Full Judgment Text
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PETITIONER:
SHYAM LAL SHARMA & ORS.
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT08/11/1985
BENCH:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
BHAGWATI, P.N. (CJ)
TULZAPURKAR, V.D.
PATHAK, R.S.
MADON, D.P.
CITATION:
1987 AIR 1137 1987 SCC (3) 407
1987 SCALE (1)169
ACT:
Constitution of India, 1950--Articles 310(1) & 311 (2)
(b)--Power exercisable by President/Governor--Not on person-
al satisfaction but with the aid and advice of Council of
Ministers--Workers have a right to struggle and strive for
economic justice--Constitution makers did not design provi-
sions for breaking a worker’s strike.
HEADNOTE:
The petitioners, who were Railway employees, were either
dismissed or removed from service without holding any en-
quiry for striking work, paralysing railway services, as-
sualting and intimidating loyal workers and superior offi-
cers, etc. The writ petitions flied in the High Courts
challenging the orders of dismissal or removal stood trans-
ferred to this Court, heard along with other writ petitions
and civil appeals and by judgment dated 11th July, 1985
dismissed.
The, petitioners sought review of the said judgment
alleging that during the course of arguments, parties had
proceeded on the assumption that the Court would decide only
the seven questions framed by the then Hon’ble the Chief
Justice, and the individual petitions on merits would he
dealt with either by the Division Benches of this Court or
by the respective High Courts, that the parties addressed
their arguments and submissions only on those general ques-
tions, that written submissions were made only in transfer
case No. 55 of 1982 amongst all the railway matters, that
none of the petitioners had been given any opportunity to
argue their cases on merits, that the judgment under review
dismissed all the transferred cases and thus all these
petitions stand decided on merits also, that this has caused
serious prejudice to their cases and, therefore, in the
interest of justice, another opportunity should he given to
argue the petitions on merits.
Dismissing the Review Petitions,
HELD: Per P.N. Bhagwati, C.J., V.D. Tulzapurkar, R.S.
Pathak and D.P. Madon, JJ.
899
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The Review Petitions are dismissed as there is no sub-
stance in the grounds urged.
Per M.P. Thakkar, J. dissenting.
1. There is good ground to entertain the Review Peti-
tions and issue notice to the other side for hearing. [904E]
2. There is substance in the grounds because no notices
have been issued on the Review Petitions and the averments
have not been controverted by the other side. In the majori-
ty judgment also it has not been stated that the averments
are factually untrue. [901D-E]
3. That the matter of Narpat Singh was not argued on its
individual merits is correct. Unless the factual averments
made in Para 9 of the Review Petition are shown to be un-
true, these may be considered adequate to vitiate the im-
pugned order on the ground that it manifests non-application
of mind and is built on ’no evidence’. [902C]
4. In the majority judgment the proposition. of law has
been enunciated that the pleasure under Article 310(1) can
be exercised even by an authority specified in the Act or
rules made under the proviso to Article 309. [902D-E]
5. The power under Article 310(1) is exercisable even by
the President or Governor, not on his personal satisfaction,
but with the aid and on the advice of the Council of Minis-
ters. Can the same power be exercised by a Divisional Me-
chanical Engineer or any other lower functionary acting on
his own, there being no question of his acting with the aid
or advice of the Council of Ministers? Can the D.M.E. who
does not even act in the name of the President, surrogate
for the President? It is certainly an important Constitu-
tional issue which requires to be examined, but has not been
examined from this perspective though the point was debated.
[903B-D]
6. Will it not tantamount to speaking in two voices to
hold that principles of Natural Justice need not be complied
with even in regard to the quantum of punishment to be
inflicted on a workman, even though the law declared so far
demands that even a black marketeer cannot be black-listed
without observing the principles of Natural Justice? Is a
workman who ’sweats’ for the Nation not entitled to the same
treatment as a black-marketeer, who ’bleeds’ the Nation?
[903D-E]
900
7. The workers certainly have a right to struggle and
strive for economic justice in a country the Constitution of
which in the Preamble, proclaims it to be a "Sovereign
SOCIALIST Secular Democratic Republic". Going on strike in
the course of such a struggle cannot be characterized as
holding the country to ransom and be frowned upon. Nor can
they be condemned as seekers of private gain for endeavour-
ing to remove their economic distress and plight to bring
about a just society. And it cannot be said on that account
that it is not "reasonably practicable" to hold the enquiry
in the case of any workman if there is a country-wide gener-
al strike by workers. [904B-904D]
8. Article 311(2)(b) was surely not designed by the
Founding Fathers in order to enable ’breaking’ of a strike
called in support of workers’ demands for socio-economic
justice. The issue therefore deserves to be examined in the
light of this perspective. [904D]
JUDGMENT:
CIVIL ORIGINAL JURISDICTION: Review Petition Nos. 571-
586 & 586A of 1985.
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In Transfer Cases Nos. 52 to 68 of 1982.
By Circulation.
The Order of the Court was delivered by
ORDER
We have considered the grounds urged in the Review
Petition and since we find no substance in them. the Review
Petition are dismissed.
PER THAKKAR, J. While it is not agreeable to disagree
with the. majority. my conscience commands. and my sense of
duty demands. that I should disagree. Disagree with the
proposed order dismissing the Review Petitions in limine
with the remark that "we find no substance in them", without
affording to the Petitioners any opportunity of hearing in
the Court to substantiate the grounds urged by them.
2. One of the grounds urged. ground No. 8 in the Petitions,
is:-
"8. That during the course of arguments the parties had
proceeded on the assumption that the Hon’ble Court would
901
decide only the 7 questions framed by the then Hon’ble Chief
Justice and the individual petitions on merits would be
dealt with either by the Division Benches of this Hon’ble
Court or by the respective High Courts. It was on this
assumption that the parties addressed their arguments and
submissions only on those general questions. It is for this
reason that written submissions were made only in T.C. No.
55 of 1982 amongst all the Railway matters. None of the
Petitioners had been given any opportunity to argue their
cases on merits. The judgment under review dismissed all the
Transferred Cases and thus all these petitions stand decided
on merits also. It is, therefore, necessary that in the
interest of justice, the petitioner should be given another
opportunity to argue their petitions on merits. This has
caused serious prejudice to their cases is apparent from the
facts of a few cases reference whereto is made herein
after."
It is not possible to say that there is no substance in this
ground because no notices have been issued on the Review
Petitions and the averments have not been controverted by
the other side. So also it is not stated in the majority
judgment that the averment is factually untrue. Reference
may be made to ground number 9 in Review Petitions Nos. 57 1
to 586A of 1985 which reads as under:-
’’9. That it may be submitted ’that the petitioner Shri
Narpat Singh had been served with the Office Order identical
to the one reproduced in para 3 above and was charged with
stoppage of work from 3.2. 1981 and missing from his place
of duty and for intimidating and pressurising the loyal
employees for not joining duty.
The fact is that the-petitioner, Narpat Singh is a
patient of Asthama and was under the treatment of the Rail-
way Medical Authorities between December 1980 to 1.2.1981 as
outdoor patient. On 2.2. 1981 while on duty as Shed-man is
DSL/Shed BGKt in shift 6 hours to 14 hours, he developed
breathing difficulties and was unable to perform his duties.
He obtained sick memo G/92 on 2.2.1981 from GFO/DSL BGKt and
while leaving duty proper charge was handed over by the
petitioner. He was advised complete rest and sick certifi-
cate No. 62 of 2.2.1981 for 27 days was submitted.
902
In these circumstances the petitioner could not be
treated as on un-authorised absence from work from 3.2.1981
when he had obtained G-92 on 2.2.1981 and had sent in his
sick certificate and had observed all clue formalities of
reporting sick as required under the rules. Had the cases
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been argued on merits, the petitioner, Narpat Singh would
have shown to the Hon’ble Court as to how he could not be
treated on un-authorised absence and that the dismissal
order has been malafidely issued in a mechanical manner and
cannot be substained."
That the matter of Narpat Singh was not argued on its
individual merits is correct. Unless the factual averments
made in para 9 are shown to be untrue, these may be consid-
ered adequate to vitiate the impugned order on the ground
that it manifests non-application of mind and is built on
’no evidence’. This is a good ground to entertain the Review
Petition and issue notice to the other side for heating in
the Court.
3. In the majority judgment [1985] 3 SCC 398
(451) paragraph 59 the proposition of law has been enunciat-
ed that the pleasure under Article 310(1) can be exercised
even by an authority specified in the Act or rules made
under Article 309 (proviso) in the passage quoted below:-
"Thus, though trader Article 310(1) the tenure of a govern-
ment servant is at the pleasure of the President or the
Governor, the exercise of such pleasure can be either by the
President or the Governor acting with the aid and on the
advice of the Council of Ministers or by the authority
specified in the Acts made under Article 309 or in rules
made under such Acts or made under the proviso to Article
309 and in the case of clause (c) of the second proviso to
Article 311 (2), the inquiry is to be dispensed with not on
the personal satisfaction of the President or the Governor
but on his satisfaction arrived at with the aid and on the
advice of the Council of Ministers .... "
(Emphasis supplied)
Serious Constitutional questions, such as the following,
arise in this context: When the Constitution advisedly
invests powers in regard to the exercise of pleasure on the
incumbents of highest executive office can these powers be
exercised by any other official, say Divl. Mechani-
903
cal Engineer (DME)? By a process of interpretation (and not
amendment) can it be so construed that what the President by
virtue of Article 310 (1) can do, the DME of the Railway can
do by virtue of the same Article? It would virtually amount
to amending Article 310 (1) by adding the words "or by any
other authority ....". That is to say to rewrite an article
in the Constitution. Is this permissible? What is more, the
power under Article 310 (1) is exercisable-even by the
President or the Governor, not on his personal satisfaction,
but with the aid and on the advice of the Council of
Ministers. Can the same power be exercised by a D.M.E. or
any other lower functionary acting on his own, there being
no question of his acting with the aid or advice of the
council of Ministers? Can the DME who does not even act in
the name of the President, surrogate for the President? It
is certainly an important Constitutional issue which
requires to be examined, but has not been examined, from
this perspective though the point was debated. This is
another ground to entertain the Review Petition and to issue
a notice to the other side for heating in the Court.
4. Another ground for entertaining the Review Petition
is this: Will it not be tantamount to speaking in two voices
to hold that principles of Natural Justice need not be
complied with even in regard to the quantum of punishment to
be inflicted on a workman, even though the law declared so
far demands that even a black marketeer cannot be black-
listed without observing the principles of Natural Justice?
Is a workman who ’sweats’ for the Nation not entitled to the
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same treatment as a black marketeer who ’bleeds’ the Nation?
5. An extremely serious and important ground for review
also arises in the context of the doctrine enunciated in the
following passages [1985] 3 SCC 398 (522,523), paragraphs
170, 173:--
"It may be that the railway servants went on these strikes
with the object of forcing the Government to meet their
demands. Their demands were for their private gain and in
their private interest. In seeking to have these demands
conceded they caused untold hardship to the public and
prejudicially affected public good and public interest and
the good and interest of the nation.
............. In the context of an all-India strike
where a very large, number of railway servants had struck
work, the railway services paralysed, loyal workers and
superior officers assaulted and intimidated, the country
904
held to ransom, the economy of the country and public inter-
est and public good prejudicially affected, prompt and
immediate action was called for to bring the situation to
normal. In these circumstances, it cannot be said that an
enquiry was reasonably practicable."
The workers certainly have a right to struggle and strive
for economic justice in a country the Constitution of which,
in the preamble, proclaims it to be a "Sovereign SOCIALIST
Secular Democratic Republic". Going on strike in the course
of such a struggle cannot be characterized as holding the
country to ransom and be frowned upon. Nor can they be
condemned as seekers of private gain for endeavouring to
remove their economic distress and plight to bring about a
just society. And it cannot be said on that account that it
is not "reasonably practicable" to hold the inquiry in the
case of any workman if there is a country wide general
strike by workers. Article 311 (2)(b) was surely not de-
signed by the Founding Fathers in order to’ enable ’braking’
a strike called in support of workers’ demands for socio-
economic justice. The issue therefore deserves to be exam-
ined in the light of this perspective and the Review Peti-
tions deserve to be admitted.
6. On these grounds and in the light of the other
grounds urged in the Review Petitions, the Review Petitions
deserve to be heard in the Court. It is therefore directed
that the Review Petitions be admitted, notices be issued to
the Respondents, and the matters may be placed in the Court
for further hearing.
A.P.J.
905