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TMI Blog1990 (9) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Road Transport Act, 1950 read with Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. (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 reduction of establishment or in circumstances other than those mentioned in clause (a) above, one month's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonable 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 by Standing Order 32, it could not be said that the dismissal was unjustified, and that if there were allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,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 in that case that Regulation 34 was arbitrary in nature and suffered from the vice of enabling discrimination. The High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regarding the' President's control over the working of the Corporation. Article 47 provided for appointment of the auditors of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an unconscionable term in a contract of employment entered into with the Corporation was void under Section 23 of the Contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gains 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, reiterated that this principle would not apply where the bargaining power of the contracting parties is equal or almost equal. This principle would not apply where both parties are businessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 was to exercise that power. While the Rules provided for four different modes in which the services of a permanent employee could be terminated earlier than his attaining the age of superannuation, namely, Rules 9(i), 9(ii), 36(iv)(b) read with 38 and 37, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 employment be equated with a mercantile transaction between two businessmen much less when the contract of employment was between a powerful employer and a weak employee. Although it was reiterated that the aforesaid rule 9(i) was supported by mutuality inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 and the contract was not for a fixed period, the law implied an obligation to give a reasonable notice. Where no notice in the first case or no reasonable notice in the second case was given and the contract was wrongfully terminated, such wrongful termin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyee 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 that the anxiety of the Legislature to effectively achieve the object of duly protecting the workmen against victimisation of unfair labour practice consistently with the preservation of the employer's bona fide right to maintain discipline and efficiency in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, [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 are inefficient, dishonest or corrupt or have become a security risk should not continue in service and that the protection afforded to them by the Acts and the Rules made under Article 309 and by Article 311 of the Constitution be not abused by them to the detrim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recognised that a public corporation requires protection from employees who are inefficient or those who lacked probity or even made faulty policy decisions. Reference was made to the decision of this Court in O.P. Bhandari v. 1. T.D.C. & Ors., [1986] 4 SCC 337 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is whether it is the very existence of power which is bad or the exercise is bad in any specific case. It was submitted that the Court would be entitled to obtain guidance from the preamble, the policy and the purpose of the Act and the power conferred under it and to see that the power is exercised only for that purpose. It was submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned 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 Sections 18 and 19 of the Road Transport Corporation Act, 1950); Section 53 (equivalent to 45 of the Road Transport Corporation Act, 1950); the context of Regulation 9(b) read with 9(a) and 15. Even for the exercise of this power, reasons could be recorded although they need not be communicated. This will ensure according to the Solicitor General, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 at pages 26 and 27 of the Report as follows: "No doubt if the Act does affect agricultural land in the Governors' Provinces, it was beyond the competence of the Legislature to enact it: and whether or not it does so much depend upon the meaning which is to be given to the word 'property' in the Act. If that word necessarily and inevitably comprises a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Constitution. See the observations of this Court at p. 797 of the said report. The technique of reading down has been adopted in numerous cases to sustain the validity of the provision. For example, in Jagdish Pandey v. The Chancellor, University of Bihar & Anr., [1968] 1 SCR 23 1, at pages 236-37, this Court made resort to section 4 of the Bihar St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 reasons and conditions of its exercise can be spelt out and it may be so construed. He submitted that it should be spelt out that the regulation requires reasons to be there, reasons which are germane and relevant. The principles of natural justice or holding of an enquiry is neither a universal principle of justice nor inflexible dogma. The principles of nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 100-102. According to Shri Ramamurthi these decisions are authority for the following propositions: (a) The declarations in the provisions contained in the Fundamental Rights Chapter involve an obligation imposed not merely upon the "State" but upon all persons to respect the rights declared, unless the context indicates otherwise, against every person or agency seeking to infringe them. See t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. See the observations of this Court in Bandhua Mukti Morcha v. Union of India & Ors., [1984] 2 SCR 79 at 101. A violation of a principle of natural justice by State action is a violation of Article 14 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 British India before the Constitution came into force would be void by reason of Article 13 of the Constitution if it infringed any of the fundamental rights contained in Part III of the Constitution, pleaded Mr. Ramamurthi before us. Under Section 2(h) of the Indian Contract Act, 1872 an agreement (including an agreement of service) becomes a contract only when it is enforceable by law. If it is not enforceabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 temporary servants could be recruited, there could be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different from those of permanent employees. It is thus apparent that this Court, it was submitted, had no occasion to consider the reasonableness of a provision for termination of service on giving notice under Article 14 of the Constitution and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 present case, where the validity of a term of employment, permitting the employer to terminate the services of a permanent employee by simply giving notice, is challenged on the ground that such a term violates fundamental rights guaranteed by Articles 14, 19(1)(g) and 21 of the Constitution. It was submitted further that the constitutional guarantees under Articles 14 and 21 of the Constitution are for all persons and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stri 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 in Balbir Saran Goel's case (supra). This rule, it has to be borne in mind, according to him, has been interpreted as applicable to all cases of termination including termination for misconduct as defined in the Standing Orders. In the aforesaid decision, at p. 761 of the report. this Court observed that: "Regulation 9(b) clearly provides for termination of services in two modes: the first is where the services may be te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 permissible, it can be only in very exceptional cases and that too after observing at least the elementary principle of natural justice of asking for explanation before terminating the services and also recording reasons. Shri Ramamurthi urged that to read all this into the regulations would literally mean re-writing the regulations which is not permissible under any of the decisions or the law. As one of the cases cover termination under The Punjab Civil Services Rules, 1952, Shri Ramamurthi dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 inflict, were necessary in public interest and to save the Society. Mr. Garg submitted that the rule of law cannot be preserved if absolute, uncontrolled powers are tolerated and fundamental rights or Directive Principles are allowed to be reduced to a "dead letter". Mr. Garg urged that the fundamental requirements of natural justice are not dispensible luxury. The express language of Para 522 of the Shastri Award is totally destructive of this requirement. The express language as mentioned her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Crown" in case of Government servants, who held office during the pleasure of the King who had absolute powers over his subjects. Articles 14, 19(1)(g) and 21 secure the rights of the citizen and act as limits on the powers of the "State" in Democratic Republic of India. Unjust, arbitrary, uncontrolled power of "premature" termination of services of permanent employees should not be tolerated according to Mr. Garg by the Constitution of free India. In case of Government servants, Articles 311(1) and 311(2) of the Constitution expressly restrict the "doctrine of pleasure" contained in Article 310. Article 14 also insists on natural justice as was provided in Article 311(2), in order to prevent arbitrary use of power of termination. Articles 19(1)(g) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 whatsoever. It cannot be done without overruling Moti Ram Deka's case or without an express constitutional provision like second Proviso (a), (b) or (C) to Article 311(2), which was adopted.by the Constituent Assembly, not by a court of law, it was reiterated before us. It was submitted that no principle of interpretation permits reading down a provision so as to make it into a different provision altogether different from what was intended by the legislature or its delegate. (R. M.D.C. 's case (supra). It was urged that it was established law that on reading down a provision, Court cannot preserve a power for a purpose which is just the opposite of what the legislature had intended. Para 522 of the Shastri Award was not at all intended to be used within limits expressed or implied. The Court must not legislate conditions such as were adopted by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot 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 Council in Nazir Ahmed's case [AIR 1936 PC 253]. He submitted that if two provisions exist, firstly, to remove from service after holding an enquiry on a charge of a 'misconduct'; and secondly without serving a charge-sheet or holding an enquiry all provisions for holding enquiry will be rendered otiose and will be reduced to a mere redundancy. Such an interpretation will expose workers to harsher treatment than those guilty of misconduct, who will enjoy greater protection than those who have committed no misconduct. Such powers are patently discriminatory. Reference under section 10 of the Industrial Disputes Act would serve no purpose, submitted Mr. Garg. Court has a duty, according to him. to correct wrongs even if orders have been made which are later found to be violative of any fundamental right and to recall its orders to avoid injustice. He referred to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, 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 311(2) of the Constitution was not applicable. Consequently, the second proviso thereof was also not applicable, with the result that Article 14 of the Constitution fully applied to them and it included the principles of natural justice as held in Tulsi Ram Patel's (supra) itself at p. 233, last paragraph. Mr. Rao submitted that it is not permissible to read down statutory provisions when the avowed purpose is to confer power on an authority without any limitation whatever. That would be reading down contrary to the expressed or manifest intention of the legislature. He drew our attention to the observations of this Court in Minerva Mills Limited v. Union of India & Ors., [1981] 1 SCR 206 at 261. Therein, at p. 259 of the report, it was reiterated that the principles of reading down could not be distorted even when words of width are used inadvertently. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the said decision did not involve cutting down the scope of a fundamental right. He also drew our attention to the decision of this Court in Jagdish Pandey v. The Chancellor, University of Bihar (supra) which did not involve reading down so as to sacrifice the principle of natural justice which are considered an essential part of the rule of law. In Municipal Committee, Amritsar & Anr. v. State of Punjab & Ors., [1969] 3 SCR 447, this Court was concerned with the intention of the legislature and interpreted the Act consistent with the said intention. In the instant case. the intention was to confer power of termination of services of all categories of employees without any further enquiry. Sunil Batra v. Delhi Administration (supra) was again a decision where this Court found that the intention of the legislature was not to confer arbitrary power. In the instant case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Statutory Rules, known as District Board Rules, 1926. According to the respondent, the appellant did not cooperate inasmuch as he was not available in the Headquarters and presumably left without permission and without handing over important record and documents of the District Board, etc. But the appellant's version, as stated in the grounds of appeal, was entirely different. He urged that it was on account of vindictive attitude on the part of some of the employees of the respondent, which had produced his termination order without enquiry. The District Board resolved that in terms of condition 4 of the terms of appointment, his services should be terminated on one month's notice or pay in lieu thereof. Mr. Nayar submitted that rule 1(i) of District Board Rules, 1926, Part V also gave right to both the parties to terminate the contract of employment on one month's notice, etc. The said rule reads as follows: "In the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 he had argued that it was not meant to be effective after the appellant had been confirmed. Aggrieved by the order mentioned above, the appellant had filed Letters Patent Appeal before the Division Bench of the High Court. The Division Bench of the High Court by an order dated 13th September, 1972 referred the question of law for the decision of the full bench. The full bench of the High Court refrained the question of law as under: "Whether, the termination of services of a permanent District Board Employee by giving him one month's notice or pay in lieu thereof in terms of the conditions of his appointment and/or rule 1 in part V-A of the District Board Rules, 1926, is bad in law and cannot be made? The majority of the learned Judges, inter alia, held that the appellant not being a government servant cannot have the protection of Article 311 of the Constitution as he was not a civil servant under the Central Government of the State Government. He was an employee of the District Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant vide order dated 28th October, 1974 and this appeal to this Court arises from this order. The appellant in Civil Appeal No. 1115/76, who appeared in person before us reiterated the relevant facts and urged that his removal was bad and the rule under which he was removed may be quashed. It may be mentioned that as regards letter of Shri Kuldip Singh Virk to the Senior Superintendent of Police, Ferozepure regarding the charges of corruption against the appellant, a case under s. 5(2) of the Prevention of Corruption Act was registered. The appellant was tried for the said alleged offence and acquitted of the charges by the Special Judge Ferozepure. A further case was registered under ss. 381/ 409 of IPC against the appellant. Accordingly, the appellant was tried by the Judicial Magistrate Ferozepure. The charge was framed by the Judicial Magistrate against the appellant. Against the aforesaid, the appellant filed a petition in the High Court and the charge and the proceedings in question were thereupon quashed by the High Court in July/August, 1967. There were three more cases tried by the Special Judge, Ferozepure and acquitted. The appellant filed a document in this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 946, which applies to all industrial establishments whether in the public or private sector. Under and as a part of the said Act, model standing' orders are set out and Standing Order No. 13 provides for simple termination of employment by giving one month's notice etc. Similarly, there are provisions under various Shops and Establishments Acts of different States providing for termination of employment of permanent employee after giving one month's notice or pay in lieu of notice. Attention of this Court was invited to s. 30 of Delhi Shops and Establishments Act. The Industrial Disputes Act itself makes distinction between discharge and dismissal and attention of this Court was invited to s. 2(00) of the Industrial Disputes Act, which defines 'retrenchment'. This section expressly excludes termination of services as a result of nonrenewal of contract of employment. Section 2(s) of the Industrial Disputes Act defines 'workman' to include any person who has been dismissed, discharged or retrenched. Section 2A distinguishes discharge, dismissal and retrenchment. It is pertinent to point out that the Original Regulation 13 of Indian Airlines Employees Service Regulations was set out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urged that these are eventualities which do not constitute misconduct and yet retention of an employee in the service by the management for any one of the grounds mentioned in the aforesaid Regulation might be considered as detrimental for the management or against public interest. Mr. Bhasin submitted that the power has been vested with the Board of Directors and not with any individual. According to Mr. Bhasin, plain reading of Regulation 13, as amended, would clearly establish that the vice. if any, or arbitrariness is completely removed and sufficient guidelines are made available to the highest functionary, namely, the Board of Directors to exercise the restricted and limited power now available to the employer under these Regulations. Similar submissions have been made on behalf of Air India, who are interveners. Submissions made hereinbefore were alternative submissions. The original Regulation 48 of Air India Employees Service Regulations was as follows: "Termination .' The services of an employee may be terminated without assigning any reason, as under: (a) of a permanent employee by giving him 30 day's notice in writing or pay in lieu of notice; (b) of any employee on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the services of an employee could be terminated by way of discharge simpliciter and without holding enquiry. These are eventualities which do not constitute misconduct and yet retention of an employee in the service of the management for any one of the grounds mentioned in the said Regulation might be considered as detrimental for the management or against public interest. It was submitted that the said regulation 48 has to be read with Regulation 44(A) which reads as under: "44(A)(i) Notwithstanding anything contained in these Regulations and if, in the opinion of the Corporation (the Board of Directors of Air India), it is not possible or practicable to hold an enquiry under the relevant provisions of these Regulations, the Corporation may, if satisfied that the employee has been guilty of any misconduct, any one of the punishment mentioned in Regulation 43 on the employee concerned. Provided that before exercising his extra ordinary power, the Board shall give 30 days prior notice to the employee concerned of the act of misconduct that the reasons why it is not possible or practicable to hold an enquiry into such misconduct, and the punishment proposed by the Board and the em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace in 1972 as aforesaid. Section 7(1) of the said Act which provided for the takeover of former employees reads as under: "Every whole-time officer or other employee of an existing Insurer other than an Indian Insurance Company, who was employed by that insurer, wholly or mainly with his general insurance business immediately before the appointed day, shall, on the appointed day, become an officer or other employee, as the case may be, of the Insurance Company, in which the Undertaking to which the service of the officer or other employee relates has vested and shall hold his office or service on the same terms and conditions and with the same rights to pension, gratuity and other matters as would have been admissible to him if there had been no such vesting and shall continue to do so until his employment in the Indian Insurance Company in which the undertaking or part has vested, is terminated or until his remuneration, terms and conditions are duly altered by that Indian Insurance Company." The original terms and conditions had not been altered and the employees like the appellant in C.A. No. 855/84 continued to be governed by the original terms and conditions of the contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed situation. It is seen that the power to terminate an employee is co-existent with the power to appoint. Smt. Shyamla Pappu relied on the General Clauses Act and submitted that the Central Inland Water's case (supra) was erroneous in so far as it made a complete negation of this power. Then, it was submitted by her that in case of an employer who had made all the necessary investigation and the employee concerned has been fully heard before the order 01' termination and if the decision of Central Inland Water's case was applied, then even such a case would be a case of illegal termination, considering that there would be no power to terminate. It was submitted that the Central Inland Water's case had to be read down because paras 77, 92 and 93 of the report take in even private employment. The sweep of the judgment cannot hold good and had to be curtailed. According to Smt. Pappu, what then was the position of terminations effected when the law was different? It cannot be said that they are entitled to relief now. It should be clarified that the judgment of this Court would apply prospectively, it was submitted. Past cases might be treated as concluded in view of the law prevail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionship. It is true that. the law has travelled in different channels, government servants or servants or employees having status have to be differentiated from those whose relationships are guided by contractual obligations. But it has to be borne in mind that we are concerned in these matters with the employees either of semi-Government or statutory corporations or public undertakings who enjoy the rights. privileges. limitations and inhibitions of institutions who come within the ambit of Article 12 of the Constitution. It is in the background of these parameters that we must consider the question essentially and basically posed in these matters. The basic and the fundamental question to be judged is. in what manner and to what extent, the employees of these bodies or corporations or institutions could be affected in their security of tenure by the employers consistent with the rights evolved over the years and rights emanating from the philosophy of the Constitution as at present understood and accepted. We have noted the exhaustive and the learned analysis of the background of the diverse facts projected in the several cases and appeals before us. Efficiency of the administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quickly, objectively and independently. Power must be assumed with certain conditions of duty. The preamble, the policy, purpose of the enacting provision delimit the occasions or the contingencies for the need for the exercise of the power and these should limit the occasions of exercise of such powers. The manner in which such exercise of power should be made should ensure fairness, avoid arbitrariness and mala fide and create credibility in the decisions arrived at or by exercise of the power. All these are essential to ensure that power is fairly exercised and there is fair play in action. Reasons, good and sound, must control the exercise of power. We have noted the rival submissions. Learned Attorney General of India and the learned Solicitor General and others appearing those who sought for sustaining the power by the employers or the authorities, contend that for efficiency of the industry, for the attainment of the very purpose for which institutions are created, there should be power to terminate the employmentof undesirable, inefficient, corrupt, indolent, disobedient employees in those cases where holding of enquiry or prolonging these employees for that purpose would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nhibitions be read. We have been tempted to read down in the path of judicial law making on the plea that legislature could not have intended to give powers to the authorities or employers which would be violative of fundamental rights of the persons involved in the exercise of those powers and, therefore, should be attributed those powers on conditions which will only make these legal or valid. Our law making bodies are not law into themselves and cannot create or make all laws. They can only confer powers or make laws for the conferment of powers on authorities which are legal and valid. Such powers conferred must conform to the consitutional inhibitions. The question, therefore, is--is it possible or desirable to read down the power conferred under Regulation 9(b) or similar regulations permitting employer or the authority to terminate the employment of the employees by giving reasonable notice or pay in lieu of notice without holding enquiry with the conditions indicated or mentioned hereinbefore? Will it or will it not amount to making laws of stating which the legislature or the law making body has not stated? We have been reminded that judges should not make laws. But the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of 'hire and fire' and the theory of the concept of unequal bargain and the power conferred subject to constitutional limitations would not be applicable. We are not impressed and not agreeable to accept that proposition at this stage of the evolution of the constitutional philosophy of master and servant framework or if you would like to call it employer or employee relationship. Therefore, these conferments of the powers on the employer must be judged on the constitutional peg and so judged without the limitations indicated aforesaid, the power is liable to be considered as arbitrary and struck down. Whenever a statute comes up for consideration, it must be remembered that it is not within human powers to ,foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language, and for that matter any language in use today, is not an instrument of mathematical precision. It has been said that our literature would have been much the poorer if it were Leaving, however the question of richness or poverty of our literature apart, we must proceed on the assumption that human mind cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid law to confer power validly or which will be valid. The freedom, therefore, to search the spirit of the enactment or what is intended to obtain or to find the intention of the Parliament gives the Court the power to supplant and supplement the expressions used to say what was left unsaid. This is a power which is an important branch of judicial power, the concession of which if taken to the extreme is dangerous, but denial of that power would be ruinous and this is not contrary to the expressed intention of the legislature or the implied purpose of the legislation. It was not as Shri Ramamurthi tried to argue that legislature wanted to give an uncontrolled and absolute power to discharge employees on the part of the employers without any enquiry in all circumstances. That cannot be and that was not intended to be as can be implied from all the circumstances. In the aforesaid view of the matter, I would sustain the constitutionality of this conferment of power by reading that the power must be exercised on reasons relevant for the efficient running of the services or performing of the job by the societies or the bodies. It should be done objectively, the reasons should be rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perience and knowledge of law, with the assistance of lawyers trained in this behalf, should endeavour to find out what will be the correct and appropriate solution, and construe the rule of the legislation within the ambit of constitutional limitations and upon reasonable judgment of what should have been expressed. In reality, that happens in most of the cases. Can it be condemned as judicial usurpation of law-making functions of the legislature thereby depriving the people of their right to express their will? This is a practical dilemma which Judges must always, in cases of interpretation and construction, face and a question which they must answer. I have noted the guidelines for the exercise of the power, preamble, relevant sections from which the reasons should be inferred and recorded, although they need not be communicate. These should be recorded in order to ensure effective judicial review in a given case. Termination simpliciter under Regulation 9(b) or similar powers can be exercised only in circumstances other than those in regulation 9(a). The exercise of such powers can only be for purposes germane and relevant to the statute. There are several illustrations of tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to Elliott Ashton Welsh, II v. United States, 398 US 333; 26 L.Ed. 2d 308 is inept in the background of the principles we are confronted with. The plain thrust of legislative enactment has to be found out in the inarticulate expressions and in the silence of the legislation. In doing so, to say what the legislature did not specifically say, is not distortion to avert any constitutional collision, In the language of the relevant provisions with which we are confronted, I do not find that intention of the legislature to flout the constitutional limitations. I am also unable to accept the contention of Mr. Garg as well as Mr. Ramamurthi that it is clear as a result of the constitutional position of the security of tenure of the employees as well as the expressed language of the provisions of several enactments that there is no valid power of the termination of employment of the permanent employees without holding an enquiry or giving an opportunity to the employees to rebut the charges on the grounds of termination in all circumstances. It was contended, as I have noted, by Shri R.K. Garg that no principle of interpretation permitted reading down a provision so as to make it into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry in the stated contingencies and this would be by either virtue of the silence of the provision indicating the contingencies of termination or by virtue of constitutional inhibitions. That reading would not violate the theory that judges should not make laws. In the aforesaid view of the matter, I direct that whenever question of exercise of the power of termination of permanent employees by reasonable notice without holding any enquiry arises, the extent of the power should be read in the manner indicated above and we reiterate that such powers can be exercised for the purposes of the Act which will be determinable by the preamble and by relevant enacting provisions and the contingencies for the exercise of the power must be specified and powers should be exercised by authority competent and independent enough and should be articulated by reasons stated even if not communicated. These are the limitations inherent and latent in the framework of our Constitution and the power with these limitations is valid. Having regard to the aforesaid view, I will have to dispose of the appeals in terms of the aforesaid principles. Next the question arises--what would be the position of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases by not 'what has been' but 'what may be'. This is the role and purpose of constitutional interpretation by the apex Court of the country. I know that this view of mine is not shared in this decision by my learned brothers. I respect their views, but I would like to hope that one day or the other this Court would be mature enough to fulfil what is purposeful and I believe to be the true role and purpose of the Court in interpretation in the light of constitutional inhibitions. Having had the advantage of the views of my learned brothers, I regret, with respect, I cannot join them in their views. I am the loser for the same, but I will fondly hope only for the time being. I believe that we must do away with 'the childish fiction' that law is not made by the judiciary. Austin in his Jurisprudent at page 65, 4th edn. has described the BIackstone's principle of finding the law as 'the childish fiction'. Chief Justice K. Subba Rao in I.C. Golak Nath & Ors. v. State of Punjab & Ant'., [1967] 2 SCR 762 at p. 811 has referred to these observations. This Court under Article 14 1 of the Constitution is enjoined to declare law. The expression 'declared' is wider than the words 'found or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shri Prem Singh) should be placed before the division bench of this Court to be disposed of in accordance with the observations made herein and in accordance with law. The appeals I would dispose of accordingly. Intervention of the parties are allowed and the C.M.Ps. are disposed of in the aforesaid terms. RAY, J. I have had the privilege of deciphering the judgment rendered by the learned Chief Justice. As the question involved in these groups of appeals for decision is very important, it is deemed necessary to express my views on this important matter. The pivotal question which arises for consideration is whether Regulation 9(b) of the Regulations framed under section 53 of the Delhi Road Transport Act, 1950 which provides for termination of services of permanent employees on giving simply one month's notice or pay in lieu thereof without recording any reason therefore in the order of termination is arbitrary, illegal, discriminatory and violative of Audi Alteram Partern Rule and so constitutionaly invalid and void. It is also necessary to consider in this respect whether the said Rule 9(b) can be interpreted and read down in such a manner to hold that it was not discriminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y valid. It will be seen that there is guidance for exercise of this power in the regulation itself. It has also been submitted in this connection by the learned Attorney General that a provision of the Constitution has to be presumed to be valid unless it is proved by the other side challenging the constitutional validity of such a provision that the same is arbitrary and so void. Several authorities have been cited at the Bar on this point. It is profitable to refer to the earlier pronouncements of this Court on this crucial question. Rules 148(3) and 149(3) in contravention of the provision of Article 14 of the Constitution were challenged before this Court in the case Moti Ram Deka etc. v. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., [1964] 5 SCR 683. Rule 148(3) of the Railways Establishment Code is set out here under: "148(3) "Other (non-pensionable) railway servants: The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not however required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has been further held that it is now well settled that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. Thus, to pass the test of permissible classification two conditions must be fulfilled, namely, that (i) That the classification must be rounded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. It has also been held that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. This Court observed in Jyoti Pershad v. The Administrator For the Union Territory of Delhi, [1962] 2 SCR 125 while holding that Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956, was not obnoxious to the equal protection of laws guaranteed by Art, 14 of the Constitution, there was enough guidance to the competent authority in the use of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a quasi judicial power 'is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice X X X X X X X X X X X X X X X X X X 48. Termination: The service of an employee may be terminated without assigning any reason, as under: (a) of a permanent employee by giving him 30 days' notice in writing or pay in lieu of notice; (b) of an employee on probation by giving him 7 days' notice in writing or pay in lieu of notice; (c) of a temporary employee by giving him 24 hours' notice in writing or pay in lieu of notice. In this case the complainant, V.A. Rebello was dismissed from service under Regulation 48 by paying salary of 30 days in lieu of notice. The order does not suggest any misconduct on behalf of the complainant and it is not possible to hold that the order was passed on any misconduct. This has been challenged by the complainant by filing a complaint before the National Industrial Tribunal. Under Section 33-A of the Industrial Disputes Act, 1947 the order was challenged as amounting to dismissal from service. The Tribunal held in its award that the discharge of the respondent is not a discharge simpliciter but in breach of section 33-A of Industrial Disputes Act and as such directed the complaint to be considered on the merits. On appeal by Special Leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminating the services of his employee. Such reasons apart from misconduct may, inter alia, by want of full satisfaction with his overall suitability in the fact that the employer is not fully satisfied with the overall result of the performance of his duties by his employee does not necessarily imply misconduct on his part." In the case of Maneka Gandhi v. Union of India, [1978] 2 SCR 62 1. The petitioner was issued a passport on June 1, 1976 under the Passport Act, 1967. On the 4th July, 1977, the petitioner received a letter dated 2nd July, 1977, from the Regional Passport Officer, Delhi, intimating to her that it was decided by the Government of India to impound her passport under s. 10(3)(c) of the Act "in public interest." The petitioner was required to surrender her passport within 7 days from the receipt of that letter. The petitioner immediately addressed a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for making the order as provided in Section 10(5), reply was sent by the Government of India, Ministry of External Affairs on 6th July 1977 stating inter alia that the Government decided "in the interest of the general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest cannot invalidate the law itself. The orders under Section 10(3) must be based upon some material even if the material concerns in some cases of reasonable suspicion arising from certain credible assertions made by reliable individual. In an emergent situation, the impounding of a passport may become necessary without even giving an opportunity to be heard against such a step which could be reversed after an opportunity is given to the holder of the passport to show why the step was unnecessary. It is well-settled that even if there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. An order impounding a passport must be made quasi-judicially. This was not done in the present case. It cannot be said that a good enough reason has been shown to exist for impounding the passport of the petitioner. The petitioner had no opportunity of showing that the ground f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid as it was not passed by the competent authority as envisaged by the Standing Order and that the so called Executive Assistant to the General Manager had no authority to terminate her services because no validly sanctioned post of that designation existed on 20th or 23rd January, 1968. It was also contended that the aforesaid oders besides being mala fide was violative of the principles of natural justice in as much as the same was passed without holding any enquiry. The Labour Court dismissed the application. The respondent's appeal before the President of the Industrial Court was however allowed. The Industrial Court held that the impugned orders bore only the initials of the Central Manager and therefore it was passed by an authority which was lacking in authority, the wording "unsatisfactory service record" cast a stigma and was patently punitive attracting the non-observance of Standing Order No. 26 which did not create an absolute right in the management to terminate the services of an employee for misconduct without holding an enquiry or giving her a fair opportunity of being heard. A Writ application filed by the appellant was dismissed holding inter alia that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, her record of service was unsatisfactory that her service was terminated by the management under Standing Order 26. The appellant produced satisfactory evidence to show that the impugned order terminating the service of the respondent was justified and hence the impugned order must be sustained despite its having been passed without complying with the requirements of clause (2) of Standing Order 21 read with Standing Order 23. This decision has been made in the special facts and circumstances in that particular case. In the case of Manohar P. Kharkhar And Anr. v. Raghuraj & Anr., [1981] 4 LLJ 459 the petitioners challenged the order of termination of services dated 29.4. 1981, under Regulation 48 of Air India Employees' Service Regulations. The petitioner No. 1 was The Director of Engineering and the Head of the Engineering Department while the petitioner No. 2 was Deputy Director of Engineering (Maintenance) and the Head of the Maintenance Division of the Air India Corporation. The Chairman and Managing Director of the said Corporation lost confidence in their ability and suitability to hold such important posts of Head of Departments which were reasonable for maintenance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey v. J.R.D. Tata & Ors., [1979] 2 SLR 438 constitutionality came up for consideration and this Court held the said Regulation 48 to be discriminatory and void as it gives unrestricted and unguided power on the Authority concerned to terminate the services of a permanent employee by issuing a notice or pay in lieu thereof without giving any opportunity of hearing to the employee concerned and thereby violating the principles of natural justice and also Article 14 of the Constitution. In West Bengal State Electricity Board & Ors. v. Desh Bandhu Ghosh and Others, [1985] 3 SCC 116 the first respondent, a permanent employee of the West Bengal State Electricity Board, filed the writ petition out of which the appeal arises in the Calcutta High Court to quash an order dated March 22, 1984 of the Secretary, West Bengal State Electricity Board terminating his services as Deputy Secretary with immediate effect on payment of three months' salary in lieu of three months' notice. The order was made under Regulation 34 of the Board's Regulations which enables the Board to terminate the services of any permanent employee 'by serving three months' notice or on payment of salary for the correspond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y imposition of penalty of dismissal without the disciplinary enquiry as contemplated by Standing Order 31 is illegal and invalid. It was further held that :- "A Standing Order which confers such arbitrary. uncanalised and drastic power to dismiss an employee by merely stating that it is inexpedient or against the interest of the security to continue to employ the workman is violative of the basic requirement of natural justice inasmuch as that the General Manager can impose penalty of such a drastic nature as to affect the livelihood and put a stigma on the character of the workman without recording reasons why disciplinary inquiry is dispensed with and what was the misconduct alleged against the employees. It is time for such a public sector undertaking as Hindustan Steel Ltd. to recast S.O. 32 and to bring it in tune with the philosophy of the Constitution failing which it being other authority and therefore a State under Art. 12 in an appropriate proceeding, the vires of S.O. 32 will have to be examined. It is not necessary to do so in the present case because even on the terms of S.O. 32, the order made by the General Manager is unsustainable." In the case of Tata Oil Mill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in lieu thereof." It has been observed by this Court: "This rule cannot co-exist with Articles 14 and 16(1) of the Constitution of India. The said rule must therefore die, so that the fundamental rights guaranteed by the aforesaid constitutional provisions remain alive. For otherwise. the guarantee enshrined in Articles 14 and 16 of the Constitution can be set at naught simply by framing a rule authorizing termination of an employee by merely giving a notice. In order of uphold the validity of the rule in question it will have to be held that the tenure of service of a citizen who takes up employment with the State will depend on the pleasure or whim of the competent authority unguided by any principle or policy. And that the services of an employee can be terminated though there is no rational ground for doing so. even arbitrarily or capriciously. To uphold this right is to accord a "magna carta" to the authorities invested with these powers to practice uncontrolled discrimination at their pleasure and caprice on considerations not necessarily based on the welfare of the organisation but possibly based on personal likes and dislikes, personal preferences and prejudices. An em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Bengal and Assam. Article 47 provided for appointment and reappointment of the auditors of the Corporation to be made by the Central Government on the advice of the Comptroller and AuditorGeneral of India and the nature of control to be exercised by the Comptroller and Auditor-General in the matter of audit and accounts. Article 51-A entitled the President to call for returns, accounts etc. of the Corporation. The respondents in the two appeals were in the service of the said company. Their appointment letters were in a stereotype form under which the Corporation could without any previous notice terminate their services. A Scheme of Arrangement was entered into between the Corporation and that company for dissolution of the latter and takeover of its business and liabilities by the former. The Scheme inter alia stipulated that the Corporation shall take as many of the existing staff or labour as possible and that those who could not be taken over shall be paid by the concerned company all moneys due to them under the law and all legitimate and legal compensations payable to them either under Industrial Disputes Act or otherwise legally admissible and that such moneys shall be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions and particularly the provisions relating to Fundamental Rights in Part III and is exercisable in accordance with and for the furtherance of the Directive Principles of State Policy. Rule 9(i) can aptly be called the 'Henry VIII Clause'. It confers an absolute. arbitrary and unguided power upon the Corporation. It does not even state who on behalf of the Corporation is to exercise that power. While the Rules provide for four different modes in which the services of a permanent employee can be terminated earlier than his attaining the age of superannuation, namely, Rules 9(i), 9(ii). 36(iv)(b) read with Rules 38 and 37. Rule 9(i) is the only rule which does not state in what circumstances the power conferred by the rule is to be exercised. Thus even where the Corporation could proceed under Rule 36 and dismiss an employee on the ground of misconduct after holding a regular disciplinary inquiry, it is free to resort instead to Rule 9(i) in order to avoid the hassle of an inquiry. No opportunity of a hearing is at all to be afforded to the permanent employee whose service is being terminated in the exercise of this power. It thus violates audi alteram partent rule of natural jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purported order as required under Article 14 of the Constitution was neither raised nor considered in this case. In L. Michael & Anr. v. M/s Johnston Pumps India Ltd., (supra) the services of the appellant, an employee of the respondent, were terminated by the latter giving him one month's notice as per. the standing orders without assigning any reasons for the termination. An industrial dispute was referred to the Labour Court. The management alleged that the employee misused his position by passing an important and secret information about affairs of the company to certain outsiders, that even after he was transferred to another section he made attempts to elicit information from the section with a view to pass it on to outsiders, and that therefore, the management lost confidence in the employee and terminated his services by a bona fide order. The Labour Court confirmed the order. On appeal this Court set aside the order holding that the Labour Court has misled itself on the law. This Court directed reinstatement of the employee with all back wages. The manner of dressing up an order does not matter. The Court will lift the veil to view the reality or substance of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntracts, 25th Edition, Volume 1: "These ideas have to a large extent lost their appeal today. 'Freedom of contract', it has been said, 'is a reasonable social ideal only to the extent that equality of bargaining power between contracting parties can be assumed, and no injury is done to the economic interest of the community at large.' Freedom of contract is of little value when one party has no alternative between accepting a set of terms proposed by the other or doing without the goods or services offered. Many contracts entered into by public utility undertakings and others take the form of a set of terms fixed in advance by one party and not open to discussion by the other. These are called 'contracts d'adhesion' by French lawyers. Traders frequently contract, not on individually negotiated terms, but on those contained in a standard form of contract settled by a trade association. And the terms of an employee's contract of employment may be determined by agreement between his trade union and his employer, or by a statutory scheme of employment. Such transactions are nevertheless contracts notwithstanding that freedom of contract is to a great extent lacking." This Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. Regulation 9(b), therefore, confers unbridled, uncanalised and arbitrary power on the authority to terminate the services of a permanent employee without recording any reasons and without conforming to the principles of natural justice. There is no guideline in the Regulations or in the Act, as to when or in which cases and circumstances this power of termination by giving notice or pay in lieu of notice can be exercised. It is now well settled that the 'audi alteram partem' rule which is essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurely. Considering from all aspects Regulation 9(b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is has been referred to and relied upon in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. (supra) and a similar Rule 9(i) was termed as "Henry VIII clause" as it confers arbitrary and absolute power upon the Corporation to terminate the service of a permanent employee by simply issuing a notice or pay in lieu thereof without recording any reason in the order and without giving any opportunity of hearting to the employee. Thus, the Rule 9(i) of the Services Discipline and Appeal Rules, 1979 was held void under Section 23 of the Indian Contract Act, 1872, as being opposed to public policy and is also ultra vires of Article 14 of the Constitution to the extent that it confers upon the Corporation the right to terminate the employment of a permanent employee by giving him three months' notice in writing or by paying him the equivalent of three months' basic pay and dearness allowance in lieu of such notice. Regulation 9(b) of the impugned Regulation framed under the Delhi Transport Corporation Act which is in pare materia with the said Rule 9(i) is void under Section 23 of the Contract Act as being opposed to public policy and is also ultra vir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parts which, standing alone, are valid. If this can be done the court declares only the invalid parts to be beyond power and leaves the remainder operative. In Re The Hindu Women's Rights to Property Act, 1937, and The Hindu Women's Rights to Property (Amendment) Act, 1938 and in Re a Special Reference under Section 2 13 of the Government of India Act, 1935, [1941] FCR 12 the question arose whether the Hindu Women's Rights to Property Act, 1937 (Central Act XVIII of 1937) and the Hindu Women's Rights to Property (Amendment) Act, 1938 (Central Act XI of 1938), are applicable to agricultural land and what was the meaning of the word 'property'. It was observed that: "When a Legislature with limited and restricted powers makes use in an Act of a word of such wide and general import as "property", the presumption must be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. The word "property" in the Hindu Women's Right to Property Act must accordingly be construed as referring to property other than agricultural land. There is a general presumption that a Legislature does not intend to exceed its jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors., [1964] 6 SCR 784 challenge was thrown to the constitutionality of the amendments made to Ss. 40, 41 and s. 7 by the Land Acquisition Amendment Act (Act 31 of 1962) on the ground that it contravened Art. 31(2) inasmuch as it makes acquisition for a company before July 20, 1962 as being for a public purpose even though it may not be so in fact. Section 7 was also challenged on the ground that it contravenes Art. 14 inasmuch as it makes an unreasonable discrimination in the matter of acquisition for a company before July 20, 1962 and after that date insolaf as the former acquisitions are validated on the basis of their being deemed to be for a public purpose while the latter acquisitions are not so deemed and have to satisfy the test of public purpose. It has been held that if the language of a provision of law is capable of only one construction and if according to that construction the provision contravenes a constitutional provision it must be struck down. A literal interpretation is not always the only interpretation of a provision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eervai in his book 'Constitutional Law of India' and also the meaning that has been given in the Australian Federal Constitutional Law by Coin Howard, it is clear and apparent that where any term has been used in the Act which per se seems to be without jurisdiction but can be read down in order to make it constitutionally valid by separating and excluding the part which is invalid or by interpretting the word in such a fashion in order to make it constitutionally valid and within jurisdiction of the legislature which passed the said enactment by reading down the provisions of the Act. This, however, does not under any cicumstances mean that where the plain and literal meaning that follows from a bare reading of the provisions of the Act, Rule or Regulation that it confers arbitrary, uncanlised, unbridled, unrestricted power to terminate 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the use of such a power. and a decision in this regard has to be taken in a manner which should show fairness. avoid arbitrariness and evoke credibility. And this. in my view, is possible only when the law lays down detailed guidelines in unambiguous and precise terms so as to avoid the danger of misinterpretation of the situation. An element of uncertainty is likely to lead to grave and undesirable consequences. Clarity and precision are. therefore. essential for the guidelines. Examining in this background, I am of the view that Regulation 9(b) of the Delhi Road Transport Authority (Condition of Appointment and Service) Regulation, 1952 cannot be upheld for lack of adequate and appropriate guidelines. For these reasons Civil Appeal No. 2876 of 1986 is dismissed. I also agree that the Civil Appeal No. 1115/76 should be allowed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clause (a) are (i) probationary period, (ii) misconduct, (iii) completion of specific period of appointment and (iv) expiration of contractual period of appointment when the appointment is contractual. In other words, when the management decides to terminate the services of an employee but not for his misconduct 'or during his probation or because his tenure of appointment, contractual or otherwise, has come to an end, it is free to do so without assigning any reason and by merely giving either a notice of the specific period or pay in lieu of such notice. Reduced to simple non-technical language, clause (b) contains the much hated and abused rule of hire and fire reminiscent of the days of laissez faire and unrestrained freedom 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 withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en they ask the court to read down the rule, and read in it circumstances under which the power can be used, but maintain that they will under no circumstances mend it nor should they be asked to do it, by incorporating in it those very circumstances. 5. With this prologue to the controversy, I may now examine the contentions advanced before us. It is contended that it is necessary to retain the rule in its present ambiguous form because it is not possible to envisage in advance all the circumstances which may arise necessitating its use. When we asked the learned counsel for the managements whether there were any circumstances which would not be governed by the broad guidelines given in the second proviso to subclause (2) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired. - The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all and struck down the Rule as being void on account of the discrimination it introduced between railway servants and other government servants. The reliance placed on the decision in Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors., [1959] SCR 279 to support the above theory is also according to me not correct. As has been pointed out there, the Commission of Inquiry Act, 1952, the validity of which was challenged on the ground of unguided powers to institute inquiries, was not violative of Article 14 because the long title and Section 3 of the Act had contained sufficient guidelines for exercise of the power. Section 3 has stated that the appropriate government can appoint a Commission of Inquiry 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nableness and justness ought not to guide the actual administration of such laws." The statute there was saved by the provisions of Article 19(6) of the Constitution and was otherwise valid. It was not a case of a provision which was constitutionally invalid being saved by recourse to the spacious assumption of its reasonable exercise in individual cases. In Tata Oil Mills Co. Ltd. v. Workmen & Anr., [1964] 2 SCR 125, it was a case of an employee of a private company who was given a discharge simpliciter. This Court following its earlier decisions on the point observed that in several cases, contract of employment or Standing Orders authorise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t recorded in their presence. The Court held that under the circumstances the requirements of natural justice were fulfilled since the principles of natural justice were not inflexible and differed in different circumstances. I have not been able to appreciate the relevance of this decision to the point in issue. 10. I may now deal with the second contention vehemently urged on behalf of the appellants. The contention was that if it is possible to save a legislation by reading it down to read in it words, expressions or provisions, it should not be struck down. In order to save the present rule, it was urged on behalf of the appellants 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner, 6 Moo. PC 1; 4 MIA 179; aid the Legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Official Liquidator of Dehra Dun-Mussoorie Electric Tramway Co. Ltd., [1933] LR 60 IA 13; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them constitutional. The relevant provisions were construed to mean that where land is acquired for the construction of a building or work which subserves the public purpose of the industry or work in which a company is engaged or is about to be engaged, it can be said that the land was acquired for a public purpose. In Jagdish Pandey v. The Chancellor, University of Bihar & Anr. [1968] 1 SCR 231, Section 4 of the Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) (Amendment) Act 13 of 1962 was called in question as being violative of Article 14 of the Constitution on the ground that the said section did not make 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a cell apart from all other prisoners, did not mean that he has to be confined cellularly or separately from the rest of the prisoners so as to put him in a solitary confinement. The said expression had a restricted meaning and it only meant that such a prisoner has to be kept in a separate cell but one which is not away from the other cells. Thus, the said expression, viz. "shall be confined in a cell apart from all other prisoners" in the said provision was read down to exclude solitary confinement. In Excel Wear etc. v. Union of India & Ors., [1979] 1 SCR 1009, one of the questions before this Court was whether the Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution to decide whether the law enacted pursuant to it secured any of the Directive Principles of the State Policy and whether the object of the Directive Principles could not be secured without encroaching upon the Fundamental Rights and the extent to which encroachment was necessary and whether such encroachment violated the basic structure of the Constitution. The Court opined that this argument was open to the same criticism to which the argument of Attorney General was open and that "it would be sheer adventurism of a most extraordinary nature to undertake the kind of judicial enquiry which according to the learned 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een its plainly intended purpose and the commands of the Constitution. It must be remembered that although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute ... or judicially rewriting it. To put the matter another way, this Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects. The issue comes 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 import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst instance, the regulation is a part of the service regulations of the employees made by the Delhi Road Transport Authority in exercise of the powers conferred by sub-section (1) read with clause (c) of sub-section (2) of Section 53 of the Delhi Road Transport Act, 1950 (hereinafter referred to as the "Act"). The object of the Act is to provide for the establishment and the regulation of Road Transport Authority for the promotion of a co-ordinated system of road transport in the State of Delhi. There is nothing either in the object of the service regulations of which the present regulation is a part or in the object 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to hold an enquiry. 1 thought that such situations are capable of being formulated easily and conveniently at least in general terms as is done by the Constitution-makers in the second proviso to Article 311(2). In fact, one of the public undertakings viz., Indian Airlines has come out with such regulation being amended Regulation 13 of its Employees' Service Regulations, and the same has been placed on record by them. What is necessary to note in this connection is that the reading of such circumstances in the existing regulation would require its extensive recasting which is impermissible for the Court to do. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l vehemently contended that, under ordinary law of "master and servant" the Corporation is empowered by the Contract of Service to terminate the services of its employees in terms thereof. The declaration in Brojo Nath's case that such a contract is void, under section 23 of the Indian Contract Act or opposed to public policy offending the Fundamental Rights and the Directive Principles, is not sound in law. He contends that as a master the Corporation has unbridled right to terminate the contract in the interests of efficient functioning of the Corporation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act and the Regulation and the paramount law of the land, the Constitution. Nature of the Power Statutory Authority to terminate the services of its employees. 6. In Sukhdev Singh v. Bhagatram, [1975] 3 SCR. 619 = AIR 1975 SC. 1331, the Constitution Bench of this Court put a nail in the coffin of the play of the private master's power to hire and fire his employees and held that Regulations or Rules made under a Statute apply uniformly to everyone or to all members of the same group or class. They impose obligations on the statutory authorities 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of welfare and social service functions necessitates the State to assume control over natural and economic resources and large scale natural and commercial activities. For the attainment of socio-economic justice, there is vast and notable increase of frequency with which ordinary citizens come into relationship of direct encounters with the State. The Government in a welfare state is the regulator and dispenser of social services and provider of large number of benefits, including jobs etc. Thousands of people are employed in Central/State 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the time of appointment till his retirement beyond it like pension etc. The middle class, lower middle class and lower classes' educated youths generally, if not mainly,-depend on employment or appointment to an office or posts under the States which include corporations, statutory body or instrumentality under Art. 12 of the Constitution as source to their livelihood and means to improve their intellectual excellence and liner facets of life individually and collectively 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot merely connote animal existence or a continued drudgery through life, the expression life has a much wider meaning. Where, therefore, the, outcome of a departmental enquiry is likely to affect reputation or livelihood of a person, some of the liner graces of human civilisation which makes life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fair procedure. In Workmen of Hindustan Steels Ltd. v. Hindustan Steel Ltd. & Ors., [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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry authority or instrumentality under Art. 12 have statutory status as a member of its employees. The rights and obligations are governed by the relevant statutory provisions and the employer and employee are equally bound by that statutory provisions. 11. Nature of the right of a permanent employee to a post In Purushottam Lal Dhingra v. Union of India, [1958] SCR 828 at 84 1-843 it was held that the appointment to a permanent post may be substantive or on probation 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 majori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient. The sword of damocles hanging over the heads of permanent railway servants in the form of Rule 148(3) or Rule 149(3) would inevitably create a sense of insecurity in the minds of such servants and would invest appropriate authorities with very wide powers which may conceivably be abused. Thereby this Court laid emphasis that a permanent employee has a right or lien on the post he holds until his tenure of service reaches superannuation so as to earn pension 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es referred to above. Courts would take note of actualities of life that persons actuated to corrupt practices are capable, to maneuver with higher echolons in diverse ways and also camouflage their activities by becoming sycophants or chronies to the superior officers. Sincere, honest and devoted subordinate officer unlikely to lick the boots of the corrupt superior officer. They develop a sense of self-pride for their honesty, integrity and apathy and inertia 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e must be consistent with the Constitution. 14. From the above perspective vis-a-vis constitutional, social goals and rights of the citizens assured in the preamble, Parts III & IV i.e. the trinity, the question whether the statutory corporation or the instrumentality or the authority under Art. 12 of the Constitution is validly empowered to terminate the services of a permanent employee in terms of the contract of employment or rules without conducting 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus: "Today the position is seen in a very different light. Freedom of contract is a reasonable social ideal only to the extent that equality of bargaining power between contracting parties can be assumed, and no injury is done to the economic interests of the community at large. In the more complicated social and industrial conditions of a collectivist society it has ceased to have much idealistic attraction. It is now realised that economic equality 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 consum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk to avoid the contract by appropriate declaration. Therefore, though certainty is an important value in normal commercial contract law, it is not an absolute and immutable one but is subject to change in the changing social conditions. 17. In Brojonath's case, Madan, J., elaborately considered the development of law relating to unfair or unreasonable terms of the contract or clauses thereof in extenso and it is unnecessary for me to traverse the 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 cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons, it must be shown that the conditions imposed are necessary to secure the legitimate objectives of the contract ensure its effective use, or protect society from the potential harm which may result from the contractual relationship between the government and the individual. 19. Professor Guido Calabresi of Yale University Law School in his "Retroactivity, Paramount power and Contractual Changes" ( 196 1-62) 71 Yale Law Journal P. 119 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Public policy whether changeable. 23. This Court also angulated the question from the perspective of public policy or contract being opposed to public policy. The phrases "public policy", "opposed to public policy", or "contrary to public policy" are incapable of precise definition. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the notion of public policy and the need for certainty in commercial affairs." 25. From this perspective, it must be held that in the absence of specific head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest invent new public policy and declare such practice 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was further held that 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 omnipresence. In Ramana's case it was held that it is merely a judicial formula for determining whether the legislative or. executive action in question is arbitrary 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 sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction of the court to grant relief. In Minerva Mills Ltd. v. Union of India, [1981] 1 SCR 206 the fundamental rights and directive principles are held to be the conscience of the Constitution and disregard of either would upset the equibalance built up therein. In Menaka Gandhi's case, it was held that different articles in the chapter 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 va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where discrimination is the result of the State action, it is a violation of Art. 14, therefore, a violation of a principle of natural justice by a State action is a violation of Art 14. Article 14, however; is not the sole repository of the principles of natural justice. What it does is to guarantee that any 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 12 of the Constitution the dynamic role of Art. 14 and other relevant Articles like 21 must be allowed to have full play without any inhibition, unless the statutory rules themselves, consistent with the mandate of Arts. 14, 16, 19 & 21 provide, expressly such an exception. Article 19(1)(g) empowers 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reason that the Constitution itself made proviso--an exception to the principle of audi alteram partem engrafted in Art. 311(2) of the Constitution. As a fact, it expressed thus: "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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erode the foundations of liberty." Doughlas, 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. & Anr. v. Hindustan Steel Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the principles of natural justice. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 who discharge their duties honestly, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 to serve the societal need consistent with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in preposition 3) has stated thus: "the judge may read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 costs I cannot subscribe wholly to emasculated construction of a statute to avoid facing constitutional question in purported fidelity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the doctrine of reading down to blow life into the void law to save from unconstitutionality or to confer jurisdiction on the legislature. Similarly it cannot be taken aid of to emasculate the precise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 envisaged under Arts. 14 and 21 of the Constitution. In this context it is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of doctrine of reading down so as to sacrifice the principle of natural justice which are considered as essential part of rule of law. In Amritsar Municipality v. State of Punjab, [1969] 3 SCR 447 the court asc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 policy and thereby is void under Section 23 of the Indian Contract Act. 331 44. It is made clear that, as suggested by this Court in Hindustan Steel Case that it is for concerned to make appropriate rules or regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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