Bhanwarlal And Ors. vs Rajasthan State Road Transport ... on 12 March, 1984

[Cites 113, Cited by 21]

Rajasthan High Court - Jaipur

Bhanwarlal And Ors. vs Rajasthan State Road Transport ... on 12 March, 1984

Equivalent citations: (1985)ILLJ111RAJ

1. Durante bene placito' ruled the world with waves of 'laissez faire' up to 19th century, Political as well as Industrial revolutions brought new tides of workers emancipation from exploitation resulting in new concepts of 'status', 'security of service", 'releases from bonded labour'. Not to talk of Karl Marx or Lenin, even Abraham Lincoln and Roosvelt pleaded for 'Dignity of Labour', 'Equality', Dueprocess of law, and that resulted in New Deal Legislations, Inspired by Mahatma Gandhi, the Founding fathers of the great Indian constitution brought the dream of 'Ravi' true when preamble of the 'Socialist Republic of India' embodied 'Equality' of status' and 'opportunity'. Justice, 'social, economic and political' targets 'followed' by Directives and fundamental rights of equality in Article 14 and equal opportunity in services in Article 16.

2. Articulation of 14 and 16 in 1948 and 43A in 1976, whether gave death blow to 'durante bene placito' is even now a billion dollar question, as the Model Standing Order's ideal, even in 1983 is Clause 13 of Pre-Constitution origin of 1946 under which an employer can "Hire and Fire' any permanent employee of 'status.'

3. The legal debate now is multifacets but the triology is Articles 14, 16 and 43A of the Constitution. The precedent triology consists of Motiram Deka 1964-II L.L.J. 467 of Apex Court - interpreted by Murthys 1982-I L.L.J. 268 enunciation of Karnataka and Makalu 1983 Lab. IC 350 of Bombay with Amarsing 1980-21 Guj. LR 500 of Gujarat. To understand and appreciate the various dictums of law from Shyamalal to Air Hostess 1981 Lab IC 1313 (SC), we have to travel through plethora of decisions of Apex Court and yet we are not wiser, as in 1981, we have been taking inspiration from 1946 models of British concepts, with sometimes useful but mostly futile exercise of scanning decisions and yet adopting old out-lived models even on new horizons.

4. No one can tolerate gross indiscipline, corruption scandals, violent and rowdism in 'Boss chambers' or Corporation corridors and Courts can ill-afford to encourage them bordering on abetment. But veiled, camouflaged and masked actions of termination simpliciter in such cases whether raise eyebrows of "rule of law", "natural justice" patronagists is important facet in such 'endeavours' termination, in an economy cursed by massive unemployment may be termed as a draconian measure of last resort. 'Causa causans' of misconduct needs enquiry and not 'termination simpliciter' under Standing Orders and the Court can unveil and unmask the hidden foundation by removing plaster of 'innocuous' camouflage.

5.'Loss of confidence' of employer, whether consists of the same old wine of 'service at pleasure' in the 'new bottle' and whether it can be used as 'Allahdins lamp' again to 'hire and fire' and demolish and diminish 'status' to pure 'master and servant' "contract" is yet another dimension of this debate?

The new Industrial jurisprudence of the 'Third world' whether articulates, recognises or postulates "security of service" to workmen is a broad issue, which also has got reflection in the present controversy of 39 workmen of Roadways Corporation, all of whom have been bid "Goodbye" by unceremonious overnight, sack, without being told, "why so" and "why this homicidal lottery draw against them only"? In rule of law whether such powers are autocratic despotic and yet no exception can be taker, to them due to limitations of Article 311? If so whether Chapter V-A of the I.D. Act occupies this field making Clause 13 redundant is yet another important highlight of it.

6. According to Krishna Iyer, J., in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha 1980-L.L.J. 137 "the jurat resolution of labour disputes must be sought in the law-life complex, beyond the factual blinkers, of decided cases, beneath the lexical littleness of statutory texts, in the economic basics of industrial justice which must enliven the consciousness of the Court and the corpus juris". Krishna Iyer, J., further observed as under (Para 2):

This Court has developed labour law on this broad basis and what this Court has declared holds good for the country. We must first fix the founding faith in this juristic branch before unravelling the details of the particular case.

Viewing from this vantage point, it is relevant to note that the ethical roots of jurisprudence, with economic overtones, are the elan vital of any country's legal system. So it is that we begin with two quotations - one from the Old Testament and the other from Gandhiji, the Indian New Testament - as perspective-setters. After all, industrial law must set the moral-legal norms for the modus Vivendi between the partners in management, namely, capital and labour. Cain retorted, when asked by God about his brother Abel, in the Old Testament, "Am I my brother's keeper?" ' Yes' was the implicit answer in God's curse of Cain. In the fraternal economics of national production, worker is partner in this biblical spirit. In our society, capital shall be the brother and keeper of labour and cannot disown this obligation, especially because Social Justice and Articles 43 and 43A are constitutional mandates.

7. Articles 39, 41, 42, 43 and 43A -- directives followed by Articles 14 and 16 fundamentals are our 'innuendo' captions and 'Headlines' and 'social justice' to be Hall mark of our Labour jurisprudence. De hors and Abhorrence, these mandates. Law would fail functionally compiling 'lawlessness'.

8. 39 writ petitions, turning on the validity of termination orders are amenable to common disposal by one common judgment. Dr. L.M. Singhvi and Shri N.L. Jain argued all relevant and straight to the point and so also Sarvashri Prem Ashopa, M.R. Calla, G.S. Singhvi, N.L. Tibrewal, S.R. Surana, V.L. Mathur and others and. therefore, we could get the hearing of the case on law points without wastage of time. But, the pleadings betray precision and avoidance of much relevant assertions, with the result that I was paper-lagged for months and not weeks to scan whether each petitioner is permanent or temporary. Both sides are equally blemish on factual pleadings resulting in lack of proper assistance.

The legal debates would be better appreciated if at the very threshold, the various questions posed by the learned single Judge (per G.M. Lodha, J.,) in this reference to the Full Bench are mentioned hereunder:

(1) Whether Section 25J of the Industrial Disputes Act, 1947 permits the application of Clause 13 of the Rajasthan State Road Transport Workers and Workshop Employees Standing Orders, 1965 (hereinafter referred to as the Standing Orders), without complying with the provisions of Sections 25F, 25G or 25FF?

(2) Whether Section 25G of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) is directory and not mandatory or, whether Section 25G of the Act need not be complied with when termination is done under Clause 13 of the Standing Orders?

(3) Whether the provisions of Section 25 of the Act, in cases of removal under Clause 13 of the Standing Orders, are relevant only for the purpose of compensation under Section 25F of the Act and, nothing else?

(4) Whether the judgment of Karnataka High Court in T.G. Srinivasa Murthy v. Bharat Earth Movers Ltd. (supra) lays down correct law?

(5) Whether declaration of Clause 13 of the Standing Orders as intra vires in Mohan Lal v. Rajasthan State Road Transport Corporation. S.B. Civil Writ Petition No. 1012 of 1982 decided on 28th January, 1983 (Per Chief Justice Sh. K.D. Sharma), of this Court at Jodhpur requires reconsideration as according to the allegations of the petitioner, the challenge to its constitutionality was neither made nor examined in other respects except a broad controversy about equality before law and, whether Clause 13 of the Standing Orders is ultra vires'?

(6) Whether this Court can entertain writ petition under Article 226 of the Constitution against termination of service, even though a proper inquiry and adjudication can be by way of a reference under Section 10 of the Act, before the Labour Court or the Industrial Tribunal?

(7) Should the weapon of Clause 13 of the Standing Orders be given to the management to 'hire and fire' in disregard of Section 25G of the Act and Section 25F of the Act?

(8) Should this Court insist on principle of 'Last come first go', even after a particular employee loses confidence of the Management and the management wants to get rid of him without making inquiry?

(9) Should Section 25J of the Act be interpreted to mean that, Section 25G of the Act has got no implication in the field covered by Clause 13 of the Standing Orders?

(10) Whether the "question of extra-ordinary reasons, if any, not to follow Section 25G should be inquired into by this Court under Article 226. or it should be left to be debated and adjudicated after taking evidence by the Industrial Tribunal in a reference under S JO of the Act?

(11) Whether the Welfare Legislation enacted in the form of Industrial Disputes Act and particularly which are regarding retrenchment can be applied both in law and spirit in cases of all the termination except termination on misconduct after an enquiry?

9. The order of this Court regarding making reference to the larger bench, mentions the facts of Mukesh Chand Sharma and Teju Singh's case (S.B. Civil Writ Petitions NoSection 1685/81 and 262/1982 respectively). In all I am dealing with writ petitions 1 claimed being the employees of Rajasthan State Road Transport Corporation, Jaipur (hereinafter referred to as 'the Corporation').

10. In order to appreciate the varied nature of cases, the following chart/table would provide the bird's eye view of them:
SI. Writ Name of the Date of Nature of Appoint- ate of tcrmina- Nature of
No. Peti- petitioner Appoint- ment whether tem- ion Order with Termination
tion ment porary/permanent/ nnexure No. tion under
No. regular/probationer what law

1 2 3 4 5 6 7 8

1. 364/83 Gajraj Singh 17.8.76 Confirmed Permanent 8.10,82 (Ann. I) Under Clause
13 of
the Standing
Orders.
2. 566/81 Shishram ... Confirmed -do- 3.6.81 (Ann. I) -do-
3. 108/82 Bhanwarlal 19.10.74 Confirmed -do- 27.7.82 (Ann.2) Under Clause
13 of the
Standing Orders
and Section 25F
of the Act.
4. 089/82 Amersingh 14.8.75 Confirmed -do- 24.7.82 (Ann.3) -do-
5. 209/83 Narpat- 5.5.63 Confirmed -do- 24.1.83 (Ann.3) -do-
singh II
6. 934/83 Mohd. Ahmed 5.7.68 Confirmed -do- 30.4.82 (Ann.5) -do-
Khan
7. 216/83 Jagdish Pd. 25.8.75 Confirmed -do- 24.1.83 (Ann.2) -do-
Sharma
8. 56/83 Pyre Singh 7.9.67 Confirmed Permanent 28.12.82 (Ann.2) Under Clause 13
of the
standing Orders
and Section 25F
of the Act.
9. 610/83 Bajranglal 8.5.74 Confirmed -do- 21.2.83 (Ann.5) -do-
10. 681/83 Bhanwar- 29.6.76 Regular 2.1.83 (Ann.3) -do-
Singh
11. 62/83 Prabhakar 18.3.75 Permanent 30.11.82 (Ann.9) -do-
Narain Singh
12. 578/83 Kailash Chand 20.3.80 Temporary 3.3.83 (Ann.3) -do-
Sharma
13 511/83 Sitaram 4.1.78 Regular 22.2.83 (Ann.S) -do-
Soliwal
14. 274/83 Surendra 11.11.78 Temporary 27.12.82 (Ann.5) -do-
Kumar
15. 314/83 Raghubir- 13.8.76 Permanent 26.12.82 (Ann.l) -do-
singh
16. 932/83 Kanwarsingh 18.9.76 Confirmed Permanent 1.2.82 (Ann.l) -do-
Yadav
17. 933/83 Ram Kumar- 18.9.76 Confirmed -do- 1.2.82 (Ann.l) -do-
singh Confirmed
(1.2.1980)
18. 1688/82 Bhaiya Ram 17.5.79 Temporary -do- 16.4.82 (Ann.2) -do-

19. 1039/81 Sukhdev 3.12.75 Regular 8.6.81 (Ann.4) Under Clause 13
of the Standing
Orders.
20. 204/83 Durgasingh Dec 79 Temporary 24.1.83 (Ann.3) Under Clause 13
Bhati of the Standing
Orders and Section
25F of the
Act.
21. 1069/83 Harphool 4.3.78 Temporary 8.6.81 (Ann.2) Under Clause 13
singh of the
Standing Orders
22. 262/82 Tejsusingh 16.7.79 Temporary 2.7.81 (Ann.l) Under Claues 13 of
the Standing Orders.
23. 1685/81 Mukesh Chand 18.2.77 Temporary 28.8.81 (Ann.5) -do-
Sharma
24. 1221/81 Prem Singh 23.7.79 Temporary 30.6.81 (Ann.1) -do-
25. 339/83 Haripalsingh 15.10.75 Temporary 12.3.82 (Ann. 12) Under Clause 13 of
the Standing Orders
and under Section
25F of the Act.
26. 1092/83 Jaisingh 1.3.77 Temporary 16.7.82 (Ann.5) -do-
27. 1419/82 Deeparam 1979 year Temporary 18.4.83 (Ann.2) -do-
28. 989/83 Murarilal 4.5.79 Temporary 2.3.83 (Ann.5) -do-
29. 841/83 Krishna 19.1.67 Temporary 23.2.83 (Ann.2) -do-
Murari
30. 569/83 Purshottam 2.2.77 Temporary 23.3.83 (Ann.7) -do-
Das
31. 708/83 Shankerlal 26.11.77 Temporary 16.8.82 (And.2) -do-
Shukla
32. 882/83 Banwarilal 21.4.80 Temporary 21.3.83 (Ann.l) -do-
33. 755/83 Badri Prasad 2.9.74 Temporary 21.2.83 (Ann.l)
34. 682/83 Dhararn Pal 30.4.80 Temporary 24.2.83 (Ann.2) -do-
35. 971/83 Gulab 4.5.79 Temporary 28.4.83 (Ann.2) -do-
Chand II
36. 974/83 Bhoru Prasad 17.4.82 Temporary 30.8.82 (Ann.l) -do-
Regular on
10.11.82
37. 820/83 Trilok Chand Year 77 Temporary 26.11.82 (Ann.6) -do-
Sharma
38. 131/83 Surwanlal 23.7.76 Temporary 24.1.83 (Ann.l) -do-
39. 231/83 Tansingh 27.6.75 Permanent -do-

11. It would be useful to extract below the model of termination order passed under Clause 13 of the Standing Orders, 1965. The illustrative order is being reproduced from the case of the petitioner, Tejusingh (Writ No. 262/82).
^^Jh rstqflag in ifjpkyd
ljnkj 'kgj vkxkj dks jktLFkku jkT; iFk ifjogu Jh Jfed ,oa dk;Z'kkyk deZpkjh
LFkk;h vkns'k dh /kkjk 13 ds rgr jktLFkku jkT; iFk ifjogu fuxe dh lsok ls i`Fkd
fd;k tkrk gS rFkk ,d ekg dk osru uksfVl ds ,ot es fn;k tkrk gS A**

12. A typical illustrative example of other termination order may now be taken notice by extracting below from the case of Bhanwarlal, the petitioner (Writ Petn. No. 1108/82), wherein in as much as the termination has been made under Clause 13 of the Standing Orders but while terminating the services under Clause 13, the Corporation has also paid retrenchment compensation under Section 25F of the Industrial Disputes Act.

^^eSa eq[; ;kaf= vfHk;Urk
¼lapkyu½ jktLFkku jkT; iFk ifjogu fuxe] fuxe fgr esa ;g mfpr le>rk gq fd Jh
----------------------- iq= Jh --------------------
pkyd ----------------------- dks ,d ekg dk uksfVl
,ot esa nsdj rFkk vkSn~;kfxd fookn vf/kfu;e 1946 dh /kkjk 25 ,Q ds v/khu NVuh
¼ ½ dk eqvkotk nsdj ftldh dqy jde
------------------- rFkk ftldk cSad Mªk¶V ua0 --------------------
fnukad ------------------------- bl i= ds lkFk lyXu gS ifjogu Jfed ,oa dk;Z'kkyk
deZpkjh A LFkkbZ vkns'k A 1965 dh fu;e 13 ds vUrxZr fuxe lsok ls vyx fd;k tkos A

vr% vkns'k fn;k tkrk gS fd Jh
------------------- iq= Jh -------------------- pkyd ------------------ vkxkj
dks mijksDr jde dh vknk;xh dh tknj fuxe dh lsok ls i`Fkd fd;k tkrk gS A mldh
lqpuk jkT; ljdkj ds vf/kd`r vf/kdkjh Je vk;qDr dks Hksth tkrh gS A**

13. All the petitioners (as per Schedule A) have been removed from service by the termination orders passed on the various dates on the pattern mentioned above in paras 11 and 12 by the Corporation either under Clause 13 of the Standing Orders or/and under Section 25F of the Act, which would broadly be clear from the chart/table mentioned in para 10 of this judgment. All of them have challenged the order of termination by writ petition under Article 226 of the Constitution of India and these writ petitions have resulted in the above reference.

14. The case of the petitioners is that they cannot be removed from services by resorting to Clause 13 of the Standing Orders as the Corporation by its regulations has appointed them under fixed tenure of service.

15. Regulation 57 of the Rajasthan State Road Transport Corporation Employees Service Regulations, 1965 (hereinafter referred to as the Regulations of 1965) ensures the tenure of 55 years or 60 years and before that no employee can be removed from service except on the ground of misconduct after a proper inquiry or by compulsory retirement, argues the learned Counsel for the petitioners.

16. The various contentions raised by the petitioners about the validity of Clause 13 of the Standing Orders and non compliance of Section 25F of the Act, have been mostly controverted by the Corporation but non-compliance of Section 25L is partially not in dispute.

17. In all 22 cases, the particulars of which are contained in the Schedule A attached to the order of the learned single Judge, were heard at length by the learned single Judge and by a detailed order of reference, they were referred to a larger bench on 23rd February, 1983. During the hearing before the single Bench at the time of making reference, the learned Advocate-General sought the permission from the Court not to file reply in all the cases and rely upon the replies filed in a few cases and permission was given, as would be obvious from para 9 of the reference order:
The Corporation is represented by Mr. Jain, Advocate-General and has filed reply in some cases with the permission to rely upon them for all the cases.

18. After the order of making reference was made, more writ petitions of the same pattern were filed and in view of the order of making reference, they all were placed before the Full Bench and the learned Advocate-General, Shri N.L. Jain, appearing for the Corporation, accepted notice and relied upon the replies already filed in few cases without filing fresh replies.

19. In view of the above, the arguments before the Full Bench were heard without returns in all cases and the replies already filed in S.B. Civil Writ Petitions NoSection 1221/81 (Premsingh), 1069/81 (Harphool Singh), 1039/81 (Sukhdev), 1685/81 ', (Mukesh Chand Sharma), 262/82 (Tejusingh), 1089/82 (Amarsingh), 1108/82 (Bhanwarlal) were considered for all the cases as jointly agreed by the parties. Shri Jain, after conclusion of the arguments also submitted a chart duly signed by him on 22nd September, 1983 in which certain information about the employees petitioners, whether they were permanent-confirmed or temporary and tenure on which they were working during termination of service and, whether Section 25F was complied with or not, : all have been mentioned. This chart has been placed on record of the case and would be relied upon in this judgment also.

20. I am, therefore, of the opinion that in view of the facts that cases have been pending since the : year 1981 and, further, that in most of the cases, an ample time was available for the Corporation to file the replies and, they themselves voluntarily agreed to not to file replies in each case but to rely upon few replies already filed; it would be against 4 all canons of justice and extremely harsh time consuming and too expensive and costly, if the writ petitions are not decided on merits by the Full Bench but all of them or some of them are sent back to the single Bench resulting in prolonged ordeal and 4 costs with avoidable consumption of time of the Courts again in Section 3 and then D.B. In this view of the matter, I am proceeding to decide all the cases finally as, in my considered opinion, any further prolonging of litigation would not be in the interest 5 of either of the parties because even the Corporation is required to pay Rs.250/- to each one of them as per the orders passed and the fate of the petitioners which has remained uncertain for years together, should now at least be decided and settled once for all.

21. In the writ petition No. 1039/81 filed by the petitioner, Sukhde, in the reply filed by the Corporation, it has been mentioned that the service of the petitioner has been terminated under Clause 13 of the Standing Orders. It has also been contended in para 7 that the termination is in the nature of termination simpliciter and since it is a case of termination simpliciter, if the petitioner thinks that he is entitled to any compensation by way of retrenchment his remedy lies in raising an industrial dispute before an appropriate forum under the Industrial Disputes Act. It has further been contended that the Corporation has acted strictly according to the Standing Orders and Clause 13 of it is legal and constitutional. It may be pointed out that Sukhdev the petitioner was appointed as Driver in the Corporation in the year 1975 and he continued to work on this post till the impugned order of termination of his services was passed on 8th June, 1981.

22. It is not in dispute in the case of Sukhde that he is a permanent employee. It is also not disputed in this- case that the Corporation never thought of taking resort to Sections 25F and 25G of the Act. It would thus be seen that in such type of cases, termination simpliciter under Clause 13 of the Standing Orders has been made and even it is not alleged that compliance of Sections 25F and 25G of the Act was made or, could not be made on account of any legal grounds.

23. In view of the submissions made, queries and issues expressed by the Court and, the various facets involved in the above controversies. I would first deal with the basic and fundamental issues involved and then proceed to adjudicate the various questions of reference by the learned single Bench.

24. The first and foremost question relates to the petitioners for entry in the equitable and extraordinary jurisdiction of Article 226 of the Constitution of India. This requires two fold foundations, the first being that Article 12 of the Constitution should be applicable and the second equally important is that the petitioners should enjoy the status.

Whether Article 12 applies to Corporation?

25. The first out of the twin pillars of bedrock relates to the application of Article 12 of the Constitution in order to ascertain, whether the Corporation falls within the meaning of the term 'State'. The Corporation is incorporated and is regulated by the Road Transport Corporation Act, 1950. According to Section 4, this Corporation is a corporate body having perpetual succession and a common seal. The management vests in the Board of Directors with Managing Director to assist the Board and Chairman as the Apex Authority. The State Government can appoint the Director and the Chairman etc., of the Board.

26. Rules made under Sub-section (4) of Section 5 of the Road Transport Corporation Act provides for the representation both of the Central Government and of the State Government on the Board in such proportion as may be agreed to by both the Governments and of appointment by each Government of its own representatives thereto. The Corporation is established by the State Government under Section 3 for the State and the Directors are to be appointed by the State Government under Sub-section (2) of Section 5. The resignation of office by the Chairman or a Director are to be given to the State Government under Section 7 of the Road Transport Corporations Act. The State Government can remove from Office the Chairman or Director of the Board under Section 8. Section 14 contemplates that the Managing Director, Chief Accounts Officer and Financial Adviser are to be appointed by the State Government. The Advisory Council is to be appointed by the State Government under Section 17.

27. The capital of the Corporation is to be provided by the Government according to Section 23 of the Road Transport Corporations Act and Chapter IV of it contains the provisions for the finance and funds and, the scheme of Sections 23, 24, 25, 26 as well as 27 and other provisions of this Chapter shows that the entire finance, accounts and audit are to be done by the State Government. The budget is approved by the State Government under Section 32 and, the accounts' audit are to be done as prescribed by the State Government in consultation with the Comptroller and Auditor-General of India.

28. Section 34 of the Road Transport Corporations Act, 1950 contemplates that the directions cann't be given in all matters including recruitment, conditions of service and training of its employees, wages to be paid to the employees reserves to be maintained by it and the Corporation cannot depart from any instructions from the State Government. According to Section 35, the Corporation is required to submit returns and accounts to the State Government of its property and activities and, a report is also to be submitted every year. Annual report submitted to the State Government is required to be placed before the Legislature of the State. Section 36 gives powers to the State Government to order inquiries for proper performance of the duty by the Corporation. Section 37 gives powers of control to the State Government over the Corporation. The provisions of Section 38 empowers the State Government to supersede Corporation and, under Section 39, the liquidation can be ordered only by order of the State Government.

29. State Government has got powers to make rules under Section 44 of the Road Transport Corporations Act, for various matters mentioned therein. Even the regulations of the Corporation require the previous sanction of the State Government under Section 45. State Government is empowered under Section 46 to impose penalty for breach of rules made under Section 44.

30. A bare perusal of the above provision and scheme of the above Act, clearly goes to show that the Corporation is a 'State" within the meaning of Article 12 of the Constitution of India as the entire establishment having been made, functioning, control supersession regulations, liquidation, finance and accounts are to be done by the State Government. The whole or substantial part of the share capital is held by the Central Government and/or the State Government, as the case may be. The Corporation is public sector undertaking established by the State and the State Government exercises full and effective control over it.

31. The wide horizons and dimensions of the definition of the word "State" for the purposes of Article 12 of the Constitution embraces the 'Corporation' is no longer in dispute after authoritative decisions of the Apex Court in Ramama Dayarani Setty v. International Airport Authority 1979-II L.L.J. 217. Som Prakash v. Union of India 1981-I L.L.J. 79, Ajay Hassia v. Khalid Mujih 1981-I L.L.J. 103.

32. Article 12 of the Constitution of India reads as under:
12. Definition. -- In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the Control of the Government of India.

33. Even then, it would be useful to extract below, what the Apex Court said about the concept of Corporation in Ramana Dayarani Setty v. I.A. Authority (supra) (Para 14 at page 227).

... So far as India is concerned, the genesis of the emergence of corporations as instrumentalities or agencies of Government is to be found in the Government of India Resolution on Industrial policy dated 6th April, 1948. where it was stated inter alia that management of State enterprise will as a rule be through the medium of public corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this. It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial Policy that corporations were created by Government for setting up and management of public enterprises and carrying exit other public functions. Ordinarily these functions could have been carried out by Government departmentally through its service personnel, but the instrumentality or agency of the Corporations was resorted to in these cases having regard to the nature of the task to be performed. The Corporations acting as instrumentality or agency of government would obviously be subject to the same limitations in the field of constitutional and administrative law as Government itself, though in the eve of the law, they would be distinct and independent legal entities. If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that t Government acting through the instrumentality or agency of Corporations should equally be subject to the same limitations.

(emphasis supplied)

34. The criteria in finding out, whether the Corporation was instrumentality or agency of the State was reiterated again in the case of the Som Prakash (supra) by the Supreme Court, where the question was about the Bharat Petrolium Corporation. What precisely the Apex Court in Som Praka's case (supra) observed, is as under:

... Constitutional law is not a game of hide and seek but practical real-life conclusions. So viewed, we are constrained to hold that Burmahshell, a Government company though, is but the alter ego of the Central Government and must, therefore, be treated as definitionally caught in the net of 'State' since a juristic veil worn for certain legal purposes cannot obliterate the true character of the entity for the purposes of Constitutional law." (Para 25 at page 85)

"40. Let us cull out from Airport Authority (supra) the indicia of 'other authorities ... under the control of the Government of India' bringing a corporation within the definition of the 'State'. The following factors have been emphasized in that ruling as telling, though not clinching. These characteristics convert a statutory corporation, a Government company, a co-operative society and other registered society or body into a State and they are not confined to statutory corporations alone. We may decoct the tests for ready reference

" 1. One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the Corporation is an instrumentality or agency of Government."

2. Existence of "deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality."

3. "It may also be a relevant factor... whether the Corporation enjoys monopoly status which is the State conferred or State protected."

4. "If the functions of the Corporation are of public importance and closely related to governmental functions, it would be relevant factor in classifying the Corporation as an instrumentality or agency of Government."

5. "Specifically, if a department of Government is transferred to a Corporation, it would be a strong factor supportive of this inference of the Corporation being an instrumentality or agency of Government."

41. The finale is reached when the cumulative effect of all the relevant factors above set out is assessed and once the body is found to be an instrument or agency of Government, the further conclusion emerges that it is 'State' and is subject to the same constitutional limitations as Government.

54. Imagine the possible result of holding that a Government company being just an entity created under a statute, not by a statute, it is not 'State'. Having regard to the directive in Article 38 and the amplitude of the other articles in Part IV Government may appropriately embark upon almost any activity which in a non-socialist republic may fall within the private sector. Any person's employment, entertainment, travel, rest and leisure, hospital facility and funeral service may be controlled by the State. And if all these enterprises are executed through Government companies, bureaus, societies, councils, institutes and homes, the citizen may forfeit his fundamental freedoms vis-a-vis these strange beings which are Government in fact but 1 corporate in form. If only fundamental rights were forbidden access to corporations, companie bureaus, institutes, councils and kindred bodies which act as agencies of the Administration, there may be a break down of rule of law and the constitutional order in a larger sector of Governmental activity carried on under the guise of' jural persons It may pave the way for a new tyranny by arbitrary administrators operated from behind by Government but unaccountable to Part III of the Constitution. We cannot assent to an interpretation which leads to such a disastrous conclusion unless the language of Art-12 offers no other alternative.

(emphasis added)

55. It is well known that 'Corporation have 2 neither bodies to be kicked, nor souls to be damned" and Government corporations are mammoth organisations. If Part III of the Constitution is halted at the gates of corporations, Justice Louis D. Brandeiss' observation will be proved true:

The main objection to the very large corporation is that it makes possible and in many cases makes inevitable the exercise of industrial absolutisms. It is dangerous to exonerate corporations from the need to have constitutional conscience: and 3 so, that interpretation, language permitting, which makes governmental agencies, whatever their mien, amenable to constitutional limitations must be adopted by the Court as against the alternative of permitting them to flourish as an imperium in A imperio.

56. The commonsense signification of the expression "other authorities under the control of the Government of India" is plain and there is no reason to make exclusions on sophisticated grounds such A as that the legal person must be a statutory, corporation, must have power to make laws must be created by and not under a statute and so on. The jurisprudence of Third World countries cannot afford the luxury against which Salmond Cavilled,' (Salmond, Jurisprudence, 10th Edn. P.51)

(emphasis added)

35. Ajay Hassia's case (supra) widened the horizons still further in as much as apart from the Corporation as the 'State', even the Co-operative Society registered under the Societies Registration Act was held to be 'the State' for the purpose of Article 12 of the Constitution. The relevant portion of the judgment reads (Para 6 at page 108):

But before we proceed to consider the merits of this ground of challenge, we must dispose of a preliminary objection raised on behalf of the respondents against the maintainability of the writ petition. The respondents contended that the college is run by a society which is not a corporation created by a statute but is a society registered under the Jammu & Kashmir Societies Registration Act, 1898, and it is, therefore, not an 'authority' within the meaning of Article 12 of the Constitution and no writ petition can be maintained against it, nor can any complaint be made that it has acted arbitrarily in the matter of granting admissions and violated the equality clause of the Constitution.

Obviously, the Society cannot be equated with the Government of India or the Government of any State nor can it be said to be a local authority and therefore, it must come within the expression 'other authorities' if it is to fall within the definition of 'State'. That immediately leads us to a consideration of the question as to what are the 'other authorities' contemplated in the definition of 'State' in Article 12,.... It is the fundamental rights which along with the Directive Principles constitute the life force of the Constitution and they must be quickened into effective action by meaningful and purposive interpretation. If a corporation is found to be a mere agency or surrogate of the Government 'in fact owned by the Government in truth controlled by the Government and in effect an incarnation of the Government', the Court must not allow, the enforcement of Fundamental Rights to be "frustrated by taking the view that it is not the Government and, therefore, not subject to the Constitutional limitations. We are clearly of the view that where a Corporation is an instrumentality or agency of the Government, it must be held to be an 'authority' within the meaning of Article 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the Government.

(emphasis added)

36. In view of the above criteria and well established principles laid down in this respect, the high-lights of which have been extracted above, even the respondents could not whole-heartedly challenge, what was obvious and patent, viz., that the Corporation for the purpose of Article 12 of the Constitution is a body, which falls within the definition of word, 'the State'.

37. I have, therefore, got no hesitation in holding that the first pillar of the bedrock of credentials of the petitioners for entering into the arena of Article 226 of the Constitution is well founded at the cementing of Article 12 of the Constitution. Whether the petitioners enjoy status in Service.

38. The second pillar of this bedrock is equally important as, unless the petitioners enjoy the relationship of status, they cannot be permitted to agitate against the termination. In other words, the relationship of masters and servants are purely of pleasure or contractual, then the remedy would not; be of filing writ petition.

39. As discussed above, the scheme of the Corporation Constitution, formation and regulations, shows that it is a creation of a statute and the service conditions are also to be governed by the rules and regulations which are to be framed after approval of the State Government. The Corporation has framed the regulations and those regulations governed the service conditions apart from the Standing Orders and other various provisions of the Industrial Disputes Act and labour welfare laws as," undoubtedly and undisputedly, all the petitioners are workmen and, the Corporation is an Industry, so far as the specific domain and arena of services of the petitioners are concerned.

40. The Corporation is not a private employer and, the employees are governed by the statute and the rules made thereunder.

41. In Sukhdev Singh v. Bhagatram 1975-I L.L.J. 399, Mathew J., articulated the various aspects of this controversy in the following manner:

The second question for consideration is whether an order of removal or dismissal from service contrary to the regulations framed by these corporations in the exercise of power conferred in that behalf would enable an employee to a declaration against them for continuance in service or would give rise only to a claim for damages.

This will depend upon the question whether the regulations framed by these corporations would have the force of law and, even if they have not the force of law, whether the employment is public employment and, for that reason, the employee would obtain a status which would enable him to obtain the declaration.

The learned Chief Justice has dealt with the question in his judgment whether the regulations framed by the Corporations have the force of law and he has arrived at the conclusion that the regulations being framed under statutory provisions would have the force of law.

Even assuming that the regulations have no force of law, I think since the employment under these corporations is public employment, an employee would get a status which would enable him to obtain declaration for continuance in service if he was dismissed or discharged contrary to the regulations.

42. The above principle has been elaborated by the Supreme Court in U.P. Warehousing Corporation v. Vijaynarayana 1980-I L.L.J. 2221. In General Manager, S. Rly. v. Rangachari 1970-II L.L.J. 289, this question was also considered in the context of Article 16 of the Constitution and, their Lordships of the Supreme Court observed:

In deciding the scope and ambit of the fundamental right of equality of opportunity guaranteed by this Article it is necessary to bear in mind that in construing the relevant Article a technical or pedantic approach must be avoided. We must have regard to the nature of the fundamental right guaranteed and we must seek to ascertain the intention of the Constitution by construing the material words in a broad and general way. If the words used in the Article are wide in their import they must be liberally construed in all their amplitude. Thus construed it would be clear that matters relating to employment cannot be confined only to the initial matters prior to the Act of employment. The narrow construction would confine the application of Article 16(1) to the initial employment and nothing else; but that clearly is only one of the matters relating to employment. The other matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to the employment and they are, and must be, deemed to be included in the expression 'matters relating to employment' in Article 16(1)."

...What Article 16(1) guarantees is equality of opportunity to all citizens in respect or all the matters relating to employment illustrated by us as well as to an appointment to any office as explained by us.

... In this connection it may be, relevant to remember that Article 16(1) and (2) really give effect to the equality before law guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, which are incidental to the employment : and form part of the terms and conditions of such employment.

43. This Court had occasioned to consider the question, whether the employees of the Corporation enjoy status and in Kalyanmal Bhandari v. State of Rajasthan 1975 Lab. I.C. 790; it observed as follows:(at p.797):

Therefore, when regulations can be framed with the previous sanction of the State Government, the Corporation has to meet, resolve and to prepare a draft of the regulations. It is to be submitted to the Government for its sanction and on receipt of the Government's sanction the Corporation has once again to meet, resolve and then pass the regulation.

In this context the question very much arise as to who is the authority making that regulation. It cannot be said that it is the Corporation alone who is making the regulation, nor can it be said that the Government alone are making the regulation. It may very well be that the Government may not sanction the making of the regulation and that may be end of the matter. Likewise, even after the Government have accorded the previous sanction, the Corporation may change its mind and not think fit to pass the regulation. Therefore, under Section 45 of the Act it is both the Corporation as well as the Government who can be said to make the regulation.

The service conditions of the employees can be laid down by the regulations and they are required to be made. There is no provision that service conditions can be settled by a contractual procedure without having any regulations. Therefore, reading Section 14, Section 34 and Section 45 of the Act together, I am of the opinion that the making of the regulation is an exercise of statutory powers of the Government as well as of the Corporation. A Corporation is nothing but a statutory body, that is, body created by the Government alone in the exercise of its statutory powers. Therefore, the regulations made by the Corporation are nothing but statutory in character.

44. It may be observed that decision in Kalyanmal 's case (supra) was a clear departure from the earlier decision in Rameshwarlal v. Rqjasthan S.R.T. Corporation 1973 Lab. I.C. 414 (Rajasthan); wherein this Court held that relation between the Corporation and its employees was that of pure 'master and servant' and, there was no statutory duty of an employer.

45. A historical survey of the decisions in S.B. Tewari v. District Board, Agra 1964-I L.L.J. 1; L.I.C. v. Sunil Kumar 1964-I L.L.J. 442; Ex. Committee of U.P. State Warehousing Corporation v. Chandra Kiran 1970-I L.L.J. 32; Indian Airlines Corporation v. Sukhdeo Rai 1971-I L.L.J. 496; Mafatlal v. J.D. Rathod DCST Mehsana 1966-I L.L.J. 437; Jaipur v. Mohanlal 1968-I L.L.J. 257; Vine v. National Dock Lab. Board (1956) 3 All ER 939; Barber v. Manchester Regional Hosp. Board (1958) 1 All ER 322; Ridge v. Baldwin (1963) 2 All ER 66; Vidya Ram Misra v. Man. Committee, S.J. Narain College 1972-I L.L.J. 442; Malloch v. Aberdeen Corporation (1971) 2 All ER 1278; State of U.P. v. Babu Ram Upadhaya ; S.V. Raman v. Madras State Warehousing Corporation ; Kailas Pati v. Governing Council of Sri Ramachandra Articles (1971) 2 Andh WR 352; Muvvala Narasimha Rao v. Works Man; A.P. State Road Trans. Corporation (1972) 1 Andh WR 76; S.N. Sheshadri v. Man. Director, L.I.C. 1972-I L.L.J. 379; L.I.C. v. Nilratan Banerjee 1971-I L.L.J. 1; Willingale v. Norris (1909) 1 KB 57; Wicks v. Director of Public Prosecutions (1947) 1 All ER 205; Rathore v. Bundock (1962) 2 All ER 257 and Roshan Lal Tandon v. Union of India 1968-1 L.L.J. 576; was made in Rameshwarlal"s case (supra) and Shinghal J., as he then was, opined that the decision in S.R. Tewari's case (supra) has held the field throughout, and corporation employees cannot enjoy "status" in service as the service rules are not statutory.

46. The characteristics of 'status' as defined in Roshan Lal Tandon v. Union of India (supra) can be stated as under:
The hall mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties.

It now appears that the concept of 'status' as held in Rameshwarlal's decision (supra) was too conservative in nature and, that could not be sustained even in Kalyanmal Bhandari's decision, (supra) by the same Court, wherein Kansingh J., as he then was, observed that after the judgment delivered by Shinghal J., there has been a case decided by the Constitution Bench of the Supreme Court in Sirsi Municipality v. C.K.F. Tellis 1973-I L.L.J. 226 which has held to the contrary. It would be apropos to extract here, how Kansingh J., without making a reference to the larger bench for declaring Rameshwarlal's decision (supra) as no longer good law, articulated the preposition that the Regulations were of statutory nature:
This passage shows that their Lordships had taken the gist of the earlier cases. These cases, according to their Lordships had dealt with powers of statutory authorities and bodies to dismiss their servants. These decisions further establish that the dismissal of a servant by statutory authority including local authorities or bodies in breach of the provisions of the statutes or orders or schemes made under the statute which regulate the exercise of their power is invalid or ultra vires and the principles of pure master and servant contractual relationship has no application to such cases.

47. In Satpal Sabharwal v. Himachal Pradesh Corporation (1977) 2 Serv. L.R. 447; protective umbrella to the employees of such Corporation for making them competent to enjoy the fruits of 'status' has been provided.

48. In view of the above, I have got no hesitation in holding that the petitioners are not employees at the pleasure of the corporation, employer, but- they enjoy 'status' under the relevant rules, regulatons and statute governing the Corporation and its employees and, the relationship are governed by the 'status' in contra juxta position to contract.

49. Now, the petitioners having shown their legal and valid credentials to enter the arena, I would advert to the main controversy about the validity of Clause 13 of the Standing Orders which, according to my humble view, is the first and foremost controversy in these bunch of cases, as invariably the 'Gangotari' of the impugned orders in all the writ petitions is Clause 13 of Standing Orders.

Clause 13 of Standing Orders whether law?

50. Though, at the very initial stage, some doubts were raised, whether the Standing Orders have got statutory force and its terms and conditions arc statutory but, by the conclusion of the arguments, it became very clear that both the sides, the petitioners as well as the respondents are proceeding on the assumption that, they are having statutory force and there is no controversy on this point, so far as the parties are concerned. Since some doubts were expressed it would be necessary to mention that, in my opinion, the Standing Orders have got statutory force. It has been held to be so in the decisions of the Supreme Court in Bagalkot Cement Co. v. R.K. Pathan 1962-i L.L.J. 203; Workmen of D.T. Estate v. Their Management, 1964-I L.L.J. 358 and Biswanth Das v. Ramesh Chandra 1979-I L.L.J. 129.

51. In the case of Bagalkot Cement Co. v. R.K. Pathan (supra), the Apex Court observed as under (at p. 206):

...Prior to the passing of the Act, conditions of employment obtaining in several industrial establishments were governed by contracts between the employer and their employees. Sometimes the said conditions were reduced to writing and in many cases they were not reduced to writing but were governed by oral agreements. Inevitably in many cases, the conditions of service were not well defined and there was ambiguity or doubt in regard to their nature and scope. That is why the legislature took the view that in regard to industrial establishments to which the Act applied, the conditions of employment subject to which industrial labour was employed, should be well defined and should be precisely known to both the parties. With that object the Act has made relevant provisions for making Standing Orders which, after they are certified, constitute the statutory terms of employment between the industrial establishments in question and their employees....

(Emphasis added).

52. In the case of Workmen of Dewan Tea Estate v. Their Management (supra) their Lordships held that after a Standing Order is certified by the statutory authority under Section 5 of the Act, it becomes 'part of the statutory terms and conditions of service' between the employer and employees of the industrial establishment concerned. It is true that the Standing Orders may have been framed by a private industrial establishment which comes within 1 the purview of the Act. But the Act provides for the conditions of service of employees of such establishment, which were previously left to the agreement of the parties, to be brought under statutory control. There is, therefore, no manner : of doubt that the certified Standing Orders framed in accordance with the Industrial Employment (Standing Orders) Act have the force of law like any other statutory instrument

53. In Co-operative Central Bank Ltd. v. Addl., Industrial Tribunal, Andhm Pradesh ; their Lordships held that the bye-laws of the Co-operative Society framed in pursuance of the provisions of the Andhra Pradesh Co-operative Societies Act, 1964 cannot be held to have the force of law. The relevant observations are as under:
The bye-laws of a co-operative society framed in pursuance of the provisions of the Act cannot be held to be law or to have the force of law. It has, no doubt, been held that, if a statute gives powers to a Government or other authority to make rules the rules so framed have the force of Statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of Society. They are of the nature of the Articles of Association of a company incorporated under the Companies Act. They may be binding between the persons affected by them, but they do not have the force of a statute.

It may be mentioned that their Lordships while dealing with the controversy, whether bye-laws of a cooperative society can be treated as law were confronted with the situation where an objection was raised that the Industrial Tribunal will not be competent to alter the bye-laws as they have got force of law and an Industrial Tribunal cannot make an order contrary to law. In that context, it was pointed out to the Court that in Dalmia Cement Ltd. v. Their Workmen , Management of Marina Hotel v. The Workman 1961-II L.L.J. 431; Cinema Theatres v. Their Workmen, 1964-II L.L.J. 128, and Hindustan Times Ltd., New Delhi v. Their Workmen it was held that the Industrial Tribunal acted illegally in prescribing leave in excess of the number of days laid down by the Delhi Shops and Establishment Act, 1954. On the above basis, it was pointed out that when the co-operative societies have framed by-laws, these bye-laws will also have the force of law and the Tribunal cannot act against them.

53-A. Their Lordships of the Supreme Court repelled the above arguments on the ground that in all the above cases, prohibition was contained in the Act, itself, and, therefore, the Tribunal could not go against the Act but, in the present case, there is no prohibition contained in the Act that the conditions of service are not to be altered. Their Lordships of the Supreme Court in that context held that this principle would not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make.

53-B. While emphasizing, that the bye-laws only regulated inter-mangement and the conditions of service of employees, their Lordships gave analogy of Articles of Association of a Company which can never have the force of law.

53-C. It was further pointed out that their Lordships further gave analogy of condition of service of the Industries laid down by the Standing Orders and further observed as under:
Though such Standing Orders are binding between the employers and the employees of the industry governed by these Standing Orders, they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute. The jurisdiction, which is granted to Industrial Tribunal by the Industrial Disputes Act is not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a Civil court or a Registrar acting under the Cooperative Societies Act, so that the circumstance that in granting relief on issue No. 1, the Tribunal will have to vary the special bye-laws framed by the Co-operative Bank does not lead to the inference that the Tribunal could be incompetent to grant the reliefs sought in this reference. In fact, the reliefs could only be granted by the Industrial Tribunal and could not fall within the scope of the powers of the Registrar dealing with a dispute under Section 61 of the Act.

53-D. It is pertinent to notice here that their Lordships have clarified the statement of law in this respect by using the words, 'they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute'. The clear indication is that emphasis is to the qualitative nature of the legal effect. In my view, their Lordships have by implication held in this decision that though normally Standing Orders have got force of law but qualitatively that force of law is not such as to be binding on the Industrial Tribunal adjudicating an industrial dispute.

"Such force of law" has been used for showing that the Industrial Tribunals are not bound by it as they have got wide powers under the Industrial Disputes Act. This only shows that the laws and statutes are of different qualitative value and they are to be treated as and evalued as such. To illustrate, several Acts mention that the decision of the appellate authority or the Tribunal or a particular authority in such matters would be final. This mentions of finality in the Act, itself, is normally a final law, according to law, as finality has been attached by law, itself. But such law in respect of finality cannot bind or curtail the powers of the High Court under Article 226 of the Constitution. Therefore, it can always be said that such law of finality is not binding on the High Court and the High Court can always quash an order of authority whose judgment or order is otherwise final by exercising the powers under Article 226 of the Constitution. It may be mentioned that this Clause 13 of the Standing Orders is reproduction of Article 13 of the Industrial Employment (Standing Orders) Central Rules, 1946. These rules have been framed in exercise of the powers by Section 15, read with Clause (b) of Section 2, of the Industrial Employment (Standing Orders) Act, 1946. Rule 3 of these Rules, 1946 states that the model Standing Orders for the purposes of the Act shall be those set out in Schedule I appended to these rules, and Clause 13 appears in these model Standing Orders of the Central Rules.

Section 12A of the Industrial Employment (Standing Orders) Act, 1946 makes it clear that the model Standing Orders shall be deemed to be adopted in the Industrial establishment till the Standing Orders certified under this Act for that particular establishment comes into force. Section 13A of the Act, 1946, further makes it clear that the application or interpretation of a Standing Order certified under this Act can be made subject matter of adjudication by Labour Court constituted under the Industrial Disputes Act and a reference can be made for the Industrial adjudication of the same. Even if it is assumed that the Standing Orders cannot have the force of law then also they are in the nature of statutory terms of employment as held in Bagalkot Cement Co, v. R.K. Pathan (supra) and Workmen of D.T. Estate v. Their Management (supra) and Biswanath Das v. Ramesh Chandra, (supra).

It is now established law that even the administrative orders not to talk of statutory terms of employment are liable to scrutiny of their validity under equality clause of Article 14 under the Constitution of India, as held in Jagannath Prasad v. State of Uttar Pradesh 1961-II L.L.J. 166; Ramnanna Shetty v. International Airport Authority, (supra); Motilal Padampat Sugar Mills v. State of U.P. and Kasturilal Ldkshmi Reddy v. State of J. & K. A.I.R. 1980 S.C. 1982.

I am, therefore, of the opinion that Clause 13 of the Standing Orders has got force of law and in any case, it provides statutory terms of employment which is liable to the test, trial and scrutiny of the equality clause of Article 14 of the Constitution of India.

In the strict narrow sense, law was known as command of the sovereign and Austin as well as Kelser emphasise the role of coercion in laws. I had occasion to study and have some small search, (1) though it cannot be called research in the concept and theories of law and there, I discussed the various concepts and meaning of law as made from time to time by the jurists of the world including Prof Hart, Savigny, Ehlrich, Bentham, Manu, Yajnavalkya. Brihaspati, Kautilya and Narad, etc.

The Brihadaranyak Upanished says that the law is king of kings:

^^dk"kkiZ.ka Hkosnn.M~;ks ;a=kU;k izd`rh
tu% A

r= jktk Hkosn`n.M~;;% lgL=fefr /kkj.kk AA**
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In the Vedic era, king or monarch was not above law and on violation, he could be punished like any other citizen.

Maharishi Manu's injunction is as under:

^^/keZ ,oa grksgfUr /keksZ j{kfrA

rLen~/keksZ u gUrO;ks ek uks /keksZ grkso/khr
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Destruction of law and Justice bring about the destruction of society. The protection of law and justice has a protective influence. Therefore, law and justice should not be destroyed.

The Shatpath Brahman (XIV.4.2.26) and the Brihad-Aranyak Upanishad (1.4.14) in identical terms lay down the supremacy of the law as under:
The law is the ruler, even of the rulers and kings. Therefore, there is nothing higher than law. With the aid of the law even a weakling overcomes the strong?

Chief Justice Mukharji, has described law in a very , interesting manner. He says,
In the garden or forest of jurisprudence, there are many fruits. Law is divine. Law is natural. Law is custom. Law is contract. Law is command of the human sovereign. Law is a social fact. Law is a union of primary and secon-i dary rules. Law is prediction. Law is experience. Law is an unrealisable ideal. Law is a practical and realisable compromise. Law is a balance of social individual interests. Law is morality. Law is what the Judges say from : the Bench. Law is tradition. "The law is different from 'Laws' Confusing as all this may appear, and which confusion led someone to say that 'Law is an Ass", there is perhaps a strain of fusion in the midst of all this confusion. If the law is like the beast of burden, it is because law has to bear many burdens, of human life inaction, old and new predictable and unpredictable.

There are two extreme propositions which define the concept of law: while tne one pleads its coercive character, the other lays stress on the social acceptance of law. The coercive character of law imports two ideas (i) the source of authority and the various kinds of sanctions. Austin & Kelsen emphasise the role of coercion in Laws. Austin defines law as (he command of the highest legislative power called the sovereign. Kelsen says a theory of law must deal with law as it is and not as it ought to be. The theory of law must be free from ethics, sociology, history or political philosophy. In other words, it must be pure. Thus both the jurists exclude the element of morality from the definition of law.

Prof. Hart emphatically rejects the command theory of law. He observes that such a command cannot be given by a man with a loaded gun and law surely is not the gunman situation.

The other extreme view draws our attention to the theories of Savigny and Enrich. They emphasis ed on the actual observance by the society and the growth of customs as the conclusive elements of law. According to them, the law may receive authority from the sovereign but it is not created by him.

The Hindu concept of law does not conform to the Austinian view. According to Austins' philosophy most of the rules of Hindu law could be terms as nothing more than positive morality and not the command of the sovereign. The great Rishis who dttaineu the spiritual heights delivered the Hindu law. The code of Manu Yagnavalkya and Narad were obeyed by the people like the command of the sovereign. The main philosophy behind the observance of the rules of Hindu Law was to attain ultimate object i.e., salvation. It is this moral aspect which prevailed all through the rule of law in India. In the early period, the theory was that Kings did not make laws but they merely enforced them. Even when any King made lav/ it was supposed to. be in consonance with the divine principles as laid down in scriptures. Prayschitta or penance as a mode of expiation was fully recognised, which shows the heavily loaded moral perspective of the concept of law.

The Upnnishadic concept of law is:
Law which is Dharma, not in the sense of rituals sustains and endures spiritual progress i.e., Dharam or law which holds society together makes it compact.

So is the case of Muslim Law, It is not based on the commands of any sovereign but is based on the injunctions of the holy Koran. The Mogul rulers did not make the law, but they merely enforced the Koranic Law.

Barrister Govind Das lamented establishment of diverse legal theories (1) concept of it and system of law a-; under:
the authors on jurisprudence have catalogues the legal theories as under the righteous Justice of Manu-Brahaspati, Greek and Roman Legal Theory -- Early Greek legal theory, Plato's view, Aristotlian theory of law, the Stoic Law of Nature, Early Christian Doctrine; Legal Philosophy of Middle Ages -- The Thomist Philosophy of Law, Medieval Nominalists; The Classical era of Natural Law -- Theories of Grotius, Hobbes, Spinoza, Locke and Montesquieu, the philosophy of natural rights in U.S., Rousseau and his influence; German Transcendental Idealism Philosophy of Kant, Legal Philosophy of Fitche, Hegel's Philosophy of Law; Historical and Evolutionary Theories of Law -- Savigny and Historical School in Germany, the Historical School in England, Spencer's evolutionary theory of law, the Marxian Doctrine of Law; Utilitarianism of Bentham, Mill, and Jhering; The Analytical Positivism John Austin and Analytical school of law. Pure theory of law, Sociological Jurisprudence and Legal Realism, Psychological and Sociological School of Law in Europe, Jurisprudence of interests, Free Law Movement, Pound's Socio-Logical Jurisprudence, Cardozo and Holme's American Legal Realism, Scandinavian Legal Realism; The Revival of Natural Law -Neo-Kantian Natural Law, Re School astic Natural Law, Duguit's legal philosophy ethics of Lasswell and Mc Doughal, Phenomenology and Existentialism and other value-oriented philosophy of law, etc. (2).

The definition of 'Indian Law' contained in the General Clauses Act, 1897 under Section 3(29) reads as under:
Indian Law' shall mean any Act, Ordinance, Regulation, Rule, Order, Bye-law or other in strument which before the commencement of the Constitution had the force of law in any t Province of India or part thereof, or thereafter has the force of law in any Part A State or Part C State or part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule or other instrument made under such Act.

Under the Constitution of India in Article 13(3) unless the context otherwise requires, "law" includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

As discussed above, after log to my above discussion I must mention that, though the present one is not a case where a thorough probing discussion and debate in the concept of law and whether concept of law to be restricted to command theory of law only or it now embraces all that makes law including statutory contracts, statutory terms of employment, also need not be discussed any further. It would be sufficient to conclude that, so far as the Standing Orders under the Act and the Rules are concerned, they "constitute law", for the purpose of Article 14 and they are subject to test of Article 14 even if they are held as statutory terms of employment only, as even administrative orders are not enjoying any impunity from the attack of Article 14 of the Constitution in this year of 1983-84.

Whether Standing Orders Clause 13 is valid?

54. Having steered clear the initial impediments, now the stage is set for dealing with the basic controversy about the validity of Standing Orders Clause 13. Clause 13 of the Standing Orders reads as under:

13. Termination of employment.

(i) For terminating employment of a permanent worker, notice in writing of the following duration shall be given either by the employer or the worker -

(a) one month's notice in the case of a monthly-

(b) two weeks notice in the case of other workers, provided that the service of a worker may be terminated forthwith by payment to him of a sum equivalent to the amount of his wages for the period of notice or for the period by which such notice falls short of the period prescribed above, as the case may be.

(ii) A temporary worker or probationer whether monthly rated, weekly rated or piece-rated shall not be entitled to any notice or pay in lieu thereof, if his services are terminated.

(iii) Where the employment of any worker is terminated the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.

55. As is obvious from the above reading of Clause 13 of the Standing Order, the employee of the Corporation can be removed from the service by a simple notice of one month without assigning any reason and without any inquiry or adjudication. Sub-clause (i) of Clause 13 provides that for a permanent worker, one months notice is to be given in the case of monthly rated workers and two weeks notice is to be given for other workers. If the services are terminated forthwith then the wages for the notice period can be paid and, the service can be dispensed with. So far as the temporary worker or probationer is concerned, no notice is necessary at all. The Challenge to the validity of the above Clause 13 of the Standing Orders is based on Articles 14 and 16 of the Constitution of India which are being reproduced hereunder for ready reference:

Article 14. Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 16, Equality of opportunity in matters of public employment: (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment of an office under the Government of, or any local or other authority within, a State or Union Territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

56. It would be better to first analyse the 'status' of an employee as envisaged by the Standing Orders. Sub-clause (16) of Clause 4 of the Standing Orders defines 'worker' employed permanently, to mean a person who holds substantively a permanent post or who holds a lien on a permanent post or would hold a lien on a permanent post, had the lien not been suspended. Clause 7 of the Standing Orders prescribes that motor transport workers would be classified in four categories, viz., (i) Probationer, (ii) Permanent, (iii) Temporary, and (iv) Apprentice. The period of 'probationer' prescribed under Clause 8 of the Standing Orders is six months, normally and extension can be of another six months. The confirmation of a 'probationer' is provided under sub-clause (iii) of Clause 8 of the Standing Orders. Clause 9, defines a permanent motor transport worker as follows:

9. (i) A worker shall acquire the status of a permanent worker from the date of his confirmation and appointment substantively.

(ii) On substantive appointment to a permanent post a worker shall acquire a lien on that post.

57. Clause 10 of the Standing Orders then mentions how and when lien can be suspended and when lien is to be retained. A temporary motor transport worker is a person, under Clause 11, who is appointed temporarily on a permanent post for unforeseen contingencies, e.g., election, emergency, etc. The 'misconduct' has been defined in Clause 34 of the Standing Orders and various omissions and commissions have also been mentioned in that clause. Clause 35 provides for suspension and, the provisions have been made for inquiry and subsistence allowance during suspension and appeal from punishment.

58. The above clauses of the Standing Orders would show that removal on the ground of misconduct can be made after inquiry and Clause 13 provides for 'termination simpliciter'.

59. Now, it is to be examined, whether Clause 13 of the Standing Orders violates Articles 14 and 16 of the Constitution. The principal contention to be considered in this respect is, whether absence of arbitrariness for the security of tenure is an essential attribute of Articles 14 and 16 of the Constitution. Undoubtedly, Clause 13 provides 'termination simpliciter' without any cause and in a most unceremonious manner, even where it would be in the public interest to order premature termination and, not to allow an employee the opportunity to reach his superannuation age. It would be useful here to first mention straightway that the petitioners are not civil servants and, I have got no manner of doubt that Article 311 of the Constitution is not applicable in their cases. I have mentioned this because, Dr. L.M. Singhvi, learned Advocate, appearing for the Corporation, with his usual eloquence and eminence repeatedly warned us not to permit Motiram Deka's bull to enter the Corporation premises for smashing Clause 13 of the Standing Orders as in Dr. Singhvi's view, Rama lois, J. of Karnataka in T.G. Srinivas Murthy v. B. Earth Movers Ltd. (supra) opened the gates for Motiram Deka's bull on the credentials ofArt.311 even though Motiram Deka 's decision (Motiram Deka v. Gen. Man.) (supra) is invasion in corpora-lion premises with injunction of Article 311 of the Constitution is foreign as Motiram Deka's credentials are based on the bedrock of Article 311 only.

60. Since I have got no doubt that the contention of Dr. Singhvi, so far as non-application of Article 311 to the employees of Corporation is concerned, is wholly correct, I would not allow Motiram Deka's ratio to guide this Court, so far as striking town of Rules 148(3) and 149(3) of the Indian Railway Establishment Code being violative of Article 311 is concerned.

61. Before I proceed to dissect the ratio of Motiram Deka's case. I would like to extract below the relevant Rules 148(3) and 149(3) of the Indian Railway Establishment Code which were subject natter of the controversy in that case:

Rule 148(3). Other (non-pensionable) railway servants:

The service of other (non-pensionable) railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause 2 of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity.

"Rule 148(4) -- In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice.

Rule 149(3). Other railway servants:

The services of other railway servants shall be liable to termination on notice on either side for the periods shown below. Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity.

Rule 149(4). In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Administration to terminate the service of a railway servant by paying him the pay for the period of notice.

Note: The appointing authorities are empowered to reduce or waive, at the discretion, the stipulated period of notice to be given by an employee, but the reason justifying their action should be recorded. This power cannot be re-delegated.

62. One of the reasons, which weighed with the majority view laid down by Gajendragadkar C.J., was that Rules 148(3) and 149(3) which provide termination of railway servants by notice contain no guidelines for making the classification. Das Gupta J., observed that Rules 158(2) and 149(3) do not lay down any principle or policy for guiding the exercises of discretion by the authority who will terminate the service, in the matter of selection or classification. Das Gupta J., further observed that arbitrary and uncontrolled power is left in the authority to select at its will any person against whom action will be taken and the Rules thus enable the authority concerned to discriminate between two railway servants to both of whom the Rules equally applied by taking action in one case and not taking it in the other. Das Gupta J., further viewed that in the absence of any guiding principle in the exercise of the discretion by the authority the Rules have therefore to be struck down as contravening the requirements of Article 14 of the Constitution.

63. Shah J., in Motiram Deka's decision (supra), dissented but, it is obvious that, out of the seven judges except Shah J., all the six were of the opinion that these provisions violated Article 14 of the Constitution as they do not lay down any policy for guiding the exercise of discretion by the authority concerned and, give arbitrary and uncontrolled power to select any class or category against whom action will be taken. Das Gupta, J., merely relied on the decision in Ram Krishna Dalmia v. S.R. Ten-dolkar went further and held that arbitrariness is writ large for picking one and leaving other in the same class or category.

64. It is to be noticed that in the judgment of Motiram Deka's case (supra), Das Gupta J., in terms held that Rule 148(3) does not contravene Article 311(2) of the Constitution but, it contravenes Article 14 of the Constitution and consequently is void. The majority view expressly held that the English law doctrine expressed in the Latin phrase, 'durante bene placito' (during pleasure) has not been fully adopted in Article 310(1) of the Constitution. The pleasure of the President is controlled by the provisions of Article 311. It is true that this part of the discussion has got no application directly to the present cases because Article 311 in terms is not applicable but, the service rules and the regulations of the corporation prescribes superannuation age, nature of service tenure, whether permanent or not, or otherwise, lien and non-suspension of lien, etc., which shows that, even in the absence of Article 311 of the Constitution a due protection has been given for ensuring security of service to the corporation's employees.

65. Subba Rao J., in his concurring judgment, agreed that, the above Rule in Motiram Deka 's case (supra) was violative of Article 14 of the Constitution.

66. Now, there is no manner of doubt that Clause 13 of the Standing Orders is analogous and similar to Rule 148(3) and Rule 149(3) contained in Indian Railway Establishment Code, reproduced above. The decision delivered by Das Gupta J., expressly and clearly provide support to the challenge made to the validity of Clause 13 of the Standing Orders on the ground that it confers arbitrary and uncontrolled power without guidelines which enable the employers to take arbitrary action against an individual to his prejudice and, therefore, it is hit by Article 14 of the Constitution.

67. It is to be noticed that after Motiram Deka's case (supra) the horizons and dimensions of Article 14 had further been widened and expanded in Maneka Gandhi v. Union of India (supra). Even in E.P. Royappa v. State of Madras 1974-I L.L.J. 172 before Maneka Gandhi's decision (supra), Bhagwati, J., emphasized the antagonism between equality and arbitrariness in the following memorable words:
...From a positivistic point of view equality is antithetic to arbitrariness. In feet, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and Constitutional Law and is, therefore, violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.

Bhagwati J., held that Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment and, the basic principle which, therefore, informs both Articles 14 and 16 equality and inhibition against discrimination. In answer to the question posed by him, Bhagwati J., as to what is the content and reach of this great equalising principle, observed that it is a founding faith, to use the words of Bose, J., "a way of life' , and it must not be subjected to a narrow pedantic or lexicographic approach.

68. In the constitutional epoch making judgment of Maneka Gandhi's case (supra), Bhagwati J., observed thus (Para 56):
... Now, the question immediately arises as to what is the requirement of Article 14 what is the content and reach of the great'equalising principle enunciated in this article & There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow pedantic or lexicographic approach. No attempt should be made to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is as dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.

Bhagwati J., then further observed, -
...Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.

69. In the case of Manager, Govt. Branch Press v. D.B. Belliappa 1979-I L.L.J. 156; the Supreme Court has well settled that the expression 'matters relating to employment' used in Article 16(1) is not confined to initial matters prior to the act of employment, but comprehends all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment such as, provisions as to salary, increments, leave, gratuity, pension, age of superannuation, promotion and even termination of employment. It has further been well established that Articles 14, 15(1) and 16(1) form part of the same constitutional code of guarantees and supplement each other. The Apex Court further held that if any authority is needed for the above enunciation,; reference may be made to the observations made by Gajendragadkar J., as he then was in General Manager, Southern Rly. v. Rangachari, (supra).

70. With reference to the inhibition contained in Articles 14 and 16(1), against arbitrary termination; of service, their Lordships of the Apex Court in Govt. Branch Press v. D.B. Belliappa, (supra) has also held as follows (Para 18 at P. 159):

Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic policy is founded: Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and 16(1). Article 16(1) guarantees 'equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.' Moreover, according to the principle underlying Section 16 of the General Clauses Act, the expression 'appointment' used in Article 16(1) will include termination or removal from service, also.

(emphasis added)'

71. In Air India v. Nargesh Meerza 1981-II L.L.J. 314; the entire case law was reviewed in respect of scope of Article 14 and, then their Lordships of the Apex Court emphatically declared that, 'in view of our recent decision explaining the scope of 1 Article 14, any arbitrary or unreasonable action or provision made by the State cannot be upheld'.

72. In T. G. Srinivasa Murthy 's decision of Karnataka (supra), the provisions of 'termination simpliciter' were qualified with 'public interest' and defence was sought to be made that, after using such an expression, it cannot be said that it is vague. Even then, it was held that it was not enough to save the provision from the attack of Article 14.

73. Even, Sarkaria J., in U.P. Warehousing Corporation v. Viiayanarayana, (supra) held that the employees of the public corporation, even though they are not civil servants but, fulfil the public task on behalf of the government and being public authorities, they are subject to control by the government. Concurring with the views expressed by Sarkaria J. Chinnappa Reddy J., observed as under (Para 22 at page 222 of 1980-I L.L.J. 222):

I find it very hard indeed to discover any distinction on principle, between a person directly under the employment of Government and a person under the employment of an agency or instrumentality of the Government or a Corporation, set up under a statute or incorporated but wholly owned by the Government.

...There is no good reason why the, Government is bound to observe the equality clauses of the Constitution in the matter of employment and in its dealings with the employees the Corporations set up or owned by the Government should not equally be bound and why, instead, such Corporations could become citadels of patronage and arbitrary action....

... It is therefore, but right that the independence and integrity of those employed in die public sector should be secured as much as the independence and integrity of civil servants.

(emphasis added)

74. Similar was the view expressed by Bhagwati J., in Ajya Hassia 's case (supra). The above being the wide horizons and dimensions of the new judicial awakening and expansion of the protective umbrella of absence of arbitrariness for security of services to the corporation's employees also, I cannot persuade myself to accept the principle submission of Dr. L.M. Singhvi that the protection provided by the principle enunciated by the Apex Court in Motiram Deka 's case (supra) for security of service to railway employees should not be applied or extended to the corporation's employees. The reasons are not far to seek because, even though Article 311 has got no application, Articles 14 and 16 of the Constitution spread the protective umbrella to them also, by not making any discrimination between the civil servants 'simpliciter' and the corporation employees who are employees of the bodies who answer the description of the 'State' as defined in Article 12 of the Constitution. The independence and integrity of the employees of these Corporations depend upon the kingpin of the absence of arbitrariness in respect of security of service and there is no doubt that all of them are to be protected.

75. The impugned Clause 13 of the Standing Orders contemplates unceremonious sacking of the permanent employees at any time without assigning any reason by arbitrariness and, that denies the security of the service to the employees which is injurious to 'public interest' so vital to the 'independence and integrity of the servants' of these bodies which are agencies and instrumentalities of the 'State'. Undoubtedly, it would create a sense of insecurity in the minds of the employees of these bodies and public corporations, and is detrimental to 'public interest'. It is a naked 'Damocles sword' always hanging over the employees' head and there are no fetters, limits, bridles on the hands of the employers in using this 'sword'. This provision, therefore, destroys the, concept of 'permanent' or 'permanence' in service with fixed tenure. It is not without significance that in a social welfare State where, on the one hand, by amendment of Directive principles of the State Government workers' participation in the management is being directed, it cannot be allowed to remain empty ideal or slogan only, by empowering the employers to 'hire' and 'fire' of the sweet whim, and caprice and to undo that directive principles by practising 'durante beneplacito' (during pleasure) doctrine which has been buried deep and abrogated by 'Social Justice' Waves.

76. It would not be out of place here to point out that their Lordships of the Supreme Court almost in similar terms upheld the modification in the Industrial Employment Standing Orders Act for requirement to give reasons even in the case of 'discharge simpliciter' and observed as under in 5.5. Rly v. Workers 1969-I L.L.J. 734 at p. 743-744:

It must, however, be borne in mind that the right to contract in industrial matters is no longer an absolute right and statutes dealing with industrial matters abound with restrictions on the absolute right to contract. The doctrine of 'hire and fire', for instance, is now completely abrogated both by statutes and by industrial adjudication, and even where the services of an employee are terminated by an order discharge 'simpliciter' the legality and propriety of such an order can be challenged in Industrial Tribunals. These restrictions on the absolute right to contract are imposed evidently because security of employment is more and more regarded as one of the necessities for industrial peace and harmony and the contentment it brings about is a pre-requisite of social justice.

...If reasons for discharging an employee are furnished to the employee concerned, he not only has the satisfaction of knowing why his services are dispensed with but it becomes easy for him in appropriate cases to challenge the order on the ground that it is either not legal or proper which in the absence of knowledge of those reasons it may be difficult, if not impossible for him to do. In these circumstances, if the authorities under the Act have come to the conclusion that such" modification is fair and reasonable we would hardly be justified to interfere with such a decision.

(emphasis added)

77. Even, in the case of Gurudev Singh v. State of Punjab 1965-I L.L.J. 323, their Lordships of the Apex Court emphasized the need of providing sense of security of service to a permanent public servant in order to secure efficient administration.

78. It is true that, while I am emphasizing the concept of security of tenure as one of the "must" for efficient administration and treating it as integral part of equality clause being antithesis of arbitrariness, I am aware that the provisions of removal of a civil servant by way of compulsory retirement on impairing of efficiency or corrupt practice in public administration, have been upheld by the Apex Court in a series of cases. I am, therefore, not in any remotest sense laying down that there must be security of service tenure for dishonest and inefficient public servant, nor I am trying to fetter the powers of the employers to retire compulsorily its employee on attaining certain age or qualifying service period. As already rightly held, such provisions are valid and not violative of Article 14. Even in Motiram Deka 's case (supra), such provision of premature government servant's retirement were not declared invalid when it was to be done on completion of 25 years of active service or attaining the 55 years of age, at superannuation.

79. In Rajasthan case of Tarasingh v. State of Rajasthan ; the Supreme Court upheld the powers of employers and the Government to retire any of its employee in public interest after he had put in 25 years of qualifying service and reliance was placed on the decisions in T.C. Shivaeharansingh v. State of Mysore 1967-II L.L.J. 246 and P.R. Naidu v. Govt. of A.P. by Karnataka High Court, wherein their Lordships expressly held that compulsory retirement in public interest after the completion of a certain period of qualifying service or attainment of certain age is not violative of Article 14.

80. It is not in dispute that if Clause 13 of the Standing Orders is to be upheld as intra vires, a permanent servant even on the next day of his appointment can be thrown on the road without assigning any reason much less an inquiry. It has got no tenure at all even though the superannuation age is prescribed under the regulations. In such a situation, the employee cannot even make a demur or protest not to talk of any show cause notice or speaking orders or an appeal or a review.

81. After we have interpreted Articles 14 and 16 of the Constitution during last 35 years and always extended and expanded its horizons, it would be a severe blow to its basic concept if such an arbitrary unbridled, naked, capricious power is given to the employers. Even the maximum period of qualifying service or attaining the age of superannuation ; or, requirement of public interest or, requirement of passing a reasonable order in the interest of Corporation is conspicuously absent in Clause 13 of the Standing Orders and, that being the magnitude of its arbitrariness, it is impossible to sustain it now ; in the present form both under Articles 14 and 16 of the Constitution.

82. It is true that the view taken by the Bombay High Court in Manohar P. Kharkhar v. Raghuraj, 1981-II L.L.J. 459 and Gujarat High Court in Amarsingh v. G.S.R.T. Corporation (1980) 21 Guj LR 500; in respect of similar provisions is contrary to what I have held above and therefore before taking the above view, I have given a thoughtful consideration to the Bombay view also. It must be mentioned at the very out set that Manohar P. Kharkhar 's case (supra) overruled the judgment of Sawant J., in the case of S.S. Muley v. J.R.D. Tata, 1980 Lab IC II (Bom.). The Division Bench of the Bombay High Court in Manohar P. Kharkhar's case (supra) upheld the validity of Rule 48 of Air India Rules primarily on the ground that an employee of a corporation cannot claim any security of tenure and he is equivalent to that of a temporary civil servant or probationer. In spite of the greatest respect to the learned Judges, I have not been able to persuade myself to accept this startling extreme proposition. It is true that Motiram Deka 's case (supra) relates to a civil servant and Article 311 is applicable to them only but, as per the detailed dissection of Motiram Deka's judgment, I have deduced that Article 14 of the Constitution was held to be violated by the Indian Railway Establishment Code and, therefore, it would be putting a very narrow construction to circumscribe the ratio of Motiram Deka's decision to be based on Article 311, only. Moreover, the extracts, which I have reproduced above, from either judgments of equal importance of Ajay Hasia 's case (supra) or U.P. Warehousing Corpn. v. Vijayanarayana, (supra), emphasized the requirement and importance of 'independence and integrity of employees' belonging to agency or instrumentality of the 'State', also and, therefore, it is not correct to say that the concept of' security of service tenure' originates as well as liquidates itself in the four corners of Article 311 of the Constitution only.

83. There is another equally important facet of this legal debate in the absence of Article 311 of the Constitution, would it be possible for the 'state' to remove a permanent civil servant even though superannuation age is fixed by the services Rules, before expiry of that age and, without undergoing the procedure of misconduct. If such a rule becomes permissible then, it would be negation of guarantee under Articles 14 and 16 of the Constitution, inasmuch as an employer can always 'hire' and 'fire' and, his action cannot be challenged as without 'reasons' the correctness or validity of 'reasons' cannot be put to 'Judicial review'.

84. The Division Bench of Bombay High Court in Manohar P. Kharkhar's case (supra) unfortunately went to the extent of holding that the employees of the statutory Corporation 'though permanent' are like 'temporary civil servants or probationer. It is not only difficult but, almost impossible to appreciate this analogy. The statutory Corporations having their origin in the statute and being instrumentalities of the 'State' under Article 12 and governed by the statutory Rules are not that handicapped so as to make its permanent employee as 'temporary'. It should not be forgotten that in Motiram Deka's case (supra) the Apex Court held that after fixation of the superannuation age by a Rule or law, no other rule permitting 'termination of services simpliciter', before reaching the age of retirement, can be permitted. It is obvious that in the case of Manohar P. Kharkhar 's of Bombay (supra) the various facets of Motiram Deka 's case (supra), P.R. Naidu v. Government of Andhra Pradesh (supra), U.P. Warehousing Corporation Vijay Narayan, (supra), and T.C Shivacharan Singh v. State of Mysore, (supra) were not brought to their Lordship's notice.

85. V.S. Deshpande, C.J., and Sharad Manohar J., in Manohar P. Kharkhar's case (supra.) were considering the validity of Regulation 48 of Air India Employees' Service Regulations. Removal of 1 Manohar P. Kharkhar, the petitioner in that case, from services on the ground of negligence, inefficiency and unsuitability and on the conclusion of the Chairman losing confidence was found to be correct, and termination was, therefore, upheld on merits.

86. The reasons given for rejecting the challenge to Article 14 of the Constitution is firstly that employer's onus is to prove the existence of good reasons to Court, if challenged by the employee and that is held to be adequate safeguard against the abuse of such power. It was then secondly assumed that no authority equated with 'State' under Article 12 of the Constitution would terminate the services of its employees without assigning any reason in an arbitrary manner. Thirdly, it was held that since they are workmen, the termination can be tested by the Tribunal and the authorities under the Industrial Disputes Act. Fourthly, it was observed that since the employees are appointed for enabling the Corporation to discharge and function efficiently, their termination would not be in vacuum and, since the Corporation is required to carry out their duties on 'business principles', the termination would only be made when acts and omissions of the employees concerned militate against such discharging of the functions and duties.

87. The reasons are, therefore, implied and, thus, it will have to withstand the review under Article 226 of the Constitution. Fifthly, it was observ ed that the discretionary power cannot be held to be discriminatory. Sixthly, it was held to be age old right of the master of hire and fire with certain limitations. Seventhly, the Court was influenced by the fact that this regulation is on the pattern of. "Model Standing Orders" and it has got its origin in the legislation evolution in this branch of law of "master and servant".

88. The above decision which is very well reasoned and contains a comprehensive discussion : of the various facets of the controversies including the application of Article 14 now requires a little close probe for appreciation in proper perspective of the new constitutional horizons. I would like to refer it as 'Makalu 's case-Manohar P. Kharkhar 's case (supra), as that would indicate the seriousness of the matter resulting in termination. 'Makalu' was an aircraft-'Boeing 707' intended for flight for a special VVIP and it was scheduled to have a prestigeous flight of the Prime Minister of India from 5th May, 1981 to 15th May, 1981. The petitioners in that case were having knowledge of it and a check-up disclosed that damage was caused to the cables after it had returned from Abu Dhabi to Bombay on 15th April, 1981 and it was reported to be a clear case of sabotage. The aircraft could have crashed during flights endangering the life of the Prime Minister and other passengers. The above grievance and serious nature of the finding finds place in para 3 of the Judgment and, that led to losing of confidence of the suitability of the petitioners in the Air India Corporation resulting in their termination by the orders dated the 29th April, 1981. Regulation 48 of the Air India Employees Service Regulations was in 'fire' and, amongst other grounds of challenge, Article 14 of the Constitution was also invoked.

89. The Court repelled the submissions of the petitioners counsels Shri Setalvad and Desai who placed reliance upon the decisions of the Supreme Court in L. Michael v. Johnson Pumps Ltd. 1975-I LLJ 262, Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, (supra); and Motiram Deka 's case (supra). It was argued that a permanent employee even of a corporation is entitled to remain in service till the age of retirement fixed under the regulations and, there is an irremovability from service by way of punishment without proof of misconduct under regulations.

90. This claim was controverted by Shri Nariman who distinguished Motiram Deka's case being based on Article 311 and relied upon the decisions in Shyamlal v. State of U.P. 1954-II L.L.J. 139; Parshottam Lal Dhingra v. Union of India 1958-I L.L.J. 544, State of Bombay v Saubhagchand Doshi and Ram Gopal v. State of M.P. 1970-HLLJ 367. The learned Judges felt impressed by the submissions of Shri Nariman and held in Makalu's case (supra) that Motiram Deka's decision (supra) was not applicable because the majority view is based on Article 311 and the Judgment of two Judges, Das Gupta and Subba Rao, JJ., cannot be treated as Judgment of the Court. The petitioners in that Makalu's case (supra) placed reliance on the decision of Air-hostesses case Writ Petitions Nos.3045 of 1980 with Nos.1107, 2458 and 1624-28 dated 28th August, 1981 (Reported) in (1981 Lab IC 1313 SC decided by three Judges of Supreme Court and another decision of Jyoti Pershad v. Union Territory of Delhi , State of Punjab v. Khan Chand , Pannalal Brijraj v. Union of India , Harishanker Bagla v. State of M.P. , Sri Ram Ram Narain Medhi v. State of Bombay and P.J. Irani v. State of Madras ; but they were held to be insufficient for striking down the relevant regulations. Similarly the ratio of decisions in Hari Chand Sarda v. Mizo District Council and State of Mysore v. S.R. Jayaram distinguished by the Court and the Court relied upon the decision in Commissioner of Sales Tax M.P. v. Radhakrishnan , R.R. Verma v. Union of India 1980-II L.L.J. 152, M. Chhagganlal v. Greater Bombay Municipality , Jagdish Miner v. Union of India 1964-I LLJ 418, Samsher Singh v. State of Punjab 1974-II L.L.J. 465, R.S. Sial v. State of UP. 1974-I L.L.J. 513, State of U.P. v. Ram Chandra 1977-I L.L.J. 200, Bombay Municipality v. P.S. Malvankar 1978-II L.L.J. 168, State of Maharashtra v. V.R. Saboji, 1979-II L.L.J. 393 and O.N.G.C. v. Dr. S. Iskander Ali 1980-II L.L.J. 155 and Workmen, Sudder Office v. The Management of Sudder Office 1971-II L.L.J. 620 and Air India Corporation v. Rebellow 1972-I L.L.J. 501 and other decisions for holding that Article 14 was not violated and that even the permanent employee can be removed by termination 'simpliciter' if the service rules so provided.

90-A. A deep probe and thoughtful consideration of the detailed reasons given by their Lordships of Bombay in Manohar P. Kharkhar's case, (supra) has shown that primarily, the Court has made distinction between the cases of employees who are governed by Article 311 of the Constitution and those who are not governed by it. This distinction is obvious in the constitutional scheme of our democratic republic and no exception can be taken to the distinction which is patent and which has been kept by the founding fathers.

91. Another important feature of the discussion is that right from Shyamlal cases (supra) their Lordships have taken notice of the fact that even in cases of misconduct, there can be termination simpliciter, if the rules so permit, although the distinction between the foundation and motive, has been kept in view by the Supreme Court. Their Lordships of Division Bench in Manohar P. Kharkhar's case (supra) further exercise on the question whether the 'termination simpliciter' is the background of misconduct can be called colourable exercise of powers and ultimately observed that Michael's and Gujarat Tube Steels cases (supra) no doubt strike a discordant note in this respect in as much as the termination of services on the mere ground of loss of confidence could not be sustained by the Supreme Court and were quashed treating it as colourable exercise of powers.

92. In my view, though the various decisions of the Supreme Court, the most of which have been referred to above, in one way or the other, have been noticed by Bombay and Karnataka High Courts for taking out two divergent views, one, Karnataka quashing the regulations providing the termination of services of permanent employee and Bombay, upholding the power of the employer in a corporation to terminate the services of a permanent employee, guidance provided in them is only indirect. In none of the cases, of the Supreme Court, Constitutional Bench or otherwise, a Corporation having industrial establishment have been held to have a right to terminate the services of a permanent employee having fixed service tenure in the service rules or regulations, by a notice 'simpliciter' and in none of the Apex Court's decision, this particular facet of Articles 14 and 16 about the security of service of a corporation's employee has been adjudicated directly. In my considered opinion, after a thorough study of the above decisions, I have come to the conclusion that the nearest case in which direct decision is deducible so far as the Apex Court is concerned is Motiram ,Deka 's case (supra) in which two Hon'ble Judges Das Gupta and Subba Rao, JJ., who had given a concurrent judgment that other four Judges have indirectly held in analogous rule of relevant railway establishment Code being, 148 and 149 as ultra vires of Article 14 of the Constitution on the principal ground that it gives un-canalised, unguided powers to termination of service of one employee and retained other one. The other four Judges in their concurring judgments have not directly expressed any opinion on this aspect of the case and, therefore, Karnataka was justified in respecting the ratio of Motiram Deka 's judgment (supra) as per the principle laid down by Das Gupta, J. and Subba Rao, JJ., and not contradicted or disagreed by the other four Judges giveing majority view.

93. Though it would mean repetition set in order to emphasize my above deduction, which would be the bedrock, and core of my finding about the validity of Clause 13 of the Standing Orders, I would like to reproduce below again, the relevant extracts of findings arrived at by Das Gupta and Subba Rao, JJ., precisely in this respect in 1964-II LLJ 467 at P.508:

(113) Applying the principle laid down in the above case to the present Rule, I find no scrutiny of the Rule that it does not lay down any principle or policy for guiding the exercise of discretion by the authority who will terminate the service in the matter of selection or classification. Arbitrary and uncontrolled power is left in the authority to select at its will any one against whom action will be taken. The Rule thus enables the authority concerned to discriminate between two railway servants to both of whom Rule 148(3) equally applied by taking action in one case and not taking it in the other. In the absence of any guiding principle in the exercise of the discretion by the authority the Rule has therefore to be struck down as contravening : the requirements of Article 14 of the Constitution.

(115) My conclusion therefore is that though the provision of Rule 148(3) in respect of certain non-pensionable railway servants that their services shall be liable to termination on notice for the period prescribed therein does not contravene Article 311(2) of the Constitution, it contravenes Article 14 of the Constitution and consequently is void.

(117) The other three appeals (C.A. Nos. 837-839 of 1963) challenge the decision of the Assam High Court in favour of three railway servants whose services had been terminated under Rule 149 of the Railway Code, that these terminations were invalid. Rule 149(3) is in practically the same terms as Rule 148(3) and provides for the termination of certain railway servants on notice on either side for the period prescribed. As however before November, 1957, non-pensionable service had been brought to an end, and option was given to non-pensionable servants either to opt for pensionable service or to continue under their previous terms and conditions of service. Rule 149(3) mentions permanent railway servants generally wtihout any reference to their being non-pensionable. The validity of this Rule was attacked on behalf of railway servants on the same ground as have been considered with regard to Rule 148(3). For the reasons already given when discussing Rule 148(3) I am of the opinion that Rule 149(3) does not contravene Article 311(2) of the Constitution but contravenes Article 14 of the Constitution. The terminations of service under Rule 149(3) of the Railway Code were therefore rightly held by the High Court to be invalid. I would accordingly dismiss these appeals with costs.

Subba Rao, J.

I agree that the impugned rules infringe both Article 14 and Article 311(2) of the Constitution and are, therefore, void. On Article 14, I have nothing more to say. But on the impact of the said rules on Article 311 of the Constitution I would prefer to give my own reasons." (as at p.498 of 1964-11 L.L.J. 467) The effect of the two rules is the same; the difference is only superficial, which lies more in clever drafting than in their content. Take for instance the following two rules; (i) the Government may terminate the services of a permanent Government servant at any time or after a specified period but before the normal superannuation age, by way of compulsory retirement; and (ii) the Government may terminate the services of a permanent civil servant by giving him 15 days' ntoice, Arbitrariness is writ large on both the rules; both the rules enable the Government to deprive a permanent civil servant of his office without enquiry. Both violate Article 311(2) of the Constitution. But must be bad or none at all.

94. Even the majority Judgment of six Judges have held that Rules 148(3) and 149(3) of the Indian Railway Establishment Code to be ultra vires but it will have to be conceded that that is based on yet another facet of Article 14 as, the crux of the reasons given by them is that these rules are for Railway employees and there are no such rules for other public servants. Das Gupta, J., relied upon the decision of P.L. Dhingra 's case (supra) in this respect.

95. I am not entering into an unending race of analysis dissecting and drawing deduction from each judgment of the Supreme Court, referred to in Bombay and Karnataka view. As already noticed by me earlier, they are, guidelines for different facets of controversies about Article 14 or 311 of the Constitution or principles of natural justice or, industrial jurisprudence. In my humble view, in these cases, this species of Article 14 was not examined, so far as the service regulation of an industrial corporation in the form of standing order under the Standing Orders Act provides power of termination 'simpliciter' of permanent employees by notice of one month pay or payment in lieu thereof without there being any rhyme or reason and in clear contravention and violation of the service tenure guaranteed by the relevant regulations of the corporation and further in spite of the provisions of Sections 25F, 25J, 25M and 25N of the Act read with Sections 25O and 25G of the Act applicable to them.

96. Neither Bombay case nor Karnataka case related to the industrial employees governed by the Corporation regulations having a fixed tenure of service in as much as the Bombay case was in respect of officers of Air India Corporation, who were Engineers and were performing other technical duties and the challenge in the Karnataka case (supra) was not to the Standing Order but to some regulations or rules which form service conditions, although it will have to be noticed that many of those employees may fall in the category of workmen under the Industrial Disputes Act, a point on which there is no discussion and debate in that case.

97. The Karnataka case (T.G. Srinivasa Mur-thy) (supra) only shows that dimensions of Article 16 of the Constitution have also been examined in addition to Article 14, and the deductions have been taken from Motiram Deka's case (supra).

98. Now coming back to Makalu's case (Manohar P. Kharkhar) (supra). Their Lordships have pressed into service the model standing order containing such provisions of 'hire' and 'fire' and while doing so, observed as under:

Under the age old law of master and servant, a servant could be removed on loss of confidence in him without anything more. The modern complex life makes it necessary to ensure security of the tenure to the servants whose contribution to the production and services is recognised to be as important as the capital and management. It is not without reason that even while modifying the law of master and servant and protecting, the servant by preventing his dismissal by way of punishment without enquiry and an opportunity to the delinquent to disprove the charge, the Legislature has not thought it proper to dispense with altogether the master's right of terminating the service after notice of a month or so. Such discharge without any finding of any misconduct enables the employee to turn a new page in his life and save the reputation of himself and the employer in suitable cases.

Thus even when the Industrial Employment (Standing Orders) Act, 1946, was enforced in the year 1946, the model Standing Orders introduced provisions therein both for dismissal by way of disciplinary action and termination of service by giving one month's notice or payment of one month's wages in lieu thereof. Such provisions in the model Standing Orders made in the said Act of 1946 merely recognised this age old right of the master of 'hire' and 'fire' with certain limitations. Regulations 42 to 44, on the one hand and Regulation 48, of the said Regulations on the other, are virtually on par with the provisions of the model Standing Orders. We have been earlier shown how the air transport service has also been included in the definition of the words ''Industrial Establishment" under the Industrial Disputes Act read with the Payment of Wages Act, at any rate, from 1965 onwards. Such provisions are based on the hypothesis that such termination may prove to be boon to the employer and employee in many cases and the question of any one mode being harsher than the other would not arise All this will go to show how the Provision of Regulation 48 is not an innovation but has its origin in the legislative evolution in this branch of law of master and servant. This will be one of the relevant factors to be borne in mind while considering its validity by reference to Article 14.

99. With highest and greatest respect to the learned Judges, it is surprising that, the model Standing Orders of 1946 which were framed when India was under the coloniel British Rulers and the Britishers wanted to exploit man power as well as resource of India for their own benefit, have been treated as ideal guidelines for guidelines in 1981 after the founding fathers framed the Constitution of a free democratic republic of India and even after the amendments of 1976 which introduced in the preamble declaration of India as socialist State with consequential amendments in directive principles by Article .43A providing for workers' participation in the management and in spite of there being direct mandate in directive principles under Articles 38, and 48 etc., for fair distribution of the resources and providing equality fraternity and opportunity to all the citizens, both in the preamble re-enforced by the directive principles and guaranteed by the various fundamental guarantees of Chapter IV in the form of Articles 14 and 16 of the Constitution of India. How all, these can be brushed aside, forgotten ahd erased from the judicial consideration and inspiration and guidance can be taken from the Standing Order of 1946 which provided the colonial old right of 'hire' and 'fire' in consonance with latin maxim durante beneplacito (during pleasure). It is true that the model Standing Order continues to have the provision originating from the British Rulers of 1946, analogous to Clause 13 of the Standing Orders which is under 'fire' in the present bunch of writ petitions. But, that only shows that what a poor homage and lack of attention and vigilance which, our various concerned people are showing to the preamble of the Constitution and more particularly, to Article 43A of the Constitution.

100. It was on account of the above realisation that the Supreme Court when the amendment and modification to the similar Standing Orders Clauses were challenged, repelled the challenge and observed what I have reproduced above and added emphasis, in para 76 of this judgment. When the modification in the Standing Order requiring the management to give the reasons in case of 'discharge simpliciter' was sought to be justified on the ground that there are no fetters in the Industrial Disputes Act and even the Industrial Legislations have so recognised such a right, the Apex Court in S.S. Railway Company v. Workers Union (supra) observed that if reasons for discharging an employee are furnished to the employee concerned, he not only has the satisfaction of knowing why his services are dispensed with but it becomes easy for him in appropriate cases to challenge the order on the ground that it is either not legal or proper which in the absence of knowledge of those reasons it may be difficult, if not impossible for him to do.

101. Their Lordships of the Supreme Court noticed that the concept of social justice has now been drawn on the constitutional horizons and the doctrine of 'hire' and 'fire' is now completely abrogated. In my considered opinion, the above ratio of the decision of S.S. Railway Company v. Workers Union (supra) should be enough to hold that inspiration or the guidelines which their Lordships of the Bombay High Court took from the 1946 model Standing Orders was washed off the shores of 'social justice' -- 'jurisprudence ocean' and the 42nd amendment has, by introduction of 'social State' in the preamble of our Constitution and 'workers participation' by the amendment in directive principles, acted as the last nail in the coffin of the laissez faire jurisprudence and durante bene placito (during pleasure) doctrine which has been termed as doctrine of 'hire' and 'fire' in Indin Industrial jurisprudence for the purposes of condemnation and bidding 'goodbye' only. How can we now the people of India who have given to ourselves the Constitution having the above socialist features uphold those doctrines in 1983? Not that their Lordships of Bombay High Court were unaware of the trends of Industrial jurisprudence because they have, themselves, observed that "it has become necessary to ensure the security of tenure to the services of the servants whose contribution to the production and services is recognised to be as important as the capital and management." But, they were taking legislative intent of 1946 Standing Orders Act as the legislative intent of today and for that responsibility lies more on the legislative wing because in spite of constitutional declarations and amendments, the model Standing Order giving right to 'hire' and 'fire' remains intact in precisely same words and phraseology which were enacted by the Government, which was owing the allegiance to the King Emperor of Britain and Union Jack of colonial rulers in contra-juxtaposition to the Sansad representating 68 crores of people of Free India and the tricolourflag of Free India of Mahatma Gandhi's concept.

102. Article 39 contains and provides a direction that there is a right to an adequate means to livelihood and, that the ownership and control of the material resources of the community are so distributed for the common good and, that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment and, that there is equal pay for equal work for both men and women. Article 39A 'provides for equal justice. Article 41 provides for right to work. Article 43 provides for living wages for workers and Article 43A ensures worker's participation in the management. All these Articles are to be construed and taken for guidelines and inspiration of legal interpretation in comparison to the legislative intention of 1946, model Standing Orders of pre-constitution era of dependence and slavery.

103. The discussion of their Lordships of the Bombay about the guidelines and criteria, principles, reasons, bridles to be found in preamble and other provisions of the Air India Corporation Act and its Regulations, would be too illusory so far as Clause 13 of the Standing Orders in the Corporation of Rajasthan is concerned. The Standing Orders contains no such provision. Even the Road Transport Corporations Act, 1950 also starts with preamble of an Act to provide a corporation and, regulation of Road Transport Regulations and in Chapter III, all that is required is that the Corporation should secure or promote the provision of an efficient, adequate, economical and properly coordinated system of road transport services in the State. It is difficult to spell from the scheme of the Central Road Transport Act and Guidelines or criteria where Clause 13 of the Standing Orders should be used. It is to be noted that so far as the relevant provision in Bombay case (Manohar P. Kharkhar) (supra) is concerned, Regulation 48 is couched in slightly different terms and the crucial debate was whether, without assigning the reasons it makes out arbitrary. Earlier, the learned single Bench of Bombay High Court, Sawant, J., declared it to be ultra vires on identical grounds to that Kar-nataka case (supra) (T.G. Srinivas Murthy) that there is no guidance as to when it should be resorted to and such an unbridled power in the hands of the authority cannot be sustained.

104. This judgment delivered by Sawant, J., in S. S. Muley 's case (supra) was reversed in Makalu 's case (supra, Manohar P. Kharkhar) on the ground that the existence of the relevant rules is sine qua non for exercising the powers and is not enough to invalidate. Their Lordships held that if such power is used arbitrarily, it would be struck down in judicial review. With due respect, when the provision empowers the authorities with unfettered discretion and arbitrary powers, it is difficult to ap- , preciate, how and on what touchstone, the use of the powers would be tested to be reasonable or unreasonable. In my considered opinion, there is no scope for speculation whether the power would be eroded or not, because it is implicit in it. It is not possible to take any guidance or guidelines for the reasons from the Standing Orders or the Regulations or the Corporation Act.

105. Sawant, J., in S.S. Mooley's case (supra) relied upon Pannalal Binjraj and Maneka Gandhi's ; cases (supra) and then held that in the absence of guidelines 'Regulation 48 cannot be sustained. In Makalu's case (supra) this review was reversed and with respect on the same fallacious reasons and stock arguments that if the relevant provisions provide no guidelines and if it cannot be said that there are none and, then at least the remedy under the scheme of the Act provides 'one'. I have therefore, no hesitation in holding that Clause 13 of the Standing Orders is violative of Article 14 of the Constitution.

106. Equally fallacious is the reason given by their Lordships in Makalu 's case (supra, Manohar P. Kharkhar) that the employees of the Corporation are to be treated as temporary in contrast to the Government employees. Standing Orders of the Corporation, itself, provide permanent employee, retention of lien, procedure tor confirmation, period of probation, etc., and further Rajasthan State Road Transport Corporation Employees Service Regulations, 1965 which have been made under Section 45 of the Road Transport Corporations Act, 1950 expressly provide the categories of posts and services and make distinction between the employees on the permanent post in comparison to the work charged employees and, further guarantee their lien. It is significant that under Regulation 17, a permanent employee's lien cannot be terminated even with his consent. This Regulation of 1965 further provides for various other service conditions and there are exhaustive provisions in it including Regulation 57 which in terms provides as under:

57 (a). The date of compulsory retirement of an employee other than an employee belonging to inferior service shall be the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the competent authority in the interest of service of the Corporation and for reasons to be recorded in writing, but shall not be retained after the age of 60 years in any case. A Corporation servant under suspension shall also retire on reaching the date of compulsory retirement. The competent authority shall, however, continue to have jurisdiction on such employee to enquire into the changes against him and pass final order.

(a) (i) Notwithstanding anything contained in this regulation, the Corporation may, if it is of the opinion that it is in the Corporation's interest to do so, have the absolute right to retire any Corporation employee after he has attained the age of 50 years or on the date he completes 25 years service whichever is earlier, or on any date thereafter, by giving him 3 months' notice in writing or three months' pay and allowances in lieu thereof.

(ii) Notwithstanding anything contained hereinbefore, a Corporation employee may after giving three months previous notice in writing, retire from the service on the date on which he completes 25 years service or on the date he attains the age of 50 years or on any other date thereafter.

107. Regulation 57 clearly shows that upto 55 years age of employee he is to be retained as of right and after that he can further be retained up to 60 years. Clause (a) (i) of Regulation 57 mentions an exception that in Corporation interest, one can be retired on completing 25 years service or 50 years of age. It is significant that even for retiring on completion of 25 years service or attaining the age of 50 years, the Corporation is required to give a finding that it is in the "Corporation interest" to retire such a person earlier to the superannuation age of 55 years but under Clause 13 of the Standing Orders, no such requirement has been made sine qua non and therefore, one wonders, how the scheme "of the Act and regulations can provide guidelines for exercising the powers under Clause 13 of the Standing Orders.

108. Such being the scheme of the Regulations and Standing Orders of the Rajasthan Road Transport Corporation, I am unable to apply the principles of Makalu's case (supra, Manokhar P. Kharkhar) in which Regulation 48 of the Air India Corporation Employees Service Regulations have been upheld on the ground that the Air India Corporation's employees though permanent 'do facto are temporary 'de jure'. The analogy given by the learned Judges of the Bombay High Court is neither intelligible nor can be appreciated and hence cannot be accepted, with utmost respect to them.

109. In Gujarat, a Division Bench, in the case of Amarsingh Setansingh v. Guj, S.R.T. Corporation (supra) examined and observed that, it cannot be gainsaid that Regulation 61 investing the Corporation or the Competent Authority with the power of termination of services of a permanent employee ' is in the nature of discretionary power. Discretionary power, however, is not necessarily discriminatory. "It is equally true that the first prerequisite of the rule of law is the absence of arbitrary power. The discretion invested in Executive Authority must be confined within the clearly defined limits. It is no ground to quash it that it is capable of being abused. On the contrary, abuse of power will not be lightly assumed. If a discretionary power is used for oblique or ulterior purpose in a given case, the arms of the Court are strong enough to overpower it and strike down the said action. Abuse of such discretionary power is not be easily assumed particularly when discretion is vested in responsible and high executive authority which is always subject to judicial scrutiny and review."

110. Their Lordships of Gujarat in Amarsingh 's case (supra) then observed that, "the power of termination, without notice, can be exercised only in case of casual or part time employees, or where an employee is convicted by a Criminal Court or has been declared insolvent by a competent Court. It is only in respect of those employees against whom no disciplinary proceedings are prima facie competent for acts of misconduct or minor lapses and delinquencies which may invite penalty, or those employees whose services are not sought to be terminated on the ground of conviction or insolvency that the power of termination under Regulation 61 can be exercised." It was further observed that, "in this power of termination, there is an inherent assumption of the duty to exercise it bonafide which means with due care and caution, and if the policy as to when the services can be terminated simpliciter or by way of penalty or on some specified grounds is discernible in the enactment, a challenge under Article 14 on the ground of infringement of equality clause is not open against such an enactment."

111. Motiram Deka 's case (supra) was referred to before the learned Judges of Gujarat but after mentioning the observations of Das Gupta, J., the learned Judges ultimately held as under:

We do not think, therefore, that the power conferred by Regulation 61 can be attacked as an arbitrary and naked power without any classification or guidelines for exercise of this power.

...Apart from this larger, controversy, we do not appreciate how the decision of Das Gupta, J., in Motiram Deka's case (supra) that the power contained in Rule 148(3) and Rule 149(3) of the Railway Establishment Code is arbitrary and uncanalised power can be of any assistance to the cause of the appellants before us since the question of a particular enactment being violative of Article 14 would depend on its particular set up and context.

112. In Gujarat case (supra) the relevant Regulations 61 and 80 were taken together and then it was held that since different situations are contemplated under different clauses, it cannot be said that it confers arbitrary and uncanalized powers. Whatever I have said for Bombay equally applies to Gujarat view and I would avoid repetition

113. In my considered opinion, the decision in Amarsingh Setansingh v. Gujarat S.R. T. Corporation (supra) of Gujarat suffers from the same fallacy as the Bombay one and it is obvious that latest concept of Articles 14 and 16 of the Constitution has not been properly appreciated and narrow construction has been put on them.

114. Dr. L.M. Singhvi further referred to an unreported judgment of Madhya Pradesh High Court in S.N. Trivedi \.M.P. State Road Transport Corporation (1980 MPLJ 146) by Division Bench consisting of the Chief Justice Shri G.P. Singh and U.N. Bachawat, J.). In this case, the Court confined to construction of regulations and on the construction of Regulations 63 and 65 it held that it contains powers of termination 'simpliciter'. There is no discussion in it regarding the challenge on the basis of Article 14. The entire discussion further centres round the question, whether the 'termination simpliciter' can be permitted and, whether it brings stigma and when it can be said that the termination is based on misconduct. That facets of the controversy would not clinch the issue of Article 14 and, therefore, S.N. Trivedi's decision of Madhya Pradesh has got no relevancy.

115. As a result of the above discussion, I have got no hesitation in holding that Article 14 read with Article 16 of the Constitution provides a protective'umbrella to permanent employees of the Corporation and, they cannot be removed by 'termination simpliciter' without attaining the age of superannuation under Regulation 57 or earlier in the Corporation interest on attaining the age of 50 years or after putting the 25 years of service or on the ground of misconduct on a proper inquiry after getting opportunity of defending.

116. There is additional reason for the above view which, I have taken and that is the industrial jurisprudence concept which is now holding the field in India. It is admitted case that the petitioners are workmen in Industry and the provisions of the Industrial Disputes Act apply to them. Section 25J of the Act in terms provides that the provision of this Act and Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including Standing Orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946).

117. In fact, in view of Section 25J of the Act the provisions of Clause 13 of the Standing Orders of the Corporation so far as it relates to the workmen whc are covered by this Chapter becomes dead provision and, Clause 13 of the Standing Orders cannot be applied for achieving the object of 'hire' and 'fire . Even the respondent's counsel Dr. Singhvi could not contest this obvious and patent legal position that Section 25J of the Act would prevail against Clause 13 of the Standing Orders and if that is so, it is obvious that this Chapter V-A of the Act applies to the present petitioners and, therefore, for all, intents and purposes even if Clause 13 of the Standing Orders is held to be valid, then also, the validity of termination order would depend upon the compliance of various provisions of Chapter V-A. 25F, Industrial Disputes Act:

118. The relevant provisions of this Chapter V-A of the Act are contained in Sections 25F, 25G, 25J, 25N, so far as the present cases are concerned. Non-compliance of any of them would make termination illegal.

119. Under Section 25F of the Act, if employee is to be retrenched, he is required to be paid one month's notice pay in advance or one month's notice along with compensation in Clause (b) which should be equivalent to 15 days average pay for every completed year of continuous service. Again, under Section 25G, the principle of 'last come first go' applies. Sections 25F and 25G of the Act read as under:

25F. Conditions precedent to retrenchment of workmen: No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until--

(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice:

Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate Government (or such authority as may be specified by the appropriate Government by notification in the Official Gazette) "25G. Procedure for retrenchment-- Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shasi ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.

120. Since according to the latest authoritative pronouncement of the Apex Court in State Bank of India v. N.S. Money 1976-I L.L.J. 478; Santosh Gupta v. State Bank of Patiala 1980-II L.L.J. 727; L, Robert D' Sauza v. The Executive Engineer, Southern Railway 1982-I L.L.J. 330, the ratio decidendi of which I have discussed in details in answering the reference in the case of Bank of Rajasthan v. Rajasthan Bank Employees (D.B. Civ. Spl. App, No. 223/81 decided on 13th May, 1983) element of surplusage is not necessary, the earlier decision holding so cannot be followed.

It is well established and settled law that all types of removal or termination of Industrial employees except on the ground of punishment or the exeptions which are contained in the definition of 'retrenchment' under Section 2(oo) of the Act are treated as 'retrenchment' and the element of insistence of requirement of surplusage is not necessary. The present termination of all the petitioners would also be treated as 'retrenchment' for the purpose of Industrial Disputes Act. X legal and logical corollory of that would be that it would attract the provisions of Chapter V-A and since the industrial undertaking fulfils the conditions mentioned in this Chapter, the validity of the termination orders will have to be scrutinised on the touchstone of the requirement of Sections 25G and 25F of the Act, in particular.

25N, Industrial Disputes Act:

121. Though, some of the petitioners' counsel also submitted that the provisions of Section 25N of the Act have been contravened in as much as the previous permission of the State Government or the authority concerned was not taken for removal which tantamounts to 'retrenchment of the petitioners but in view of the recent and latest decision of this Court in J.K. Synthetics v. Union of India and Rajasthan Trade Union Kendra (Writ Petition No. 409/83 with Writ No. 213/83, decided on October 18, 1983 (Reported in 1984 Lab IC NOC 40) by Full Bench consisting of G.M. Lodha, Dr. K.S. Sidhu and G.K. Sharma, JJ.) since the relevant provisions of Section 25N have been held to be ultra vires and invalid, it would not be necessary now to discuss that Section 25N of the Act has been contravened or not.

Non-Compliance of 25F:

122. Now the pertinent question which requires to be considered is whether Section 25F of the Act has been contravened, undoubtedly in cases where Section 25F has been contravened, the order of termination would become per se illegal. 1 would deal with individual cases in the operative portion of my judgment just before formulating the relief part of it. All that can be said is that clear contravention, flagrant disregard and patent violation of Section 25F of the Act make an order of termination which comes within the definition of 'retrenchment' illegal and this principle is now settled by a series of decisions of the Apex Court wheh may be mentioned hereunder:

(1) State Bank of India v. N. Sunderamoney, (supra);

(2) Santosh Gupta v. State Bank of Patiala, (supra);

(3) L, Robert D' Sauza v. Ex. Eng., S. Railway, (supra);

(4) Bombam Singh v. Vice Chancellor (1979) 1 Serv LR 429;

(5) U.P. Warehousing Corporation v. Vijay Narain (supra);

(6) Jai Singhani v. Union of India ;

(7) Ram Krishna Dalmia v. Tendulkar, J. (supra).

Section 25G. Industrial Disputes Act:

123. This brings the guestion of requirement of Section 25G in the fore front. As is well known, Section 25G of the Act gives statutory recognition to the well-settled principles in the industrial jurisprudence of 'last come first go' and 'first come last go' in each category of workmen in the establishment. This requirement though mandatory in nature has got two exceptions, (i) agreement to the contrary, (ii) this principle should be followed ordinarily. The last qualifying condition for resorting to the above exceptions is that "the reasons must be recorded for this departure".

124. A bare reading of this Section 25G of this Chapter V-A would show that it postulates the insistence for following the principle of 'last come first go' and 'first come last go' but, though, couched in the form of a mandate, it has got inherent elasticity of being departed and the word, 'ordinarily' waters down the mandate.

125. The rules have been framed for carrying out this Section 25G of the Act of this Chapter V-A, and Rule 77 of the Industrial Disputes (Central) Rules, 1957 requires that the authority concerned while making retrenchment in order to ensure that the principle laid down in 25-G of the Act is followed, would first prepare a list of the employees of that category in order of seniority and notify the same. This requirement has been insisted upon because that would show that the industrial workman who is being retrenched by following the principle of 'first come last go' and 'last come first go' has been applied or not.

126. Admittedly, as per the frank and fair admission made by Shri N.L. Jain, the learned Advocate General appearing for the Corporation, no such list was prepared and notified in any case, and all the petitioners have been retrenched by termination 'simpliciter' in violation of principle of 'first come last go' and 'last come first go'. To make concessions explicit, it has been admitted that the juniors of the petitioners in the various categories have been retained in services and the petitioners have been removed because they have lost confidence of the employers.

127. There is thus no doubt that while retaining the juniors of the same category since the petitioners who are admittedly senior have been retrenched prima facie unless the respondents proved the exceptions articulated above, there has been violation and contravention of Section 25G in all these cases.

128. It was precisely on the above deduction that the then Chief Justice of this Court, Shri K.D. Sharma, allowed the writ petitions similarly of the corporation's employees at Jodhpur in the decision of Mohanlal v. Rajasthan State Road Transport Corporation (supra).

129. Now it is to be seen whether the respondents have been able to show that the petitioner's cases can come in any of the exceptions contained in Section 25G of the Act.

130. An analysis of Section 25G of the Act would show that where the employee and employer agree to abide by such procedure in this establishment which, in terms, is contrary to Section 25G of the Act then that agreement would prevail and the statutory procedure would not apply because Section 25G in terms creates exceptions for such agreement. The reasons are not far to seek as, in peculiar situation of the industry for industrial peace and broader protection, the employer and employee may carve out some scheme of agreement. Such an agreement would then become conduct of service. Even by Standing Orders, Section 25G of the Act can be deviated provided the Standing Orders expressly or by necessary intendment say so.

131. In the instant cases, no agreement has been pleaded or shown by the respondents contrary to Section 25G of the Act between the employer and employees by which the requirement of following the principle 'last come first go' and 'first come last go' can be dispensed with. Again, so far as the Standing Orders are concerned, there is no clause in the Standing Orders that the principle of 'last come first go' would not apply in peculiar or particular categories of the workmen or on particular grounds, even otherwise.

132. The question which then emerges for consideration is whether Clause 13 of the Standing Orders can be treated as agreement as contemplated by Section 25G of the Act. I am of the opinion that certified Standing Orders are certainly binding on all the workmen unless they are modified which can be done after every six months. Yet, unless either by explicit words or by necessary intendment it shows that there was an agreement for departure from principle of 'last come first go', it would not be treated as an exception to Section 25G of the Act.

133. Clause 13 of the Standing Orders, reproduced above, in the earlier part of my judgment, nowhere contemplates cases of 'retrenchment' and there is no remotest indication that when 'retrenchment' would be done, the principle of 'last come first go' would not be applied in any particular category of cases.

134. It is further to be noticed that Section 25G of the Act was introduced by the amendment in the Act in the year 1953 but the Model Standing Order Clause 13 was introduced in the year 1946 and thus there could be no intendment at that time for making departure from Section 25G. As I have discussed in earlier part of this judgment, Clause 13 of the Standing Orders which was placed in the model Standing Orders was a product of the British Rule legislation functioning and, the concept of 'last come first go' was not introduced in the industrial jurisprudence of India at that time. The industrial jurisprudence has been given new dimensions by Gajendragadkar C.J., and Iyer J., and this concept had not seen the light of the day in those days of dependence i.e., before independence and framing of the Constitution. Thus, Clause 13 of the Standing Orders cannot be treated as a defence umbrella for departure from normal principle of Section 25G of the Act. The word, 'ordinarily' used in this section, certainly shows that for extraordinary reasons, a departure can be made from the principle of 'last come first go'. The legislature in order to make sure that this word, "ordinarily" should not be used rather misused and abused by the employer as "Alladin's lamp" for giving re-birth to abrogated doctrine of 'hire' and 'fire' clarified the departure concept by another mandate that such departure can be made 'for the reasons to be recorded'. Obviously, in none of the cases before me the Corporation applied its mind to Section 25G of the Act because the bureaucracy of the Corporation was having misconception that on account of the "Democles sword" of Clause 13 of the Standing Orders, it would not be necessary for them to comply with Section 25G of the Act. That is why a list of the employees according to seniority was not notified under Rule 77 of the Industrial Disputes (Central) Rules before passing the orders of the termination or removal. Another reason which I can visualise for such a departure is that though, de jure as per the pronouncement of the Apex Court, the petitioner's cases would be treated as 'retrenchment' but as per the earlier view of insistence of surplusage, since the present removals were made on account of alleged loss of confidence and not surplusage, the bureaucracy was under the impression or moved under the impression that these are not cases of retrenchment and, therefore, Section 25G of the Act was not applied.

135. Be that as it may, a perusal of the orders produced before this Court by the petitioners in respect of the termination would show that no reasons have been 'recorded' for departure from Section 25G and, no procedure was adopted by the Corporation even to apply its mind to Section 25G of the Act.

136. It is true that in a few cases, the words 'corporation interest' has been mentioned but using of a catch word or stock phrase like, 'Corporation interest' or, 'public interest' or, 'economic interest' or, 'administrative interest' or, 'administrative exigencies' can hardly be a substitute for the requirement of 'reasons to be recorded'. It is to be noticed that Section 25G of the Act has not made an exception in 'public interest' or, 'interest of the industry' but, it requires, 'reasons to be recorded' so that, those reasons can be scrutinised in judicial review by the competent Courts or Tribunals.

137. The mere use of the words 'in the Corporation interest' in few cases cannot relieve the Corporation from the duty of 'recording the reasons' and since no reasons have been recorded in any order of termination for departing from Section 25G of the Act, it will have to be accepted that all the impugned orders in the present cases are in violation of provisions of Section 25G of the Industrial Disputes Act, even though, I am inclined to accept the respondent's contention that Section 25G of the Act is not in absolute term and provides a departure in some cases which can be covered by the two categories either of an 'agreement' or, due to the 'extra-ordinary reasons'. If the reasons would have been recorded, then probably this Court would not have entered into correctness or propriciy of them, and left it to the Industrial Tribunal or the Labour Court to adjudicate their correctness or validity in a proper reference, if any. Since 'no reasons have been recorded' at all, therefore, the orders of termination cannot be held to be valid.

138. The requirement and insistance of 'recording reasons' for the departure by the employer from this golden rule has been engrafted in this provision by the legislation with a view to make the order a 'speaking order', so that the industrial tribunals may be able to look into the reasons to determine whether the departure is justified by sound, sufficient and valid reasons. It is true that for the valid departure from the industrial rule of 'retrenchment' envisaged by this Section 25G, the management can take into account the various considerations which can be declared legal in respect of efficient, justness trustness and confidence which they enjoy or betray. It is equally true that inefficient, unreliable, habitual irregular employees betraying confidence may be picked up for retrenchment' while detaining efficient, honest, reliable junior employees as held in Swadesamitran Ltd. v. Their Workmen 1960-I L.L.J. 504; Digvijaya Woollen Mills v. G.S. Vyas 1956-II L.L.J. 253. Gajendragadkar J., as he then was, gave authenticity to this legal view in Swadesamitran Ltd. v. Their Workmen (supra). The departure from this provision was held to be unfair labour practice by Gajendragadkar J., as he then was, in Swadesamitran's case and by Subba Rao J., in J.K. Iron & Steel Co. v. Its Workmen 1960-II L.L.J. 64,

139. As already observed, since no such reasons have been given in the orders under challenge and as is obvious from the history of the order of termination the Corporation always was under the impression that it is not necessary to do so because of the Clause 13 of the Standing Orders, therefore, the impugned orders cannot be allowed to stand as valid.

140. Mohanlal 's decision of this Court (supra); lays down the correct law in as much as it holds that Section 25G of the Act would apply in the cases of Corporation employees and departure from Section 25G of the Act would make the order bad in law. I must, however, hasten to add that the various facets of; exceptions carved out in Section 25G of the Act were not brought to their Lordship's notice and, therefore, neither they could be discussed nor adjudicated upon. In my considered opinion, Mohanlal's case (supra) cannot be taken as the last; word as a comprehensive exposition of law in respect of Section 25G of the Act. As held above, the two exceptions water down the mandate and always provide a discretion to the employer in the matter of application of principle, 'last come first go' on bona fide valid reasons, extracted above, which should be recorded in the order of termination. I would now like to sum up the replies to the various questions posed in reference a little later after discussion on the last point and, thereafter enter into the arena of particular cases which call for decision here and to what extent the relief can be given by this Court in each case.

Effect of Section 10 of I.D. Act:

141. Before I proceed further to answer precisely the various questions posed in the reference, it would be necessary to deal with an important controversy about the application of Article 226 of the Constitution in industrial jurisprudence and, further whether this Court should not interfere in cases where reference can be made under Section 10 of the In-" dustrial Disputes Act.

142. I must preface my discussion and judgement with the first and foremost finding that so far as the present cases are concerned, since the validity of Standing Orders' Clause 13 has been challenged as being violative of Articles 14 and 16 of the Constitution the Labour Court or the Industrial Tribunal cannot adjudicate the constitutional validity and, therefore, irrespective of the answer to the questions posed above, these writ petitions deserve to be entertained for deciding the validity of Clause 13, at least.

143. Now coming to the second but much more important controversy about the entertainment of writ petitions even when a reference should be made under Section 10 of the Industrial Disputes Act is concerned, I must confess at the very outset that though, at least a dozen decisions of this Court both of single Bench and Division Bench have repeatedly repelled the objection regarding non-maintainability of the writ petitions under Article 226 of the Constitution in such cases and catena of those cases includes my own, yet, I am inclined to reconsider the objection in much more minute details, again. It may be noticed at the very outset that this Court except the solitary dissent of decision in Mahesh Chandra v. State of Rajasthan 1974 WLN 564, per Gupta J., has repeatedly held that the doors of Article 226 of the Constitution cannot be closed on account of availability of the remedy under Section 10 of the Act. This view has been taken by a Division Bench of this Court in Nagaur Central Co-operative Bank Ltd. v. Kesaram 1979 WLN 408; Per C.M. Lodha C.J., & M.C. Jain J., and another Division Bench in Tejbhan Singh v. State of Rajasthan Civil Special Appeal No. 234 of 1980 decided on April 27, 1983, Per N.M. Kasliwal & S.N. Bhargava JJ. In addition to these, the decisions in Om Prakash v. Registrar, Co-op. Socy. (1980) 40 Fac LR 38 (Raj.); Per S.C. Agrawal J., Kanhaiyalal v. Union of India (1982) 1 Serv LJ p.42 (Raj.); Per M.C. Jain i.,S.N. Singh v. Raj Atomic Power Project, 1982 Rajasthan L.R. 701, Per G.M. Lodha J., Kishan Kumar v. Union of India 1982 Rajasthan LR 848; Per S.K. Mal Lodha J., have reiterated time and again the same view. This is further supported by the important decisions in S.K. Chatter-jee v. Dist. S.T. Engineer 1970-II L.L.J. 179; Div. Supt. S. Rly. Madurai v. Sasidiharan 1978 Lab IC 1042 (Ker.); Mahabir v. D.K. Mittal 1980 Lab IC 119 (Pat); Japan Kumar v. G.M. Calcutta Telephones (1981) 1 Serv LR 292; John Fernandez v. Ex. Eng. P.H. Divn. Alleppey 1979 Lab IC 255 (Ker); Malkhan Singh v. Union of India 1981-II L.L.J. 174, Asst. Personnel Officer, S. Rly. v. K. T. Antony 1978-II L.L.J. 254 It would be pertinent to mention here that Tej Bhansingh's decision of this Court (supra) specially considered this matter because the learned single Bench (Per Sidhu J.,) was of the view that no writ petition can be entertained in view of Section 10 of the Industrial Disputes Act in those matters which may be referred to the Labour Court or the Industrial Tribunal under the Act and, since this view was taken in face of various judgements of this Court the question was discussed in detail by their Lordships of this Court in Division bench.

144. Even in the teeth of such a cart load of decisions of this Court and other High Courts including Full Bench cases and Division Bench Cases, both Dr. L.M. Singhvi and Shri N.L. Jain, the learned Advocate General appealed to this Court to re-consider them as they failed to lay down the correct law. Our attention was drawn to the decision of the Supreme Court in Premier Automobiles v. K.S. Wadke 1975-II L.L.J. 445; and particularly to para 23 wherein their Lordships of the Supreme Court articulated and summed up the following principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute:

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the Industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act Chapter V A then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.

(Emphasis added)

145. It was argued by Dr. Singhvi that since all the questions regarding non-compliance of Sections 25F, 25G, 25-N of the Act, as the case may be, is canvassed in the present bunch of cases should be left for adjudication by Industrial Tribunal or the Labour Court or in proper reference. Undoubtedly in para 23 summing up clearly shows that if the right sought to be enforced is created under the Industrial Disputes Act such as Chapter VA then the remedy is under that Act only.

146. Their Lordships of the Supreme Court then considered the various decisions which I would like to mention here also. In the case of Krishnan v. East India Distilleries and Sugar Factories 1964-I L.L.J. 217, the learned single Judge of the Madras High Court has held that the jurisdiction of the Civil Court is ousted impliedly to try a case which could from subject-matter of an industrial dispute collectively between the workmen and their employer. Alagiriswami J., as a Judge of the Madras High Court, in Madura Mills Co. Ltd. v. Guruvammal 1967-II L.L.J. 397 has pointed out that the Act creates a special machinery under Section 33C(2) to enforce specially created rights. The parties could not, therefore, approach the ordinary civil Court. Their Lordships of the Supreme Court in Premier Automobiles' case (supra) affirmed the aforesaid two decisions of the Madras High Court. A single Judge of the Mysore High Court took the same view in the case of Nippani Electricity Company Ltd. v. Bhimrao LaxmaN 1969 I L.L J. 268, and a Bench of the Bombay High Court in the Pigment Lakes & Chemical Mfg. Co. v. Sitaram Kashiram Konde; 1970 Lab IC 115, held that the jurisdiction of the civil Court to deal with matters mentioned in Chapter VA read with Schedules 2 to 4 to the Act is impliedly barred. Similar opinion was expressed by a learned single Judge of the Kerala High Court' in the case of Nanoo Asan Madhavan v. State of Kerala 1970-I L.L.J. 292. The ratio of the case in so far as it goes against the principles enunciated by their Lordsnips of the Supreme Court is not correct, as held by them. Their Lordships of the Apex Court approved what has been said by a Bench of the Calcutta High Court in the case of Austin Distributors v. Nil Kumar Das, 1970 Lab IC 323 (Cal) that a suit for recovery of damages for wrongful dismissal on the grounds which are clearly entertainable in civil Court, would lie in that Court even though a special remedy is provided in the Act in respect of that matter. It was further observed that this would be so on the footing that the dismissal was in violation of the contract of service recognized under the general law. It has been also held that more or less to the same effect is the view taken by a learned single Judge of the Mysore High Court in the case of Syndicate Bank v. Vinsent Robert Lobo, 1971 Lab IC 1055. It is not necessary to refer to some unreported decisions of the Bombay High Court taking one view or the other.

147. The crucial question which now emerges for consideration is whether the ratio decidendi of Premier Automobiles' case (supra) applies to writs and, whether the Civil Court contemplated in Section 33C includes the High Court considering writ petition under Article 226.

148. If the distinction can be drawn between the Civil Court considering a civil suit or an appeal or revision arising from Section 9, CPC and the High Court considering a writ petition under Article 226 then the ratio decidendi of Premier Automobiles' case (supra) would not apply, but if that distinction cannot be drawn then, there is no alternative but to accept, with due respect, the decision of the Premier Automobiles' case (supra) in view of Article 141 of the Constitution of India.

149. Dr. Sidhu J., while deciding Tejbhansing's case (supra); discussed, in detail, the impact of amendment in Industrial Disputes Act by insertion 0f Section 11A of the Act. The relevant observations read as under:

Remedy under Section 11A can only be obtained by raising an industrial dispute and getting it referred by the appropriate Govt. to an Industrial Tribunal. for adjudication. The employer has, under certain circumstances, a right to adduce evidence before the Tribunal in justification of discharge or dismissal. The words 'discharge or dismissal' occurring in Section 11A are comprehensive enough to include retrenchment. Powers of Tribunal under Article are much wider than the powers of civil Court while adjudicating a dispute which may be an industrial dispute. Industrial adjudication does not mean adjudication according to strict law of master and servants.

150. However, as pointed above, this decision of S.B. was reversed by the Division Bench (Per N.M. Kasliwal J., and S.N. BhargavaJ.). The implication of judgment and the ratio decidendi of the case State of Bombay v. Hospital Mazdoor Sabha , were not correctly appreciated by the learned single Judge as per the view of the Division Bench.

151. Their Lordships of the Division Bench placed reliance upon the decisions of Patna High Court in Mahabir Prasad v. D.K. Mittal (supra) and earlier that of this Court in Nagaur Central Cooperative Bank v. Kesaram (supra) and held that the view taken by the learned single Judge (Per Dr. Siddhu J.) is contrary to the two Division Bench cases of this Court, i.e., Nagaur Central Cooperative Bank (supra) and Union of India v. Soloman Smith (D.B. Civil Special Appeal No. 285 of 1980 decided on November 21, 1980).

152. In Nagaur Co-operative Bank's case (supra) their Lordships expressly held as under:

It is well known fact that it is up to the appropriate Government to refer or not to refer a dispute for adjudication to the Industrial Court. The observations made in Premier Automobiles Ltd, 's case (supra) by the Hon'ble Supreme Court were made in a case which emanated out of a suit and not out of a writ petition. The scope of writ petition is altogether different than that of a suit".

"It would not be fair to dismiss the present writ petition in special appeal on the ground of alternative remedy more especially when it has been heard on merits by the learned single Judge and he passed appropriate orders thereon. Reference in this connection may be made to . The rule of exhaustion of statutory remedies before a writ is granted, is a rule of self-imposed limitation, a rule of policy and discretion, rather than a rule of law and this Court can issue a writ notwithstanding the fact that the statutory remedies have not been exhausted, if the facts of the case so demand.

153. Krishna Iyer J., in Rohtas Industries Ltd. 's case 1976-I L.L.J. 274 observed as follows with regard to the power of High Court under Article 226 of the Constitution of India.

The expensive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual and be available for any (other) purpose -- even one for which another remedy may exist. The Amendment to Article 226 in 1963 inserting Article 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person'. The Supreme Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those whole some inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights.

154. As would be seen, this Court in Kishan Kumar v. Union of India (supra), Soloman Smith's case (supra) and Tejbhan Singh's case (supra) and a number of other decisions, referred to above, repeatedly observed that, since the making of a reference depends upon the decision of the Government under Section 10 of the Act and is not of his right, the remedy of getting a reference made or making effort for it cannot be termed as an appropriate efficacious, speedy, alternative remedy.

155. It may be noticed that Dr. Sidhu's judgment was consistent and precisely similar to Justice Gupta's judgment in Moinuddin v. Union of India, 1981 Lab IC 697. In this case, Gupta J., placed reliance on the decision of Premier Automobiles' case (supra). Even then Gupta J., in Moinuddin's case (supra) after holding that the alternative remedy was available and the writ cannot be filed, in fact, decided the writ petition on merits. The Division Bench in Tejbhan Singh's case (supra) held as under:

The view taken by Gupta J., is not correct as already discussed by us above. Thus there is a catena of decisions of this Court taking the view that alternative remedy under Section 10 of the Industrial Disputes Act is no bar to the maintainability of writ petition under Article 226 of the Constitution where the order of retrenchment is clearly in violation of Section 25F of the Act.

156. In respect of Dr. Sidhu, J.'s view that on account of addition of Section 11A, the relief of reinstatement cannot be granted and it must be left to the adjudicatory machinery provided by the Act, the Division Bench while reversing it observed as under:

The award of back wages is a question of relief. In case there is undisputed material on record, the Court can decide this question also in favour of either party. However, if the facts of these questions remain disputed for which some evidence is necessary, the Court may refuse to grant relief of back wages on the ground of disputed questions of facts. But this cannot mean that the writ petition itself may be held not maintainable even though the order of retrenchment may be clearly invalid or inoperative being in violation of mandatory provisions of the Act. Thus in our view, learned single Judge fell in error in holding that if the workman seeks reinstatement with back wages, he must take recourse to the ad-judicatory machinery provided by the Act for the creation and subsequent enforcement of such a right by the authorities appointed under the Act. In our view, the rule of exhaustion of statutory remedies before a writ is granted, is a rule of self imposed limitation, a rule of policy and discretion, rather than a rule of law and this Court can issue a writ notwithstanding the fact that the statutory remedies have not been exhausted, if the facts of the case so demand.

(Emphasis supplied)

157. The Division Bench in Tejbhan Singh's case (supra) then putting the following rider observed as follows:

The Court can certainly in a given case throw out the writ petition where there are disputed questions of fact which cannot be properly determined in the exercise of the writ jurisdiction and which can be suitably determined, only by labour or Industrial Courts. We find support in our view in Hurdayal v. Union of India, New Delhi 1976 Lab IC 1426 (All).

158. The nearest decision was given in similar circumstances at Jodhpur by the then Chief Justice Shri K.D. Sharma in Mohanlal's case (supra) on 28th January, 1983 and the same view was taken by the Division Bench in Tejbhan Singh's case (supra) which was taken by Shri K.D. Sharma C.J. as he then was, in Mohanlal's case (supra).

159. It is true that after decision of the two Division Benches of this Court, it is not open to a bench to take a different view, however we are considering this objection now in a Full Bench of three Judges and, therefore, I have ventured to discuss the issue again as Dr. Singhvi, in his forceful plea appealed to the Court to stop this flood of litigation which should be decided by the Labour Court or Industrial Tribunals and not by the High Court. True, it is that flood of cases never concerns the Courts and should not result in stopping them so long as the law warrants the same and dictates of justice and equity welcomes them. Not now but even at the threshold, Roman jurisprudence the maxim, ' 'ubi Jus ibi remedum '' suggested that 'every wrong should have a remedy' in jurisprudence. That being so, I cannot be terrorised by fear of flood of cases but undoubtedly it is our duty to ensure that if the legislature has provided other alternative efficacious remedies we should not invite that branch of litigation to walk in the High Court directly.

160. Undoubtedly, there are implications of Section 11A of the Industrial Disputes Act which has been inserted by the amendment and that is that the Industrial and Labour forums can formulate the relief by granting re-instatement or even after finding that the retrenchment was unjust not granting it. Similarly it can grant back wages partially or wholly. The Industrial Tribunal can also make inquiries whether during the period when the workmen were out of employment on account of the termination of service held to be illegal whether they were serving at some other places and carrying their business and, if so, that consideration should come in formulating the relief regarding the back wages.

161. Similarly, the implications of Section 10 of the Act cannot be undermined. It must also be noticed that Section 10 of the Act has undergone radical changes and now scope of reference has also been broadened and widened. The power of the Government under Section 10 of the Act is comprehensive under the Industrial jurisprudence as held in Shambhu Nath Goyal v. Bank of Baroda 1978-I L.L.J. 484. In Shalimar Works v. Workmen 1959-II L.L.J. 26 it was observed that such disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale.

162. In respect of the power of High Court, in Rohtas Industries Ltd. 's case (supra) Hcgdc, J., commenting on the observations made in C.P. Sarathy's case 1953-1 L.L.J. 174 observed:

This interpretation of Section 10(1) is based on the language of that provision as well as the purpose for which the power in question was given and the effect of a reference.

Hegde, J., further observed, That decision cannot be considered as an authority for the proposition that whenever a provision of law confers certain power on an authority on its forming a certain opinion on the basis of certain facts, the Courts are precluded from examining whether the relevant facts on the basis of which the opinion is said to have been formed had in fact existed.

163. Primarily, this function of the Government has been treated as administrative in character but, as rightly observed by Lord Denning in Beetham v. Trinidad Cement Ltd. (1960)1 All ER 274 (280) (PC):

True it is that the Governor has to enquire and, no doubt, he did -- in his administrative capacity -- but he had not to conduct anything in the nature of judicial or quasi-judicial enquiry.

164. Shri O.P. Malhotra, in his treatise on the Law of Industrial Disputes (Third Edition, 1981), opined that the Government cannot be compelled to make a reference when he says that the power and discretion to make a reference is vested in the 'appropriate Government' under Section 10(l) and it is clear from the language used in sub-clauses (a), (b), (c) and (d) of Section 10(1) that the Government is not bound to refer the whole of the industrial dispute in all its aspects as raised by the workmen. Again, according to Section 12(5), even where the Government has formed its opinion under Section 10(1), that an industrial dispute exists or is apprehended, it shall still consider whether it would be expedient to refer the dispute. The only obligation Section 12(5) imposes is that in case the Government does not choose to refer the dispute to any one of the authorities, it will record its reasons for that and communicate the same to the concerned parties. The scope of the judicial review is therefore, very limited and the Government is the sole arbiter of the factum of existence or apprehension of industrial dispute as held by Patanjali Sastry, C.J., in State of Madras v. C.P, Sarathy (supra).

165. If the discretion of the Government is exercised bonafidely and upon taking into account the relevant and material considerations without leaving any vital material out of consideration, the discretion of the Government is not amenable to judicial review. But, a mala fide action or action passed on extraneous consideration can always be challenged.

166. It is, therefore, very obvious that the scope of judicial review in cases of refusal to make a reference is very limited and this Court cannot compel the Government to make a reference simply because the Industrial Dispute has been raised and refused. Again, this Court cannot substitute its only discretion in the place of the Government to decide whether it is expedient or in-expedient to refer an industrial dispute.

167. In Premier Automobiles' case (supra) it is to be noticed that the principles laid down and in particular, the important principle that in cases where a Civil Court can be approached under Section 9, CPC, the High Court should not interfere under Article 226 of the Constitution if the remedy is expressly provided by the statute for adjudication or such a dispute or matter, refers to civil suit.

168. Broadly speaking, this principle laid down by Premier Automobiles' decision (supra) applies in creating a bar for civil Court to entertain the disputes for which the remedy is provided in Industrial Disputes Act. The discussions which have been mentioned above for the discretion of the Government to make a reference or not to make a reference, applies to writ jurisdiction but, not in terms because the question whether it is equally efficacious remedy, has not been considered.

169. However, the age old well established principles of judicial restraint self imposed as it may be, certainly require that when Section 10 provides a remedy and no effort has been made by the workmen to approach the Government and the Government has not either by implied conduct of remaining silent or by an express order, refused to make such a reference, this Court should not interfere under Article 226 of the Constitution.

170. I would therefore, like to modify my views as expressed in Soloman Smith's case (supra) and further to modify the view taken by this Court in so far in Single Bench and the Division Bench, by laying down the following principles -

(i) If the right which is sought to be enforced is right created under the I.D. Act, such as Chapter VA, then the remedy for its enforcement is either under Section 33C or raising of an industrial dispute, as the case may be.

(ii) If the industrial dispute arises under the I.D. Act then normally, the remedy available to the suiter is to get an adjudication under the Act;

(iii) Further, in the above two categories of cases, if the Government refuses to make a reference either by not passing an order in a reasonable time, normally two months in individual cases and fifteen days notice in cases involving several employees together, or refuses to refer by an express order then, this Court can always interfere under Article 226 of the Constitution.

(iv) Again, in case the validity of any statutory provisions or rules, regulations having force of statute is challenged or any order is challenged on the ground of violation of constitutional provision then, the applicants can file a writ directly without insistence of reference.

(v) In all the above cases, in these of the particular cases, where involved disputed questions of fact arise for adjudication, then this Court would not interfere under Article 226 of. the Constitution, irrespective of the implications of bar of Section 10 of the Act being available or not.

171. In my view, therefore, the cumulative effect of Sections 10 and 11A of the Industrial Disputes Act, 1947 creates a bar normally to entertainment of writ petitions for contravention of provisions of Chapter V-A of the I.D. Act. But that bar or prohibition is subject to the above exceptions mentioned in para 170 of this judgment.

172. Now the question arises that on the application of the above principles, what relief should be given in the present bunch of writ petitions.

173. Before I formulate the relief, I must mention that, according to my view since Clause 13 of the Standing Orders, 1965 has been held to be invalid and ultra vires in so far as it relates to the 'permanent employees' therefore, 'temporary employees simpliciter would not be entitled to maintain their challenge to termination on the ground of,invalidity of Clause 13. In other words, this clause so far as it relates to temporary employees, is valid.

174 & 175 Even then, the temporary employees' who fulfill the requirement of Chapter V-A's application would be entitled to challenge their termination in case it has contravened the provisions of Sections 25F and 25G or both, as the case may be.

176. Now, the petitioners, namely, Gajrajsingh, Shishram, Bhanwarlal, Amarsingh, Narpatsingh II, Mohd. Ahmed Khan, Jagdish Pd. Sharma, Pyre Singh, Bajranglal, Prabhakar Narain Singh, Raghubirsingh, Kenwarsingh Yadav, Ram Kumar-sineh, Bhaiya Ram. Kansingh, who are confirmed ancf permanent employees and, therefore, the order of termination passed under Clause 13 of the Standing Orders, 1965 is invalid and liable to be quashed and their termination orders passed by the Corporation are hereby quashed and set aside.

177. The orders of termination passed by the Corporation in the cases of the petitioners who arc permanent and confirmed, namely, Gajrajsingh, Shishram, Bhanwarlal. Amarsingh. Narpatsingh II, Mohd. Ahmed Khan, Jagdish Pd Sharma, Raghubir Singh, Pyre Singh, Bajranglal, Ram Kumarsingh, Singh, Pyre Singh, Bajranglal. Ram Kumarsingh, Bhaiyaram & Kansingh and, in the cases of the petitioners who are regular but temporary and they were not made permanent by the Corporation; namely, Bhanwarsingh, Kailash Chand Sharma, Sitaram Soliwal. Surendra Kumar, Sukhdev, Durgasingh Bhati, Harphoolisingh, Tejusingh, Mukesh Chand Sharma, Prem Singh, Haripalsingh. Jaisingh, Deeparam. Murarilal. Krishna Murari, Purshottam" Das, Shankerlal Shukla, Banwarilal, Badri Prasad, Dharam Pal, Gulab Chand II, Shcru Prasad, Trilok chand Sharma & Sarwanlak contain the bedrock of Clause 13 of the Standing Orders, 1965 but, in ad-; dition to that.it has also been mentioned in the orders that notice or pay in lieu of notice under Section 25F of the Industrial Disputes Act is being made or given.

178. In my view, a reading of these orders would show that the foundation of the bedrock of; the termination orders is Clause 13 of the Standing Orders, 1965 and the Corporation has clearly mentioned in the language and words of these orders that the termination is being made by virtue of powers under Clause 13 of the Standing Orders, 1965. However, since Section 25J of the Industrial Disputes Act, 1947 provides that procedural safeguards of Sections 25F and 25G etc., of the Act are to be fulfilled, therefore, the Corporation has also mentioned that while basing the termination on the i bedrock of Clause 13 of the Standing Orders, the requirement of Section 25F of the Industrial Disputes Act is also being complied with. Thus the orders of termination of the petitioners, mentioned in para 177 of the current judgment are liable to be quashed and set aside.

179. In my considered opinion, merely by complying with the provisions contained in Section 25F of the Industrial Disputes Act, 1947 the Corporation never intended to exercise its powers under Section 25F simpliciter but, it made out clear that the powers of termination contain its foundation, bedrock in Clause 13 of the Standing Orders, 1965 and, therefore, when Clause 13 of the Standing Orders, 1965 has been declared invalid, these orders cannot be sustained simply on the ground that the procedural requirements of Chapter V-A of the Industrial Disputes Act, 1947 have been made out or completed.

180. In respect of all the petitioners, since they have completed and has been in continuous service for more than one year as prescribed under Section 25F of the Act and, no list of seniority as contemplated by Rule 77 of the Industrial Dispute (Central) Rules, 1957 was prepared nor a copy of it was pasted on the notice board in a conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment and, therefore, the provision of Section 25G of Chapter V-A of the Industrial Disputes Act, 1947 has been contravened and on that ground also, the termination of services of the petitioners vide the impugned orders are liable to be quashed.

181. It is further made clear that in spite of the above decision, the Corporation would be at liberty to either retrench the petitioners if it becomes permissible after following and fulfilling the procedure prescribed under Section 25G of the Act and other provisions of the Act by retrenchment simpliciter. It would also be permissible for the Corporation to take disciplinary proceedings against the employees for any misconduct which has been alleged in defence of the writ petition or in the returns filed by the Corporation or otherwise and keep them under suspension according to law.

182. As per the date of appointments mentioned in the respective writ petitions of the petitioners and uncontroverted facts for being in continuous service for more than one year in the Corporation and, therefore, the provisions of Chapter V-A of the Act including Sections 25F and 25G of the Act apply to all of them, squarely, and that is the reason for any insistence on compliance of Sections 25F and 25G of the Act whether backwages should be granted.

183. The new perspective emerging from Article 43A of the Constitution undoubtedly makes 'Labour' Partner in Industry and not a mere factor in production of pre-1976 era. The new horizons based on 'poverty jurisprudence' certainly bring new equation in Industrial relations. I do not doubt even for a while the wisdom of Iyer's following classic observations:

If the discharge of worker from service is bad, reinstatement is the rule. But most rules have exceptions wrought by the pressure of life. Dealing with the complex of considerations bearing on payment of back wages the new perspective emerging from Article 43A, Constitution of India cannot be missed. Labour is no more a mere factor in production but a partiner in Industry, conceptually speaking, and less than full back wages is a sacrifice by those who can least afford and cannot be demanded by those, who least sacrifice their large 'wages' though can best afford, if financial constraint is the ground urged by the management as inability to pay full back pay to the worker. The morality of law and constitutional mutation implied in Article 43A bring about a new equation in industrial relations. The discretion to deny reinstatement or pare down the quantum of back wages is absent save for exceptional reasons.

184. But, Iyer's dynamism and pragmatism was not flowery and flightly nor it was like a 'Bridge without traces of river' but it was realistic too due to his long experimentation and experience at grass root level of labour and industrial mechanism. The realisation compelled him to hasten to add the following watering down the 'fervor and flavour' of the above flowers:

Though normal rule, on reinstatement, is full back wages since the order of termination is non est, even so, the industrial Court may well slice off a part if the workmen are not wholly blameless or the strike is illegal and unjustified. To what extent wages for the long interregnum should be paid is, therefore, a variable dependent on a complex of circumstances.

185. Bowing to and respecting the above dictum of Apex law of Apex Judge in the realm of 'social justice jurisprudence', I am conscious that the petitioners and though yet to be proved, the actions have their genesis in various patterns of misbehaviours of rowdism, violence, corruption, outrageous indiscipline etc., which may be motive and not foundation or vice versa. The record placed by Shri N.L. Jain, substantiates our above doubts generally and therefore, it would be putting premium on such alleged misbehaviour and indiscipline, if without, "industrial adjudication" they are given 'gift packets' of back wages, in writ jurisdiction, without full enquiry.

186. Restraint and restraining from award of back wages in the facts and circumstances, is necessary in the interests of justice to safeguard the public exchequer's money which form major part of contribution to funds of Corporation The above note of Krishna Iyer J., in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha (supra) again approving and relying upon the decision in Hindustan Tin Works v. Its Employees ; fortifies the above, and when even Iyer's usually unrestrained crusade of 'social justice' admits of 'comas and full stops' when it comes to payment of 'back wages', who can be more "pious than pope himself" in the species of social law jurisprudence.

187. In my considered opinion, it would be inexpedient to direct that all the petitioners should be paid back wages because in the absence of an adjudication by a competent forum or Labour Court or Industrial Tribunal, it is difficult to ascertain and adjudicate in writ petition, whether they were doing anywhere any business or were in any private service and, what amount they have earned there.

188. I am further fortified in my conclusion to not to allow the back wages to the petitioners by the authoritative pronouncement of the Supreme Court in U.P. Warehousing Corporation v. Vijay Narayan 1980 1 L.L.J. 222 wherein it has been held as under (Para 18):

In matters of employment, while exercising its supervisory jurisdiction under Article 226 of the Constitution, over the orders and quasi-judicial proceeding of an administrative authority -- not being proceeding under the industrial/labour law before an industrial labour tribunal culminating in dismissal of the employee, the High Court should ordinarily, in tne event of dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back wages (although as a consequence of the annulment of the dismissal, the position as it obtained immediately before the dismissal is restored); such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by an Industrial Tribunal or Labour Court. Whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back wages, is a question of fact depending on evidence to be produced before the Tribunal. If after the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back wages and with continuity of employment.

The above observations of mine would not prejudice the case of the petitioners in claiming back wages under Section 31-C of the I.D. Act by proper application. Similarly they would not prejudice the employers from commencing any proceeding either under the disciplinary jurisdiction or otherwise according to lav/.

189. I have disposed of all the writ petitions filed by the petitioners finally because at the time of making of the reference, an express understanding was mentioned in the order that the return of the Corporation would be taken of a few cases as the Corporation would not like to file other returns. Even then there was sufficient time for filing returns, affidavits, documents in all the cases as the dates of filing of the cases and the hearing, and decision would show that in all, ample time was available to the Corporation. The only conclusion for not filing of fresh material was that the Corporation wanted to rely upon the few replies already filed in a few of the cases.

190. The final replies and reliefs, to be given to questions referred would now be concluded in the operative portion of judgments at the end of the judgments of all of us, as there are three separate judgments.

M.N. Kasliwal, J.

191. The Rajas-than State Road Transport Corporation (hereinafter referred to as "the Corporation") has terminated the services of their permanent and temporary workmen by resorting to their powers under Clause 13 of the Rajasthan State Transport Workers Standing Orders (hereinafter referred to as "the Employees Standing Orders"). All the 39 workmen challenged their order of termination by filing separate writ petitions under Article 226 of the Constitution of India. One of our brother G.M. Lodha, J., referred the following questions to be decided by the Full Bench:

1. Whether Section 25J of the Industrial Disputes Act, 1947 permits the application of Clause 13 of the Rajasthan State Road Transport Workers and Workshop Employees Standing Orders, 1965, without complying with the provisions of Section 25F, 25G or 25-FF?

2. Whether Section 25G of the Industrial Disputes Act, 1947 is directory and not mandatory or, whether Section 25G of the Act need not be complied with when termination is done under Clause 13 of the Standing Orders.

3. Whether the provisions of Section 25 of the Act, in cases of removal under Clause 13 of the Standing Orders, are relevant only for the purpose of compensation under Section 25F of the Act and, nothing else?

4. Whether the judgment of Karnataka High Court in T.G. Srinivasa Murthy v. Bharat Earth Movers Ltd. 1982-I L.L.J. 268 lays down correct law?

5. Whether declaration of Clause 13 of the Standing Orders as intra vires in Mohan Lal v. Rajasthan State Road Transport Corporation (C. Writ Petition Number 1012 of 1982 decided on 28th January, 1983) (Per Chief Justice Sh. K.D. Sharma) of this Court at Jodhnur requires reconsideration as according to the allegations of the petitioner the challenge to its constitutionality it was neither made nor examined in other respects except a broad controversy about equality before law and, whether Clause 13 of the Standing Orders is ultra dres?

6. Whether this Court can entertain writ petition under Article 226 of the Constitution against termination of service, even though a proper inquiry and adjudication can be by way of a reference under Section 10 of the Act, before the Labour Court or the Industrial Tribunal?

7. Should the weapon of Clause 13 of the Standing Orders be given to the management to 'hire and fire' in disregard of Section 25G of the Act and Section 25F of the Act?

8. Should this Court insist on principle of 'last come first go', even after a particular employee loses confidence of the management and the management wants to get rid of them without making inquiry?

9. Should Section 25J of the Act be interpreted to i mean that S .25G of the Act has got no implication in the field covered by Clause 13 of the Standing Orders?

10. Whether the question of extra-ordinary reasons, if any, not to follow Section 25G should be inquired into by this Court under Article 226, or it should be left to be debated and adjudicated after taking evidence by the Industrial Tribunal in a reference under Section 10 of the Act?

11. Whether the welfare legislation enacted in the form of Industrial Disputes Act and particularly which are regarding retrenchment can be applied both, in law and spirit in cases of all the termination except termination on misconduct after an inquiry?

192. After the decisions of their Lordships of the Supreme Court in Ratnana Dayaram Setty v. International Airport Authority (supra), Som Prakash v. Union of India (supra) and Ajay Hassia v. Khalid Nujib (supra), it cannot be disputed that the Corporation is an instrumentality or agency of the Government and is a State for the purposes of Article 12 of the Constitution. Even the learned Counsel appearing for the Corporation and the State of Rajasthan did not dispute the above proposition.

193. So far as the question whether the petitioners enjoy a position of 'status' or they are to be governed by a contractual relationship of master and servant, in my opinion the matter is not res integra in view of weighty pronouncements of their Lordships of the Supreme Court in Sukhdev Singh v. Bhagatram (supra) and U.P. Warehousing Corporation v. Vijayanaruyana (supra). In view of the 3 above decisions it cannot be challenged that the petitioners are in public employment and have right to challenge their orders of termination being illegal and contrary to the various provisions of the Industrial Disputes Act and in violation of Articles 14 and 16 of the Constitution of India.

194. As the entire case of the Corporation is based on their powers given under Clause 13 of the Employees Standing Orders and they have based the impugned orders of termination on Clause 13, it would be necessary to reproduce this clause:

Clause 13 -- Termination of employment-

(i) for terminating employment of a permanent worker, notice in writing of the following duration shall be given either by the employer or the worker --

(a) one month's notice in the case of a monthly rated worker.

(b) two weeks notice in the case of other workers, provided that the service of a worker may be terminated forthwith by payment to him of a sum equivalent to the amount of his wages for the period of notice or for the period by which such notice falls short of the period prescribed above, as the case may be.

(ii) A temporary worker or probationer whether monthly rated, weekly rated or piece rated shall not be entitled to any notice or pay in lieu thereof, if his services are terminated.

(iii) Where the employment of any worker is terminated the wages earned by him and other dues, if any, shall be paid before the expiry of the second working day from the day on which his employment is terminated.

The petitioners have made a two pronged attack on the above Clause 13. Their first submission is that Section 25J of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") itself excludes the applicability of the Employees Standing Orders as there is non-compliance of Sections 25F and 25G of the Act in these cases. Their argument is that Section 25J of the Act lays down that "the provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law (including standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946). ' It is thus submitted that the provisions of Sections 25F and 25G of the Act will have to be complied with irrespective of any provision contained in Clause 13 of the Employees Standing Orders. So far as the non-compliance of the rule 'last come first go' as contained in Section 25G of the Act, the learned Counsel for the Corporation itself have not disputed. So far as the compliance of conditions precedent to retrenchment of workmen as contained in Section 25F of the Act is concerned, the Corporation has failed to furnish any material on record and the learned Counsel for the Corporation have relied on their absolute power of retrenchment given under Clause 13 of the Employees Standing Orders. Learned counsel for the workmen have, therefore, contended that the orders of termination of the workmen have to be struck down on the ground of non-compliance of Sections 25F and 25G of the Act and Clause 13 cannot be resorted to in view of clear mandatory provisions of Section 25J of the Act.

195. The other ground of attack against Clause 13 of the Employees Standing Orders is that the same is violative of Articles 14 and 16 of the Constitution of India. As a matter of fact, as I am taking the view that there is clear non-compliance of the conditions contained in Sections 25F and 25G of the Act in all these cases, it might not have been necessary to examine the validity of Clause 13 of the Employees Standing Orders, but I consider it necessary to decide the second ground of attack also in view of the following reasons.

196. All the impugned orders are based on Clause 13 of the Employees Standing Orders and learned Counsel for the Corporation as well as the learned Advocate General strongly pressed that Clause 13 is a valid piece of law and they had power to terminate the services of the workmen by resorting to Clause 13 of the Employees Standing Orders. That apart, learned single Judge has made a reference to the Full Bench to decide the validity of Clause 13 of the Employees Standing Orders as K.D. Sharma, C.J., (as he then was) had declared Clause 13 to be intra vires in Mohan Lal v. Raj-asthan State Road Transport Corporation, Civil Writ Petition No. 1012/82 decided on 28th January, 1983. Apart from that the applicability of Clause 13 frequently arises in cases brought before this Court and in my view it must be finally concluded as the matter has come before the Full Bench. Thus, I would consider whether Clause 13 of the Employees Standing Orders is constitutionally a valid law in the face of the provisions of Articles 14 and 16 of the Constitution of India.

197, Before dealing with the above question, it would also be necessary to examine whether Clause 13 of the Employees Standing Orders is having force of statutory law or is merely a contract between the parties. An argument was raised in this regard by learned Counsel for the Corporation that the Employees Standing Orders have no statutory force and the same are binding on the parties on account of mutual contract. Reliance in this regard has been placed on Co-operative Central Bank Ltd. v. Addl. industrial Tribunal, Andhra Pradesh, Hyderabad , which it was observed as under (Para 10):

The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law. In a number of cases, conditions of service for industries are laid down by standing orders certified under the Industrial Employment (Standing Orders) Act, 1946, and it has been held that though such standing orders are binding between the employers and the employees of the industry governed by these standing orders, they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute.

198. On the other hand, it was submitted by learned Counsel for the workmen that standing orders are made under the provisions of Industrial Employment (Standing Orders) Act, 1946 and after such standing orders are certified, they have a statutory force. Reliance in this regard has been placed on Bagalkot Cement Co. v. R.K. Pathan (supra), Workmen ofD.T. Estate v. Their Management (supra), and a decision of the Orissa High Court in Biswanath Das v. Ramesh Chandra (supra). In my view the Standing Orders after having been certified under Section 5 of the Standing Orders Act is law having statutory force. The preamble of Standing Orders Act shows that the object of the Act was to require employers in industrial establishment to define with sufficient precision the conditions of employment under them and made the said conditions known to the workmen employed by them. Section 3 of the Industrial Employment (Standing Orders) Act, 1946 provides that within six months from the date on which this Act becomes applicable to an Industrial Establishment, the employer shall submit to the Certifying Officer five copies of the drat) standing orders proposed by him for adoption in that industrial establishment. Sub-section (2) of Section 3 of the Industrial Employment (Standing Orders) Act, 1946 provides that provision shall be made in such draft for every matter set out in the Schedule which may be applicable to the Industrial Establishment, and where model standing orders have been prescribed shall be, so far as is practicable in conformity with such model. Section 4 of the Industrial Employment (Standing Orders) Act, 1946 provides conditions for certification of Standing Orders that the Standing Orders shall be certifiable if -

(a) provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment, and

(b) the standing orders are otherwise in conformity with the provisions of this Act;

and it shall be the function of the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders.

It may be important to mention here that by Act No. 36 of 1956 the words "shall be the function" have been substituted in place of the words "shall not be the function". This goes to show that before 17th September, 1956 when the above change was made by Section 32 of Act No. 36 of 1956, the Certifying Officer was bound to certify the Standing Orders according to the draft proposed by the employer but now it is the function of the Certifying Officer to adjudicate upon the fairness or reasonableness of the provisions of any Standing Orders. Then Section 5 of the Industrial Employment (Standing Orders) Act, 1946 provides for certification of standing orders. Under Sub-section (2) of Section 5 the Certifying Officer shall decide whether or not any modification ,of or addition to the draft submitted by the employer is necessary to render the draft standing orders certifiable under this Act, and shall make an order in writing accordingly, after giving the employer and the trade union or such representatives of the workmen, an opportunity of being heard. Under Sub-section (3) of Section 5 the Certifying Officer shall thereupon certify the draft standing orders. Section 6 of the Industrial Employment (Standing Orders) Act, 1946 provides for going in appeal by the person aggrieved against the order of the Certifying Officer. Section 10 then provides for duration and modification of the standing orders. Section 11 gives powers of civil Court to the Certifying Officer and Appellate Authorities. Section 13 of the Industrial Employment (Standing Orders) Act, 1946 provides for penalties for acting in contravention of the Standing Orders finally certified under the Standing Orders Act. Section 13A provides for interpretation etc. of Standing Orders. A perusal of the entire scheme and object of the Standing Orders Act and the Standing Orders certified under the above Act can leave no manner of doubt that the Standing Orders after certification do not remain in the realm of contract but have complete force of statutory law. The Standing Orders after certification become binding on all the employees of such industrial establishment whether they had joined the establishment before or after the certification of the Standing Orders. It is not in the sweet will of an employer or even with the consent of the trade union or other representatives of the workmen to give validity to a Standing Order, but Section 4 clearly envisages as a pre-requisite condition for certification that the Certifying Officer or Appellate Authority shall adjudicate upon the fairness or reasonableness of the provisions of the Standing Orders. There is a provision for appeal under Section 6 and there is a clear bar under Section 10 that the Standing Orders shall not be modified till the conditions given under Section 10 are satisfied. The Certifying Officers and Appellate Authorities have been given powers of Civil Court under Section 11 and Section 13 even provides as a criminal liability in case of contravention of the Standing Orders. If the contention raised by learned Counsel for the Corporation is accepted that Standing Order is merely an agreement and binding in a contract between the parties, there was hardly any question of making its contravention as a criminal liability.

199. I find support in my above view in Bagalkot Cement Co, v. R.K. Pathun (supra), Workmen of D.T. Estate v. Their Management (supra) and Biswunath Das v. Ramesh Chandra (supra). So tar as Co-operative Central Bank Ltd. v. Addl. Industrial Tribunal, Andhra Pradesh, Hyderabad (supra), is concerned, that was a case in which their Lordships were dealing with three issues. The first issue comprised a number of service conditions of the employees of the Cooperative Central Bank. The second and the third issues both related to the question whether the transfers of some employees of the Banks were justified and, if so, to what reliefs were the employees entitled. Before the Industrial Tribunal, one of the grounds raised on behalf of the Banks was that the reference of the dispute to theTribunal was invalid, because such disputes were required to be referred for decision to the Registrar of the Cooperative Societies under Section 61 of the Andhra Pradesh Co-operative Societies Act No. 7 of 1964. The Industrial Tribunal rejected the contention of the Banks. The High Court of Andhra Pradesh also rejected the plea of the Banks. The Supreme Court on the above facts observed that "in these appeals, therefore, we are only concerned with one single question as to whether the jurisdiction of the In dustrial Tribunal to adjudicate on the industrial dispute referred to it under Section 10(l)(d) of the Industrial Disputes Act was barred by the provisions of Section 61 of the Act. After considering certain decisions their Lordships held as under: -

Applying these tests, we have no doubt at all that the dispute coveted by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under Section 61 of the Act. The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute. The Registrar, it is clear from the provisions of the Act. could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself.

Thereafter an argument made on behalf of the Banks that the bye-laws, which contain the conditions of service, were themselves law and as such any direction made by an Industrial Tribunal altering a condition of service contained in a bye-law would be an order contrary to law and hence illegal, was taken into consideration. In this context their Lordships observed that the bye-laws that can be framed by a Society under the Act are similar in nature to the articles of association of a Company incorporated under the Companies Act and such articles of association have never been held to have the force of law. In the same context it was further observed in a number of cases conditions of service for industries are laid down by Standing Orders certified under the Industrial Employment (Standing Orders) Act. 1946 and it has been held that, though such standing orders are binding between the employers and the employees of the industry governed by these standing orders, they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute. The above observations, therefore, in my humble view do not support the contention of the learned Counsel for the Corporation and the State that the standing orders after certification have no statutory force of law and as such Clause 13 of the standing orders cannot be declared unconstitutional under Articles 14 and 16 of the Constitution.

200. I shall now consider the constitutional validity of Clause 13 of the Employees Standing Orders and sec whether the same is violative of Articles 14 and 16 of the Constitution or not. In this regard the most important case is Moti Ram Deka v. General Manager, North East Frontier Railway, (supra) decided by their Lordships of the Supreme Court. In the above case Rules 148(3) and 149(3) of the Indian Railway Establishment Code were subject matter of challenge. Out of a Bench of seven Hon'ble Judges Gajendragadkar, J. (as then was) wrote the leading judgment on his behalf and on behalf of K.N. Wanchoo, M. Hidayatullah and N. Rajagopala Ayyangar, JJ. From paragraph 53 onwards of the report the point regarding challenge to the validity of the aforesaid rules on the ground that they contravene Article 14 of the Constitution, were considered. One of the reasons, which weighed with the majority view laid down by Gajendragadkar, J. was that Rules 148(3) and 149(3) which provide termination of Railway servants by notice contain no guidelines for making the classification. Subba Rao, J. held that he had agreed that the impugned Rules infringe both Articles 14 and 311(2) of the Constitution and were,therefore, void. On Article 14 he had nothing more to say. Das Gupta, J., further observed as under:

It is necessary now to consider the second ground urged by the appellants, viz. that Rule 148(3) contravenes Article 14 of the Constitution. Two contentions are urged in support of this ground. First, it is urged that the Rule gives no guidance to the authority who would take action on it as regards the principle to be followed in exercising the power. Secondly, it is urged that the Rule discriminates between railway servants and other public servants. In my opinion, there is considerable force in the first contention. Classifying the statutes which may come up for consideration on a question of its validity under Article 14 of the Constitution in this Court observed under the third class of such statutes thus:

A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down and principle or policy for the guidance of the any ercise of discretion by the Government in the matter of the selection or classification.

Applying the principle laid down in the above case to the present Rule, I find on scrutiny of the Rule that it does not lay down any principle or policy for guiding the exercise of discretion by the authority who will terminate the service in the matter of selection or classification. Arbitrary and uncontrolled power is left in the authority to select at its will any person against whom action will be taken. The Rule, thus enables the authority concerned to discriminate between two railway servants to both of whom Rule 148(3) equally applied by taking action in one case and not taking it in the other. In the absence of any guiding principle in the exercise of the discretion by the authority the Rule has therefore to be struck down as contravening the requirements of Article 14 of the Constitution.

Shah J. however, took a view contrary to the majority Their Lordships of the Supreme Court in Government Branch Press v. D.B. Belliappa (supra), observed that Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic policy is founded. Brother G.M. Lodha J. has discussed this point in detail and has cited various authorities on Article 14 of the Constitution and I do not wish to refer to all these cases again and I agree with his conclusions the Clause 13 of the Employees Standing Orders is violative of Articles 14 and 16 of the Constitution of India.

201. Learned Advocate General appearing on behalf of the Corporation frankly conceded that the rule of 'last come first go' has not been applied in the present case and there is a clear violation of the provisions of Section 25G of the Act. So far as Section 25F of the Act is concerned, he was unable to place material to show that any compliance was made before passing the impugned orders of termination. In view of these circumstances the orders terminating the services of the petitioners are clearly illegal and without jurisdiction as they are in violation of Sections 25F and 25G of the Act.

202. So far as the contentions raised by the learned Counsel for the Corporation that the petitioners had an alternative remedy of raising an industrial dispute, suffice to say that in these cases the petitioners have challenged the vires of Clause 13 of the Employees Standing Orders under which the present orders of termination have been passed and the same being clearly in violation of Sections 25F and 25G of the Act, the bar raising an industrial dispute is of no consequence. A Division Bench of this Court to which I was a party TejBhan Singh v. State of Rajasthan (supra), it has been held that the remedy under Section 10 of the Industrial Disputes Act is no bar for filing a writ petition under Article 226 of the Constitution of India. The entire law with regard to Section 10 of the Industrial Disputes Act when becomes a bar and under what circumstances and the scope of approaching this Court under Article 226 of the Constitution of India has already been discussed in detail in that case and I do not want to make any discussion further in regard to this controversy. However, as already mentioned above, in the facts and circumstances of this case, there is no force at all in the contention of the learned Counsel for the Corporation that the petitioners should have availed of the remedy of raising an industrial dispute before filing the writ petitions under Article 226 of the Constitution of India.

203. In view of the above circumstances, all the writ petitions have to succeed and the orders terminating the services of the petitioners are quashed. I agree in the relief given by brother Lodha J in these writ petitions.

Sidhu, J.

204. The Rajasthan State Road Transport Corporation, (hereinafter called the Corporation) terminated the service of as many as 39 persons who were employed under it as drivers/conductors, during the years 1981, 1982 and 1983. The Corporation terminated their services in the purported exercise of its powers under Clause 13 of The Rajasthan State Road Transport Workers Standing Orders (hereinafter called the Standing Orders) and S. 25F of the Industrial Disputes Act, 1947. Each of the employees, whose services were thus terminated, had completed continuous service for one year at the time of the termination of his services. The aggrieved employees came to this Court one by one, and filed 39 separate writ petitions challenging the validity of such termination. They prayed that the respective orders of termination be set aside and the Corporation be directed to reinstate them in service with back wages. In this context, they also challenged the validity of Clause 13 of Standing Orders praying for further relief that Clause 13 be struck down as being ultra vires, illegal and unconstitutional. Clause 13 of the Standing Orders, according to the petitioners, is violative of Articles 14 and 16 of the Constitution of India.

205. Twenty two of these writ petitions came up before one of us (Lodha J.) for admission after service of notice of motion on the Corporation. The learned Advocate General who appeared on behalf of the Corporation cited before the learned single Judge an unreported Single Bench ruling of this Court in support of his argument that Clause 13 of the Standing Orders is intra vires and valid and that therefore the impugned orders of termination are also valid. On the other hand, learned Counsel for the petitioners cited some rulings of the Bombay and Karnataka High Courts in an attempt to show that Clause 13 is violative of Articles 14 and 16 of the Constitution. The learned single Judge felt that the question as to whether Clause 13 of the Standing Orders is ultra vires the provisions of Articles 14 and 16 of the Constitution requires reconsideration by a Full Bench of this Court. He therefore caused all the 22 writ petitions to be referred to the Full Bench for what ne described as "authoritative pronouncement on all the questions arising out of them'', including of course the question as to the constitutional validity or otherwise of Clause 13 of the Standing Orders, and for final decision on merits of all these petitions. The other seventeen petitions, which were filed later, were also assigned to this Full Bench for disposal along with the twenty two writ petitions covered by the order of the learned single Judge, dated February 23, 1983.

206. The Full Bench, constituting of Lodha and Kasliwal, JJ. and myself, heard arguments in fhese cases several months back. After our own studies of the case, we discussed the issues among ourselves and decided to prepare separate judgments. I must acknowledge here that I have had the advantage of reading the judgments of my learned brothers before I started writing the present judgment. I regret that it has not been possible for me to agree with them in the very approach to the legal problem in hand Lodha and Kasliwal JJ. are of opinion that Clause 13 of the Standing Orders is "law" as defined in Article 13(3) of the Constitution and that since this clause gives arbitrary and unbridled power to the Corporation to terminate the services of its employees in its own whim, it must be struck down as ultra vires the provisions of Articles 14 and 16 of the Constitution. Lodha J. has observed in this context that this clause is the product of British rule. Before I discuss the real nature and legal effect of Clause 131 must right-away say, and I say it with respect, that there is no justification to describe Clause 13 of the Standing Orders as the product of British rule. This clause is nothing more than the product of the joint efforts of the Corporation (a post-independence phenomenon), its workmen and . the certifying officer/appellate authority appointed by the State Government of Rajasthan under the Industrial Employment (Standing Orders) Act, 1946 (hereinafter called the Standing Orders Act). It will not therefore be correct to say that this clause is the product of the British rule. This is not to suggest that I would have agreed to strike it down if it could be traced in its origin to something connected with the British rule, for I firmly believe that we owe a lot to the Anglo-Saxon jurisprudence for so much that is good in our law and legal institutions.

207. Turning now to the argument that Clause 13 of the Standing Orders is "law" as defined in Article 13(3) of the Constitution and that it is liable to be struck down on the ground that it is violative of the provisions of Articles 14 and 16 of the Constitution, I have no hesitation in rejecting this argument as wholly devoid of force. The Standing Orders contain conditions of employment of the workmen of the Corporation as proposed by the Corporation and certified by the Certifying Officer under the Standing Orders Act or deemed to have been adopted under the said Act. In fact, the preamble of the Standing Orders Act itself makes it clear beyond doubt that this Act was enacted "to require the employers in industrial establishment To define with sufficient precision conditions of employment under them and to make the said conditions known to the workman employed by them. " The Standing Orders Act has made relevant provisions for making Standing Orders which after they are certified constitute what the Supreme Court described in Bagalkot Cement Co. Ltd. v. R.K. Pathan, (supra) as statutory term of employment between the individual establishment in question and its employees. The mere fact that the Standing Orders as certified under the Standing Orders Act constitute statutory terms of employment between the employer and his workmen is no ground for holding that such terms are "law" within the purview of Article 13(3). It is well settled that it is not open to a Court, much less to a Tribunal, to alter, amend remake law. But since Standing Order certified under the Standing Orders Act are not law, the Supreme Court has time and again laid down that even after the Standing Orders of a particular industrial establishment have become final under the Standing Orders Act, they are liable to be challenged before and changed or altered by an Industrial Tribunal on a reference being made to it under Section 10, Industrial Disputes Act, 1947. Reference may be made in this connection to Management of Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. Workmen 1968-I L.L.J. 555 wherein their Lordships laid down the law as under (Para 23 at Page 565):

But there is no warrant, in our opinion, for holding that merely because the Standing Orders Act is a self-contained statute, with regard to the matters mentioned therein, the jurisdiction of the Industrial Tribunal, under the Act, to adjudicate upon the matters, covered by the Standing Orders, has been, in any manner abridged or taken away. It will always be open in a proper case, for the Union to raise an 'industrial dispute', as that expression is defined in Section 2(k) of the Act and if such a dispute is referred by the Government concerned, for adjudication the Industrial Tribunal or Labour Court, as the case may be, will have jurisdiction to adjudicate upon the same.

208. Another ruling which may be perused with advantage on this aspect of the matter is Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S.S. Railway Workers Union (supra). In this case also, their Lordships made it clear that the mere feet that conditions of employment in a particular establishment have been certified and become final under the Standing Orders Act is no ground for holding that the aggrieved workmen have lost their remedy under the Industrial Disputes Act, 1947, for seeking alteration of the certified Standing Orders which they find prejudicial or detrimental to their interest. If the Standing Orders certified under the Standing Orders Act were "law", properly so called, their Lordships could not have possibly countenanced the argument that such Stan ding Orders can be altered by an Industrial Tribunal, for in our system of jurisprudence no Court or tribunal, not even the Supreme Court, can alter or amend the law. The superior Courts do not create or alter the law; they merely discover or declare it.

209. Their Lordships of the Supreme Court again reverted to this aspect of the problem in Cooperative Central Bank Ltd. v. Additional Industrial Tribunal, Andhra Pradesh (supra) and this time to directly lay down in clear terms that the standing orders ' 'do not have the force of a statute" and that they "do not have such force of law as to be binding on the Industrial Tribunal adjudicating an industrial dispute"

210. Before concluding discussion on this topic, it would be useful to refer to the definition of law as given by John Austin, the leading exponent of the school of analytical jurisprudence. John Austin defined law as a command of a definite political superior enforced by a sanction which obliges intelligent human beings to acts or forbearance of a class. No command, as visualised in this definition is carried by standing orders. There is no sanction behind them in as much as they cannot be enforced in a Court of law. They are merely rules regulating the relations between an employer and his employees. It is open to a tribunal or a Court to ignore them on the view that one or more of them are unfair or unreasonable. Even a workman may ignore an unreasonable standing order in the hope that he would be able to satisfy a Court or tribunal that the same is unfair or unreasonable. It will therefore be sheer travesty of the term "law" to place standing orders under the Standing Orders Act in the same category as law.

211. For all these reasons, I hold that Clause 13 of the Standing Orders is not "law" as defined in Article 13(3) of the Constitution. It is merely one of the conditions of employment which may or may not be enforced by a labour Court or Industrial Tribunal appointed under the Industrial Act, 1947. In fact, the argument that Clause 13 is ultra vires Articles 14 and 16 suffers from a fallacy in as much as it proceeds on the false premise that Clause 13 is "law" within the ambit of Article 13(3) of the Constitution.

212. Even otherwise, the argument that Clause 13 of the Standing Orders is invalid does not call for any decision by us. It will be seen that according to Section 25J, Industrial Disputes Act, 1947, the provisions of Chapter V-A of that Act, including Sections 25F and 25G, shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under that Standing Orders Act. Section 25F lays down that no workman who has been in continuous service for not less than one year shall be retrenched by the employer until he has been given one month's notice in writing or paid wages for one month in lieu of notice and is also paid retrenchment compensation equivalent to Fifteen days' pay for every completed year of continuous service. Section 25G prescribes procedure for retrenchment enacting that the employer shall ordinarily retrench the workman who was the last person to be employed in his category. Of course, the employer may deviate from this rule of "last come first go" for reasons to be recorded in writing.

213. The consensus of judicial opinion as it seems to be emerging from some recent cases decided by the Supreme Court is that any termination of service otherwise than as a punishment is retrenchment unless it is by way of voluatary retirement of the workman, or retirement of the workman on reaching the age of superannuation or termination on the ground of continued ill-health. It has also been held by the Supreme Court in these cases that retrenchment in contravention of the provisions of Section 25F or Section 25G is invalid and that in such a case the workman concerned should be treated as still continuing in service.

214. It appears that services of all the 39 workmen involved in these writ petitions were terminated, otherwise than as a punishment, and that none of the terminations falls in the excepted categories mentioned above. The Corporation was therefore required to comply with the provisions of Sections 25F and 25G, if it was intended to validly retrench them. No material has been placed on the record to satisfy us that the rule of "last come first go" as enacted in 25G was followed by the Corporation. No reason was given in writing why the Corporation did not follow the rule of "last come first go". The retrenchments in question are therefore invalid. In view of this finding, I need not examine whether the provisions of Section 25F had been complied with or not.

215. As for relief, I am of opinion that we should leave it for industrial adjudication to decide whether the workmen should be reinstated and if so on what terms and conditions, or whether award of compensation would be the right solution of the controversy in each individual case on its own facts and circumstances. As for back wages and future wages till their reinstatement or till award of compensation etc., by industrial adjudication, I would leave the workmen to seek their remedy under Section 33C(2), Industrial Disputes Act, 1947.1 take this view on the basis of the law laid down by their Lordships of the Supreme Court in U.P. Warehousing Corporation v. Vijay Narayan (supra). Moreover, as my learned brother Lodha, J., has pointed out the question as to whether the workmen concerned have been gainfully employed or not during the period after the termination of their services by the Corporation is a complicated question of fact which this Court is ill-equipped to decide in proceedings under Article 226 of the Constitution.

216. In conclusion therefore, I would partly allow these writ petitions by declaring that the termination of the employment of the petitioners by the Corporation is invalid. As for further relief as to who should be reinstated, if at all, and, in the alternative, what compensation etc., should be awarded to them, they are left to seek their remedy by way of industrial adjudication in accordance with the provisions of the Industrial Disputes Act, 1947. They are also entitled to back wages if they were not gainfully employed elsewhere. They are left to seek their remedy in that behalf under Section 33C(2) of the said Act.

Operative Part of the Judgment:

217. The questions referred to by the learned Single Bench are answered seriatim as under:

PER G.M. LODHA, N.M. KASLIWAL AND DR. K. SIDHU, JJ.

Q. 1. Section 25J of the Industrial Disputes Act does not permit application of Clause 13 of the Rajasthan State Road Transport Workers and Workshop Employees Standing Orders, 1965 without complying with provisions of Sections 25F, 25FF and 25G of the Industrial Disputes Act.

PER G.M. LODHA AND N.M. KASLI-WAL, JJ.

Q. 2. Section 25G of the Industrial Disputes Act required to be complied with even in cases where Clause 13 of the Standing Orders, 1965 has been invoked. But, Section 25G of the Act does not recognise the principle of 'last come first go' and 'first come last go' in absolute form as it can be departed and deviated with in cases of agreement to the contrary or due to extraordinary reasons which must be ' recorded, in writing'. Section 25G of the Act, to the above extent, is directory and not mandatory in nature.

Q. 3. The provisions of various clauses of Section 25 of the Industrial Disputes Act so far as they relate to removal under Clause 13 of the Standing Orders, 1965 are relevant for all purpose and not for the limited purpose of compensation under Section 25F of the Industrial Disputes Act, only.

Q. 4. We are in agreement with the decision of Karnataka High Court in T.G, Srinivasa Murthy v. Bharat Earth Movers Ltd., (supra), as discussed above.

Q. 5. The decision of this Court (Per. R.D. Sharma C.J., as he then was) in Mohanlal v. Rajasthan State Road Transport (Civil Writ Petn. No. 1012 of 1982, decided on January 28, 1983 at Jodhpur) so far as it declares the Clause 13 of the Standing Orders, 1965 as intra vires fails to lay down the correct law as Clause 13 of the Standing Orders is ultra vires being in violation of Articles 14 and 16 of the Constitution of India.

PER G.M. LODHA AND DR. K.S. SIDHU, JJ.

Q. 6. The cumulative effect of Section 10 and Section 11A of the Industrial Disputes Act, 1947 is that normally, they create a bar to the entertainment of a writ petition for relief against contravention of provisions of the Chapter V-A of the Act, but that bar is subject to the exceptions made in para. 170 of the current judgment. Thus, this Court can entertain the writ petition under Article 226 of the Constitution against the termination of services in exceptional cases specified in para. 170 of this judgment but not normally.

PER G.M. LODHA AND N.M. KASLIWAL, JJ.

Q. 7. The management and the employer cannot utilise the weapon of 'hire' and 'fire' by resort to Clause 13 of the Standing Orders, 1965 in violation of Sections 25F and 25G of the Industrial Disputes Act.

Q. 8. This Court cannot insist on the principle of 'last come first go' for employees who lost confidence of the employers but, in such cases, the management is required to record the reasons and further comply with the provisions contained in Rule 77 of the Rajasthan Industrial Disputes Rules, 1958 before making a departure from Section 25G of the Industrial Disputes Act.

Q. 9 & 10. In view of the answers given above, it is not necessary to give any answer.

Q. 11. The provisions of the Industrial Disputes Act regarding retrenchment in particular, as envisaged by the Chapter V-A of the Act, should be applied to all cases of termination; except the termination for misconduct or compulsory retirement, to the limited extent that they become applicable by express provisions of Chapter V-A of it.

Final Relief: Gumanmal Lodha and N.M. Kasliwal, JJ.:

218. The petitioners, namely, Gajrajsingh and Sheeshram, being the permanent employees and since their services were terminated by invoking Clause 13 of the Standing Orders, 1965 and without compliance of Chapter V-A and even Section 25F of the Industrial Disputes Act, 1947, their orders of termination of services are quashed and they are ordered to be reinstated.

219. Amarsingh, Bhanwarial, Narpat Singh II, Jagdish Prasad Sharma, Mohd. Ahmed Khan, all the petitioners are admittedly permanent employees and since the bedrock of the impugned orders of termination of their services is Clause 13, the termination orders are liable to be quashed and are hereby quashed. Further, since in their cases, there has been non-compliance of Section 25G of the Industrial Disputes Act, the orders of retrenchment are also liable to be quashed on this ground, alone and, are hereby quashed and, all of them are entitled to reinstatement and they are ordered to be re-instated.

220. Pyaresingh, Bhaiya Ram, Ramkumar Singh, Kanwarsingh Yadav, Prabhakar Narain Singh, Bajrang Lal, Raghubirsingh, the petitioners are also permanent employees and the petitioners, namely Durgasingh Bhati, Sitaram Seliwal, Bhan-warsingh and Bheru Prasad are said to have been appointed on regular posts. Since Clause 13 of the Standing Orders, 1965 have been declared illegal and invalid, the impugned orders of termination of services of the petitioners mentioned above in this para are quashed and they are ordered to be reinstated.

221. The petitioners, namely, Sukhdev, Bar-pheel Singh, Bhanwarlal, Durga Singh, were' admittedly not given any notice under Section 25F of the Industrial Disputes Act, nor they were paid one month's salary in lieu of notice, therefore the impugned orders of termination of their services are liable to be quashed on this ground also in addition to non-compliance of Section 25G of the Industrial Disputes Act. Their termination orders are hereby quashed and set aside and the petitioners named in this para above are also ordered to be reinstated.

222. The petitioners, namely, Haripalsingh, Jaisingh, Kailash Chand Sharma, Surendra Kumar, Deeparam, Murarilal, Krishna Murari, Purshottam Das, Shankerlal ShukJa, Banwarilal, Badri Prasad, Dharam Pal, Gulab Chand II, Trilok Chand Sharma, Sarwanlal, all are temporary employees but since Section 25G of Chapter V-A of the Industrial Disputes Act, 1947 was n6t complied with, the impugned orders of termination of their services are liable to be quashed and are quashed and set aside and consequently they are ordered to be reinstated.

223. The petitioners, namely, Prem Singh, Te-jusingh, and Mukesh Chand Sharma, are said to have been temporary employees but they were not paid salary of one month nor they were given notice under Section 25F of the Industrial Disputes Act, 1947 and Section 25G of the Chapter V-A of the Act, 1947 was not complied, the impugned orders of termination are, therefore, quashed and set aside and consequently they are ordered to be reinstated.

224. In the net result, all the writ petitions (as per Schedule 1) are allowed as indicated above and the orders terminating the services of the all petitioners are quashed. The petitioners will be entitled to be reinstated forthwith.

225. Normally the workmen become entitled to back wages as soon as it is held that the retrenchment was illegal, but in these cases, no opportunity has been given to the respondents to show that all the petitioners or which of them were gainfully employed during this period. It is neither appropriate nor proper for this Court to decide this question in these writ proceedings. The actual amount of such back wages could be decided in each individual case separately in proceedings under Section 31-C(2) of the Industrial Disputes Act. The petitioners would be entitled to move application under Section 33C(2) of the Act for deciding the quantum of back wages and the Labour Court shall decide the amount after giving full opportunity to both the parties to lead evidence in this regard. The Labour Court in deciding such amount shall also adjust the accounts which have been already paid to the petitioners in pursuance to orders of this Court during the pendency of these writ petitions before the learned single Judge or the Full bench. It is further made clear that the amount already paid to the petitioners in pursuance to orders of this Court during the pendency of these proceedings, would not be refundable to the Corporation, in case no application is moved by anyone of the petitioners under Section 33C(2) of the Act.

226. The Corporation would be free to take any appropriate action or pass any fresh orders in accordance with law and this judgment would not come in their way.

Gumanmal Lodha, N.M. Kasliwal and K.S. Sidhu, JJ.

227. All the terminations of the petitioners' services are in contravention of the provisions of Section 25G of the Industrial Disputes Act.

228. We, therefore, accept all these writ petitions as per Schedule A and declare the impugned orders of termination of their services, as invalid. Both the parties would bear their own costs of the writ petitions.

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Rajasthan High Court - Jaipur