UNION OF INDIAversusS.B. MISRA

A                              UNION OF INDIA
                                      v.
                                 S.B. MISRA

                               AUGUST 14, 1995

B               [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

           Constitution of India : Articles 309, 310, 311-Defence personnel-Ap-
    plicability of CCS(CC&A) Rules to-Held-A1ticle 310(1) expressly excludes
    applicability of provisions of CCS(CC&A) Rules to defence personnel.
c
          Doctrine of pleasure-Applicability of

          Service Law:

           CCS(CC&A) Rules, 1965-Central Civil Services (Classification Con-
D   trol andAppeal)-R.ule ](}-Defence personnel-Lecture in College of Milit01y
    Engineering -Department inquiry against culminating into order of compul-
    sory .retirement-Order challenged for non-supply of copy of inquiry
    report-Held, delinquent not entitled to supply of copy of inquiry report as
    CCS(CC&A) Rules have no application to defencepersonnel.

          The respondent, a lecturer in the College of Military Engineering,
    challenged before the Central Administrative Tribunal, the punishment
    of compulsory retirement awarded to him consequent upon a departmen-
    tal inquiry, as invalid for non-supply of the copy of the inquiry report.
    The ·tribunal set aside the order giving liberty to the department to
F   proceed with the case from the stage of supplying the copy of the inquiry
    report. The competent authority thereafter purporting to exercise powers
    under Rule 10(4) of CCS(CC&A) Rules, 1965, ordered that the respon-
    dent was deemed to be under suspension till the inquiry was completed.
    The respondent again challenged the said order before the Tribunal. The
G   Tribunal held that Rule 10(4) of the Rules had no application pending
    inquiry and the respondent would be deemed to be in service. It directed .
    the department to reinstate the respondent with all consequential
    benefits, ~grieved, Union of India filed the present appeal by special
    leave. Meanwhile the respondent was reinstated with all consequential
H   benefits.
                                       704
                          U.0.1. v. S.B. MISRA                        705

      Allowing the appeal and setting aside the order of the Tribunal,       A
this Court

      HELD : 1.1. The order of the Tribunal directing the appellant to
supply the copy of the Inquiry Report and to take further action thereon
and to reinstate the respondent till the inquiry is illegal. [707-G]
                                                                             B
      1.2. The CCS(CC&A) Rules, 1965 have no application to the defence
personnel. Consequently, the respondent was not entitled to the supply of
the Inquiry Report as contemplated by Clause (2) to Article 311 of the
Constitution read with the Rules. [707-F-G]

      Union of India and Anr. v. KS. Subramanian, [1989) Supp. 1 SCC         C
331, relied on.

      Jagatrai Mahinchand and Ajwani v. Union of India, (1967) SLR 471;
S.P. Behl v. Union of India C.A.No. (1918) of (1966), decided on 8.3.1968)
and Union of India v. Indrajit Datta, C.A. 5392-93/93 decided on 6.9.1994,   D
reiterated.

      1.3. The rules made under proviso to Article 309 will be subject to
doctrine of pleasure enshrined in Article 310. Article 310(1) expressly
excludes the applicability of the provisions of the Rules to the defence
personnel. [707-F]                                                           E
      Moti Lal Deka v. Union of India, [1964) 5 SCR, 683; and Shamsher
Singh v. State of Punjab & Ors., [1975) 1 SCR 814, followed.

      Ramjan Khan v. Union of India, [1991) 1 SCC 588; Managi.ng Director,
ECIL & Ors. v. B. Karnnakar & Ors., [1993] 4 SCC 727 and Union of India      F
v. Tutsi Ram Patel, [1985] 3 SCC 398, referred to.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7756 of
1995.

      From the Judgment and Order dated 1.9.92 of the Central Ad- G
ministrative Tribunal Bombay in C.P. No. 130/92 in O.A. NO. 616of1990.

      Ms. Amareshwari, S.A. Matto, Ms. Anil Katiyar, and Ms. Sushma
Suri for the Appellants.

        Vimal Dave for the Respondent.                                       H
    706                    SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A         The following Order of the Court was delivered :

          Leave granted.

          The case has a chequered career. The respondent while working as
    a lecturer in the College of Military Engineering, Pune was compulsorily
B
    retired by proceedings dated July 27, 1987, as a measure of punishment,
    after following departmental inquiry. He challenged its validity in O.A.
    616/90 contending that he was not supplied with the copy of the Inquiry
    Report and, therefore, his compulsory retirement was not valid in law.
    Following the ratio in Ramzan Khan v. Union of India, (1991] 1 SCC 588,
c   decided by a bench of three Judges, the Tribunal by its order dated July
    23, 1992, set aside the order giving liberty to t1:1e appellant to take ap-
    propriate action from the stage of supplying the copy of the Inquiry Report.
    Ramzan Khan's ratio was clarified in Managing Director, ECIL & Ors. v. B.
    Kanmakar & Ors., [1993] 4 SCC 727 by a Constitution Bench wherein it
D   was held that the ratio had no application to cases concluded by that date.
    Even to cases to which the ratio would apply, fresh enquiry after supplying
    the enquiry report may be proceeded with and the delinquent officer must
    be deemed to be under suspension pending enquiry and the consequential
    benefits would depend on the result of the enquiry.

E          When the competent officer exercising the power under sub-rule (4)
    of Rule 10 of CCS (CC&A) Rules, 1965 (for short 'Rules') passed an order
    that the respondent was deemed to be under suspension till the inquiry is
    completed, the respondent again challenged that order by filing a Con-
    tempt Petition for non-implementation of the order and in the impugned
F   order dated September 1, 1992 in C.P. No. 130/92, the Tribunal held that
    Rule 10(4) has no application since the respondent was not kept under
    suspension pending inquiry and that, therefore, he must be deemed to be
    in service and directed to reinstate him with all consequential benefits. We
    are informed that pursuant to that order, the respondent has been
G   rei1!stated with all consequential benefits and he is continuing in service.

          The question is whether the respondent is deemed to be under
    suspension. Mr. Dave, learned counsel for the respondent ·contended that
    the Rules have no application and, therefore, the respondent cannot be
    treated to be under deemed suspension. It is also contended that since he
H   has also been reinstated the matter became infructuous.
                           U.0.1. v. S.B.MISRA                        707

       This Court in Jagatrai Mahinchand Ajwani v. Union of India, [1967] A
SLR 471 and S.P. Behl v. Union of India, C.A. No. 1918 of (1966) decided
on March 8, 1968) held that the CCS (CC&A) Rules have no application
to the defence personnel. In fact, Article 310 of the Constitution clearly
exempts them from the operation of the rules. Sub-clause (1) thereof says
that except as expressly provided by the Constitution, every person who is B
a member of a defence service or of a civil service of the Union or of an
All India Service or holds any post connected with defence or any civil post
under the Union, holds office during the pleasure of the President, and
every person who is a member of a civil service of a State or holds any civil
post under a State holds office during the pleasure of the Governor of the
State of amenable to the action laid by the President or the Governor, as C
the case may be. The doctrine of pleasure was subject of consideration by
a Bench of 7 Judges in Moti Lal Deka v. Union of India, [1964] 5 SCR 683.
It was held that the Rules made under proviso to Article 309 will be subject
to the doctrine of pleasure as engrafted under Article 310 of the Constitu-
tion. Article 310 has to be read subject to Article 311. That ratio was
reiterated by another larger Bench in Sltamsher Singh v. State of Punjab & D
Ors., (1975] 1 SCR 814. This position was also examined by a Constitution
Bench of Union of India v. Tulsiram Patel, (1985] 3 SCC 398. A Bench of
three Judges of this Court in Union of India and Anr. v. K.S. Subramaniam,
(1989] Supp (1) SCC 331 and of two Judges, to which one of us (Hansaria,
J.) was a member in Union of India v. Indrajit Datta, in a C.A. 5392-93/93
dated September 6, 1994, held that the rules do not apply to defence E
personnel.

        Thus, it is settled law that the Rules made under proviso to Article
309 will be subject to doctrine of pleasure enshrined in Article 310. Article
310(1) expressly excludes the applicability of the provisions of the Rules to F
the defence personnels. We, therefore, hold that the CCS (CC&A) Rules_
have no application to the defence personnel. Consequently the respondent
is not entitled to the supply of the Inquiry Report as contemplated by
Clause (2) to Article 311 of the Constitution read with the Rules. As a
 result, the order of the Tribunal directing the appellant to supply the copy G
of the Inquiry Report and. to take further action thereon and to reinstate
him till the inquiry is illegal. The order of the Tribunal is set aside.

       The appeal is allowed. No costs.

R.P.                                                      Appeal allowed.