Ous Kutilingal Achudan Nair and Ors. v. Union of India & Ors.

Judgment

The Judgment of the Court was delivered by SARKAR!A, J .. This is an appeal by special leave against a judgmout of the High Court of Andhra Pradesh. The appellants arc office-bearers· of the 'Civil Employees Unions in the various Centres 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 appel!ants as unlawful associations . The Registrar of Trade-Unions had issued Certificates of Registration to the four Unions represented by the appellants between 1954 an~ 1970. The General Secretary of Class IV, Civil Emplo-. yecs Umon, Bolaram, Secunderabad was informed, per -letter dated 770. SUPllEME COURT REPORTS [1976]} S.C.R. 12-5-1971, by the Under Secretary of the Gove=ent of India, Ministry of Defence that their Unions could not be granted recognjtion 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. n '!he.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 .ioining or forming a Trade Union; -that the associations in ques- . tion 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 a"ay. 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 impugneri action was not without jurisdiction. The main contention of Mr. K. R. NamQ.iyar, appearing for the appellants is that the members of the Unions represented . by the appellants, though attached to the Defence Establishments, arc civilians', designated as "Non-Combatants Un-Enrolled". They include cooks, chowkidars, laskars, barbers, carpenters, mechanics, bootmalers; tailors etc. They are governed by the Civil Service Regulations for purposes of discipline,_ leave, pay etc. and are also eligibfo 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 arc 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 Anny Act and are struck by Arts. 19 (1 )( c) and 33 of the Constituc = tion. For reasons that follow, the contentions must be repelled. Article 33 of the Constitution provides an exception to the preceding Articles in Part III including Art. 19(1)(c). By Article 33, Parliantent 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 o. KUTILINGAL v. UNION (Sarkaria, !.) the proper discharge of their duties and the maintenance of discipline among them.

In enacting the Army Act, 1950, in so far as it restr!cts or abrogates any of the fundamental rights of th~ 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. Accord~g to sub-clause (i) of this section, persons governed by the Act, mclu~e ·:persons not otherwise subject to military law who, on active servK:e, 111 camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, oare employed by, or are in the sen-ice of, or arc 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) . n 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 : 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 Jabour unions."

In ~xercise 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 Anny shall be subject to the military law. The Army Act, ~950, has also been ~ade applicable to them. By another 'notifica· t1on dated 23-2-197~, _issued un~er r.79, of the Army Rules, civilian employees of the trammg e~tabhshments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act. Section 9 of the Army Act further empowers the Central Government lo declare by notification, persons not covered by s. (i) of s. 3 also as persons on active service. 77'!. SUPRE11E COURT REPORTS [ l976J 2 ·s.C.R. 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. l'.B.R. Appeal dismissed.