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PETITIONER: FERTILIZER CORPORATION KAMGAR UNION (REGD.), SINDRI ANDOTHER

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT13/11/1980

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. KRISHNAIYER, V.R. FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1981 AIR  344            1981 SCR  (2)  52  1981 SCC  (1) 568  CITATOR INFO :  RF         1981 SC1722  (3)  R          1982 SC 149  (22,25,608,966)  F          1982 SC1107  (17,19)  MV         1983 SC  75  (46)  RF         1985 SC1147  (15)  R          1986 SC 157  (8,11)             1986 SC 847  (40)  R          1989 SC1988  (18)  RF         1991 SC1902  (36)

ACT:      Constitution   of    India-Article   19(1)(g)-Sale   of redundant/retired  plants   &  equipment-Occupation   of  an industrial worker-Whether  affected by such sale-Article 14- Whether violated-Article  43A-Wrongs committed by management in public  sector whether  can be remedied-Article 32-Access to Justice-Public  Property dissipated  by sale-When  and by whom can the sale be set aside.

HEADNOTE:      The petitioners  (workers) challenged  the legality  of the sale  of certain      plants and equipment of the Sindri Fertilizer Factory,  whereby the highest tender submitted by respondent No.  4 was  accepted by  the Tender Committee and approved by the Board of Directors. The petitioners, amongst others, contended  that (i)  that the  decision to  sell the plants and  equipment  of  the  Factory  was  taken  without calling for  any report;(ii)  the original tender of Rs. 7.6 crores was  unaccountably reduced  to Rs. 4.25 crores; (iii) the price  of the plants and equipment, which was ultimately realised in the sale was manipulated with ulterior purposes; (iv) the  decision to  restrict fresh  offers, in respect of the reduced  equipment, to  the tenderers  who had submitted tenders  for  more    than  Rs.  4  crores  was  unfair  and arbitrary; (v)  the said decision resulted in a huge loss to the public  exchequer and  (vi) the sale had jeopardised the employment of  11000 odd workers who faced retrenchment as a result of the sale.      On behalf  of  petitioners  3  and  4  it  was  further

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contended  that   the  sale   will  deprive  them  of  their fundamental right  under Article 19(1) (g) to carry on their occupation as  industrial workers  and that  the sale  is in violation  of   the  provisions   of  Article   14  of   the Constitution being  arbitrary and  unfair.  The  respondents raised a preliminary objection to the maintainability of the writ petition  on the  ground that  the petitioners  have no locus standi  and that the impugned sale did not violate any of the fundamental rights of the petitioners.      Dismissing the petition: ^      HELD (By the Court)      The petitioners’  right under Art. 19(1)(g) to carry on their occupation  as industrial  workers was not affected by the sale,  nor was  their fundamental  right, if  any, under Article 14 of the Constitution violated. [60 A]      (Per Chandrachud, C.J., Fazal Ali & Koshal, JJ.)      1. The violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32. 53      The jurisdiction  conferred on  the  Supreme  Court  by Article 32  is an  important and  integral part of the basic structure of  the Constitution  because it is meaningless to confer fundamental  rights without  providing  an  effective remedy for their enforcement, if and when they are violated. A right  without a  remedy is  a legal  conundrum of  a most grotesque kind. [59 E-F]      2. Whereas  the right  guaranteed by  Article 32 can be exercised for  the enforcement  of fundamental  rights only, the right conferred by Article 226 can be exercised not only for the  enforcement of fundamental rights but for any other purpose. [59 E]      3(i). There  is no  substance in the grievance that the petitioners’ right  under Article 19(1)(g) is violated or is in the  imminent danger  of being  violated by  the impugned sale, since  not only did the sale not affect the employment of the  workers employed  in the  Factory, but those of them who were  rendered surplus  from time  to time on account of the  closure  of  the  plants  were  absorbed  in  alternate employment in the same complex. [60 C, F-G]      (ii) The  right of petitioners 3 and 4 and of the other workers is  not, in  any manner,  affected by  the  impugned sale. The  right to  pursue a  calling or  to  carry  on  an occupation is  not the  same thing as the right to work in a particular post  under a  contract  of  employment.  If  the workers are retrenched consequent upon and on account of the sale, it  will be  open to  them to  pursue their rights and remedies under  the  Industrial  Laws.  The  closure  of  an establishment in  which a  workman is  for  the  time  being employed does  not by  itself infringe his fundamental right to carry  on an  occupation which  is guaranteed  by Article 19(1)(g) of the Constitution. [60 G-H, 61 A]      4. Article  19(1)(g) confers  a broad and general right which is  available  to  all  persons  to  do  work  of  any particular kind  and of their choice. It does not confer the right to  hold a  particular job  or to  occupy a particular post  of  one’s  choice.  Even  under  Article  311  of  the Constitution, the  right to  continue in  service falls with the abolition  of the  post in  which the person is working. The workers  in the instant case can no more complain of the infringement  of   their  fundamental  right  under  Article 19(1)(g) than  can a  Government  servant  complain  of  the termination of  his employment on the abolition of his post. The choice  and freedom of the workers to work as industrial workers is  not affected  by the  sale. The  sale may at the

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highest affect  their locum,  but it  does not  affect their locus, to work as industrial workers. [61 B-D]      5. In  the instant  case, it is quite difficult to hold that the  decision to  sell the  plants and equipment of the Factory was  arbitrary, unreasonable  or mala fide. The real drive of  the petition  is against the decision of the Board to sell  the plants and equipment. It is that decision which is stated  to furnish the cause to complain of the violation of the right conferred by Article 14, fairness, justness and reasonableness being its implicit assumptions. [64 D-F]      6. As  far as  possible, sales of public property, when the intention  is to get the best price, ought to take place publicly. The  vendors are  not necessarily  bound to accept the highest or any other offer, but the public at least gets the satisfaction  that the  Government has put all its cards on the table. One cannot exclude the possibility here that a better price  might have  been realised  in a  fresh  public auction but  such possibilities  cannot vitiate  the sale or justify the allegation of mala fides. [64 G-H, 65 A-B] 54      7. It  cannot be  held that the petitioners’ rights, if any, under Article 14 are violated, in view of the fact that neither the  decision to  sell nor the sale proceedings were unreasonable, unjust  or unfair.  But if  and when a sale of public property  is found to be vitiated by arbitrariness of mala fides,  it would  be necessary  to consider  the larger question as to who has the right to complain of it. [65C, D- E]      8.(i) The  maintainability of  a writ petition which is correlated to  the existence  and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under  Article 32. These two matters often mingle and coalesce  with the  result that  it becomes difficult to consider them  in  water-tight  compartments.  The  question whether a person has the locus to file a proceedings depends mostly and  often on  whether he possesses a legal right and that right  is violated. But, in an appropriate case, it may become necessary  in the  changing awareness of legal rights and social  obligations  to  take  a  broader  view  of  the question of  locus to  initiate a  proceeding, be  it  under Article 226  or under Article 32 of the Constitution. [65 E- G]      (ii) The  Court might  not have  refused relief  to the workers if  it had found that the sale was unjust, unfair or mala fide.  If a  public property  is dissipated,  it  would require  a  strong  argument  to  convince  the  Court  that representative segments  of the public or at least a section of the  public which  is directly  interested  and  affected would have  no right to complain of the infraction of public duties and  obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the Parliament is ineffective because  the  parliamentary  control  of  public enterprises is "diffuse and haphazard". [65 G-H, 66 A]      (Per Bhagwati and Krishna Iyer, JJ. concurring)      1.  Public   law,  as  part  of  the  panorama  of  the developmental process,  must possess the specific techniques of public  sector  control  within  well-defined  parameters which will  anathematise administration  by court  writ  and interdict public  officials  handling  public  resources  in disregard  of   normatice  essentials   and   constitutional fundamentals. In  a society  in which  the State  had thrust upon   it    the   imperative    of   effectuating   massive transformation of  economy and  social structure the demands upon the  legal order  to inhibit  administrative evils  and

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engineer developmental progress are enormous, though novel.                                              [68 E & 69 A-B]      2. It  is important  to underscore  the vital departure from the  pattern of  judicial review  in the Anglo-American legal  environment   because  the   demands  of  development obligated by  Part IV  compel creative extensions to control jurisprudence   in    many   fields,    including   business administrative law,  contract law, penal law, fiscal law and the like. [69 C-D]      3. Judicial interference with the Administration cannot be meticulous.  The court  cannot usurp or abdicate, and the parameters of  judicial review  must be  clearly defined and never exceeded.  If the  Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the court  cannot,   as  a  super-auditor,  take  the  Board  of Directors to  task. This  function  is  limited  to  testing whether the  administrative action  has been  fair and  free from the  taint of  unreasonableness and  has  substantially complied with  the norms of procedure set for it by rules of public administration. [71 A-C] 55      4.  Locus  Standi  must  be  liberalized  to  meet  the challenges of  the  time.  Ubi  jus  ibi  remedium  must  be enlarged  to   embrace  all   interests   of   public-minded citizens  or   organisations  with   serious   concern   for conservation of  public  resources  and  the  direction  and correction of  public power  so as to promote justice in its triune facets. [71 D-E]      5. An  officious busybody picking up a stray dispute or idle peddlar  of blackmail-litigation  through abuse  of the process of  the court  cannot be  permitted to  pollute  the court  instrumentality,   for  private   objectives.  Public justice is  always and  only at  the service of public good, never the servant or janitor of private interest or personal motive. [72 B-C]      6. Public interest litigation is part of the process to participate justice  and ’standing’  in civil  litigation of that pattern  must have  liberal reception  at the  judicial door-steps. [74 E-F]      7. Certainly, it is not part of the judicial process to examine entrepreneurial  activities to ferret out flaws. The court is least equipped for such oversights, Nor, indeed, is it a function of the judges under the constitutional scheme. The internal  management, business activity or institutional operation of public bodies cannot be subjected to inspection by the  Court. To  do so,  is incompetent  and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental  rules   of  reasonable   management  of  public business, if breached will become justiciable. [77 A-C]      8.  Article   43A  of   the  Constitution  confers,  in principle, partnership  status to  workers in  industry  and therefore technical  considerations of corporate personality cannot keep out those who seek to remedy wrongs committed in the management of the public sector. [76 G]      Municipal Council,  Ratlam v. Shri Vardhichand and Ors. [1981] 1  S.C.R. 97  Wisconsin Law Review, Vol. 1966: 999 at P. 1064  and M.  Cappelletti, Rabels  Z (1976)  669  at  672 referred to.

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 3804 of 1980.      (Under Article 32 of the Constitution).

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    R. K. Garg, Sunil K. Jain, D. K. Garg, Sukumar Sahu and V. J. Francis for the Petitioners.      L. N. Sinha, Att. General of India, M. M. Abdul Khader, T.V.S. Narasimhachari and M. N. Shroff for Respondent No. 1.      M. K.  Banerjee, Addl. Sol. Genl., J. B. Dadachanji, C. M. Oberoi and K. J. John for Respondent No. 2.      A. K.  Sen, S.  S. Ray,  R. S.  Narula, Anindya  Mitra, Parijat Sinha N. P. Agarwala, C. K. Jain, Bardar Ahmad, Mrs. R. Dhariwal and M. C. Dhingra for Respondent No. 4. 56      The Judgment  of Y.  V. Chandrachud,  C.J., S.  Murtaza Fazal  Ali   and  A.   D.  Koshal,  JJ.  was  delivered  by, Chandrachud. C.J.  V. R.  Krishna Iyer  J. gave a concurring Opinion of his own and on behalf of P.N. Bhagwati, J.      CHANDRACHUD, C.J.  By this petition under Article 32 of the Constitution,  the petitioners challenge the legality of the sale  of certain  plants and  equipment  of  the  Sindri Fertilizer Factory,  whereby the highest tender submitted by Respondent 4  in the  sum of Rs. 4.25 crores was accepted on May 30,  1980. The  relief sought by the petitioners is that the respondents  should be  directed not  to sell  away  the plant and  equipment, that  they should be asked to withdraw their decision  to sell  the same and that the said decision should be quashed as being illegal and unconstitutional.      Petitioner 1  is a Union of the Workers of the Factory, Petitioner 2,  Shri A.  K. Roy,  a Member of Parliament from Dhanbad, is the President of that Union, while Petitioners 3 and 4  are workers  employed in the Factory. Respondent 1 to the Writ Petition is the Union of India, Respondent 2 is the Fertilizer Corporation  of India,  (’FCI’), Respondent  3 is the Sindri Fertilizer Factory, while the added Respondent 4, Ganpatrai Agarwal,  is the highest tenderer. Respondent 2, a Government of  India Undertaking,  is a Company incorporated under the  Companies Act  1956 and is a ’Government Company’ within  the   meaning  of   Section  617  of  that  Act.  It established the Respondent 3 Factory, which was commissioned in 1951.  By article 66(1) of the Articles of Association of respondent 2,  its directors  are appointed by the President of India.      On January 4, 1980 the Board of Directors of respondent 2, (FCI),  decided that  tenders should  be invited  for the sale  of   ’Redundant/retired  plants   and   equipment   of respondent  3.   In   pursuance   of   that   decision,   an advertisement was inserted in the newspapers on February 25, 1980 inviting  tenders for  the sale  of nine  units of  the "closed down chemical plants" of the Factory on "as is where is"  basis.   The  advertisement   gave  to   the  intending purchasers the option to quote for four alternatives, one of which was  the quotation  for individual  equipment such  as pumping sets  and compressors. Each tenderer was required to submit three  separate envelopes: Envelope No. 1 relating to the payment of earnest money; envelope No. 2 relating to the terms and  conditions  of  the  sale;  and  envelope  No.  3 relating to  the amount  of bid offered by the tenderer. The offers were to be valid until June 19, 1980.      On March 20, 1980 when the envelopes bearing No. 1 were opened, it  was found  that two  tenderers had  not complied with the 57 term as  to the  payment of  the earnest money. As a result, the number of valid tenders was reduced to nine. Discussions took  place   thereafter  between   the  tenderers  and  the authorities, as  a result  of which  an agreed  formula  was evolved regarding the exclusion of the weights of foundation and the  exclusion of sales-tax from the bids offered. A few

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items  were   also  excluded   from  the  list  of  articles advertised for  sale. In  the light  of these modifications, the tenderers  were asked  to submit  fresh quotations  in a separate envelope marked ’No. 4’.      On  March  21,  1980  envelopes  bearing  No.  3  which contained the  original offers and those bearing No. 4 which contained the  modified offers,  were opened in the presence of the  tenderers. The  highest original  offer was  that of respondent 4  in the  sum of  Rs. 7.6  crores.  The  highest modified offer of Rs. 6.2 crores was also made by respondent 4. The sale was thereafter adjourned.      On March 31, 1980 a letter was received by Respondent 2 that  a   part  of  the  plants  and  equipment  which  were advertised for  sale were needed by the Fertilizer (Planning and Development)  India Ltd.  for the purposes of experiment and research.  On April  10,  1980  a  similar  request  was received from  the Ramagundam  Division of  Respondent 2. On May 14,  1980 the Board of Directors decided that only those items should  be  offered  for  sale  which  remained  after meeting the  requirements of  the Fertilizer  (Planning  and Development) and  the Ramagundam  Division  and  that  fresh offers should  be invited  for the reduced stock, restricted to the  tenderers who had submitted modified tenders in sums exceeding Rs.  4 crores. There were six such tenders amongst the nine  valid tenders. A week later, the six tenderers who had submitted  those tenders  were called  to Sindri  and  a fresh list  of reduced  items was  furnished to  them.  They submitted their  revised tenders in sealed covers on May 23, 1980. On  May 24,  the Tender Committee considered the offer made by  Respondent 4  in the  sum of Rs. 4.25 crores as the best, that  being the  highest  amongst  the  fresh  reduced offers. The  Tender Committee  referred the  matter  to  the Board on  the same  date and  on May  29, the Board gave its approval to  the acceptance  of respondent 4’s offer. On May 30, a  letter of  Intent was  issued by  Respondent 2 in the name of Respondent 4 who paid the security deposit of Rs. 50 lakhs on  June 13,  1980. An  order of  sale  in  favour  of Respondent 4  was issued  by Respondent  2 on  July 7,  1980 whereupon Respondent 4 started dismantling the machinery and equipment which  he had  purchased. This  Writ Petition  was filed on  August 14,  1980. On August 25, the Court issued a show cause notice on the writ petition and stayed the sale. 58      The petitioners  challenge the sale, inter alia, on the following grounds:           (1)  that the  decision to  sell  the  plants  and                equipment of  the Factory  was taken  without                calling for any report, expert or otherwise;           (2)  that the  original tender  of Rs.  7.6 crores                was unaccountably reduced to Rs. 4.25 crores;           (3)  that the  price of  the plants and equipment,                which was ultimately realised in the sale was                manipulated with ulterior purposes;           (4)  that  the  decision  to  restrict  the  fresh                offers, in  respect of the reduced equipment,                to the  tenderers who  had submitted  tenders                for more  than Rs.  4 crores  was unfair  and                arbitrary;           (5)  that the  said decision  resulted in  a  huge                loss to  the public  exchequer since,  if the                sale was  readvertised, an appreciably higher                price would have been realised; and           (6)  the sale  has jeopardised  the employment  of                11000 odd  workers who face retrenchment as a                result of the sale.

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    Petitioners 3 and 4 support this petition under Article 32 of  the Constitution  by contending  that the  sale  will deprive  them  of  their  fundamental  right  under  Article 19(1)(g) to carry on their occupation as industrial workers. They contend  further that  the sale  is in violation of the provisions of Article 14, since it is arbitrary and unfair.      The learned  Attorney General, who appears on behalf of the Union  of India,  has raised  a preliminary objection to the maintainability  of the writ Petition on the ground that in the  first place, the petitioners have no locus standi to file the  petition and secondly, that the impugned sale does not  violate   any  of   the  fundamental   rights  of   the petitioners.  We   must   decide   this   objection   before considering the  contentions raised  by Shri  R. K.  Garg on behalf of the petitioners.      Article 32  of the  Constitution  which  guarantees  by clause  (1)   the  right   to  move  the  Supreme  Court  by appropriate proceedings  for the  enforcement of  the rights conferred by Part III, provides by clause (2) that:      "The Supreme Court shall have power to issue directions      or orders  or writs,  including writs  in the nature of      habeas 59      corpus,  mandamus,   prohibition,  quo   warranto   and      certiorari,  whichever  may  be  appropriate,  for  the      enforcement of  any of  the rights  conferred  by  this      Part". It is manifest that the jurisdiction conferred on this Court by Article  32 can  be exercised  for the enforcement of the rights conferred  by Part  III and  for  no  other  purpose. Clause (1)  as well  as clause  (2) of  Article 32 bring out this point  in sharp  focus. As  contrasted with Article 32, Article 226 (1) of the Constitution provides that:      "Notwithstanding anything  in  article  32  every  High      Court shall  have power,  throughout the territories in      relation to  which it  exercises jurisdiction, to issue      to any  person or  authority, including  in appropriate      cases,  any   Government,  within   those   territories      directions, orders  or writs,  including writs  in  the      nature of  habeas corpus,  mandamus,  prohibition,  quo      warranto and  certiorari,  or  any  of  them,  for  the      enforcement of  any of the rights conferred by Part III      and for any other purpose". (emphasis supplied). The difference in the phraseology of the two Articles brings out the  marked difference  in the nature and purpose of the right  conferred   by  these  Articles.  Whereas  the  right guaranteed  by   Article  32   can  be   exercised  for  the enforcement of  fundamental rights only, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose.      The jurisdiction  conferred on  the  Supreme  Court  by Article 32  is an  important and  integral part of the basic structure of  the Constitution  because it is meaningless to confer fundamental  rights without  providing  an  effective remedy for their enforcement, if and when they are violated. A right  without a  remedy is  a legal  conundrum of  a most grotesque  kind.   While  the   draft  Article   25,   which corresponds to  Article  32,  was  being  discussed  in  the Constituent  Assembly,   Dr.  Ambedkar   made  a  meaningful observation by saying:      "If I  was asked to name any particular article in this      Constitution as  the most  important-an article without      which this  Constitution would be a nullity-I could not      refer to  any other  article except this one. It is the      very soul  of the Constitution and the very heart of it

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    and  I   am  glad  that  the  House  has  realised  its      importance". (Constituent Assembly Debates, December 9,      1948, Vol. VII, p. 953). 60 But though  the right guaranteed by Article 32 is one of the highly cherished  rights conferred  by the Constitution, the purpose for  which that  right can  be enforced is stated in the very  article which confers that right. The violation of a fundamental  right is  the sine qua non of the exercise of the right conferred by Article 32.      That makes  it necessary to consider whether any of the fundamental rights  of the  petitioners is violated or is in the imminent  danger of  being violated  by the  sale of the plants and  equipment of  the Factory.  The grievance of the petitioners is  that two  of their  fundamental  rights  are violated by  the sale,  one under  Article 19(1) (g) and the other under Article 14 of the Constitution.      We  find   no  substance  in  the  grievance  that  the petitioners’ right  under Article 19(1)(g) is violated or is in the  imminent danger  of being violated by the sale. That Article confers  on all  citizens the  right to practise any profession or  to carry on any occupation trade or business. The right  of the  petitioners to  carry on an occupation is not infringed by the sale mediately or immediately, actually or potentially, for two reasons. In the first place, Shri R. C. Malhotra,  who is  the Chief Engineer of the Sindri Unit, says in paragraph 5 of the counter-affidavit filed by him on behalf  of  the  FCI,  that  although  the  old  plants  and equipment had to be shut down from 1976 to 1979 because they had become  redundant, unsafe or unworkable, no employee was deprived of  his employment  on that  account. Shri Malhotra says further in the same paragraph and in paragraph 6 of the counter-affidavit,  that  the  management  of  the  FCI  had decided to deploy the workmen working in the plants that had to be  shut down  in various  other plants  set up under the scheme of  modernisation  and  rationalisation  and  in  the various facilities  that had  been renovated  in the  Sindri complex itself.  Thus, not  only did the sale not affect the employment of the workers employed in the Factory, but those of them  who were  rendered surplus  from time  to  time  on account of  the closure  of  the  plants  were  absorbed  in alternate employment in the same complex.      Secondly, the  right of  Petitioners 3 and 4 and of the other workers  to carry  on  the  occupation  of  industrial workers is not, in any manner affected by the impugned sale. The right  to pursue  a calling or to carry on an occupation is not  the same  thing as the right to work in a particular post under  a contract  of employment.  If the  workers  are retrenched consequent  upon and  on account  of the sale, it will be  open to  them to  pursue their  rights and remedies under the Industrial Laws. But the point to be noted is that the closure of an establishment in 61 which a  workman is  for the time being employed does not by itself  infringe  his  fundamental  right  to  carry  on  an occupation which  is guaranteed  by Article  19(1)(g) of the Constitution. Supposing  a  law  were  passed  preventing  a certain category  of workers  from accepting employment in a fertiliser factory,  it would  be possible  to contend  then that the  workers have been deprived of their right to carry on an occupation. Even assuming that some of the workers may eventually have  to be  retrenched in  the instant  case, it will not  be possible to say that their right to carry on an occupation has  been violated.  It would  be open  to  them, though undoubtedly  it will  not be  easy, to find out other

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avenues of  employment as  industrial workers. Article 19(1) (g) confers  a broad and general right which is available to all persons  to do  work of any particular kind and of their choice. It  does not  confer the  right to hold a particular job or  to occupy a particular post one’s choice. Even under Article 311  of the  Constitution, the  right to continue in service falls  with the  abolition of  the post in which the person is  working. The  workers in  the instant case can no more complain of the infringement of their fundamental right under  Article   19(1)(g)  than  can  a  Government  servant complain  of  the  termination  of  his  employment  on  the abolition of his post. The choice and freedom of the workers to work  as industrial  workers is not affected by the sale. The sale  may at the highest affect their locum, but it does not affect  their locus, to work as industrial workers. This is enough unto the day on Art. 19(1)(g).      In regard  to  the  infringement  of  the  right  under Article 14,  the contention  of the  petitioners is that the plants and  equipment of  the factory  were sold without the benefit of  any expert  report, that  the decision to effect the sale  was taken  arbitrarily, that it was actuated by an ulterior motive,  and that  the  sale  is  vitiated  by  the violation of  the principles  of natural  justice since  the ultimate bid  was restricted  to a  select group of persons. The  petitioners   contend  that   the   arbitrariness   and unfairness of the sale is reflected in the circumstance that the original  bid of  Rs. 7.6  crores came  down to Rs. 4.25 crores. If  the sale  was readvertised  after  there  was  a material variation  in its  terms, the plants and equipment, according to  the petitioners,  would have  fetched  a  much higher price.      A clear  and satisfactory  answer to this contention is provided by  the learned  Additional Solicitor  General, who appears on  behalf of  Respondent 2, FCI. He has pointed out to us numerous circumstances from which it would appear that the grievance  of the  petitioners that  the sale was unfair and arbitrary is not justified. 62      The affidavits  filed on  behalf  of  the  respondents, particularly those of Shri R. C. Malhotra, Chief Engineer of the Sindri  Unit and  of Shri  K. V.  Krishna  Ayyar,  Under Secretary in  the Department  of Chemicals  and Fertilisers, Government of  India, show  that the Sindri Plant, which was commissioned in  1951 and  was expanded  in 1959 and 1969 by providing certain  extra facilities,  had outlived  its use. Various schemes  were  considered  from  time  to  time  for improving the  economics of  the Sindri  Unit  in  order  to ensure continued  employment to  the workers.  The first  of such schemes  was the  Sindri Rationalisation  Scheme, which was approved  by the  Government in  1967. This  scheme  was completed in  October 1979  at a  cost of  Rs. 60.77  crores While the  Rationalisation Scheme  was under implementation, it transpired  that  the  Ammonia  manufacturing  facilities based  on  coke  were  fast  deteriorating  and  unless  the equipment was  renovated substantially  or was replaced with modern equipment,  it was  impossible to expect stability in the production  of Nitrogenous  fertilisers from  the plant. Different alternatives  were before  the Government  in this behalf, and,  finally, the  Sindri Modernisation  Scheme was approved by  it in  November 1973. This Scheme envisaged the shutting down of the old Ammonia plant based on coke and the setting up  of a modern Ammonia plant producing 900 tonnes a day of  Ammonia with  low sulphur heavy stock as food-stock. This scheme  was completed  in October 1979 at a cost of Rs. 183.19 crores.  Thus, the  long term  plan of the Government

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was to  retain the  Ammonium Sulphate plant after renovating it and  to shut  down the  old coke-based Ammonia plant. The plant operations  with the  old  plant  showed  considerable deterioration in  1975-76. A team of engineers of the Sindri Unit as  well as of the Planning and Development Division of the  Fertiliser   Corporation,  in   association  with   the engineers of  the Central  Mechanical  Engineering  Research Institute,  Durgapur,   undertook  Survey,  examination  and inspection of  the plants  with a  view to determining their status and  condition. A  committee of  Directors  was  also appointed for  the same  purpose. One  of the  main criteria which the  Directors kept  before themselves  in view of the reported unsafe  working condition  of  the  plant  was  the safety of  the personnel  and the  workmen. The  matter  was thereafter kept under constant review and parts of the plant were retired  or closed  down from  time to time as and when their operation  became unsafe and uneconomical. The running of the  old plant  had indeed become so uneconomical that as against the  cost of  production of  Rs. 787.23  per ton  of Ammonia in  1971-72, the  cost of  production in 1978-79 was approximately Rs. 6296/- per ton. An additional circumstance which compelled  the closure  of a  part of the plant is the fact that  the raw  material  required  for  the  old  plant comprised special  high  quality  coal  which  is  in  short supply. 63      On the  question of  arbitrariness  of  the  sale,  the following facts and circumstances are particularly relevant:           (1)  The decision  of the  Board of  Directors  in                respect of  the  sale  relates  only  to  the                redundant or retired plants and equipment;           (2)  The Board  is authorised by article 68(20) of                the   Articles    of   Association   of   the                Corporation to  sell even  the whole  of  the                undertaking with  the prior  approval of  the                President of  India. Such  approval was taken                before the  sale was  finalised in  favour of                Respondent 4;           (3)  The decision of the Board was restricted to a                small  part  of  the  assets  of  the  Sindri                Factory. The balance sheet for 1954-55 of the                erstwhile Sindri  Fertiliser & Chemicals Ltd.                shows that  the assets  of the  said  Factory                were of the value of Rs. 22,82,99,086/- as on                April  1,   1954,  out   of   which   plants,                equipment, machinery,  etc. were of the value                of Rs.  14,68,59,502/-. The  original cost of                the plants and equipment, which have now been                sold, was  about Rs.  10 crores, of which the                written-down value  as on  March 31, 1980 was                about Rs. 50 lakhs. The present outlay on the                Sindri Unit  is in  the  region  of  Rs.  220                crores;           (4)  The decision to sell the redundant or retired                plants became  necessary for  the reason that                they had out lived their life, having run for                a period  ranging from 18 to 28 years. It had                also become  unsafe, hazardous and uneconomic                to run such plants and equipment; and           (5)  Although the  old plants  had to be shut down                on account  of the  sale, no  employee at all                was retrenched  or is likely to be retrenched                on account of the sale.      The  answer   which  the  Minister  for  Petroleum  and Chemicals gave on the floor of the House to the question put

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by  respondent   2  is,   if  we   may  say   so,   strictly ’parliamentary’. The  question was  whether  there  was  any report justifying  the sale.  The answer  was  ’NO’  because there were reports which preceded the sale and which advised the sale.  But they  did not ’justify’ the sale, which is an ex post facto matter. In fact 64 many a  report had  suggested the  disbanding of  worn  out, uneconomical and hazardous plants of Fertilizer undertakings like:           1.   Report of  the Fertilizer Mission to India of                the International Bank for the Reconstruction                and Development published July, 1969.           2.   Techno economic  study of Alternative schemes                for Sindri  Modernisation Project prepared by                Planning   and    Development   Division   of                Fertilizer Corporation of India and published                May 1971.           3.   Techno economic  Feasibility Report of Sindri                Modernisation Project  published by  Planning                and Development  Division 1973  of Fertilizer                Corporation of India.           4.   Appraisal of Sindri Fertilizer Project India-                Report  of   the   International   Bank   for                Reconstruction &  Development,  International                Development Association,  published November,                1974.           5.   Report   on    Works    Transformation    and                Environmental    Study     by    M/s    UNICO                International Corporation of Japan, published                July 1975.      In view  of these  facts and circumstances, it is quite difficult to  hold that  the decision to sell the plants and equipment of the Factory was arbitrary, unreasonable or mala fide. It  has to  be emphasized  that the  real drive of the petition is  against the  decision of  the Board to sell the plants and equipment. It is that decision which is stated to furnish the  cause to complain of the violation of the right conferred   by    article   14,   fairness,   justness   and reasonableness being its implicit assumptions.      There is  only one  other aspect of the matter and that we are unable to view with any great equanimity. It is clear from the  proceedings that  the plants  which were initially advertised for sale went through variation on two occasions. The first variation which was made on March 20, 1980 may not be regarded as substantial. But after the sale was adjourned to March 31, 1980, the requests received by the FCI from the other public  sector undertakings stating, that they were in need of  a part  of the  equipment which  was advertised for sale, led to a substantial reduction in the goods advertised for sale.  The authorities  then sent for the nine tenderers and negotiated  with them  across the table. We want to make it  clear  that  we  do  not  doubt  the  bonafides  of  the authorities,  but  as  far  as  possible,  sales  of  public property, when the intention is to get the best price, ought to take  place publicly.  The vendors  are  not  necessarily bound to accept the highest or any other 65 offer, but  the public  at least  gets the satisfaction that the Government  has put  all its  cards on the table. In the instant case,  the officers who were concerned with the sale have  inevitably,   though  unjustifiably,   attracted   the criticism  that   during  the  course  of  negotiations  the original bid  was reduced without a justifying cause. We had willy-nilly to  spend quite some valuable time in satisfying

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ourselves that  the reduction  in the  price was a necessary and fair consequence of the reduction in the quantity of the goods later  offered for  sale on March 31, 1980. One cannot exclude the  possibility that a better price might have been realised in  a fresh  public auction  but such possibilities cannot vitiate  the sale  or justify  the allegation of mala fides.      In view  of the  fact that neither the decision to sell nor  the  sale  proceedings  were  unreasonable,  unjust  or unfair, it  cannot be  held that the petitioner’s rights, if any, under  Article 14  are violated.  The learned  Attorney General contended  that arbitrariness  would  be  actionable under  Article   32,  only   if  it  causes  injury  to  the fundamental  rights   of  the   petitioner,  and   that  the petitioners in the instant case have no fundamental right in the exercise  of which  they  can  challenge  the  sale.  We consider it  unnecessary to  examine this contention because the sale is not vitiated by any unfairness or arbitrariness. If and  when a  sale of  public  property  is  found  to  be vitiated  by  arbitrariness  or  mala  fides,  it  would  be necessary to  consider the larger question as to who has the right to complain of it.      That  disposes   of  the   question  as   regards   the maintainability of the writ petition. But, we feel concerned to point  out that  the maintainability  of a  writ petition which is  correlated to  the existence  and violation  of  a fundamental right  is not  always to  be confused  with  the locus to  bring a  proceeding under  Article 32.  These  two matters often  mingle and  coalesce with  the result that it becomes  difficult   to   consider   them   in   water-tight compartments. The question whether a person has the locus to file a  proceeding depends  mostly and  often on  whether he possesses a  legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of  legal rights  and social obligations to take a broader  view  of  the  question  of  locus  to  initiate  a proceeding be  it under  Article 226  or under Article 32 of the Constitution. If public property is dissipated, it would require  a  strong  argument  to  convince  the  Court  that representative segments  of the public or at least a section of the  public which  is directly  interested  and  affected would have  no right to complain of the infraction of public duties and  obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the Parliament is 66 ineffective because  the  parliamentary  control  of  public enterprises is  "diffuse and haphazard". We are not too sure if we  would have  refused relief  to the  workers if we had found that the sale was unjust, unfair or mala fide.      Several decisions  were cited  before us by the learned Attorney  General, the learned Additional Solicitor General, Shri A.  K. Sen  and Shri  R. K. Garg on the question of the maintainability  of   the  writ  petition.  We  consider  it unnecessary to discuss them in view of the fact that we have come to  the conclusion  that the  petitioner’s  fundamental right under Article 19 (1) (g) to carry on the occupation of an industrial  worker is  not  affected  by  the  sale,  and similarly, that his fundamental right, if any, under Article 14 of the Constitution has not been violated.      The  question   as   regards   ’access   to   justice’. particularly under Article 226 of the Constitution, has been dealt with  by Brother  Krishna Iyer,  at some  length,  for which reason  I do  not consider  it necessary to dwell upon that topic.

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    In the  result, we  dismiss the  petition and discharge the rule. There will be no order as to costs.      KRISHNA IYER,  J. This  Writ  Petition  which,  in  the forensic unfolding  through oral  submissions, has  exceeded our expectations,  bristles with  profound  issues  of  deep import one  of which  is the  citizen’s legal standing vis a vis illegal  handling of  public resources a jurisprudential area of  critical importance  but of precedential barrenness and, therefore,  all the more demanding in the developmental setting and  social justice  imperatives of  Law India.  The learned Chief  Justice has  considered with care some of the profound questions  covered in  the course  of the arguments and it  may be  supererogation to  tread the same territory. The general  factual presentation  and legal  conclusions of the learned Chief Justice have our concurrence. Equally, the approach  to   Arts.  14   and  32,   with  its  fascinating expansionism, is  of strategic  significance, viewed  in the perspective of  Third World jurisprudence. Maybe, that while we broadly  agree, our  emphasis may  differ, our  shades of meaning may  vary and, in some places, even our processes of reasoning may  lead us  to other  destinations. Even  so,  a general consensus  suffices and  we desist from dealing with all  the   points  discussed   by  our   learned   brothers. Nevertheless,  some   problems   of   seminal   significance affecting  the   adjectival  law   are  of  such  compelling futuristic impact  that we  shall examine  them alone in our separate opinion. 67      The facts  have been  stated, the  arguments have  been indicated and  that helps  us to  plunge straight  into  the points we propose to consider. Briefly, a Government company has gone  through the long exercise of selling and allegedly obsolescent steel  plant for  junk  price,  after  receiving tenders,  holding   discussions,  making  modifications  and ultimately settling the sale in favour of Ganpatrai Aggarwal of Calcutta.  In this process, two decisions were taken; the first was  a policy  decision to  sell a  substantial plant, part of  which could  have been  salvaged, as  if the entire material were  scrap; the  second question which the company decided was  to call for tenders but to settle the sale, not exactly as  originally  intended,  but  with  many  changes, negotiations and  alterations, so much so, while the maximum offer in  the first  round was  for over  Rs. 7  crores  the actual offer  which was  accepted was  for Rs.  4 crores and odd, the  difference being  explained by  the respondents on the score  that many items included in the original proposal to sell had since been withdrawn.      When a  plant is  shut down,  as in  this case,  it has been, for  reasons the  merits of which we do not propose to scrutinise, the workers employed in it are ordinarily thrown out of  employment. Assuming  some patch-work arrangement to give lingering employment for some time more were offered as a measure of alleviation, that certainly is not equal to the steady and  assured service  in a  public sector undertaking which  is   a  Government  company  owned  entirely  by  the President of  India. Their  economic fortunes and employment status are  affected by  the amputation  of a  limb  of  the company. These workers have invoked the jurisdiction of this Court under  Art. 32  of  the  Constitution  and  sought  to demolish through  the writ  of this Court, both the decision to sell  the plant  on the  score of  obsolescence  and  the dubious manner  of sale  which,  in  their  submission,  has resulted in  colossal loss  to  the  public  exchequer  and, vicariously, to  the citizenry  of the country, including, a fortiori, the  workers  in  the  enterprise.  Two  questions

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incidentally arise: Have the workers locus standi under Art. 32, which  is a special jurisdiction confined to enforcement of fundamental  rights ?  What, if  any, are the fundamental rights  of  workmen  affected  by  the  employer’s  sale  of machinery  whose   mediate  impact   may  be  conversion  of permanent employment  into precarious  service and  eventual exit ?  Lastly, but most importantly, where does the citizen stand, in the context of the democracy of judicial remedies, absent an  ombudsman? In the face of (rare, yet real) misuse of administrative  power to  play ducks  and drakes with the public exchequer,  especially where  developmental expansion necessarily   involves    astronomical    expenditure    and concomitant corruption, do public bodies enjoy immunity from challenge save through the post 68 mortem of  parliamentary organs.  What is  the role  of  the judicial process, read in the light of the dynamics of legal control and  corporate autonomy  ? This  juristic  field  is virgin but  is also  heuristic challenge,  so that  law must meet life  in this  critical yet sensitive issue. The active co-existence  of   public  sector   autonomy,  so  vital  to effective  business  management,  and  judicial  control  of public power  tending to  berserk, is  one of  the  creative claims upon functional jurisprudence.      The Court  cannot wait  and, despite allergy to minimal decisional law-making  in vacant  spaces, the rule of law in this virgin area cannot leave the fertile field fallow.      Judicial, though  interstitial, law-making is needed in this field.  "Many of  the judges  of England have said that they do  not make  law. They  only interpret  it. This is an illusion they  have fostered.  But it is notion which is now being discarded everywhere. Every new decision- on every new situation-is a  development of  the law.  Law does not stand still. It  moves continually."  We have no doubt that public law, as  part of  the panorama of the developmental process, must  possess  the  specific  techniques  of  public  sector control  within   well   defined   parameters   which   will anathematise administration  by  court  writ  and  interdict public officials  handling public  resources in disregard of normative essentials and constitutional fundamentals.      The functional future of the rule of law in our country depends on  the fulfillment  of the  words of  Chief Justice Earl Warren:  Our Judges  are not  monks or  scientists, but participants in  the living  stream of  national life  . Our system faces no theoretical dilemma, but a single continuous problem; how to apply to ever-changing conditions the never- changing principles  of freedom".  The Indian  citizen  does expect some cybernetic system or ombudsman Mechanism whereby power geared  to public  good does  not betray  the goals of social  engineering.  The  jural  postulates  which  are  an imperative  of  our  Independence  and  planned  development assume this  command function  of the law It is good that we state the inter-action between planning and law in the words of Prof. Berman:           "Plan is  that aspect  of the social process which      is  concerned   with   the   maximum   utilization   of      institutions and  resources from  the point  of view of      economic development;  law is that aspect of the social      process which is concerned 69      with the  structuring and  enforcing of  social  policy      (plan) in terms of the rights and duties therefrom".      Our  national   reconstruction  involves   an  enormous increase in  public sector  operations in fulfillment of the paramount directives  of Part  IV of  the Constitution. In a

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society in which the State had thrust upon it the imperative of effectuating massive transformation of economy and social structure the  demands  upon  the  legal  order  to  inhibit administrative evils and engineer developmental progress are enormous, though  novel.  The  present  case,  whatever  the merits and  the ultimate  conclusion, does  raise the deeper issue of  the dynamics  of social justice vis-a-vis the role of the  Rule of  Law where  the public  sector occupies  the commanding heights of the national economy and yet asserts a right to be free from judicial review. That cannot be. While it is  unnecessary for us to spell out in greater detail the emergence of  a new branch of administrative law in relation to the  national plan  and the public sector of the economy. It is  important to  underscore the vital departure from the pattern of  judicial review  in  the  Anglo  American  legal environment because  the demands of development obligated by Part IV  compel creative extensions to control jurisprudence in  many  fields,  including  business  administrative  law, contract law, penal law, fiscal law and the like.      Robert Siedmann,  dealing  with  the  law  of  economic development  in   Sub-Saharan  Africa  has  dealt  with  the maintenance of  legality in  a  developmental  setting  with focus on stability and change and the evolution of new norms of  constitutional   and  administrative   law.  He  rightly stresses what applies to India as well:           "If there  are to  be some  reasonable  norms  for      administrative behaviour  in Africa, the formulation of      codes of  administrative law  is  desirable.  But  such      codes are  not  self-enforcing;  without  institutional      devices to support them, they become meaningless." He continues to make certain observations on the enforcement on the  regime of  legality and  their  importance  for  the Indian scene:           "If the tone of public life is sufficiently honest      and fair-minded,  formal norms are relatively unneeded.      That is  not the  position in  Africa; on the contrary,      there is a notable lack of restraints upon the exercise      of state  power. This  betrays itself most blatantly in      the widespread corruption that seems 70      to exist,  especially in  West Africa.  When corruption      permeates the  entire fabric of government, legality is      the first  sufferer, for  state power  is exercised  on      grounds unrelated to its nominal purposes.           In English-speaking  Africa, the  devices for  the      enforcement of  the  few  standards  of  administrative      probity that  exist are in the common-law tradition. In      some cases  there are  internal administrative appeals.      Resort  to  the  courts  for  relief  is  theoretically      available if  an ascertainable  norm has been violated.      Relief can  be sought  in a civil action brought by the      extreme cases,  in a  criminal action  brought  by  the      director of public prosecutions.           The civil  remedies for  administrative wrongdoing      thus depend  upon the action of individual citizens. In      such an  action, the  individual is  pitted against the      State-always an  unequal contest.  The individual  does      not have  even the  few  procedural  devices  that  the      common law  imports into  criminal actions  to  try  to      redress the  balance.  At  his  own  expense,  he  must      challenge the  vast panoply of State power with all its      resources in  personnel, money,  and legal talent, by a      civil action  for a  declaratory  judgment  or  for  an      extraordinary remedy-injunction,  writ of  mandamus, or      writ of  prohibition. Aside from the manifold technical

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    insufficiencies of these forms of action, the financial      impediments to  such an  action are  staggering.  As  a      result of  these impediments,  in  the  United  States,      where almost  the sole institutional protection against      administrative  error   or  arbitrariness  is  such  an      action, usually  only great corporations or individuals      who are  supported by large voluntary associations have      been able  to carry  through litigation.  To rely  upon      such  individual   actions  as  the  primary  means  of      policing administrative  action in  Africa is  to  rely      upon what is nonexistent."      A pragmatic  approach to  social justice  compels us to interpret constitutional  provisions, including  those  like Arts. 32 and 226, with a view to see that effective policing of the  corridors of power is carried out by the court until other ombudsman arrangements a problem with which Parliament has been  wrestling for  too long-emerges. I have dwelt at a little length  on this  policy aspect  and the court process because  the   learned  Attorney   General  challenged   the petitioners locus standi either qua worker or qua citizen to question 71 in court  the wrong  doings of the public sector although he maintained that  what had  been done  by the Corporation was both bona fide and correct.      We certainly  agree that judicial interference with the Administration  cannot  be  meticulous  in  our  Montesquien system of  separation of  powers. The  court cannot usurp or abdicate, and  the parameters  of judicial  review  must  be clearly defined  and never exceeded. If the Directorate of a Government company has acted fairly, even if it has faltered in its  wisdom, the  court cannot,  as a super-auditor, take the Board  of Directors to task. This function is limited to testing whether  the administrative action has been fair and free  from   the   taint   of   unreasonableness   and   has substantially complied  with the  norms of procedure set for it by rules, of public administration.      Assuming that  the Government-company  has  acted  mala fide, or  has dissipated public funds, can a common man call into question  in a  court the  validity of  the  action  by invocation of Arts. 32 or 226 of the Constitution.? Here, we come up  on the  crucial issue  of access to justice and the special limitations of Art. 32 which is the passport to this Court.      We have  no doubt  that in a competition between courts and streets  as dispenser  of justice,  the rule of law must win the aggrieved person for the law court and wean him from the lawless  street. In  simple terms,  locus standi must be liberalised to  meet the  challenges of  the times. Ubi just ibi remedium  must be  enlarged to  embrace all interests of public-minded citizens or organisations with serious concern for conservation  of public  resources and the direction and correction of  public power  so as to promote justice in its triune facets. Lord Scarman’s warning in his Hamlyn Lectures lend strength to our view :           "I shall  endeavour to  show that there are in the      contemporary world  challenges, social,  political  and      economic, which,  if the  system cannot meet them, will      destroy  it.   These  challenges  are  not  created  by      lawyers;  they   certainly  cannot   be  suppressed  by      lawyers: they have to be met either by discarding or by      adjusting the legal system. Which is to be ?"      Lest there  should be  misapprehension, we wish to keep the distinction  clear  between  the  fundamental  right  to enforce fundamental  rights and  the interest  sufficient to

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claim  relief   under  Art.   226  and   even  under   other jurisdictions. The learned Attorney General almost 72 agreed,  under   pressure  of   compelling  trends   in  the contemporary law  of procedure,  that Art.  226 may probably enable the  petitioner to seek relief if the facts suggested by the  court hypothetically  existed. Shri  A. K.  Sen also took up  a similar  position. I will put aside Art. 32 for a moment and  scan the  right under Art. 226. There is nothing in the  provision (unlike  under Art.  32) to define ’person aggrieved’, ’standing’  or ’interest’  that gives  access to the court to seek redress.      The argument  is, who  are you  to ask  about the wrong committed or  illegal act  of the  Corporation if  you  have suffered no  personal injury  to  property,  body,  mind  or reputation ?  An  officious  busybody  picking  up  a  stray dispute or  idle  peddlar  of  blackmail-litigation  through abuse of  the process  of the  court cannot  be permitted to pollute the  court instrumentality,  for private objectives. Public justice  is always  and only at the service of public good, never  the servant  or janitor  of private interest or personal motive.      Law as  I conceive  it, is  a social  auditor and  this audit function  can be  put into  action only  when some one with real  public  interest  ignites  the  jurisdiction.  We cannot be  scared by  the fear  that all and sundary will be litigation-happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms suffer from atrophy and activism is essential for participative  public justice,  some risks  have  to  be taken and  more opportunities  opened for  the public-minded citizen to  rely on  the legal  process and  not be repelled from it by narrow pedantry now surrounding locus standi.      Schwartz and  H.W.R. Wade  wrote in  Legal  Control  of Government:           "Restrictive rules  about standing  are in general      inimical to  a healthy  system of a administrative law.      If a  plaintiff with a good case is turned away, merely      because he  is not  sufficiently  affected  personally,      that means  that some government agency is left free to      violate the  law, and  that is  contrary to  the public      interest. Litigants  are unlikely  to expend their time      and money unless they have some real interest at stake.      In the  rare cases where they wish to sue merely out of      public spirit, why should they be discouraged?"      They further observed:           "The problem  of  standing,  or  locus  standi  is      inherent in  all legal  systems...... But in the United      States, perhaps 73      because of  the constitutional  basis which the subject      has acquired  in federal  law it  can be discussed as a      single topic.  In Britain  it is  a thing of shreds and      patches, made up of various differing rules which apply      to various  different remedies  and procedures. It is a      typical product  of the untidy system of remedies, each      with  its   own  technicalities,   which  all   British      administrative lawyers would like to see reformed." We have  no doubt  that having  regard to  the conditions in Third World countries, Cappelletti is right in his stress on the importance of access:           "The right  of effective  access  to  justice  has      emerged with  the new  social rights.  Indeed, it is of      paramount importance  among  these  new  rights  since,      clearly, the  enjoyment of  traditional as  well as new

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    social  rights   presupposes   mechanisms   for   their      effective protection.  Such  protection,  moreover,  is      best assured  by a workable remedy within the framework      of the judicial system. Effective access to justice can      thus be  seen as  the most  basic requirement-the  most      basic ’human  right’-of  a  system  which  purports  to      guarantee legal rights."      The need for a radical approach has been underscored in New Zealand by Black:           ".......today it  is  unreal  to  suggest  that  a      person looks to the law solely to protect his interests      in a  narrow sense.  It is necessary to do no more than      read the newspapers to see the breadth of the interests      that today’s  citizen expects the law to protect-and he      expects the  court  where  necessary  to  provide  that      protection. He is interested in results, not procedural      niceties."      India is  an a  fortiori case, especially as it suffers from the  pathology of mid Victorian concepts about cause of action.  The   Australian  Law   Reform  Commission  in  its discussion paper  No. 4 has considered the pros and cons and strongly supported  the wider  basis for  access to justice. Class-actions  will   activise  the   legal  process   where individuals cannot  approach the  court for  many reasons. I quote from the Discussion Paper No. 4 : 74           "Widened standing  rules may  assist consumers  in      attaining relevant injunctive or declaratory relief but      they do  not assist  in recovering  losses inflicted by      illegal trading  practices, nor  do they  threaten  the      illegal trader  where he  is mot  hurt, his pocketbook.      The most  potent legal instrument in that regard so far      devised is  the modern class action, to some an ’engine      of destruction’,  to others  a mighty  force for  good.      Consider the  New York Commissioner of Consumer Affairs      giving evidence before a United States Senate Committee      in 1970.           ’A federal  class action law will have more impact      on the market places of the nation than all the myriads      of laws  and ordinances  against  fraud  and  deception      which are  hidden away,  in the statute books of the 50      States and  their various  sub-divisions, put together.      All these  laws make  fraud illegal.  But they have not      made fraud unprofitable. Many of these laws can only be      invoked by administrative agencies, which long ago lost      their concern  for the  consumer and their appetite for      action.           A Federal  class action  law......  will  put  the      power to  seek justice in court where it belongs-beyond      the reach of campaign contributors, industry lobbyists,      or Washington  lawyers-and it  will put  power  in  the      hands of  the consumers  themselves and in the hands of      their own  lawyers, retained by them to represent their      interests alone.’ "      Public interest  litigation is  part of  the process of participate justice  and ’standing’  in Civil  litigation of that pattern  must have  liberal reception  at the  judicial doorsteps. The  flood-gates argument  has been nailed by the Australian Law Reforms Commission :           "The idle  and whimsical  plaintiff, a  dilettante      who litigates for a lark, is a specter which haunts the      legal literature, not the courtroom.           A major  expressed reason  for  limiting  standing      rights is  fear  of  a  spate  of  actions  brought  by      busybodies which  will unduly  extend the  resources of

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    the courts.  No  argument  is  easier  put,  none  more      difficult to  rebut. Even  if the  fear be justified it      does not follow that present restrictions should 75      remain. If  proper claims  exist it may be necessary to      provide resources for their determination. However, the      issue must be considered.      . .  . .  Over recent years successive decisions of the      United States  Supreme Court  have liberalised standing      so as  to afford  a hearing  to any  person with a real      interest in  the relevant  controversy.  Surveying  the      result in 1973 Professor Scott commented :           ’When the  floodgates of  litigation are opened to      some new  class of  controversy by  a  decision  it  is      notable how  rarely one  can discern the flood that the      dissentors feared.           Professor Scott  went on  to point  out  that  the      liberalised standing  rules had  caused no  significant      increase in the number of actions brought, arguing that      parties will not litigate at considerable personal cost      unless they have a real interest in a matter."      We agree with the conclusion of the Commission:           "The  moral,   perhaps,  applies;  if  the  courts      cannot, or  will not,  give relief to people who are in      fact concerned  about a matter then they will resort to      self-held, with grave results for other persons and the      rule of  law. Some  may  reply  that  if  there  is  no      evidence of  a great  increase in  numbers there  is no      evidence of  need for  enlarged  standing  rights.  The      reply would  overlook two  considerations. One case may      have a  dramatic effect  on behaviour  in  hundreds  of      others; this  is the  whole notion  of the  legal ’test      case’. Secondly,  the mere  exposure to possible action      is likely  to  affect  the  behaviour  of  persons  who      presently feel themselves immune from legal control".      In the Municipal Council, Ratlam, a bench of this Court observed:           " ’It  is procedural rules’ as this appeal proves,      ’which  infuse  life  into  substantive  rights,  which      activate them to make them effective’ .... The truth is      that a  few profound issues of processual jurisprudence      of great  strategic significance  to our  legal  system      face us  and we  must zero-in  on them  as they involve      problems of access to justice for the people beyond the      blinkered  rules   of  ’standing’   of  British  Indian      vintage. If  the centre  of gravity  of justice  is  to      shift, as  the Preamble  to the  Constitution mandates,      from the tradi- 76      tional individualism  of locus  standi to the community      orientation of public interest litigation, these issues      must be  considered. In  that sense, the case before us      between the  Ratlam Municipality  and the citizens of a      ward,  is   a  pathfinder  in  the  field  of  people’s      involvement in  the justicing  process, sans  which  as      Prof. Sikes  points the  system may  ’crumble under the      burden of its own insensitibity’...........           Our judicial  system has  been aptly  described as      follows:                Admirable though  it may  be, (it) is at once           slow and costly. It is a finished product of great           beauty, but  entails an immense sacrifice of time,           money and talent.           This ’beautiful’ system is frequently a luxury; it      tends to  give a high quality of justice only when, for

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    one  reason   or  another,  parties  can  surmount  the      substantial barriers which it erects to most people and      to many types of claims.           Why drive  common people to public interest action      ?  Where  Directive  Principles  have  found  statutory      expression in  Do’s and  Dont’s the  court will not sit      idly by.......      After all (Australian, 16 November, 1977) was right. We quote as a concluding thought of benign import for us:-           "Under a  banner ’Easier  Access to Courts of Law’      the Australian, 16 November 1977 declared:           ’Perhaps-and it  is only  a perhaps-there was once      some justification for restricting access to the courts      to prevent  their being  bogged down  in  a  morass  of      ineffectuality. But  today’s  better  informed,  better      educated, more  literate  and  more  politically  aware      citizens should certainly not be barred from the courts      by tradition. The law can no longer be a closed shop."      In the  present case  a worker,  who, clearly,  has  an interest in  the industry,  brings this  action regarding an alleged wrong-doing  by the Board of Management. Article 43A of  the  Constitution  confers,  in  principle,  partnership status to  workers in  industry and we cannot, therefore, be deterred   by    technical   considerations   of   corporate personality to  keep out  those who  seek to  remedy  wrongs committed in  the management  of public sector. Locus standi and justiciability  are different  issues, as I have earlier pointed out. This takes us to the 77 question of  justiciability of questions like sale of public property by  public bodies. Certainly, it is not part of the judicial process  to examine  entrepreneurial activities  to ferret out  flaws. The  court is  least  equipped  for  such oversights. Nor,  indeed, is  it a function of the judges in our constitutional scheme. We do not think that the internal management, business  activity or institutional operation of public bodies  can be  subjected to inspection by the Court. To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless,  the broad  parameters of  fairness in administration, bona  fides in  action, and  the fundamental rules  of  reasonable  management  of  public  business,  if breached, will become justiciable.      If a  citizen is  no more  than a wayfarer or officious intervener without  any  interest  or  concern  beyond  what belongs to  any one  of  the  660  million  people  of  this country, the door of the court will not be ajar for him. But he belongs  to an organisation which has special interest in the subject  matter, if he has some concern deeper than that of a  busybody, he cannot be told off at the gates, although whether the  issue raised  by him  is justiciable  may still remain to  be considered.  I, therefore,  take the view that the present  petition would  clearly have  been  permissible under Article 226.      The learned Attorney General drew our attention to Art. 32 and  cited decisions  to support his contention that only the petitioner’s  fundamental rights could be agitated under that Article.  As  the  rulings  now  stand,  he  is  right, although  the  question  still  survives  as  to  whether  a worker’s fundamental  right under  Art. 14  is not  affected when arbitrary  action of  the enterprise  in  which  he  is employed ha an impact on his well-being.      The democratisation  of judicial  remedies which is the thrust of  our separate opinion, induces us to conclude with a quote :           It was the boast of Augustus that he found Rome of

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    brick and  left it  of marble. But how much nobler will      be the  sovereigns boast  when he  shall have it to say      that he  found law  dear and  left it cheap; found it a      sealed book  and left  it a living letter; found it the      patrimony of  the rich  and left  it the inheritance of      the poor;  found it  the two-edged  sword of  craft and      oppression and  left it  the staff  of honesty  and the      shield of innocence. 78 Having sought  to  illumine  the  half-lit  zone  of  access jurisprudence, we  wish to  make it  clear that  we are  not dealing with  the likely  application Art.  19(1) (f)  or of Art. 14  which have  been raised in the present case because the learned  Chief Justice  has held  that on the merits the action of the Corporation is above board. The question which we reserve  may  well  be  considered  when  an  appropriate occasion arises. N. K. A.                                 Petition dismissed. 79