RANJIT KUMAR MAJUMDARversusUNION OF INDIA AND ORS.

_,                        RANJIT KUMAR MAJUMDAR                                          A
                                     v.
                          UNION OF INDIA AND ORS.

                                NOVEMBER 28, 1995
                                                                                         B
               [B.P. JEEVAN REDDY AND S.B. MAJMUDAR, JJ.]


           Service Law:

           Central Civil Services (Classification Control and Appeal) Rules, 1965
     : Rule 10(1).                                                                       c
          Suspension-Employee-Criminal prosecution-Suspension during
     pendency of prosecution under Rule 10(1}-Applicability of 1965 Rules to
     Defence employee holding civil post--,----Afatter refelTed to Constitution Bench.
                                                                                         D
            The appellant, holding a civil post connected with defence, was
     suspended from service under Rule 10(1) of the Central Civil Services
     (Classification Control and Appeal) Rules, 1965 during the pendency of
     criminal prosecution. The validity of the suspension order was challenged
     before the Administrative Tribunal contending that in view of the decision
     of this Court in Union of India & Anr. v. KS. Subramanian, [1989) Supp.             E
     1 SCC 331    = AIR (1989) SC 362 the 1965 Rules were not applicable to
     civilian employee in defence services and, therefore, the suspension ef-
     fected under the said Rules was incompetent and without jurisdiction.

            Relying upon later decisions of this Court in Union of India v.Inderjit      F
     Datta, CA Nos. 5292-93 of 1993 decided on 6.9.1994 by Supreme Court, and
     Director General of Ordnance Services & Ors. v. P.N. Malhotra, J.T. (1995)
     2 SC 98. The Tribunal rejected the contention and held that (i) 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;        G
     (ii) in view of the provisions contained in Rule 3, the said Rules were
     applicable to every government servant including civilian government
     servants in Defence service; (iii) the impugned order was not illegal
     inasmuch as the suspension in question was not pending any departmental
     inquiry but a criminal prosecution; and (iv) the employer has implied
     power to suspend his employee.                                                      H
                                            717
    718                  SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.
                                                                                   ,._
A         Against the decision of the Tribunal a petition was preferred before
    this Court.

          Giving reason for referring the matter to a larger Bench, this Court

          HELD : This is a matter which requires an authoritative pronoun-
B cement by this Court. In view of the fact that the KS. Subramanian case
    was decided by a Bench of three Judges, it is appropriate that this matter
    be placed before a Bench of three 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. [720-H]
c         Union of India and Anr. v. KS. Subramanian, [1989) Suppl. 1 SCC
    331   = AIR (1989) SC 362; Union of India v. Indeljit Datta, CA Nos. 5292-
    93/93 decided by Supreme Court on 6.9.1994; Director General of Ordinance
    Se1Vices & Ors. v. P.N. Malhotra JT (1995) 2 SC 98; The Management Hotel
    Impe1ial, New Delhi and Ors. v. Hotel Workers' Union, AIR (1959) SC 942;
D referred to.
           CIVIL APPELLATE JURISDICTION                Special Leave Petition
    (Civil) No. 10901 of 1995.

          From the Judgment and Order dated 4-4-95 of the Central Ad-
E   ministrative Tribunal, Calcutta in O.A. No. 179 of 1995

          H.K. Puri, Rajesh Srivastava and S.P. Lenka for the Petitioner.

         Altaf Ahmad, Additional Solicitor General and Ms. Anil Katiyar, for
    the Respondents.
F
          The following Order of the Court was delivered :

           This short order is to indicate the reasons for referring this matter
    to a larger Bench of three Judges.
G       The petitioner is holding a civil post connected with defence. Pend-
  ing 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). On February
H 9, 1995 the petitioner approached the Central Administrative Tribuna~
                         R.K. MATUMDAR v. U.0.1.                           719

 Calcutta Bench questioning the validity of the order of suspension on the       ,A
 ground inter alia that the 1965 Rules do not apply to civilian employee in
 defence services and, therefore, the 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. KS. Subramanian,
 [1989] Supp. 1 SCC 331=AIR (1989) S.C. 362. The Tribunal, however,
                                                                                 B
 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 Se1vices
 & 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 applica-     c
 tion 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 ob-
 served that inasmuch as the suspension in question was not pending any
 department inquiry but a criminal prosecution, the said order of suspen-        D
 sion is not illegal. The Tribunal also referred to the implied power of an
 employer to suspend his employee. The correctness of the Tribm;1al's
 judgment is questioned herein.

      In KS. Subramanian, a Bench of three learned Judges of this Court
 observed:                                                                       E

          "The 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    F
          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 G
· 311(2) deprives him (such employee) the protection which he is otherwise
  entitled to. In other works, 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).                           H
    720                  SUPREME COURT REPORTS (1995] SUPP.' 5 S.C.R.

A        So far 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
B 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
C (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 in that the employer would be bound to pay
  the full salary and emoluments to the employee even during the period the
  letter is kept away from service, the learned Additional Solicitor General
D appearing for the Union Government, demurred. He submitted that the
  decision of this Court in KS. 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 inap-
  plicable to them, more particularly when the said Rules expressly say that
  they apply to civilian employees in defence services. It is submitted that no
E prohibition against applying the said Rules can be inferred from the
  non-applicability of Article 311(2).

          We are of the opinion that this is a matter which requires an
    authoritative pronouncement by this Court. In view of the fact that K S.
F   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 them-
    selves or to refer it to a larger Bench, if they think it appropriate.

          The matter may be placed before the Hon'ble Chief Justice for
G orders regarding the posting of the matter before a Bench of three learned
    Judges.

    T.N.A.                                       Petitions dismissed on 23.7.98.