proviso to Article 309 makes it competent 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 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 3101 has been considered by this Court in Union of India vs Tulsi Ram  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 3101
By the opening words of Article 310l 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 3l01 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  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 5Rly
Y 1R 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 3112 denies
 By virtue of Article 3112 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 3112 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 3112 by reason of second proviso thereunder
We are also concerned with the exclusion of Article 3112 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 3112 since he occupied the post drawing his salary from the Defence Estimates
That being the position the exclusionary effect of Article 3l12 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 31 thereof itself provides that it would be applicable and second that the Rules were framed by the 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 3112
When Article 3112 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 3101
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
APJ Appeal allowed


Summary:
Many explosions took place in May 1985 in Delhi and Uttar Pradesh killing many persons
Consequently a number of cases were registered
In Delhi FIR No 238 of 1985 was registered wherein the respondent and another accused turned approvers and were granted pardon under section 306 of the Code of Criminal Procedure 1973
Both these approvers however resiled from their statements in the Court of the Committing Magistrate
Four Criminal cases pending in Meerut were later transferred by the Supreme Court to the Court of the Chief Metropolitan Magistrate Delhi to be tried along with the case arising out of FIR No 238 of 1985
In the supplementary committal proceedings in case FIR No 238 of 1985 the respondent objected to his being summoned as an approver on the ground inter alia that he could not be examined as a witness in the case because he was figuring as an accused person in the other four cases on the same facts and circumstances which were being jointly tried
The Chief Metropolitan Magistrate dismissed the application
The High Court allowed the respondent s revision petition and directed the State not to examine the respondent as an approver in case FIR No 238 of 1985
In the appeal before this Court it was inter alia contended that the prosecution could not examine the respondent as a witness because he had cast away the pardon granted to him
Allowing the appeal HELD 1
The pardon granted to the respondent was accepted by him and he was examined as a prosecution witness in the Court of the Committing Magistrate though he resiled from his statement there
1097C PG NO 1093 PG NO
1094 2
It is a mandate of the provisions of the Criminal Procedure Code to the prosecution to examine the approver to whom pardon had been granted as a witness both in the Committing Court as well as in the trial court
1097E 3
Section 306 clearly enjoins that the approver who was granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offencc and to every other concerned whether as principal or abettor in the commission thereof
It is because of this mandate that the State cannot withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court
1097H 1098A B 4
The respondent who has been granted pardon in case FIR No 238 of 1985 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question
1100D In re Arusami Goundan AIR 1959 Mad 274 and Emperor vs Shandino Bhaniperto AIR 1940 Sind 114 referred to
Once an accused is granted pardon under section 306 he ceases to be an accused and becomes a witness for the prosecution
So long as the prosecution does not certify that he has failed to make a full and true disclosure of the whole of the circumstance within his knowledge relating to the offence he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court
1099H 1100A B AJ Peiris vs State of Madras AIR 1954 SC 616 referred to
A witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to incriminate him directly or indirectly
1100G 7
The proviso to section 132 of the Indian Evidence Act clearly protects a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to incriminate him directly or indirectly
1101A PG NO
1095 8
The apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused was without any basis
On the other hand he was absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver
1101B C