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Ous Kutilingal Achudan Nair and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 1821 of 1974
Judge
Reported inAIR1976SC1179; 1976LabIC780; (1976)2SCC780; [1976]2SCR769; 1976(8)LC43(SC)
ActsConstitution of India - Articles 19(1) and 33; Army Act, 1950 - Sections 2(1), 3, 9 and 21; Army Rules, 1954 - Rules 19(11) and 79; Defence of India Act - Sections 4; Industrial Disputes Act
AppellantOus Kutilingal Achudan Nair and ors.
RespondentUnion of India (Uoi) and ors.
Appellant Advocate K.R. Nambiyar, Adv
Respondent Advocate L.N. Sinha and ; Girish Chandra, Advs.
Prior historyAppeal by special leave from the Judgment and Order dated June 18, 1974 of the Andhra Pradesh High Court at Hyderabad in Writ Appeal No. 460 of 1974
Excerpt:
- respondent sending panel of three persons for choice of new arbitrator to petitioner as provided by arbitration clause - failure of petitioner to select arbitrator from such panel held, appointment of arbitrator by respondent from said panel as provided by arbitration clause cannot be objected to. more so, when it was only case of replacement of sole arbitrator who was earlier appointed and there was no objection to credibility of arbitrator appointed by respondent. .....pay ets. 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 that argument, these categories of civilian employees, attached to the defence establishments, could not validly called 'members of the armed forces.' covered by article 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 section 2 of the army act, 1950, and that the impugned notifications are ultra vires the army act and are struck by articles 19(1)(c) and 33 of the constitution.9. for reasons that follow, the contentions must be repelled.10. article 33 of the.....
Judgment:

R.S. Sarkaria, J.

1. This is an appeal by special leave against a judgment of the High Court of Andhra Pradesh.

2. The appellants are office-bearers of the Civil Employees Unions in various centers of the Defence Establishments of Secunderabad and Hyderabad. They filed a writ petition in the High Court to impugne the authority of the Commandants (Respondents 2 and herein) in declaring the Unions, represented by the appellants as unlawful associations.

3. The Registrar of Trade-Unions had issued certificates of Registration to the four Unions represented appellants between 1954 and 1970. The General Secretary of Class IV, Civil Employees Union, Belaram, Sikandrabad was informed, per letter dated 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.

4. 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 Article 19(1)(c) of the Constitution.

5. 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 association in question were formed in breach of that prohibition, and were therefore, validly declared illegal.

6. The learned Judge of the High Court, who tried the petition, held that the right of the appellants to form associations given by Article 19(1)(c) of the Constitutions, had been lawfully taken away. He accordingly dismissed the petition.

7. The appellants carried an appeal to the appellate Bench of the High Court. The Bench dismissed the appeal holding that the impugned action was not jurisdiction.

8. The main contention of Mr. K.R. Nambiar, appearing for the appellants is that the members of the Unions represented by the appellants, though attached to the Defence Establishments, 'civilians', designated as 'Non-Combatants Un-Enrolled'. They include cooks, chhowkidars, laskars barbers, carpenters, mechanics, book, makers, tailors etc. They are governed by the Civil Service Regulations for purposes of discipline, leave, pay ets. 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 that argument, these categories of civilian employees, attached to the Defence Establishments, could not validly called 'members of the Armed Forces.' covered by Article 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 Section 2 of the Army Act, 1950, and that the impugned notifications are ultra vires the Army Act and are struck by Articles 19(1)(c) and 33 of the Constitution.

9. For reasons that follow, the contentions must be repelled.

10. Article 33 of the Constitution provides an exception to the proceeding Articles in Part III including Article 19(1)(c). By Article 33 Parliament is empowered to enact law determining to what extent 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.

11. 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 Article 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 subjects 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.'

12. The members of the Unions represented by the appellants obviously 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 Article 33. Consequently by virtue of Section 21 of the Army Act, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Article 19(1)(c).

13. Rules 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) xxx

(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.

14. In exercise of its powers under Section 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 Rule 79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act.

15. Section 9 of the Army Act further empowers the Central Government to declare by notification, persons not covered by Section (i) of Section 3 also as persons on active services.

16. In the view of these notifications issued under Section 4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under Article 19(1)(c) of the Constitution.

17. The appeal fails and is dismissed. There will be no order as to costs.


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