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Khaizar Basha Vs. Indian Airlines Corporation, New Delhi - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtChennai High Court
Decided On
Case NumberW.P. No. 7565 of 1982
Judge
Reported inAIR1984Mad379
ActsAir Corporation Act, 1953 - Sections 45; Constitution of India - Article 14
AppellantKhaizar Basha
RespondentIndian Airlines Corporation, New Delhi
Appellant AdvocateAshok Menon, Adv.
Respondent AdvocateM.G.R. Prasad, Adv.
Cases ReferredAir India v. Nargesh Meerza
Excerpt:
.....with reasonableness - each rule to be dealt with taking into account policy which inspired same - fact that rule by itself does not make precise guidelines to suit all contingencies will not make rule ultra vires - held, not possible to hold regulation 15 as void and unconstitutional. - - union of india, [1979]1scr122 ,the impeachment was of s *59 (f) (v) of the punjab excise act (i of 1915) on the ground it conferrred an unguided power with regard to the fixing of the days and hours during which any licensed premises may or may not be kept open and the closure of such premises on special occasions and hence, the rule framed thereunder is bad and arbitrary. it is attractive to hear the argument that an order passed by an authority, which becomes infallibly final in the absence of..........it is true that in settled circumstances, if a particular rule which empowers the authority to exercise power lacks guidelines, this court has hastened to strike down such a rule as tending to bring in discrimination and arbitrariness while exercising the power. but, each case has to be decided with reference to the rule in question and it is not possible to spell out any uniform principle 'on the question of striking down any particular rule for want of guidelines. however, there are certain general principles which have come to be enunciated by the highest court of the land on this aspect and it is worthwhile to recapitulate them.4. in p. n. kaushal v. union of india, : [1979]1scr122 , the impeachment was of s * 59 (f) (v) of the punjab excise act (i of 1915) on the ground it.....
Judgment:
ORDER

1. The petitioner is employed as head Daftory, Operations department, in the office of the respondent at Madras. He is Muslim by faith. He is married and his wife is living. He wanted to marry again and with this end in mind, he applied for the sanction as contemplated in Regn. 15 of the Standing Orders (Regulations) concerning discipline and appeals, formulated in exercise of the powers conferred by S. 45 of the Air Corporation Act, 1953 (Act 27 of 1953), read with the concerned rules. Regn. 15 reads as follows -

'No employee who has a wife living shall contract another marriage without previous sanction of the General Manger, not with standing that such subsequent marriage is permissible under the personal law for the time being applicable to him. Likewise no female employee of the Corporation shall marry any person who has a wife living without obtaining such previous permission.'

The petitioner did not succeed in getting the sanction and naturally, he is aggrieved. We are not in this writ petition, testing the propriety or otherwise of the order of rejection on merits. The petitioner has chosen to come to this Court with the present writ petition praying for the issue of a writ of declaration, declaring Regn. 15 itself as unconstitutional, illegal, void and ultra vires.

2. Mr. Ashok Menon, learned counsel for the petitioner, would attack Regn. 15 as suffering the infirmity of lack of guidelines and giving room for arbitrary and unreasonable exercise of power in the matter of according sanction as contemplated in that regulation.

3. It is true that in settled circumstances, if a particular rule which empowers the authority to exercise power lacks guidelines, this court has hastened to strike down such a rule as tending to bring in discrimination and arbitrariness while exercising the power. But, each case has to be decided with reference to the rule in question and it is not possible to spell out any uniform principle 'on the question of striking down any particular rule for want of guidelines. However, there are certain general principles which have come to be enunciated by the highest court of the land on this aspect and it is worthwhile to recapitulate them.

4. In P. N. Kaushal v. Union of India, : [1979]1SCR122 , the impeachment was of S * 59 (f) (v) of the Punjab Excise Act (I of 1915) on the ground it conferrred an unguided power with regard to the fixing of the days and hours during which any licensed premises may or may not be kept open and the closure of such premises on special occasions and hence, the rule framed thereunder is bad and arbitrary. The principles stand enunciated in paras 51 and 52 of the judgment and they need extraction as follows-

'We wholly agree with the learned Additional Solicitor General that the search for guidelines is not a verbal excursion. The very subject matter of the statute intoxicants-eloquently impresses the Act with a clear purpose, a social orientation and a statutory strategy. If bread and brandy are different the point we make argues itself. The goal is promotion of temperance and, flowing there out, of sobriety, public order, individual health, family welfare, curbing of violence and tension, restoration of the addict's mental, moral and physical personality and interdict on impoverishment, in various degrees, compounded. We have extensively quoted supportive literature; and regulation of alcohol per se furnishes a definite guideline. If the section or the rule intended to combat an evil is misused for a perverse, ulterior or extraneous object that action, not the law, will be struck down. In this view, discrimination or arbitrariness is also excluded.

A final bit to stigmatise the provision Sec. 59 (f) (v) was made by raising a consternation. The power to fix the days and hours is so broad that the authority may fix six out of seven days or 23 out of 24 hours as 'dry' days or closed hours and thus cripple the purpose of the licence. This is an ersatz apprehension, a caricature of the provision and an assumption of power run amok. An Abkari law, as here unfolded by the scheme (chapters and sections further amplified by the rules framed there under during the last 64 years) is not a Prohibition Act with a mission of total prohibition. The obvious object is to balance temperance with tax, to condition and curtail consumption without liquidating the liquor business, to experiment with phased and progressive projects of prohibition without total ban on the alcohol trade or individual intake. The temperance movement leaves the door half closed, not wide ajar; the prohibition crusade banishes wholly the drinking of intoxicants. So it follows that the limited temperance guideline writ large in the Act will monitor the use of the power operation temperance, leading later to the former, may be a strategy within the scope of the Abkari Act.'

5. In Organo Chemical Industries v. Union of India, AIR 1979 SC 1803, while opining that the power under S. 14(b) of the Employees' Provident Funds and Miscellaneous Provisions Act 1952 is not unguided, the reasons there for have been expressed in paras 9, 10 and 11 of the judgment and- they run as follows -

'Nor is the plea of absence of guidelines or appellate review sound enough to subvert. the validity of S. 14.B. It is attractive to hear the argument that an order passed by an authority, which becomes infallibly final in the absence of an appeal or revision, is apt to be arbitrary and bad. An appeal is a desirable corrective but not an indispensable imperative and while its presence is an extra check on wayward orders its absence is not a sure index of arbitrary potential. It depends on the nature of the subject matter, other available correctives, possible harm flowing from wrong orders and a wealth of other factors,

If a death sentence is allowed to become conclusive without so much as a single appeal, Arts. 14 and 21 may imperil such a provision but if a fine of Rs. 5 imposed for a minor offence in a summary trial by a first class Magistrate is imparted a finality, subject, of course to a constitutional remedy in the event of perverse or patent illegality we may still uphold that provision with an easy constitutional conscience. In the present case, a hearing is given to the affected party. Reasons have to be recorded in the order awarding damages. The writ jurisdiction is ready to review glaring errors. The . maximum here is pecuniary liability limited by the statute. A high official hears and decides. Under such circumstances, the needs of the factual situation and the legal milieu are such that the absence of appellate review in no way militates against the justice and reasonableness of the provision. The argument of arbitrariness on this score is untenable. The section is not bad. May be, action under the section may be challenged in writ jurisdiction provided infirmities which attract such jurisdiction vitiate the order.

The bogie of absence of guidelines in the provision and consequential possibility of the authority running berserk or acting hubristically does not frighten. Of course, the more bereft of explicit guidelines a statutory power is, the more searching must be the judicial invigilation to discover hidden injustice and masked mala fides. Even so, let us examine the ground that, absent detailed guidelines, the law is void. What is not explicit may still be implicit. What is not articulated at length may be 9pun out from a single phrase. What is not transparent in particularised provisions may be immanent in the preamble, scheme, purpose of such subject matter of the Act. What is real is not only the gross but also the subtle, if I may strike a deeper note.'

-pages 1806-1807.

6. In C. S. T. v. Radhakrishnan : [1979]118ITR534(SC) , where the question arose with regard to the validity of two different procedures for enforcing and realising the assessment under the Madhya Pradesh General Sales Tax, Act 1958, the Supreme Court countenanced that when a power is conferred on high and responsible officers, they are expected to act with caution and impartiality while discharging their duties and the circumstances under which they will choose either of the remedies available should be left to them and the vesting of the discretionary power in the State or public authorities or an officer of high standing is treated as a guarantee that the power will be used fairly and with a sense of responsibility. It has been further countenanced as follows-

'The guidance will have to be inferred from the policy of the law itself, that is, if on particular facts of a case the Commissioner in exercise of his discretion comes to the conclusion that a more drastic remedy should be taken, the exercise of that option cannot be termed unconstitutional. Courts will be justified in

giving a liberal interpretation to the section in order to avoid constitutional invalidity and reading down the sections if it becomes necessary to uphold its validity.'

7. In P. J. Irani v. State of Madras, : [1962]2SCR169 , there was a challenge of the provision found in S. 13 of the Madras Buildings (Lease and Rent Control) Act, 2S of 1949, empowering the Government to exempt particular building or buildings from the operation of the Act. The Supreme Court was prepared to find enough guidelines afforded by the preamble, and the operative portion of the Act itself for the exercise of the discretionary power of exemption vested in the Government and the following observations from Inder Singh v. State of Rajasthan, : [1957]1SCR605 , were quoted;...It is true that that section does not itself indicate the grounds on which -exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature; and as that governs S. 15 of the Ordinance, the decision of the

Government thereunder cannot be said to be unguided.'

Page 181 (of SCR)

(at pp. 1737-38 of AIR)

8. Dealing with the scope- of discretionary power with reference to S. 197 of the Code of Criminal Procedure, 1898 in Matajog Dobey v. H. C. Bhari : [1955]28ITR941(SC) , the principle has been enunciated as follows : -

'It whas to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse 'of power is not to be easily assumed where the discretion is vested in the Government and, not in a minor official'

9. Monogamy is the rule in the services with the respondent. A bigamist has no place in the services in question even though his personal law contenances that. The vires of such type of prescriptions could be and in fact, has been upheld by courts. In any event, the very prescription as such is not being impeached before me. Learned counsel chose to impeach regulation 15 only on the ground that it lacked guidelines on the question of granting exemption. He did not attack the same on any other ground. I make this position very clear before I discuss the only aspect canvassed before me. There could be a departure from or an exception to the normal rule and that is where sanction is to be obtained, for the contracting of a second marriage, when the man has a wife living, even though his_personal law permits it. This departure or exemption is not an absolute or unrestricted one and cannot be claimed as a matter of right. This exemption could be obtained, obviously, after the applicant, makes out a case for the same. It is true that a rule which by itself does not contain any provision which is patently and directly discriminatory, may still come within the vice of discrimination, if it confers on the autority an unguided or untrammelled power of discretion on the question of application of the rule. However, if the rule indicates the policy on the object which inspired it and which is its basic structure, the mere fact that the rule by itself does not set out in explicit terms completely and with precision all the contingencies or exigencies which would warrant the exercise of the power will not make the rule hit by the mischief of discrimination. Discretionary power is not always discriminatory, especially when the policy and the object behind the rule is clear. That there is a possibility that the discretionary power may be abused is certainly not a ground for invalidating the rule itself. The fact that the discretion is vested in the Government itself or other high authority, as distinguished from a minor authority, by itself is a guarantee that the discretion will not be abused,if, in fact, there has been an abuse descretion or the exercise of discretion with arbitrariness, unreasonableness' discrimination, that act will have to be struck down and not the rule.

10. 'Here, it is patent that regulation 15 lays down that a monogamist alone could be in service. This is the rule even thougli' the personal law may permit a second marriage while the first wife is living. The iexpression 'notwithstanding' is potent and IR could mean only 'despite' in spite of and ,nevertheless'. Hence, the mere fact that the personal law permits second marriage will not enable the serviceman to indulge in it straightway. He has to obtain the ~previous sanction under the regulation. The very fact that previous sanction is contemplated and stipulated leaves no room for doubt that a justifiable case there for has to be made out. What are the curcumstances, contingencies or exigencies which would justify the contracting of a second marriage, so as to warrant the accord of sanction for it, cannot be lenvisaged with rigidity and fixity and laid on own in a compendium of guidelines. They may differ and vary from individual to individual and from time to time. Practically this' would be an individual problem. The individual concerned has to Make out a justifiable cause by himself to obtain the sanction. The authority empowered to grant sanction will have to Ossess the individual cases and if he finds a justification for granting the same, he can do so. A rule which confers, the power to exempt need not by itself held to be is criminatory, if the policy behind the to is obvious. There will be a departure, on the normal rule or an exemption from it, if the person seeking the same demonstrates the facts and circumstances warranting the same. It would be a difficult task and an impracticability to lay down a comprehensive or a definite guideline in this behalf. All, the circumstances, contingencies and exigencies cannot be Predicted beforehand and adumbrated in tiny fixed formulae. The sanctioning!:1 outhority, admittedly, being the highest in the hierarchy of authorities, will certainly deal with the question of exemption, taking into account all the features exposed before him. He is expected to act Swonably in the matter and not If we understand the policy behind the regulation as . monogamy, -there must be exceptional and compellin ;circumstances to warrant the contracting of a second marriage while the first wife is living. This is the rule despite the fact that the personal law permits bigamy.

11. 'Keeping in mind the principles discussed above, it is not possible to hold that Regn. 15 has got to be struck down or declared as void or unconstitutional on the ground it lacks guidelines. The guidelines are implicit in the regulation itself in the sense, they are deducible from the purpose behind it. It is one thing to say that arbitrariness is writ on the face of the rule itself and it is another thing to say that arbitrariness is likely to come in when there is going to be an actual exercise of the power. It is not disputed before me that the power to accord the sanction under Regn. 15 is vested with the, highest in the hierarchy of the officials and it is ,expected of such an authority to ex6riclise that power without arbitrariness an with reasonableness, taking into account the facts of each case. As I stated above, we are not, in the present writ petition, testing the propriety or otherwise of the order of rejection which the petitioner faces over his request to contract a second marriage while his first spouse is still living. Learned counsel for the respondent would state that no compelling circumstances and no exceptional exigencies have, in fact, been put forth by the petitioner while seeking ft- sanction for contracting a martiage. need not go into this qu~

in this writ petition.

12. 'Mr. Ashok Menon,, apart. from relying on the pronouncements of the Supreme Court where different rules have been dealt with, arising on different contingencies~ places strong reliance on the pronouncement of the Supreme Court in Air India v. Nargesh Meerza, : (1981)IILLJ314SC . In that case, the power to extend the age of retirement was conferred on the managing , director of Air India at his option. It is not possible to draw a comparison between regulation 15 and the rule dealt by the Supreme Court in that ftge. -As stated earlier, each rule will have to be dealt with, taking into account the policy which enunciated and inspired the same and the mere fact that the rule by itself does not make a complete and precise guideline to suit all contingencies will not make the rule itself ultra vires and, if the exercise of the power pursuant to the rule is found to be arbitrary or discriminatory, that could be dealt with individualwise.

13. 'The reasons expressed by rne above leave me with no other alternative but to discountenance the prayer put forth by the petitioner in this writ petition and accordingly, the writ petition is dismissed, I make no order as to costs.

14. Petition dismissed.


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