TaxTMI 
TaxTMI 
2019 (10) TMI 1614
X X X X Extracts X X X X
X X X X Extracts X X X X
...., Adv., Mr. Akhil Abraham, Adv., Mr. Himinder Lal, AOR, Mr. S. Mahendran, AOR, Mr. G. Prakash, AOR, Mr. M. T. George, AOR, Ms. Susy Abraham, Adv., Mr. Johns George, Adv., Mr. Sureshan P., AOR, Mr. Utkarsh Singh, Adv., Mr. M. Gireesh Kumar, Adv., Mr. Ankur S. Kulkarni, AOR, Mr. Jogy Scaria, AOR, Mr. Saiby Jose Kidangoor, Adv., Mr. Sajith. P, AOR, Miss Ritu Reniwal, Adv., Miss Anju K. Varkey, Adv., Mr. Lakshmeesh S. Kamath, AOR, Mr. Soheb Rahman, Adv., Mr. Ramesh Babu M. R., AOR, Mr. Venkita Subramoniam T.R, AOR, Mr. Baij Nath Patel, Adv., Ms. Sweta, Adv., Romila, Adv., Mr. C. K. Sasi, AOR, Mr. P.V. Surendranath, Sr. Adv., Ms. Resmitha R. Chandran, AOR, Mr. Sawan Kumar Shukla, Adv. JUDGMENT L. NAGESWARA RAO, J. Leave granted. 1. Rehabilitation of Abkari workers is the core issue that arises in the Appeals above. Displaced workers who lost employment due to the ban of arrack in the State of Kerala, were successful in the Writ Petition filed by them. The Appeals filed by the State of Kerala and the Kerala State Beverages Corporation Limited (for short, 'the Corporation') were dismissed by a Division Bench of the Kerala High Court. Thus, the above Appeals. 2. Retail outle....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) 4 SCC 327]] 5. A list of 265 persons, who were the dependent sons of deceased arrack workers, was prepared pursuant to the Government Order dated 07.08.2004. They approached the High Court by filing a Writ Petition in which a direction was sought to the Appellant/ State to provide employment to them. The High Court directed implementation of the Government Order dated 07.08.2004, by appointing the dependent sons of the deceased arrack workers within a period of six weeks from the date of the judgment. Further, the High Court by its judgment dated 03.03.2009 directed the Government to reconsider the Order dated 07.08.2004 by which the benefit of rehabilitation was not given to all the arrack workers who remained unemployed pursuant to the ban of arrack. G.O. (Rt.) No. 399/09/TD was issued by the Government on 30.04.2009 implementing the direction issued in Writ Petition (C) No. 26878 of 2007 by appointing all 265 persons whose names were included in the list of dependent sons of deceased arrack workers. No relief was given to those workers who were jobless pursuant to the ban on arrack. G.O.(Rt) No. 562/09/TD dated 22.06.2009 was issued, citing practical difficul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion taken by the Government to provide rehabilitation was for the purpose of achieving social objectives. Concluding that the Government Order dated 07.08.2004 suffers from the vice of arbitrariness and unreasonableness, the Division Bench upheld the judgment of the learned Single Judge by which the displaced arrack workers were directed to be provided employment in the Corporation. 8. Before this Court, it was contended on behalf of the State that the Government Order dated 07.08.2004 modifying the earlier Government Order dated 20.02.2002 was due to overriding public interest. The Government found it very difficult to implement the decision to provide employment to the displaced Abkari workers in the Corporation. The number of vacancies available for daily wage workers in the year 2002 was only 51. After a detailed discussion with the stakeholders, a decision was taken to modify the Government Order dated 20.02.2002 and to provide employment only to the dependent sons of displaced Abkari workers who died after the ban on arrack. According to the State, there was no vested right in the displaced Abkari workers to claim public employment. As the decision to modify/ alter the Gov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ri workers was an invitation to the displaced workers to commit suicide. Reliance was placed by learned counsel for the Respondents on the judgment of the High Court in Writ Petition (Civil) No. 26878 of 2007 to submit that the issue pertaining to the correctness of the Government Order dated 07.08.2004 had attained finality. It was argued on behalf of the Respondents that long and several number of years had been spent by them in litigation and the majority of displaced abkari workers were still unemployed. If they could not be reemployed, they submitted that they should be monetarily compensated, at least. 10. The points that arise for our consideration in these Appeals are: (a) Whether the displaced abkari workers had a vested right of rehabilitation pursuant to the Government Order dated 20.02.2002; (b) Whether modification/ alteration of the Government Order dated 20.02.2002 is vitiated due to unfairness, arbitrariness and unreasonableness. (c) The scope of the legitimate expectation of the Respondents; and (d) Whether the Respondents are entitled to any relief after the passage of 23 years since they lost their jobs due to ban on ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ght of overriding public interest. Relevant considerations were taken into account by the Government to alter the Government Order dated 20.02.2002. B. Legitimate Expectation 13. The main argument on behalf of the Respondents was that the Government was bound by its promise and could not have resiled from it. They had an indefeasible legitimate expectation of continued employment, stemming from the Government Order dated 20.02.2002 which could not have been withdrawn. It was further submitted on behalf of the Respondents that they were not given an opportunity before the benefit that was promised, was taken away. To appreciate this contention of the Respondents, it is necessary to understand the concept of legitimate expectation. 14. The principle of legitimate expectation has been recognized by this Court in Union of India v. Hindustan Development Corporation & Ors. [(1993) 3 SCC 499] If the promise made by an authority is clear, unequivocal and unambiguous, a person can claim that the authority in all fairness should not act contrary to the promise. 15. M. Jagannadha Rao, J. elaborately elucidated on legitimate expectation in Punjab Communications Ltd. v. Union of Ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....C at p. 788]. 18. The decision makers' freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation [Findlay v. Secy. Of State of Home Deptt. (1984) 3 All ER 801]. So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated. 19. The assurance given to the Respondents that they would be considered for appointment in the future vacancies of daily wage workers, according to the Respondents, gives rise to a claim of legitimate expectation. The Respondents contend that there is no valid reason for the Government to resile from the promise made to them. We are in agreement with the explanation given by the State Government that the change in policy due was to the difficulty in implementation of the Government order dated 20.02.2002. Due deference has to be given to the discretion exercised by the State Government. As the decision of the Government to the change policy was to balance the interests of the displaced Abkari ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....migration. His appeal was dismissed by the Immigration Tribunal. The Court of Appeal of Hong Kong granted the Respondent an order of prohibition till an opportunity was given to him to explain the circumstances of his case before the Director. The Appeal filed by the Attorney General of Hong Kong was dismissed by the Privy Council. The only question raised by the Respondent in the Appeal was whether he was entitled to have a fair inquiry under common law, before a removal order was made against him. Without expressing any opinion on violation of principles of natural justice, the right of hearing of the Respondent in the peculiar facts of the case was adjudicated upon. It was held that the Respondent had a 'legitimate expectation' of being accorded a hearing before an order of removal was passed. 22. We have referred to the above judgment to demonstrate that there can be situation where the very claim made can be with regard to an opportunity not being given before withdrawing a promise which results in defeating the 'legitimate expectation'. 23. The principle of procedural legitimate expectation would apply to cases where a promise is made and is withdrawn without affording ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not, is for the Court. That is what is meant by proportionality." In this case, M. Jagannadha Rao, J. examined the development of principles of proportionality for review of administrative decision in England and in India. After referring to several judgments, it was held that the proportionality test is applied by the Court as a primary reviewing authority in cases where there is a violation of Articles 19 and 21. The proportionality test can also be applied by the Court in reviewing a decision where the challeng....
X X X X Extracts X X X X
X X X X Extracts X X X X
....yed which resulted in deprivation of their life and livelihood in violation of Article 21 of the Constitution. It was further submitted that the decision is arbitrary and hence violative of Article 14 of the Constitution. The contention of the Government was that modification of the assurance given for employment to the displaced Abkari workers was unavoidable. It was contended on behalf of the State that there is a rational connection between the measures taken to modify and the objective with which the policy was altered. The Government justified the decision by submitting that the means adopted for impairment of the rights of the Respondents were not excessive. 32. The promise held out by the Government to provide employment to the displaced Abkari workers had become an impossible task in view of the non-availability of vacancies in the Corporation. The decision taken by the Government in overriding public interest was a measure to strike a balance between the competing interest of the displaced Abkari workers and unemployed youth in the State of Kerala. The impairment of the fundamental rights of the Respondents due to the change in policy cannot be said to be excessive. Hen....