Ordinance Clothing Factory Workers Union v. Ministry of Defence, Govt. of India

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.07.2009CORAM:THE HONOURABLE MR.JUSTICE S.NAGAMUTHUWrit Petition Nos.17437 & 17456 of 1999 Ordinance Clothing FactoryWorkers Union, rep. By itsSecretary, N.J.Raman,Avadi, chennai – 600 054. .. Petitioner in W.P.No.17437/99Heavy Vehicles FactoryNational Workers Union,rep. By its General Secretary,G.Srinivasan,Avadi, Chennai – 600 054. .. Petitioner in W.P.No.17456/99VS1.The Secretary,Ministry of Defence,Govt. of India,New Delhi.2.The General Manager,Ordinance Clothing Factory,Avadi, Chennai – 600 054.3.The Commissioner,Avadi Municipality,Avadi, Chennai – 600 054.4.The Secretary,Municipal Administration,(Water Supply),Fort St. George,Chennai – 600 009. ... Respondents in W.P.No.17437/991.The Secretary,Ministry of Defence,Govt. of India,New Delhi. https://hcservices.ecourts.gov.in/hcservices/

2.The General Manager,Heavy Vehicles Factory,Avadi, Chennai – 600 054.3.The Commissioner,Avadi Municipality,Avadi, Chennai – 600 054.4.The Secretary,Municipal Administration,(Water Supply),Fort St. George,Chennai – 600 009. ... Respondents in W.P.No.17456/99 Common Prayer:- Writ petitions have been filed under Article 226of the Constitution of India praying for the issuance of a writ ofMandamus directing the respondents 3 and 4 to forbear from issuingany demand for payment of Profession Tax by the defence civilianemployees who are members of the petitioner union in the secondrespondent factory.For Petitionerin both W.Ps : Mr.V.Parthiban For RR1 and 2 in both W.Ps : Mr.M.DamodharanFor RR3 and 4in both W.Ps : Mr.N.Senthilkumar, AGP COMMON ORDER"Whether the employees of the Ordinance Clothing Factory andHeavy Vehicles Factory, Avadi, Chennai, the defence establishmentsunder the Ministry of Defence, are subject to the Army Act so as toget exemption from paying Profession Tax under the Tamil NaduDistrict Municipalities Act" is the question posed for resolutionin these writ petitions.2.The members of the petitioner Unions are all employed invarious cadres in the second respondent factories which are thedefence establishments under the Ministry of Defence, serving theneeds of the defence forces. It is the contention of thepetitioners that these employees are working in tandem with thedefence persons for the security of the country. Theseestablishments are in and around Avadi falling within the limitsof the third respondent Municipality governed by the Tamil NaduDistrict Municipalities Act. The third respondent has initiatedproceedings to collect Profession Tax under Section 124-D of the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu District Municipalities Act. On the ground that underSection 124-J of the Act, the members of the Armed Forces of theUnion, serving in any part of the State of Tamil Nadu, are exemptedfrom Profession Tax and also contending that the employees of thesecond respondent factories are integral part of the Armed Forces,the petitioners have come forward with these writ petitions seekinga mandamus to forbear the respondents from levying Profession Taxfrom the employees of the second respondent factories.3.In the counter filed by the third respondent, inter alia, itis contended that the second respondent establishments, thoughdefence establishments, are not governed by the Army Act of 1950.To put it precisely, it is contended that the employees of thesecond respondent factories are not subjected to the Army Act andtherefore, the exemption under Section 124-J of the Act is notapplicable to them. 4.From the rival contentions of the parties, the vital questionwhich emerges for consideration is as to whether the employees ofthe second respondent establishments are persons subject to theArmy Act or not.5.To find an answer to the said question it is, at the outset,necessary to have a survey of the relevant provisions of the ArmyAct. Section 2 of the Army Act defines the Persons who shall besubject to the said Act which reads as follows:-"2.Persons subject to this Act. (1) The following persons shall be subjectto this Act wherever they may be, namely:- (a) officers, junior commissioned officersand warrant officers of the regular Army; (b) persons enrolled under this Act; (c) persons belonging to the Indian ReserveForces; (d) persons belonging to the IndianSupplementary Reserve Forces when called out forservice or when carrying out the annual test; (e) officers of the Territorial Army, whendoing duty as such officers, and enrolledpersons of the said Army when called out orembodied or attached to any regular forces,subject to such adaptations and modifications asmay be made in the application of this Act tosuch persons under sub-section (1) of section 9of the Territorial Army Act, 1948 (56 of 1948.) https://hcservices.ecourts.gov.in/hcservices/ (f) persons holding commissions in the Armyin India Reserve of Officers, when ordered onany duty or service for which they are liable asmembers of such reserve forces; (g) officers appointed to the Indian RegularReserve of Officers, when ordered on any duty orservice for which they are liable as members ofsuch reserve forces; 2* * * * * (i) persons not otherwise subject tomilitary law who, on active service, in camp, onthe march or at any frontier post specified bythe Central Government by notification in thisbehalf, are employed by, or are in the serviceof, or are followers of, or accompany anyportion of, the regular Army. Emphasis supplied.(2) Every person subject to this Act underclauses (a) to 2[ (g) of sub-section (1) shallremain so subject until duly retired, dis-charged, released, removed, dismissed orcashiered from the service. 6.Admittedly, the employees of the second respondentestablishments do not fall under any of the clauses in 2(1)(a) to 2(1)(g) of the Army Act. It is the contention of the petitionersthat they fall within the ambit of Section 2(i) of the Army Act. 7.A plain reading of the above provision, namely 2(1)(i) of theArmy Act, would go to show that the persons not otherwise subjectto military law would fall within the ambit of the Army Act,provided one or more of the following two conditions are satisfied,viz:-(i)On active service in camp, on the march or at any frontierpost specified by the Central Government by notification in thisbehalf and(ii)In the service or are followers of, or accompany anyportion of, the regular army. (Emphasis supplied)8.The terms active service and regular army have also beendefined. Section 3(i) defines the term "active service" asfollows:- "(i) "active service", as applied to aperson subject to this Act, means the time https://hcservices.ecourts.gov.in/hcservices/ during which such person- (a) is attached to, or forms part of, aforce which is engaged in operations against anenemy;(b)is engaged in military operations in, oris on the line of march to, a country or placewholly or partly occupied by an enemy, or(c)is attached to or forms part of a forcewhich is in military occupation of a foreigncountry;", 9.Section 3(xxi) of the Army Act defines the term "regularArmy" which reads as follows:-"(xxi) "regular Army" means officers, juniorcommissioned officers, warrant officers, non-commissioned officers and other enrolled personswho, by their commission, warrant, terms ofenrolment or otherwise, are liable to warrant,terms of enrolment or otherwise, are liable toUnion in any part of the world, includingpersons belonging to the Reserve Forces and theTerritorial Army when called out on permanentservice; "10.A cursory glance through Section 3(i) of the Army Act woulddefinitely indicate that the employees of the second respondentestablishments do not fall within the definition of 'activeservice' as defined in Section 3(i) of the Army Act. 11.Now, let me make a survey of the pronouncements of theHon'ble Supreme Court on similar situation. The scope of Section 2(i) of the Army Act came to be considered by a (near) ConstitutionBench of the Hon'ble Supreme Court in O.K.A Nair v. Union of India(AIR 1976 SC 1179) wherein, in paragraph Nos.11 and 12, it hasbeen held as follows:-"11. In enacting the Army Act, 1950, insofaras it restricts or abrogates any of thefundamental rights of the members of the armedforces, Parliament derives its competence fromArticle 33 of the Constitution. Section 2(1) ofthe Act enumerates the persons who are subjectto the operation of this Act. According to sub-clause (i) of this section, persons governed bythe Act, include“persons not otherwise subject to military lawwho, on active service, in camp, on the march or https://hcservices.ecourts.gov.in/hcservices/ at any frontier post specified by the CentralGovernment by notification in this behalf, areemployed by, or are in the service of, or arefollowers of, or accompany any portion of theregular army.”12.The members of the unions represented bythe appellants obviously fall within thiscategory. It is their duty to follow oraccompany the armed personnel on active serviceor in camp or on the march. Although they arenon-combatants and are in some matters governedby the Civil Service Regulations, yet they areintegral to the armed forces. They answer thedescription of the “members of the armed forces”within the contemplation of Article 33.Consequently by virtue of Section 21 of the ArmyAct, the Central Government was competent bynotification to make rules restricting orcurtailing their fundamental rights underArticle 19(l)(c)."(Emphasis supplied)12.The said judgment came to be again referred to by a DivisionBench of the Hon'ble Supreme Court in Gopal Upadhyaya v. Union ofIndia (AIR 1987 SC 413) wherein the Hon'ble Supreme Court wasinvited to answer the question as to whether the Army Medical CorpsCivilian Employees who are Carpenters, Tailors, Boot-makers,Gardeners, Sweepers, Cooks, Messengers etc., are persons governedby the Army Act or not. To decide the said question, the Hon'bleSupreme Court had mainly considered the nature of the job of theemployees. In paragraph No.2 of the said judgment, the relevantconsideration of the Hon'ble Supreme Court goes as follows:-The question therefore, is whether these“Camp followers” fall within Section 2(l)(i) andare subject to the Army Act and the rules madethereunder. Sri Gupta argues that they are not,unless they are “on active service, in camp, onthe march or any frontier post specified byCentral Government in this behalf”. On the otherhand the learned Additional Solicitor-Generalurges that in order to fall within Section 2(1)(i), it is not necessary that the Camp followersshould themselves be “on active service, incamp, on the march or at any frontier post” butthat it is enough if they can be required tofollow or accompany armed personnel who are “onactive service, in camp, on the march or at anyfrontier post”. It is unnecessary for us to https://hcservices.ecourts.gov.in/hcservices/ consider the merits of the submissions since thequestion is no longer res integra. It isconcluded by the decision of a (near)Constitution Bench consisting of A.N. Ray, C.J.,Beg, Sarkaria, Shinghal, JJ. in Ous KutilingalAchudan Nair v. Union of India1. The question inthat case pertained to the formation of Unionsof “non-combatants un-enrolled” consisting ofcooks, chowkidars, larkers, barbers, carpenters,mechanics, boot-makers, tailors etc. Dealingwith the contention that they were not subjectto Army Act and therefore, their freedom otassociation guaranteed by Article 19(l)(c) ofthe Constitution could not be curtailed, thecourt said: (SCC p. 782, paras 10-12)“Article 33 of the Constitution provides anexception to the preceding articles in Part IIIincluding Article 19(l)(c). By Article 33,Parliament is empowered to enact law determiningto what extent any of the rights conferred byPart III shall, in their application, to themembers of the Armed Forces or forces chargedwith the maintenance of public order, berestricted or abrogated so as to ensure theproper discharge of their duties and themaintenance of discipline among them.In enacting the Army Act, 1950, insofar as itrestricts or abrogates any of the fundamentalrights of the members of the Armed Forces,Parliament derives its competence from Article33 of the Constitution. Section 2(1) of the Actenumerates the persons who are subject to theoperation of this Act. According to sub-clause(i) of this section, persons governed by theAct, include persons not otherwise subject tomilitary law who, on active service, in camp,on the march or at any frontier post specifiedby the Central Government by notification inthis behalf, are employed by, or are in theservice of, or are followers of, or accompanyany portion of the regular army.The members of the unions represented by theappellants fall within this category. It istheir duty to follow or accompany the armedpersonnel on active service or in camp or on themarch. Although they are non-combatants and arein some matters governed by the Civil ServiceRegulations, yet they are integral to the Armed https://hcservices.ecourts.gov.in/hcservices/ Forces. They answer the description of the“members of the Armed Forces” within thecontemplation of Article 33. Consequently, byvirtue of Section 21 of the Army Act, theCentral Government was competent by notificationto make rules restricting or curtailing theirfundamental rights under Article 19(l)(c).”13.As could be seen from the above, the Hon'ble Supreme Courtultimately held that the members of the Army Medical Corps CivilianEmployees Union, are subject to the Army Act and they fall withinthe ambit of the Army Act.14.The Hon'ble Supreme Court in that case primarily analysedthe nature of the work of the Civilian Employees of the ArmedMedical Corps and ultimately held that since their duty is tofollow or accompany the armed personnel on active service on theCamp or on the march, they are integral part of the Armed Forces. 15.Similar question arose for consideration before the Hon'bleSupreme Court again in R.Viswan v. Union of India (AIR 1983 SC 658)wherein the qeustion was whether Section 21 of the Army Act, 1950r/w Chapter IV of the Army Rules 1954 is within the scope and ambitof Article 33 of the Constitution of India and whether CentralGovernment Notifications Nos.SRO 329 and 330 dated 23.09.1960making inter alia Section 21 of the Army Act of 1950 and Chapter IVof the Army Rules 1954 applicable to the General ReserveEngineering Force are ultra vires that Article since the GeneralReserve Engineering Force is neither an armed force nor a forcecharged with the maintenance of public order. 16.In order to arrive at a decision on this question, theHon'ble Supreme Court had to consider the true nature and characterof the General Reserve Engineering Force. While elaborately dealingwith the constitution of the force and the nature of the job, inparagraph No.10 of the judgment, the Hon'ble Supreme Courtmentioned the following facts :-"..in that it is a force intended primarilyto support the army in its operationalrequirement. Army personnel are posted in GREFunits according to a carefully planned manningpolicy so that GREF units can in times of war orhostilities be able to provide effective supportto the Army. The Tenure of office of Armypersonnel in GREF units is regarded as normalregimental duty and is equated with similarappointments in the Army for the purpose ofpromotion, career planning etc. Even thedirectly recruited personnel of GREF are giventraining at the GREF Centre before they areposted and the training given is in three https://hcservices.ecourts.gov.in/hcservices/ military disciplines."17.In yet another place, the Hon'ble Supreme Court has observedas follows:-"The history, composition, administration,organisation and role of GREF clearly shows thatGREF can legitimately be said to be members ofthe Armed Force within the meaning of Article33...............It is undoubtedly true that asstated by the Minister for Defence, GREF is acivilian construction force and the members ofGREF are civilian employees under theadministrative control of the Border RoadsDevelopment Board and that the engineerofficers amongst them constitute what may bedesigned as “Central Civil Services” withinGREF, but that does not mean that they cannotat the same time form an integral part of theArmed Forces. The fact that they are describedas civilian employees and they have their ownspecial rules of recruitment and are governedby the Central Civil Services (Classification,Control and Appeal) Rules, 1965 is notdeterminative of the question whether they aremembers of the Armed Forces. It may be notedthat even the members of the Civil GeneralTransport Companies constituted underGovernment of India, War Department,Notification 1584 dated June 29, 1946 as alsothe members of the Independent TransportPlatoons have been treated as members of theArmed Forces for the purpose of application ofthe provisions of the Army Act, 1950 by SRO No.122 dated July 22, 1960 and SRO No. 282 datedAugust 17, 1960."18.In fine, the Hon'ble Supreme Court has laid down asfollows:-".....the question whether the members ofGREF can be said to be members of the ArmedForces for the purpose of attracting theapplicability of Article 33 must dependessentially non the character of GREF, itsorgasational set up, its functions, the role itis called upon to play in relation to the ArmedForces and the depth and intimacy of itsconnection and the extent of its integrationwith the Armed Forces and if judged by this https://hcservices.ecourts.gov.in/hcservices/ criterion, they are found to be members of theArmed Forces, the mere fact that they are non-combatant civilians governed by the CentralCivil Services (Classification, Control andAppeal) Rules 1965, cannot make anydifference." 19.Coming back to the facts of the case, it may be that themembers of the petitioner Unions are governed by the Central CivilServices (Classification, Control and Appeal) Rules, 1965. But thesame is immaterial. The real test as laid down by the Hon'bleSupreme Court in the above judgments is on the following facts:-(i)The character of the organisation;(ii)It's organisational set up;(iii)Its functions and(iv)The role it is called upon to play in relation to the ArmedForces and depth and intimacy of its connection and the extent ofits integration with the Armed Forces.20.Applying the above test to the facts of the cases on hand,it is not in controversy that the employees of the secondrespondent are not trained in any manner for the purposes ofkeeping them to go to the camp or to be on the march or to followthe regular army men. They never go to the army camps nor they areattached to the Armed Forces engaged in operations against anyenemy. They do not form part of or attached to the Armed Forceswhich are in the military occupation of a foreign country.Therefore, there can be no hesitation to hold that the members ofthe petitioner unions, are not governed by the Army Act.21.Yet another aspect is that under Rule 19(ii) of the ArmyRules, 1954 a restriction has been imposed on the fundamental rightof the members who are subject to Army Act from forming tradeunions. The said Rule is as follows:-"Rule 19:No person subject to the Actshall, without the express sanction of theCentral Government.(i).......(ii) be a member of, or be associated inany way with, any trade union or labour union,or any class of trade or labour unions.“22.It is not stated before this Court by the petitioners thatthese trade unions were formed with previous sanction of theCentral Government. This, itself, would suggest that their members https://hcservices.ecourts.gov.in/hcservices/ are not subject to the Army Act and that is why they have been freeto join trade unions. 23.Now, let me turn to the Tamil Nadu District MunicipalitiesAct. Section 124 (J) of the Tamil Nadu District Municipalities Actwhich gives exemption from payment of Profession Tax reads asfollows:-"124.J.Exemptions.- Nothing contained inthis Chapter shall apply to (a)the members ofthe Armed Forces of the Union serving in anypart of this State to whom the provisions of theArmy Act, 1950 (Central Act XLV of 1950), theAir Force Act, 1950 (Central Act XLV of 1950) orthe Navy Act, 1957 (Central Act 62 of 1957)applies; (b)the members of the Central ReservePolice Force to whom the Central Reserve PoliceForce Act, 1949 (Central XLVI of 1949) appliesand serving in any part of this State; (c)physically disabled persons with totaldisability in one or both the hands or legs,spastics, totally dumb or deaf persons ortotally blind persons:Provided that such physical disability shall beduly certified by a Registered MedicalPractitioner in the service of the Governmentnot below the rank of a Civil Surgeon.24.As I have held, since the employees of the third respondentare not members of Armed Forces, as the provisions of Army Act of1950 are not applicable to them, the exemption under Section 124((J) of the Tamil Nadu District Municipalities Act is not availableto them.25.For the foregoing discussions, I hold that the thirdrespondent was right in demanding Profession Tax from the membersof the petitioner unions under Section 124(D) of the Tamil NaduDistrict Municipalities Act. The writ petitions are thus devoid ofmerits and the same are liable to be dismissed.26.In the result, the writ petitions are dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarjbm https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary,Ministry of Defence,Govt. of India, New Delhi.2.The General Manager,Ordinance Clothing Factory,Avadi, Chennai – 600 054.3.The Commissioner,Avadi Municipality, Avadi, Chennai – 600 054.4.The Secretary,Municipal Administration,(Water Supply), Fort St. George,Chennai – 600 009.5.The General Manager,Heavy Vehicles Factory,Avadi, Chennai – 600 054.1 cc To M/s.Paul & Paul, Advocate, SR.31170W.P.Nos.17437 & 17456 of 1999nmm(co)pmk.30.7.2009.