HARJINDER SINGH v.

PUNJAB STATE WAREHOUSING CORPORATION (Civil Appeal No. 587 of 2010)

JANUARY 05, 2010 [G.S. Singhvi and Asok Kumar Ganguly, JJ.]

2010 (1) SCR 591

The following Order of the Court was delivered

ORDER

1. Leave granted.

2. This appeal is directed against order dated 6.2.2009 passed by the  

learned Single Judge of the Punjab and Haryana High Court in Writ Petition  

No.372 of 2001 whereby he modified the award passed by the Labour Court,  

Gurdaspur (for  short,  ‘the Labour Court’)  in Reference No.43 of  1996 and  

directed that  in  lieu of  reinstatement  with  50% back wages,  the appellant  

herein shall be paid Rs.87,582/- by way of compensation.  

3.  The  appellant  was  employed  in  the  services  of  the  Punjab  State  

Warehousing Corporation (hereinafter described as ‘the corporation’) as work  

charge  Motor  Mate  with  effect  from  5.3.1986.  After  seven  months,  the  

Executive Engineer of the corporation issued order dated 3.10.1986 whereby  

he appointed the appellant as Work Munshi in the pay scale of Rs.350-525  

for a period of three months. The same officer issued another order dated  

5.2.1987 and appointed the appellant as Work Munshi in the pay scale of  

Rs.400-600 for a period of three months. Though, the tenure specified in the  

second order ended on 4.5.1987, the appellant was continued in service till  

5.7.1988 i.e.,  the date on which the Managing Director  of  the corporation  

issued  one  month’s  notice  seeking  to  terminate  his  service  by  way  of  

retrenchment. However, the implementation of that notice was stayed by the  

Punjab and Haryana High Court in Writ Petition No.8723 of 1988 filed by the  

appellant. The writ petition was finally dismissed as withdrawn with liberty to

the appellant  to avail  remedy under  the Industrial  Disputes Act,  1947 (for  

short, ‘the Act’). After two months, the Managing Director of the corporation  

issued  notice  dated  26.11.1992  for  retrenchment  of  the  appellant  and  21  

other workmen by giving them one month’s pay and allowances in lieu of  

notice as per the requirement of Section 25F(a) of the Act.  

4. As a sequel to withdrawal of the writ petition, the appellant raised an  

industrial  dispute which was referred by the Government of  Punjab to the  

Labour Court. In the statement of claim filed by him, the appellant pleaded  

that the action taken for termination of his service by way of retrenchment is  

contrary to the mandate of Sections 25F and 25M of the Act and that there  

has been violation of the rule of last-come-first go inasmuch as persons junior  

to him were retained in service. In the reply filed on behalf of the corporation,  

it  was  pleaded  that  the  appellant’s  service  was  terminated  by  way  of  

retrenchment  because the projects  on which he was  employed had been  

completed.  It  was also pleaded that  the impugned action was taken after  

complying  with  Section  25F  of  the  Act.  However,  it  was  not  denied  that  

persons junior to the appellant were retained in service.

5.  The  learned  Presiding  Officer  of  the  Labour  Court  considered  the  

pleadings of the parties and evidence produced by them and passed award  

dated 15.12.1999 for reinstatement of the appellant with 50% back wages.  

The Labour Court held that even though the appellant was retrenched after  

complying with Section 25-F of the Act, the principle of equality enshrined in  

Section 25G of the Act was violated and persons junior to the appellant were  

allowed to  continue  in  service.  This  is  evident  from paragraph  12  of  the  

award, which reads as under:

“However, the contention of the AR of the workman about gross violation  

of the principles of equality as enshrined in Section 25G of the Act is full  

of substance. Ved Prakash, MW1, when cross-examined, admits that as  

per the salary record, the workman had drawn his monthly wages from

10.3.86 to 26.11.92 regularly in every month. He admits that the workman  

namely  Nirmal  Singh,  Anju  Gupta,  Harbans  Singh  mentioned  in  the  

seniority  list  are  juniors  to  the  workman  concerned  and  they  are  still  

working with the respondent. He further admitted that the work is existing  

with the respondent against which the workman was employed. He also  

admits that persons who were retrenchment have been reinstated in job  

through the different Courts and they are working with the respondent.  

Therefore,  the  grievance  of  the  WW  workman  get  support  from  the  

statement of MW1 that juniors to him namely Anju Gupta, Shubh Dhayan  

and Joginder  Singh are still  working with  the  respondent  and that  his  

statement has not been put to cross-examination and as such his version  

must be assumed to be correct in the light of  seniority list,  Ex.X1. No  

reason whatsoever was assigned by the respondent to dispute with the  

services of the workman while retaining juniors. Even it is so mentioned in  

the appointment orders Ex. WI to W3 that seniors of the workman can be  

terminated on ten days notice, does not mean principle of “last come, first  

go” as envisaged in sec. 25G of the Act are not required to be complied  

with. Reliance is placed upon a Supreme Court case reported as 1999  

(2). SCT. Page 284: Samishta Dube vs. City Board: Etaway: that wherein  

it  was held  that  “rule  of`first  come,  last  go’  could  be  deviated  by the  

employer in cases of lack of efficiency or loss of confidence-But burden is  

on  the  employer  to  justify  deviation.  No  such  attempt  made  by  the  

respondent Employer High Court was not correct in stating that rule of  

seniority is not applicable to daily wagers. There is clear violation of sec.  

25 G of the Act. Appellant is entitled for reappointment. There is also no  

evidence  that  the  workman  was  appointed  for  specific  period  and  for  

specific job and the further that the nature of job was casual one and as  

such the workman is entitled to reinstatement. Therefore, I hold that the  

termination of services of the workman is in contravention of sec.25G of  

the I.D. Act.”

6.  The  corporation  challenged  the  award  of  the  Labour  Court  in  Writ  

Petition No.372/2001 mainly on the grounds that the dispute raised by the  

appellant could not be treated as industrial dispute because the termination of  

his service was covered by Section 2(oo)(bb) of the Act; that the appellant  

was not a regular employee and he was not working against any sanctioned  

post; that the appellant had not worked for a period of 240 days and that  

there was no post against which he could be reinstated.

7. The learned Single Judge rejected the plea that the termination of the  

appellant’s service is covered by Section 2(oo) (bb) by observing that from  

the evidence produced before the Labour Court,  it  was clearly established  

that the work against which the appellant was engaged was still continuing.  

The learned Single Judge also agreed with the Labour Court that the action  

taken  by  the  corporation  was  contrary  to  Section  25-G  of  the  Act.  He  

however,  did not  approve the award of  reinstatement  on the premise that  

initial appointment of the appellant was not in consonance with the statutory  

regulations  and  Articles  14  and  16  of  the  Constitution  and,  accordingly,  

substituted the award of reinstatement with 50% back wages by directing that  

the appellant shall be paid a sum of Rs.87,582/- by way of compensation.

8.  Shri  Dhruv Mehta,  learned counsel  for  the appellant referred to the  

averments contained in the reply filed on behalf of the corporation before the  

Labour Court and the writ petition filed before the High Court to show that in  

the  pleadings  of  the  corporation  there  was  not  even  a  whisper  that  the  

appellant’s  initial  engagement/appointment  was illegal  and argued that  the  

learned  Single  Judge  had  no  jurisdiction  to  interfere  with  the  award  of  

reinstatement by assuming that the appellant was appointed in violation of  

Articles  14  and  16  of  the  Constitution  and  the  regulations  framed  under  

Section 42 read with Section 23 of the Warehousing Corporations Act, 1962  

(for short, ‘the 1962 Act’). Shri Mehta further argued that the question whether  

the  appellant’s  appointment  was  made in  contravention  of  the  regulations  

framed  under  the  1962  Act  or  the  doctrine  of  equality  enshrined  in  the

Constitution, is a pure question of fact which could be decided only on the  

basis of pleadings and evidence produced before the Labour Court and as no  

such evidence was produced before the Labour Court, the High Court was  

not at all justified in entertaining the new plea raised for the first time during  

the course of hearing of the writ petition.

9. Learned counsel for the corporation supported the impugned order and  

vehemently argued that the learned Single Judge did not commit any error by  

setting aside the award of reinstatement because the appellant’s appointment  

was for a fixed period and his service was terminated after complying with  

Section 25-F of  the Act.  Learned counsel  repeatedly emphasised that  the  

initial  appointment  of  the  appellant  was  contrary  to  the  Punjab  State  

Warehousing Corporation Staff Groups C and D Service Regulations, 2002  

(for short ‘the Regulations’) and argued that the learned Single Judge rightly  

set aside the award of reinstatement because the appellant was appointed in  

violation of Articles 14 and 16 of the Constitution and the relevant regulations.

10. We have considered the respective submissions. In our opinion, the  

impugned  order  is  liable  to  be  set  aside  only  on  the  ground  that  while  

interfering with the award of the Labour Court, the learned Single Judge did  

not  keep  in  view the  parameters  laid  down by  this  Court  for  exercise  of  

jurisdiction  by  the  High  Court  under  Articles  226  and/or  227  of  the  

Constitution – Syed Yakoob v. K.S. Radhakrishnan and others, AIR 1964 SC  

477 and Surya Dev Rai v. Ram Chander Rai and others 2003 (6) SCC 675. In  

Syed Yakoob’s case, this Court delineated the scope of the writ of certiorari in  the following words:

“The question about the limits of the jurisdiction of High Courts in issuing  

a writ of certiorari under Article 226 has been frequently considered by  

this Court and the true legal position in that behalf is no longer in doubt. A  

writ  of  certiorari  can  be  issued  for  correcting  errors  of  jurisdiction  

committed by inferior courts or tribunals: these are cases where orders

are  passed  by  inferior  courts  or  tribunals  without  jurisdiction,  or  is  in  

excess of it, or as a result of failure to exercise jurisdiction. A writ can  

similarly be issued where in exercise of jurisdiction conferred on it, the  

Court or Tribunal acts illegally or properly, as for instance, it decides a  

question without giving an opportunity, be heard to the party affected by  

the order, or where the procedure adopted in dealing with the dispute is  

opposed to principles of natural justice. There is, however, no doubt that  

the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and  

the Court exercising it is not entitled to act as an appellate Court. This  

limitation necessarily means that findings of fact reached by the inferior  

Court  or  Tribunal  as  result  of  the  appreciation  of  evidence cannot  be  

reopened or  questioned in  writ  proceedings.  An  error  of  law which is  

apparent on the face of the record can be corrected by a writ, but not an  

error of fact, however grave it may appear to be. In regard to a finding of  

fact recorded by the Tribunal,  a writ  of  certiorari  can be issued if  it  is  

shown that  in  recording the said finding,  the Tribunal  had erroneously  

refused to admit admissible and material  evidence, or had erroneously  

admitted  inadmissible  evidence  which  has  influenced  the  impugned  

finding. Similarly, if a finding of fact is based on no evidence, that would  

be  regarded  as  an  error  of  law which  can  be  corrected  by  a  writ  of  

certiorari. In  dealing  with  this  category  of  cases,  however,  we  must  

always bear in mind that a finding of fact recorded by the Tribunal cannot  

be challenged in proceedings for a writ of certiorari on the ground that the  

relevant  and  material  evidence  adduced  before  the  Tribunal  was  

insufficient or inadequate to sustain the impugned finding. The adequacy  

or sufficiency of evidence led on a point and the inference of fact to be  

drawn from the said finding are within the exclusive jurisdiction of  the  

Tribunal, and the said points cannot be agitated before a writ Court. It is  

within these limits that the jurisdiction conferred on the High Courts under  

Article 226 to issue a writ of certiorari can be legitimately exercised (vide

Hari  Vishnu  Kamath  v.  Syed  Ahmad  Ishaque  1955  (1)  SCR  1104,  

Nagandra  Nath  Bora  v.  Commissioner  of  Hills  Division  and  Appeals  

Assam 1958 SCR 1240 and Kaushalya Devi v. Bachittar Singh AIR 1960  

SC 1168).

It is, of course, not easy to define or adequately describe what an error of  

law apparent on the face of the record means. What can be corrected by  

a writ has to be an error of law; hut it must be such an error of law as can  

be regarded as one which is apparent on the face of the record. Where it  

is  manifest  or  clear  that  the conclusion of  law recorded by an inferior  

Court or Tribunal is based on an obvious mis-interpretation of the relevant  

statutory provision, or sometimes in ignorance of it, or may be, even in  

disregard of it,  or is expressly founded on reasons which are wrong in  

law, the said conclusion can be corrected by a writ  of  certiorari. In all  

these cases, the impugned conclusion should be so plainly inconsistent  

with the relevant statutory provision that no difficulty is experienced by the  

High Court in holding that the said error of law is apparent on the face of  

the record. It may also be that in some cases, the impugned error of law  

may not be obvious or patent on the face of the record as such and the  

Court may need an argument to discover the said error; but there can be  

no doubt that what can be corrected by a writ of certiorari is an error of  

law and the said error must,  on the whole,  be of such a character as  

would satisfy the test that it is an error of law apparent on the face of the  

record. If a statutory provision is reasonably capable of two constructions  

and one construction has been adopted by the inferior Court or Tribunal,  

its conclusion may not necessarily or always be open to correction by a  

writ  of  certiorari.  In  our  opinion,  it  is  neither  possible  nor  desirable  to  

attempt  either  to  define  or  to  describe  adequately  all  cases  of  errors  

which can be appropriately described as errors of law apparent on the  

face of the record. Whether or not an impugned error is an error of law  

and an error of law which is apparent on the face of the record, must

always depend upon the facts and circumstances of each case and upon  

the nature and scope of the legal provision which is alleged to have been  

misconstrued or contravened.”

11.  In  Surya  Dev  Rai’s  case, a  two-Judge  Bench,  after  threadbare  analysis  of Articles 226 and 227 of  the Constitution and considering large  

number of judicial precedents, recorded the following conclusions:

“(1) Amendment by Act 46 of 1999 with effect from 1-7-2002 in Section  

115 of the Code of Civil  Procedure cannot and does not affect  in any  

manner the jurisdiction of the High Court under Articles 226 and 227 of  

the Constitution.

(2)  Interlocutory  orders,  passed by the courts  subordinate to  the High  

Court,  against  which  remedy  of  revision  has  been  excluded  by  CPC  

Amendment Act 46 of 1999 are nevertheless open to challenge in, and  

continue to  be subject  to,  certiorari  and supervisory  jurisdiction of  the  

High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting  

gross errors of jurisdiction i.e. when a subordinate court is found to have  

acted (i) without jurisdiction — by assuming jurisdiction where there exists  

none, or (ii) in excess of its jurisdiction — by overstepping or crossing the  

limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules  

of procedure or acting in violation of principles of natural justice where  

there is no procedure specified, and thereby occasioning failure of justice.

(4)  Supervisory  jurisdiction  under  Article  227  of  the  Constitution  is  

exercised for keeping the subordinate courts within the bounds of their  

jurisdiction. When a subordinate court has assumed a jurisdiction which it  

does not have or has failed to exercise a jurisdiction which it does have or  

the  jurisdiction  though  available  is  being  exercised  by  the  court  in  a  

manner not permitted by law and failure of justice or grave injustice has

occasioned  thereby,  the  High  Court  may  step  in  to  exercise  its  

supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none  

is available to correct mere errors of fact or of law unless the following  

requirements are satisfied: (i) the error is manifest and apparent on the  

face of the proceedings such as when it is based on clear ignorance or  

utter disregard of the provisions of law, and (ii) a grave injustice or gross  

failure of justice has occasioned thereby.

(6)  A  patent  error  is  an  error  which  is  self-evident  i.e.  which  can  be  

perceived  or  demonstrated  without  involving  into  any  lengthy  or  

complicated argument or a long-drawn process of reasoning. Where two  

inferences are reasonably possible and the subordinate court has chosen  

to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction  

are to be exercised sparingly and only in appropriate cases where the  

judicial conscience of the High Court dictates it to act lest a gross failure  

of  justice  or  grave  injustice  should  occasion.  Care,  caution  and  

circumspection need to  be exercised,  when any of  the abovesaid two  

jurisdictions is sought to be invoked during the pendency of any suit or  

proceedings  in  a  subordinate  court  and  the  error  though  calling  for  

correction  is  yet  capable  of  being  corrected  at  the  conclusion  of  the  

proceedings  in  an  appeal  or  revision  preferred  thereagainst  and  

entertaining a petition invoking certiorari or supervisory jurisdiction of the  

High Court would obstruct the smooth flow and/or early disposal of the  

suit or proceedings. The High Court may feel inclined to intervene where  

the error is such, as, if not corrected at that very moment, may become  

incapable of  correction at  a later  stage and refusal  to intervene would  

result  in travesty of justice or where such refusal  itself  would result  in  

prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will  

not convert itself into a court of appeal and indulge in reappreciation or  

evaluation of evidence or correct errors in drawing inferences or correct  

errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of  

certiorari  and  those  calling  for  exercise  of  supervisory  jurisdiction  are  

almost similar and the width of jurisdiction exercised by the High Courts in  

India unlike English courts has almost obliterated the distinction between  

the  two  jurisdictions.  While  exercising  jurisdiction  to  issue  a  writ  of  

certiorari,  the  High  Court  may  annul  or  set  aside  the  act,  order  or  

proceedings  of  the  subordinate  courts  but  cannot  substitute  its  own  

decision in place thereof. In exercise of supervisory jurisdiction the High  

Court may not only give suitable directions so as to guide the subordinate  

court  as to the manner in  which it  would act  or  proceed thereafter  or  

afresh, the High Court may in appropriate cases itself make an order in  

supersession or substitution of the order of the subordinate court as the  

court should have made in the facts and circumstances of the case.”

A reading of the impugned order shows that the learned Single Judge did  

not find any jurisdictional error in the award of the Labour Court. He also did  

not find that the award was vitiated by any error of law apparent on the face  

of the record or that there was violation of rules of natural justice. As a matter  

of fact, the learned Single Judge rejected the argument of the corporation that  

termination  of  the  appellant’s  service  falls  within  the  ambit  of  Section  

2(oo)(bb) of the Act, and expressed unequivocal agreement with the Labour  

Court  that  the  action  taken  by  the  Managing  Director  of  corporation  was  

contrary to Section 25G of the Act which embodies the rule of last come first  

go. Notwithstanding this, the learned Single Judge substituted the award of  

reinstatement of the appellant with compensation of Rs.87,582/- by assuming  

that  appellant  was  initially  appointed  without  complying  with  the  equality  

clause enshrined in Articles 14 and 16 of the Constitution of India and the

relevant regulations. While doing so, the learned Single Judge failed to notice  

that in the reply filed on behalf of the corporation before the Labour Court, the  

appellant’s claim for reinstatement with back wages was not resisted on the  

ground that  his  initial  appointment  was  illegal  or  unconstitutional  and that  

neither any evidence was produced nor any argument was advanced in that  

regard. Therefore, the Labour Court did not get any opportunity to consider  

the  issue  whether  reinstatement  should  be  denied  to  the  appellant  by  

applying the new jurisprudence developed by the superior courts in recent  

years  that  the  court  should  not  pass  an  award  which  may  result  in  

perpetuation of illegality.  This being the position, the learned Single Judge  

was not at all justified in entertaining the new plea raised on behalf of the  

corporation for the first time during the course of arguments and over turn an  

otherwise well reasoned award passed by the Labour Court and deprive the  

appellant of what may be the only source of his own sustenance and that of  

his family.  

12. Another serious error committed by the learned Single Judge is that  

he decided the writ petition by erroneously assuming that the appellant was a  

daily wage employee. This is ex facie contrary to the averments contained in  

the statement of claim filed by the workman that he was appointed in the  

scale of Rs.350-525 and the orders dated 3.10.1986 and 25.2.1987 issued by  

the concerned Executive Engineer appointing the appellant as Work Munshi  

in the pay scale of Rs.355-525 and then in the scale of Rs.400-600. This was  

not even the case of the corporation that the appellant was employed on daily  

wages. It seems that attention of the learned Single Judge was not drawn to  

the relevant records, else he would not have passed the impugned order on a  

wholly unfounded assumption that the appellant was a daily wager.

13. It is true that in the writ petition filed by it, the corporation did plead  

that the dispute raised by the appellant was not an industrial dispute because  

he had not worked continuously for a period of 240 days, the learned Single  

Judge rightly refused to entertain the same because no such argument was

advanced before him and also because that plea is falsified by the averments  

contained  in  para  2  of  the  reply  filed  on behalf  of  the  corporation  to  the  

statement of claim wherein it was admitted that the appellant was engaged as  

work charge Motor Mate for construction work on 5.3.1986 and he worked in  

that capacity and also as Work Munshi from 3.10.1986 and, as mentioned  

above,  even after  expiry of  the period of  three months’  specified in  order  

dated 5.2.1987, the appellant continued to work till 5.7.1988 when first notice  

of  retrenchment  was  issued by  the  Managing  Director  of  the  corporation.  

Therefore, it was not open for the corporation to contend that the appellant  

had  not  completed  240  days  service.  Moreover,  it  is  settled  law  that  for  

attracting the applicability  of  Section 25-G of  the Act,  the workman is  not  

required to prove that he had worked for a period of 240 days during twelve  

calendar months preceding the termination of his service and it is sufficient  

for him to plead and prove that while effecting retrenchment, the employer  

violated the rule of ‘last come first go’ without any tangible reason. In Central   

Bank of  India  v.  S.  Satyam  (1996)  5  SCC 419,  this  Court  considered an  

analogous issue in the context of Section 25-H of the Act, which casts a duty  

upon the employer to give an opportunity to the retrenched workmen to offer  

themselves  for  re-employment  on  a  preferential  basis.  It  was  argued  on  

behalf of the bank that an offer of re-employment envisaged in Section 25-H  

should be confined only  to  that  category  of  retrenched workmen who are  

covered by Section 25-F and a restricted meaning should be given to the  

term ‘retrenchment’ as defined in Section 2(oo). While rejecting the argument,  

this Court  analysed Section 25-F,  25-H, Rules 77 and 78 of the Industrial  

Disputes (Central) Rules, 1957, referred to Section 25-G and held:

“Section 25-H then provides for re-employment of retrenched workmen. It  

says  that  when  the  employer  proposes  to  take  into  his  employ  any  

persons,  he  shall,  in  such  manner  as  may  be  prescribed,  give  an  

opportunity to the retrenched workmen who are citizens of India to offer  

themselves for re-employment, and such retrenched workmen who offer

themselves for re-employment shall have preference over other persons.  

Rules  77  and  78  of  the  Industrial  Disputes  (Central)  Rules,  1957  

prescribe the mode of re-employment. Rule 77 requires maintenance of  

seniority  list  of  all  workmen  in  a  particular  category  from  which  

retrenchment  is  contemplated  arranged  according  to  seniority  of  their  

service in that category and publication of that list. Rule 78 prescribes the  

mode of re-employment of retrenched workmen. The requirement in Rule  

78 is of notice in the manner prescribed to every one of all the retrenched  

workmen eligible to be considered for re-employment. Shri Pai contends  

that Rules 77 and 78 are unworkable unless the application of Section  

25-H is confined to the category of retrenched workmen to whom Section  

25-F applies. We are unable to accept this contention.

Rule 77 requires the employer to maintain a seniority list of workmen in  

that  particular  category  from  which  retrenchment  is  contemplated  

arranged  according  to  the  seniority  of  their  service.  The  category  of  

workmen to whom Section 25-F applies is distinct from those to whom it  

is inapplicable. There is no practical difficulty in maintenance of seniority  

list  of  workmen with reference to the particular category to which they  

belong.  Rule  77,  therefore,  does  not  present  any  difficulty.  Rule  78  

speaks of  retrenched workmen eligible  to  be considered  for  filling  the  

vacancies  and  here  also  the  distinction  based  on  the  category  of  

workmen  can  be  maintained  because  those  falling  in  the  category  of  

Section 25-F are entitled to be placed higher than those who do not fall in  

that category. It is no doubt true that persons who have been retrenched  

after a longer period of service which places them higher in the seniority  

list  are entitled to  be considered for  re-employment  earlier  than those  

placed lower  because of  a  lesser  period  of  service.  In  this  manner  a  

workman falling in the lower category because of not being covered by  

Section 25-F can claim consideration for re-employment only if an eligible  

workman above him in the seniority list  is not available. Application of

Section 25-H to the other retrenched workmen not covered by Section 25-

F does not,  in  any manner,  prejudice  those  covered  by  Section  25-F  

because the question of  consideration of  any retrenched workman not  

covered by Section 25-F would arise only,  if  and when, no retrenched  

workman covered by Section 25-F is available for re-employment. There  

is,  thus,  no  reason  to  curtail  the  ordinary  meaning  of  “retrenched  

workmen” in Section 25-H because of Rules 77 and 78, even assuming  

the rules framed under the Act could have that effect.

The plain  language of  Section  25-H speaks only  of  re-employment  of  

“retrenched  workmen”.  The  ordinary  meaning  of  the  expression  

“retrenched workmen” must relate to the wide meaning of ‘retrenchment’  

given in Section 2(oo). Section 25-F also uses the word ‘retrenchment’  

but qualifies it by use of the further words “workman ... who has been in  

continuous service for not less than one year”. Thus, Section 25-F does  

not  restrict  the  meaning  of  retrenchment  but  qualifies  the  category  of  

retrenched  workmen  covered  therein  by  use  of  the  further  words  

“workman ... who has been in continuous service for not less than one  

year”.  It  is  clear  that  Section  25-F  applies  to  the  retrenchment  of  a  

workman who has been in continuous service for not less than one year  

and not to any workman who has been in continuous service for less than  

one year; and it does not restrict or curtail the meaning of retrenchment  

merely because the provision therein is made only for the retrenchment of  

a workman who has been in continuous service for not less than one  

year.  Chapter  V-A  deals  with  all  retrenchments  while  Section  25-F  is  

confined  only  to  the  mode of  retrenchment  of  workmen in  continuous  

service for not less than one year.  Section 25-G prescribes the principle   

for retrenchment and applies ordinarily the principle of “last come first go”  

which  is  not  confined  only  to  workmen who have been in  continuous   

service  for  not  less  than  one  year,  covered  by  Section  25-F.”   

(emphasis supplied)

14. The ratio of the above noted judgment was reiterated in  Samishta  

Dube  v.  City  Board  Etawah  (1999)  3  SCC  14.  In  that  case,  the  Court  

interpreted Section 6-P of the U.P. Industrial Disputes Act, 1947, which is pari   

materia to Section 25-G of the Act, and held:

Now this provision is not controlled by conditions as to length of service  

contained  in  Section  6-N  (which  corresponds  to  Section  25-F  of  the  

Industrial Disputes Act, 1947). Section 6-P does not require any particular  

period  of  continuous  service  as  required  by Section  6-N.  In  Kamlesh  

Singh v. Presiding Officer in a matter which arose under this very Section  

6-P of the U.P. Act, it was so held. Hence the High Court was wrong in  

relying on the fact  that  the appellant  had put  in only three and a half  

months  of  service  and  in  denying  relief.  See  also  in  this  connection  

Central Bank of India v. S. Satyam.

Nor was the High Court correct in stating that no rule of seniority was  

applicable to daily-wagers. There is no such restriction in Section 6-P of  

the  U.P.  Act  read  with  Section  2(z)  of  the  U.P.  Act  which  defines  

“workman”.

It  is  true that  the rule of  “first  come,  last  go”  in Section 6-P could be  

deviated  from  by  an  employer  because  the  section  uses  the  word  

“ordinarily”. It is, therefore, permissible for the employer to deviate from  

the rule in cases of lack of efficiency or loss of confidence, etc., as held in  

Swadesamitran  Ltd.  v.  Workmen. But  the  burden  will  then  be  on  the  

employer to justify the deviation. No such attempt has been made in the  

present case. Hence, it is clear that there is clear violation of Section 6-P  

of the U.P. Act.

15.  The  distinction  between  Sections  25-F  and  25-G  of  the  Act  was  

recently  reiterated  in  Bhogpur  Coop.  Sugar  Mills  Ltd.  v.  Harmesh  Kumar  

(2006) 13 SCC 28, in the following words:

“We are not oblivious of the distinction in regard to the legality of the  order of termination in a case where Section 25-F of the Act applies on  

the one hand, and a situation where Section 25-G thereof applies on the  

other.  Whereas  in  a  case  where  Section  25-F  of  the  Act  applies  the  

workman is bound to prove that he had been in continuous service of 240  

days during twelve months preceding the order of termination; in a case  

where he invokes the provisions of Sections 25-G and 25-H thereof he  

may not have to establish the said fact. See: Central Bank of India v. S.   

Satyam, Samishta Dube v. City Board, Etawah, SBI v.  Rakesh Kumar  

Tewari and Jaipur Development Authority v. Ram Sahai.”

16.  In  view of  the  above  discussion,  we  hold  that  the  learned  Single  

Judge  of  the  High  Court  committed  serious  jurisdictional  error  and  

unjustifiably interfered with the award of reinstatement passed by the Labour  

Court with compensation of Rs.87,582/- by entertaining a wholly unfounded  

plea that the appellant was appointed in violation of Articles 14 and 16 of the  

Constitution and the regulations.

17.  Before concluding,  we consider it  necessary to  observe that  while  

exercising jurisdiction under  Articles 226 and/or  227 of  the Constitution in  

matters like the present one, the High Courts are duty bound to keep in mind  

that the Industrial Disputes Act and other similar legislative instruments are  

social  welfare  legislations  and  the  same  are  required  to  be  interpreted  

keeping in view the goals set out in the preamble of the Constitution and the  

provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e),  

43 and 43A in particular, which mandate that the State should secure a social  

order for the promotion of welfare of  the people,  ensure equality between  

men  and  women  and  equitable  distribution  of  material  resources  of  the  

community to sub-serve the common good and also ensure that the workers  

get their dues. More than 41 years ago, Gajendragadkar, J, opined that “the  

concept of social  and economic justice is a living concept of revolutionary  

import; it gives sustenance to the rule of law and meaning and significance to

the ideal of welfare State” – State of Mysore v. Workers of Gold Mines AIR  

1958 SC 923.  

18. In Y.A. Mamarde v. Authority under the Minimum Wages Act (1972) 2  SCC 108, this Court, while interpreting the provisions of Minimum Wages Act,  

1948, observed:

“The anxiety on the part of the society for improving the general economic  

condition  of  some  of  its  less  favoured  members  appears  to  be  in  

supersession of the old principle of absolute freedom of contract and the  

doctrine of laissez faire and in recognition of the new principles of social  

welfare and common good.  Prior  to our Constitution this principle was  

advocated by the movement for liberal employment in civilised countries  

and the Act which is a pre-constitution measure was the offspring of that  

movement.  Under  our  present  Constitution  the State is  now expressly  

directed  to  endeavour  to  secure  to  all  workers  (whether  agricultural,  

industrial  or  otherwise)  not  only bare physical  subsistence but  a living  

wage and conditions of work ensuring a decent standard of life and full  

enjoyment  of  leisure.  This  Directive  Principle  of  State  Policy  being  

conducive to the general interest of the nation as a whole, merely lays  

down the foundation for appropriate social structure in which the labour  

will find its place of dignity, legitimately due to it in lieu of its contribution  

to the progress of national economic prosperity.”

19.  The  preamble  and  various  Articles  contained  in  Part  IV  of  the  

Constitution promote social  justice so that life of every individual becomes  

meaningful and he is able to live with human dignity. The concept of social  

justice engrafted in the Constitution consists of diverse principles essentially  

for the orderly growth and development of personality of every citizen. Social  

justice is thus an integral part of justice in the generic sense. Justice is the  

genus, of which social justice is one of its species. Social justice is a dynamic  

devise to mitigate the sufferings of the poor, weak, dalits, tribals and deprived

sections of the society and to elevate them to the level of equality to live a life  

with dignity of person. In other words, the aim of social justice is to attain  

substantial  degree  of  social,  economic  and  political  equality,  which is  the  

legitimate expectation of every section of the society. In a developing society  

like ours which is full of unbridgeable and ever widening gaps of inequality in  

status and of opportunity, law is a catalyst to reach the ladder of justice. The  

philosophy  of  welfare  State  and  social  justice  is  amply  reflected  in  large  

number of judgments of this Court, various High Courts, National and State  

Industrial Tribunals involving interpretation of the provisions of the Industrial  

Disputes Act, Indian Factories Act, Payment of Wages Act, Minimum Wages  

Act, Payment of Bonus Act, Workmen’s Compensation Act, the Employees  

Insurance Act, the Employees Provident Fund and Miscellaneous Provisions  

Act and the Shops and Commercial Establishments Act enacted by different  

States.

20. In Ramon Services (P) Ltd. v. Subhash Kapoor (2001) 1 SCC 118,  R.P. Sethi, J. observed: “that after independence the concept of social justice  

has become a part  of  our  legal  system.  This  concept  gives meaning and  

significance to the democratic ways of life and of making the life dynamic.  

The concept of welfare State would remain in oblivion unless social justice is  

dispensed. Dispensation of social justice and achieving the goals set forth in  

the Constitution are not possible without the active, concerted and dynamic  

efforts made by the persons concerned with the justice dispensation system.  

In  L.I.C. of India v. Consumer Education and Research Centre and Others  

(1995)  5  SCC 482,  K.  Ramaswamy,  J.  observed  that  social  Justice  is  a  device to ensure life to be meaningful and liveable with human dignity. The  

State is obliged to provide to workmen facilities to reach minimum standard of  

health, economic security and civilized living. The principle laid down by this   

law requires courts to ensure that a workman who has not been found guilty   

can not be deprived of what he is entitled to get. Obviously when a workman   

has been illegally deprived of his device then that is misconduct on the part of  

the employer and employer can not possibly be permitted to deprive a person  

of what is due to him.

21. In 70s, 80s and early 90s, the courts repeatedly negated the doctrine  

of  laissez faire  and the theory of hire and fire. In his treaties: Democracy,  

Equality and Freedom, Justice Mathew wrote:

“The original concept of employment was that of master and servant. It  

was therefore held that a court will not specifically enforce a contract of  

employment. The law has adhered to the age-old rule that an employer  

may  dismiss  the  employee  at  will.  Certainly,  an  employee  can  never  

expect to be completely free to do what he likes to do. He must face the  

prospect of discharge for failing or refusing to do his work in accordance  

with  his  employer’s  directions.  Such control  by the  employer  over  the  

employee is fundamental to the employment relationship. But there are  

innumerable facets of the employee’s life that have little or no relevance  

to the employment relationship and over which the employer should not  

be  allowed  to  exercise  control.  It  is  no  doubt  difficult  to  draw  a  line  

between  reasonable  demands  of  an  employer  and  those  which  are  

unreasonable as having no relation to the employment itself. The rule that  

an employer can arbitrarily discharge an employee with or without regard  

to  the  actuating  motive  is  a  rule  settled  beyond  doubt.  But  the  rule  

became settled at  a time when the words `master’  and `servant’  were  

taken more literally than they are now and when, as in early Roman Law,  

the  rights  of  the  servant,  like  the  rights  of  any  other  member  of  the  

household,  were  not  his  own,  but  those  of  his pater  familias.  The  

overtones of this ancient doctrine are discernible in the judicial opinion  

which  rationalised  the  employer’s  absolute  right  to  discharge  the  

employee.  Such  a  philosophy  of  the  employer’s  dominion  over  his  

employee  may have been in  tune with  the  rustic  simplicity  of  bygone  

days.  But  that  philosophy  is  incompatible  with  these  days  of  large,  

impersonal,  corporate  employers.  The  conditions  have  now  vastly

changed and it is difficult to regard the contract of employment with large  

scale industries and government enterprises conducted by bodies which  

are created under special statutes as mere contract of personal service.  

Where  large  number  of  people  are  unemployed  and  it  is  extremely  

difficult to find employment, an employee who is discharged from service   

might have to remain without means of subsistence for a considerably  

long time and damages in the shape of wages for a certain period may   

not be an adequate compensation to the employee for non-employment.   

In other words, damages would be a poor substitute for reinstatement.   

The traditional rule has survived because of the sustenance it received  

from the law of contracts. From the contractual principle of mutuality of  

obligation, it was reasoned that if the employee can quit his job at will,  

then so too must the employer have the right to terminate the relationship  

for any or no reason. And there are a number of cases in which even  

contracts for permanent employment, i.e. for indefinite terms, have been  

held unenforceable on the ground that they lack mutuality of obligation.  

But these case demonstrate that mutuality is a high-sounding phrase of  

little use as an analytical tool and it would seem clear that mutuality of  

obligation is not an inexorable requirement and that lack of mutuality is  

simply,  as many courts  have come to recognize,  an imperfect  way of  

referring to the real obstacle to enforcing any kind of contractual limitation  

on the employer’s right of discharge, i.e. lack of consideration. If there is  

anything  in  contract  law  which  seems  likely  to  advance  the  present  

inquiry, it is the growing tendency to protect individuals from contracts of  

adhesion  from  over-reaching  terms  often  found  in  standard  forms  of  

contract used by large commercial establishments.  Judicial disfavour of   

contracts  of  adhesion  has  been  said  to  reflect  the  assumed need  to  

protect the weaker contracting part against the harshness of the common  

law and the abuses of freedom of contract. The same philosophy seems  

to provide an appropriate answer to the argument, which still seems to  

have some vitality, that “the servant cannot complain, as he takes the   

employment on the terms which are offered to him.”

(emphasis added)

22. In Government Branch Press v. D.B. Belliappa (1979) 1 SCC 477, the  

employer  invoked  the  theory  of  hire  and  fire  by  contending  that  the  

respondent’s  appointment  was purely  temporary  and his  service  could  be  

terminated  at  any  time  in  accordance  with  the  terms  and  conditions  of  

appointment which he had voluntarily accepted. While rejecting this plea as  

wholly misconceived, the Court observed:

“It is borrowed from the archaic common law concept that employment  

was a matter between the master and servant only. In the first place, this  

rule in its original absolute form is not applicable to government servants.  

Secondly, even with regard to private employment, much of it has passed  

into  the fossils  of  time.  “This  rule  held the field  at  the  time when the  

master  and  servant  were  taken  more  literally  than  they  are  now and  

when, as in early Roman Law, the rights of the servant, like the rights of  

any other member of the household, were not his own, but those of his  

pater familias”. The overtones of this ancient doctrine are discernible in  

the Anglo-American jurisprudence of the 18th century and the first half of  

the  20th  century,  which  rationalised  the  employer’s  absolute  right  to  

discharge  the  employee.  “Such a  philosophy”,  as  pointed  out  by  K.K.  

Mathew,  J.  (vide  his  treatise:  “Democracy,  Equality  and  Freedom”,  p.  

326), “of the employer’s dominion over his employee may have been in  

tune  with  the  rustic  simplicity  of  bygone  days.  But  that  philosophy  is  

incompatible with these days of large, impersonal, corporate employers”.  

To  bring  it  in  tune  with  vastly  changed  and  changing  socio-economic  

conditions and mores of the day, much of this old, antiquated and unjust  

doctrine has been eroded by judicial decisions and legislation, particularly  

in  its  application  to  persons  in  public  employment,  to  whom  the

Constitutional protection of Articles 14, 15, 16 and 311 is available. The  

argument is therefore overruled.

The doctrine of  laissez faire was again rejected in  Glaxo Labotratories  

(India) Ltd. v. Presiding Officer (1984) 1 SCC 1, in the following words:

“In the days of laissez-faire when industrial relation was governed by the  

harsh weighted law of hire and fire the management was the supreme  

master, the relationship being referable to contract between unequals and  

the action of the management treated almost sacrosanct. The developing  

notions of  social  justice  and the expanding horizon of  socio-economic  

justice  necessitated  statutory  protection  to  the  unequal  partner  in  the  

industry  namely,  those who invest  blood and flesh against  those who  

bring in capital. Moving from the days when whim of the employer was  

suprema  lex,  the  Act  took  a  modest  step  to  compel  by  statute  the  

employer to  prescribe  minimum conditions of  service  subject  to  which  

employment  is  given.  The Act  was  enacted  as  its  long  title  shows to  

require  employers  in  industrial  establishments  to  define  with  sufficient  

precision the conditions of employment under them and to make the said  

conditions known to workmen employed by them. The movement  was  

from status to contract, the contract being not left to be negotiated by two  

unequal persons but statutorily imposed. If this socially beneficial Act was  

enacted for ameliorating the conditions of the weaker partner, conditions  

of service prescribed thereunder must receive such interpretation as to  

advance the intendment underlying the Act and defeat the mischief.”

23. Of late, there has been a visible shift in the courts approach in dealing  

with the cases involving the interpretation of social welfare legislations. The  

attractive mantras of  globalization and liberalisation are fast  becoming the  

raison d’etre of the judicial process and an impression has been created that  

the  constitutional  courts  are  no  longer  sympathetic  towards  the  plight  of  

industrial and unorganized workers. In large number of cases like the present

one,  relief  has  been  denied  to  the  employees  falling  in  the  category  of  

workmen, who are illegally retrenched from service by creating by-lanes and  

side-lanes in the jurisprudence developed by this Court in three decades. The  

stock  plea  raised by the  public  employer  in  such  cases  is  that  the  initial  

employment/engagement of the workman-employee was contrary to some or  

the other statute or that reinstatement of the workman will  put unbearable  

burden on the financial health of the establishment. The courts have readily  

accepted such plea unmindful  of  the accountability of  the wrong doer and  

indirectly punished the tiny beneficiary of the wrong ignoring the fact that he  

may have continued in the employment for  years  together  and that  micro  

wages earned by him may be the only source of his livelihood. It need no  

emphasis that if a man is deprived of his livelihood, he is deprived of all his  

fundamental  and  constitutional  rights  and  for  him  the  goal  of  social  and  

economic  justice,  equality  of  status  and  of  opportunity,  the  freedoms  

enshrined in the Constitution remain illusory. Therefore, the approach of the  

courts  must  be compatible  with  the constitutional  philosophy of  which the  

Directive Principles of State Policy constitute an integral part and justice due  

to  the  workman  should  not  be  denied  by  entertaining  the  specious  and  

untenable grounds put forward by the employer – public or private.  

24. In the result, the appeal is allowed. The impugned order of the High  

Court is set aside and the award passed by the Labour Court is restored. The  

appellant shall get cost of Rs.25,000/- from the corporation.

O R D E R

BY ASOK KUMAR GANGULI, J.

1. I entirely agree with the views expressed by my learned Brother Justice  

G.S. Singhvi. Having regard to the changing judicial approach noticed by His  

Lordship and if I, may say so, rightly, I may add a few words. I consider it a  

very important aspect in decision making by this Court.

2. Judges of the last Court in the largest democracy of the world have a  

duty and the basic duty is to articulate the Constitutional goal which has found  

such an eloquent  utterance in  the Preamble.  If  we look at  our  Preamble,  

which  has  been  recognised,  a  part  of  the  Constitution  in His  Holiness  Kesavananda  Bharati  Sripadagalvaru  and  others  vs.  State  of  Kerela  and  

another - [1973 SC 1461], we can discern that as divided in three parts. The  

first  part  is  a  declaration  whereby  people  of  India  adopted  and  gave  to  

themselves the Constitution. The second part is a resolution whereby people  

of  India  solemnly  resolved  to  constitute  India  into  a  sovereign,  socialist,  

secular, democratic republic. However, the most vital part is the promise and  

the promise is to secure to all its citizens:

“JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

And to promote among them all

FRATERNITY assuring  the  dignity  of  the  individual  and  the  unity  and  

integrity of the Nation;”

[See  Justice  R.C.  Lahoti,  Preamble-  The  Spirit  and  backbone  of  the  

Constitution of India, Anundoram Barooah law Lectures, Seventh Series,  

Eastern Book Company, 2004, at p. 3]  

3. Judges and specially the judges of the highest Court have a vital role to  

ensure that the promise is fulfilled. If the judges fail to discharge their duty in  

making an effort to make the Preambular promise a reality, they fail to uphold  

and abide by the Constitution which is  their  oath of  office.  In  my humble  

opinion, this has to be put as high as that and should be equated with the  

conscience of this Court.

4. As early as in 1956, in a Constitution Bench judgment dealing with an  

Article 32 petition, Justice Vivian Bose, while interpreting the Article 14 of the  

Constitution, posed the following question:

“After all, for whose benefit was the Constitution enacted?”

[Bidi Supply Co. vs. Union of India and others - AIR 1956 SC  

479 at Para 23, pg. 487]

5. Having posed the question, the Learned Judge answered the same in  

his inimitable words and which I may quote:

“I  am  clear  that  the  Constitution  is  not  for  the  exclusive  benefit  of  

Governments and States; it  is  not  only for lawyers and politicians and  

officials and those highly placed.  It also exists for the common man, for   

the poor and the humble, for those who have businesses at stake, for the   

“butcher, the baker and the candlestick maker”. It lays down for this land  

a “rule lof  law” as understood in the free democracies of the world.  It  

constitutes India into a Sovereign Democratic Republic and guarantees in  

every  page  rights  and  freedom  to  the  individual  side  by  side  and  

consistent with the overriding power of the State to act for the common  

good of all.”

[Ibid, Emphasis supplied)

6. The essence of our Constitution was also explained by the eminent  

jurist Palkhivala in the following words:

“Our Constitution is primarily shaped and moulded for the common man.  

It takes no account of “the portly presence of the potentates, goodly in  

girth”. It is a Constitution not meant for the ruler

“but the ranker, the tramp of the road,

The slave with the sack on his shoulders pricked on with the goad,

The man with too weighty a burden, too weary a load.””

[N.  A.  Palkhivala,  Our  Constitution  Defaced  and  Defiled,  

MacMillan, 1974, p. 29]

7.  I  am  in  entire  agreement  with  the  aforesaid  interpretation  of  the  

Constitution given by this Court and also by the eminent jurist.  

8. In this context another aspect is of some relevance and it was pointed  

out by Justice Hidayatullah,  as His Lordship was then, in  Naresh Shridhar  

Mirajkar and others vs. State of Maharastra and Anr. - [AIR 1967 SC 1]. In a  

minority judgment, His Lordship held that the judiciary is a State within the  

meaning of Art. 12. [See paras 100, 101 at page 28, 29 of the report]. This  

minority  view  of  His  Lordship  was  endorsed  by  Justice  Mathew  in  

Kesavananda Bharati  (supra) [at page 1949, para 1717 of the report] and it  

was held that the State under Article 12 would include the judiciary.  

9. This was again reiterated by Justice Mathew in the Constitution bench  

judgement in the case of State of Kerela and another vs. N. M. Thomas and  

others [AIR 1976 SC 490]  where Justice Mathew’s view was the majority  view,  though  given  separately.  At  para  89,  page  515  of  the  report,  his  

Lordship held that under Article 12, ‘State’ would include ‘Court’.

10. In view of such an authoritative pronouncement the definition of State  

under Article 12 encompass the judiciary and in Kesavananda (supra) it was  

held that “judicial process” is also “state action” [Para 1717, pg. 1949]

11. That being the legal position, under Article 38 of the Constitution, a  

duty is cast on the State, which includes the judiciary, to secure a social order  

for the promotion of the welfare of the people. Article 38(1) runs as follows:

“The State shall strive to promote the welfare of the people by securing  

and protecting as effectively  as it  may a social  order in which justice,  

social,  economic  and  political,  shall  inform  all  the  institutions  of  the  

national life.”

This is echoing the preambular promise

12. Therefore, it  is clearly the duty of the judiciary to promote a social  

order in which justice, economic and political informs all the institution of the  

national life. This was also made clear in  Kesavananda Bharati  (supra) by  Justice Mathew at para 1728, p. 1952 and His Lordship held that the Directive  

Principles nevertheless are:

“…fundamental in the governance of the country and all the organs of the  

State, including the judiciary are bound to enforce those directives. The  

Fundamental Rights themselves have no fixed content; most of them are  

mere empty vessels into which each generation must pour its content in  

the light of its experience.”

13. In view of such clear enunciation of the legal principles, I am in clear  

agreement  with  Brother  J.  Singhvi  that  this  Court  has  a  duty  to  interpret  

statutes with social welfare benefits in such a way as to further the statutory  

goal and not to frustrate it. In doing so this Court should make an effort to  

protect the rights of the weaker sections of the society in view of the clear  

constitutional mandate discussed above.  

14. Thus, social justice, the very signature tune of our Constitution and  

being deeply embedded in our Constitutional ethos in a way is the arch of the  

Constitution which ensures rights of the common man to be interpreted in a  

meaningful way so that life can be lived with human dignity.  

15.  Commenting  on  the  importance  of  Article  38  in  the  Constitutional  

scheme, this court in  Sri Srinivasa Theatre and Others vs. Government of   

Tamil Nadu and others [(1992) 2 SCC 643], held that equality before law is a  

dynamic  concept  having  many  facets.  One  facet-  the  most  commonly  

acknowledged- is that there shall be not be any privileged person or class  

and  that  none  shall  be  above  the  law.  This  Court  held  that  Art  38  

contemplates an equal society [Para 10, pg. 651].

16. In  Indra Sawhney and Others vs. Union of India and Others  [1992  

Supp. (3) SCC 217], the Constitution Bench of the Supreme Court held that:

“The content of the expression “equality before law” is illustrated not only  

by Articles 15 to 18 but also by the several articles in Part IV, in particular,  

Articles 38, 39, 39-A, 41 and 46.”  

[at Paras 643, pg. 633]  

17.  Therefore,  the  Judges  of  this  Court  are  not  mere  phonographic  

recorders but are empirical social scientists and the interpreters of the social  

context  in which they work. That is why it  was said in  Authorised Officer,   

Thanjavur and another vs. S. Naganatha Ayyar and others  - [(1979) 3 SCC  

466], while interpreting the land reforms Act, that beneficial construction has  

to be given to welfare legislation. Justice Krishna Iyer, speaking for the Court,  

made it very clear that even though the judges are “constitutional invigilators  

and statutory interpreters” they should “also be responsive to part IV of the  

Constitution being “one of the trinity of the nation’s appointed instrumentalities  

in the transformation of the socio-economic order”. The Learned Judge made  

it very clear that when the Judges “decode social legislation, they must be  

animated by a goal oriented approach” and the Learned Judge opined, and if  

I  may say so,  unerringly,  that  in  this  country  “the judiciary is  not  a  mere  

umpire,  as  some  assume,  but  an  activist  catalyst  in  the  constitutional  

scheme.” [Para 1, p. 468]  

18.  I  am in entire  agreement  with  the aforesaid  view and I  share the  

anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend  

which is discernible in recent times and which is sought to be justified in the  

name of globalisation and liberalisation of economy.  

19.  I  am  of  the  view  that  any  attempt  to  dilute  the  constitutional  

imperatives in order to promote the so called trends of “Globalisation”, may  

result in precarious consequences. Reports of suicidal deaths of farmers in  

thousands from all over the country along with escalation of terrorism throw  

dangerous signal. Here if we may remember Tagore who several decades  

ago, in a slightly different context, spoke of eventualities which may visit us in

our mad rush to ape western ways of life. Here if I may quote the immortal  

words of Tagore:

“We  have  for  over  a  century  been  dragged  by  the  prosperous  West  

behind its chariot, choked by the dust, deafened by the noise, humbled by  

our  own helplessness  and overwhelmed by the  speed.  We agreed to  

acknowledge that this chariot-drive was progress, and the progress was  

civilization.  If  we  ever  ventured  to  ask  “progress  toward  what,  and  

progress for whom”, it was considered to be peculiarly and ridiculously  

oriental to entertain such ideas about the absoluteness of progress. Of  

late,  a  voice  has  come to  us  to  take  count  not  only  of  the  scientific  

perfection of the chariot but of the depth of the ditches lying in its path.”

20.  How stunningly  relevant  are  these  words  and  how  deep  are  the  

ditches created in our society by the so called advance of globalization.  

21. At this critical juncture the judges’ duty, to my mind, is to uphold the  

constitutional focus on social justice without being in any way misled by the glitz and  

glare of globalization.