Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
D.K. YADAV
Vs.
RESPONDENT:
J.M.A. INDUSTRIES LTD.
DATE OF JUDGMENT07/05/1993
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
KULDIP SINGH (J)
RAMASWAMI, V. (J) II
CITATION:
1993 SCR (3) 930 1993 SCC (3) 259
JT 1993 (3) 617 1993 SCALE (3)39
ACT:
%
Constitution of India, 1950:
Articles 14 and 21-Right of private employer to terminate
service under certified standing order, without holding any
domestic enquiry--Whether violative of principles of natural
justice and fundamental rights--Held: Since termination of
service results in deprivation of right to livelihood, it is
to be effected in accordance with just, fair and reasonable
procedure.
Article 141-Precedents-Reconsideration of on new grounds-
Whether & when permissible.
Industrial Disputes Act, 1947:
Sections 25F, 25FF and 25FFF-Retrenchment under Certified
Standing Orders-Whether attracts principles of natural
justice-Whether employer’s action to be fair, just and
reasonable.
Section 2(oo)--Retrenchment--Meaning and scope of.
Industrial Employment (Standing Orders) Act, 1946:
Section 5--Certified Standing Orders-Absence from duty-
Deemed termination of service without enquiry or opportunity
of hearing--Validity of--Whether attract principles of
natural justice and Articles 14 and 21 of the Constitution-
Whether principles of natural justice to be read into clause
13 (2) (iv) of Certified Standing Orders.
Administrative Law:
Rule of natural justice--Aim of--Whether principles of
natural justice applicable to both quasi-judicial as well as
administrative action.
931
HEADNOTE:
The respondent-company terminated the appellant’s services
on the ground that since he had willingly absented from duty
continuously for more than 5 days from December 3, 1980,
without leave or prior information of intimation or previous
permission of the management, he had been deemed to have
left the service of the company on his own and lost the lien
and the appointment with effect from December 3, 1980. It
relied on clause 13(2) (iv) of the Certified Standing Order
in support of its action.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
The appellant’s plea that despite his reporting to duty on
December 3, 1980 and every day continuously thereafter, he
was prevented entry at the gate and was not allowed to sign
the attendance register and that he was not permitted to
join duty without assigning any reasons, was not accepted.
The Labour Court upheld the termination order as legal and
valid. It held that the appellant had failed to prove his
case, that the action of the respondent was in accordance
with the Standing Orders and it was not a termination nor
retrenchment under the Industrial Disputes Act and that the
appellant in terms of Standing Orders lost his lien on his
appointment and was not entitled to reinstatement.
Allowing the appeal of the employee, this Court
HELD:1.1. The action of the management in terminating the
appellant’s service is violative of the principles of
natural justice. Under clause 13 (2) (iv) of Certified
Standing Orders, on completion of eight calendar days’
absence from duty an employee shall be deemed to have
abandoned the services and lost his lien on his appointment.
Thereafter, the management is empowered to strike off the
name from the Muster Rolls. But it is not correct to say
that expiry of eight days’ absence from duty brings about
automatic loss of lien on the post and nothing more need be
done by the management to pass an order terminating the
service and per force termination is automatic. The prin-
ciples of natural justice must be read into the Standing
Order No. 13 (2) (iv). Otherwise, it would become
arbitrary, unjust and unfair violating Article 14.
Keshwanand Bharti v. Union of India, [1973] Suppl. S.C.R. 1
and State Bank of India v. Workmen of State Bank of India
and Anr. [1991] 1 S.C.C. 13, referred to.
1.2. In the instant case,admittedly,the management did not
conduct any domestic enquiry nor gave the appellant any
opportunity to put forth his case.
932
The Labour Court did not record any findings on the
appellant’s plea that despite his reporting to duty on
December 3,1980 and on all subsequent days and readiness to,
join duty he was prevented from reporting to duty, nor he
was permitted to sign the attendance register, but held that
the management had power under clause 13 of the Certified
Standing Orders to terminate the service of the appellant.
Under the circumstances, the award of the Labour Court is
set aside. The respondent should reinstate the appellant
forthwith with 50 per cent of the back wages.
2.1. Certified Standing Orders have statutory force which do
not expressly exclude the application of the principles of
natural justice. Conversely, the Industrial Disputes Act
made exceptions for the application of principles of natural
justice by necessary implication from specific provisions in
the Act like Sections 25F, 25FF, 25FFF etc. The need for
temporary hands to cope with sudden and temporary spurt of
work demands appointment temporarily, to a service of such
temporary workmen to meet such exigencies and as soon as the
work or service is completed, the need to dispense with the
services may arise. In that situation, on compliance of the
provisions of Section 25F resort could be had to retrench
the employees in conformity therewith. Particular statute
or statutory rules or orders having statutory flavour may
also exclude the application of the principles of natural
justice expressly or by necessary implication. In other
respects, the principles of natural justice would apply
unless the employer should justify the exclusion on given
special and exceptional exigencies.
Col. J.N. Sinha v. Union of India & Anr., [1971] 1 S.C.R.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
791, relied on.
3.1. Application of the principles of natural justice that
no man should be condemned unheard intends to prevent the
authority to act arbitrarily affecting the rights of the
concerned person. No decision must be taken which will
affect the right of any person without first being informed
of the case and be given him/her an opportunity of putting
forward his/her case. An order involving civil consequences
must he made consistently with the rules of natural justice.
It is not so much to act judicially but to act fairly,
namely, the procedure adopted must he just, fair and
reasonable in the particular circumstances of the case.
3.2. The procedure prescribed for depriving a person of
livelihood must meet the challenge of Article 14 of the
Constitution and such law would be liable to be tested on
the anvil of Article 14. The procedure prescribed by a
933
statute or statutory rule or rules or orders affecting the
civil rights or result in civil consequences would have to
answer the requirement of the Article. The manner of
exercise of the power and its impact on the rights of the
person affected would be in conformity with the principles
of natural justice. Article 14 has a pervasive processual
potency and versatile quality, equalitarian it its soul and
allergic to discriminatory dictates. Equality is the
antithesis of arbitrariness. Therefore, the principles of
natural justice are part of Article 14 and the procedure
prescribed by law must be right, just, fair and reasonable
and not arbitrary, fanciful or oppressive.
Mohinder Singh Gill & Anr. v. The Chief Election
Commissioner & Ors. [1978] 2 S.C.R. 272; State of Orissa v.
Dr. (Miss) Binapani Dei & Ors., [1967] 2 S.C.R. 625; State
of West Bengal v. Anwar Ali Sarkar, [1952] S.C.R. 284 and
Maneka Gandhi v. Union of India, [1978] 2 S.C.R. 621, relied
on.
Blak’s law Dictionary 4th Edn. p. 1487; referred to.
4. Article 21 of the Constitution clubs life with liberty,
dignity of person with means of livelihood without which the
glorious content of dignity of person would be reduced to
animal existence. When it is interpreted that the colour
and content of procedure established by law must be in
conformity with the minimum fairness and processual justice,
it would relieve legislative callousness despising
opportunity of being heard and fair opportunities of
defence. The order of termination of the service of an
employee/workman visits with civil consequences of
jeopardising not only his/her livelihood but also career and
livelihood of dependents. Therefore, before taking any
action putting an end to the tenure of an employee/workman,
fair play requires that a reasonable opportunity to put
forth his case is given and domestic enquiry conducted
complying with the principles of natural justice.
Delhi Transport Corpn. v. D. T.C. Mazdoor Congress, and
Ors., [1991] Suppl. 1 S.C.C. 600, relied on.
5.1. The aim of the rule of natural justice is to secure
justice or to put it negatively to prevent miscarriage of
justice. These rules operate in the area not covered by law
validly made or expressly excluded.
5.2. There can be no distinction between a quasi-judicial
function and an administrative function for the purpose of
principles of natural justice. The aim of both
administrative inquiry as well as the quasi-judicial enquiry
is to
934
arrive, at a just decision and if a rule of natural justice
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
is calculated to secure justice or to put it negatively, to
prevent miscarriage of justice, it must logically be
applicable both to quasi-judicial enquiry and administrative
enquiry and not only to quasi-judicial enquiry.
A. K. Kriapak and Ors. v. Union of India & Ors. [1969] 2
S.C.C. 262, relied on.
6.1. An authoritative law laid after considering all the
relevant provisions and the previous precedents is no longer
open to be recanvassed on new grounds or reasons that may be
put forth in its support unless the Court deemed it
appropriate to refer to a larger bench in the larger public
interest to advance the cause of justice.
Ambika Prasad Mishra v. State of U. P. & Ors. [1980] 3
S.C.C. 7 10 and Keshwanand Bharti v. Union of India, [1973]
Suppl. S.C.R. 1, relied on.
6.2. The Constitution Bench in fact went into the self same
question visa-vis the right of the employer to fall back
upon the relevant provision of the Certified Standing Orders
to terminate the service of the workman/employee.
Therefore, it is not correct to say that since the present
appeal was deleted from the Constitution Bench to be dealt
with separately, the finding of the Constitution Bench
deprived the respondent of putting forth the plea based on
clause 13 of the Certified Standing Order to support the
action in question and the respondent is entitled to canvass
afresh the correctness of the view of the Constitution
Bench.
7. The definition of ’retrenchment’ in Section 2(oo) of
the Industrial Disputes Act, 1947 is a comprehensive one
intended to cover any action of the management to put an end
to the employment of an employee for any reason whatsoever.
Punjab Land Development and Reclamation Corpn. Ltd.,
Chandigarh v. Presiding Officer, Labour Court, Chandigarh
and Ors., [1990] 3 S.C.C. 632; State Bank of India v. Sri N.
Sundara Mani, [1976] 3 S.C.R 160; Delhi Cloth & General
Mills Ltd. v. Shambhu Nath Mukherjee & Ors., [1978] 1 S.C.R.
591; Hindustan Steel Ltd. v. The Presiding Officer, Labour
Court, [1977] 1 S.C.R. 586: Robert D’ Souza v. Executive
Engineer Southern Railway, and Anr., [1982] 1 S.C.C. 645 and
H.D. Singh v. Reserve Bank of India & Ors., [1985] 4
S.C.C.201, referred to.
935
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 166 (NL) of
1983.
From. the Award dated 19.4.1982 of the Labour Court, Haryana
at Faridabad in Reference No. 227 of 198 1.
R.K. Jain, R.P. Singh, Aseem Malhotra, Ashish Verma, Manoj
Goel, R.K. Khanna and Ms. Abha R. Sharma for the Appellant.
Dr. Anand Prakash, Ghosh for M/s Fox Mandal & Co. and Som
Mandal for the Respondent.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. This appeal by special leave is against
the award of the Labour Court, Haryana at Faridabad dated
April 19, 1982 which was published in the State Gazette on
August 10, 1982.It upheld the termination of the appellant’s
service as legal and valid. The respondent, by its letter
dated December 12, 1980 which was received by the appellant
on December 19, 1980, intimated that the appellant wilfully
absented from duty continuously for more than 8 days from
December 3, 1980 without leave or prior information or
intimation or previous permission from the management and,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
therefore, "deemed to have left the service of the company
on your own account and lost your lien and the appointment
with effect from December 3, 1980." In support thereof
reliance was placed on clause 13 (2) (iv) of its Certified
Standing Order. The appellant averred that despite his
reporting to duty on December 3, 1980 and everyday
continuously thereafter he was prevented entry at the gate
and he was not allowed to sign the attendance register. He
pleaded that he was not permitted to join duty without
assigning any reasons. His letter of December 3, 1980 was
marked herein as Annexure ’A’ wherein he explained the
circumstances in which he was prevented to join duty. The
Tribunal found that the appellant had failed to prove his
case. The action of the respondent is in accordance with
the standing Orders and it is not a termination nor
retrenchment under the Industrial Disputes Act, 1947 for
short ’the Act’. The appellant in terms of standing orders
lost his lien on his appointment and so is not entitled to
reinstatement.
Clause 13 (2) (iv) standing order reads thus:
"If a workman remains absent without
sanctioned leave or beyond the period of leave
originally granted or subsequently extended,
he shall lose his lien on his
936
appointment unless.
(a) he returns within 3 calander days of the
commencement of the absence of the expiry of
leave originally granted or subsequently
extended as the case may be; and
(b) explains to the satisfaction of the
manager/management the reason of his absence o
r
his inability to return on the expiry of the
leave, as the case may. The workman not
reporting for duty within 8 calander days as
mentioned above, shall be deemed to have
automatically abandoned the services and lost
his lien on his appointment. His name shall
be struck off from the Muster Rolls in such an
eventuality."
A reading thereof does indicate that if a workman remains
absent without sanction of leave or beyond the period of the
leave originally granted or subsequently extended the
employee loses his lien on employment unless he returns to
duty within eight calander days of the commencement of the
absence or the expiry of leave either originally granted or
subsequently extended. He has to give a satisfactory
explanation to the Manager/Management of his reasons for
absence or inability to return to the duty on the expiry of
the leave. On completion of eight calander days’ absence
from duty he shall be deemed to have abandoned the services
and lost his lien on his appointment. Thereafter the
management has been empowered to strike off the name from
the Muster Rolls.
Section 2(oo) of the Act defines ’Retrenchment’ means the
termination by the employer of the service of a workman for
any reason whatsoever, otherwise than as a punishment
inflicted by way of disciplinary action, but does not
include-
(a) voluntary retirement of the workman, or
(b) retirement of the workman on reaching
the age of superannuation of the contract of
employment between the employer and the
workman concerned contains a stipulation in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
that behalf, or
(c) termination of the service of a workman
on the ground of continued ill health."
Section 25F prescribes mandatory procedure to be followed
before the retrenchment becomes valid and legal and
violation thereof visits with invalida-
937
tion of the action with consequential results.
In Punjab Land Development and Reclamation Corporation Ltd.,
Chandigarh v. Presiding Officer, Labour Court, Chandigarh
and Ors., [1990] 3 SCC 632 the Constitution Bench considered
the scope of the word ’retrenchment’ defined by s.2(oo) and
held in para 71 at page 716 that "analysing the definition
of retrenchment in Section 2(oo) we find that termination by
the employer of the service of a workman would not otherwise
have covered the cases excluded in Clauses (a) and (b)
namely, voluntary retirement and retirement on reaching the
stipulated age of retirement or on the grounds of continued
ill health. There would be no violational element of the
employer. Their express exclusion implies that those would
otherwise have been included". In para 77 at page 719 it
was further held that "right of the employer and the
contract of employment has been effected by introducing
Section 2(oo)". The contention of the management to
terminate the service of an employee under the certified
standing Orders and under the contracts of employment was
negatived holding that the right of the management has been
effected by introduction of s. 2(oo) and s. 25F of the Act.
The second view was that the right as such has not been
effected or taken away, but only an additional social
obligation has been imposed on the employer to abide by the
mandate of s. 25F of the Act to tide over the financial
difficulty which subserves the social policy. This court
relied on the maxim-Stat pro ratione valuntas populi; the
will of the people stands in place of a reason. In
paragraph 82 at page 722 this court concluded that the
definition in s.2(oo) of the Act of retrenchment means "the
termination by the employer of the service of a workman for
any reason whatsoever except those expressly excluded in the
section". Same view was taken by three benches of three
Judges of this Court in State Bank of India v. Sri N.
Sundara Mani; [1976] 3 SCR 160 ; Delhi Cloth & General Mills
Lid. v. Shambhu Nath Mukherjee & Ors [1978] 1 SCR 591 and
Hindustan Steel Ltd. v. The Presiding Officer. Labour Court
[1977] 1 SCR 586 and two benches of two judges in Robert
D’Souza v. Executive Engineer, Southern Railway and Anr.
[1982] 1 SCC 645 and H. D. Singh v. Reserve Bank of India
and Ors. [1985] 4 SCC 201 took the same view. Therefore, we
find force in the contention of Sri R. K. lain, the learned
Senior counsel for the appellant that the definition
’retrenchment’ in S.2(oo) is a comprehensive one intended to
cover any action of the management to put an end to the
employment of an employee for any reason whatsoever. We
need not, however, rest our conclusion on this point as in
our considered view it could be decided on the other
contention raised by Sri Jain that the order is violative of
the principles of natural justice. We are impressed with
that argument. Before dealing with it, it is necessary to
dispose of inter related contentions raised by Dr. Anand
Prakash.
938
The contention of Dr. Anand Prakash that since this appeal
was deleted from the constitution bench to be dealt with
separately, the finding of the constitution bench deprived
the respondent of putting forth the contention based on Cl.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
13 of the certified standing order to support impugned
action and the respondent is entitled to canvass afresh the
correctness of the view of the constitution bench is devoid
of force. It is settled law that an authoritative law laid
after considering all the relevant provisions and the
previous precedents, it is no longer open to be recanvassed
the same on new grounds or reasons that may be put forth in
its support unless the court deemed appropriate to refer to
a larger bench in the larger public interest to advance the
cause of justice. The constitution bench in fact went into
the self same question vis-a-vis the right of the employer
to fall back upon the relevant provision of the certified
standing Orders to terminate the service of the
workman/employee. By operation of S. 2(oo) the right of the
employer under Cl.13(2) (iv), and the contract of employment
has been effected. Moreover in Ambika Prasad Mishra v.
State of U.P. and Ors., [1980] 3 SCC 719 at 72-23 para 5 &
6. A constitution bench held that every new discovery or
argumentative novelty cannot undo or compel reconsideration
of a binding precedent. It does not lose its authority
’merely’ because it was badly argued, inadequately
considered and fallaciously reasoned. In that case the
ratio of this court on Art. 31A decided by 13 Judges bench
in Keshwanand Bharti v. Union of India [1973] Suppl. SCR
was sought to be reopened but this court negatived the same.
His contention that expiry of eight days’ absence from duty
brings about automatic loss of lien on the post and nothing
more need be done by the management to pass an order
terminating the service and per force termination is
automatic, bears no substance. The constitution bench
specifically held that the right of the employer given under
the standing Orders gets effected by statutory operation.
In Robert D’ Souza’s case (supra) in para 7, this court
rejected the contention that on expiry of leave the
termination of service is automatic and nothing further
could be done. It was further held that striking of the
name from the rolls for unauthorised absence from duty
amounted to termination of service and absence from duty for
8 consequitive days amounts to misconduct and termination of
service on such grounds without complying with minimum prin-
ciples of natural justice would not be justified. In
Shambhunath’s case three Judges bench held that striking of
the name of the workman for absence of leave itself amounted
to retrenchment. In H.D. Singh v. Reserve Bank of India &
Ors. (supra), this court held that striking of the name from
the rolls amounts to an arbitrary action. In State Bank of
India v. Workmen of State Bank of India and Anr.[1991] 1 SCC
13, a two judge bench of this court to which one of us,
K.R.S.,J. was a member was to consider the effect of
discharge on one month’s notice or pay in
939
lieu thereof. It was held that it was not a discharge
simplicitor or a simple termination of service but one
camouflaged for serious misconduct. This court lifted the
veil and looked beyond the apparent tenor of the order and
its effect. It was held that the action was not valid in
law.
The principle question is whether the impugned action is
violative of principles of natural justice. In A.K. Kriapak
and Ors. v. Union of India & Ors., [1969] 2 SCC 262 a
Constitution bench of this court held that the distinction
between quasi judicial and administrative order has
gradually become thin. Now it is totally clipsed and
obliterated. The aim of the rule of the natural justice is
to secure justice or to put it negatively to prevent
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
miscarriage of justice. These rules operate in the area not
covered by law validly made or expressly excluded as held in
Col. J.N. Sinha v. Union of India & Anr. [1971] 1 SCR 791.
It is settled law that certified standing orders have
statutory force which do not expressly exclude the
application of the principles of natural justice.
Conversely the Act made exceptions for the application of
principles of natural justice necessary implication from
specific provisions in the Act like Ss.25F; 25FF; 25FFF;
etc, the need for temporary hands to cope with sudden and
temporary spurt of work demands appointment temporarily to a
service of such temporary workmen to meet such exigencies
and as soon as the work or service are completed, the need
to dispense with the services may arise. In that situation,
on compliance of the provisions of s. 25F resort could be
had to retrench the employees in conformity therewith
particular statute or statutory rules or orders having
statutory flavour may also exclude the application of the
principles of natural justice expressly or by necessary
implication. In other respects the principles of natural
justice would apply unless the employer should justify its
exclusion on given special and exceptional exigencies.
The cardinal point that has to be borne in mind, in every
case, is whether the person concerned should have a
reasonable opportunity of presenting his case and the
authority should act fairly, justly, reasonably and
impartially. It is not so much to act judicially but is to
act fairly, namely’ the procedure adopted must be just, fair
and reasonable in the particular circumstances of the case.
In other words application of the principles of natural
justice that no man should be condemned unheard intends to
prevent the authority to act arbitrarily effecting the
rights of the concerned person.
940
It is a fundamental rule of law that no decision must be
taken which will affect the right of any person without
first being informed of the case and be given him/ her an
opportunity of putting forward his/her case. An order
involving civil consequences must be made consistently with
the rules of natural justice. In Mohinder Singh Gill & Anr.
v. The Chief Election Commissioner & Ors. [1978] 2 SCR 272
at 308F the Constitution Bench held that ’civil consequence’
covers infraction of not merely property or personal right
but of civil liberties, material deprivations and non-
pecuniary damages. In its comprehensive connotion every
thing that affects a citizen in his civil life inflicts a
civil consequence. Black’s Law Dictionary, 4th Edition,
page 1487 defined civil rights are such as belong to every
citizen of the state or country they include rights capable
of being enforced or redressed in a civil action. In State
of Orissa v. Dr. (Miss) Binapani Dei & Ors., this court held
that even an administrative order which involves civil
consequences must be made consistently with the rules of
natural justice. The person concerned must be informed of
the case, the evidence in support thereof supplied and must
be given a fair opportunity to meet the case before an
adverse decision is taken. Since no such opportunity was
given it was held that superannuation was in violation of
principles of natural justice.
In State of West Bengal v. Anwar Ali Sarkar [1952] SCR 289,
per majority, a seven Judge bench held that the rule of
procedure laid down by law comes as much within the purview
of Art. 14 of the Constitution as any rule of substantive
law. In Maneka Gandhi v. Union of India,. [1978] 2 SCR 62
1, another bench of seven judges held that the substantive
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
and procedural laws and action taken under them will have to
pass the test under Art, 14. The test 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 he reasonable. The procedure prescribed
must be just, fair and reasonable even though there is no
specific provision in a statute or rules made thereunder for
showing cause against action proposed to be taken against an
individual, which affects the right of that individual. The
duty to give reasonable opportunity to be heard will be
implied from the nature of the function to be performed by
the authority which has the power to take punitive or
damaging action. Even executive authorities which take
administrative action involving any deprivation of or
restriction on inherent fundamental rights of citizens, must
take care to see that justice is not only done but
manifestly appears to be done. They have a duty to proceed
in a way which is free from even the appearance of
arbitrariness, unreasonableness or unfairness. They have to
act in a manner which is patently impartial and meets the
requirements of natural justice.
The law must therefore be now taken to be well-settled that
procedure prescribed for depriving a person of livelihood
must meet the challenge of Art. 14.
941
and such law would be liable to be tested on the anvil of
Art. 14 and the procedure prescribed by a statute or
statutory rule or rules or orders effecting the civil rights
or result in civil consequences would have to answer the
requirement of Art. 14. So it must be right,just and fair
and not arbitrary, fanciful or oppressive. There can be no
distinction between a quasi-judicial function and an
administrative function for the purpose of principles of
natural justice. The aim of both administrative. inquiry as
well as the quasi-.judicial enquiry is to arrive at a just
decision and if a rule of natural justice is calculated to
secure justice or to put it negatively, to prevent
miscarriage of justice, it is difficult to see why it should
be applicable only to quasi-judicial enquiry and not to
administrative enquiry. It must logically apply to both.
Therefore, fair play in action requires that the procedure
adopted must be just, fair and reasonable. The manner of
exercise of the power and its impact on the rights of the
person affected would be in conformity with the principles
of natural justice. Art. 21 clubs life with liberty,
dignity of person with means of livelihood without which the
glorious content of dignity of person would be reduced to
animal existence. When it is interpreted that the colour
and content of procedure established by law must be in
conformity with the minimum fairness and processual justice,
it would relieve legislative callousness despising opportu-
nity of being heard and fair opportunities of defence. Art.
14 has a pervasive processual potency and versatile quality,
equalitarian in its soul and allergic to discriminatory
dictates. Equality is the antithesis of arbitrariness. It
is, thereby, conclusively held by this Court that the
principles of natural justice are part of Art. 14 and the
procedure prescribed by law must be just, fair and
reasonable.
In Delhi Transport Corpn. v. D. T. C. Mazdoor Congress and
Ors, [1991] Suppl. 1 SCC 600 this court held that right to
public employment and its concomitant right to livelihood
received protective umbrella under the can copy of Arts. 14
and 21 etc. All matters relating to employment includes the
right to continue in service till the employee reaches
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
superannuation or until his service is duly terminated in
accordance with just. fair and reasonable procedure
prescribed under the provisions of the constitution and the
rules made under the provisions of the constitution and the
rules made under proviso to Art. 309 of the Constitution or
the statutory provisions or the rules, regulations or
instructions having statutory flavour. They must be
conformable to the rights guaranteed in Part III and IV of
the Constitution. Art. 21 guarantees right to life which
includes right to livelihood, the deprivation thereof must
be in accordance with just and fair procedure prescribed by
law conformable to Arts. 14 and 21 so as to be just, fair
and reasonable and not fanciful, oppressive or at vagary.
The principles of natural
942
justice is an integral part of the Guarantee of equality
assured by Art. 14. Any law made or action taken by an
employer must be fair,just and reasonable. The power to
terminate the service of an employee/workman in accordance
with just, fair and reasonable procedure is an essential
inbuilt of’ natural justice. Arts. 14 strikes at arbitrary
action. It is not the form of the action but the substance
of the order that is to be looked into. It is open to the
court to lift the veil and gauge the effect of the impugned
action to find whether it is the foundation to impose
punishment or is only a motive. Fair play is to secure
justice, procedural as well as substantive. The substance
of the order is the soul and the affect thereof is the end
result.
It is thus well settled law that right to life enshrined
under Art. 21 of the Constitution would include right to
livelihood. The order of termination of the service of an
employee/workman visits with civil consequences of
jeopardising not only his/her livelihood but also career and
livelihood of dependents. Therefore, before taking any
action putting an end to the tenure of an employee/workman
fair play requires that a reasonable opportunity to put
forth his case is given and domestic enquiry conducted
complying with the principles of natural justice. In D. 7.
C. v. D. T.C. Mazdoor Congress and Ors. (supra) the
constitution bench, per majority, held that termination of
the service of a workman giving one month’s notice or pay in
lieu thereof without enquiry offended Art. 14. The order
terminating the service of the employees was set aside.
In this case admittedly no opportunity was given to the
appellant and no enquiry was held. The appellant’s plea put
forth at the earliest was that despite his reporting to duty
on December 3, 1980 and on all subsequent days and readiness
to join duty he was prevented to report to duty, nor he be
permitted to sign the attendance register. The Tribunal did
not record any conclusive finding in this behalf. It
concluded that the management had power under Cl. 13 of the
certified Standing Orders to terminate with the service of
the appellant. Therefore, we hold that the principles of
natural justice must be read into the standing order No. 13
(2) (iv). Otherwise it would become arbitrary. unjust and
unfair violating Arts. 14. When so read the impugned action
is violative of the principles of natural justice.
This conclusion leads us to the question as to what relief
the appellant is entitled to. The management did not
conduct any domestic enquiry nor given the appellant any
opportunity to put forth his case. Equally the appellant is
to blame himself for the impugned action. Under those
circumstances 50 per cent of the back wages would meet the
ends of justice. The appeal is accordingly allowed. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
award of the Labour Court is set aside and the letter dated
December 12, 1980
943
of the management is quashed. There shall be a direction to
the respondent to reinstate the appellant forthwith and pay
him back wages within a period of three months from the date
of the receipt of this order. The appeal is allowed accord-
ingly. The parties would bear their own costs.
N.P.V. Appeal allowed.
944