Case: Union Of India &amp; Anr Vs. K.S. Subramanian

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.9. These rules merely lay down procedure for matters covered 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 contained 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 permanent 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 service 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.In P.L. Dhingra v. Union of India (A.I.R. 1958 S.C. 36 at 47.) 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. he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, . he cannot be turned out of hi s 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 servants rights and brings about a premature end of his employment".10. The propositions laid down in Dhingras case (supra) by this, Court mean that, unless a legally justifiable ground is made out for the termination of the service of a Government 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 punished 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 service 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 superannuation. 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. ([1971] 3 S.C.R. 908.)11. 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 disciplinary proceedings had be en 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 punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khuranas case (supra).12. 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 invoked against a discrimination made by Constitutional provisions, 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.13.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]There is no finding anywhere that the services of the plaintiff respondent were terminated as a measure of punishment 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 certainthe 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 disciplinary proceedings had be en 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 punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khuranas casewere 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 invoked against a discrimination made by Constitutional provisions, 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 mustnt 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 disciplinary proceedings had be en 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 plaintiffrespondent), 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 punishment, flowing from Article 311, is confined to holders of posts covered by Article 311. On this question, we are bound by the decision of a bench of five learned Judges of this Court in Khuranas case