Kumar Majumdar Vs. Union of India & Ors  INSC 752
(28 November 1995)
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Majmudar S.B. (J)
1996 SCC (1) 51 JT 1995 (8) 350 1995 SCALE (6)646
O R D
short order is to indicate the reasons for referring this matter to a larger
Bench of three Judges.
petitioner is holding a civil post connected with defence. Pending inquiry into
certain grave charges in respect of which a criminal prosecution was launched,
he was suspended on February
3, 1995. The
suspension is ordered under Rule 10(1) of the Central Civil Services
(Classification Control and Appeal) Rules, 1965 (The Rules).
February 9, 1995 the petitioner approached the Central Administrative Tribunal,
Calcutta Bench questioning the validity of the order of suspension effected
under the said Rules is incompetent and without jurisdiction. The petitioner
relied upon a decision of this Court in Union of India and Another v. K.S.Subramanian
(1989 Supp. (1) S.C.C.331 : A.I.R. 1989 S.C. 362). The Tribunal, however,
rejected the said contention relying upon the later decisions of this Court in
Union of India v. Inderjit Datta (Civil Appeal Nos.5292-93 of 1993 decided on
September 6, 1994) and Director General of Ordnance Services & Ors. v. P.N.
Malhotra (J.T. 1995 (2) S.C. 98). The Tribunal observed that merely because
Article 311(2) has no application to Civilian Employees in defence services, it
cannot be said that the 1965 Rules have no application to them. It referred to
Rule 3 of the said Rules which says inter alia, "(T)hese Rules shall apply
to every government servant including civilian government servants in Defence
Service......". The Tribunal further observed that inasmuch as the
suspension in question was not pending any departmental inquiry but a criminal
prosecution, the said order of suspension is not illegal.
Tribunal also referred to the implied power of an employer to suspend his
employee. The correctness of the Tribunal's judgment is questioned herein.
K.S. Subramanian, a Bench of three learned Judges of this Court observed:
1965 Rules among others, provide procedure for imposing the three major
penalties that are set out under Article 31(2). When Article 31(2) 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stands excluded and the protection thereunder is withdrawn there is little that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 Court also observed that "the exclusionary effect of
Article 311(2) deprives him (such employee) the protection which he is
otherwise entitled to. In other words, there is no fetter in the exercise of
the pleasure of the President or the Governor." In short, the reasoning is
that in the absence of the protective umbrella of Article 311(2), the 1965
Rules cannot fetter the exercise of the pleasure in Article 310(1).
as Inderjit Datta and P.N.Malhotra are concerned, it was held therein that
merely because the 1965 Rules are followed - assuming that the said Rules have
no application to civilian employees in defence services - no prejudice can be
said to have occurred to them nor can the inquiry be held to be void on that
account. In P.N.Malhotra, it was explained that the said Rules merely
incorporate the principles of natural justice in an elaborate and more
satisfactory manner and that following the said Rules is indeed to the
advantage of the employee. The question in this case however is, if the said
Rules have no application, then under what power could the Government have
suspended the petitioner? When we indicated that such a power is incidental to
the relationship of Master and servant (reference was to the decision of this
Court in The Management Hotel Imperial, New Delhi and others v. Hotel Workers'
Union (A.I.R. 1959 (S.C.) 942) and that all that it means is that the employer
would be bound to pay the full salary and emoluments to the employee even
during the period the latter is kept away from service, the learned Additional
Solicitor General appearing for the Union Government, demurred. He submitted
that the decision of this Court in K.S.Subramanian requires reconsideration. He
submitted that merely because Article 311(2) has no application to civilian
employees in defence services, the 1965 Rules cannot be said to be inapplicable
to them, more particularly when the said Rules expressly say that they apply to
civilian employees in defence services. It is submitted that no prohibition
against applying the said Rules can be inferred from the non-applicability of
of the opinion that this is a matter which requires an authoritative
pronouncement by this Court. In view of the fact that K.S.Subramanian was
decided by a Bench of three learned Judges, we think it appropriate that this
matter is placed before a Bench of three learned Judges for hearing. It is for
that Bench either to decide the matter themselves or to refer it to a larger
Bench, if they think it appropriate.
matter may be placed before the Hon'ble Chief Justice for orders regarding the
posting of the matter before a Bench of three learned Judges.