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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 ..... ces 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 Delhi Road Transport (Amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) 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 notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 allegations o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 ..... e 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The Court must judge each case on its own facts and circumstances. The above principle would apply, this Court reiterated, where the inequality of bargaining power is the result of the disparity in the economic strength of the contracting parties or where the inequality is the result of circumstances, whether of the creation of the parties or not or where the weaker party is in a position in which he could obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them or where a man had no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in prescribed or standard form or to accept a set of rules as part of the contract, however, unfair, unreasonable and unconscionable clause in that contract or form or rules might be. This Court, however, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permanent employee shall be subject to termination on three months' notice on either side. The notice shall be in writing on either side. The Company may pay the equivalent of three months basic pay and dearness allowances, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice. (ii) The services of a permanent employee can be terminated on the grounds of "services no longer required in the interest of the Company" without assigning any reason. A permanent employee whose services are terminated under this clause shall be paid 15 days' basic pay and dearness allowance for each completed year of continuous service in the Company as compensation. In addition he will be entitled to encashment of leave to his credit." This Court found that Rule 9(i) can be called 'the Henry VIII Clause'. It confers an absolute,-arbitrary and unguided power upon the Corporation. It does not even say who on behalf of the Corporation 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( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge number of persons and it squarely fell within the principle stated earlier. The Government and its agencies and instrumentalities constitute the largest employer in the country. A clause such as Rule 9(i) in a contract of employment, it was noted, affecting large sections of the public was harmful and injurious to the public interest for it tended to create a sense of insecurity in the minds of those to whom it applied and consequently against public good. Such a clause, therefore, was opposed to public policy and as such it is void under Section 23 of the Contract Act, it was held. It was further held that it was not possible to accept the contention that this was a contract entered into by the Corporation like any other contract entered into by it in the course of its trading activities and the Court, therefore, ought not to interfere with it. The employees could not be equated with goods which could be bought and sold, nor could a contract of 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 supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of the Regulations to be illegal and ultra vires and as a consequence thereof the orders terminating the services of respondents Nos. 1 to 4 were quashed and these respondents were deemed to be in the service of DTC and back wages and all other benefits by way of annual increments were directed to be paid. Learned Solicitor General of India contended before us that in the facts and the circumstances of this case, there was sufficient guideline in the Regulation 9(b) and the power of termination, properly read, would not be arbitrary or violative of Article 14 of the Constitution. It may be mentioned that under the general law of contract of employment, which was commonly known as the 'law of master and servant', which is not termed as law of employer and employee, whether the contract of service is for a fixed period or not, if it contained a provision for its termination by notice, it could be so terminated. If there was no provision for giving notice 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 term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein in an action by the employee of D.T.C., this Court in Delhi Transport Corporation Undertaking v. Balbir Saran Goel, [1970] 3 SCR 757 at 764 held that even if the employees of the respondent thought that he was a cantankerous man and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9(b) and it was not necessary to dismiss by way of punishment for misconduct. Reliance was placed on this decision by the High Court in the Judgment under appeal. The High Court in our opinion rightly pointed out, however, that the decision was on a different basis and could not be availed of in deciding controversy involved in the present determination. In Air India Corporation, Bombay v. V.A. Rebellow Anr., [1972] 3 SCR 606, this Court dealing with the power of the Air India to terminate the services of a person who was alleged to have misbehaved with air hostesses, observed on page 6 16 of the report 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Lal Shah v. The Union of India, [1964] 5 SCR 190 at 204. The services of a temporary government servant, further. may be terminated on one month's notice whenever the government thinks it necessary or expedient to do so for administrative reasons. It is impossible, this Court observed, to define before hand all the circumstances in which the discretion can be exercised. The discretion was necessarily left to the Government. See observations of this Court in Ram Gopal Chaturvedi v. State of M. P., [1970] 1 SCR 472 at 475. The aforesaid position of a government servant has been analysed in depth by the decision of this Court in Union of India v. Tulsi Ram Patel, (supra), where it was reiterated that the doctrine of pleasure is not a relic of the feudal ages or based upon any special prerogative of the Crown but is based on public interest and for the public good because it is as much in public interest and for public good that government servants who 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision proceeded on the theory of unconscionable bargains and that termination by notice is against public policy. He, however, drew our attention to Gheru Lal Parekh v. Mahadeodas Maiya Others, [1959] Supp. 2 SCR 406 and 440 where it was held that though theoretically it may be permissible to evolve a new head under exceptional circumstances in a changing world, it is advisable in the interest of stability of society not to make any attempt to discover new heads of avoidance of such clauses in these days. Furthermore, as stated above, learned Solicitor General submitted that in the ordinary law of contract termination of employment by reasonable notice on either side has never been regarded as unconscionable. Therefore, the learned Solicitor General submitted that this part of the above judgments was erroneous and should be overruled. It must, however, be noted that in a later judgment of this Court, which followed this line of reasoning, it was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the circumstances in which the power is to be exercised is discernible, the conferment of power must be regarded as being made in furtherance of the scheme, and is not open to attack as infringing the' equality clause. It may be remembered that the rules relating to termination of employment of temporary servants and those on probation, and even those relating to compulsory retirement generally do not lay down any specific directions governing the exercise of the powers conferred thereby. The reason is obvious: the appointing authority must in all these cases be left with discretion to determine employment having regard to the exigencies of the service, suitability of the employee for absorption or continuance in the cadre, and the larger. interest of the public being served by retaining the public servant concerned in service." Learned Solicitor General submitted that the question 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 exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t helps to sustain the validity of the law. Learned Solicitor General submitted that the appeal involved herein the power of Delhi Transport Corporation (a statutory corporation) regarding termination of service simpliciter under Regulation 9(b). These Regulations were framed as mentioned under Section 53 of the Delhi Road Transport Authority Act, 1950. The said Act was replaced by the Delhi Municipal Corporation Act, 1957 but the regulations have been saved and even though in 1971 a new Corporation, viz. the Delhi Transport Corporation (the appellant), was constituted under the Road Transport Corporation Act, 1950, the regulations have been continued. The guidelines for the exercise of such power, according to the Solicitor General, could be found in the statutory provisions of the 1950 Act under which the regulations have been framed, the preamble; Sections 19 and 20 (equivalent to 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of express intention or clear language to the contrary, it must be presumed to have implied into the statute the requisite limitations and conditions to immunise it from the virus of unconstitutionality. From what the learned Attorney General submitted and what appears to be the correct that every legislature intends to act within its powers. Therefore, in a limited Government, the legislature attempts to function within its limited powers. It would not, therefore, be expected to have intended to transgress its limits. In Re The Hindu Women's Rights to Property Act, [1941] FCR 12, the question before the Federal Court was about the meaning of the word 'property' in the Act. The Court limited the operation of the word 'property' to property other than agricultural land because otherwise the Central Legislature would have had no competence to enact the statute. The Court observed 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. Reference may also be made to the decision of this Court in R.L. Arora v. State of Uttar Pradesh, [1964] 6 SCR 784 where the question was about the Constitutionality of section 41(aa) of the Land Acquisition (Amendment) Act, 1962. This Court upheld the validity of the section following the principle of interpreting the said rule in a way which would be consistent with 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reading down or placing limited construction has been adopted by courts in England in deciding the validity of bye-laws and regulations. See Reg. v. Sadlers Co., 10 H.L.C. 404, at 460 and 463 and Faramus v. Film Artists Association, 1962 QB 527 at 542. The courts must iron out the creases, as said Lord Denning in Seaford Court Estates, [1949] 2 KB 481. This Court has also on numerous occasions followed this practice. See the observations of this Court in M. Pentiah and Ors. v. Veera Mallappa and Ors., [1961] 2 SCR 295; Bangalore Water Supply and Sewerage Board etc. v. A. Rajappa Ors., [1978] 3 SCR 207. See also H.M. Seervai's 'Constitutional Law of India', 3rd Edn. Vol. I, pages 119-120. In the background of this, the learned Attorney General also drew our attention that the present regulation, as mentioned hereinbefore, should be read and construed in the said manner and the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional questions of great public importance arising in the present appeal, have to be examined in the light of the law laid down by the Full Court in the case of R.C. Cooper v. Union of India, [1970] 3 SCR 530 at 577 and by larger Constitution Benches in the cases of Maneka Gandhi v. Union of India (supra), Moti Ram Deka v. Union of India (supra), State of West Bengal v. Union of India, (supra) and the Constitution Bench decisions in the cases of Olga Tellis and Others v. Bombay Municipal Corporation and Others, (supra), Fertilizer Corporation Kamgar Union (Regd.) Sindri and Others v. Union of India and Others, [1981] 2 SCR at 60-61, Union of India v. Tulsiram Patel and Others (supra), Sukhdev Singh Others v. Bhagat Ram Sardar Singh Raghuvanshi and Another (supra) and Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors. etc., [1981] 2 SCR 79 at 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged, confers a broad and general right which is available to all persons to do work of any particular kind and of their choice. See the observations in Fertilizer Corporation Kamgar Union's case (supra) at p. 60-61 of the report. According to Mr. Ramamurthi, there is a distinction between Public Employment or service and "pure master and servant cases". He referred to the observations of this Court in India Tobacco Co. Ltd. v. The Commercial Tax Officer, Bhavanipore Ors., [1975] 2 SCR 619 at 657; followed in A.L. Kalra v. The Project and Equipment Corporation of India Ltd., [1984] 3 SCR 646 at 664; Whenever, therefore, according to Shri Ramamurthi, there is arbitrariness in State Action whether it be of the Legislature or of the Executive or of an authority under Article 12, article 14 immediately springs into action and strikes down such State 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 natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas, forming part of the Union of India under the Constitution are concerned, only the Indian Contract Act 1872 is applicable. By article 372 of the Constitution, this Act has been continued in operation even after the Constitution came into force, subject to the other provisions of the Constitution. A contract of service, according to Shri Ramamurthi is a species of contract and will, therefore, be governed by the provisions of the Indian Contract Act 1872. This Act has been held to be an Amending as well as a Consolidating Act. Therefore, there can be no question of common law of England, as made applicable in India during the British Rule, being the basis for deciding any question relating to contract of employment after 1950. In any event any provisions of either the Indian Contract Act, 1872, or of the English Common Law Applicable in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the express provisions of Article 311 of the Constitution. For that reason, according to him, it has lost some of its majesty and power. He referred us to the observations of this Court in Moti Ram Deka's case (supra) at p. 704 and Tulsi Ram Patels's case (supra) at page 196. In dealing with the question of validity of rules authorising the Government to terminate the services of temporary servants as upheld by this court in Champaklal Chimanlal Shah's case (supra) and Ram Gopal Chaturvedi's case (supra) it was submitted that it is important to note that the validity of the rules was challenged on the ground of denial of equality of opportunity in employment under the State guaranteed by Article 16 of the Constitution. In that context this Court observed at p. 20 1 (supra) of the report that there can also be no doubt, if such a class of 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate sector industries. Reliance was placed on the observations of this Court in Hindustan Antibiotics Ltd. v. The Workmen Ors., [1987] 1 SCR 652 at 669. On the consideration of the relevant material placed before us, we are asked to come to the conclusion that the same principles evolved by industrial adjudication in regard to private sector undertakings will govern those in the public sector undertakings having a distinct corporate existence. Therefore, all the decisions referred to by the appellant, it was argued, and interveners, were all concerned with applying the industrial law even though some Of them dealt with employees, working in statutory corporations or public sector undertakings. It was, therefore, submitted by Shri Ramamurthi that these decisions could afford no assistance to the Court, in deciding the issues raised in the 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 guara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thi drew our attention to the award and referred to paragraph 5.6 of the Shastri Award and other provisions of the award defining misconduct and also paragraph 522 of the Award dealing with the procedure for termination of employment and 523 onwards. Mr. Ramamurthi further submitted that provisions of Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 cannot be rendered constitutional by reading the requirement of recording reasons and confining it to cases where it is not reasonably practicable to hold an enquiry and reading it down further as being applicable to only exceptional cases would not be permissible construction and proper. Shri Ramamurthi drew our attention to the true scope of Regulation 9(b) of the aforesaid Regulations in the light of the judgment of this Court 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as termination or dismissal on ground of misconduct is concerned, ordinarily the detailed procedure for establishing misconduct had to be followed. In cases where it is not possible to follow the detailed procedure, then at least the minimum procedure of issuing a show cause notice should be followed after recording reasons why it is not practicable to hold a full-fledged enquiry. In cases where even this requirement of the elementary principles of natural justice is not to be followed, then the regulation must itself indicate those cases in which principles of natural justice can be totally abrogated after recording reasons. As far as termination of service of a permanent employee on grounds which do not constitute misconduct is concerned, assuming that this is held to be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport this termination when the case is heard on merits. But, that does not derogate from the wide amplitude of this uncontrolled, arbitrary power claimed by the management under Para 522 of the Shastri Award. Powers claimed under Para 522 must, therefore, be examined in the background of the facts and circumstances of this Appeal. It was submitted that this Court must hold that nothing in Para 522 of the Shastri Award confers on the management power so far as they can get rid of permanent employees of the Banks merely after service of notice on the imaginary belief that they were doing so for "efficient Management" of the Banks. Mr. Garg reminded us that it is common knowledge that all despots act as tyrants in the firm belief that the intolerable indignities and atrocities they 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 Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision provides for "insecurity of tenure" for lakhs of permanent employees, Articles 14, 19(1)(g) and 21 of the Constitution and the integrated protection of these Fundamental Rights excludes the "doctrine of pleasure" and insists on security of tenure "during good behaviour". The right to livelihood cannot be rendered precarious or reduced to a glorious uncertainty", it was urged by Mr. Garg. Mr. Garg submitted that the right to "hire and fire" was the prerogative claimed by the employer in the days of uncontrolled "laissez faire." This was the "doctrine of pleasure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the binding decision of seven Judges in Moti Ram Deka's Case and its application by five Judges in Case of compulsory retirement after 10 years in Gurdev Singh's Case (supra), it is not open to the employees to submit that similar powers claimed under paragraph 522 of the Shastri Award, even without 10 years' service for removal without charge of 'misconduct' and without enquiry, can be upheld as constitutional on any grounds whatsoever. It cannot be upheld as constitutional on any grounds 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. Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase (supra) and Maneka Gandhi's case (supra). In India, Shri Garg submitted. workers have a right to participate in the management. The participation in the management cannot exclude the 'power to be heard' and thus participate in a decision to remove a permanent employee. Government alone has power to refer to the industrial tribunal, Shri Garg submitted. He was against any reading down which is contrary to the principles of interpretation. He referred to the observations of the Privy 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 corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other would render it unconstitutional and void, the one which saves and preserves its constitutionality should be adopted and the other should be rejected. Fie, further, submitted that unless the provision of the Constitution itself excludes the principles of natural justice, they continue to be applicable as an integral part of the right to equality guaranteed by the Constitution. It was further reiterated that as the employees of the DTC were not Government employees, Article 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 544-545. Mr Rao referred to the observations of this Court in Kedar Nath Singh v. State of Bihar, (supra) involving the interpretation of section 124A IPC in the context of Article 19(1)(a) of the Constitution. The content of Article 19(1)(a) was not cut down. In the present case, the suggested reading down would inevitably drain out Article 14 of its vitality. Shri Rao drew our attention to the decision of this Court in R.L. Arora v. State of Uttar Pradesh, (supra) and submitted that 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 Batr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as as follows: "His services will be terminated on one month's notice on either side provided it will be open to pay him his salary for the period by which the notice falls short of one month. Similarly, if he wishes to resign he may do so by depositing with the District Board his salary for the period by which the notice given by him fails short of one month." The appellant, however, was continued to be governed by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant for acts of omission and commission and ordered an enquiry, and such an enquiry never commenced, would certainly not be enough reason to hold that the termination of the appellant's services, was ordered by way of punishment and therefore, amounted to his dismissal, argued Mr. Nayar. It was submitted by Mr. Nayar that the appellant had conceded that condition no. 4 was legally good but 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 governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, was given in the negative vide order dated 3rd April, 1974. The Division Bench of the High Court which heard the matter after the question of law was answered by the Full Bench, dismissed the appeal of the appellant vide order dated 28th October, 1974 and this appeal to this Court arises from this order. The appellant in Civil 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices of an employee in terms of the contract of employment and also under the various labour enactments. Attention of this Court was invited to the provisions of the Industrial Employment (Standing Orders) Act, 1946, which applies to all industrial establishments whether in the public or private sector. Under and as a part of the said Act, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." According to Mr. Bhasin, in the amended Regulation 13, Indian Airlines had taken care to set out the circumstances in which the services of an employee can be terminated by way of discharge and without holding enquiry. Mr Bhasin urged that these are eventualities which do 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the action taken by the management was touched by this Court, but since the action was based on the old Regulation 48, it had to be quashed. It was submitted on behalf of the Air India that care had been taken to suit the circumstances in which 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 exercisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 1972. Prior to this, General Insurance (Emergency Provisions) Act, 1971 was passed under the provisions of which Act all undertakings of all Insurers vested in the Central Government with effect from I3th May, 1971. This was pending nationalisation which took place 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 rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituations which had been adjudicated upon by this Court. If, however, the Central Inland Water's case (supra) is applied, Smt. Shyamla Pappu submitted, then the management of the Intervene r Company will be powerless even in a case of abolition of posts or retrenchment or any other allied 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assured security of tenures and ensured protection against arbitrariness and discrimination in discharge or termination of his employment. This is the basic concept of the evolution from the different angles of law of master and servant or in the evolution of employer and employee relationship. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples and objects, it appears to us that the power to terminate the employment of permanent employment must be there. Efficiency and expediency and the necessity of running an industry or service make it imperative to have these powers. Power must, therefore,. with authorities to take decision 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts say or can say what the legislatures have not said'? We have noted the controversy of how should legislation of limited legislatures, Parliaments or rule making bodies, who are not expected or enjoined to make rules or laws contrary to or in derogation or the constitutional prohibitions and inhibitions 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 reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn as bad. This, we say in spite of the argument by many including learned Solicitor General of India and Smt. Shyamla Pappu that in contractual obligations while institutions or organisations or authorities, who come within the arebit of Article 12 of the Constitution are free to contract on the basis 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It has been said that judges are not unfettered glossators. is true that there is no actual expression used enabling the legislation or the statute in question indicating the limitations or conditions as aforesaid. But it must proceed on the premise that the law making authority intended to make a 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 vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ask, whether the courts should attribute to the law-making body the knowledge of the values and limitations of the Constitution, and knowledge of the evils that should be remedied at a particular time and in a situation that should be met by a particular piece of legislation, and the court with the experience 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 effecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the intention to transgress the constitutional limitations. At least, the relevant provisions of the relevant statutes and the rules, mentioned hereinbefore, are, in my opinion, on these points, not expressive enough to betray an intention transgress constitutional limitations. I am afraid that reference 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 perma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e industry. In the aforesaid view of the matter, 1 am unable to accept the submissions of Mr. Garg and Mr. Ramamurthi. The power must be there, the power must be read down in the manner and to the extent indicated above, in my opinion, of terminating the services of permanent employees without holding any 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 commu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional limitations. These inhibitions must be read into these provisions so that law becomes effective, purposeful and legal. In that view of the matter, I am of the opinion that we should approach the question of constitutional limitations or inhibitions in our interpretation in deciding in each individual cases 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sport Corporation Anr. v. Shri Hans Raj), Civil Appeal No. 328 of 1987 (The Delhi Transport Corporation Anr. v. Shri Rohtash Singh), Special Leave Petition No. 75 12 of 1987 (Delhi Transport Corporation v. Shri Mohinder Singh Anr.), and Civil Appeal No. 330 of 1987 (The Delhi Transport Corporation Anr. v. 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 theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Attorney General, appearing on behalf of the State that such a power is not uncanalised or unbridled and arbitrary in as much as firstly such power has been conferred on the responsible authority namely D.T.C. for public purposes and secondly, the Regulation 9(b) is to be read down so as to make it constitutionally 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. Tendolkar Others, [1959] SCR 279 the constitutionality of the Commission of Enquiry Act, 1952 was challenged. It was held that the Act was valid and intra vires and that the notification was also valid excepting the words "as and by way of securing redress or punishment" in CI. 10 thereof which went beyond the Act. 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 Pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State. In A.K. Kraipak and Others v. Union of India and Others, [1969] 2 SCC 262 it has been held at page 268-269 Paragraph 13: "The dividing line between an administrative power and 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 disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, therefore, not bad as the authority bona fide forms that opinion. In the case of Air India Corporation v. V.A. Rebello Anr., AIR 1972 SC 1343 the service of the respondent was terminated under Regulation 48 of the Air India Employees' Service Regulations. The said Regulation 48 reads as under: CHAPTER VIII--Cessation of Service 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 Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not lay down or contemplate any defined essential pre-requisite for invoking its operation. Action under this Regulation can be validly taken by the employer at his sweet will without assigning any reason. He is not bound to disclose why he does not want to continue in service the employee concerned. It may be conceded that an employer must always. have some reason for terminating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned to justify the restriction imposed by showing satisfaction of tests of validity contemplated by each of these two Articles. The tests of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The discretion left to the authority to impound a passport in public interest 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 natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 2 should be paid one month's wages in lieu of notice and would also be eligible for all the benefits as might be admissible under the Standing Orders and Service Regulations of the Undertaking. The respondent No. 2 made an application before the Labour Court under Section 42(4) of the Bombay Industrial Relations Act contending that the order terminating her services was invalid 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding Order 21 read with Standing Order 23. It was further held that the service of the respondent was not satisfactory was undoubtedly based on past incidents set out in the record but for each of these incidents punishment is one form or another had already been meted out to her and it was not by way of punishment for any of these incidents, but because as gathered from these incidents, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This decision however has not duly considered the ratio of the decision made by this Court in L. Michael Anr. v. Johnaton Pumps India Ltd., [1975] 3 SCR 489 and also in the case of Air India Corporation v. V.A. Rebello, (supra) as well as the ratio of the decision in the case of Sukhdev Singh Ors. v. Bhagat Ram Sardar Singh Raghuvanshi Anr., [1975] 1 SCC421. In the case of S.S. Muley 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 Secreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom service was not justified and the respondent was quite competent to dismiss him from service without holding any enquiry. It was held that the reasons for dispensing with the enquiry do not spell out what was the nature of the misconduct alleged to have been committed by the appellant and what prompted the General Manager to dispense with the enquiry. As there was no justification for dispensing with the enquiry 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration Rules came up for consideration before this Court in this case. Rule 31 is quoted below: "31. Termination of services--The services of an employee may be terminated by giving such notice or notice pay as may be prescribed in the contract of service in the following manner: (v) of an employee who has completed his probationary period and who has been confirmed or deemed to be confirmed by giving him 90 days' notice or pay 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed And Another v. Brojo Nath Gangtdy and Another and West Bengal State Electricity Board v. Desh Bandhu Ghosh and Ors., (Supra). In Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another, [1986] 3 SCC 156 the appellant Corporation is a Government Company incorporated under the Companies Act. The Majority shares of the Corporation are held by the Union of India and the remaining shares are held by the State of West 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 lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e executive power of the Union and each of the States to the carrying on any trade or business. Article 298 does not convert either the Union of India or any of the States which collectively form the Union into a merchant buying and selling goods or carrying on either trading or business activity, for the executive power of the Union and the States, whether in the field of trade or business or in any other field, is always subject to constitutional limitations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r pay in lieu thereof. The order was held to have been made unequivocally in terms of the Regulation 9(h) as the employee was a contankerous person and it was desirable to retain him in service. The order was upheld. The question whether Regulation 9(b) was illegal and void as it conferred arbitrary and uncanalised power to terminate the service of a permanent employee without recording any reason and without giving any opportunity of hearing before passing the 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isciplinary enquiry laid down in Standing Order 31 observed that: "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 Article 12 in an appropriate proceeding, the views of S.O. 32 will have to be examined." It is convenient to refer in this context relevant passage in paragraph 4 in Chitty on Contracts, 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'adh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment Company or Public Corporations. Such Government Company or Public Corporation being State 'instrumentalities are State within the meaning of Article 12 of the Constitution and as such they are subject to the observance of fundamental rights embodied in Part III as well as to conform to the directive principles in Part IV of the Constitution. In other words the Service Regulations or Rules framed by them are to be tested by the touchstone of Article 14 of Constitution. Furthermore, 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of natural justice including audi alteram partem rule. Once the application of clause (2) is expressly excluded by the Constitution itself, there can be no question of making applicable what has been so excluded by seeking recourse to Article 14 of the Constitution. In the case of Sukdev Singh Ors. v. Bhagatrarn Sardar Singh Raghuvanshi Anr. (supra), Mathew, J. pointed out that: "The governing power wherever located must be subject to the fundamental constitutional limitations." This 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrue it in a more limited sense so as to keep it within power. XX XX XX XX XX XX It does not necessarily follow that because a statute cannot be read down it is wholly invalid. The presumption of validity leads naturally to the view that where a statute cannot be held wholly valid it should be held valid at least to the extent that it is reasonably possible or practicable to do so. Where reading down is not available the court next decides where there is a case for severing the invalid parts of the statute from 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he language of s. 2(d) in the light of the indications furnished by them." Having regard to the circumstances, it was held that the law which the State Legislatures moved Parliament to enact under Art. 252(1) was one to control and regulate prize competitions of a gambling character and as such it was held that the Act was valid It has been further observed that where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter. In the case of R. 1. Arora v. State of Uttar Pradesh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in favour of constitutionality and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; "to doubt the constitutionality of a law is to resolve it in favour of its validity." (6) A Statute cannot be declared unconstitutional merely because in the opinion of the Court it violates one or more of the principles of liberty, or the spirit of the Constitution, unless such principles and that spirit are found in the terms of the Constitution." On a proper consideration of the cases cited hereinbefore as well as the observations of Seervai 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, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties in the present cases cannot be governed by the general principle of master and servant, and the management cannot have unrestricted and unqualified power of terminating the services of the employees. In the interest of efficiency of the public bodies, however. they should have the authority to terminate the employment of undesirable, inefficient, corrupt. indolent and disobedient employees. but it must be exercised fairly, objectively and independently: and the occasion for the exercise must be delimited with precision and clarity. Further, there should be adequate reason for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. (c) Where a regular/temporary employee wishes to resign from his post under the Authority he shall given 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 condition regarding the period of notice of resignation or pay in lieu thereof." It will be obvious from the provisions of clause (b) the above that it applies not only in the case of retrenchment of employees on account of reduction in the establishment but also in circumstances other than those mentioned in clause (a). The circumstances mentioned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of our Constitution had committed an irretrievable mistake by ignoring the interests of the Union and the State Governments and enumerating such circumstances in the second proviso to Article 311(2) of the Constitution. But then I was mistaken. The interests of the public undertakings appear to be more important than those of the Governments. May be they are super-Governments. By claiming the privilege not to enumerate even the broad guidelines as contained in Article 311(2), the managements of the undertakings are indeed wearing a supercrown. The posture adopted by them is all the more obdurate and untenable in law when 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law. The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both 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 fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y weighed with some authorities for some time in the past. But its unrealistic pretensions were soon noticed and it was buried without even so much as an ode to it. Even while Shah, J. in his dissenting opinion in Moti Ram Deka etc. v. General Manager, N.E.P. Railways, Maligaon, Pandu, etc., [1964] 5 SCR 683 had given vent to it, Das Gupta, J. in his concurring judgment but dealing with the same point of unguided provisions of Rule 148(3) of the Railway Establishment Code, had not supported that view and had struck down the rule as being violative of Article 14 of the Constitution. The majority did not deal with this point at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rued. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements. In saying this we are not to be understood as laying down that a law which might operate harshly but still be constitutionally valid should be operated always with harshness or that reasonableness 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unchannelised and unguided power of terminating the services of employees. In Hira Nath Mishra Ors. v. The Principal, Rajendra Medical College, Ranchi and Anr., [1973] 1 SCC 805, it was the case of the expulsior of students from college for two academic sessions pursuant to the order passed by the Principal of that college. The expulsion was effected following a confidential complaint received from 36 girl students residing in the girls' hostels alleging that the students in question d entered the compound of the girls' hostels at belated night and walked without clothes on them. The students were heard but the evidence of the girls was not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession" in Section 18(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act (XVII of 1950) fell for consideration, and the controversy was whether it included also an order for recovery of possession made under Section 43 of the Presidency Small Cause Court Act, 1882 and hence a person against whom an order under the latter provision was made was not entitled to claim relief under the former provision. In that connection the Court observed as follows: "It must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Purposes of Income Tax v. Pemsel, LR 189 1 AC 53 1 at p. 549, that it is not competent to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have rendered it unconstitutional. It is in these circumstances that this Court held that the former view' should be taken which would render the said section constitutional. The Court in that connection also further held that keeping in mind the reasons for the introduction of the said section and the history of sedition the former view was the correct interpretation of the ambit of the said section. In R.L. Arora v. State of Uttar Pradesh Ors., [1964] 6 SCR 784, the validity of Sections 40 and 41 of the Land Acquisition Act, 1894, and of Section 7 of the Amending Act, was similarly upheld by placing on them construction which would render 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 bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertain the true intention of the legislature, the Court must not only look at the words used by the legislature but should also have regard to the context and the setting in which they occur. The word "context" has to be construed in a wide sense to mean all the provisions of the Act which bear upon the same subject matter and these provisions have to be read as a whole and in their entirety each throwing light and illumining the meaning of the other. In Sunil Batra etc. v. Delhi Administration Ors., [1973] 4 SCC 494 it was held that under Section 30(2)of the Prisons Act which provided that a prisoner under sentence of death shall be confined 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 3 lB and 31C are grouped. Since the amendment to Article 31C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 3 iC from the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose." The Court then dealt with the argument of the learned Additional Solicitor General who contended that it was still open to the Court under Article 3 IC of 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erve the conscientious objector exemption at all cost. I cannot subscribe to a wholly emasculated construction of a statute to avoid facing a latent constitutional question, in purported fidelity to the salutary doctrine of avoiding unnecessary resolution of constitutional issues, a principle to which I fully adhere. It is, of course, desirable to salvage by construction legislative enactments whenever there is good reason to believe that Congress did not intend to legislate consequences that are unconstitutional, but it is not permissible, in my judgment, to take a lateral step that robs legislation of all meaning in order to avert the collision between 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 permis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires an extensive additions and deletions. Not only it is no part of the court's duty to undertake such exercise, but it is beyond its jurisdiction to do so. 12. Judged in the context of the above principles I am of the view that the doctrine cannot be availed of for saving the present regulationIn the first 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 obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty. But that kind of a situation is taken care of by sub-clause (a) of the said regulation. There is, therefore, no need of a separate provision for the same. If, on the other hand, the services of an employee are to be terminated on grounds other than those mentioned in sub-clause (a), then those grounds being unknown to the employee, cannot be met by him even if he is given a hearing. The reading in the rule of a mere provision of a hearing is, therefore, meaningless. The other suggestion made on behalf of the appellants is still more objectionable. The suggestion was that we should read in the rule all circumstances where it is not possible or necessary 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 regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Whether the termination is made due to reduction of establishment or in circumstances other than those mentioned in (a) above, one. month's notice or pay in lieu thereof will be given to all categories of employees" as is similar to Rule 9 of the Rules in Brojo Nath's case (supra) which this Court declared to be Henry VIII clause, conferring an absolute, arbitrary and unguided power upon that Corporation and was held to be ultra vires of the provisions of the Constitution and was void under section 23 of the Indian Contract Act. As stated earlier, the correctness thereof is the primary question in these appeals. 4. Sri Ashok Desai, the learned Solicitor General 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 interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r authority or an instrumentality within the meaning of Article 12 of the Constitution is the square question. It is not disputed that Delhi Road Transport Corporation is a Statutory Corporation under the Act and the Regulations are statutory and its employees are entitled to the fundamental Rights enshrined in Part III of the Constitution. It is well settled law by a heed role of decisions of this Court that the Corporation or a Statutory Authority or an instrumentality or other authority under Art. 12 of the Constitution is not free, like an ordinary master (a private employer), to terminate the services of its employees at its whim or caprices or vagary. It is bound by the 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1980] 2 SCR 737 at p 780 F to G and 783G to 784A this Court held that statutory body cannot terminate the services of its employees without due enquiry held in accordance with the principles of natural justice. The persons in public employment are entitled to the protection of Articles 14 and 16 of the Constitution, when the service was arbitrarily terminated. The question, therefore, is whether the statutory corporations are entitled to be invested with absolute freedom to terminate the services of its employees in terms of the contract of service. 7. In Ramana v. International Airport Authority of India, [1979] 3 SCR. 1014 = (1979) SC. p. 1628 this Court held that expression 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vation is as per the procedure established by law. In General Manager, Southern Railway v. Rangachari, [1962] S.C.R. page 586 it was held that matters relating to employment would include salary, increments, leave, gratuity, pension, age of superannuation etc. Similarly, in respect of appointments, such matters would include all the terms and conditions of service pertaining to the said office. All those matters are included in the expression "matters relating to employment or appointment" within the meaning of Art. 16(1) of the Constitution. This was reiterated in State of M.P.v. Shardul Singh, [19701 3 S.C.R. page 302 at 305--306 that conditions of service include holding of posts right from 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion which has to be shared equally. This rule was laid when rule 15(1)(ii)(b') of B.C.S. Rules to pay subsistence allowance during period of suspension @ Rs. 1 per month pending departmental enquiry was challenged and declared the rule as ultra vires by operation of Arts. 14, 16, 21 and 311(2). The right to public employment and its concomitant right to livelihood, thus, receive their succour and nourishment under the canopy of the protective umbrella of Arts. 14, 16(1), 19(1)(g) and 21. Could statutory law arbitrarily take away or abridged or abrogated it? In Board of Trustees, Port of Bombay v. Dilip Kumar, [1983] 1 SCR 828 = AIR 1983 SC 109 this Court held that the expression "life" does not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held that the statutory scheme of employment confers on the worker a status. An unlawful act is an interference with status. This view was followed in Sirsi Municipality v. Cecelia Kom Francis Tellis, [1973] 3 SCR 348 Beg, J. (as he then was) held that the principles applicable to the relation of a Private Master and servant unregulated by statute, could not apply to the cases of a public statutory body exercising powers of punishment lettered or limited by statute and relevant rules of procedure. This Court in a recent decision extended all the benefits of pay scales to all the Central Government Corporate Sector employees. It is, thus, I hold that the employees of the corporations, statutory 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 basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her held that in a modern democratic State, the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by Art. 311(2); but in regard to honest, straight-forward and efficient permanent civil servants, it is of utmost importance, even from the point of view of the State, that they should enjoy a sense of security which alone can make them independent and truly efficient. 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 lif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efficient service. It is also a valuable right which is to be duly put an end to only as per valid law. 13. How to angulate the effect of termination of service Law is a social engineering to remove the existing irabalance and to further the progress, serving the needs of the Socialist Democratic Bharat under rule of law. The prevailing social conditions and actualities of life are to be taken into account to adjudging whether the impugned legislation would subserve the purpose of the society. The arbitrary, unbriddled and naked power of wide discretion to dismiss a permanent employee without any guidelines or procedure would tend to defeat the constitutional purpose of equality and allied purposes 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be, where fear is, freedom cannot be. There is always a carving in the human for satisfaction of the needs of the spirit, by arming by certain freedom for some basic values without which life is not worth-living. It is only when the satisfaction of the physical needs and the demands of the spirit coexists, there will be true efflorescence of the human personality and the free exercise of individual faculties. Therefore, when the Constitution assures dignity of the individual and the right to livelihood the exercise of the power by the executive should be cushioned with adequate safeguards for the rights of the employees against any arbitrary and capracicous use of those powers. Contract of service 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions when encounter with the State or its instrumentalities are in conflict with the assured constitutional rights demand new values and begin to assert themselves, for no civilised system of law can accept the implications of absolute sanctity of contractual obligations and of their immutability. In paragraph 4 of Chitty on Contracts (25th Edition, Volume-I) it is stated that "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 interest of the community at large. In Anson's Law of Contract at p. 6 7 stated the scope of freedom of contract in the changing circumstances thus: "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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional conscience enjoined and a jealously to project and uphold new values in establishing the egalitarian social order. As a court of constitutional functionary exercising equity jurisdiction, this Court would relieve the weaker parties from unconstitutional contractual obligations, unjust, unfair, oppressive and unconscienable rules or conditions when the citizen is really unable to meet on equal terms with the State. It is to find whether the citizen, when entered into contracts or service, was in distress need or compelling circumstances to enter into contract on dotted lines or whether the citizen was in a position of either to "take it or leave it" and if it finds to be so, this Court would not shirk 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 lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit the economic benefits to be derived from dealings with the government to those who forego the exercise of constitutional rights, the exclusion of those retaining their rights from participation in the enjoyment of these benefits may be a violative of the prohibition, implicit in the due process clause of fifth amendment and explicit in the equal protection clause of the fourteenth amendment against unreasonable discrimination in the Governmental bestow of advantages. Finally, disabling those exercising certain rights from participating in the advantages to be derived from contractual relations with the government may be a form of penalty lacking in due process. To avoid invalidation for any of the above 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 Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a set of rules as part of the contract, however unfair, unreasonable and unconscienable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal or where both parties are businessmen and the contract is a commercial transaction. 22. In today's complex world of giant corporations with their vast infra-structural organisations and with the State through its instrumentalities and agencies has been entering into almost every branch of industry and commerce and field of service, there can be myriad situations which result in unfair and unreasonable bargains between parties possess 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the doctrine of public policy could provide a judge with an excuse for invalidating any contract which he violently disliked. On the other hand, the law does adapt itself to change in economic and social conditions, as can be seen particularly from the development of the rules as to contracts in restraint of public policy has often been recognised judicially. Thus Lord Haldane has said; "What the law recognises as contrary to public policy turns out to vary greatly from time to time." And Lord Denning has put a similar point of view. "with a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles." The present attitude of the Courts represents a compromise between the flexibility inherent 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view. equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. In Menaka Gandhi's case it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concentrate merely on the power of the State and the object of the State action in exercising that power is, therefore, to ignore the true intent of the constitution. The nature and content of the protection of the fundamental rights is measured not by the operation of the State action upon the rights of the individual but by its objects. The validity of the State action must be adjudged in the light of its operation upon the rights of the individuals or groups of the individual in all their dimensions. It is not the object of the authority making the law imparing the right of the citizen nor the form of action taken that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural justice in Part of Article 14. 29. The Menaka Gandhi's case is also an authority for the proposition that the principles of natural justice is an integral part of the guarantee of equality assured by Article 14 of the Constitution. In Union of India Anr. v. Tulsiram Patel Ors., [1985] Suppl. 2 SCR 13 1 at 233, this Court held that the principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article. Shortly put, the syllogism runs thus: "Violation of a rule of natural justice results in arbitrariness which is the same as discrimination; 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple while Art. 311(2) is a special provision applicable to all civil services under the State. Article 311(2) embodies the principles of natural justice but proviso to Clause (2) of Art. 311 excludes the operation of principles of natural justice engrafted in Art. 311(2) as an exception in the given circumstances enumerated in three clauses of the proviso to Art. 311(2) of the Constitution. Article 14 read with Arts. 16(1) and 311 are to be harmoniously interpreted that the proviso to Art. 311(2) excludes the application of the principles of natural justice as an exception; and the applicability of Art. 311(2) must, therefore, be circumscribed to the civil services and to be construed accordingly. In respect of all other employees covered by Art. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity who will terminate the service in the matter of selection or classification. Arbitrary and uncontrolled power is left in the authority to select at its will any person against whom action will be taken. The Rule, thus enables the authority concerned to discriminate between two railway servants to both of whom R. 148(3) equally applied by taking action in one case and not taking it in the other. In the exercise of the discretion by the authority the rule has therefore to be struck down as contravening the requirements of Art. 14 of the Constitution." 32. Even in Tulsiram Patel's case (supra) this Court declared that it must satisfy the test of justness, fairness and reasonableness of the procedure prescribed. But the proviso to Art. 311(2) was upheld for 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 Dek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im and an opportunity to meet it, nor has a better way been found for generating the feeling so important to a popular Government that justice has been done." Bradley, J. in United States v. Samuel D. singleton, [1981] 109 US 3 has held that: "No State shall make or enforce any law which abrogate the privileges or immunities of citizens of the United States." In Ramana's case (supra), it has been held that: is indeed unthinkable that in a democracy governed by the rule of law, the executive Govt. or any of its officers should possess arbitrary power over the interests of the individual ..... The procedure adopted should match with what justice demands. History shows that it is always subtle and insidious encroachments made ostensibly for a good cause that imperceptibly but surely 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. Jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts. 14 and 21, the citizen, with a view to secure public employment from us had contracted out of the constitutional rights and agreed to abide by rules including the termination of his/her services at any time at our will without notice or opportunity even for misconduct, negligence, inefficiency, corruption or rank nepotism, so we are free to impose the said punishment." Even in the case of minority institutions, when the employees are dismissed on the principle of hire and fire, this Court held it to be impermissible vide All Saints High School v. Government of A.P., [1980] 2 SCR 924 938 e to f; Frank Anthoney Public School v. Union of India, [1987] 1 SCR 238 269 b to e; Christian Medical College Hospital Employees' Union Anr. v. Christian Medical College, Veilore Association Ors., [1988] 1 SCR 546 562. In Moti Ram Deka's case this Court held that rules 148(3) and 149(3) trespassed upon the rights guaranteed to government servants by Art. 311(2) and would be void. In Kameshwar Prasad v. State of Bihar, [1962] Suppl. 3 SCR 369. Rule 4A of the Bihar Government Servants' Conduct Rules, 1956, in so far as it prohibited any form of demonstration was struck down by this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, fair and reasonable procedure. In other words an employee in a public employment also must not be arbitrarily unjustly and unreasonably be deprived of his/her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure. Otherwise any law or rule in violation thereof is void. Need for harmony between social interest and individual right 34. Undoubtedly efficiency of the administration and the discipline among the employees is very vital to the successful functioning of an institution or maximum production of goods or proper maintenance of the services. Discipline in that regard among the employees is its essential facet and has to be maintained. The society is vitally interested in the due discharge of the duties by the government employees or employees of corporate bodies'or statutory authorities or instrumentalities under Art. 12 of the Constitution. As held in Tulsiram Patel's case the public are vitally interested in the efficiency and integrity of the public service. The government or corporate employees are, after all, paid from the public exchequer to which everyone contributes either by way of direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionary power. It makes no difference whether the occasion for the exercise of power is personal default or act of policy. Good administration demands fair consultation in each case and this the law can and should enforce. The insistence of the observance of fundamental fairness in the procedure becomes a balancing balm to alleviate apprehension of arbitrary decision by the executive Government while assuring opportunity to disabuse the prima facie impression formed against the person to usher in a era of largest good to largest number of people with proper checks and balances between needs of the State and the rights of the individual. The brooding omni benevolence and omni competency of the need for expediency and claim for justness interplay ethos of fair adjudication in action. 34B. Therefore, it is no well tuned solace to say that in a court of law at the fag end of the currier or after superannuation in the interregnum which often over takes the litigation, that the employee would be meted out with justice (a grave uncertainty and exposing to frustrating procrastination of judicial process and expenses and social humiliation). Before depriving an employee of the means of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of statutory construction is that the words and phrases or sentences should be construed according to the intent of legislature that passed the Act. All the provisions should be read together. If the words of the statutes are in themselves precise and unambiguous, the words, or phrases or sentences themselves alone do, then no more can be necessary than to expound those words or phrases or sentences in their natural and ordinary sense. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have the recourse to the preamble, which is a key to open the minds of the makers of the statute and the mischiefs which the Act intend to redress. In determining the meaning of statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context. It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intent of the legislature then it is proper to look for some other possible meaning then the court cannot go further. 35. Craie's Statute Law, Seventh Ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is the principle effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond relevant legislative power, the Court would construe it in a more limited sense so as to keep it within the power." Similarly restricted meaning was ascribed by Maxwell in his Interpretation of the Statutes XII Edn. at p. 109 under the caption "Restriction of operation" that sometimes to keep the Act within the limits of its scope and not to disturb the existing law beyond what the object requires, it is construed as operative between certain purposes only even though the language expresses no such circumspection of field of operation. 36. It is, thus, clear that the object of reading down is to keep the operation of the statute within the purpose of the Act and consitutionally valid. In this regard it is equally of necessity to remind ourselves as held by this Court in Minerva Mills' case that when the effect of Art. 31 was asked to be read down so as to save it from unconstitutionality this Court held that it is not permissible to read down the statutory provisions when the avowed purpose is to confer power on an auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the latter portion of the impugned rules. We are not impressed by this argument. What are not impressed by this argument. What the latter portion of the impugned Rules provide is that in case a railway servant is dealt with under that portion, no notice need be served on him. The first part of the Rules can reasonably and legitimately take in all cases and may be used even in respect of cases falling under the latter category, provided, of course, notice for the specified period or salary in lieu of such notice is given to the railway servant. There is no doubt that on a fair construction, the impugned Rules authorise the Railway Administration to terminate the services of all the permanent servants to whom the Rules apply merely on giving notice for the specified period or on payment of salary in lieu thereof and that clearly amounts to the removal of the servant in question. Therefore, we are satisfied that the impugned rules are invalid inasmuch as they are inconsistent with the provisions contained in Art. 311(2). The termination of the permanent servant's tenure which is authorised by the said Rules is no more and no less than their removal from service, and so, Art. 311(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the service arbitrarily and capriciously. 39. Regulation 9(b), thereby deliberately conferred wide power of termination of services of the employee without following the principle of audi alteram partem or even modicum of procedure of representation before terminating the services of permanent employee. It is well settled rule of statutory construction that when two interpretations are possible one which would preserve and save constitutionality of a particular Statute, would be preferred to the other that would render it unconstitutional and void. When the language is clear, unambiguous and specific and it does not lead to the constructions, it is not permissible to read into those provisions something which is not intended. It is undoubtedly true as rightly contended by Mr. Ashok Desai, the learned Solicitor General that the power to take appropriate and expeditious action to meet the exigencies of weeding out inefficient, corrupt, indolent officers or employees from service should be provided and preserved to the competent authority. Any action taken without any modicum of reasonable procedure and prior opportunity always generates an unquenchable feeling that unfair treatme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity with the grounds or the material on records on which it proposed to take action, consider the objections and record reasons on the basis of which it had taken action and communicate the same. However scanty the material may be, it must form foundation. This minimal procedure should be made part of the procedure lest the exercise of the power is capable of abuse for good as well as for whimsical or capricious purposes for reasons best known to the authority and not germane for the purpose for which the power was conferred. The action based on recording reasoning without communication would always be viewed with suspicion. Therefore, 1 hold that conferment of power with wide discretion without any guidelines, without any just, fair or reasonable procedure is constitutionally anathema to Arts. 14, 16(1), 19(1)(g) and 21 of the Constitution. Doctrine of reading down cannot be extended to such a situation. 41. It is undoubted that in In re Hindu Women's Right to Property Act, [1941] FCR 12 involve the interpretation of single word "property" in the context to legislative competency but that cannot be extended to the facts of these cases. R.M.D. Charnarbaugwalla's case is of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court to lift the veil and pierce the impugned action to find whether the impugned action is the foundation to impose punishment or is only a motive. A larger Bench of seven Judges of this Court in Shamsher Singh v. State of Punjab, [1975] 4 SCR 814 elaborately considered the question and laid down the rule in this regard. The play of fair play is to secure justice procedural as well as substantive. The substance of the order, the effect thereof is to be looked into. Whether no misconduct spurns the action or whether the services of a probationer is terminated without imputation of misconduct is the test. Termination simpliciter, either due to loss of confidence or unsuitability to the post may be a relevant factor to terminate the services of a probationer. But it must be hedged with a bonafide over-all consideration of the previous conduct without trained with either mala-fide or colourable exercise of power or for extraneous considerations. Such actions were upheld by this Court. The action must be done honestly with due care and prudence. 43. In view of the march of law made by Art. 14, in particular after Maneka Gandhi's case, it is too late in the day to contend that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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