| SooperKanoon Citation | sooperkanoon.com/54175 |
| Court | Central Administrative Tribunal CAT Kolkata |
| Decided On | Sep-21-2001 |
| Judge | G G Vice, S A B.P. |
| Appellant | Tapesh Chandra Saha |
| Respondent | Union of India (Uoi) and ors. |
2. The applicant had joined as Durdwan in the Ordnance Factory, Dum Dum on 2.7.79. After putting in about 4 years service he was promoted to the post of Jamadar Durdwan and since then he has been holding that post. On 3.9.92 respondent No. 1 issued an order placing the applicant under suspension with effect from 4.9.92 in contemplation of disciplinary proceedings. Two months thereafter the applicant was served with a memorandum of charges. He made representation before the General Manager on 3.9.92 stating that Shri K.P. Chakraborty, Security Foreman was against him and he was insulting him in all possible ways.
The applicant filed reply to the chargesheet on 11.10.92, praying that the chargesheet should be dropped and the suspension order should be revoked. Since he was not given relief, he has filed this OA.3. In the reply the respondent' case is that the applicant had shouted at the Foreman in loud voice without any provocation in the presence of various persons and therefore, he was placed under suspension and a chargesheet was served upon him. It was prayed that the application be dismissed.
4. The applicant filed an application supplementing the OA stating that the suspension of the applicant is bad in law because the CCS (CCA) Rules, 1965 did not apply to civilian employees in Defence.
5. It is relevant to state that on 19.11.93 an interim order was passed by this Tribunal directing that the status quo shall be maintained till the disposal of the application. The respondent have filed MA 163/2001 praying that the interim order be set aside.
6. Both the OA and the MA have been heard together and they are being disposed of by this common order.
7. Mr. S. Ghosh, learned Counsel for the applicant contended that the CCS (CCA) Rules, 1965 do not apply to the civilians working in the Department of Defence and therefore, neither the applicant could be placed under suspension nor the disciplinary proceedings could be initiated against him. Relying on the case of Union of India v. K.S.Subramaniam, AIR 1989 SC 662, Mr. Ghosh canvassed that the application be allowed and the suspension order as well as the disciplinary proceedings be quashed.
8. As against this, Mrs. Banerjee, learned Counsel for the respondents contended that this Tribunal has got jurisdiction to hear the service matters of the civilian employees in defence service. In this connection, she has placed reliance on the case of Ananda Prakash Singhal v. Union of India, (1991) 18 ATC 591 = 1991(1) SLJ 137 (PB-ND) (CAT) and Sankar Nath Gangopadhyay v. Union of India and Ors., 1994(1) ATJ 420. She further contended that the Supreme Court in the case of Director General of Ordnance Services and Ors, v. P.N. Malhotra, 1995(2) SLJ 183 has held that the enquiry can be held against a civilian working in the Defence service. She prayed that the disciplinary proceedings against the applicant should be allowed to continue.
9. We have given the matter our thoughtful consideration. The serious points for consideration in this OA are whether the applicant could be placed under suspension in exercise of power under Rule 10 of the CCS (CCA) Rules, 1965 and a chargesheet could be served upon him in exercise of power under the Rule 14 of the said Rules.
10. The first point formulated above is no longer res Integra. Their Lordships of the Hon'ble Supreme Court in the case of K.S. Subramaniam (supra) have clearly laid down that a civilian employee in defence service cannot claim protection under Article 311(2) of the Constitution of India and the Rules of 1965 framed under proviso to Article 309 of the Constitution of India are also inapplicable. It may be pointed out that as regards non protection of Article 311 of the Constitution of India the Constitution Bench way back in 1971 in the case of Lakh Raj Khurana v. Union of India, 1971(3) SCR 908 had held that a person holding a civilian post which is connected with the defence cannot claim protection of Article 311. In the case of K.S.Subramaniam (supra) their Lordships have reproduced the observations made in the case of Lekh Raj Khurana (supra).
11. There was some doubt with regard to the fact as to whether CCS (CCA) Rules framed under proviso to Article 309 were applicable to the civilians working in the Defence. Their Lordships in the case of K.S.Subramaniam (supra) have made the position clear by laying down that the Rules of 1965 do not independently place any part and are inapplicable to the civilian employees working in Defence service.
12. Once it is held that the Rules of 1965 were not applicable in the case of the applicant who was a civilian working in the Defence, there is no doubt in holding that he could not be placed under suspension under the provisions of the CCS (CCA) Rules, 1965.
13. It may be stated here that the power of the employer to suspend an employee under the ordinary law of master and servant in the sense of a right to forbid a servant to work, is not implied in a contract between master and servant. Such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself vide The Management Hotel Imperial, New Delhi and Ors. v. Hotel Workers' Union, AIR 1959 SC 1342. Their Lordships clearly held that the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so he will havt, to pay wages of the so-called period of suspension. Thus the legal position is that an employer does not have an implicit power of suspending an employee. The power must come through the contract or must find place in the Rules framed under some statute. In the instant case, we have seen that the Rules of 1965, under which the applicant was placed under suspension, were not applicable to the applicant and therefore, the suspension of the applicant, by the respondent, was without jurisdiction.
14. Now it has to be seen that what is the effect of the Supreme Court decision in the case of P.M. Malhotra (supra). In the case of P.N.Malhotra the case of K.S. Subramaniam (supra) was noticed and thereafter it was observed that the Tribunal on the basis of the decision in the case of K.S. Subramanian could not hold the dismissal of the employee as void.
15. It is necessary to state some facts of the case of Malhotra. In that case, Shri Malhotra was acivilian employee in the Defence service.
A disciplinary enquiry was held against him and he was dismissed from service. An appeal preferred by him before the Appellate Authority proved abortive. He approached this Tribunal by filing an O.A. on the basis of the Judgment in the case K.S. Subramaniam. It was argued before the Tribunal on behalf of Shri Malthora that the disciplinary enquiry could not be held under the CCS (CCA) Rules, 1965 and therefore, the entire enquiry was void. The Tribunal upheld the contention and granted the declaration, but at the same time the Tribunal declined to award back wages to Shri Malhotra. The matter went up to the Supreme Court by way of appeal.Union of India and Ors. v. Indrajit Dutta, 1995 (Suppl.3) SCC 29 was decided.
After noticing the contentions raised and the observations made in the Judgment it was observed that in the case of Indrajit Dutta the Supreme Court had not approved the view taken by the Tribunal whereby it had set aside the removal order passed by the employer. Their Lordships agreeing with the following observation made in the case of Indrajit Dutta (supra) : "We are also unable to see how the decision in K.S Subramaniam (1989 Supp.(1) SCC 331) could have been understood by the Tribunal as enabling it to declare that the dismissal of the respondent is void and to further declare that he should be deemed to have been continuing in service. The said decision in fact militates against the respondent, since according to it, the respondent does not enjoy the protection of Article311 (2) of the 1965 Rules. It is relevant to notice that in the last para of the Judgment, this Court states.
"In the result, the appellants (Union of India) succeed on the question of law, but the respondent retains the decree in his favour purely on compassionate grounds." The compassionate grounds are stated in the preceding paragraph" observed that in the case of Indrajit Dutta the removal order was set aside in the special facts and circumstances of the case. The special circumstance in that case was that the employee had submitted resignation in the year of 1984 to join an establishment, but his resignation was not accepted and instead he was subjected to disciplinary proceedings under the Rules. In the case of P.M. Malhotra, their Lordships set aside the order of the Tribunal quashing the order of dismissal and upheld the order of dismissal passed by the employer.
16. What can be understood from the two decisions viz., Indrajit Dutta and P.N. Malhotra (supra) is that though the Rules of 1965 are not applicable to acivilian employee working in Defence service, yet the disciplinary proceedings can be held against him under general law of rights and liabilities of the master and servant.
17. It is significant to point out that even in the case of K.S.Subramaniam (supra), it was not held the departmental enquiry can not be held against a civilian employee working in Defence service. What was the fact situation in that case was that the employee had filed a civil suit challenging the order of termination of his services, which was decreed by the Civil Court and the Trial Court awarded Rs. 25,000/- as damages together with interest at 6% per annum for illegal termination of service. That decree was confirmed by the High Court. In the Supreme Court the matter was entertained only on the point of law and the point of law decided was that the Rules of 1965 were not applicable to the case of the applicant who was a civilian employee working in Defence. Their Lordships observed at paras 13 and 14 that there were some points in favour of the applicant, under equity and therefore, the decree under appeal was not being disturbed and it was allowed to stand purely on compassionate grounds. From the observations made in the Judgment, it cannot be inferred that the civilian employee can not be dismissed from service or his service can not be terminated.
It may be that the enquiry cannot be conducted under the Rules of 1965, but that does not absolve the employee from the punishment, if he commits misconduct. That is, what has been observed in the case of Indrajit Dutta (supra) and also in the case of P.N. Malhotra (supra).
18. As to the two Judgments of this Tribunal in the cases of Ananda Prakash Singhal and Sankar Nath Gangopadhyay (supra), it may be stated that they arc on the poinl as to whether the Tribunal can entertain an application of a civilian employee working in the Defence service. The Tribunal has held that under Section 14(1)(b)(iii) of the A.T. Act the Tribunal has got jurisdiction to entertain the matter. There is no controversy so far as this point is concerned in this matter. The controversy is about the power of suspension of the respondents and also their power to hold the departmental enquiry against the applicant.
19. As a result of the discussion held above, the matter has to be disposed keeping in view the ratio of the three judgments viz., K.S.Subramaniam, P.N. Mathotra and Indrajit Dutta.
20. Consequently, it is declared that the order of suspension dated 3.9.92 passed against the applicant was without jurisdiction and is not sustainable in law. Since the applicant was kept away from duty illegally, he is entitled lo full salary for the period he remained under suspension, of course, minus the subsistence allowance already paid to him, if any.
21. The disciplinary proceedings, however, are not liable to be quashed. It is for the respondents to consider as to whether they should continue the disciplinary proceedings initiated against the applicant or act in any other manner in the light of the above mentioned judgments of the Hon'ble Apex Court, No order is passed as to costs.
22. Since the OA has been disposed of today, no order is required to be passed on the MA. It shall disposed of.