Ous Kutilingal Achudan Nair & Ors
Vs. Union of India & Ors  INSC 284 (20 November 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SHINGAL, P.N.
CITATION: 1976 AIR 1179 1976 SCR (2) 769 1976
SCC (2) 780
F 1983 SC 658 (10) E&R 1987 SC 379 (10) F
1987 SC 413 (2)
Constitution of India, 1950-Art. 33-Scope of.
Army Act, 1950, S.. 2(1)-Civilian employees
of defence establishments-If could form trade unions.
On the question whether civilian employees of
Defence Establishments have the right to form trade unions under Art, 19(1) (c)
of the Constitution,
HELD: Article 33 of the Constitution provides
an exception to the Preceding Articles in Part III including Act. 19(1)(c). By
Art. 33, Parliament is empowered to enact law determining to what extent any of
the rights conferred by Part III shall. in their application to the members of
the armed forces or forces charged with the maintenance of public order, be
restricted or abrogated so as to ensure the proper discharge of their duties
and the maintenance of discipline among them. [770GH, 771A] By virtue of s.
2(l) of the Army Act, the Central Government was competent to make rules
restricting or curtailing the Fundamental Rights of civilian employees of
Defence Establishments to form trade unions under Art.
19(1)(c) of the Constitution. Although they
are non- combatants and are in some matters governed by the civil service
regulations, yet they are? integral to the armed forces. They answer the
description of the members of the armed forces within the contemplation of Art.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 18 '1 of 1974.
Appeal by special leave from the judgment and
order dated the 18th June 1974 of the Andhra Pradesh High Court at Hyderabad in
Writ Appeal No. 460 of 1974.
K. R. Nambiar for the appellant.
L. N. Sinha, Sol. General of India and Girish
Chandra for respondents.
The Judgment of the Court was delivered by
SARKARIA, J. This is an appeal by special leave against a judgment of the High
Court of Andhra Pradesh. The appellants are office-bearers of the Civil
Employees Unions in the various Centers of the Defence Establishments of
Secunderabad and Hyderabad. They filed a writ petition in the High Court to
impugn the authority of the Commandants (Respondents 2 and 3 herein) in
declaring the Unions, represented by the appellants as unlawful associations.
The Registrar of Trade-Unions had issued
Certificates of Registration to the four Unions represented by the appellants
between 1954 and 1970. The General Secretary of Class IV, Civil Employees
Union, Bolaram, Secunderabad was informed, per letter dated 770 12-5-1971, by
the Under Secretary of the Government of India, Ministry of Defence that their
Unions could not be granted recognition as these employees being in the
Training Establishments, were not entitled to form Unions. The Commandant also
issued a notice to the appellants to show cause why disciplinary action be not
taken against them for forming this unlawful association.
The main ground taken in the petition was
that the impugned action was violative of their fundamental right to form
associations or Unions conferred by Art. 19(1)(c) of the Constitution.
In their reply-affidavit, the respondents
averred that the Civilian Non-Combatants in the Defence Establishments were
governed by the Army Act and were duly prohibited by Rules framed thereunder
from joining or forming a Trade Union; that the associations in question were
formed in breach of that prohibition, and were therefore, validly declared illegal.
The learned Judge of the High Court, who
tried the petition, held that the right of the appellants to form associations
given by Art. 19(1) (c) of the Constitution, had been lawfully taken away. He
accordingly dismissed the petition.
The appellants carried an appeal to the
appellate Bench of the High Court. The Bench dismissed the appeal holding that
the impugnea action was not without jurisdiction.
The main contention of Mr. K. R. Nambiyar,
appearing for the appellants is that the members of the Unions represented by
the appellants, though attached to the Defence Establishments, are civilians',
designated as "Non- Combatants Un-Enrolled". They include cooks,
chowkidars, laskars, barbers, carpenters, mechanics, boot makers, tailors etc.
They are governed by the Civil Service Regulations for purposes of discipline,
leave, pay etc. and are also eligible to serve upto the age of 60 years unlike
that of the members of the Armed Forces. In view of these admitted facts,
proceeds the argument, these categories of civilian employees, attached to the
Defence Establishments, could not be validly called "members of the Armed
Forces" covered by Art. 33 of the Constitution. The points sought to be
made out are: that the members of the appellants' Unions are not subject to the
Army Act as they do not fall under any of the categories enumerated in
sub-clauses (a) to (i) of s. 2 of the Army Act, 1950, and that the impugned
notifications are ultra vires the Army Act and are struck by Arts. 19(1)(c) and
33 of the Constitution.
For reasons that follow, the contentions must
Article 33 of the Constitution provides an
exception to the pre ceding Articles in Part III including Art. 19(1) (c). By
Article 33, Parliament is empowered to enact law determining to what extent any
of the rights conferred by Part III shall, in their application, to the members
of the Armed Forces or Forces charged with the main tenance of public order, be
restricted or abrogated so as to ensure 771 the proper discharge of their
duties and the maintenance of discipline among them.
In enacting the Army Act, 1950, in so far as
it restricts or abrogates any of the fundamental rights of the members of the
Armed Forces, Parliament derives its competence from Art.33 of the Constitution.
Section 2(1) of the Act enumerates the persons who are subject to the operation
of this Act. According to sub-clause (i) of this section, persons governed by
the Act, include "persons not otherwise subject to military law who, on
active service, in camp, on the march or at any frontier post specified by the
Central Government by notification in this behalf, are employed by, or are in
the service of, or are followers of, or accompany any portion of the regular
army." The members of the Unions represented by the appellants fall within
this category. It is their duty to follow or accompany the Armed personnel on
active service, or in camp or on the march. Although they are non-combatants
and are in some matters governed by the Civil Service Regulations, yet they are
integral to the Armed Forces. They answer the description of the "members
of the Armed Forces" within the contemplation of Art. 33. Consequently, by
virtue of s. 21 of the Army Act, the Central Government was competent by
notification to make rules restricting or curtailing their fundamental rights
under Art. 19(1) (c).
Rule 19(ii) of the Army Rules, 1954, imposes
a restriction on the fundamental rights in these terms.
"No persons subject to the Act shall
without the express sanction of the Central Government:
(i) xx xx xx (ii) be a member of, or be
associated in any way with, any trade union or labour union, or any class of
trade or labour unions " In exercise of its powers under s.4 of the
Defence of India Act, the Government of India has by notification dated
11-2-1972, provided that all persons not being members of the Armed Forces of
the Union, who are attached to or employed with or following the regular Army
shall be subject to the military law. The Army Act, 1950, has also been made
applicable to them. By another notification dated 23-2-1972, issued under r.79,
of the Army Rules, civilian employees of the training establishments and
Military Hospitals have been taken out of the purview of the Industrial
Section 9 of the Army Act further empowers
the Central Government to declare by notification, persons not covered by s.
(i) of s. 3 also as persons on active service.
772 In view of these notifications issued
under s.4 of the Defence of India Act and the Army Rules, the appellants can no
longer claim any fundamental right under Art. 19 (1) (c) of the Constitution.
The appeal fails and is dismissed. There will
be no order as to costs.