Guman Mal Lodha, J.
1. High sounding, well-intentioned, radical directive of 'participation of workers in management' of Industries, an important golden relic of 42nd amendment has with stood scrapping by and scrutiny of 44th Amendment and is still enshrined as Article 43A of the Constitution. Whether this directive accepted and honoured or kept as a decoration and illumination of statute only, is a question on which legislature and, not judiciary, can adjudicate.
2. The echo of this Article which was a red letter day for the workers (Kamgars) in consonance with preamble proclaiming inter alia 'Justice Social, & economic and equality of Status and Opportunity for the lowest in the ladder may now be first heard in the following historical directive of part IV:
43-A. The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry.
3. Cost work norms of development officers, whether in consonance with the above directive has assumed new dimensions of debate. Whether officers are workers and whether instead of bilateral or tripartite agreement fixing the cost work norms, ensuring work by the legislative fiat uni-laterally is a befitting tribute to Article 43A is yet another billion dollar question in this constitutional post mortem.
4. High stakes involved are of the service condition- of about 10000 development officers who prefer to call them selves as workers, for the purpose of invoking Article 43A and protective umbrella of Industrial Disputes Act
5. An officer being termed as Labourer, workman or worker sounds odd. It prima facie appears to be paradoxical and contradiction in terms, as 'Afsar' and 'Kamgar' are in common parlance 'Raja' and 'raiyat' the ruler and the ruled.
6. Law contemplates, legal fiction and need not always be based on common parlance or common sense. That is the petitioners precise plea that term' 'officer' is misnomer.
7. Corporation's insistence for providing cost work norms and consequently reduction and deduction in wages and termination if necessary on failure, has resulted in the impugned twin 1978 orders which are in fume and tire. The fire has sparked of on the ashes of 1971 tripartite agreements funeral after bunal of the 'Blue order' and now the traditional fact.
8. This is a bunch of 43 writ petitions (as per Schedule A) filed by the Development officers of the Life Insurance Corporation of India. The Life Insurance Corporation of India was established under the Life Insurance Corporation Act, 1956 (here in after referred to as 'the Act') with effect from 1st September, 1956; due to historical nationalisation wave.
9. The Life Insurance Corporation (here in after L I C ) introduced a self-contained Code of work-norms in 1976 with in-built incentives and disincentives. There were protests, go-slow and strikes. As a measure of good will, after a Parliamentary debate, several rounds of tri-partite talks between Government, L.I.C. and the Federation were held. No compromise or agreement could be reached.
10. The Corporation thereafter notified new norms in 1978, which it claims to be more liberal. This laying down of norms in 1978 by notifications did not have a smooth sailing. Again there were agitations and there were protests. These protests have ultimately resumed a Shape- of legal challenge in this Court as well as in some other High Courts, where in the validity of notifications of 1978 have been challenged on various grounds.
11. The twin notifications dated the 19th December, 1978 have been filed by the petitioner as Annexure 1 and 2 in the writ petition of H. S. Chauhan.
12. After the arguments were heard and the judgment was scheduled to be dictated, an application was made by some of the petitioners that Supreme Court of India has granted special leave petition to appeal in Patna eases and they are likely to be heard on 30th March, 1982 and, therefore, dictation of judgment may be deferred. Consequently, the dictation of judgment was deferred.
13. However, it is common ground that leave petitions have not been heard on 30th March, 1982 or any other date so far. In view of this, I am of the opinion that it would not be in the interest of justice to keep these matters pending indefinitely as arguments were concluded before this Court on 21st October, 1981 and since then for one reason or the other adjournments have been sought and requests have been made for deferring the dictation of judgment which have been accepted.
14. Before dictating the judgment, I suggested to the learned Counsel that as issues of great legal importance are involved and I am feeling great difficulty in taking decisions one way or the other, the writs may be referred to a larger bench. Even this suggestion was not accepted by the learned Counsel for petitioners. Mr. Garg pointed out that the case has been heard at length and judgment has been deferred many times at their requests and now the issue must be decided one way or the other. In view of this, I have opted to decide the cases on merits, with great reluctance.
15. The Development Officers, petitioners in all these cases have challenged the fixation of the norms by the 1978 notifications. According to them, the respondents are not competent and authorised to fix the norms, as has been done by notifications of 1978 and these notifications are invalid and ultravires.
16. The petitioner's case is that:
(1) Firstly under Section 11 of the Act the respondents are not competent of fix the norms or such service conditions as laid down in 1978 notification now;
(2) Secondly, these norms which have been fixed now by the impugned notifications are violative of Articles 14 and 16 of the Constitution;
(3) Thirdly, the impugned notifications are violative of Articles 19 and 31 of the Constitution.
(4) Fourthly, the notifications are liable to be declared ultra vires on account of principle of 'promissory estoppel'.
(5) Fifthly, notifications have got retrospective effect and, therefore, it is invalid;
(6) Sixthly, the petitioners are 'workmen' and as there was earlier agreement and settlement between the parties in 1971, that settlement or agreement cannot be changed or altered by law unilaterally.
(7) Lastly, the 44th amendment by which the fundamental right to hold property has been taken away, is ultra vires and the rights of the petitioners to earn salary and allowance as they existed earlier before the impugned notifications came into force, were their property.
17. At the very outset, it would be necessary to take notice of Section 11(2) of the Act, which reads as under:
Where the Central Government is satisfied that for the purpose of securing uniformity in the scales of remuneration and the other terms and conditions of service applicable to employees of insurers whose controlled business has been transferred to, and vested in, the Corporation, it is necessary so to do, or that, in the interests of the Corporation and its policy-holders, a reduction in the remuneration payable, or a revision of the other terms and conditions of service applicable, to employees or any class of them is called for, the Central Government may, not with standing anything contained in Sub-section (1), or in the Industrial Disputes Act, 1947. or in any other law for the time being in force, or in any award, settlement or agreement for the time being in force, alter (whether by way of reduction or otherwise) the remuneration and the other terms and conditions or service to such extent and in such manner as it thinks fit;.
18. The Central Government issued an order on 20th December, 1957 which was popularly known as 'Blue order' containing the provisions regarding the terms and conditions of service of the existing Insurers. An order under Section 11(2) was issued on 8th April, 1976 by which terms and conditions as well as the scale of pay of such Development Officers were further altered. This order was challenged in some courts and while the matter was pending in many High Courts, the Central Government in supersession of the aforesaid order issued another order dated 19th August, 1978 which is the impugned order in the present cases.
19. It may also be noticed that Life Insurance Corporation (Staff) Regulations, 1956 were replaced by the Life Insurance Corporation (Staff) Regulations, 1960. A notification under Section 49(b)(bb) was issued on 21st April, 1974 by the Corporation amending certain provisions of the aforesaid Staff Regulations, 1960. Here again, a controversy was raised in the earlier writ petitions. On 19th December, 1978 the Corporation superseded the order of 1976 and issued Life Insurance Corporation (Staff) VI Amendment Regulations, 1978 which is Annexure 2 in the present writ petition.
20. It would thus be seen that Annexures 1 and 2 both are under challenge in the present cases.
21. The earlier disputes between the Development Officers and the Corporation were solved by settlements dated 20th May, 1968 and 19th November, 1971. The petitioners case is that these settlements cannot be altered unilaterally. The petitioners' case in respect of Section 11(2) is that the power under Section 11(2) could be initially exercised by the Central Government only for securing uniformity in the service and other terms and conditions of service of the employees of the erstwhile insurers, and who were transferred to the Corporation & not in reducing the remuneration payable or revising the other terms and conditions of service. Both Mr. Garg as well as Mr. Jain who appeared for the petitioners vehemently contended that these powers can be exercised by the Central Government only in the process of transfer & for the integration of the employees of the erstwhile insurers. On these premises, it was argued that since the impugned Order of 1978 does not relate to the process of transfer and integration, the same is incompetent, illegal and invalid.
22. The validity of the said Order was first challenged on the ground that power under Sub-section (2) of Section 11 can be exercised by the Central Government only for the purpose of securing uniformity in the scales of remuneration and other terms and conditions of services applicable to the employees whose services stood statutorily transferred to the Corporation under Sub-section (1) of Section 11 of the Act. It was urged that the impugned order does not purport to bring any uniformity in the scales or remuneration and other terms and conditions. The object mentioned in the order is that the 'Central Government is satisfied that in the interest of the Corporation and its policy-holders revisions of the terms and conditions of service applicable to certain class of employees of the Corporation are called for.' As such, it has to be examined whether the Central Government could have issued the order for that purpose.
23. On a plain reading of Sub-section (2) of Section 11 it will appear that the order under that sub-section can be issued by the Central Government and being satisfied that such order was necessary, (i) for the purpose of securing uniformity in the scales of remunerations and other terms and conditions of service applicable to the employees, or (ii) in the interest of the Corporation and its policy holders. If the aforesaid two clauses are disjunctive then power can be exercised under that sub-section for either of the objects. On the other hand, if 'or' is to be read as 'and', then it has to be established by the Central Government that such power was exercised not only in the interest of the Corporation and its policy-holders but at the same time for securing uniformity in the scales of remunerations and other terms and conditions of service of its employees. The argument that 'or' has to be read as 'and' and requirements of both clauses have to be fulfilled before (he power under that sub-section can be exercised was also urged before different High Courts in connection with the 1976 Order which was subject matter of challenge. Reference in this connection may be made to the judgment of Gujarat High Court in the case of Harivadan K. Desai and Ors. v. Life Insurance Corporation of India and Ors. 1977 (2) Labour & IC 1072, the judgment of Madras High Court in the case of K.S. Ramaswamy v. Union of India and Ors. 1977 (i) LLJ 211 and the judgment of Calcutta High Court in the case of Himangshu Kumar Chakraborty and Ors. v. Life Insurance Corporation of India and Ors. 1979 (2) Labour & IC 1417 It was held in the aforesaid cases that Sub-section (2) of Section 11 contained two distinct and separate powers which have to be exercised taking into consideration the condition prevailing.
24. However, later the scope of that sub-section was considered by the Supreme Court in the case of the Life Insurance Corporation of India v. D.J. Bahadur and Ors. : (1981)ILLJ1SC . In that case, the Supreme Court had to Consider the validity of an order issued under Sub-section (2) of Section 11 curtailing the bonus of certain categories of employees of the Corporation. Krishana Iyer, J. and Pathak J , by majority judgment held that the order was invalid. Koshal, J. in his dissenting judgment upheld the power of the Central-Government to issue such an order. One of the submissions which had been made on behalf of the employees in that case, was that the order in question had not been issued for the purpose of securing uniformity in the scales of remuneration and other terms and conditions of the service applicable to the transferred employees. While considering the scope of Section 11(2) it was pointed out by Pathak J.,:
Sub-section (2) of Section 11, by its first limb confers power on the Central Government to alter the scales of remuneration and other terms and conditions of service applicable to transferred employee... The power under this part of Sub-section (2) is intended for the purpose of securing uniformity among them. The second limb of Sub-section (2) is the source of controversy before us. It empowers the Central Government to reduce the remuneration payable or revise the other terms and conditions of service. That power is to be exercised when the Central Government is satisfied that the interests of the Corporation and its policy-holders require such reduction or revision.
Then it was observed:
Now turning to the notification dated 26th May, 1978 which inserted the new Clause (9) in the Standardisation Order, it is evident from the recital with which it opens that it is intended to apply to transferred employees only. It declares explicity that the Central Government is satisfied that a revision of the terms and conditions of service of the transferred employees is considered necessary. However, there is nothing to show that the amendment is related to the process of transfer and integration.
According to Pathak, J. the exercise of power under Sub-section '2) of Section 11 must be related to the process of transfer and integration, in absence of which the Order has to be held to be invalid. Koshal, J. on the other hand, held that the two parts of Section 11, referred to above, are disjunctive and 'or' should not be read as 'and' as such, Central Government can also exercise the power under that sub-section if it is satisfied that i' was in the interest of Corporation and its policy-holders. Krishna Iyer, J., did not express his view on this aspect of the matter, the result will be that the majority judgment declaring the notification under challenge invalid rest on ground/other than one with which we are concerned The observation of Pathak J., supports the contention urged on behalf of the petitioners.
25. A division Bench of Patna High Court in Bipin Sinha and Ors. v. Union of India D.B. Civil Writ Petition No. 2905/1979 decided on 30th September, 1981) had followed the view of Hon. Koshal, J. in D.J. Bahadur's case (supra) and rejected the petitioners' writs.
26. In respect of Section 11(2) of the Act, I have got serious doubt about the view taken by the Patna High Court that it can be applied perpetually for laying down the service conditions of the L. I. C. employees even after the process of integration is over. In this aspect, while discussing the D.J. Bahadur's case (supra), [ have observed above that there is a divergence of views between Justice Koshal and Justice Pathak of the Supreme Court. The detailed reasons given in that judgment of the two Judges of the Supreme Court, both of whom are Judges of the Apex Court, cannot be discussed by this Court for the purpose of their comparative assessment on merits. All that can be said is that on a thoughtful consideration of the entire matter, I am inclined to follow the weighty reasons given by Justice Pathak of Supreme Court for holding that Section 11(2) of the Act was meant for transitional integration period of transfer of employees and it cannot be used now again for the purpose of a change in the conditions of service of the employees, who has been recruited after the integration was over or transferred.
27. To put it in other words, I am inclined to take the view that Section 11(2) of the Act could not have been used for the purpose of issuing Annexure 1 in 1978 That being so, the Life Insurance Corporation Development Officers (Alteration of Remuneration and other terms and conditions of Service Order, 1978, is ultra vires because it could not have been issued under Section 11(2) of the Act of 1956.
28. As a legal and logical corrolary to it, the regulations which are nothing, but the reproduction of the above order purported to have been issued on the same date as the Life Insurance Corporation of India (Staff) sixth Amendment Regulations, 1978 under Section 49 of the Act is invalid.
29. It may be mentioned here that the majority judgment in D.J. Bahadur's case, though specially confined to the question of special law versus general law deals with Section 11(2) of the Act also. The observations of the Hon. Justice Krishna Iyer are important. Paras 9 and 10 read as under:
The Corporation, to begin with, had to take over the staff of the private insurers lest they should be thrown out of employment, on nationalisation. These private companies had no homogenous policy regarding conditions of service for their personnel, but when these heterogenous crowds under the same management (the Corporation) divergent emoluments and other terms of service could not survive and broad uniformity became a necessity. Thus, the statutory transfer of service from former employers and standardisation of scales of remuneration and other conditions of employment had to be and were taken care of by Section 11 of the Life Insurance Corporation Act, 1956 for short, the LIC Act). The obvious purpose of this provision was to enable the Corporation initially to absorb the motley multitudes from many companies who carried with them varying incidents of service so as to fit them into a fair pattern, regardless of their antecedent contracts of employment of industrial settlements or awards. It was elementary that the Corporation could not perpetuate incongruous features of service of parent insurers, and statutory power had to be vested to vary, modify or suspersede these contracts, geared to fair, equitable and, as far as possible, uniform treatment of the transferred staff. Unless there be unmistable (unmistakable) expression of such intention, the ID Act will continue to apply to the Corporation employees. The office of Section 11 of the LIC Act was to provide for a smooth take over and to promote some common conditions of service in a situation where a jungle divergent contracts of employment and industrial awards or settlements confronted the State. Unless such rationalisation and standardization were evolved the ensuing chaos would itself have spelt confusion, conflicts and difficulties. This functional focus of Section 11 of the LIC Act will dispel scope for interpretative exercises unrelated to the natural setting in which the problem occurs. The inference is clear that Section 11 does not repel the ID Act as that is not its purpose. Farewell to the context and fanatical adherence to the text may lead to the tyranny of literality-a hazardous road which misses the meaning or reaches a sense which the author never meant. Lord Denning has observed : 'A judge should not be a servant of the words used. He should not be a mere mechanic in the power house of semantics'. Reed Dickerson has in his THE INTERPRETATION AND APPLICATION OF STATUTES warned against' the disintegration of statutory construction' and quoted Fuller to say : 3
We do not proceed simply by placing the word in some general context ... Rather, we ask ourselves, what can this rule be for What evil does it seek to avert ?
(3) L. Fuller : Positivism and Fidelity to Law - Reply to Prof. Hart, 71 Harv L Rev 665, 666, 669).Surely the judicial process is something more than a cataloguing procedure..A rule or statute has a structural or systematic quality that reflects itself in some measure into the meaning of every principal term in it.
10. I lay so much emphasis on the guide-lines to statutory interpretation as this case turns solely on the seeming meaning of certain provisions (for e. g. Section 11) of the LIC Act as capable of perpetual use, not only initial exercise, as the Minister in Parliament indicated. But, as we will presently see, the decisive aspect of the case turns on another point, viz. the competing claims for dominance as between the ID Act and the LIC Act in areas of conflict. Of course, the problem of deciding the legislative intent is fraught with perils and pitfalls, as the learned Author has noted : 4
To do his cognitive job well, a judge must be unbiased, sensitive to language usages and shared tacit assumptions, perceptive in combining relevant elements affecting meaning, capable of reasoning deductively, and generously endowed with good judgment. In view of these formidable demands, it is hardly surprising that judges often disagree on the true meaning of a statute.
(4) Reed Dickerson : THE INTERPRETATION AND APPLICATION OF STATUTES, 1975 EDn., pp. 236-37.
Even so, legal engineering, in the province of deciphering meaning, cannot abandon the essay in despair and I shall try to unlock the legislative intent in the light of the next and as reflecting the context.
30. In para 10, the important question whether Section 11 can be taken use of perpetually has been referred and the Minister's statement in the Parliament has also been referred. Learned Counsel for the petitioner invited my attention to parliamentary debate of 1957, where in the Hon'ble Minister T. K. Krishnachari, in relation to the use of the word 'from time to time', as it was originally, stated as under:
Hon'ble Member Sri Prabhat Kar objecting to the phrase 'from time to time' said:
'Previously in Section 11(2), there was no scope for the Corporation to amend or alter the service conditions, from time to time. Now, there is the power granted to the Corporation and the Central Government to alter, from time to time...
So, not only we are thinking of the time when the Corporation is taking over the employees, but also of future. Here, power has been given to the Corporation and the Government to alter the service conditions of the employees to the detriment of the employees in future and employees will have no right ...'.
Now the Corporation and the Government want further power not only for today but for the future also. In future also, they will have power to alter the service conditions if necessary to the prejudice of the employees and the employees will have no right to take recourse to any industrial law that is binding on the employees or the Government today.
It was my feeling and I am quite sure by now that the Finance Minister has not properly gone through this particular drafting or he has not realised the repercussions of these particular lines. I am quite sure, when he was appealing to the House that an atmosphere should be created so that the insurance industry will prosper, it is not conducive to the prosperity of the industry that he should pay such powers for the Government which will make the life insurance employees feel all the time insecured because if they raise any demand or if they agitate above imposition of any service condition their service will be terminated...
31. Replying to the above criticism, the Minister said:
Therefore, if it would satisfy my Hon. friend, Sri Prabhat Kar, I shall remove these words by moving an amendment when the clause is considered. Our intention is to limit it to the process of integration. May be, something would be left out: something would be put down later. That integration would be made carrying with us a large majority of the workers. May be one or two persons may not like it....
Therefore, Hon'ble the Members Opposite who are viewing this point from the trade union point of view would find that I am with them. I am not against them. Therefore, if it will satisfy them; it is not a matter of my wresting a concession from them--1 shall, with your permission, Sir, move an amendment at the proper time for the deletion of the phrase 'from time to time'. This will give a double assurance to Hon'ble the members. Even if that amendment is not carried out, I do not propose to use that power which perhaps is conveyed by that phrase. So far as I am concerned, I will again plead guilty. I did not quite recognise the significance of that particular expression, otherwise I would not have put it in ..
Shri T.T. Krishnamachari: Sir, if I have the permission of the Chair, I would like to move one amendment of which I have not given any notice.
Mr. Deputy Speaker : The Hon. Minister may move it now. Shri T.T. Krishnamachari: I beg to move : Page 1, line 17. Omit the words, 'from time to time.
32. It may be noticed that after the above discussions the words, 'from time to time' were omitted. The objection resulting in omission of the phrase 'from time to time' was neither formality, nor an idle exercise of futility nor superficial attempt to reply the opposition charges; but it was meant as the Minister T.T. Krishnamachari, himself, said that it would be limited to the process of integration only.
33. If this is so, I am inclined to think that, though the Hon. Justice Krishna Iyer did not amplify this point any further, but read in the context of his earlier and later judgments, he has supported the view of Hon'ble Justice Pathak as well, in respect of interpretation of Section 11(2) also although, I think, as he later observed at some other place, he did not want to categorically decide this point, as in his opinion, the case could be decided on other points.
34. Viewed from this angle, I am convinced that I would be on firm foundation keeping in view the scheme of the Act, history of nationalisation and legislative history referred to above, in taking the above view that the impugned notifications cannot be issued under Section 11(2) and 49 of the Act and consequently they are ultra-vires and void.
35. It is now to be examined whether Development Officers are workmen and if so what is effect of the earlier agreement and settlements in relation to the impugned notifications. In other words now it is to be considered whether if the petitioners are held to be workmen, the impugned notifications can be held to be invalid being in contravention of the earlier agreements and settlements and the provisions of the Industrial Disputes Act.
36. Section 2(s) of the Industrial Disputes Act reads as under:
(s) 'Workman' means any person (including an apprentice) employed in any industry to do any skilled on unskilled -manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person, who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person:
(i) who is subject to the Army Act, 1950 (46 of 1950) or the Air Force Act, 1950 (45 of 1950), or the Navy (Discipline) Act, 1934 (34 of 1934) (1); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature (m).
37. The Development Officers by its high sounding name and designation in common parlance cannot be treated as workman as he is 'officer' even by name. However, it is established law that this Court is not debarred from unveiling and unearthing the real status and nature of service of an employee irrespective of the name and designation. By now the term 'workman' has been interpreted to have very wide connotation and meaning and includes many of employees who prima facie appears to be officers and Managers.
38. Shri S.K. Jindal, and Shri N.L. Tibrewal, the learned Counsel for the Corporation have contended that in view of the nature and duties of the Development Officers, they are not workman and this has been held to be so by various Tribunals in their judgments. Reliance was placed on judgments of Tribunals of Delhi, Hyderabad. The Labour Court at Jabalpur on the contrary has held that the Development Officers are workmen.:
The duty of rendering service to policy holders, carrying out investigation of claims, arranging and advising revival of lapsed policies and consequent filling up of various revival of lapsed policies and consequent filling up of various forms or helping them to fill the same, liason work in connection with the Salary Savings Scheme business, scrutiny of the working of the agents according to the rules, etc. carrying out of the instructions given by the superiors, submitting tour reports with relevant statements, depositing or remitting of the money collected by the agents, giving full details to the bank, issue of the receipts in case the amounts are directly collected, maintaining of records as are necessary for the purpose of achieving the target of business assigned to him so as to enable him to discharge the functions systematically and methodically and submission of such other statements or records as may be required of him from time to time and recommending the appointment of agents are duties of routine clerical nature which the Development Officer is required to perform. They cannot be said to be merely ancillary as they form part of the essential whole of the duties without which he will not be able to render service to the community or at least nor efficiently and methodically.
Similarly, on the basis of the tours undertaken by the Development Officers in connection with contacting and motivating agents and the like, the Court has come to the conclusion that the Development officers are expected to do manual work also. Thirdly, the Development officers have been held to perform duties involving some technical know-how, in as much as calculation of rates of premia, convassing of business etc., involve knowledge of a technical nature without the Development Officers would not be in a position to perform the duties assigned to them. In final the Court observed as under:In this way, the work of the Development Officer is a composite of skill, manual, work & thus bring him within four corners of definition of clerical and technical workmen given under Section 2(s) of the Industrial Disputes Act.
39. Learned Counsel for the petitioners has alleged that the agreement dated the 19th November, 1971 cannot be unilaterally altered without following the procedure prescribed in Section 9A of the Industrial Disputes Act. It has been argued that in the absence of such a procedure under Section 9A the Staff Regulations dated the 19th December, 1978 is unilateral altering the terms and conditions of the Development Officers would be ultra vires of Section 9(2) of the Act.
40. The service conditions of the petitioners are said to be in Anne-xure E filed in the replies of the respondents.
41. It is not in dispute that the wages of the petitioner exceed Rs. 500/-, but the petitioner's case is that a Development Officer is not covered under Sub-section (4) of Clause (s) of Section 2 of the Act.
42. Reliance was placed by the respondents on the Clauses (b) and (c) in para 11 of Annexure E containing the duties of the Development Officers which reads as under:
Your are required as outlined in your plan book:
(a) to secure through agents recruited by you and allotted to you a minimum life business of Rs. 6,00,000/- yielding first year's schedule premium income of not less than Rs. 24,000/- through at least 300 policies (from PS Mago's petition, substantially same in all petitions dependent on the basic pay allowed to the Development Officers).
(b) to recruit and train as many new agents as you may be advised to recruit;
(c) to supervise and motivate the agents allotted to you and see that the average output of these agents allotted to you is increased progressively from year to year and;
(d) to open as many new centres for development as you may be advised to open.
43. However, I am not inclined to deduce from the above paper duties, that the petitioners are not workmen.
44. The Development Officers work through the agents and the agents by and large are masters of their own will and choice. ' It is difficult to appreciate the submission of the respondent that the Development Officers supervise the activities of the agents. Contrary to it, I find force in the submission of Mr. Jain and Garg that it is the agents who usually ask the Development Officers to attend particular cases at particular time for convas-sing to the policy-holders. The Development Officers, therefore, act according to convenience of the agents, the prospective clients who become the policy holders and the medical examiners
45. The respondents have not produced any material before this Court to substantiate the allegation that the Develpoment Officers are required to train the agents 'A development Officer cannot fill even the confidential report of the agent and the agent is a free bird. There is nothing like training camp or training classes or training offices. It appears that the word, 'training' is misnomer.
46. Both Shri Jain and Shri Garg point out that the Corporation certainly has got a training approximately of six weeks for carrier agents who receive Rs. 300/- as stipend in the first year, but the Development Officer has got nothing to do with them. In fact, a Development Officer is not connected with these carrier agents. I am, therefore, convinced that the Development Officers neither supervise nor give any training to the agents and the mere mention of the same in their appointment orders cannot take them from the category of workmen. In All India Reserve Bank Employee's case : (1965)IILLJ175SC , it was held that whether a particular workman is a supervisor within definition of a workman, would clearly depend on the facts and circumstances of each case. In that case, the employee was a bank employee and used to check work of some other employees of the bank. But it was held that this checking would not be sufficient to treat him as a supervisory duty and consequently, they cannot be taken out of the definition of the word, 'workman'
47. An Assistant Manager of the Bank whose duties were of a purely clerical nature, was held to be a clerical staff and workman. These principles find support in the following decisions of the Supreme Court : Lloyd's Bank Ltd, v. Parma Lal : (1961)ILLJ18SC Punjab National Bank Ltd. v. Its workmen 1961 (2) LLJ 162 (SC); Burmah Shell Oil Storage and Distributing Co., of India Ltd. v. Burmah Shell Management Staff Association 1970 (2) LLJ 590 (SC).
A Development Officer can appoint none nor can remove any body. He exercises no powers. He has not been even entrusted of any power to give effect to or enforce any communication of the Corporation as he has not been included in schedule-4 of L.I.C. Staff Regulations, 1960. He cannot give any directions nor has he been clothed with any power to assign duties and distribution of work to any employee. Even an agent can opt to not to take command from the Development Officers.
48. It is true as argued by Mr. Garg & Shri Jain that though high sounding term, 'Officer' has been used against the Class II, still a Development Officer is merely an officer in the name sake. He exercises no power whatever over anyone in the employment of the Corporation including the Commission Agents. This position would become clear when reference is made to Schedule IV. Schedule IV takes into consideration several authorities like Chairman, Zonal Manager, Officers Incharge and many other Officers, but not the Development Officer, and he therefore, exercises no power whatever. His name is completely missing from the Schedule IV. He has not been entrusted with any power to give effect to or enforce any Regulation of the Corporation.
49. Further a Development Officer, who occupies no position of command or who cannot give any direction to any one in the employment of the Corporation including the Agents, cannot be regarded at all as an Officer. Likewise, the Development Officer has not been clothed with any power to assign duties and distribution of work to any employee working under him because no one works under him. Even the Agents do not work under him, for an Agent may refuse to take directions and command from the Development Officer, without committing any act of indiscipline or any insubordination. The Agents, who are either allotted to him or who are appointed on his recommendation, are not at all under his administrative, manual, supervisory or disciplinary control. The Development Officer has to perform rountine, manual, mechanical and clerical duties, even though he may have been designated as Development Officer.
50. The Development Officer has not even the power to appoint Agents. His duty is merely to recommend the names of the persons for appointments as Agents. It was for the Respondents to accept or even not to accept the recommendation of the Development Officer No disciplinary action could be taken or can be taken by a Development Officer against an Agent, whether appointed on his recommendation or otherwise. The authority for taking any action against an Agent on account of misconduct vests in the Corporation not in a Development Officer at all. The Agents are, responsible to the Respondent Corporation and not to the Development Officer at all even in regard to their conduct and procuring business. The Development Officer has no check on them. The act of recommending the name of a person for recruitment/appointment as an Agent would certainly not come within the domain of administrative or managerial function.
51. The letter of appointment on which reliance was placed by the respondents and which has been marked inmost of the writ petitions as Annexure 'E', provides in paragraph 6--'Duties and Obligations' as under:
6. Duties and Obligation;
Your duties are mainly to organise and develop the business of the Corporation in the area allotted to you, and for that purpose to recruit active and reliable agents drawn from different communities and walks of life on such terms as may be stipulated by the Corporation from time to time and to train them up both for convassing new business and for rendering such post-sale service as the policy-holders may be in need of. In addition to this, the existing agents who may be allotted to you now and the agents who may be allotted to you thereafter should be well enthused and assisted by you. You will, whenever called upon to do so, assist the Branch Manager or the Assistant Branch Manager in the investigation of claims....
After an agent has continously worked for the Corporation for a period of 5 years and over and the Branch Manager feels he is no more in need of the services of a field Officer he may be treated as a Direct Agent even if he has been recruited and trained by you'. (The nomenclature 'field officer' was later on changed to 'Development Officer.
52. The above para does not show any where as to in what manner these duties and obligations can be said to be of a supervisory nature. On the contrary, it emphasizes that a Development Officer would enthuse and assist the Agents allotted to him or appointed on his recommendations This has got to be the guiding principle with a Development Officer, while dealing with any Agent. Can it be said, by any stretch of argument, that this salutary principle, which he has got to keep in mind, would come within the scope of any authority in the nature of supervision and/or superintendence over an Agent. The following portion in the above extract is relevant in this connection.:
should be well enthused and assisted by you.
53. The other duties, of course, are merely clerical or manual. None of the duties is such as could be said to come within the scope of supervisory nature or of superintending nature. As earlier stated a Development Officer has not even to do incidentally a supervisory duty, leave alone mainly. An Agent is neither under the control of the Corporation nor under the control of a Development Officer. He can absent himself from his Headquarters for any number of days, months and years. Even an Agent can carry on any other profession, vocation or occupation alongwith Agency of Insurance business. At the highest he may not get commission in case he does rot produce any business. In the alternative, if he fails to comply with the terms and conditions of his appointment as an Agent, his Agency would be terminated This can be the extreme penalty, which can be awarded on him. In regard to this, eventuality a Development Officer has to do nothing either for purposes of recommending the termination or for taking a disciplinary action against the Agent. Apart from what has been said above, an Agent is free to book business throughout the length and breadth of the country. When he books business outside the area of operation of the concerned Development Officer under whom he would have originally been allotted or on whose recommendation he has been appointed, gets on benefits of such a business booked by him.
54. I have got therefore, no hesitation in accepting the contention of Shri Garg and Jain, based on the above weighty facts, data that the petitioner's contention that are workmen deserves to be accepted.
55. I have discussed above the various duties and functions of the Development Officers and the conflicting views of the Tribunals on the crucial question whether they are workmen, or not. For the reasons, I have already given, I am inclined to take the view which has been taken by the Jabalpur Labour Court and hold that the Development Officers of the L.I.C. are workmen.
56. Since they are workmen and since the Corporation is an industry within the meaning of the Industrial Disputes Act, 1947, the special law of Industrial Disputes Act governs the relations of the Development Officers and the management.
57. In D.J. Bahadur's case (supra), the majority judgment has held in terms that Industrial Disputes Act is a special law and the Life Insurance Act is a general law. It is further held that in the matter of relationship of the employees with the management and in the matters of service conditions, they would be governed by the Industrial Disputes Act.
58. The Patna High Court also in the above referred case has observed as under:
Learned counsel for the petitioners then submitted that although the petitioners are Development Officers, but they will be deemed to be workmen for the purpose of the Industrial Disputes Act, and the aforesaid agreement dated 19th November, 1971 entered into on behalf of the petitioners and the Corporation will be deemed to be a settlement within the meaning of Section 18 of the Industrial Disputes Act which shall be binding on the parties to the agreement; as such, it was not open to the Central Government to issue the order and for the Corporation to make the regulations in question, superseding the terms of the said agreement. Reliance was placed on the aforesaid case of L.I.C. of India v. D.J. Bahadur and Ors. (supra). In that case, a settlement had been arrived at between the Corporation and its class III and IV employees regarding payment of annual cash bonus. There was no dispute that the said settlement was a settlement within the meaning of Section 18 of the Industrial Disputes Act and as defined by Section 2(p) of that Act, because class III and IV employees of the Corporation were admittedly workmen within the meaning of Section 2(s). In that background, the Supreme Court by its majority judgment held that the Industrial Disputes Act being a special law must prevail upon the general law, 1 e., Life Insurance Corporation Act. It was held that any order issued under Section 11(1) of the Act shall not supersede or annul a settlement arrived at under the Industrial Dispute Act. If it is held that the petitioners are also workmen, then there should not be any difficulty to hold that the case is covered by the aforesaid Supreme Court judgment.
59. In view of this, it is immaterial whether Section 11(2) of the LIC Act applies to the Development Officers, or not. Even if it applies, it cannot be put on a higher pedestal then the Industrial Disputes Act. Since the settlement of 1971 laid down the service conditions including the work norms, such a tripartite settlement could not have been set aside by unilateral act of issuing regulations, or the impugned orders, (Annexure 1 & 2), in view of Section 18 of the Industrial Disputes Act. The proper course for the Corporation was to either enter into a settlement or agreement to supersede the earlier tripartite agreement or settlement of 1971, or to get a reference made to the Industrial Tribunal. Nothing of the sort has been done in the present case.
60. The unilateral fixation of work norms is, therefore, against the intentions of the socio-economic progressive legislations like the Industrial Disputes Act and the Directive Principles with have now been after the 42nd amendment, introduced, for participation of the workers in the management. I hold that unilateral fixing of work norms, as has been done in the 1978 regulations and the order by superseding the tripartite agreement of 1971, would result in violation of all relevant provisions of the Industrial Disputes Act in this connection and, therefore, it cannot be upheld.
61. Shri Jindal and Shri Tibrewal confronted with the above position pointed out that there is a super nuclear umbrella provided in Act of 1981 This Act No. 1 of reads as under:
THE LIFE INSURANCE CORPORATION (AMENDMENT)
No. 1 OF 1981
(17th, March, 1981)
An Act further to amend the Life Insurance Corporation Act, 1956.
WHEREAS for securing the interests of the Life Insurance Corporation of India and its policy holders and to control the cost of administration, it is necessary that revision of the terms and conditions of service applicable to the employees and agents of the Corporation should be undertaken expeditiously;
BE it enacted by Parliament in the Thirty Second Year of the Republic of India as follows:
1. (I) This Act may be called the Life Insurance Corporation (Amendment) Act, 1981.
(2) It shall be deemed to have come into force on the 31st day of January, 1981.
2. In the Life Insurance Corporation Act, 1956 (hereinafter referred to as the principal Act), in Section 48:
(a) in Sub-section (2), after Clause (c), the following clause shall be inserted and shall be deemed to have been inserted with effect from the 20th day of June, 1979, namely:
(cc) the terms and conditions of service of the employees and agents of the Corporation including those who became employees and agents of the Corporation on the appointed day under this Act,
(b) after Sub-section (2), the following sub-section shall be inserted namely:
(2A) The regulations and other provisions as in force immediately before the commencement of the Life Insurance Corporation (Amendment) Act, 1981, with respect to the terms and conditions of service of employees and agents of the Corporation including those who became employees and agents of the Corporation on the appointed day under this Act, shall be deemed to be rules made under Clause (cc) of Sub-section (2) and shall, subject to the other provisions of this section, have effect accordingly.
(2B) The power to make rules conferred by Clause (cc) of Sub-section (2) shall include:
(i) the power to give retrospective effect to such rules; and
(ii) the power to amend by way of addition, variation or repeal, the regulations and other provisions referred to in Sub-section (2A), with retrospective effect, from a date rearlier than the twentieth day of June, 1979.
(2C) The provisions of Clause (cc) of Sub-section (2) and Sub-section (2B) and any rules made the said Clause (cc) shall have effect, and any such rule made with retrospective effect, and any such rule made with retrospective effect from any date shall also be deemed to have had effect from that date, notwithstanding any judgment, decree or order of any court, tribunal or other authority and notwithstanding anything contained in the Industrial Disputes Act, 1947 or any other law or any agreement settlement, award or other instrument for the time being in force.
3. In Section 49 of the principal Act,:
(a) in Sub-section (2),:
(i) in Clause (b), the words 'and the terms and conditions of service of employees or agents' shall be omitted;
(ii) Clause (bb) shall be omitted; and (b) after Sub-section (2), the following sub-section shall be inserted, namely:
(3) Every regulation made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in (wo or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.
4. (1) The Life Insurance Corporation (Amendment) Ordinance, 1981 is hereby repealed.
(2) Not with standing such repeal, anything done or any action taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Act.
62. Prima facie, and undoubtedly, Sub-clause (ii)(c) of clause 2 and Sub-clause (b) puts this regulation and the impunged order in the category of the rules. This rule has been declared to be valid, not with standing anything contained in the judgment or decree or any court of any authority, contained in the Industrial Disputes Act; or any other law, any agreement, award, or settlement or instrument for the time being in force.
63. This raises a serious point of vital importance, whether in view of the above provision in the Amendment Act of 1981, the view taken by the Supreme Court in D.J. Bahadur's case in no longer good law or in any case will have to give way. In other words, the constitutional complexion of the question raised is, whether the judgment of the Apex court, which is the law of the land under Articles 141 and 142 of the Constitution of India would hold the field, or Section 2 or 2(c) of the Amended Act.
64. Undoubtedly, this question is of great difficulty and it is not easy to be resolved. Unfortunately, during the entire arguments before this Court also, this question was not debated at length has it should have been. I could not get enough assistance on this vital important point because Shri Garg wanted to brush it aside simply by saying that it was not argued during main arguments nor it was pleaded in the reply.
65. I, therefore, feel handicapped to deal with it at length. However, I am inclined to hold that all said and done, Section 2 as amended is nothing, but a part of L1C Act, which is a general law and not a special law as held in D.J. Bahadur's case. Obviously, no such amendment has been made in the Industrial Disputes Act. As held in D.J. Bahadur's case the Industrial Disputes Act is a special law. That being so, the provisions of the Industrial Disputes Act, as held in the decision of DJ. Bahadur's case, would hold the field as a special law, in comparison to the present provisions of the LIC Act also.
66. I have got no hesitation in holding that D.J. Bahadur's judgment, which is law of the land by virtue of Articles 141 and 142 of the Constitution of India, cannot be brushed aside, by amendment in the LIC Act only. Undoubtedly, the case would have been different if the Industrial Disputes Act would have been amended, but, as I am informed, no such amendment has been introduced in the LIC Act.
67. The resultant position is that the provisions of the Industrial Disputes Act would apply in comparison to Act 1 of 1981, for the purpose of examining whether the agreement of 1971, in which the service conditions have been agreed upon for development officers can be superseded by unilateral act of issuing the order or regulations (Annexures 1 & 2 ). Since I have got no hesitation in holding that the Act of 1981 also fails to provide any protection and it cannot make the impugned orders (Annexures 1 & 2 ), and the impugned regulation valid, which otherwise are invalid and have been held to be invalid by me just above, the oxygen cylinder and the Pace maker in the form of Act No. 1 of 1981 have been used too late to revive the heart beat of Annexures 1 & 2, after the 'cardic arrest!
68. In view of the above discussion, I am not inclined to enter into all other controversies raised by Shri Garg that the regulation violates Article 14 & 19 of the Constitution of India.
69. I am also not inclined to hold that 44th Amendment of the Constitution is invalid. On the contrary, I am of the opinion that 44th Amendment so far as it abolishes the right to property by deletion of Article 31 in the Constituton from Part III is valid. As held in Keshvanand Bharti's case 1973 AIR SC 1461 and Minerva Mills' case : 1SCR206 that the Parliament has got power to amend the constitution except with the limited restrictions that it cannot alter the basic of the Constitution. The right to property which was earlier a fundamental right has been abolished by the Constitutional Amendment and its abolition from the Chapter of fundamental rights, in no way alters the basic features/structure of the Constitution of India.
70. The first reference to basic structure them came from Pakistan Supreme Court, when Fazulal Quader Chawdry v. Mohd. Abdul Haque 1963 PLD 486 (SC) it was held that franchise and form of Government are fundamental features of the Constitution. Cornelius C.J. relied on the Judges oath of office for striking down the action of the President, under what he called, 'Sub-Constitutional Power'.
71. It fell to the lot of learned Mudholakar J., to point out to Indian courts by emphasising phrase 'basic features of the Constitution' in Sajjan Shingh's v. State of Rajasthan : 1SCR933 wherein he observed as under;:
It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?.
The Constitution has enjoined on every member of Parliament before entering upon his office to take an oath or make an affirmation to the effect that he will bear true faith, and allegiance to the Constitution. On the other hand under Article 368 a procedure is prescribed for amending the Constitution. If upon a literal interpretation of this provision an amendment even of the basic features of the Constitution would be possible it will be a question for consideration as to how to harmonise the duty or allegiance with the power to make an amendment to it. Could the two be harmonised by excluding from the procedure for amendment alteration of a basic feature of the Constitution? It would be of interest to mention that the Supreme Court of Pakistan has, in Fazlul Quader Chowdhry v. Mohd. Abdul Haque 1963 PLD 486 (SC) held that franchise and form of government are fundamental features of a Constitution and the power conferred upon the President by the Constitution of Pakistan to remove difficulties does not extend to making an alteration in a fundamental feature of the Constitution. For striking down the action of the President under, what he calls 'sub-constitutional power' Cornelius C.J. , relied on the Judges' oath of office. After quoting the following passage from Cooley's Constitutional Limitations:For the Constitution of the State is higher in authority than any law, direction, or order made by any body or any officer assuming to act under it since such body officer much exercise a delegated authority, and one that must necessarily be subservient to the instrument by which the delegation is made. In any case of conflict the fundamental law must govern, and the act in conflict with it must be treated as of no legal validity.
The learned Chief Justice observed:
To decide upon the question of Constitution not validity in relation to an act of a statutory authority, how-high-se-evea is a duty devolving ordinarily upon the superior courts by virtue of their office, and in the absence of any bar wither express or implied which stands in the way of that duty being performed in respect of the Order here in question it is a responsibility which cannot be avoided', (p. 500)
The observations & the passage from Cooley, quoted here for convenience support what I have said earlier regarding the power of the Courts to pronounce upon the validity or amendments to the constitution.
72. What a cruel joke, or irony of fate that whereas Pakisthan's Supreme Court and its Constitution all have been scrapped, we in India have after Goiaknath's emphasis though overruled, by Bharti's decision are now actively engaged in expanding dimensions of 'basic structure theme of Indian Constitution for Golaknath & Bharti to Bhimsingh.
73. The challenge to 44th Amendment is to be considered in the light of the following observations of founding fathers and Jurists:
This very fine Constitution that we have fashioned after years of labour is good in so far as it goes but as society changes, as we amend it in the proper way. It is not like the unalterable law of Medas and the Persians that it cannot be changed, although the world around may change.
It is of the utmost importance that the people should realise that this great Constitution of ours, over which we laboured so long, is not a final and rigid thing, which must either be abrogated or broken. A Constitution which is responsive to the people's will which is responsive to their ideas, in that it can be varied here and there, they will respect it all the more and they will not fight against, when we want to change it. Otherwise, if you make them feel that it is unchangeable and cannot be touched, the only thing to be done by those who wish to change it is to try to break it. This is a dangerous thing and bad thing.
While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in Constitution. There should be a certain flexibility. If you make anything rigid and permanent, you stop the nation's growth the growth of living, vital, organic people... In any event, we could not make this so rigid that it cannot be adopted to changing conditions. When the world is in turmoil and we are passing through a very swift period of transitions, what we may do today may not be wholly applicable tomorrow.' Parliamentany debates, Vols. XII-XIII Part II 1951 p. 6617
Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage, therefore, you cannot destroy its identity.' Minerva a Mills (supra) (p. 1798)
The First Amendment was thus made the Constitutional ideal of equal justice a living truth. It is like a mirror that reflects the ideals of the Constitution, it is not the destroyer of the basic structure. The provisions introduced by it and the 4th amendment for the extinguishment and modification of rights in lands held or let for purposes of agriculture or for purpose ancillary thereto, strengthen rather than weaken the basic structure of the Constitution. (Wamman Rao v. Union of India : AIR1981SC271 )
The inflexibility of French Constitutions has provoked revolution, the flexibility of English Constitutions, has, once at least, saved them from violent over throw.
To permit the Bharati ghost to haunt the corridors of the Court brandishing fatal writs for every feature of inequality is judicial paralysation of Parliamentary function. (Bhimsingh's case) AIR 1981 SC 243
Justice V.R. Krishna Iyer.
74. The following may be treated as catalogue of essential features of basic structure of Constitution as opined by one or other Judge but not majority essentially from Kesvanand Bharti's decision to S. P. Gupta's decision AIR 1982 SC 149:
1) Sovereignty of the country;
2) Separation of powers between the legislature, the executive and the Judiciary;
3) The mandate to build is welfare State contained in Part IV;
4) Republican and democratic form of Government;
5) Supremacy of the Constitution;
6) Secular character of the Constitution;
7) Democratic form of Government;
8) Federal character of the Constitution;
9) Essential features of the individual freedoms secured to the citizens;
10) Dignity of the individual;
11) Sovereign democratic republic;
12) Unity of the country;
13) Liberty of thought, expression, belief, faith and worship;
14) Justice, social, economic and political;
15) Rule of law;
16) Citizens right to religious worship;
17) Limited judicial review;
18) Parliamentary democracy;
19) Equality of status and opportunity;
20) Power of Judicial review;
21) Limited amending power of the Parliament;
22) Harmony and balance between the fundamental rights and directive principles;
23) Directive principles of State policy;
24) Emergency provisions;
25) Concept of social and economic justice to build a welfare State;
26) Independence of judiciary.
27) Unity and integrity of the nation;
75. Property right is not even fundamental right now and it was never treated as natural right or basic feature of the Constitution.
76. Poverty and Property are antithesis. Dr. S. Radhakrishnan observed as under:
Poor people who wander about, find no work, no wages and starve, whose lives are a centinual round of sore afflication and pinching poverty, cannot be proud of the Court or its law.
77. In the words of Krishna Iyer, J., if all the Judges of the Supreme Court in solemn session sit and deliberate for half a year to produce amendment in the Constitution for giving socio-economic justice, their genius will let them down if the essay is to bring harmony and balance between Constitutional obligation and Constitutional mandate. Pinching poverty knows no 'harmony or balance.
78. The Statement of objects of the 45th Amendment Bill (which became the 44th Amendment Act) provided that 'In view of the special position sought to be given to fundamental rights, the right to property... would cease to be fundamental right and become only a legal right. It would not effect the right of minorities to establish and administer educational institutions of their choice. Similarly, the right of persons holding land for personal cultivation and within the ceiling limit to receive compensation at the market value would not be affected.' Basu in his book has said that 'the abolition of the guaranteed right against the legislature would hit one poor man more than a capitalist. In my opinion, Basu forget that pinching poverty ' DD Basu Constitution of India 8th Ed. 682 is total absence of property. If property right is abolished, property it would be shared by poor through State.
79. In Kesavanand Bharati' decision (supra) the majority consisting of Ray, Palekar, Mathew, Beg, Dwivedi, Chandrachud, Reddy and Khanna JJ. declared the first part of Article 31C as valid. This means that Article 19 did not pertain to the essential feature of the basic structure of the Constitution.
80. No doubt, Justice Tulzapurkar in Bhim Singh v. Union of India (supra) observed that Section 2(f), 11(6) and 23 of the Urban Land (Ceiling and Regulation) Act, 1976 flagrantly violates these aspects of Articles 14 and 31 which constituted the essentials and basic features of our Constitution and therefore, protection of Article 31(b) was not available. In para 49, he opined that the impugned Act has been put in Ninth Schedule by 40th amendment of the Constitution but as it destroyed the basic structure of the Constitution, it was beyond the constituent power of the parliament. He did not allow the protective umbrella of Article 31C. However, with respect, this is the solitary voice as in the celebrated cases of Kesavanand Bharati (supra) Indira Gandhi's case : 2SCR347 , Minerva Mill' case (supra) and Waman Rao's case (supra), nowhere Article 31 was put on the high pedestal of essential features of basic structure.
81. I would have dealt with in Length all the cases from Sankari Prasad AIR 1951 SC 428, Sajjan Singu (Ibid), Golaknath AIR 1967 SC 1643, Kesavanand Bharati supra) Indira Gandhi supra), Habeas Corpus AIR 1976 SC 1207, Assembly Dissolution AIR 1977 SC 1361 Minerva Mills (supra), Waman Rao (supra), Bhimsingh (supra) and transfer of Judge's case (supra) far elaborating the concept of basic structure under the Indian Constitution. However, I find that concept the solitary view of Hon'ble Justice Tulzapurkar, nowhere the right of the property has been given at prime place. I, therefore, hold that the right to property as contained in Article 31, fundamental right before 44th Amendment was never an essential-basic -feature of the basic structure of the Constitution and therefore the parliament was within its competence under Article 368 to delete it by 44th Amendment. I hold that 44th Amendment is intra vires to this limited extent,
82. The above question was raised by Mr. Garg on the assumption that the right of salary and emoluments which have been earned by the Development Officers are right of property. It is not necessary for me to discuss whether they are property rights, or not, because even if they would have been property rights by ordinary law, they can always be curtailed, prohibited restricted or regulated.
83. At this stage, Mr. Tibrewal, learned Counsel for the non petitioner placed before the court a cyclostyled copy of judgment of A.N. Nachane and Anr. v. Union of India and Ors. : AIR1982SC126 .
84. Mr. Garg objected to its production during dictation of judgment at this late stage, but I have overruled the objection, because the judgment of the Apex Court is to be given highest weight.
85. I have considered the principles laid down in the above judgment. It has been held in this case that the Amendment Act, 1981 and the rules made thereunder could not be declared invalid as violative of Article 14 of the Constitution of India However, it has been held in this case, in Head Note B & C that the Rules made under Section 48(2)(cc) by the Central Government did not repeal the Industrial Disputes Act, or other laws. It has further been held that the rules made under Section 48(2)(c) as added by the Amending Act 1981 in respect of dearness and bonus cannot nullify the effect of writ issued earlier by the Court and a specific reference was made to D. J. Bahadur's case (supra).
Rule 3 operating retrospectively cannot nullify the effect of the Writ-issued in D.J. Bahadur's case (supra) which directing the Life Insurance Corporation to give effect to the terms of the 1974 settlements relating to bonus until superseded by a fresh settlement, an industrial award or relevant legislation. The Life Insurance Corporation (Amendment) Act, 1981 and the Life Insurance Corporation of India Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981 are retrospective legislation. However, these rules, in so far as they seek to abrogate the terms of the 1974 settlements relating to bonus, can operate only prospectively, that is, from February 2, 1981; the date of publication of the rules.
Held that the attempt made by the 1981 amending Act and the Rules there under to scuttle the payment of bonus with effect from a date anterior to the date of enactment was liable to fail. The employees were entitled to be paid the bonus earned by them before the date of publication of the Life Insurance Corporation Class III and Class IV Employees (Bonus and Dearness Allowance) Rules, 1981.
86. I am, therefore, of the opinion that whatever has been said in the D.J. Bahadur's case in respect of the Industrial Disputes Act, lv47 being special law, or the Life Insurance Corporation Act being ordinary law, holds good even after passing of the above Act of 1981.
87. The Tripartite agreement of 1971 should be adhered to by the respondent unless a fresh agreement is arrived at under the provisions of the Industrial Disputes Act, or on a proper reference an award is given by the National Industrial Tribuna1.
88. It is always open to the respondent to enter into negotiations with the representatives of the petitioners for change in service conditions and the cost norms, in view of the changed circumstances or in view of the criticism levelled by the Murarka Committee, or on the floor of the Parliament by various Hon'ble members of the Parliament. However, till that is done, and a fresh bilateral or tripartite agreement is arrived at under the provisions of the Industrial Disputes Act or a reference is made and an award is sought and an award is made, the respondents are directed to follow the agreement of 1971 dated the 19th November, 1971.
89. The writ petitions are, therefore, accepted. The Life Insurance Corporation Development Officer's (Alteration of Remuneration and other Terms and Conditions of Service) Order, 1978 and Life Insurance Corporation of India (Staff) Sixth Amendment Regulations, 1978 are declared ultra vires, invalid and the respondents are restrained from enforcing them.
90. The parties are left to bear their own costs.
91. Mr. Jindal and Mr. Tibrewal, the learned Counsel for the Corporation submitted that since the impugned order and the regulations have been struck down and declared illegal and void and the case raises serious and important questions of legal interpretation, the Corporation should be allowed reasonable time to file an appeal and to make an attempt to obtain a stay order from the appellate forum and, till then the operation of this judgment should not be made effective so that several anomolies which may follow from the application of the earlier regulations and earlier settlement of 1971, during this period can be avoided. In substance the prayer is that the operation of this judgment may be kept stayed for a reasonable period.
92. This prayer is opposed by Shri Garg and Shri N L. Jain, appearing for Development Officers on the ground that once the regulation and the order have been declared illegal and ultra vires, this Court would not be a party to the illegality by permitting the 'respondents to operate it. It was also contended that in any case, the respondent should not be allowed to act, under these circumstances, to the detriment to the petitioners any further.
93. I have given my thoughtful consideration to this aspect of the matter also. Undoubtedly, the points raised, the controversy are canvassed of serious importance and important questions of constitutional law arises in this case. It is also to be appreciated that since the Corporation is functioning throughout India and there are thousands of Development Officers, there would be serious repercussions and implications of this judgment. It is also to be noted that even if the Corporation wants to switch on to the old settlement of 1971, or to start negotiations or to get a reference made, it will have to undergo several processes at several levels and this is bound to take quite sometime.
94. I am of the view that the Corporation should be allowed a fair and reasonable time, either to file an appeal and obtain a stay order, or to implement the order of this Court. In view of the serious magnitude of the issues arising out of the vast dimensions of the Corporation functioning at different levels and statutory requirements of having consultations with the Government and the other officers, it would be in the interests of justice if the operation of this judgment is kept stayed for a period of three months from today and it is ordered accordingly. It is made clear that during this period the Corporation would not take any action or in any way act to the detriment to the interest of the petitioners, under the impugned order and the regulations (Annexures 1 & 2), which have been struck down by this Court. It is further made clear that respondents would not make any deductions from the salary of the petitioners nor they would terminate their services under the above regulations and the order.
95. Before parting with this judgment, I must mention that Article 43A regarding 'workers participation in management' is not a lofty ideal only but all concerned should not forget that Article 37 makes them 'fundamental' in the governance of the country and the same Article 37 itself says that it is the duty of the State to apply these principles in making laws. What a poor homage the State has paid to Article 43A by putting the 'onerous work norms and harsh measures of their enforcement, requires serious heart searching, meditation and introspection.
96. While I have advised the State and the Life Insurance Corporation of India bosses to have heart searching, introspection and rethinking on this. I would be exhibiting bias in favour of workmen, if I fail to invite the petitioner-Development Officers, for a similar exercise and genuinely think whether the criticism of their becoming white elephants is justified, more so as Moraraka Committee has opined as under:.that their achievements have been extremely unsatisfactory and totally incommensurate with the generous terms and conditions and facilities given to them and the various 'incentive scheme' that the Corporation devised to induce the Development Officers to increase their efforts:
The said Committee sugested:
it, therefore, becomes necessary that their remuneration and prospects should be related to the results of the efforts they might have put in, and consequently, among other things on the new business sum assured and the First Year Premium Income under their organisation.
97. May I hope that both the parties would enter into negotiations in a round table conference and the petitioners would agree to changed increased work norms, with inbuilt incentives and disincentives, in order to become real participation in the management, appreciating that the public funds of the Corporation should be utilised in public interest in which policy holders who are the only contributors should share the maximum. This would be a befitting reply to 'Moraka Committees cryptic remarks and would also lower down the peoples eye brows raised at them by calling them 'White elephants', luxuriously fed by world's highest Insurance premiums rates of India. That way alone there would be transformation from white elephants to real servants of society.
98. With the above pious and sacred though unenforceable hope and poor homage to Article 43A, all the writ petitions (as per Schedule A) are accepted as indicated above.