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PETITIONER: CALCUTTA DOCK LABOUR BOARD

       Vs.

RESPONDENT: JAFFAR IMAM AND OTHERS

DATE OF JUDGMENT: 22/03/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. RAMASWAMI, V.

CITATION:  1966 AIR  282            1965 SCR  (3) 453  CITATOR INFO :  RF         1973 SC 855  (24,30)  F          1973 SC2251  (8)  R          1975 SC1331  (26)  C          1991 SC 101  (240)

ACT: Natural  Justice-Detention under Preventive  Detention  Act- Termination of service based on such detention-Validity.

HEADNOTE: The  respondents  had  been detained  under  the  Preventive Detention   Act.   On  their  release   their   employer-the appellant-Board,  commenced  disciplinary  proceedings   and issued  show cause notices why their services should not  be terminated  on  the  principal ground  that  they  had  been detained  for acts prejudicial to the maintenance of  public order.    Not  being  satisfied  with  their  answers,   the appellant  terminated  their  services.   The   respondents’ appeals   to  the  Chairman  of  the  appellant-Board   were dismissed.  Thereupon, the respondents filed writ  petitions in  the  High Court, challenging the orders on  the  grounds that reasonable opportunity was not given to them, and  that even the relevant statutory provisions had been contravened. The petitions were dismissed, but were allowed by a Division Bench on appeal. In the appeal to this Court, HELD:     If  the  appellants wanted  to  take  disciplinary action  against  respondents on the. ground that  they  were guilty  of misconduct, it was absolutely essential that  the appellant  should  have  held a proper  enquiry  instead  of equating  the detention to a conviction by  Criminal  Court. At  this  enquiry, reasonable opportunity should  have  been given  to the respondents to show cause and before  reaching its  conclusion,  the appellant was bound to  lead  evidence against  the respondents, and give them a reasonable  chance to test the evidence in accordance with the rules of natural justice.  Therefore, the Court of appeal was right in taking the  view  that  in  the  departmental  enquiry  which   the appellant  held against the respondents it was not  open  to the  appellant  to  act on suspicion, and  inasmuch  as  the appellant’s  decision  was  based only  upon  the  detention

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orders  and nothing else, there could be little  doubt  that the said conclusion was based on suspicion and nothing more. [459E-H] Case law referred to: An obligation to hold such an enquiry is also imposed on the employer   by  cl.  36(3)  of  the  Calcutta  Dock   Workers (Regulation  of Employment) Scheme, 1951, and cl.  45(6)  of the Scheme of 1956. [459G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 569 to  571 of 1964. Appeals from the judgment and orders dated August 4, 1961 of the Calcutta High Court in Appeals from Original Orders Nos. 22, 29 and 30 of 1959. B.   Sen and S. N. Mukherjee, for the appellants. K.   R. Chaudhuri, for the respondents. 454 The Judgment of the Court was delivered by Gajendragadkar, C. J. These three appeals arise out of three writ petitions filed by the three respondents, Jaffar  Imam, Brindaban  Nayak  and  Jambu  Patra,  respectively  on   the Original  Side  of  the  Calcutta  High  Court  against  the appellant, the Calcutta Dock Labour Board.  Each one of  the respondents  challenged the validity of the order passed  by the  appellant, terminating his employment as  a  registered dock worker with the appellant, on the ground that the  said order  was illegal and inoperative.  The basis on which  the impugned  orders were challenged was that the enquiry  which had  been  held  before  passing the  said  orders  had  not afforded  to  the respondents a  reasonable  opportunity  to defend  themselves  and as such, the principles  of  natural justice  had  not  been  followed  and  even  the   relevant statutory   provisions  had  been  contravened.   The   writ petitions filed by Jaffar Imam and Jambu Patra were heard by Sinha, J., whereas the writ petition filed by Bridaban Nayak was heard by P.B. Mukherji, J. The learned single Judges who heard these respective writ petitions substantially took the same  view  and  rejected  the  contentions  raised  by  the respondents.   In  the  result,  the  writ  petitions   were dismissed. Against  these decisions, the respondents preferred  appeals before  a  Division Bench of the Calcutta High  Court.   The Division  Bench  has allowed the appeals and has  issued  an appropriate writ directing that the impugned orders by which the  employment  of the respondents was  terminated  by  the appellant should be quashed.  The appellant then applied for and  obtained a certificate from the said High Court and  it is with the certificate thus granted to it that it has  come to this Court in appeal. It appears that the three respondents were Dock workers  at- tached  to the Port of Calcutta and were registered  in  the Reserve  Pool.   On  August 12, 1955,  the  Commissioner  of Police,  Calcutta, passed an order under s.  3(1)(a)(ii)  of the   Preventive  Detention  Act,  1950  (No.  4  of   1950) (hereinafter   called   ’the  Act’)   directing   that   the respondents  should  be detained, as he was  satisfied  that they  were guilty of violent and riotous behaviour  and  had committed  assault and as such, it was necessary  to  detain them  with  a  view to preventing them from  acting  in  any manner prejudicial to the maintenance of public order.   The respondents   then   made  representations  to   the   State Government  under s. 7 of the Act alleging that the  grounds

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set  out  in the detention orders passed against  them  were untrue and that their detention was in fact malafide. On receipt of these representations, they were forwarded  by the State Government to the Advisory Board under s. 9. It is wellknown  that the Act had made a provision  for  referring orders of detention to the Advisory Boards constituted under s.  8. When the Advisory Board received the  representations made  by the respondents, it took into account the  material placed  before it, considered the said representations,  and submitted its report within the time  455 specified  by  s. 10(1).  Since the report was  against  the respondents,  their  detention was confirmed  by  the  State Government under s. 11 of the Act and in consequence,  their detention was continued for about 11 months. After  they were released from detention, they  applied  for allocation  to  registered dock employment, but  instead  of passing  orders in favour of such allocation, the  appellant commenced disciplinary proceedings against them and  notices were served on them to show cause why their services  should not  be  terminated on 14 days’ notice in  terms  of  clause 36(2)(d)  of  the  Calcutta  Dock  Workers  (Regulation   of Employment) Scheme, 1951 (hereinafter called "the  Scheme"). The   principal  ground  in  these  notices  was  that   the respondents  had been detained for acts prejudicial  to  the maintenance of public order and as such, their services were liable  to  be  terminated.   Accordingly,  the  respondents showed  cause  against the proposed order,  but  the  Deputy Chairman  of  the  appellant was net  satisfied  with  their representations,  and  so, he terminated their  services  on December  17,  1956.  While doing so, each one of  them  was given  14 days’ wages in lieu of notice for  the  equivalent period,.   The  respondents  challenged  this  decision   by preferring  appeals  to the Chairman of the  appellant,  but their  appeals did not succeed and the orders passed by  the Deputy  Chairman  were confirmed on April 4,  1957.   It  is against  these appellate orders that the  respondents  filed the  three writ petitions which have given rise to the  pre- sent appeals. It is plain that both the Deputy Chairman who passed the im- pugned  orders against the respondents, and the Chairman  of the appellant who heard the respondents’ appeals, have taken the  view  that the orders of detention passed  against  the respondents, in substance, amounted to orders of  conviction and as such, the appellant was justified in terminating  the respondents’  employment.  Both the original as well as  the appellate  orders unequivocally state that having regard  to the  fact that the respondents had been detained,  and  that their  detention  was  confirmed and  continued  after  con- sultation  with  the Advisory Board, it is clear  that  they were  guilty  of  the conduct alleged against  them  in  the orders of detention.  In that connection, it was pointed out that  the  Advisory Board consisted of  persons  of  eminent status and undoubted impartiality, and so, the fact that the representations made by the respondents were not accepted by the  Advisory Board and that their detention was,  confirmed by  the State Government in consultation with  the  Advisory Board,  was enough to justify the appellant  in  terminating the employment of the respondents. The two learned single Judges who heard the respective  writ petitions  substantially took the same view.  Sinha, J.  has observed  that the respondents had a hearing before  a  very responsible  body  and  the report that  went  against  them showed that the detaining authority was justified in holding that the respondents were guilty

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456 of  the charges and had thus committed acts of  indiscipline and  misconduct within the meaning of the Scheme.  In  fact, Sinha  J., felt no hesitation in holding that the  appellant would  be entitled to take disciplinary action  against  the respondents upon suspicion, and he held that the appellant’s suspicion against the respondents was more than justified by the fact that the detention of the respondents received  the approval  of the Advisory Board.  P.B. Mukherjee,  J.,  also approached the question on the same lines.  He held that the appellant  was entitled to take into consideration the  fact that  the respondents had been detained, that the  statutory Advisory  Board  had considered the representations  of  the respondents and had not accepted them, and that the  grounds of  detention  showed  that  the  detaining  authority   was satisfied  that the respondents were guilty of  the  conduct which  was prejudicial to the maintenance of  public  order. "In  the premises", said the learned Judge, "I am  satisfied that  the order terminating Brindaban Nayak’s  services  was justified". The  Court of Appeal which heard the three appeals filed  by the respondents against the respective orders passed by  the two  learned single Judges has disagreed with  the  approach adopted   by  them  in  dismissing  the  respondents’   writ petitions.   It has held that in acting merely on  suspicion based  on the fact that the respondents had  been  detained, the appellant had acted illegally and that made the impugned orders  invalid  and  inoperative.   Mr.  B.  Sen  for   the appellant  contends  that  the view taken by  the  Court  of Appeal is erroneous in law. Before dealing with this point, it would be useful to  refer to  the relevant provisions of the Scheme.  The  Scheme  has been  made  by  the Central Government in  exercise  of  the powers  conferred  on it by sub-s. (1) of s. 4 of  the  Dock Workers  (Regulation of Employment) Act, 1948 (IX of  1948). Clause  3(n) defines a "reserve pool" as meaning a  pool  of registered dock workers who are available for work, and  who are  not,  for  the  time being,  in  the  employment  of  a registered   employer  as  a  monthly  worker.   The   three respondents  belong to this category of workers.  Clause  23 of  the  Scheme guarantees the specified  minimum  wages  to workers on the Reserve Pool Register.  Clause 29  prescribes the  obligations of registered dock workers, whereas  clause 30  provides  for the obligations of  registered  employers. Clause  31 prescribes restriction on employment,  Clause  33 deals  with  wages,  allowances  and  other  conditions   of service, whereas clause 34 is concerned with pay in  respect of  unemployment or underemployment.  Clause 36  deals  with disciplinary  procedure and it is with this clause  that  we are  directly  concerned  in these  appeals.   Clause  36(2) provides  that a registered dock worker in the Reserve  Pool who  is available for work and fails to comply with  any  of the  provisions  of  the  Scheme,  or  commits  any  act  of indiscipline or misconduct may be reported in writing to the Special Officer, who may. after investigating the matter and without prejudice to and in addition to the powers conferred by clause 35,  457 take  any of the five steps indicated by sub-clauses (a)  to (e)  as  regards  that worker.   Sub-clause  (e)  refers  to dismissal  of  the guilty workman.  Clause 36(3)  lays  down that  before any action is taken under sub-cl. (1)  or  (2), the  person concerned shall be given an opportunity to  show cause  why the proposed action should not be  taken  against him.  Clause 36A provides for the disciplinary powers of the

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Chairman of the Board.  Clause 37 deals with termination  of employment.   Clauses 38 and 39 provide for appeals.   That, in  brief,  is the nature of the Scheme.   This  Scheme  was substituted by another Scheme in 1956.  Clause 45(6) of this new  Scheme corresponds to cl. 36(3) of the earlier  Scheme. In other words, the relevant clauses under both the  Schemes require that before any disciplinary action is taken against a worker, an opportunity must be given to him to show  cause why the proposed action should not be taken against him. There  can be no doubt that when the appellant  purports  to exercise  its authority to terminate the employment  of  its employees such as the respondents in the present case, it is exercising   authority   and  power  of   a   quasi-judicial character.  In cases where a statutory body or authority  is empowered to terminate the employment of its employees,  the said  authority or body cannot be heard to say that it  will exercise its powers without due regard to the principles  of natural  justice.   The  nature  or  the  character  of  the proceedings  which such a statutory authority or  body  must adopt  in exercising its disciplinary power for the  purpose of  terminating  the employment of its employees,  has  been recently considered by this Court in several cases, vide the Associated Cement Companies Ltd. V.     P.   N.   Sharma   & Another,(1) and Lala Shri Bhagwan and Another v.  Shri   Ram Chand  & Anr.(2 ) and it has been held that in  ascertaining the nature of such proceedings with a view to decide whether the  principles of natural justice ought to be  followed  or not, the tests laid down by Lord Reid in Ridge v. Baldwin  & Others(3) are relevant.  In view of these decisions, Mr. Sen has not disputed this position and we think, rightly. Therefore,  the  question which falls to  be  considered  is whether  the appellant can successfully contend that it  was justified in acting upon suspicion against the  respondents, the basis for the suspicion being that they were detained by orders  passed by the appropriate authorities and  that  the said  orders  were confirmed by the State  Government  after consultation   with  the  Advisory  Board.   It  is   hardly necessary  to emphasise that one of the basic postulates  of the  rule  of law as administered in  a  democratic  country governed by a written Constitution, is that no citizen shall lose  his liberty without a fair and proper trial  according to law; and legal and proper trial (1)  [1965] 2 S.C.R. 366. (2)  [1965] 3 S.C.R. 218. (3)  L.R. [1964] A. C. 40, 458 according to law inevitably means, inter alia, a trial  held in  accordance with the relevant statutory provisions or  in their  absence, consistently with the principles of  natural justice.   The Act is an exception to this rule and in  that sense,  it amounts to an encroachment on the liberty of  the citizen.    But   the  said  Act  has  been   held   to   be constitutionally valid, and so far as detention of a citizen effected  by  an  order validly passed  by  the  appropriate authorities  in exercise of the powers conferred on them  is concerned,  its validity can be challenged only  on  grounds permissible  in the light of the relevant provisions of  the Act  or on the ground of malafides.  Whenever  detenus  move the  High  Courts  or  the  Supreme  Court  challenging  the validity of the orders of detention passed against them, the scope of the enquiry which can be legitimately held in  such proceedings  is  thus circumscribed and  limited.   In  such proceedings, Courts cannot entertain the plea that the  loss of  liberty suffered by the detenu by his detention  is  the result  of  mere  suspicions entertained  by  the  detaining

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authorities,  provided  the detaining authorities  act  bona fide;  their  subjective  judgment  about  the   prejudicial character of the activities or conduct of the citizen sought to  be  detained, is not open to challenge  or  scrutiny  in ordinary  course,  and  in that sense, it  may  have  to  be conceded  that the loss of liberty has to be suffered  by  a citizen  if  he  is  detained  validly  under  the  relevant provisions of the Act.  Thus far, there is no dispute. But  the question which we have to consider in  the  present appeals  is of a different character.  A citizen may  suffer loss  of  liberty if he is detained validly under  the  Act; even  so,  does  it follow that  the  detenion  order  which deprived  the  citizen  of his  liberty  should  also  serve indirectly but effectively the purpose of depriving the said citizen  of  his  livelihood?   If the  view  taken  by  the appellant’s officers who tried the disciplinary  proceedings is  accepted, it would follow that if a citizen is  detained and his detention is confirmed by the State Government,  his services would be terminated merely and solely by reason  of such  detention.   In  our  opinion,  such  a  position   is obviously and demonstrably inconsistent with the  elementary concept  of  the rule of law on which  our  constitution  is founded.  When a citizen is detained, he may not succeed  in challenging  the  order  of detention  passed  against  him, unless  he is able to adduce grounds permissible  under  the Act.   But  we are unable to agree with Mr.  Sen’s  argument that  after  such a citizen is released from  detention,  an employer,  like the appellant, can immediately start  disci- plinary  proceedings against high and tell him in  substance that he was detained for prejudicial activities which amount to misconduct and that the detention order was confirmed  by the  State Government after consultation with  the  Advisory Board,  and  so,  he  is liable to  be  dismissed  from  his employment.  It is obvious that the Advisory Board does  not try  the  question about the propriety or  validity  of  the citizen’s  detention  as a Court of law would;  indeed,  its function is limited to consider the relevant material placed before  it and the representation received from the  detenu, and then submit  459 its report to the State Government within the time specified by s.10(1) of the Act.  It is not disputed that the Advisory Board  considers evidence against the detenu which  has  not been  tested  in the normal way by  cross-examination-,  its decision  is  essentially  different  in  character  from  a judicial  or  quasi-judicial  decision.  In  some  cases,  a detenu may be given a hearing; but such a hearing is  often, if not always, likely to be ineffective, because the  detenu is deprived of an opportunity to cross examine the  evidence on which the detaining authorities rely and may not be  able to  adduce evidence before the Advisory Board to  rebut  the allegations  made against him.  Having regard to the  nature of  the  enquiry which the Advisory Board is  authorised  or permitted  to  hold before expressing its  approval  to  the detention  of  a  detenu, it would, we  think,  be  entirely erroneous  and wholly unsafe to treat the opinion  expressed by  the  Advisory  Board as amounting to  a  judgment  of  a criminal  court.  The main infirmity which has vitiated  the impugned  orders arises from the fact that the  said  orders equate  detention  of  a detenu with  his  conviction  by  a criminal court.  We are, therefore, satisfied that the Court of  Appeal  was right in taking the view that in  a  depart- mental   enquiry  which  the  appellant  held  against   the respondents  it  was  not open to the appellant  to  act  on suspicion,  and  inasmuch  as the  appellant’s  decision  is

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clearly  based upon the detention orders and  nothing  else, there  can  be  little doubt that, in  substance,  the  said conclusion is based on suspicion and nothing more. Even  in regard to its employees who may have been  detained under  the Act, if after their release the appellant  wanted to take disciplinary action against them on the ground  that they were guilty of misconduct, it was absolutely  essential that  the appellant should have held a proper  enquiry.   At this enquiry, reasonable opportunity should have been  given to  the  respondents to show cause and before  reaching  its conclusion, the appellant was bound to lead evidence against the  respondents, give them a reasonable chance to test  the said  evidence,  allow  them liberty  to  lead  evidence  in defence,  and then come to a decision of its own.   Such  an enquiry is prescribed by the requirements of natural justice and an obligation to hold such an enquiry is also imposed on the appellant by clause 36(3) of the Scheme of 1951 and  cl. 45(6) of the Scheme of 1956.  It appears that in the present enquiry,  the  respondents  were not  given  notice  of  any specific  allegations  made  against them,  and  the  record clearly  shows  that no evidence was led in the  enquiry  at all.   It is only the detention orders that were  apparently produced  and it is on the detention orders alone  that  the whole proceedings rest and the impugned orders are  founded. That  being  so, we feel no hesitation in holding  that  the Court  of  Appeal was perfectly right in setting  aside  the respective  orders  passed by the two leaned  single  Judges when  they dismissed the three writ petitions filed, by  the respondents. Mr. Sen strenuously contended that if we were to insist upon a  proper enquiry being held against the respondents  before termi-                             460 nating   their  services,  the  appellant  would   find   it impossible to take any disciplinary action against them.  He urges  that  the  respondents  are  bullies  and  they  have terrorised  their co-workers to such an extent that  no  one would  be willing or prepared to give evidence against  them in  a departmental enquiry.  Even assuming that Mr.  Sen  is right  that  the appellant would  experience  difficulty  in bringing home its charges to the respondents, we do not  see how  such a fear could justify the approach adopted  by  the enquiry officer in the present case.  What would happen if a desperate  character  who  is  in  the  employment  of   the appellant  had not been detained under the Act?  In  such  a case,  before  the  appellant can validly  dismiss  such  an employee,  it  will  have to hold  a  proper  enquiry.   The circumstance  that the respondents happened to  be  detained can  afford  no  justification for not  complying  with  the relevant   statutory   provision  and  not   following   the principles of natural justice.  Any attempt to short-circuit the  procedure  based on considerations of  natural  justice must,  we  think, be discouraged if the rule of law  has  to prevail, and in dealing with the question of the liberty and livelihood of a citizen, considerations of expediency  which are not permitted by law can have no relevance whatever. The  result  is,  the appeals fail and  are  dismissed  with costs. Appeals dismissed. 461