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Calcutta Dock Labour Board Vs. Jaffar Imam and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC282; 1966CriLJ189; [1965(11)FLR72]; (1965)IILLJ112SC; [1965]3SCR453
ActsPreventive Detention Act, 1950 - Sections 3(1), 7, 8, 9, 10(1) and 11; Dock Workers (Regulation of Employment) Act, 1948 - Sections 4(1)
AppellantCalcutta Dock Labour Board
RespondentJaffar Imam and ors.
Cases Referred and Lala Shri Bhagwan and Another v. Shri Ram Chand
Excerpt:
.....be a deed of settlement. - 9. it is well-known that the act hadmade a provision for referring orders of detention to the advisory boardsconstituted under s. accordingly, therespondents showed cause against the proposed order, but the deputy chairman ofthe appellant was not satisfied with their representation, and so, heterminated their services on december 17, 1956. while doing so, each one ofthem was given 14 day's wages in lieu of notice for the equivalent period. both the original as well as the appellate orders unequivocally state thathaving regards to the fact that the respondents had been detained, and thattheir detention was confirmed continued after consultation with the advisoryboard, it is clear that they were guilty of the conduct alleged against them inthe orders of..........not be taken againsthim. clause 36a provides for the disciplinary powers of the chairman of theboard. clause 37 deals with termination of employment. clauses 38 and 39provides for appeals. that, in brief, is the nature of the scheme. this schemewas substituted by another scheme in 1956. clause 45(6) of this new schemecorresponds to clause 36(3) of the earlier scheme. in other words, the relevantclauses under both the schemes require that before any disciplinary action istaken against a worker, an opportunity must be given to him to show cause whythe proposed action should be taken against him. 10. there can be no doubt that when the appellant purports to exercise itsauthority to terminate the employment of its employees such as the respondentsin the present case, it is exercising.....
Judgment:

Gajendragadkar, C.J.

1. These three appeals arise out of three writ petitions filed by the threerespondents, Jaffar Imam, Brindaban Nayak and Jambu Patra, respectively on theOriginal Side of the Calcutta High Court against the appellant, the CalcuttaDock Labour Board. Each one of the respondents challenged the validity of theorder passed by the appellant, terminating his employment as a registered dockworker with the appellant, on the ground that the said order was illegal andinoperative. The basis on which the impugned orders were challenged was thatthe enquiry which had been held before passing the said orders had not affordedto the respondents a reasonable opportunity to defend themselves and as such,principles of natural justice had not been followed and even the relevantstatutory provision had been contravened. The writ petitions filed by JaffarImam and Jambu Patra were heard by Sinha, J., whereas the writ filed byBrindaban Nayak was heard by P. B. Mukherji, J. The learned single Judges whoheard these respective writ petition substantially took the same view andrejected the contentions raised by the respondents. In the result, the writpetitions were dismissed.

2. Against these decisions, the respondents preferred appeals before aDivision Bench of the Calcutta High Court. The Division Bench has allowed theappeals and has issued an appropriate writ directing that the impugned orderswhich the employment of the respondents was terminated by the appellant shouldbe quashed. The appellant then applied for and obtained a certificate from thesaid High Court and it is with the certificate thus granted to it that it hascome to this Court in appeal.

3. It appears that the three respondents were Dock workers attached to thePort of Calcutta and were registered in the Reserve Pool. On August 12, 1955,the Commissioner of Police, Calcutta passed an order under s. 3(1)(a)(ii) of the Preventive Detention Act, 1950 (No. 4 of 1950) (hereinafter called 'theAct') directing that the respondents should be detained, as he was satisfiedthat they were guilty of violent and riotous behavior and had committedassault and as such, it was necessary to detain them with a view to preventingthem from acting in any manner prejudicial to the maintenance of public order.The respondents then made representations to the State Government under s. 7 ofthe Act alleging that the grounds set out in the detention orders passedagainst them were untrue and that their detention was in fact malafide.

4. On receipt of these representations, they were forwarded by the StateGovernment to the Advisory Board under s. 9. It is well-known that the Act hadmade a provision for referring orders of detention to the Advisory Boardsconstituted under s. 8. When the Advisory Board received the representationmade by the respondents, it took into account the material before it,considered the said representation, and submitted its report within the timespecified by s. 10(1). Since the report was against the respondents, theirdetention was confirmed by the State Government under s. 11 of the Act and inconsequences, their detention was continued for about 11 months.

5. After they were released from detention, they applied for allocation toregistered dock employment, but instead of passing orders in favour of suchallocation, the appellant commenced disciplinary proceeding against them andnotices were served on them to show cause why their services should not beterminated on 14 days' notice in terms of clause 36(2)(d) of the Calcutta DockWorkers (Regulation of Employment) Scheme, 1951 (hereinafter called 'theScheme'). The principal grounds in these notices was that the respondentshad been detained for acts prejudicial to the maintenance of public order andas such, their services were liable to be terminated. Accordingly, therespondents showed cause against the proposed order, but the Deputy Chairman ofthe appellant was not satisfied with their representation, and so, heterminated their services on December 17, 1956. While doing so, each one ofthem was given 14 day's wages in lieu of notice for the equivalent period. Therespondents challenged this decision by preferring appeals to the chairman ofthe appellant, but their appeals did not succeed and the orders passed by theDeputy Chairman were confirmed on April 4, 1957. It is against these appellateorders that the respondents filed the three writ petitions which have givenrise to the present appeals.

6. It is plain that both the Deputy Chairman who has passed the impugnedorders against the respondents and the Chairman of the appellant who heard therespondents' appeals, have taken the view that the orders of detention passedagainst the respondents, in substance, amounted to orders of conviction and assuch, the appellant was justified in terminating the respondents' employment.Both the original as well as the appellate orders unequivocally state thathaving regards to the fact that the respondents had been detained, and thattheir detention was confirmed continued after consultation with the AdvisoryBoard, it is clear that they were guilty of the conduct alleged against them inthe orders of detention. In that connection it was pointed out that theAdvisory Board consisted of persons of eminent status and undoubtedimpartiality, and so, the fact that the representation made by the respondentswere not accepted by the Advisory Board and that their detention was confirmedby the State Government in consultation with the Advisory Board, was enough tojustify the appellant in terminating the employment of the respondents.

7. The two learned single Judges who heard the respective writ petitionssubstantially took the same view. Sinha, J. has observed that the respondentshad a hearing before a very responsible body and the report that went againstthem showed that the detaining authority was justified in holding that therespondents were guilty of the charges and had thus committed acts ofindiscipline and misconduct within the meaning of the Scheme. In fact, J., feltno hesitation in holding that the appellant would be entitled to takedisciplinary action against the respondents upon suspicion, and he held thatthe appellant's suspicion against the respondents was more than justified bythe fact that the detention of the respondents received the approval of theAdvisory Board. P. B. Mukherjee, J., also approached the question on the samelines. He held that the appellant was entitled to take into consideration thefact that the respondents had been detained, that the statutory Advisory Boardhad considered the representations of the respondents and had not acceptedthem, and that the grounds of detention showed that the detaining authority wassatisfied that the respondents were guilty of the conduct which was prejudicialto the maintenance of public order. 'In the premises', said thelearned Judge, 'I am satisfied that the order terminating BrindabanNayak's services was justified'.

8. The Court of Appeal which heard the three appeals filed by therespondents against the respective orders passed by the two learned singleJudges has disagreed with the approach adopted by them in dismissing therespondents' writ petitions. It has held that in acting merely on suspicionbased on the fact that the respondents had been detained, the appellant hadacted illegally and that made the impugned orders invalid and inoperative. Mr.B. Sen for the appellant contends that the view taken by the Court of Appeal iserroneous in law.

9. Before dealing with this point, it would be useful to refer to therelevant provisions of the Scheme. The Scheme has been made by the CentralGovernment in exercise of the powers confirmed on it by sub-s. (1) of s. 4 ofthe Dock Workers (Regulation of Employment) Act, 1948 (IX of 1948). Clause 3(n)defines a 'reserve pool' as meaning a pool of registered dock workerswho are available for work, and who are not, for the time being, in theemployment of a registered employer as a monthly workers. The three respondentsbelong to this category of workers. Clause 23 of the Scheme guarantees thespecified minimum wages to workers on the Reserve Pool Register. Clause 29prescribes the obligations of registered dock workers, whereas clause 30provides for the obligations of registered employers. Clause 31 prescribes restrictionon employment, Clause 33 deals with wages, allowances and other condition ofservice, whereas clause 34 is concerned with pay in respect of unemployment orunderemployment. Clause 36 deals with disciplinary procedure and it is withthis clause that we are directly concerned in these appeals. Clause 36(2)provides that a registered dock worker in the Reserve Pool who is available forwork and fails to comply with any of the provisions of the Scheme, or commitsany act of indiscipline or misconduct may be reported in writing to the SpecialOfficer, who may, after investigating the matter and without prejudice to andin addition to the powers conferred by clause 35, take any of five stepsindicated by sub-clause (a) to (e) regards that worker. Sub-clause(e) refers todismissal of the guilty workman. Clause 36(3) lays down that before any actionis taken under sub-clause (1) or (2), the person concerned shall be given anopportunity to show cause why the proposed action should not be taken againsthim. Clause 36A provides for the disciplinary powers of the Chairman of theBoard. Clause 37 deals with termination of employment. Clauses 38 and 39provides for appeals. That, in brief, is the nature of the Scheme. This Schemewas substituted by another Scheme in 1956. Clause 45(6) of this new Schemecorresponds to clause 36(3) of the earlier Scheme. In other words, the relevantclauses under both the schemes require that before any disciplinary action istaken against a worker, an opportunity must be given to him to show cause whythe proposed action should be taken against him.

10. There can be no doubt that when the appellant purports to exercise itsauthority to terminate the employment of its employees such as the respondentsin the present case, it is exercising authority and power of a quasi-judicialcharacter. In cases where a statutory body or authority is empowered toterminate the employment of its employees, the said authority or body cannot beheard to say that it will exercise its powers without due regard to theprinciples of natural justice. The nature of the character of the proceedingswhich such a statutory authority or body must adopt in exercising itsdisciplinary power for the purpose of terminating the employment of itsemployees, has been recently considered by this Court in several cases, videthe Associated Cement Companies Ltd., v. P. N. Sharma & Another, : (1965)ILLJ433SC and Lala Shri Bhagwan and Another v. Shri Ram Chand & Anr., : [1965]3SCR218 and it has been held that in ascertaining the nature ofsuch proceedings with a view to decide whether the principles of naturaljustice ought to be followed or not, the tests laid down by Lord Reid in Ridgev. Baldwin & Others L.R.1964. A.C. 40 are relevant. In view of thesedecisions, Mr. Sen has not disputed this position and we think, rightly.

11. Therefore, the question which falls to be considered is whether theappellant can successfully contend that it was justified in action uponsuspicion against the respondents, the basis for the suspicion being that theywere detained by orders passed by the appropriate authorities and that the saidorders were confirmed by the State Government after consultation with theAdvisory Board. It is hardly necessary to emphasise that one of the basicpostulates of the rule of law as administered in a democratic country governedby a written Constitution, is that no citizen shall lose his liberty without afair and proper trial according to law; and legal and proper trial according tolaw inevitably means, inter alia, a trial held in accordance with the relevantstatutory provisions or in their absence, consistently with the principles ofnatural justice. The Act is an exception to this rule and in that sense, itamounts to an encroachment on the liberty of the citizen. But the said Act hasbeen held to be constitutionally valid, and so far as detention of a citizeneffected by an order validly passed by the appropriate authorities in exerciseof the powers conferred on them is concerned, its validity can be challengedonly on grounds permissible in the light of the relevant provisions of the Actor on the ground of malafides. Whenever detenus move the High Courts or theSupreme Court challenging the validity of the orders of detention passedagainst them, the scope of the enquiry which can be legitimately held in suchproceedings is thus circumscribed and limited. In such proceedings, Courtscannot entertain the plea that the loss of liberty suffered by the detenu byhis detention is the result of mere suspicions entertained by the detainingauthorities, provided the detaining authorities act bona fide; their subjectivejudgment about the prejudicial character of the activities or conduct of thecitizen sought to be detained, is not open to challenge or scrutiny in ordinarycourse, and in that sense, it may have to be conceded that the loss of libertyhas to be suffered by a citizen if he is detained validly under the relevantprovisions of the Act. Thus far, there is no dispute.

12. But the question which we have to consider in the present appeals is ofa different character. A citizen may suffer loss of liberty if he is detainedvalidly under the Act; even so, does it follow that the detention order whichdeprived the citizen of his liberty should also serve indirectly buteffectively the purpose of depriving the said citizen of his livelihood Ifthe view taken by the appellant's officers who tried the disciplinaryproceedings is accepted, it would follow that if a citizen is detained and hisdetention is confirmed by the State Government, his services would beterminated merely and solely by reason of such detention. In our opinion, sucha position is obviously and demonstrably inconsistent with the elementaryconcept of the rule of law on which our constitution is founded. When a citizenis detained, he may not succeed in challenging the order of detention passedagainst him, unless he is able to adduce grounds permissible under the Act. Butwe are unable to agree with Mr. Sen's argument that after such a citizen isreleased from detention, an employer, like the appellant, can immediately startdisciplinary proceedings against him and tell him in substance that he wasdetained for the prejudicial activities which amount to misconduct and that thedetention order was confirmed by the State Government after consultation withthe Advisory Board, and so, he is liable to be dismissed from his employment.It is obvious that Advisory Board does not try the question about the proprietyor validity of the citizen's detention as a Court of law would; indeed, itsfunction is limited to consider the relevant material placed before it and therepresentation received from the detenu, and then submit its report to theState Government within the time specified by s. 10(1) of the Act. It is notdisputed that the Advisory Board considers evidence against the detenu whichhas not been tested in the normal way by cross-examination; its decision isessentially different in character from a judicial or quasi-judicial decision. Insome cases, a detenu may be given a hearing; but such a hearing is often, ifnot always, likely to be ineffective, because the detenu is deprived of anopportunity to cross examine the evidence on which the detaining authoritiesrely and may not be able to adduce evidence before the Advisory Board to rebutthe allegations made against him. Having regard to the nature of the enquirywhich the Advisory Board is authorised or permitted to hold before expressingits approved to the detention of a detenu, it would, we think, be entirelyerroneous and wholly unsafe to treat the opinion expressed by the AdvisoryBoard as amounting to a judgment of a criminal court. The main infirmity whichhas vitiated the impugned orders arises from the fact that the said ordersequate detention of a detenu with his conviction by a criminal court. We are,therefore, satisfied that the Court of Appeal was right in taking the view thata departmental enquiry which the appellant held against the respondents it wasnot open to the appellant to act on suspicion and inasmuch as the appellant'sdecision is clearly based upon the detention orders and nothing else, there canbe little doubt that, in substance, the said conclusion is based on suspicionand nothing more.

13. Even in regard to its employees who may have been detained under theAct, if after their release the appellant wanted to take disciplinary actionagainst them on the ground that they were guilty of misconduct, it wasabsolutely essential that the appellant should have held a proper enquiry. Atthis enquiry reasonable opportunity should have been given to the respondentsto show cause and before reaching its conclusion, the appellant was bound tolead evidence against the respondents, give them a reasonable chance to testthe said evidence, allow them liberty to lead evidence in defence, and thencome to a decision of its own. Such an enquiry is prescribed by therequirements of natural justice and an obligation to hold such an enquiry isalso imposed on the appellant by clause 36(3) of the Scheme of 1951 andclause 45(6) of the Scheme of 1956. It appears that in the present enquiry, therespondents were not given notice of any specific allegations made againstthem, and the record clearly shows that no evidence was led in the enquiry atall. It is only the detention orders that were apparently produced and it ison the detention orders alone that the whole proceedings rest and the impugnedorders are founded. That being so, we feel no hesitation in holding that theCourt of Appeal was perfectly right in setting aside the respective orderspassed by the two learned single Judges when they dismissed the three writpetitions filed by the respondents.

14. Mr. Sen strenuously contended that if we were to insist upon a properenquiry being held against the respondents before terminating their services,the appellant would find it impossible to take any disciplinary action againstthem. He urges that the respondents are bullies and they have terrorised theirco-workers to such an extent that no one would be willing or prepared to giveevidence against them in a departmental enquiry. Even assuming that Mr. Sen isright that the appellant would experience difficulty in bringing home itscharges to the respondents, we do not see how much a fear could justify theapproach adopted by the enquiry officer in the present case. What would happenif a desperate character who is in the employment of the appellant had not beendetained under the Act In such a case, before the appellant can validlydismiss such an employee, it will have to hold proper enquiry. The circumstancethat the respondents happened to be detained can afford no justification fornot complying with the relevant statutory provision and not following theprinciples of natural justice. Any attempt to short-circuit the procedure basedon considerations of natural justice must, we think, be discouraged if the ruleof law has to prevail, and in dealing with the question of the liberty andlivelihood of a citizen, considerations of expediency which are not permittedby law can have no relevance whatever.

15. The result is, the appeals fall are dismissed with costs.

16. Appeals dismissed.


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