TaxTMI 
TaxTMI 
1990 (9) TMI 334
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....ployees without holding any inquiry in certain circumstances by reasonable notice or pay in lieu of notice. The facts involved in these matters are diverse but the central question involved in all these is one, i.e. whether the clauses permitting the employers or the authorities concerned to terminate the employment of the employees by giving reasonable notice or pay in lieu of notice but without holding any inquiry, are constitutionally valid and, if not, what would be the consequences of termination by virtue of such clauses or powers, and further whether such powers and clauses could be so read with such conditions which would make such powers constitutionally and legally valid? In order to appreciate the question the factual matrix of these cases so far as these are relevant for the' determination of the aforesaid questions, will have to be borne in mind in the light of the actual legal provisions involved in the respective cases. It will, therefore, be proper and appropriate to deal with the relevant facts in civil appeal No. 2876 of 1986 first. The appellant herein--the Delhi Transport Corporation, is a statutory body formed and established under Section 3 of the Delhi Roa....
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....ing any reason thereof. (ii) For misconduct, (iii) On the completion of specific period of appointment. (iv) In the case of employees engaged on contract for a specific period, on the expiration of such period in accordance with the terms of appointment. (b) Where the termination is made due to reduction of establishment or in circumstances other than those mentioned at (a) above, one month notice or pay in lieu thereof will be given to all categories of employees. (c) Where a regular/temporary employee wishes to resign from his post under the authority he shall give three/one month's notice in writing or pay in lieu thereof to the Authority provided that in special cases, the General Manager may relax, at his discretion, the conditions regarding the period of notice of resignation or pay in lieu thereof." The said Regulation, as set out hereinbefore, deals with termination of services. Four contingencies are contemplated vide clause (a) of Regulation 9, whereupon the services of employees may be terminated without any notice or pay in lieu thereof except as otherwise provided in the appointment order. Apart from these four contingencies where termination is made due to....
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....t was provisionally decided to impose any major penalty, the delinquent workman had to be afforded a further reasonable opportunity to represent why the penalty should not be imposed on him. Standing Order 32 provided for a special procedure in case a workman was convicted for a criminal offence in a court of law or where the General Manager was satisfied for reasons to be recorded in writing that it was inexpedient or against the interests of security to continue to employ the workmen' viz. the workman could be removed or dismissed from service without following the procedure laid down in Standing Order No. 31. There the appellant was an Assistant in the respondent's undertaking, who was removed from service on the ground that it was no longer expedient to employ him. The management dispensed with the departmental enquiry, after looking into the secret report of one of their officers that the appellant therein had misbehaved with the wife of an employee and that a complaint in respect thereof had been lodged with the police. In the reference to the Industrial Tribunal, the Tribunal held that as the employer dispensed with the disciplinary enquiry in exercise of the power conferred....
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.... to bring it in tune with the philosophy of the Constitution failing which the vires of the said Standing Order ,would have to be examined in an appropriate proceeding. Reliance was also placed before this Hon'ble Court on the decision of this Court in the case of West Bengal State Electricity Board and Others v. Desh Bandhu Ghosh and Others, [1985] 3 SCC 116, where this Court was concerned with regulations 33 and 34 of the West Bengal State Electricity Board. The said regulations 33(1) and 34 were as follows: "33(1) Unless otherwise specified in the appointment order in any particular case, the services of a permanent employee of the Board may be terminated without notice-(i) on his attaining the age of retirement or by reason of a declaration by the competent medical authority that he is unfit for further service; or (ii) as a result of disciplinary action; (iii) if he remains absent from duty, on leave or otherwise, for a continuous period exceeding 2 years. 34. In case of a permanent employee, his services may be terminated by serving three months' notice or on payment of salary for the corresponding period in lieu thereof." The High Court had come to the conclusion....
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....y High Court in the case of Manohar P. Kharkhar v. Raghuraj. [1981] 2 LLJ 459. This Court found it difficult to accept the reasoning therein. In that view of the matter the appeal was dismissed. Reference in this connection may also be made to the decision of this Court in Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath Ganguly and Anr., [1986] 3 SCC 156. There the appellant-Corporation was a Government company incorporated under the Companies Act. The majority shares of the Corporation were held by the States of West Bengal and Assam. Article 51 of the Articles of Association of the Corporation conferred upon the President of India power to issue directions/instructions regarding affairs and conduct of the business of the Corporation or of the Directors thereof as also regarding exercise and performance of its functions pertaining to national security and public interest. Article 51-A of the said articles entitled the President to call for returns, accounts etc. of the Corporation. Articles 14, 15, 16, 17 and 37 conferred on the President power to appoint and remove Chairman and the Board of Directors of the Corporation. Articles 41 and 42 were regardi....
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....s the case might be in lieu of the notice. By confidential letter the respondent Ganguly was asked to reply within 24 hours to the allegations of negligence made against him. After having his representation and detailed reply, a notice under Rule 9(i) was served on him terminating his services with immediate effect by paying three months' pay. Similarly a charge-sheet was issued to the respondent Sengupta intimating that a disciplinary inquiry was proposed against him under the Rules and calling upon him to file his written statement of defence. Sengupta denied the charges made against him and asked for inspection of documents and copies of statements of witnesses mentioned in the said chargesheet. But a notice was serviced on him under Rule 9(i) terminating his services with immediate effect of paying three months' salary. Both Ganguly and Sengupta filed Writ Petitions before High Court. A Division Bench of that Court allowed the same. The Corporation filed appeals before this Court. The main questions for determination therein were (i) whether the appellant-Corporation was an instrumentality of the State as to be covered by Article 12 and 36 of the Constitution and (ii) whether a....
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....nformed to the mandate of the equality clause in Article 14 of the Constitution. It was further recognised that there might be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The Court must judge each case on its own facts and circumstances. The above principle would apply, this Court reiterated, where the inequality of bargaining power is the result of the disparity in the economic strength of the contracting parties or where the inequality is the result of circumstances, whether of the creation of the parties or not or where the weaker party is in a position in which he could obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them or where a man had no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in prescribed or standard form or to accept a set of rules as part of the contract, however, unfair, unreasonable and unconscionable clause in that contract or form or rules might be. This Court, however, rei....
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.... said Rule 9 relating to permanent employees therein were as follows: "9. Termination of employment for Acts other than mis-demeanour- (i) The employment of a permanent employee shall be subject to termination on three months' notice on either side. The notice shall be in writing on either side. The Company may pay the equivalent of three months basic pay and dearness allowances, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice. (ii) The services of a permanent employee can be terminated on the grounds of "services no longer required in the interest of the Company" without assigning any reason. A permanent employee whose services are terminated under this clause shall be paid 15 days' basic pay and dearness allowance for each completed year of continuous service in the Company as compensation. In addition he will be entitled to encashment of leave to his credit." This Court found that Rule 9(i) can be called 'the Henry VIII Clause'. It confers an absolute,-arbitrary and unguided power upon the Corporation. It does not even say who on behalf of the Corporation w....
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....onscionable. It had been entered into between parties between whom there was gross inequality of bargaining power. Rule 9(i) was a term of the contract between the Corporation and all its officers, it was noted. It affected a large number of persons and it squarely fell within the principle stated earlier. The Government and its agencies and instrumentalities constitute the largest employer in the country. A clause such as Rule 9(i) in a contract of employment, it was noted, affecting large sections of the public was harmful and injurious to the public interest for it tended to create a sense of insecurity in the minds of those to whom it applied and consequently against public good. Such a clause, therefore, was opposed to public policy and as such it is void under Section 23 of the Contract Act, it was held. It was further held that it was not possible to accept the contention that this was a contract entered into by the Corporation like any other contract entered into by it in the course of its trading activities and the Court, therefore, ought not to interfere with it. The employees could not be equated with goods which could be bought and sold, nor could a contract of employme....
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....ver located must be subject to the fundamental constitutional limitations." The High Court in the judgment under appeal was unable to accept the plea of alternative remedy and allowed the Writ Petition and declared regulation 9(b) of the Regulations to be illegal and ultra vires and as a consequence thereof the orders terminating the services of respondents Nos. 1 to 4 were quashed and these respondents were deemed to be in the service of DTC and back wages and all other benefits by way of annual increments were directed to be paid. Learned Solicitor General of India contended before us that in the facts and the circumstances of this case, there was sufficient guideline in the Regulation 9(b) and the power of termination, properly read, would not be arbitrary or violative of Article 14 of the Constitution. It may be mentioned that under the general law of contract of employment, which was commonly known as the 'law of master and servant', which is not termed as law of employer and employee, whether the contract of service is for a fixed period or not, if it contained a provision for its termination by notice, it could be so terminated. If there was no provision for giving notice....
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....ilar to the one impugned which has been upheld in various types of cases are instructive in their variety. It may be mentioned that the exercise of power under the very same Regulation 9(b) was upheld by the Court in a matter, wherein in an action by the employee of D.T.C., this Court in Delhi Transport Corporation Undertaking v. Balbir Saran Goel, [1970] 3 SCR 757 at 764 held that even if the employees of the respondent thought that he was a cantankerous man and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9(b) and it was not necessary to dismiss by way of punishment for misconduct. Reliance was placed on this decision by the High Court in the Judgment under appeal. The High Court in our opinion rightly pointed out, however, that the decision was on a different basis and could not be availed of in deciding controversy involved in the present determination. In Air India Corporation, Bombay v. V.A. Rebellow & Anr., [1972] 3 SCR 606, this Court dealing with the power of the Air India to terminate the services of a person who was alleged to have misbehaved with air hostesses, observed on page 6 16 of the report t....
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....e, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work. See the observations of this Court in Champak Lal Chiman Lal Shah v. The Union of India, [1964] 5 SCR 190 at 204. The services of a temporary government servant, further. may be terminated on one month's notice whenever the government thinks it necessary or expedient to do so for administrative reasons. It is impossible, this Court observed, to define before hand all the circumstances in which the discretion can be exercised. The discretion was necessarily left to the Government. See observations of this Court in Ram Gopal Chaturvedi v. State of M. P., [1970] 1 SCR 472 at 475. The aforesaid position of a government servant has been analysed in depth by the decision of this Court in Union of India v. Tulsi Ram Patel, (supra), where it was reiterated that the doctrine of pleasure is not a relic of the feudal ages or based upon any special prerogative of the Crown but is based on public interest and for the public good because it is as much in public interest and for public good that government servants who ....
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....). Mr. Ashok Desai, learned Solicitor General of India submitted that the decisions in the West Bengal State Electricity Board's (supra) and Central Inland Water Transport Corporation's case (supra) were incorrectly decided and the decision proceeded on the theory of unconscionable bargains and that termination by notice is against public policy. He, however, drew our attention to Gheru Lal Parekh v. Mahadeodas Maiya & Others, [1959] Supp. 2 SCR 406 and 440 where it was held that though theoretically it may be permissible to evolve a new head under exceptional circumstances in a changing world, it is advisable in the interest of stability of society not to make any attempt to discover new heads of avoidance of such clauses in these days. Furthermore, as stated above, learned Solicitor General submitted that in the ordinary law of contract termination of employment by reasonable notice on either side has never been regarded as unconscionable. Therefore, the learned Solicitor General submitted that this part of the above judgments was erroneous and should be overruled. It must, however, be noted that in a later judgment of this Court, which followed this line of reasoning, it was ....
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....ich will invalidate the conferment of power. Conferment of power has necessarily to be coupled with the duty to exercise it bona fide and for effectuating the purpose and policy underlying the rules which provide for the exercise of the power. If in the scheme of the rule, a clear policy relating to the circumstances in which the power is to be exercised is discernible, the conferment of power must be regarded as being made in furtherance of the scheme, and is not open to attack as infringing the' equality clause. It may be remembered that the rules relating to termination of employment of temporary servants and those on probation, and even those relating to compulsory retirement generally do not lay down any specific directions governing the exercise of the powers conferred thereby. The reason is obvious: the appointing authority must in all these cases be left with discretion to determine employment having regard to the exigencies of the service, suitability of the employee for absorption or continuance in the cadre, and the larger. interest of the public being served by retaining the public servant concerned in service." Learned Solicitor General submitted that the question i....
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....e to give it. This Court further held that the discretion is to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of that interpretation because it helps to sustain the validity of the law. Learned Solicitor General submitted that the appeal involved herein the power of Delhi Transport Corporation (a statutory corporation) regarding termination of service simpliciter under Regulation 9(b). These Regulations were framed as mentioned under Section 53 of the Delhi Road Transport Authority Act, 1950. The said Act was replaced by the Delhi Municipal Corporation Act, 1957 but the regulations have been saved and even though in 1971 a new Corporation, viz. the Delhi Transport Corporation (the appellant), was constituted under the Road Transport Corporation Act, 1950, the regulations have been continued. The guidelines for the exercise of such power, according to the Solicitor General, could be found in the statutory provisions of the 1950 Act under which the regulations have been framed, the preamble; Sections 19 and 20 (equivalent to S....
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....m to constitutional requirements. The underlying rationale, according to the learned Attorney General, of this rule of interpretation, or the doctrine of reading down of a statute is that when a legislature, whose powers are not unlimited, enacts a statute, it is aware of its limitations, and in the absence of express intention or clear language to the contrary, it must be presumed to have implied into the statute the requisite limitations and conditions to immunise it from the virus of unconstitutionality. From what the learned Attorney General submitted and what appears to be the correct that every legislature intends to act within its powers. Therefore, in a limited Government, the legislature attempts to function within its limited powers. It would not, therefore, be expected to have intended to transgress its limits. In Re The Hindu Women's Rights to Property Act, [1941] FCR 12, the question before the Federal Court was about the meaning of the word 'property' in the Act. The Court limited the operation of the word 'property' to property other than agricultural land because otherwise the Central Legislature would have had no competence to enact the statute. The Court observed ....
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..... This Court in order to sustain the validity of the section on the touch-stone of Article 19(1)(a) of the Constitution of India, limited its application only to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. This Court held that it was well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. Reference may also be made to the decision of this Court in R.L. Arora v. State of Uttar Pradesh, [1964] 6 SCR 784 where the question was about the Constitutionality of section 41(aa) of the Land Acquisition (Amendment) Act, 1962. This Court upheld the validity of the section following the principle of interpreting the said rule in a way which would be consistent with ....
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....n adopted in U.S. Supreme Court in several cases. See also United States of America v. Edward A. Rumely, 97 Lawyers Edition 770 at 775. The principle as enunciated in Rumely's case (supra) has been approved by this Court in Shah & Co. v. State of Maharashtra, [1967] 3 SCR 466 at 477-78. This principle of reading down or placing limited construction has been adopted by courts in England in deciding the validity of bye-laws and regulations. See Reg. v. Sadlers Co., 10 H.L.C. 404, at 460 and 463 and Faramus v. Film Artists Association, 1962 QB 527 at 542. The courts must iron out the creases, as said Lord Denning in Seaford Court Estates, [1949] 2 KB 481. This Court has also on numerous occasions followed this practice. See the observations of this Court in M. Pentiah and Ors. v. Veera Mallappa and Ors., [1961] 2 SCR 295; Bangalore Water Supply and Sewerage Board etc. v. A. Rajappa & Ors., [1978] 3 SCR 207. See also H.M. Seervai's 'Constitutional Law of India', 3rd Edn. Vol. I, pages 119-120. In the background of this, the learned Attorney General also drew our attention that the present regulation, as mentioned hereinbefore, should be read and construed in the said manner and the rea....
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....where there was no valid reason and where it would be contrary to proclaimed purpose. See the observations of this Court in Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206, at p. 239 and 259. On behalf of the workmen of the respondent DTC, Shri Ramamurthi, submitted that the Constitutional questions of great public importance arising in the present appeal, have to be examined in the light of the law laid down by the Full Court in the case of R.C. Cooper v. Union of India, [1970] 3 SCR 530 at 577 and by larger Constitution Benches in the cases of Maneka Gandhi v. Union of India (supra), Moti Ram Deka v. Union of India (supra), State of West Bengal v. Union of India, (supra) and the Constitution Bench decisions in the cases of Olga Tellis and Others v. Bombay Municipal Corporation and Others, (supra), Fertilizer Corporation Kamgar Union (Regd.) Sindri and Others v. Union of India and Others, [1981] 2 SCR at 60-61, Union of India v. Tulsiram Patel and Others (supra), Sukhdev Singh & Others v. Bhagat Ram Sardar Singh Raghuvanshi and Another (supra) and Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors. etc., [1981] 2 SCR 79 at ....
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.... apply to life) and there is, consequently, no infringement of fundamental right conferred by Article 21, such law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of the Article. See the observations of this Court in Maneka Gandhi's case (supra). Article 19(1)(g), it was urged, confers a broad and general right which is available to all persons to do work of any particular kind and of their choice. See the observations in Fertilizer Corporation Kamgar Union's case (supra) at p. 60-61 of the report. According to Mr. Ramamurthi, there is a distinction between Public Employment or service and "pure master and servant cases". He referred to the observations of this Court in India Tobacco Co. Ltd. v. The Commercial Tax Officer, Bhavanipore & Ors., [1975] 2 SCR 619 at 657; followed in A.L. Kalra v. The Project and Equipment Corporation of India Ltd., [1984] 3 SCR 646 at 664; Whenever, therefore, according to Shri Ramamurthi, there is arbitrariness in State Action whether it be of the Legislature or of the Executive or of an authority under Article 12, article 14 immediately springs into action and strikes down such State acti....
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....y Act 4 of 1950 and Punjab Act 5 of 1950. With the promulgation of the Constitution, the Indian Contract Act 1872 extends to the whole of India except the State of Jammu & Kashmir. Shri Ramamurthi asserted the whatever might have been the position in regard to the provinces comprised in British India before independence, as far as other areas, forming part of the Union of India under the Constitution are concerned, only the Indian Contract Act 1872 is applicable. By article 372 of the Constitution, this Act has been continued in operation even after the Constitution came into force, subject to the other provisions of the Constitution. A contract of service, according to Shri Ramamurthi is a species of contract and will, therefore, be governed by the provisions of the Indian Contract Act 1872. This Act has been held to be an Amending as well as a Consolidating Act. Therefore, there can be no question of common law of England, as made applicable in India during the British Rule, being the basis for deciding any question relating to contract of employment after 1950. In any event any provisions of either the Indian Contract Act, 1872, or of the English Common Law Applicable in Brit....
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....extend to employment under local or other authorities referred to under Article 12 of the Constitution. There cannot be any pleasure by such authority in respect of employment of the permanent employee. It was submitted by Shri Ramamurthi further that even in cases of employment under the Union and the States, the pleasure doctrine is limited by the express provisions of Article 311 of the Constitution. For that reason, according to him, it has lost some of its majesty and power. He referred us to the observations of this Court in Moti Ram Deka's case (supra) at p. 704 and Tulsi Ram Patels's case (supra) at page 196. In dealing with the question of validity of rules authorising the Government to terminate the services of temporary servants as upheld by this court in Champaklal Chimanlal Shah's case (supra) and Ram Gopal Chaturvedi's case (supra) it was submitted that it is important to note that the validity of the rules was challenged on the ground of denial of equality of opportunity in employment under the State guaranteed by Article 16 of the Constitution. In that context this Court observed at p. 20 1 (supra) of the report that there can also be no doubt, if such a class of....
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....r could it be raised, before the Tribunals that the very term in the contract of service or in Standing Orders would have to stand the test of Articles 14, 19(1)(g) and 21 of the Constitution. Further a constitution bench of this Court had rejected the contention that Industrial Tribunals should make a distinction between public sector and private sector industries. Reliance was placed on the observations of this Court in Hindustan Antibiotics Ltd. v. The Workmen & Ors., [1987] 1 SCR 652 at 669. On the consideration of the relevant material placed before us, we are asked to come to the conclusion that the same principles evolved by industrial adjudication in regard to private sector undertakings will govern those in the public sector undertakings having a distinct corporate existence. Therefore, all the decisions referred to by the appellant, it was argued, and interveners, were all concerned with applying the industrial law even though some Of them dealt with employees, working in statutory corporations or public sector undertakings. It was, therefore, submitted by Shri Ramamurthi that these decisions could afford no assistance to the Court, in deciding the issues raised in the pr....
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....ealing with the same in the law can provide no guidance regarding exceptional circumstances under which alone the power can be exercised. The question involved, Shri Ramamurthi emphasised, in these cases is not the exercise of power which an employer possesses to terminate the services of his employee but the extent of that power. Shri Ramamurthi drew our attention to the award and referred to paragraph 5.6 of the Shastri Award and other provisions of the award defining misconduct and also paragraph 522 of the Award dealing with the procedure for termination of employment and 523 onwards. Mr. Ramamurthi further submitted that provisions of Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 cannot be rendered constitutional by reading the requirement of recording reasons and confining it to cases where it is not reasonably practicable to hold an enquiry and reading it down further as being applicable to only exceptional cases would not be permissible construction and proper. Shri Ramamurthi drew our attention to the true scope of Regulation 9(b) of the aforesaid Regulations in the light of the judgment of this Court ....
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....ission of the respondents that in order to conform to the Constitutional guarantees contained in Articles 14, 19(1)(g) and 21 of the Constitution as interpreted by this Court, the first and foremost the regulation will have to make a distinction between cases where services are sought to be terminated for misconduct and cases of termination on grounds other than what would constitute misconduct. As far as termination or dismissal on ground of misconduct is concerned, ordinarily the detailed procedure for establishing misconduct had to be followed. In cases where it is not possible to follow the detailed procedure, then at least the minimum procedure of issuing a show cause notice should be followed after recording reasons why it is not practicable to hold a full-fledged enquiry. In cases where even this requirement of the elementary principles of natural justice is not to be followed, then the regulation must itself indicate those cases in which principles of natural justice can be totally abrogated after recording reasons. As far as termination of service of a permanent employee on grounds which do not constitute misconduct is concerned, assuming that this is held to be permiss....
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....i Award merely because he had failed to mention a loan of Rs. 1.5 lakhs taken from another Branch of the Bank. Mr. Garg pointed out that the loan had been repaid. The failure to mention this loan had deprived the appellant of his livelihood. The use of this power claimed under Para 522 of the Shastri Award was not defended by the Attorney General in this case. We had fairly conceded that he might not support this termination when the case is heard on merits. But, that does not derogate from the wide amplitude of this uncontrolled, arbitrary power claimed by the management under Para 522 of the Shastri Award. Powers claimed under Para 522 must, therefore, be examined in the background of the facts and circumstances of this Appeal. It was submitted that this Court must hold that nothing in Para 522 of the Shastri Award confers on the management power so far as they can get rid of permanent employees of the Banks merely after service of notice on the imaginary belief that they were doing so for "efficient Management" of the Banks. Mr. Garg reminded us that it is common knowledge that all despots act as tyrants in the firm belief that the intolerable indignities and atrocities they inf....
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....isions of clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity." It was urged by Mr. Garg that the services of a permanent bank employee cannot be terminated without charge of 'misconduct' and without an enquiry and the aforesaid paragraph gives no indication as to on what conditions this arbitrary uncontrolled power can be used to get rid of one or more permanent employees for "efficient management of Banks" on subjective opinions or suspicion not tested in enquiry into facts. It was further urged that this provision provides for "insecurity of tenure" for lakhs of permanent employees, Articles 14, 19(1)(g) and 21 of the Constitution and the integrated protection of these Fundamental Rights excludes the "doctrine of pleasure" and insists on security of tenure "during good behaviour". The right to livelihood cannot be rendered precarious or reduced to a glorious uncertainty", it was urged by Mr. Garg. Mr. Garg submitted that the right to "hire and fire" was the prerogative claimed by the employer in the days of uncontrolled "laissez faire." This was the "doctrine of pleasure....
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....592-593 by the Constitution Bench of five Judges to strike down a Service Rule which permitted compulsory retirement on completion of 10 years' services on the ground of 'inefficiency' etc. This Court held that Compulsory retirement could not be tolerated even after 10 years of service in view Of such retirement being not based on relevant considerations, including expected longivity of life of the employees in India. If the power of removal by way of compulsory retirement even after ten years was held unconstitutional in Gurdev Singh's case (supra) para 522 of the Shastri Award was far more arbitrary, unjust and unreasonable, it was urged before us. It was reiterated before us that in view of the binding decision of seven Judges in Moti Ram Deka's Case and its application by five Judges in Case of compulsory retirement after 10 years in Gurdev Singh's Case (supra), it is not open to the employees to submit that similar powers claimed under paragraph 522 of the Shastri Award, even without 10 years' service for removal without charge of 'misconduct' and without enquiry, can be upheld as constitutional on any grounds whatsoever. It cannot be upheld as constitutional on any grounds....
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....ccepted by India. required all employers to frame Standing Orders. He further urged that the demands of natural justice, which form part of Article 14 of the Constitution have been raised to the status of 'public policy' controlling section 23 of the Indian Contract Act. On that basis, clauses in contract of employment which provide for removal from service on the will of the employer have been condemned as 'The Henry VIII Clause' (see the observations of this Court in Central Inland Water Transports case (supra) against the ethos of the Constitution of Socialist Democratic Republic of India. In this connection, reference was made to the decision of this Court in Central Inland Water Transport's case (supra) and Maneka Gandhi's case (supra). In India, Shri Garg submitted. workers have a right to participate in the management. The participation in the management cannot exclude the 'power to be heard' and thus participate in a decision to remove a permanent employee. Government alone has power to refer to the industrial tribunal, Shri Garg submitted. He was against any reading down which is contrary to the principles of interpretation. He referred to the observations of the Privy Cou....
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....ase (supra) was an authority for the proposition that but for clause (b) of the second proviso to Article 311(2) of the Constitution, the principles of natural justice could not have been excluded from the scope of Article 14 of the Constitution. It was urged by him that the said second proviso to Article 311(2) being itself a constitutional provision, such exclusion was upheld by this Court in the said Tulsi Ram Patel's case (supra). page 237 and at last para to p. 242. Mr. Rao drew our attention to the well-settled rule of interpretation and submitted that where two interpretations are possible, one of which would preserve and gave the constitutionality of the particular statutory provision while the other would render it unconstitutional and void, the one which saves and preserves its constitutionality should be adopted and the other should be rejected. Fie, further, submitted that unless the provision of the Constitution itself excludes the principles of natural justice, they continue to be applicable as an integral part of the right to equality guaranteed by the Constitution. It was further reiterated that as the employees of the DTC were not Government employees, Article 3....
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....e interpretation of a single word in the context of legislative competence. That was not the context of the present controversy, submitted Mr. Rao. Mr. Rao submitted that R.M.D. Chamarbaughwalla's case (supra) was a case on severability. That was a case where the word 'competition' was interpreted. In the present case, the suggested reading down involves, according to Mr. Rao, not interpretation of any single word in regulation 9(b) but adding a whole clause to it which amounted to rewriting the provisions. Courts have refused to rewrite legislation to make up for the omissions of the legislature. Reliance was placed by Mr. Rao on Nalinakhya Bysack v. Shyam Sunder Halder & Ors., [1953] SCR 533, at p. 544-545. Mr Rao referred to the observations of this Court in Kedar Nath Singh v. State of Bihar, (supra) involving the interpretation of section 124A IPC in the context of Article 19(1)(a) of the Constitution. The content of Article 19(1)(a) was not cut down. In the present case, the suggested reading down would inevitably drain out Article 14 of its vitality. Shri Rao drew our attention to the decision of this Court in R.L. Arora v. State of Uttar Pradesh, (supra) and submitted that ....
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....erannuation in the year 1984. His total emoluments with effect from 1st November, 1964 to 30th September, 1984 would have been approximately Rs.2,46,464. Mr. Nayar filed a detailed statement and stated that the appellant ceased to work for the respondent with effect from 26th November, 1964 when he was discharged from service. In this case, it is necessary to bear in mind that the appellant, Shri Satnam Singh was appointed by the respondent, Zila Parishad, Ferozepure by letter of appointments dated 9th March. 1961. The Board approved his terms of appointment and the same were duly accepted by the appellant. The 'relevant clause of Contract between the parties for present purposes was clause 4 which was as follows: "His services will be terminated on one month's notice on either side provided it will be open to pay him his salary for the period by which the notice falls short of one month. Similarly, if he wishes to resign he may do so by depositing with the District Board his salary for the period by which the notice given by him fails short of one month." The appellant, however, was continued to be governed by the Sta....
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....his appointment order and rule 1(i), Part V-A of the District Board Rules, 1926. The learned Single Judge of the High Court considered the matter in detail and referred to various judgments of this Court and held that it could not be said that the action of termination prima facie amounted to an order of dismissal even though the appellant was at the time a confirmed employee of the respondent. The learned Single Judge found that the respondent had a contractual right to terminate the services of the appellant by giving a month's notice or a month's salary in lieu of notice. According to Shri Garg, the removal of the appellant from service was in accordance with the terms governing his appointment. Merely because on the 7th of November, 1964, the respondent resolved to charge sheet the appellant for acts of omission and commission and ordered an enquiry, and such an enquiry never commenced, would certainly not be enough reason to hold that the termination of the appellant's services, was ordered by way of punishment and therefore, amounted to his dismissal, argued Mr. Nayar. It was submitted by Mr. Nayar that the appellant had conceded that condition no. 4 was legally good but h....
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....n this regard was as under: "According to Rule 8.1 ibid, the Punjab Civil Services Rules were to apply in respect of matters for which no provision had been made anywhere else because of the phrase used "so far as may be". Naturally, if a provision was made anywhere else, which went counter to the Punjab Civil Services Rules, the application of the latter rules It thus follows that the Punjab Civil Services Rules were not to apply to the appellant in respect of matters for which specific provision was made in his letter of appointment, which constituted the contract of service between him and the District Board, as he joined service on those terms.after accepting the same." The learned Chief Justice of Punjab & Haryana High Court, however, dissented. The answer to the question, therefore, was given in the negative vide order dated 3rd April, 1974. The Division Bench of the High Court which heard the matter after the question of law was answered by the Full Bench, dismissed the appeal of the appellant vide order dated 28th October, 1974 and this appeal to this Court arises from this order. The appellant in Civil Appe....
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....nces of this case. This order, however, will have to be passed if we accept the contention on behalf of the appellant herein on the construction of the clause. In the matter of M/s Indian Airlines, which is the subject-matter of the Application for Intervention No. 1 of 1990:in Civil Appeal No. 2846 of 1986, Mr. Lalit Bhasin, on behalf of the interveners contended that there has been distinction between the discharge simpliciter and dismissal from service by way of punishment. According to Mr. Bhasin the effect of the judgments of this Court in the Central Inland Water's case (supra) and West Bengal's (supra) was to take away the right of the employer to terminate the services of an employee by way of discharge simpliciter. According to Mr. Bhasin, this Court had recognised the existence of the inherent right of an employer to terminate the services of an employee in terms of the contract of employment and also under the various labour enactments. Attention of this Court was invited to the provisions of the Industrial Employment (Standing Orders) Act, 1946, which applies to all industrial establishments whether in the public or private sector. Under and as a part of the said Act....
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....the interest of the Corporation; OR If his/her continuance in employment constitutes, in the opinion of the Corporation (the Board of Directors of Indian Airlines), a grave security risk making his/her continuance in a service detrimental to the interests of the Corporation; OR if in the opinion of the Corporation (the Board of Directors of Indian Airlines) there is such a justifiable lack of confidence which, having regard to the nature of duties performed, would make it necessary in the interest of the Corporation, to immediately terminate his/her services. (b) The employee can seek termination of his/her employment by giving 30 days notice or basic pay in lieu: Provided however the Corporation will be at liberty to refuse to accept the termination of his/her service by an employee where such termination is sought in order to avoid disciplinary action contemplated or taken by the Management." According to Mr. Bhasin, in the amended Regulation 13, Indian Airlines had taken care to set out the circumstances in which the services of an employee can be terminated by way of discharge and without holding enquiry. Mr Bhasin urged that these are eventualities which do n....
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....inion of the Corporation (the Board of Directors of Air India), a/grave security risk making his/her continuance in service detrimental) to the interests of the Corporation; OR If, in the opinion of the Corporation (the Board of Directors of Air India), there is such a justifiable lack of confidence which, having regard to the nature of duties performed, would make it necessary, in the interest of the Corporation, to immediately terminate his/her services. (b) The services of an employee on probation may be terminated without assigning any reason to him/her but on giving 30 days notice in writing or pay in lieu thereof. (c) The services of a temporary employee may be terminated without assigning any reason to him/her but on giving 15 days notice in writing or pay in lieu thereof. 225 Explanation For the purpose of this Regulation the word "pay" shall include all emoluments which would be admissible if he were on privilege leave." The question regarding justification of the action taken by the management was touched by this Court, but since the action was based on the old Regulation 48, it had to be quashed. It was submitted on behalf of the Air India that care had been tak....
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....tion was filed by the employee concerned which has now become C.A. No. 655 of 1984. After the judgment in the Central Inland Water's case (supra), an additional ground is now being taken to contend that a contract entered into way back in the sixties when the employee concerned was an employee of the Orissa Cooperative Insurance Society Ltd., Cuttack could not be enforced now and the same ought to be declared void in view of the Central Inland Water's case (supra). The intervention was allowed on 24th January, 1990 and Smt. Shyamla Pappu, Senior Advocate submitted written submissions. It was submitted that adjudication on the merits and the consideration of the facts and circumstances of the case may be left to the Bench hearing the matter after the decision of the question of law referred to the Constitution Bench. In this connection, it may, however, be noted that the General Insurance was nationaIised under the provisions of the General Insurance Provisions (Nationalisation) Act, 1972 and the said Act came into force on 20th September, 1972. Prior to this, General Insurance (Emergency Provisions) Act, 1971 was passed under the provisions of which Act all undertakings of al....
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....in the conduct of a public utility such as general insurance, Smt. Pappu raised the question. Would it not hamper the Company's business considering that the reduction/reorganisation of staff was essential for the effective functioning of the public service? Smt. Pappu asked the question would the public service not be saddled with unnecessary and/or incompetent staff, thus, burdening the public utility/service with unmanageable costs and staff that is ineffective'? It was urged that the New India Assurance Company had a clause, in the contract at the relevant time, which was as follows: "in the event of the society not having any further need of any employees services, whether permanent or temporary, which shall be decided by the board, the Principal Officer shall give 30 days notice in writing for termination of his services or in lieu thereof pay such employee a sum equivalent to one month pay including allowance upto the period of notice." The above clause covered cases of retrenchment, abolition of posts and other situations which had been adjudicated upon by this Court. If, however, the Central Inland Water's ....
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....er of power is not the main issue. but the validity of clauses or regulations containing the aforesaid power. The instances of actual user of power, however, are not wholly irrelevant on the question of the validity or extent of the power because these explain the extent and content of power and/or occasion for such user. Firstly. we have to. in view of the facts and the circumstances of the Civil Appeal No. 2876 of 1986, consider the amplitude of the power under clause (b) of Regulation 9 of the Regulations concerned. We have noted the contents of that Regulation. We have also noted the amplitude of the expression of that power as was canvassed before the High Court in the matter under appeal and as noticed by the decision of this Court in Delhi Transport Undertaking v. Balbir Saran Goel's case (supra). A survey of the several authorities of law and the development of law from time to time would lead one to the conclusion that the philosophy of the Indian Constitution, as it has evolved, from precedent to precedent. has broaden the horizons of the right of the employees and they have been assured security of tenures and ensured protection against arbitrariness and discrimination i....
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.... of these powers. The fact that the power so entrusted with a high ranking authority or body is not always a safe or sound insurance against misuse. At least, it does not always ensure against erosion of credibility in the exercise of the power in particular contingency. Yet, discipline has to be maintained, efficiency of the institution has to be ensured. It has to be recognised that quick actions are very often necessary in running of an institution or public service or public utility and public concern. It is not always possible to have enquiry because disclosure is difficult; evidence is hesitant and difficult, often impossible. In those circumstances, what should be the approach to the location of power and what should be the content and extent of power, possession and exercise of which is essential for efficient running of the industries or services'? It has to be a matter both of balancing and adjustment on which one can wager the salvation of rights and liberties of the employees concerned and the future of the industries or the services involved. Bearing in mind the aforesaid principles and objects, it appears to us that the power to terminate the employment of permanen....
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....earing may or may not be given, opportunity in the form of an enquiry may or not be given, yet arbitrariness and discrimination and acting whimsically must be avoided. These power must, therefore, be so read that the powers can be exercised on reasons, reasons should be recorded, reasons need not always be communicated, must be by authorities who are competent and are expected to act fairly, objectively and independently. The occasion for the use of power must be clearly circumscribed in the above limits. These must also circumscribe that the need for exercise of those power without holding a detailed or prolonged enquiry is there. As we have noted, a good deal of controversy was that these inhibitions or limitations or conditions are not there in the amplitude or the extent of the power enumerated or stated in Regulation 9(b) of the aforesaid Regulations concerned or of similar provisions that we have examined in these cases. We have noted the argument, learned and interesting, on the question of judicial law making imputing to the legislatures what these have not articulated. Should the courts say or can say what the legislatures have not said'? We have noted the controvers....
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....onfined to the form that evil had taken. Time works changes, brings into existence new conditions and purposes and new awareness of limitations. Therefore, a principle to be valid must be capable of wider application than the mischief which gave it birth. This is particularly true of the constitutional constructions. Constitutions are not ephemeral enactments designed to meet passing occasions. These are, to use the words of Chief Justice Marshall, "designed to approach immortality as nearly as human institutions can approach it ..... ". In the application of a Constitutional limitation or inhibition, our interpretation cannot be only of 'what has been' but of 'what may be'. See the observations of this Court in Sunil Batra v. Delhi Administration (supra). Where, therefore, in the interpretation of the provisions of an Act, two constructions are possible, one which leads towards constitutionality of the legislation would be preferred to that which has the effect of destroying it. If we do not read the conferment of the power in the manner we have envisaged before, the power is liable to be struck down as bad. This, we say in spite of the argument by many including learned Solicitor....
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.... A judge must not alter the material of which a law or an instrument is woven, but he can and should iron out the creases and if one may venture to say, make articulate the inarticulate premise but make articulate only which follow from necessary compulsions of the situations and the constitutional position. See in this connection the observations of Lord Denning in "The Discipline of Law" at p. 12. It is true that judicial jealously of legislature in law making has long been outdrawn, but the strict construction remains still an established rule. It is generally accepted principle that judges in interpreting statutes, should give effect to the legislators' intent. By doing so. the courts do recognise their subordinate position and their obligation to help the legislature to achieve its purpose. But in that effort. creativity is essential. There have been differences of opinion on the practices that the courts may employ in attempting to discover the legislative intent. In the beginning, conventional practice was only to look to the words of the statutes. Now the entire spectrum has to be examined. It has been said that judges are not unfettered glossators. is true that there is....
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....extent as experience should tell us. In most of the cases legislature, that is to say, vast majority of the people who are supposed to represent the views and opinions of the people, do not have any intention, even if they have, they cannot and do not articulate those intentions. On most of these issues their is no comprehension or understanding. Reality would reveal that it is only those who are able to exert their viewpoints, in a common parliamentary jargon, the power lobby, gets what it wants, and the machinery is of a bureaucratic set up who draft the legislation or rule or law. So, therefore, what is passed on very often as the will of the people in a particular enactment is the handy work of a bureaucratic machine produced at the behest of a power lobby controlling the corridors of power in a particular situation. This takes the mythetical shape of the 'intention of the people' in the form of legislation. Again, very often, the bureaucratic machine is not able to correctly and properly transmute what was intended to be conveyed. In such a situation, is it or is it not better, one would ponder to ask, whether the courts should attribute to the law-making body the knowledge of....
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....ot agree. Our legislatures are limited by the constitutional inhibitions and it is time, in my opinion, that we should read their Acts and enactments with the attribute that they know their limits and could not have intended to violate the Constitution. It is true that where there are clear, unambiguous and positive terms in a legislation, the Court should be loath to read down. It should proceed with a straight-forward method of striking down such legislations. But where the statute is silent or not expressive or inarticulate, the Court must read down in the silence of the statute and in the inarticulation of its provisions, the constitutional inhibitions and transmute the major inarticulate premise into a reality and read down the statute accordingly. It is true perhaps, as has been said, that in the history of constitutional law, statutes are seldom read down to mean what they say and intend. It is begging the question. If the statutes are seldom read down to mean what they say and intend. It is begging the question. If the statute does not specifically say, in such circumstances, as to how do we find the intention to transgress the constitutional limitations. At least, the rele....
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....ssion of Shri R.K. Garg and Mr. Ramamurthi. Absolute powers, it is true, cannot be regulated without essential legislative policy, but here properly read, absolute power was not there. Power that was only constitutionally valid, that power can be presumed to have been given and if that presumption is made, conditions indicated above inevitably attach. We are not concerned with the concept of industrial democracy sought to be propounded by Mr. Garg in this case. The validity and the propriety of having industrial democracy is not in issue. What is in issue is demonstrable fair play and justice, as sought for by Mr. Garg, in the exercise of the power which must be conceded as an essential attribute for proper functioning of the institution. It is true that no drafts as such have been submitted by the learned Attorney General or by the learned Solicitor General nor by any counsel appearing for the management. But these conditions, which we have noted, are necessary corollary flowing from the conferment of the power of termination in a constitutional manner for the smooth, proper and efficient running of the industry. In the aforesaid view of the matter, 1 am unable to accept the....
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....f the power is valid, the termination should be held to be valid, if on the other hand, there was exercise without compliance with these conditions, the termination would be invalid and consequences in law of damages or reinstatement or others will follow. But previous terminations where the lis is no longer pending before any authority will not be reopened. To that extent. I will declare this to be the law prospectively. I had, after circulating the draft judgment herein, the advantage of the views of my learned brothers. They do not agree with me. With respect. I am definitely of the opinion that time has come for the judicial interpretation to play far more active, creative and purposeful role in deciding what is "according to law". Law as evolved in India today, in my opinion, makes the limitations on user of power quite clear and distinct, in this branch. These are constitutional limitations. Therefore, every provision in any legislation by limited legislatures, in my opinion, should be judged bearing in mind that the legislature and the law-making authorities were aware and are bound by these constitutional limitations. These inhibitions must be read into these provisions so ....
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....t interfere with the order of the High Court. The appeal shall, therefore, fail. Having regard to the facts and the circumstances and the observations above. Civil Appeal No. 655 of 1984 (M.L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. ) will be placed before a division bench of this Court to be disposed of in accordance with law and the light of the observations made herein. For the reasons that I have indicated above, in Civil Appeal No. 1115 of 1976 (Satnam Singh v. Zilla Parishad Ferozepur & Anr., ), with the facts herein where apparently no reasons were recorded, the appeal of Satnam Singh succeeds and in the interest of justice, the monetary relief should be given to the appellant which is quantified at Rs.4,83,061.90 paise (Rupees four lakhs eighty three thousand and sixty one and ninety paise). I have indicated before the basis on which this quantification has been made. For the same reasons, Civil Appeal No. 4073(NL) of 1986 (Mahesh Kumar Giroti v. Regional Manager, Region 11, Regional Office, State Bank of India, Bareilly & Ors.), Civil Appeal No. 331 of 1987 (The Delhi Transport Corporation & Anr. v. Shri Hans Raj), Civil Appeal No. 328 of 198....
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....ity under the 1950 Act. 9(b) Termination of services (b) Whether the termination is made due to reduction of establishment or in circumstances other than those mentioned in (a) one month's notice or pay in lieu thereof will be given to all categories of employees. On a plain reading of this Regulation it is apparent that the authority has been conferred the power to terminate the services of any employee whether permanent or temporary by giving the month's notice or pay in lieu thereof without recording any reason whatsoever in the purported order of termination of services. Thus a regular, temporary or permanent employee of the State Transport Authority can be dismissed or removed from service at the whims and caprices of the concerned authority without any reason whatsoever and undoubtedly this evidence that such unbridled, indiscriminate and uncanalised power to terminate the services even of a permanent employee without assigning any reason and without giving any opportunity of hearing as far play and justice demands a reasonable procedure is per se, arbitrary and discriminatory. It has been contended by the Attorney General, appearing on behalf of the State that such ....
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....ry to refer in this connection to the pronouncement of this Court in the case of Parshotam Lal Dhingra v. Union of India, [1958] SCR 828 where it has been held that protection of Article 311 is available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise. Thus even the probationer or temporary employee if removed from service or dismissed from service as a penal measure having civil consequences has to conform to the procedure prescribed by Article 311(2) of the Constitution. Even a probationer who has no right to the post cannot be removed from service as a penal measure without complying with Article 311(2) of the Constitution. In the case of Shyam Lal v. The State of Uttar Pradesh and Anr., [1955] SCR 26 it was held by this Court that a compulsory retirement from service under the Civil Services (Classification, Control and Appeal) Rules does not amount to dismissal or removal within the meaning of Article 311 of the Constitution and therefore does not fall within the provision of the said Act. In the case of Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Others, [1959] SCR 279 the constitutionality....
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....gible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate. In State of Orissa v. Dr. (Miss) Binapani Dei & Ors., [1967] 2 SCR 625 the respondent joined service of the State Government in 1938. In the service record certain date of birth was recorded. In 196 1 Government held enquiry as to date of birth and she was asked to show cause why a certain date of birth should not be taken as a date of birth. The enquiry report was not disclosed to her and she was not given any opportunity to meet the evidence. The Government refixed her date of birth and ordered that she will be compulsorily retired. It was held that such a enquiry and decision were contrary to the basis concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admitt....
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....n areas not covered by any law validly made. If a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the legislature and the statutory authorities intend to act in accordance with the principles of natural justice. But on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provisions conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power." It was held that Fundamental Rule 56(j) does not in term require that any opportunity should be given to the concerned servant to show cause against the compulsory retirement. The order of the President is, therefore, not bad as the authority bona fide f....
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....sible that the form may be merely a camouflage for an order of dismissal for misconduct. It is, therefore, open to the Tribunal to go behind the form of the order and look at the substance. If the Tribunal comes to the conclusion that though in form the order amounts to termination simpliciter but in reality cloaks a dismissal for misconduct, it will be open to it to set aside the orders as a colourable exercise of power by the management." The same principles have also been reiterated in the later decision of this Court in Tara Oil Mills Co. Ltd. v. Workmen & Anr., [1964] 2 SCR 125. It has been observed in this case: "That the position of the industrial workman is different from that of a Government servant because an industrial employer cannot "hire and fire" his workmen on the basis of an unfettered right under the contract of employment, that right now being subject to industrial adjudication; and there is also on the other hand no provision of the Constitution like Arts. 3 10 and 311 requiring consideration in the case of industrial workmen." It has been further observed: ....
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.... with the previous approval of the Central Government, Sub-section (3) provides that the Passport Authority may impound or cause to be impounded or revoke a passport or travel document on the grounds set out in cl.(a) to (h). The order impounding the passport in the present case was made by the Central Government under cl. (c) which reads as follows: "(c) If the passport authority deems it necessary so to do in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with the foreign country, or in the interest of the general public." It was held that the right to travel and go outside the country is included in the right to Personal Liberty. In order to apply the test contained in Arts. 14 and 19 of the Constitution we have to consider the objects for which the exercise of inherent rights recognised by Art. 21 of the Constitution are restricted as well as the procedure by which these restrictions are sought to be imposed, both substantive and procedural laws and actions taken under them will have to pass the test imposed by Arts. 14 and 19, whenever facts justifying th....
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.... even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice. It is also pertinent to refer in this connection the pronouncement of this Court in the case of E.P. Royappa v. State of Tamil Nadu and Anr., [1974] 2 SCR 348. "Equality and arbitrariness are sworn enemies, one belongs to the rule of law in a public while the other to the whim and caprice of an absolute monarch. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omni-presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14, it must be right and just and fair and not arbitrary, fanciful or oppressive." In the case of Municipal Corporation of Greater Bombay v. Malvenkar and Ors., [1978] 3 SCR 1000 the services of respondent No. 2, a permanent clerk in the Bombay Electric Supply and Transport Undertaking, which is run by ....
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....er clause (3) of Standing Order 231 read with standing Order 23 and the other is the power to terminate the services of an employee by one calendar month's written notice or pay in lieu thereof under Standing Order 26. The question is as to which power has been exercised by the Management in a particular case and this question has to be determined having regard to the substance of the matter and not its form. There are two distinct and independent powers and as far as possible, neither should be construed so as to emasculate the other or to render it ineffective. One is the power to punish an employee for misconduct while the other is the power to terminate simpliciter the service of an employee without any other adverse consequences. Proviso (i) to clause (1) of Standing Order 26 requires that the reason for termination of the employment should be given in writing to the employee when exercising the power of termination of services of the employee under Standing Order 26. The Management is required to articulate the reason which operated in its mind for terminating the services of the employee. But merely because the reason must obviously not be arbitrary. capricious or irrelevant....
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....o guidelines for choosing between employees and employees, occasion to occasion for the contemplated action. In negativing the contentions, it was held after exhaustively analysing the note dated 29.4.1981, that sheer unsuitability and unfitness to hold office is not a misconduct in its generic sense or in its artificial meaning under Regulation 42. Regulations 42 to 44 have no application. Confidence in the petitioners' suitability was lost due to such overall inefficiency of the departments under the petitioners. Conclusions could not be different even if it assumed that the note contemplated finding of the petitioners guilty of gross inefficiency and negligence. Inefficiency by itself did not amount to misconduct in its generic sense. It was further held that the petitioners have no right to the post and do not possess any security of tenure. It was also held that if the Corporation choose to act under Regulation 48 and the action is not mala fide, arbitrary or capricious the question of its having acted in colourable exercise of its power could not arise. It was further held that the power conferred under Regulation 48 to terminate the services of permanent employees on 3....
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.... Ltd. and Anr. v. Hindustan Steel Ltd. and Ors., [1985] 2 SCR 428. Standing Order 32 which provided for conferment of power in the General Manager to terminate the services of an employee if satisfied for reasons recorded in writing that it was inexpedient or against the order of security to employ the workman, the workman could be removed or dismissed from service without following the procedure laid down in Standing Order 31. "32. Special Procedure in certain cases. Where a workman has been convicted for a criminal offence in a Court of law or where the General Manager is satisfied, for reasons to be recorded in writing, that it is inexpedient or against the interests of security to continue to employ the workman, the workman may be removed or dismissed from service without following the procedure laid down in Standing Order 31." The appellant, an Assistant in the 1st Respondent-undertaking was removed from service on the ground that it was 'no longer expedient' to employ him. The management dispensed with the departmental enquiry, after looking into the secret report of one of their officers that the appellant had misbeha....
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....ibunal by the appellant that the order of termination of services of Mr. Banerjee was an order of discharge which it was competent to make under R. 40(1) of the Service Rules, whereas the respondent contended that the termination was not a discharge simpliciter but was in substance dismissal and that the Tribunal was entitled to consider the propriety of the appellant's action. The Tribunal held that it had jurisdiction to look into the reasons behind the discharge of an employee. On the examination of the evidence the Tribunal found that no mala fides on the part of the employer had been proved and that the termination of service did not amount to victimisation or unfair labour practice. Even so it held that the discharge was not justified and directed the reinstatement of Mr. Banerjee. This Court held that in the matter of an order of discharge of an employee the form of the order is not decisive. An Industrial Tribunal has jurisdiction to examine the substance of the matter and decide whether the termination is, in fact, discharge simpliciter or it amounts to dismissal which has put on the cloak of discharge simpliciter. The test always has to be whether the act of the emp....
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....d ground that the former belongs to the same religious faith or is the disciple of the same religious teacher or holds opinions congenial to him. The power may be exercised depending on whether or not the concerned employee belongs to the same region. or to the same caste as that of the authority exercising the power, of course without saying so. Such power may be exercised even in order to make way for another employee who is favourite of the concerned authority. Provincialism, casteism, nepotism, religious fanaticism, and several other obnoxious factors may in that case freely operate in the mind of the competent authority on deciding whom to retain and whom to get rid of. And these dangers are not imaginary ones. They are very much real in organisations where there is a confluence of employees streaming in from different States. Such a rule is capable of robbing an employee of his dignity, and making him a supine person whose destiny is at the mercy of the concerned authority (whom he must humour) notwithstanding the constitutional guarantee enshrined in Articles 14 and 16 of the Constitution of India. To hold otherwise is to hold that the fundamental right embedded in Articles ....
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.... the Deputy Chief Accounts Officer and was later promoted as Manager (Finance), the respondent Sengupta was appointed as Chief Engineer (River Services) and was later promoted as General Manager (River Services). Rule 9(i) of the Corporation's Service, Discipline and Appeal Rules of 1979 provided that the services of a permanent employee could be terminated on three months' notice on either side or on payment of three months' pay plus DA to the employee or on deduction of a like amount from his salary as the case may be in lieu of the notice. A notice under Rule 9(i) was served on him terminating his services with immediate effect by paying three months' pay. Both Ganguly and Sengupta filed writ petition before High Court and a Division Bench of that Court allowed the same. The Corporation filed appeals before Supreme Court. The impugned questions for determination were (i) whether the appellant Corporation was an instrumentality of the State so as to be covered by Articles 12 and 36 of the Constitution and (ii) whether an unconscionable term in a contract of employment entered into with the Corporation was void under Section 23 of the Contract Act and violative of Article 14 and a....
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....rsons ignores the fact that however highly placed a person may be he must necessarily possess human frailties and "power tends to corrupt, and absolute power corrupts absolutely." Rule 9(i)is also discriminatory for it enables the Corporation to discriminate between employee and employee. It can pick up one employee and apply to him Rule 9(i). It can pick up another employee and apply to him Rule 9(ii). It can pick up yet another employee and apply to him Rule 36(iv)(b) read with Rule 38 and to yet another employee it can apply Rule 37. All this the Corporation can do when the same circumstances exist as would justify the Corporation in holding under Rule 38 a regular disciplinary inquiry into the alleged misconduct of the employee. This court in Delhi Transport Undertaking v. Balbir Saran Goel, [1970] 3 SCR 757 considered the question whether the services of a permanent employee under Delhi Transport Undertaking could be terminated under Regulation 9(b) of the Regulation without complying with the procedure prescribed by Regulation 15 and (ii) whether although the order was made in perfectly harmless and innocuous terms purporting to be within Regulation 9(b) it was a mere c....
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....ty to establish by an inquiry, illegitimately but ingeniously passes an innocent looking order of termination simpliciter, such action is bad and is liable to be set aside. Loss of confidence is no new armour for the management; otherwise security of tenure, ensured by the new industrial jurisprudence and authenticated by a catend of cases of this Court can be subverted by this neo formula Loss of Confidence in the law will be the consequence of the Loss of Confidence doctrine. An employer who believes and suspects that his employee particularly one holding a position of confidence, has betrayed that confidence, can, if the conditions and terms of employment permit terminate his employment and discharge him without any stigma attaching to the discharge. But such belief or suspicion or' the employer should not be a mere whim or fancy. It should be bona fide and reasonable. It must rest on some tangible basis and the power has to be exercised by the employer objectively', in good faith. which means honestly and with due care and prudence. If the exercise of such power is challenged on the ground of being colourable or mala fide or an act of victimisation or unfair labour practice.....
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.... guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract. entered into between parties who arc not equal in bargaining power ..... It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them." The Court has therefore, the jurisdiction and power to strike or set aside the unfavourable terms in a contract of employment which purports to give effect to unconscienable bargain violating Art. 14 of the Constitution Thus on a conspectus of the catena of cases decided by this Court the only conclusion follows is that Regulation 9(b) which confers powers on the authority to terminate the services of ....
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....be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. Regulation 9(b) does not expressly exclude the application of the 'audi alteram partern' rule and as such the order of termination of service of a permanent employee cannot be passed by simply issuing a month's notice under Regulation 9(b) or pay in lieu thereof without recording any reason in the order and without giving any hearing to the employee to controvert the allegation on the basis of which the purported order is made. It will be profitable to refer in this connection the observations of this Court in the case of Union of India and Anr. v. Tulsiram Patel and Ors., [1985] Supp. (2) SCR 131 where the constitutionality of provisions of Art. 311 particularly the 2nd proviso to clause (2) of 'the said Article came up for consideration. This Court referred to the findings in Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185 wherein it was held that though the origin of a Government service is contractual yet when once appointed to his post or office, the Government servant acquires a status and his rights and obligations a....
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....w far the impugned provisions of Regulation 9(b) framed under the Delhi Road Transport Act can be read down in order to save it from unconstitutionality. Several decisions have been cited at the bar in order to impress upon the Court that the impugned provisions have been made for public purposes and for public interest and as such it should be read down in a manner that will save the said provisions from the on-slaught of constitutional invalidity. In the case of Commissioner of Sales Tax, Madhya Pradesh, Indore and Ors. v. Radhakrishnan and Ors., [1979] 2 SCC 249 it has been held by this Court that for sustaining the presumption of constitutionality, the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived and can even read down this section. It is convenient to mention here the meaning and scope of the word 'reading down' and 'Severance' dealt with on page 7, para B in Australian Federal Constitutional Law by Colin Howard which reads as follows: "The High Court presumes the validi....
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....l presumption that a Legislature does not intend to exceed its jurisdiction." In the case of R.M.D. Chamarbaugwalla v. The Union of India, [1957] SCR 930 the petitioners who had been promoting and conducting prize competitions in the different States of India, challenged the constitutionality of ss. 4 and 5 of the Prize Competitions Act (42 of 1955) and rr. 11 and 12 framed under s. 20 of the Act on the grounds that prize competition as defined in s. 2(d) of the Act included not merely competitions that were of a gambling nature but also those in which success depended to a substantial degree on skill and the sections and the rules violated their fundamental right to carry on business, and were unsupportable under Act. 19(6) of the Constitution, that they constituted a single inseverable enactment and, consequently. must fail entirely. It was held that validity of the restrictions imposed by ss. 4 and 5 and rr 11 and 12 of the Act as regards gambling competitions was no longer open to challenge under Art. 19(6) of the Constitution in view of the decision of this Court that gambling did not fall within the purview of Art. 19(1)(g) of the Constitution. It has been further observed....
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.... in a statute and the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used. It has been further held following the observations in The Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd. & Ors., [1963] Supp. 2 SCR 127 that it is well settled that if certain provisions of law construed in one way will be consistent with the Constitution and if another interpretation would render them unconstitutional the court would bear in favour of the former construction. In the case of Jagdish Pandey v. The Chancellor University of Bihar & Anr., [1968] 1 SCR 23 1 the challenge was to the constitutionality of s. 4 of Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) (Amendment) Act 13 of 1962 as discriminatory and violative of Art. 14 of the Constitution. It has been urged that s. 4 confers uncanalised powers on the Chancellor without indicating any criterion on the basis of which the power under s. 4 can be exercised. It has been observed that: &n....
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....rminate the services of a permanent employee without recording any reasons for the same and without adhering to the principles of natural justice and equality before the law as envisaged in Article 14 of the Constitution, cannot be read down to save the said provision from constitutional invalidity by bringing or adding words in the said legislation such as saying that it implies that reasons for the order of termination have to be recorded. In interpreting the provisions of an Act, it is not permissible where the plain language of the provision gives a clear and unambiguous meaning can be interpreted by reading down and presuming certain expressions in order to save it from constitutional invalidity. Therefore, on a consideration of the above decisions, it is impossible to hold by reading down the impugned provisions of Regulation 9(b) framed under s. 53 of the Delhi Road Transport Act, 1950 read with Delhi Road Transport (Amendment) Act, 1971 that the said provision does not confer arbitrary, unguided, unrestricted and uncanalised power without any guidelines on the authority to terminate the services of an employee without conforming to the principles of natural justice and equa....
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....owed in the terms indicated in the judgment of the learned Chief Justice. The other cases shall be placed before a division bench for final disposal. SAWANT.J. I had the advantage of reading the judgments of the learned Chief Justice and B.C. Ray and K. Ramaswamy, JJ. While with respect I agree with the conclusion of the learned Chief Justice in Civil Appeal No. 1115/76, with utmost respect to him, I am unable to share his view of law on the subject in Civil Appeal No. 2876/86. I am in respectful agreement with the view on the point expressed by Ray and Ramaswamy, JJ. in the said Civil Appeal. I give my separate reasons for the same. The only question involved in all these matters is whether the absolute power given to the Management of the public undertakings under their respective rules/regulations to terminate the services of an employee without assigning any reason, is constitutionally valid. 2. It is not necessary to refer to the facts and service rules in each case. It will be sufficient if I reproduce herein below the relevant service regulation of one of the public undertakings, viz., Delhi Transport Corporation (DTC' for short) the validity of which is in question in....
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....m of contract. There is no dispute that although the language differs, the substance of the relevant rules of the other public undertakings which are before us, is the same and hence what applies to Regulation 9(b) of the Regulations will apply equally to the relevant rules of the other undertakings as well. 3. The contentions advanced before us on behalf of the managements of the undertakings acknowledge at the very outset that such a service rule without anything further was not only ultra vires the Constitution but was indefensible in law even otherwise being opposed to the principles of natural justice vesting as it does the naked arbitrary power in the management. The contention, however, was that the rule had to be read down to imply that the power vested by it could be exercised only in certain circumstances and for valid reasons and not otherwise. It was further contended that the rigour of the rule is mitigated because the power granted by it is exercised by a high ranking officer. It was also urged that the exercise of the said power can be controlled by holding that it is open to scrutiny by the court, in individual cases. In other words, the contention was that the r....
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....of Article 311 of the Constitution, and why at least such intelligible guidelines should not be incorporated in the rule, we received no reply. We could appreciate the embarrassment of the counsel, and as stated earlier. there lies the nub of the matter. What this Court in the various decisions has struck down is a similar rule in its present naked form without any guideline whatsoever, broad or otherwise. It was never the argument on behalf of the employees nor indeed is it to-day before us that all the possible circumstances in which the rule may be used should be enumerated in it. Their argument has been that at least the broad circumstances under which its exercise may become necessary should be incorporated to avoid an arbitrary use or rather the abuse of power, and to guarantee the security of employment. That argument has been accepted by this Court in the past by holding that such a rule is violative of the Constitution and was not necessary to safeguard the interests of the undertakings or the interests of the public. The decisions which appear to take an inconsistent view show on close analysis that either they were not dealing with the validity of the rule or were render....
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....e limbo of undefined premises and uncertain applications. That will be a mockery of them. Both the society and the individual employees, therefore, have an anxious interest in service conditions being well-defined and explicit to the extent possible. The arbitrary rules, such as the one under discussion, which are also sometimes described as Henry VIII Rules, can have no place in any service conditions. These are the conclusions which flow from Sukhdev Singh & Ors. v. Bhagatram Sardar Singh Raghuvanshi & Anr., [1975] 3 SCR 619; Maneka Gandhi v. Union of India, [1978] 2 SCR 621; The Manager, Government Branch Press & Anr. v. D.B. Felliappa, [1979] 1 SCC 477; Managing Director, Uttar Pradesh Warehousing Corporation & Anr. v. Vinay Narayan Vajpayee, [1980] 2 SCR 773; A.L. Kalra v. The Project & Equipment Corporation of India Limited, [1984] 3 SCR 646; Workmen of Hindustan Steel Ltd. & Anr. v. Hindustan Steel Ltd. & Ors., [1985] 2 SCR 428; West Bengal State Electricity Board & Ors. v. Desh Bandhu Ghosh & Ors., [1985] 2 SCR 1014; Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. etc., [1985] Supp. 2 SCR 51; Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 13....
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....y only for the purpose of making inquiry into any definite matter of public importance. It is in the context of this guideline in the Act, that it is further stated there that even that power is to be exercised by the government and not any petty official. Hence a bare possibility that the power may be abused cannot per se invalidate the Act itself. The proposition of law stated there is to be read as a whole and not in its truncated form. The authority does not lay down the proposition that even in the absence of guidelines, the conferment of power is valid merely because the power is to be exercised by a high official. It must further be remembered that in this case, the contention was that although the appropriate government was given power to appoint Commission of Inquiry into any definite matter of public importance, the delegation of power was excessive since it was left to the government to decide for itself in each case what constituted such matter. The court repelled the argument by pointing out that "definite matter of public importance" constituted sufficient guideline to the government. It was not, therefore, a case of no guideline but of the absence of details of the g....
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.... an industrial employer to terminate the employee's service by giving one month's notice or salary of one month in lieu of notice and normally an employer may, in a proper case be entitled to exercise the power. But where such order gives rise to an industrial dispute, the form of the order would not be decisive and the industrial adjudicator would be entitled to probe it to find out whether it is mala fide or is made in colourable exercise of the power. Being a private employment, the power so conferred was not assailed on the ground that it violated Article 14 of the Constitution. I fail to understand the reliance placed on this authority to support the appellants' case before us. 9. The other authorities relied on behalf of the appellants have similarly no relevance to the point. In Jyoti Pershad v. The Administrator for the Union Territory of Delhi, [1962] 2 SCR 125, the Slum Clearance Act which was challenged there contained enough guidelines for the exercise of the power. In Municipal Corporation of Greater Bombay v. P.S. Malvenkar & Ors., [1978] 3 SCR 1000, Order 26 of the Standing Orders and Service Regulations which was in question there required reasons to be given for....
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....that the Court should read in it circumstances under which alone it can be used. What precise circumstances should be read in it, however, was not stated by the learned counsel. I am afraid that the doctrine of reading down a statute has been wrongly pressed into service in the present case. The authorities relied upon by the learned counsel for the appellants not only do not help the appellants but go against their case. It would be better if I first deal with the authorities cited at the Bar for they will also bring out the correct meaning and application of the said doctrine as well as its limitations. In Re The Hindu Women's Rights to Property Act, 1937, and the Hindu Women's Rights to Property (Amendment) Act, 1938 etc., [19411 FCR 12 what fell for consideration was whether the said two Act which were the Central pieces of legislation operated to regulate succession to agricultural land in the then Governors' Provinces. Admittedly, under the scheme of the then Government of India Act, 1935, after April 1, 1937, the Central Legislature was precluded from dealing with the subjects numerated in List II of the 7th Schedule so far as the Governors' Provinces were concerned. Laws wi....
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....3; AIR 1953 PC 63 for others than the Courts to remedy the defect. In our view it is not right to give to the word "decree" a meaning other than its ordinary accepted meaning and we are bound to say, in spite of our profound respect for the opinions of the learned Judges who decided them, that the several cases relied on by the respondent were not correctly decided." In R.M.D. Chamarbaugwalla v. The Union of India, [1957] SCR 930, more or less a similar situation arose. The Parliament had enacted the Prize Competitions Act to provide for the control and regulation of the prize competitions, and Section 2 of the Act had defined "Prize Competitions" to mean "any competition (whether called a crossword prize competition, a missing-word competition, a picture prize competition or by any other name), in which prizes are offered for the solution of any puzzle based upon the building up, arrangement, combination or permutation of letters, words or figures". The validity of.the restrictions imposed by the Act was challenged as going beyond Article 19(6) of the Constitution. The Court took a recourse to the doctrine of reading down and held that the definition of prize competition given ....
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....e any provision for giving the teacher a hearing before passing the order thereunder. By that section, every appointment, dismissal etc. of any teacher of a college affiliated to the University (but not belonging to the State) made on or after 27th November, 1961 and before 1st March, 1962 was to be subject to such order as the Chancellor of the University may on the recommendation of the University Service Commission established under Section 48 of the said Act pass with respect thereto. The Court held that the said section was not invalid on the ground of unchannelised power given to the Chancellor because it never authorised the Chancellor to scrutinise the relevant appointments for satisfying himself that they were in accordance with University Act and its Statutes etc. The Court further held that although the said section did not make a provision for giving the teacher a hearing before passing order thereunder, such hearing must be read in the said section which the Commission had to give according to the principles of natural justice before making its recommendations to the Chancellor. In Shri Umed v. Raj Singh & Ors., [1975] 1 SCR 918, one of the questions which fell for ....
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....ourt could read in Section 25-O (2) of the Industrial Disputes Act that it was incumbent on the authority to give reasons in his order for refusing permission to close down the undertaking. The Court answered it in the negative. Although in the discussion that follows explicit reasons for the same are not found, it is legitimate to presume that the Court did not accept the said contention because of the clear and explicit language of the said section. In Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] 1 SCR 206, the majority judgment has discussed the limitations of the doctrine of reading down which is relevant for our purpose. In that case, it was contended on behalf of the State that Article 31C should be read down so as to save it from the challenge of unconstitutionality and it was urged that it would be legitimate to read into that Article the intendment that only such laws would be immunised from the challenge under Article 14 and 19 as did not damage or destroy the basic structure of the Constitution. The Court opined that "to do so in that case would involve a gross distortion of the principle of reading down depriving that doctrine of its only or true rationale....
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....earned Additional Solicitor General, the courts are free to undertake." The Court further held that in the very nature of things it was difficult for a court to determine whether a particular law gave effect to a particular policy and whether a law was adequate enough to give effect to that policy. It was pointed out by the Court that it was not possible for the Court to set aside the law so enacted as invalid merely because in the opinion of the Court, the law was not adequate enough to give effect to that policy. The Court further pointed out that "the only question open to judicial review was whether there was a direct and reasonable nexus between the impugned law and the provisions of the Directive Principles. The reasonableness was to be examined with regard to such nexus and not with regard to the impugned law. Hence, it was not open to the Court to undertake the kind of enquiry suggested by the Additional Solicitor General. That would involve an extensive judicial review which was impermissible in law." The Court then pointed out that where the express words of the statute are clear and intended to give power without limitation, the statute cannot be saved by reading into th....
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....es sharply into focus in Mr. Justice Cardozo's statement for the Court in Moore Ice Cream Co. v. Rose, 289 US 373,379; 77 L ed. 1245, 1270: 'A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.' ... But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered." If an important congressional policy is to be perpetuated by recasting unconstitutional legislation, as the prevailing opinion has done here, the analytically sound approach is to accept responsibility for this decision. Its justification cannot be by resort to legislative intent, as that term is usually employed, but by a different kind of legislative intent, namely the presumed grant of power to the courts to decide, whether it more nearly accords with Congress' wishes to eliminate its policy altogether or extend it in order to render what Congress plainly did intend, constitutional." 11. It is thus clear that the doctrine of....
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....ject of the Act which has a bearing on the said Regulation 9(b). If anything, the object of the Act would require framing of such service regulations as would ensure dedicated and diligent employees to run the undertaking. The dedication of the employees would pre-suppose security of employment and not a constant hanging of the Democle's sword over their head, and hence would in any case not bear the existence of such regulation. Secondly, the language of the regulation is so crystal clear that no two interpretations are possible to be placed on it and hence it is not permissible to read in it any meaning other than what is clearly sought to be conveyed by it. Thirdly, the context of the said regulation makes it abundantly clear that it is meant to be a naked hire and fire rule and the authority has been vested with unguided and arbitrary power to dispense with the services of any category of the employees. Subclause (a) of the said Regulation 9 mentions elaborately the circumstances in which the services of an employee can be terminated without any notice or pay in lieu of such notice. Sub-clause (b) follows closely on its heel and states in clear language that when the terminatio....
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....1 know of no authority which supports such wide reading down of any provision of the statute or rule/regulation. For all these reasons the doctrine of reading down is according to me singularly inapplicable to the present case and the arguments in support of the same have to be rejected. 13. I am, therefore, of the view that there is no substance in this appeal. I would rather that the long departed rule rests in peace at least now. Hence I dismiss Civil Appeal No. 2876/86 with costs. 1 allow Civil Appeal No. 1115 of 1976 and agree with the order proposed to be passed therein by the learned Chief Justice. The rest of the civil appeals, and Special Leave Petition (Civil) No. 7612 of 1987 be referred to the Division Bench for disposal in accordance with the opinion expressed in Civil Appeal No. 2876 of 1986 hereinabove. The application for intervention are allowed. K. RAMASWAMY, J: 1. These batch cases concern, a reference. the correctness of the ratio rendered in Central Inland Water Transport Company Limited v. Brojonath Ganguly, [1986] 3 SCC. 156 = AIR 1986 SC 1571 (for short Brojo Nath). The facts in C.A. No. 2886/86 lie in a short compass and sufficient for decidi....
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....oration or to maintain discipline among its employees. The termination, if is found to be wrongful, the only remedy available to the employees is to claim damages for wrongful termination but not a declaration as was granted in Brojo Nath's case. In support thereof, he cited passages from Chitti on Contract, Halsbury's Laws of England and the ratio in Union of India v. Tulsiram PateI, [1985] Supp. 2 SCR 131 = AI 1985 SC. 1416. He also placed strong reliance on Industrial Law and the decisions of this Court cited by my learned brother, the Chief Justice. Alternatively he contended that the relevant regulations would be read down so as to be consistent with Arts. 14 and 16(1) read with Art. 19(1)(g) of the Constitution and the authority invested with such power could in an appropriate case, report to terminate the services of an employee expeditiously without recourse to an elaborated enquiry and opportunity of hearing. The latter contention of reading down the relevant rules received support from the learned Attorney General Sri Soli J. Sorabjee and other counsel appearing for the employers. M/s. M.K. Ramamurthi, R.K. Garg, and P.P. Rao, learned counsel appearing for the employees r....
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....ties who cannot deviate from the conditions of service and any deviation will be enforced through legal sanction of declaration by Courts to invalidate the actions in violation of the Rules or Regulations. The statutory bodies have no free hand in framing the terms or conditions of service of their employees. The Regulations bind both the authorities and also the public. The powers of the statutory bodies are derived, controlled and restricted by the Statutes which create them and the Rules and Regulations framed thereunder. The Statute, thereby fetters on the freedom of contract. Accordingly declaration was granted that dismissal or removal of an employee by statutory Corporation in contravention of statutory provision as void. Mathew, J. in a separate but concurrent judgment held that a Public Corporation being the creation of a Statute is subject to statutory limitations as a State itself. The preconditions of this Part II viz., that the corporation is created by Statute and the existence of power in the corporation is to invade a statutory right of the individual. Therefore, the governing power must be subject to fundamental statutory limitations. The need to subject the power ....
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....e Government Services and also under local authorities. The Government, therefore, cannot act arbitrarily. It does not stand in the same position as a private individual. In a democratic Government by rule of law, the executive Government or any of its officers cannot held to be possessed of arbitrary power over the interests of the individuals. Every action of the Government must be informed with reason and should be free from arbitrariness. That is the very essence of rule of law. It was further held: "It was, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts .......... the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard of norm which, is not arbitrary, irrational or irrelevant. The power of discretion of the Government in the matter of grant of largess including award of jobs, ......................... must be conditioned and structured by rational relevant and non-discriminatory standard or norm and if t....
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....as a member of the society so that himself and his dependents are economically sound, educationally advanced and socially dignified so that the nation constantly rises to standards of higher level in an egalitarian social order under rule of law as is obligated under Art. 51A(J ). Right to life scope of 9. The right to life, a basic human right assured by Art. 21 of the Constitution comprehends something more than mere animal existence i.e. dignity of the individual. Field J. in Munn v. Illinois, [1876] 94 US 113 and 154 held that by the term "life" as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The deprivation not only of life but of ..... if it a efficacy be not lettered away by Judicial decision. In Kharak Singh v. State of U.P., [1964] 1 SCR 332 this Court approved the definition of life given by Field J. in his dissenting opinion. In Olga Tellis v. Bombay Municipal Corporation, [1985] 2 Suppl. SCR page 51 at 79 this Court further laid that an equally important facet of the right to life is the right to livelihood because no person can live without ....
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....s., [1985] 2 SCR 428 it was held that the standing order 31 which confers arbitrary, uncanalised and drastic power on the Manager to dismiss an employee without enquiry, apart from being in violation of basic requirement of natural justice, is such a drastic nature as to effect the livelihood and put a stigma on the character of the workman. In Francis Corallie v. U.T. of Delhi, [1981] 2 SCR 516 = AIR 1981 SC 746 this Court held that "it is for the Court to decide, in exercise of its constitutional power of judicial review, whether the deprivation of life or personal liberty in a given case is by procedure which is reasonable, fair and just and fair treatment". The tests of reason and justice cannot be abstract nor can be divorced from the actualities of life and the needs of the Society. The tests applied must be pragmatic and purposive lest they cease to be reasonable. Reasonableness must be meaningful and efficacious in content as well as in form. The procedure provided in Rule 9(b) or allied rules, therefore, must not be just, fair and reasonable so as to be in conformity with Arts. 14 and 21 is the cry of the case. 10. The position of the public employee is whether status: ....
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....on or on officiating basis. A substantive appointment to a permanent post in a public service confers normally substantive right to the post and he becomes entitled to hold a lien on the post. He is entitled to continue in office till he attains the age of superannuation as per rules or is dismissed or removed from service for inefficiency, misconduct or negligence or any other disqualification in accordance with the procedure prescribed in the rules, and fair and reasonable opportunity of being heard or on compulsory retirement or in certain circumstances, subject to the conditions like re-employment on abolition of post. In Motiram Daka v. General Manager, [1964] 5 SCR 683 at 718-721=AIR 1964 SC 600 at 608 & 609 majority of seven Judges' Bench held that a permanent post carries a definite rate of pay without a limit of time and a servant who substantively holds a permanent post has a title to hold the post to which he is substantively appointed, and that in terms, means that a permanent servant has a right to hold the post until, of course, he reaches superannuation or until he is compulsorily retired under the relevant rule. If for any other reason that right is invaded and he i....
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....at the evening of his life unless it is determined as per law. An assurance of security of service to a public employee is an essential requisite for efficiency and incorruptibility of public administration. It is also an assurance to take independent drive and initiative in the discharge of the public duties to alongate the goals of social justice set down in the Constitution. This Court in Daily Rated Casual Labour v. Union of India, [1988] 1 SCR 598--[1988] 1 SCC 122 at 130-131 further held that the right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment etc., and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of most importance. If a person does not h....
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....a towards the corrupt and tent to undermine or show signs of disrespect or disregard towards them. Thereby, they not only become inconvenient to the corrupt officer but also stand an impediment to the on-going smooth sipbony of corruption at a grave risk to their prospects in career or even to their tenure of office. The term efficiency is an elusive and relative one to the adept capable to be applied in diverse circumstances. if a superior officer develops likes towards sycophant, tough corrupt, he would tolerate him and found him to be efficient and pay encomiums and corruption in such eases stand no impediment. When he finds a sincere, devoted and honest officer to be inconvenient, it is easy to cast him/her off by writing confidential with delightfully vague language imputing to be 'not upto the mark', 'wanting public relations' etc. Yet times they may be termed to be "security risk" (to their activities). Thus they spoil the career of the honest, sincere and devoted officers. Instances either way are gallore in this regard. Therefore, one would be circumspect, pragmatic and realistic to these actualities of life while angulating constitutional validity of wide arbitrary, uncan....
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.... an enquiry or an opportunity of show cause of proposed order of termination of the service. The Indian Contract Act, 1872 operating in British India was extended to the merged States in 1949 & 1950 except to the State of Jammu & Kashmir. Therefore, after Bharat attained independence on August 15, 1947, the Indian Contract Act is applicable to all States except Jammu & Kashmir. By operation of Article 372 of the Constitution, the Indian Contract Act continues to be in operation subject to the provisions of the Constitution. The Indian Contract Act is an amending as well as consolidating Act as held in Ramdas Vithaldas Durbar v.S. Amerchand & Co., 43 Indian Appeals 164. Thereby common law principles applicable in England, if they are inconsistent with or derogation to the provisions of the Indian Contract Act or the Constitution to that extent they stand excluded. Any law, muchless the provisions of Contract Act, are inconsistent with the fundamental rights which guaranteed in Part III of the Constitution, by operation of Articles 13 of the Constitution, are void. Section 2(h) of the Indian Contract Act defines "an agreement" including an agreement of service and becomes a Contract ....
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....y often does not exists in any real sense, and that individual interests have to be made to subserve those of the community hence there has been a fundamental change both in our social outlook and in the policy of the legislature towards contract and the law today interferes at numerous points with the freedom of the parties to make what contract they like. The relation between employers and employed, for example, have been regulated by statutes designed to ensure that the employees condition of work are safe, that he is properly protected against redundancy and that he knows his terms of service. The public has been protected against economic pressure by such measures as the Rent Acts, the supply of goods (implied terms) at, the consumer Credit Act and other similar enactments. These legislative provisions will override any contrary terms which the parties may make for themselves. Further, the legislature has intervened in the Restrictive Trade Practice Act 1956 and the Fair Trading Act, 1973 to promote competition in industry and to safeguard the interests of consumers. This intervention is specially necessary today when most contracts entered by ordinary people are not the resul....
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....he same grounds once over. The learned Judge also considered the arbitrary, unfair and unbridled power on the envil of distributive justice or justness or fairness of the procedure envisaged therein. The relevant case law in that regard was dealt with in extenso in the light of the development of law in the Supreme Court of United States of America and the House of Lords in England and in the continental countries. To avoid needless burden on the judgment, I do not repeat the same reasoning. I entirely agree with the reasoning and the conclusions reached therein on all these aspects. Whether State can impose unconstitutional Conditions. 18. The problem also would be broached from the angle whether the State can impose unconstitutional conditions as part of the contract or statute or rule etc. In 1959-60 73 Harvard Law Review, in the Note under the Caption 'Unconstitutional Condition' at page 1595-96 it is postulated that the State is devoid of power to impose unconstitutional conditions in the contract that the power to withhold largess has been asserted by the State in four areas i.e., (1) regulating the right to engage in certain activities; (2) Administration of Government we....
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....9 1 at 1196) stated that the Government can make contracts that are necessary and proper for carrying out any of the specific clauses of the Constitution or power to spend for general welfare. The Federal Government has no power, inherent or sovereign, other than those specifically or explicitly granted to it by the Constitution. At page 1197, it is further stated thus: "The Government acts according to due process standards for the due process clause is quite up to that task without the rule. Alterations of Government contracts are not desirable in a free country even when they do not constitute a 'taking' of property or impinge on questions of fundamental fairness of the type comprehended in due process. The government may make changes, but only if war or commerce require them and not on the broader and more ephemeral grounds that the general welfare would be served by the change. Any other rule would allow the Government to which almost at will." 20. These principles were accepted and followed by the Andhra Pradesh High Court in V. Raghunadha Rao v. State of Andhra Pradesh, [1988] 2 A.L.T. 461 dealing with A.P. Standard specification Clauses 11, 29, 59, 62(b) and 73 and decla....
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....finition. It is valued to meet the public good or the public interest. What is public good or in the public interest or what would be injurious or harmful to the public good or the public interest vary from time to time with the change of the circumstances. New concepts take place of old one. The transactions which were considered at one time as against public policy were held by the courts to be in public interest and were found to be enforceable. Therefore, this Court held in Brojonath's case that "there has been no well-recognised head of public policy, the courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public." Lord Wright in his legal Essays and Addresses Vol. III p. 76 and 78 stated that public policy like any other branch of the common law ought to be and I think is, governed by the judicial use of precedents ..... If it is said that rules of public policy have to be moulded to suit new conditions of a changing world, that is true, but the same is true with the principles of the cannon law generally; Lord Lindley held in Janson v. Driefontein Mines Ltd., [1902] A.C.p.....
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....or rules that are derogatory to the constitution to be opposed to public policy. The rules which stem from the public policy must of necessity be laid to further the progress of the society in particular when social change is to bring about an egalitarian social order through rule of law. In deciding a case which may not be covered by authority courts have before them the beacon light of the trinity of the Constitution and the play of legal light and shade must lead on the path of justice social, economical and political. Lacking precedent, the court can always be guided by that light and the guidance thus shed by the trinity of our Constitution. Public policy can be drawn from the Constitution. 26. Sutherland, in his Statutes and Statutory Construction Third Edition Vol. 3 paragraph 5904 at page 13 1-132 has stated that the most reliable source of public policy is to be found in the federal and state constitutions. Since constitutions are the superior law of the land, and because one of their outstanding features is flexibility and capacity to meet changing conditions, constitutional policy provides a valuable aid in determining the legitimate boundaries of statutory meaning....
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....ary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions namely, rational relation and nexus the impugned legislative or executive action would plainly be arbitrary and the guarantees of equality under Article 14 would be breached. Wherever, therefore, there is arbitrariness in State action whether it be of legislature or of the executive or of an "authority" under Article 12, Article 14, "immediately springs into action and strikes down such State action." In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the constitution. 27. In Volga Tellies'Case it was held that the Constitution is not only paramount law of the land but also it is a source of sustenance of all laws. Its provisions are conceived in public interest and are intended to serve public purpose. Therefore, when the provisions of an Act or Regulations or Rules are assailed as arbitrary, unjust, unreasonable, unconstitutional, public law element makes it incumbent to consider the validity there'of on the envil of inter play o....
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....of Fundamental Rights of the Constitution must be read as an. integral whole, with possible overlapping of the subject matter of what is sought to be protected by its various provisions particularly by articles relating to fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial justice; social, economic and political, and of equality of status and opportunity which imply absence of unreasonable or unfair discrimination between individuals or groups or classes. The fundamental rights protected by Part III of the constitution, out of which Articles 14, 19 and 21 are the most frequently invoked to test the validity of executive as well as legislative actions when these actions are subjected to judicial scrutiny. Fundamental Rights are necessary means to develop one's own personality and to carve out one's own life in the manner one likes best, subject to reasonable restrictions imposed in the paramount interest of the Society and to a just, fair and re....
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....ny law or State action violating them will be struck down. The principles of natural justice, however, apply not only to the legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in Art. 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such a matter fairly and impartially." In Moti Ram Deka's case this Court already held that "the rule making authority contemplated by Article 309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants under Art. 311(2). Article 311(2) is intended to afford a sense of scrutiny to public servants who are substantively appointed to a permanent post and one of the principle benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under Art. 309 so as to make the said right either ineffective....
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.... every citizen right to avocation or profession etc., which includes right to be continued in employment under the State unless the tenure is validly terminated consistent with the scheme enshrined in the fundamental rights of the Constitution. Therefore, if any procedure is provided for deprivation of the right to employment or right to the continued employment till the age of superannuation as is a source to right to livelihood, such a procedure must be just, fair and reasonable. This Court in Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India & Ors., [1981] 2 SCR 52 at 60-61 held that Art. 19(1)(g) confers a broad and general right which is available to all persons to do works of any particular kind and of their choice. Therefore, whenever there is arbitrariness in state action--whether it be of the legislature or of the Executive or of an authority under Art. 12, Arts. 14 and 21 spring into action and strikes down such an action. The concept of reasonableness and nonarbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Therefore, the provision of the statute, the regula....
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....nbsp; "As the making of such laws and the framing of such rules are subject to the provisions of the Constitution, if any such act or rules violates any of the provisions of the Constitution, it would be void. Thus, as held in Moti Ram Deka's case AIR 1964 SC 600 if any such act or rule trespasses on the rights guaranteed to government servants by Art. 311, it would be void. Similarly, such acts and rules cannot abridge or restrict the pleasure of the President or the Governor of a State exercisable under Art. 3 10(1) further than what the Constitution has expressly done. In the same way, such Act or rule would be void if it violates any fundamental right guaranteed by part III of the Constitution." Gurdev Singh's case declares the rules that empowered to order compulsory retirement of the Government employee after putting ten years of service as ultra vires. In S.S. Muley v.J.R.D. Tata, [1979] 2 SLR 438 (Bombay) my learned brother Sawant, J. (as he then was) held that Regulation 48 which empowered the employer uncanalised, unrestricted and arbitrary power to terminate the service of an employee with notice or pay in lieu thereof without any opportunity of hearing as viola....
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....as, J. in Joint Anti Facist Refugee Commission's case (supra) held that: "This is a Government of laws not of men. The powers being used are the powers of the Government over the reputation and fortunes of citizens. In situations far less severe or important than those a party is told the nature of the charge against him." Harry W. Jones in his "Rule of law and Welfare State", 1958 Columbia Law Review, 143 at 146 stated that: "What is needed then is to make the welfare state itself a source of new "rights" and to surround the "rights" in public benefaction with legal safeguards both procedural and substantive comparable to those enjoyed by the traditional right of property in our law." Accordingly it was held that prior opportunity of hearing before denying appointment is a mandate of Art. 14 of the Constitution. In West Bengal Electricity Board & Ors. v. D.B. Ghosh & Ors., [1985] 2 SCR 1014 in similar circumstances, it was held that the regulation as "Herry VIII Clause as ultra vires of Art. 14 of the Constitution. The same principle was reiterated in Brojonath's case. In Workman of Hindustan Steel Ltd. & ....
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....ion & Ors., [1988] 1 SCR 546 & 562. In Moti Ram Deka's case this Court held that rules 148(3) and 149(3) trespassed upon the rights guaranteed to government servants by Art. 311(2) and would be void. In Kameshwar Prasad v. State of Bihar, [1962] Suppl. 3 SCR 369. Rule 4A of the Bihar Government Servants' Conduct Rules, 1956, in so far as it prohibited any form of demonstration was struck down by this Court as being violative of sub-clauses (a) and (b) of clause (1) of Art. 19. In O.K. Ghosh v. EZX Joseph, [1963] Suppl. 1 SCR 789 this Court 'struck down Rule 4A of the Central Civil Services (Conduct Rules), 1955, on the ground that it violated sub-clause (c) of clause (1) of Art. 19 of the Constitution and that portion of Rule 4A which prohibited participation in any demonstration as being violative of sub-clauses (a) and (b) of clause (1) of Article 19. It must, therefore, be hold that any act or provision therein, Rules or Regulations or instructions having statutory force violating fundamental rights under Articles 14, 16(1), 19(1)(g) and 21 are void. 33. Thus it could be hold that Art. 14 read with 16(1) accords right to an equality or an equal treatment consistent with th....
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....he duties by the government employees or employees of corporate bodies'or statutory authorities or instrumentalities under Art. 12 of the Constitution. As held in Tulsiram Patel's case the public are vitally interested in the efficiency and integrity of the public service. The government or corporate employees are, after all, paid from the public exchequer to which everyone contributes either by way of direct or indirect taxes. The employees are charged with public duty and they should perform their public duties with deep sense of responsibility. The collective responsibility of all the officers from top most to the lowest maximises the efficient public administration. They must, therefore, be held to have individual as well as collective responsibility in discharge of their duties faithfully, honestly with full dedication and utmost devotion to duty for the progress of the country. Equally the employees must also have a feeling that they have security of tenure. They should also have an involvement on their part in the organisation or institution, corporation, etc. They need assurance of service and they need protection. The public interest and the public good demand, that those ....
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....ion. 34B. Therefore, it is no well tuned solace to say that in a court of law at the fag end of the currier or after superannuation in the interregnum which often over takes the litigation, that the employee would be meted out with justice (a grave uncertainty and exposing to frustrating procrastination of judicial process and expenses and social humiliation). Before depriving an employee of the means of livelihood to himself and his dependents, i.e. job, the procedure prescribed for such deprivation must, therefore, be just, fair and reasonable under Arts. 21 and 14 and when infringes Art. 19(1)(g) must be subject to imposing reasonable restrictions under Art. 19(5). Conferment of power on a high rank officer is not always an assurance, in particular when the moral standards are generally degenerated that the power would be exercised objectively, reasonably, conscientiously, fairly and justly without inbuilt protection to an employee. Even officers who do their duty honestly and conscientiously are subject to great pressures and pulls. Therefore, the competing claims of the "public interest" as against "individual interest" of the employees are to be harmoniously blended so as ....
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....ress. In determining the meaning of statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context. It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intent of the legislature then it is proper to look for some other possible meaning then the court cannot go further. 35. Craie's Statute Law, Seventh Edition in Chapter 5, at page 64 it is stated that where the words of an Act are clear, there is no need for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute. The safer and more correct course of dealing with the question of construction is to take the words themselves and arrive, if possible, at their meaning without in the first place refer to cases. Where an ambiguity arises to supposed intention of the legislature, one of the statutory constructions, the court profounded is the doctrine. of reading down. Lord Reid in Federal Steam Navigation Co. v. Department of Trade and Industry, [1974] 2 All E.R. 97 at p. 100 (as also extracted by Cross Statutory Interpretation, Butterworths' Edition, 1976 at page 43 ....
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....s, clear that the object of reading down is to keep the operation of the statute within the purpose of the Act and consitutionally valid. In this regard it is equally of necessity to remind ourselves as held by this Court in Minerva Mills' case that when the effect of Art. 31 was asked to be read down so as to save it from unconstitutionality this Court held that it is not permissible to read down the statutory provisions when the avowed purpose is to confer power on an authority without any limitation whatever and that at p. 259D and G it was held that the principle of reading down cannot be used to distort when words of width are used even advertantly. In Elliott Ashton Welsh, II v. United States. 398 U.S. 333 (26 Lawyer's Edition 2nd, 308 at 327) Herfan, J. at 327 held that "when the plain thrust of a legislative enactment can only be circumvented by distortion to avert constitutional collision, it can only by exalting form over substance that one can justify veering of the path that has been plainly marked by the Statute. Such a course betrays extreme skepticism as to constitutionality and in this instance reflects a groping to preserve conscientious objecter exemption at all c....
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....he services of all the permanent servants to whom the Rules apply merely on giving notice for the specified period or on payment of salary in lieu thereof and that clearly amounts to the removal of the servant in question. Therefore, we are satisfied that the impugned rules are invalid inasmuch as they are inconsistent with the provisions contained in Art. 311(2). The termination of the permanent servant's tenure which is authorised by the said Rules is no more and no less than their removal from service, and so, Art. 311(2) must come into play in respect of such cases. That being so, the Rule which does not require compliance with the procedure prescribed by Art. 311(2) must be struck down as invalid." 37. I am, therefore, inclined to hold that the Courts though, have no power to amend the law by process of interpretation, but do have power to mend it so as to be in confirmity with the intendment of the legislature. Doctrine of reading down is one of the principles of interpretation of statute in that process. But when the offending language used by the legislature is clear, precise and unambiguous, violating the relevant provisions in the constitution, resort cannot be had to ....
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....ermissible to read into those provisions something which is not intended. It is undoubtedly true as rightly contended by Mr. Ashok Desai, the learned Solicitor General that the power to take appropriate and expeditious action to meet the exigencies of weeding out inefficient, corrupt, indolent officers or employees from service should be provided and preserved to the competent authority. Any action taken without any modicum of reasonable procedure and prior opportunity always generates an unquenchable feeling that unfair treatment was meted out to the aggrieved employee. To prevent miscarriage of justice or to arrest a nursing grievance that arbitrary, whimsical or capricious action was taken behind the back of an employee without opportunity, the law must provide a fair, just and reasonable procedure as is exigible in a given circumstances as adumbrated in proviso to Art. 311(2) of the Constitution. If an individual action is taken as per the procedure on its own facts its legality may be tested. But it would be no justification to confer power with wide discretion on any authority without any procedure which would not meet the test of justness, fairness and reasonableness envisag....
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....nferment of power with wide discretion without any guidelines, without any just, fair or reasonable procedure is constitutionally anathema to Arts. 14, 16(1), 19(1)(g) and 21 of the Constitution. Doctrine of reading down cannot be extended to such a situation. 41. It is undoubted that in In re Hindu Women's Right to Property Act, [1941] FCR 12 involve the interpretation of single word "property" in the context to legislative competency but that cannot be extended to the facts of these cases. R.M.D. Charnarbaugwalla's case is of severability and of a single word competition. The interpretation therein also cannot be extended to the facts of these cases. Even the case of K.N. Singh v. State of Bihar, [19621 Suppl. 2 SCR 769 involve interpretation of Section 124(A) I.P.C. in the context of freedom of speech enshrined under Art. 19(1)(a) of the Constitution. The interpretation was put as to subserve the freedom under Art. 19(1)(a). R.L. Arora v. State of U.P., [1964] 6 SCR 784 does not involve of the doctrine of reading down so as to cut down the scope of Fundamental Right. Similarly Jagdish Pandey v. Chancellor of the Bihar, [1969] 1 SCR 23 1 also does not concern with application ....
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....confidence or unsuitability to the post may be a relevant factor to terminate the services of a probationer. But it must be hedged with a bonafide over-all consideration of the previous conduct without trained with either mala-fide or colourable exercise of power or for extraneous considerations. Such actions were upheld by this Court. The action must be done honestly with due care and prudence. 43. In view of the march of law made by Art. 14, in particular after Maneka Gandhi's case, it is too late in the day to contend that the competent authority would be vested with wide discretionary power without any proper guidelines or the procedure. The further contention that the preamble, the other rules and the circumstances could be taken aid of in reading down the provisions of the impugned rules or the regulations is also of no assistance when it is found that the legislative intention is unmistakably clear, unambiguous and specific. Thus considered, I have no hesitation to conclude that the impugned regulation 9(b) of the Regulations are arbitrary, unjust, unfair and unreasonable offending Arts. 14, 16(1), 19(1)(g) and 21 of the Constitution. It is also opposite to the public pol....