1.The Secretary, Ministry of Defence, Govt. of India, New Delhi.
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 226 of the Constitution of India praying for the issuance of a writ of Mandamus directing the respondents 3 and 4 to forbear from issuing any demand for payment of Profession Tax by the defence civilian employees who are members of the petitioner union in the second respondent factory.
"Whether the employees of the Ordinance Clothing Factory and Heavy Vehicles Factory, Avadi, Chennai, the defence establishments under the Ministry of Defence, are subject to the Army Act so as to get exemption from paying Profession Tax under the Tamil Nadu District Municipalities Act" is the question posed for resolution in these writ petitions.
2.The members of the petitioner Unions are all employed in various cadres in the second respondent factories which are the defence establishments under the Ministry of Defence, serving the needs of the defence forces. It is the contention of the petitioners that these employees are working in tandem with the defence persons for the security of the country. These establishments are in and around Avadi falling within the limits of the third respondent Municipality governed by the Tamil Nadu District Municipalities Act. The third respondent has initiated proceedings to collect Profession Tax under Section 124-D of the Tamil Nadu District Municipalities Act. On the ground that under Section 124-J of the Act, the members of the Armed Forces of the Union, serving in any part of the State of Tamil Nadu, are exempted from Profession Tax and also contending that the employees of the second respondent factories are integral part of the Armed Forces, the petitioners have come forward with these writ petitions seeking a mandamus to forbear the respondents from levying Profession Tax from the employees of the second respondent factories.
3.In the counter filed by the third respondent, inter alia, it is contended that the second respondent establishments, though defence establishments, are not governed by the Army Act of 1950. To put it precisely, it is contended that the employees of the second respondent factories are not subjected to the Army Act and therefore, the exemption under Section 124-J of the Act is not applicable to them.
4.From the rival contentions of the parties, the vital question which emerges for consideration is as to whether the employees of the second respondent establishments are persons subject to the Army 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 Army Act.
Section 2 of the Army Act defines the Persons who shall be subject to the said Act which reads as follows:-
"2.Persons subject to this Act.
(1) The following persons shall be subject to this Act wherever they may be, namely:-
(a) officers, junior commissioned officers and warrant officers of the regular Army;
(b) persons enrolled under this Act;
(c) persons belonging to the Indian Reserve Forces;
(d) persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test;
(e) officers of the Territorial Army, when doing duty as such officers, and enrolled persons of the said Army when called out or embodied or attached to any regular forces, subject to such adaptations and modifications as may be made in the application of this Act to such persons under sub-section (1) of
section 9 of the Territorial Army Act, 1948 (56 of 1948.)
(f) persons holding commissions in the Army in India Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;
(g) officers appointed to the Indian Regular Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces;
2* * * * *
(i) persons not otherwise subject 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.
Emphasis supplied.
(2) Every person subject to this Act under clauses (a) to 2[ (g) of sub-section (1) shall remain so subject until duly retired, dis- charged, released, removed, dismissed or cashiered from the service.
6.Admittedly, the employees of the second respondent establishments 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 petitioners that 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 the Army Act, would go to show that the persons not otherwise subject to 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 frontier post specified by the Central Government by notification in this behalf and
(ii)In the service or are followers of, or accompany any portion of, the regular army.
(Emphasis supplied)
8.The terms active service and regular army have also been defined.
Section 3(i) defines the term "active service" as follows:-
"(i) "active service", as applied to a person subject to this Act, means the time during which such person-
(a) is attached to, or forms part of, a force which is engaged in operations against an enemy;
(b)is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or
(c)is attached to or forms part of a force which is in military occupation of a foreign country;",
9.
Section 3(xxi) of the Army Act defines the term "regular Army" which reads as follows:-
"(xxi) "regular Army" means officers, junior commissioned officers, warrant officers, non-commissioned officers and other enrolled persons who, by their commission, warrant, terms of enrolment or otherwise, are liable to warrant, terms of enrolment or otherwise, are liable to Union in any part of the world, including persons belonging to the Reserve Forces and the Territorial Army when called out on permanent service; "
10.A cursory glance through
Section 3(i) of the Army Act would definitely indicate that the employees of the second respondent establishments do not fall within the definition of 'active service' as defined in
Section 3(i) of the Army Act.
11.Now, let me make a survey of the pronouncements of the Hon'ble Supreme Court on similar situation. The scope of
Section 2(i) of the Army Act came to be considered by a (near) Constitution Bench 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 has been held as follows:-
"11. In enacting the Army Act, 1950, insofar 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 subject 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(l)(c)."
(Emphasis supplied)
12.The said judgment came to be again referred to by a Division Bench of the Hon'ble Supreme Court in Gopal Upadhyaya v. Union of India (AIR 1987 SC 413) wherein the Hon'ble Supreme Court was invited to answer the question as to whether the Army Medical Corps Civilian Employees who are Carpenters, Tailors, Boot-makers, Gardeners, Sweepers, Cooks, Messengers etc., are persons governed by the Army Act or not. To decide the said question, the Hon'ble Supreme Court had mainly considered the nature of the job of the employees. In paragraph No.2 of the said judgment, the relevant consideration of the Hon'ble Supreme Court goes as follows:-
The question therefore, is whether these Camp followers fall within
Section 2(l)(i) and are subject to the Army Act and the rules made thereunder. Sri Gupta argues that they are not, unless they are on active service, in camp, on the march or any frontier post specified by Central Government in this behalf. On the other hand the learned Additional Solicitor-General urges that in order to fall within
Section 2(1)(i), it is not necessary that the Camp followers should themselves be on active service, in camp, on the march or at any frontier post but that it is enough if they can be required to follow or accompany armed personnel who are on active service, in camp, on the march or at any frontier post. It is unnecessary for us to consider the merits of the submissions since the question is no longer res integra. It is concluded by the decision of a (near) Constitution Bench consisting of A.N. Ray, C.J., Beg, Sarkaria, Shinghal, JJ. in Ous Kutilingal Achudan Nair v. Union of India1. The question in that case pertained to the formation of Unions of non-combatants un-enrolled consisting of cooks, chowkidars, larkers, barbers, carpenters, mechanics, boot-makers, tailors etc. Dealing with the contention that they were not subject to Army Act and therefore, their freedom ot association guaranteed by Article 19(l)(c) of the Constitution could not be curtailed, the court said: (SCC p. 782, paras 10-12)
Article 33 of the Constitution provides an exception to the preceding articles in Part III including
Article 19(l)(c). By
Article 33, Parliament 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 the proper discharge of their duties and the maintenance of discipline among them.
In enacting the Army Act, 1950, insofar 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 subject 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.
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
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(l)(c).
13.As could be seen from the above, the Hon'ble Supreme Court ultimately held that the members of the Army Medical Corps Civilian Employees Union, are subject to the Army Act and they fall within the ambit of the Army Act.
14.The Hon'ble Supreme Court in that case primarily analysed the nature of the work of the Civilian Employees of the Armed Medical Corps and ultimately held that since their duty is to follow or accompany the armed personnel on active service on the Camp or on the march, they are integral part of the Armed Forces.
15.Similar question arose for consideration before the Hon'ble Supreme Court again in R.Viswan v. Union of India (AIR 1983 SC 658) wherein the qeustion was whether
Section 21 of the Army Act, 1950 r/w Chapter IV of the Army Rules 1954 is within the scope and ambit of
Article 33 of the Constitution of India and whether Central Government Notifications Nos.SRO 329 and 330 dated 23.09.1960 making inter alia
Section 21 of the Army Act of 1950 and Chapter IV of the Army Rules 1954 applicable to the General Reserve Engineering Force are ultra vires that Article since the General Reserve Engineering Force is neither an armed force nor a force charged with the maintenance of public order.
16.In order to arrive at a decision on this question, the Hon'ble Supreme Court had to consider the true nature and character of the General Reserve Engineering Force. While elaborately dealing with the constitution of the force and the nature of the job, in paragraph No.10 of the judgment, the Hon'ble Supreme Court mentioned the following facts :-
"..in that it is a force intended primarily to support the army in its operational requirement. Army personnel are posted in GREF units according to a carefully planned manning policy so that GREF units can in times of war or hostilities be able to provide effective support to the Army. The Tenure of office of Army personnel in GREF units is regarded as normal regimental duty and is equated with similar appointments in the Army for the purpose of promotion, career planning etc. Even the directly recruited personnel of GREF are given training at the GREF Centre before they are posted and the training given is in three military disciplines."
17.In yet another place, the Hon'ble Supreme Court has observed as follows:-
"The history, composition, administration, organisation and role of GREF clearly shows that GREF can legitimately be said to be members of the Armed Force within the meaning of Article 33........
.......It is undoubtedly true that as stated by the Minister for Defence, GREF is a civilian construction force and the members of GREF are civilian employees under the administrative control of the Border Roads Development Board and that the engineer officers amongst them constitute what may be designed as Central Civil Services within GREF, but that does not mean that they cannot at the same time form an integral part of the Armed Forces. The fact that they are described as civilian employees and they have their own special rules of recruitment and are governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is not determinative of the question whether they are members of the Armed Forces. It may be noted that even the members of the Civil General Transport Companies constituted under Government of India, War Department, Notification 1584 dated June 29, 1946 as also the members of the Independent Transport Platoons have been treated as members of the Armed Forces for the purpose of application of the provisions of the Army Act, 1950 by SRO No. 122 dated July 22, 1960 and SRO No. 282 dated August 17, 1960."
18.In fine, the Hon'ble Supreme Court has laid down as follows:-
".....the question whether the members of GREF can be said to be members of the Armed Forces for the purpose of attracting the applicability of
Article 33 must depend essentially non the character of GREF, its orgasational set up, its functions, the role it is called upon to play in relation to the Armed Forces and the depth and intimacy of its connection and the extent of its integration with the Armed Forces and if judged by this criterion, they are found to be members of the Armed Forces, the mere fact that they are non-combatant civilians governed by the Central Civil Services (Classification, Control and Appeal) Rules 1965, cannot make any difference."
19.Coming back to the facts of the case, it may be that the members of the petitioner Unions are governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965. But the same is immaterial. The real test as laid down by the Hon'ble Supreme 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 Armed Forces and depth and intimacy of its connection and the extent of its 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 second respondent are not trained in any manner for the purposes of keeping them to go to the camp or to be on the march or to follow the regular army men. They never go to the army camps nor they are attached to the Armed Forces engaged in operations against any enemy. They do not form part of or attached to the Armed Forces which are in the military occupation of a foreign country. Therefore, there can be no hesitation to hold that the members of the petitioner unions, are not governed by the Army Act.
21.Yet another aspect is that under Rule 19(ii) of the Army Rules, 1954 a restriction has been imposed on the fundamental right of the members who are subject to Army Act from forming trade unions. The said Rule is as follows:-
"Rule 19:No person subject to the Act shall, without the express sanction of the Central Government.
(i).......
(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.
22.It is not stated before this Court by the petitioners that these trade unions were formed with previous sanction of the Central Government. This, itself, would suggest that their members are not subject to the Army Act and that is why they have been free to join trade unions.
23.Now, let me turn to the Tamil Nadu District Municipalities Act. Section 124 (J) of the Tamil Nadu District Municipalities Act which gives exemption from payment of Profession Tax reads as follows:-
"124.J.Exemptions.- Nothing contained in this Chapter shall apply to (a)the members of the Armed Forces of the Union serving in any part of this State to whom the provisions of the Army Act, 1950 (Central Act XLV of 1950), the Air Force Act, 1950 (Central Act XLV of 1950) or the Navy Act, 1957 (Central Act 62 of 1957) applies; (b)the members of the Central Reserve Police Force to whom the Central Reserve Police Force Act, 1949 (Central XLVI of 1949) applies and serving in any part of this State; (c)physically disabled persons with total disability in one or both the hands or legs, spastics, totally dumb or deaf persons or totally blind persons:
Provided that such physical disability shall be duly certified by a Registered Medical Practitioner in the service of the Government not below the rank of a Civil Surgeon.
24.As I have held, since the employees of the third respondent are not members of Armed Forces, as the provisions of Army Act of 1950 are not applicable to them, the exemption under Section 124((J) of the Tamil Nadu District Municipalities Act is not available to them.
25.For the foregoing discussions, I hold that the third respondent was right in demanding Profession Tax from the members of the petitioner unions under Section 124(D) of the Tamil Nadu District Municipalities Act. The writ petitions are thus devoid of merits and the same are liable to be dismissed.
26.In the result, the writ petitions are dismissed. No costs.
jbm To
1.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