A

c

D.K. YADAV

v.

J.M.A. INDUSTRIES LTD.

MAY 7,1993

[KULDIP SINGH, V. RAMASW AMI AND K. RAMASWAMY, JJ]

Constitution of India, 1950:

Articles 14 and 21-Rigltt of private employer to tenninate service under

certified standing order, without holding rµiy domestic enqu.iry-Whetlter viola­

tive

of principles of natural justice and fundamental rights-Held:

Since termina­

tion

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 &

D when permissible.

E

F

G

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(00)-Retrenchment-Meaning and scope of

Industrial Employment (Standing Orders) Act, 1946:

Section 5..:_cert(fied Standing Orders-Absentefrom duty-Deemed ter­

mination

of service wit/tow enquiry or opportunity of !tearing-Validity

of-Whether attract principles

o{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

H applicable to both quasi-judicial as well as administrative action.

'·.:i'.'O

.....

D.K. Y ADA V v. J.M.A. INDUSTRIES

931

The respondent-company termiriated 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 01r

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.

The appellant's plea that despite bis 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 bad failed to prove his case, that the action of the

A

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. ,. respondent was in accordance with the Standing Orders and it was not a

termination

nor retrenchment under the Industrial Disputes Actand that the

appellant in terms

of Standing

Orders lost bis lien on bis appointment and was · D

not entitled to reinstatement.

Allowing the appeal

of the employee, this Court

HELD: 1.1. The action of the managementin terminating the appellant's

·service is violative of the principles of natural justice. Undtrr 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 bis lien on his appointment. Thereafter, the management is empowered

E

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 oflien on F

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.

Kesltwanand Bharti v. Union of India, [1973] Suppl. S.C.R. 1 and State G

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 notconductanv

domestic enquiry

nor gave the

appellant any opportunity to put forth his cas;. H

932 SUPREME COURT REPORTS (1993] 3 S.C.R.

A 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 th; circumstances, the award of the Labour

· B 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. Con-

e versely, 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 wilh the

D services may arise. In that situation, on compliance of the provisions of

Section 25F resort could be had to re·trench the employees iii conformity

therewith. Particular statute or statutory rules or orders having statutory

Oavou.r 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 ·

E on given special and exceptional exigend.es.

F

Col. J.N. Sinha v. Union of India & Anr., [1971] 1 S.C.R. 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 hiDilber an opportunity of putting forward his/her case. An order

involving civil consequences must be made consistently with the rules of

natural justice. It is not so much to act judicially but to actfairly, namely, the

G procedure adopted must be just, fair and reasonable in the particular

circumstances of the case.

3.2.

The procedure prescribed for depriving a person oflivelihood

tpust.

meet the challenge of Article 14 of the Constitution and such law would be

H liable

to be tested on the anvil of Article 14. The procedure prescribed by a

-

••

D.K. YADAV 1'. J.M.A. INDUSTRIES 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

proceSi:ual 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

Arti<;le

14 and the proc_edure prescribed by law must be right, just, fair and

reasonable and not arbitrary, fanciful or oppressive.

Mohinder Singh Gill & Anr. v. The Chief Eleclion Commissioner & Ors. l

[1978) 2 S.C.R. 272; S1a1e of Orissa v. Dr. (Miss) Binapani Dei & Ors., [1967)

2 S.C.R. 625_; Stale 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.

I

'Bhu.:k's /mr l>i1·1im1111Y. 4th Ecln. p. 1-tX7; 1·ctcrrcd tu .

. ' \"-'.

A

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4. Article 21 of the Constitution clubs life with liberty, dignity of person D

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 E

·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

opportlinity to put forth his case is given and domestic enquiry

conducted complying with the principles

of natural justice.

Detlti Transport Corpn. v. D.TC. Mazdoor CoftgFess·and Ors .• [1991)

Suppl. 1 S.C.C. 600, relied on.

F

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 G

not covered by law validly

1t1ade or expr:essly excluded.

5.2.

There can be no distinction between a

<JUasi-judicial function and an ~ '

administrative function for the purpose

of principles of natural justice. The

aim o.f both administrative inquiry as well as the quasi-judicial enquiry is to H

934 SUPREME COURT REPoRTS [1993] 3 S.C.R.

A arriv~ at a just decision and if a rule of natural justice is calculated to secure

justice

or to put it

negatinly, 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.

B

c

D

E

A.K. Kriapak and Ors. v. Union of India & Ors. [1969] 2S.C.C. 262,relied

on.

6.1. An

authoritative law laid after

consideri~g all the relevant provi­

sions 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. Stare of U.P. & Ors. [1980] 3 S.C.C. 7.10 and

Keshwanand Bharti v. Unio!1 of India, [1973] Suppl. S.C.R. 1, relied on.

6.2.

The Constitution Bench in fact went into the self same question

vis­

a-vis the right ofthe 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

F Disputes Act, 1947 is a

comprehensh·e 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;

G State Bank of India v. Sri N. Sundara Mani, [1976] 3 S.C.R 160; Delhi Cloth &

General Mills Ltd. v. Shamb/111 Nath Mukherjee & Ors., [1978] 1 S.C.R. 591;

Hindustan Steel Ltd. v. The Presiding Officer, Labour Court, [1977] 1S.C.R.586:

Robert D' Souza v. Er:ec11tive 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, .

H referred to.

D.K. YADAV v. J.M.A. INDUSTRIES [K. RAMASWAMY. J.] 935

CIVILAPPELLATEJURISDICTION: Civil Appeal

No. 166 (NL) of 1983. A From, the A ward dated 19 .4.1982 of the Labour Court, Haryana at Faridabad

in Reference No. 227 of 1981.

R.K. Jain, R.P. Singh, A seem Malhotra, Ashish Verma, Manoj Goel, R.K.

Khanna and Ms. Abha

R.

Sharma for the Appellant.

Dr. Anand Prakash, LGhosh for Mis Fox Manda! & 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 terminationoftheappellant's

service

as legal and valid. The respondent,

by its letter dated Decemb.er 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, 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

1.3 (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

wi~hout 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) (i.V) standing order reads thus:

"If a workman remains absent without sanctioned leave or beyond ~he period

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of leave originally granted or subsequently extended, he shall lose his lien on his H

936 SUPREME COURT REPORTS [1993] 3 S.C.R. · --

A appointment unless.

B

c

(a) he returns within 3 calander days of the commencement of the absence

of the expiry ofleave originally granted or subsequently extended as the case

maybe; and

(b) explains

to the satisfaction of the manager/management the reason of his

absence or 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 subse­

quently 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

D

of leave either originally granted or subsequently extended. He has to give a

satisfactory explanation

to th.e 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 s~rvices and lost his lien on his appointment. Thereafter the management has been

E

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-

F (a) voluntary retirement

of the workman, or

G

(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 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

H retrenchment becomes valid and legal and violation thereof visits with invalida-

D.K. Y ADA V v. J.M.A. INDUSTRIES [K. RAMASWAMY, J] 937

• tion of the action wfth consequential results. A

--

In Punjab Land Development and Reclamation Corporation l.Jd., Chandigar:h

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:Z(oo) and held in para 71 at page 716 that "analysing the definition of retrench­

ment

in

Section 2(oo) we find that termination by the employer of the service of B

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 retfrement or on the grounds of continued ill health. There would be no

violational element of the employer. Their ~xpress exclusion implies tbat 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) ands. 25F of

th~ Act. The second view was

c

that the right as such has not been effected or taken away, but only an additional D

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(oci) of the Act of retrenchment means

"the

termination by the employer of the service of a workman for any reason whatso­

ever 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 ltd. v. Shambhu Nath

Mukherjee & Ors,[1978) 1 SCR 591.and Hindustan Steel Ltd. v. The Presiding

Officer. Labour dourtj.1971) l SCR 586 and two benches of two judges in Robert

D 'Souza

v. Executive Engineer, Southern Railway andAnr. [ 1982) 1

SCC 645 and

H.D. Singh v. Reserve Ban~ of India and Ors. [1985] 4 SCC 201 took the same

view. Therefore, we find force in the contention of Sri R.K. fain, 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

I

i

F

to the employment of an employee for any reason whatsoever. We need not, G

however, rest our conclusion

on

this"J'oint 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. ti

" 0

938 SUPREME COURT REPORTS [1993] 3 S.C.R.

A The contention of Dr. Anand Prakash that since this appeai was deleted from

B

c

D

E

F

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. 13 of

the

certif!ed standing order to support impugned action and the respondent is

entitled to, carivass afresh the correctneSS of the view of the constitution bench is

devoid

of

(orce. 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

nove!ty cannot undo or

cgmpel 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. 3 lA decided.

by

13 Judges bench in Keshwanand Bhaniv.

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

G bench Qeld that striking of the naine 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 am<;mnts to an arbitrary

action.

In State Bank of India v. Workmen of State Bank oflnd.ia andAnr.1[1991]

>----

1 sec 13, a two judge bench of this court to which one of US, K.R.S.,J. was a

H

;'. member was to consider the effect of discharge on one month's notice or pay in

D.K. YADA V v. J.M.A. INDUSTRIES [K. RAMASWAMY, J] 939

lieu thereof. It was held that it was not a discharge simplicitor or a simple A

termination of service

but one camouflaged for serious misconduct. This court

lifted

the veil and

lool<ed 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 B

principles of natural justice.

In AK. Kriapak and

Ors. v. Union of India & Ors-.J

[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 miscarriage of justice. These

rule_s

operate in the area not covered by law validly made or expressly excluded as held

in Col.JN. Sinha v. Union of India &Anr. [1971] 1SCR791.Itis 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 excep­

tions 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

~udden 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 mz.y arise. In that situation, on compliance of the provisions of

s. 25F resort.could be had to retrench the employees in conformity therewith

partic1:lar statute or statu.tory rules or orders having statutory flavour may also

exclrde the application of the principles of natural justice expressly or by

necc::sary implication. In other respects the principles of natural justice would

app:y unless the employer should justify its exclusion on given spec1al and

. e}'.:eptional 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, name I y, the procedure adopted must be just, fair

c

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and reaspnable in the particular circumstances of the case. In other words

application of the principles of natural justice that no man should be condemned G

unheard intends

to prevent the authority to act arbitrarily effecting the rights of the

. concerned person.

A

940 SUPREME COURT REPORTS [1993] 3 S.C.R.

It is a fundamental rule oflaw that no decision must be taken which will affect

the right

ofany person without first being informed of the case and be given

hi~

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

B · infraction of not merely property or personal right but of civil liberties, material

deprivations and non-pecuniary damages. In its comprehensive connotion every

thingthat affects a citizenin 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. (!Jiss) Binapani Dei & Ors.,

c

this court held that even an administrative order which involves civil conse­

quences must be made consistently with the rules

of natural justice. The person

concerned must be infomied

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

D

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

Con~titution as any rule of substantive

law.

In Maneka Gandhi v.

Union of J.ndia,.[1978] 2 SCR 621, another bench of

E seven judges held that the substantive 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 be 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

F 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

or or restriction on inherent

fundarnentaI rights of citizens, must take care to see that justice is not only done

G but manifestly appears

to be done. They have a duty to proceed in a way which is

free from even the appearance

of arbitrariness, unreason.ableness or unfairness.

They have

to act i.n a manner which is patently impartial and meets the require­

ments of natural justice.

The law must therefore be now taken to be well-settled that procedure

H prescribed for depriving a person oflivelihood must meet the challenge

of Art.14.

D.K. YADAV 1·. J.M.A. INDUSTRIES [K. RAMASWAMY, J] 941

and such law would be liable to be tested on the anvil of Art. 14 and the procedure A

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 B

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

c

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 D

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

C?urt that the principles of natural justice are part of Art. E

14 and the procedure prescribed by law must be just, fair and reasonable.

In Delhi Transporr Corpn. v. D.T.C. Mazdoor Congress and Ors~[l991]

Suppl. l sec 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 superannuation or until his service is

duly terminated in accordance with just. fair and reasonablt'llrocedure prescribed

under

the provisions of the c'onstitution and the rules made under the provisions

of

the constit.ution and the rules made under proviso to Art.

309 of the Constitution

F

or the statutory provisions or .the rules, regulations or instructions having statutory G

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 H

942

SUPREME COURT REPORTS (1993] 3 S.C.R.

A 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 or 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

B 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 suhstantiYe. The

substance

of the order is the soul and the affect thereof is the end result.

c

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 ci

vii consequences of jeopardising

not on! y his/her Ii velihood but also career and Ii velihood of dependents. Therefore,

before taking any action putting

an end to the tenure of an empfoyee/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

o D. TC. v. D. TC. 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.

E

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

F Standing Orders to terminate with the sen'ice of the appellant. Therefore, we hold

that the

prindples 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 th.e principles of natural justice.

G 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.

H The award

of the Labour Court is set aside and the letter dated December 12,

1980

-

-

D.K. YADAV , .. J.M.A. INDUSTRIES [K. RAMASWAMY, J] 943

of the management is quashed. There shall be a direction to the respondent to A

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.