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

The Union of India and the Commander, Officer-in-charge, 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 interest @ 6% per annum, to the plaintiff-respondent for the illegal termination of the respondents 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 appellants Will bear the costs of the respondent in anySubordinate 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-respondent, 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 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 toto the illegal termination, the petitioner had lost a valuable right vested in him by virtue of his appointment and guaranteed by the Constitution of India and the rules framed thereunder 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 hisperusal 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 theHigh Court had explained away a passage cited from State of U.P. &Ors., v. Babu Ram Upadhya(A.I.R. 1961 S.C. 751.) 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 runsthere is a specific provision in some part of the Constitution giving to a Government servant 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 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.Kerala High Court relied on Union of India v. J. N. Sinha &Anr., (A.I.R. 1971 S.C. 40.) 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.Government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Art.311High Court also relied on State of Madhya Pradesh &Ors. v. Shardul Singh, ([1970] (1) S.C.C. 108 at 111.) where the same Division Bench of this Court had held inter-alia (at p. 111310(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 Constitution. 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 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 affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until pro vision 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 ActHigh Court then referred to N. Ramanatha Pillai v. State of Kerala &Anr., (A.I.R. 1973 S.C. 2641 at 2645.) a decision of 5 learned Judges of this Court, in which Ray CJ., speaking for the Constitution Bench of this Court, while considering the power of the Govt. to create, continue, and abolish a post said (at p.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 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 Artic le 310 (1). The proviso to Art. 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 and 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 ArticleHigh 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 Articlea consideration of decisions of this Court in this manner it -expressed its views ascases, we think, sufficiently indicate that while it may be open to the President or to the Governor to dismiss a civil servant at pleasure, 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- 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 suchDivision Benh of the High Court then recorded itsare 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 respondents 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 damagesdo not think that the difficulty before the High Court could be resolved by it by following what it considered 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 context 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 declared 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 (Classification, Control and Appeal) Rules of 1965, (hereinafter referred 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 question which has really not arisen in the case before us.

Reasoning: 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