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PETITIONER: SHYAM LAL SHARMA & ORS.

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT08/11/1985

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) BHAGWATI, P.N. (CJ) TULZAPURKAR, V.D. PATHAK, R.S. MADON, D.P.

CITATION:  1987 AIR 1137            1987 SCC  (3) 407  1987 SCALE  (1)169

ACT:     Constitution  of India, 1950--Articles 310(1) & 311  (2) (b)--Power exercisable by President/Governor--Not on person- al  satisfaction but with the aid and advice of  Council  of Ministers--Workers  have a right to struggle and strive  for economic justice--Constitution makers did not design  provi- sions for breaking a worker’s strike.

HEADNOTE:     The petitioners, who were Railway employees, were either dismissed  or removed from service without holding  any  en- quiry  for striking work, paralysing railway  services,  as- sualting  and intimidating loyal workers and superior  offi- cers,  etc.  The  writ petitions flied in  the  High  Courts challenging the orders of dismissal or removal stood  trans- ferred to this Court, heard along with other writ  petitions and  civil  appeals and by judgment dated  11th  July,  1985 dismissed.     The,  petitioners  sought review of  the  said  judgment alleging  that during the course of arguments,  parties  had proceeded on the assumption that the Court would decide only the  seven  questions framed by the then Hon’ble  the  Chief Justice,  and  the individual petitions on merits  would  he dealt  with either by the Division Benches of this Court  or by  the respective High Courts, that the  parties  addressed their arguments and submissions only on those general  ques- tions,  that written submissions were made only in  transfer case  No. 55 of 1982 amongst all the railway  matters,  that none  of the petitioners had been given any  opportunity  to argue their cases on merits, that the judgment under  review dismissed  all  the  transferred cases and  thus  all  these petitions stand decided on merits also, that this has caused serious  prejudice  to their cases and,  therefore,  in  the interest of justice, another opportunity should he given  to argue the petitions on merits. Dismissing the Review Petitions,     HELD: Per P.N.  Bhagwati, C.J.,  V.D.  Tulzapurkar, R.S. Pathak and D.P. Madon, JJ. 899

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   The  Review Petitions are dismissed as there is no  sub- stance in the grounds urged. Per M.P. Thakkar, J. dissenting.     1.  There is good ground to entertain the  Review  Peti- tions and issue notice to the other side for hearing. [904E]     2. There is substance in the grounds because no  notices have  been issued on the Review Petitions and the  averments have not been controverted by the other side. In the majori- ty  judgment also it has not been stated that the  averments are factually untrue. [901D-E]     3. That the matter of Narpat Singh was not argued on its individual  merits is correct. Unless the factual  averments made  in Para 9 of the Review Petition are shown to  be  un- true,  these may be considered adequate to vitiate  the  im- pugned order on the ground that it manifests non-application of mind and is built on ’no evidence’. [902C]     4. In the majority judgment the proposition. of law  has been  enunciated that the pleasure under Article 310(1)  can be  exercised even by an authority specified in the  Act  or rules made under the proviso to Article 309. [902D-E]     5. The power under Article 310(1) is exercisable even by the President or Governor, not on his personal satisfaction, but with the aid and on the advice of the Council of  Minis- ters.  Can the same power be exercised by a  Divisional  Me- chanical  Engineer or any other lower functionary acting  on his own, there being no question of his acting with the  aid or  advice of the Council of Ministers? Can the  D.M.E.  who does  not even act in the name of the  President,  surrogate for  the President? It is certainly an  important  Constitu- tional issue which requires to be examined, but has not been examined from this perspective though the point was debated. [903B-D]     6.  Will it not tantamount to speaking in two voices  to hold that principles of Natural Justice need not be complied with  even  in  regard to the quantum of  punishment  to  be inflicted on a workman, even though the law declared so  far demands  that even a black marketeer cannot be  black-listed without  observing the principles of Natural Justice?  Is  a workman who ’sweats’ for the Nation not entitled to the same treatment  as  a black-marketeer, who ’bleeds’  the  Nation? [903D-E] 900     7.  The workers certainly have a right to  struggle  and strive for economic justice in a country the Constitution of which  in  the  Preamble, proclaims it to  be  a  "Sovereign SOCIALIST  Secular Democratic Republic". Going on strike  in the  course  of such a struggle cannot be  characterized  as holding  the country to ransom and be frowned upon. Nor  can they be condemned as seekers of private gain for  endeavour- ing  to remove their economic distress and plight  to  bring about a just society. And it cannot be said on that  account that it is not "reasonably practicable" to hold the  enquiry in the case of any workman if there is a country-wide gener- al strike by workers. [904B-904D]     8.  Article  311(2)(b) was surely not  designed  by  the Founding  Fathers in order to enable ’breaking’ of a  strike called  in  support of workers’ demands  for  socio-economic justice. The issue therefore deserves to be examined in  the light of this perspective. [904D]

JUDGMENT:     CIVIL  ORIGINAL JURISDICTION: Review Petition Nos.  571- 586 & 586A of 1985.

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In Transfer Cases Nos. 52 to 68 of 1982. By Circulation. The Order of the Court was delivered by                            ORDER     We  have  considered  the grounds urged  in  the  Review Petition and since we find no substance in them. the  Review Petition are dismissed.     PER  THAKKAR, J. While it is not agreeable  to  disagree with the. majority. my conscience commands. and my sense  of duty  demands.  that I should disagree.  Disagree  with  the proposed  order  dismissing the Review Petitions  in  limine with the remark that "we find no substance in them", without affording  to the Petitioners any opportunity of hearing  in the Court to substantiate the grounds urged by them. 2. One of the grounds urged. ground No. 8 in the  Petitions, is:- "8.  That  during the course of arguments  the  parties  had proceeded on the assumption that the Hon’ble Court would 901 decide only the 7 questions framed by the then Hon’ble Chief Justice  and  the individual petitions on  merits  would  be dealt  with either by the Division Benches of  this  Hon’ble Court  or  by  the respective High Courts. It  was  on  this assumption  that the parties addressed their  arguments  and submissions only on those general questions. It is for  this reason  that written submissions were made only in T.C.  No. 55  of  1982 amongst all the Railway matters.  None  of  the Petitioners  had been given any opportunity to  argue  their cases on merits. The judgment under review dismissed all the Transferred Cases and thus all these petitions stand decided on  merits  also. It is, therefore, necessary  that  in  the interest of justice, the petitioner should be given  another opportunity  to  argue their petitions on merits.  This  has caused serious prejudice to their cases is apparent from the facts  of  a  few cases reference  whereto  is  made  herein after." It is not possible to say that there is no substance in this ground  because  no notices have been issued on  the  Review Petitions  and the averments have not been  controverted  by the  other  side. So also it is not stated in  the  majority judgment  that the averment is factually  untrue.  Reference may be made to ground number 9 in Review Petitions Nos. 57 1 to 586A of 1985 which reads as under:- ’’9.  That  it may be submitted ’that  the  petitioner  Shri Narpat Singh had been served with the Office Order identical to  the one reproduced in para 3 above and was charged  with stoppage  of work from 3.2. 1981 and missing from his  place of  duty  and for intimidating and  pressurising  the  loyal employees for not joining duty.           The fact is that the-petitioner, Narpat Singh is a patient of Asthama and was under the treatment of the  Rail- way Medical Authorities between December 1980 to 1.2.1981 as outdoor  patient. On 2.2. 1981 while on duty as Shed-man  is DSL/Shed  BGKt  in shift 6 hours to 14 hours,  he  developed breathing difficulties and was unable to perform his duties. He obtained sick memo G/92 on 2.2.1981 from GFO/DSL BGKt and while  leaving  duty proper charge was handed  over  by  the petitioner.  He was advised complete rest and sick  certifi- cate No. 62 of 2.2.1981 for 27 days was submitted. 902           In these circumstances the petitioner could not be treated as on un-authorised absence from work from  3.2.1981 when  he had obtained G-92 on 2.2.1981 and had sent  in  his sick  certificate and had observed all clue  formalities  of reporting  sick as required under the rules. Had  the  cases

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been  argued on merits, the petitioner, Narpat  Singh  would have  shown to the Hon’ble Court as to how he could  not  be treated  on  un-authorised absence and  that  the  dismissal order has been malafidely issued in a mechanical manner  and cannot be substained."     That  the matter of Narpat Singh was not argued  on  its individual  merits is correct. Unless the factual  averments made in para 9 are shown to be untrue, these may be  consid- ered  adequate to vitiate the impugned order on  the  ground that  it manifests non-application of mind and is  built  on ’no evidence’. This is a good ground to entertain the Review Petition  and issue notice to the other side for heating  in the Court.     3.  In   the  majority  judgment  [1985]   3   SCC   398 (451) paragraph 59 the proposition of law has been enunciat- ed  that the pleasure under Article 310(1) can be  exercised even  by  an authority specified in the Act  or  rules  made under Article 309 (proviso) in the passage quoted below:- "Thus, though trader Article 310(1) the tenure of a  govern- ment  servant  is at the pleasure of the  President  or  the Governor, the exercise of such pleasure can be either by the President  or  the Governor acting with the aid and  on  the advice  of  the  Council of Ministers or  by  the  authority specified  in  the Acts made under Article 309 or  in  rules made  under such Acts or made under the proviso  to  Article 309  and in the case of clause (c) of the second proviso  to Article 311 (2), the inquiry is to be dispensed with not  on the  personal satisfaction of the President or the  Governor but  on his satisfaction arrived at with the aid and on  the advice of the Council of Ministers  ....  "                                       (Emphasis supplied) Serious  Constitutional  questions, such as  the  following, arise  in  this  context: When  the  Constitution  advisedly invests powers in regard to the exercise of pleasure on  the incumbents  of highest executive office can these powers  be exercised by any other official, say Divl. Mechani- 903 cal Engineer (DME)? By a process of interpretation (and  not amendment) can it be so construed that what the President by virtue of Article 310 (1) can do, the DME of the Railway can do by virtue of the same Article? It would virtually  amount to  amending Article 310 (1) by adding the words "or by  any other authority ....".  That is to say to rewrite an article in the Constitution. Is this permissible? What is more,  the power  under  Article  310 (1) is  exercisable-even  by  the President or the Governor, not on his personal satisfaction, but  with  the  aid  and on the advice  of  the  Council  of Ministers.  Can the same power be exercised by a  D.M.E.  or any  other lower functionary acting on his own, there  being no  question  of his acting with the aid or  advice  of  the council  of Ministers? Can the DME who does not even act  in the  name of the President, surrogate for the President?  It is   certainly  an  important  Constitutional  issue   which requires  to  be examined, but has not been  examined,  from this  perspective  though  the point was  debated.  This  is another ground to entertain the Review Petition and to issue a notice to the other side for heating in the Court.     4.  Another ground for entertaining the Review  Petition is this: Will it not be tantamount to speaking in two voices to  hold  that  principles of Natural Justice  need  not  be complied with even in regard to the quantum of punishment to be  inflicted on a workman, even though the law declared  so far  demands  that even a black marketeer cannot  be  black- listed without observing the principles of Natural  Justice? Is a workman who ’sweats’ for the Nation not entitled to the

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same treatment as a black marketeer who ’bleeds’ the Nation?      5. An extremely serious and important ground for review also arises in the context of the doctrine enunciated in the following  passages [1985] 3 SCC 398  (522,523),  paragraphs 170, 173:-- "It  may be that the railway servants went on these  strikes with  the  object of forcing the Government  to  meet  their demands.  Their demands were for their private gain  and  in their  private  interest. In seeking to have  these  demands conceded  they  caused  untold hardship to  the  public  and prejudicially  affected public good and public interest  and the good and interest of the nation.    .............   In  the context of  an  all-India  strike where  a very large, number of railway servants  had  struck work,  the  railway services paralysed,  loyal  workers  and superior officers assaulted and intimidated, the country 904 held to ransom, the economy of the country and public inter- est  and  public  good prejudicially  affected,  prompt  and immediate  action was called for to bring the  situation  to normal.  In these circumstances, it cannot be said  that  an enquiry was reasonably practicable." The  workers certainly have a right to struggle  and  strive for economic justice in a country the Constitution of which, in  the preamble, proclaims it to be a "Sovereign  SOCIALIST Secular Democratic Republic". Going on strike in the  course of  such a struggle cannot be characterized as  holding  the country  to  ransom  and be frowned upon. Nor  can  they  be condemned  as  seekers of private gain for  endeavouring  to remove  their economic distress and plight to bring about  a just society. And it cannot be said on that account that  it is  not "reasonably practicable" to hold the inquiry in  the case  of  any  workman if there is a  country  wide  general strike  by  workers. Article 311 (2)(b) was surely  not  de- signed by the Founding Fathers in order to’ enable ’braking’ a  strike called in support of workers’ demands  for  socio- economic  justice. The issue therefore deserves to be  exam- ined  in the light of this perspective and the Review  Peti- tions deserve to be admitted.     6.  On  these  grounds and in the  light  of  the  other grounds urged in the Review Petitions, the Review  Petitions deserve  to be heard in the Court. It is therefore  directed that the Review Petitions be admitted, notices be issued  to the Respondents, and the matters may be placed in the  Court for further hearing. A.P.J. 905