Casual Labourers (Grant of Temporary
Status and Regularisation) Scheme 1993 -
HIGH COURT OF JAMMU
AND KASHMIR AT SRINAGAR
Coram: Hon’ble
Mr Justice Tashi Rabstan, Judge
OWP no.429/2018 IA no.01/2018
Date of order:
30.11.2018
Director General, All
India Radio and another v. Casual Labour Employees Association, Radio
Kashmir
Appearing
Counsel: For Petitioner(s): Mr S. N. Ratanpuri, Advocate For Respondent(s):
Mr R. A. Jan, Senior Advocate with Mr Sharaf Wani, Advocate
1. Impugned
in this writ petition is Award dated 18th September
2017, passed by the Central Government Industrial Tribunal-cum-Labour Court-II,
Chandigarh (for brevity “Tribunal”) in case titled Casual Labour
Employees Association, Radio Kashmir, Srinagar, J&K, India v. Director
General All India Radio and others, on the grounds set out in therein.
2. Reply
has been filed by respondents, vehemently resisting the petition on hand.
3. I
have heard learned counsel for parties and considered the matter.
4. According
to learned counsel for petitioners, impugned Award has been passed in violation
of Casual Labourers (Grant of Temporary Status and Regularisation) Scheme 1993,
framed by Department of Personnel and Training, inasmuch as the Scheme of 1993
has tacit approval of the Courts and the Supreme Court as well. He has also
averred that the direction of learned Tribunal to grant temporary status and
all other benefits as available to workers, who were granted temporary status
as per the Scheme of 1993, is not in conformity with the ratio laid down by the
Supreme Court in various cases. He also states that learned Tribunal has failed
to appreciate that once applicants are given temporary status, they will claim
regularisation as a consequence of being temporary status worker, which will be
contrary and against the Supreme Court observation that grant of temporary
status and regularisation is one-time scheme and not ongoing scheme. The next
submission of learned counsel for petitioners is that impugned award has been
passed in violation of the Administrative Tribunals Act, which alone is
competent to adjudicate upon the dispute of the Central Government employees /
casual workers because the impugned award has been passed under Industrial
Disputes Act, 1947, when the said Act is applicable to workmen inasmuch as the
respondents can in no way be termed as workmen and therefore cannot claim any
benefit under the Industrial Disputes Act, 1947. The impugned award, according
to learned counsel, is in contravention to the judgement rendered by the
Supreme Court in L. Chandra Kumar v. The Union of India, AIR 1995 SC 1151.
5. Petitioners‟
grumble is that respondents are not entitled to the benefit as provided under
the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme,
1993 and as a corollary, impugned Award is liable to be set-aside. It is, thus,
imperative to have glance of the Scheme of 1993 vis-à-vis the pleadings of
parties. The Scheme of 1993 has come into force with effect from 1st September
1993. It is applicable to casual labourers in employment of Ministries/
Departments of Government of India and their attached and subordinate offices,
on the date of issue of the Scheme of 1993. In terms of para 4 of the Scheme of
1994, temporary status is to be conferred on all casual labourers who are in
employment on the date of issue of the Scheme and who have rendered a
continuous service of at least one years, which means that they must have been
engaged for a period of 240 days (206 days in the case of offices observing 5
days week) and such conferment of temporary status would be without reference
to the creation/availability of regular Group „D‟ posts.
6. Insofar
as present case is concerned, a dispute arose between the parties and for its
settlement and as a consequence of which, Report on Failure of Conciliation was
sent to Government of India, Ministry of Labour, New Delhi, by Regional Labour
(C) Jammu vide letter dated 18th December 2015 (Annexure A
to Reply). Ministry of Labour, Government of India, vide Order bearing
No.L-42011/25/2016 (IR(DU) dated 29th March
2016, referred the dispute for adjudication to learned Tribunal, with the
reference that whether the action of the management of Radio Kashmir, Srinagar,
representing through its Chief Executive Officer in not regularising the
services of 37 casual workers of Radio Kashmir, Srinagar, with effect from the
date of their joining in the department was legal and justified and if not what
relief these workmen were entitled to and from which date. The parties were
directed to file statement of claim complete with relevant documents, list of
reliance and witnesses with the learned Tribunal within fifteen days of the
receipt of the reference. The contention of learned counsel for petitioners
that learned Tribunal is incompetent to adjudicate upon the matter is
meretricious. The reason being that that it was at the instance of petitioners
that the matter was referred to learned Tribunal. And not only this,
petitioners partook in the proceedings before learned Tribunal. If petitioners
had any reservation or objection qua squaring off the dispute by learned
Tribunal, they ought to have, the moment reference was made to learned
Tribunal, approached Government of India with their gravamen that learned
Tribunal had not been competent enough to adjudicate upon the matter/dispute
under reference. Once petitioners partook in the proceedings before learned
Tribunal, they acquiesced to reference made by the Government of India and the
proceedings before learned Tribunal.
7. In
reference to Order no.L-42011/25/2016 (IR(DU) dated 29th March
2016, claimants/respondents filed Statement of Claim before learned Tribunal,
to which present petitioners filed their reply. Admitted facts that emerged
from the pleadings of the parties before learned Tribunal were that respondents
are rendering services since 1991 to 1999 and had been deputed for procurement
of technical items from the market, running of diesel gensets, maintenance of
transmitters, cooking meals and other ancillary jobs. It also come to fore from
the pleadings of the parties that respondents had been engaged during the days
of militancy and they had worked at the cost of their lives with the hope that
some scheme / policy would be devised for regularising their services. They
have rendered more than 20 to 25 years of service and have also crossed upper age
limit for seeking job or absorption elsewhere. Respondents urged for their
regularisation. A committee constituted by petitioners in April 2015, opined
and recommended to take up the matter with Department of Personnel and Training
(DOPT) for final decision. It appears that the matter had been taken up with
DOPT but of no avail.
8. Petitioners‟
vehement plea, both before learned Tribunal and before this Court, is that
respondents are casual labourers, working on job contract basis (not employees)
with stipulated terms and conditions and from the beginning it was stipulated
in their job contract, signed by respondents every month, that they would not
claim for regularisation inasmuch as they are being paid wages as per rates/
wages approved by Chief Labour Commissioner, New Delhi, as per different
categories and once respondents have agreed and signed the job contract that
they would not claim for any regularisation, they have no right to lay any
claim for regularising their services. Such contention of petitioners is
unacceptable as being specious argument. It may not be out of place to mention
here that men's concept of the State as a polity or a political unit or entity
and what functions of the State are or should be, have changed over years and
particularly in the course of this century. A man cannot tenaciously cling to
same ideas and concepts all his life. As Emerson said in his essay on
“Self-Reliance”, “A foolish consistency is the hobgoblin of little minds”.
Man is by nature ever restless, ever discontent, ever seeking something new,
ever dissatisfied with what he has. This inherent feature in nature of man is
reflected in society, in which he lives, for a society is a conglomerate
of men who live in it. Just as man by nature is dissatisfied, so is society.
Just as man seeks something new, ever hoping that a change will bring about
something better, so does society. Old values, old ideologies and old systems
are thus replaced by new ideologies, a new set of values and a new system; they
in their turn to be replaced by different ideologies, different values and a
different system. The ideas that seem revolutionary become outmoded with the
passage of time and the heresies of today become the dogmas of tomorrow. What
proves to be adequate and suited to the needs of a society at a given time and
in particular circumstances turns out to be wholly unsuited and inadequate in
different times and under different circumstances.
9. The
story of mankind is punctuated by progress and retrogression. Empires have
risen and crashed into the dust of history. Civilizations have flourished,
reached their peak and passed away. In the year 1625, Carew, C.J., while
delivering the opinion of the House of Lords in Re the Earldom of Oxford,
(1625) W. Jo. 96, 101 SC (1626) 82 E.R. 50, 53, in a dispute relating
to the descent of that Earldom, said:
"….and yet time
hath his revolution, there must be a period and an end of all temporal things, finis
rerum, an end of names and dignities, and whatsoever is terrene…."
10. Cycle
of change and experiment, rise and fall, growth and decay, and of progress and
retrogression recurs endlessly in the history of man and the history of
civilization. T. S. Eliot in First Chorus from “The Rock”
said:
“O Perpetual
revolution of configured stars,
O Perpetual
recurrence of determined seasons,
O world of spring and
autumn, birth and dying!
The endless cycle of
idea and action, endless invention, endless experiment”.
11. The
law exists to serve needs of society, governed by it. If the law is to play its
allotted role of serving the needs of society, it must reflect ideas and
ideologies of that society. It must keep time with heartbeats of society and
with the needs and aspirations of people. As society changes, law cannot remain
immutable. Early nineteenth century essayist and wit, Sydney Smith,
said, “When I hear any man talk of an unalterable law, I am convinced that
he is an unalterable fool.” The law must, therefore, in a changing society
march in tune with changed ideas and ideologies. Legislatures are, however, not
best fitted for role of adapting the law to the necessities of time, for legislative
process is too slow and legislatures often divided by politics, slowed down by
periodic elections and overburdened with myriad other legislative activities. A
constitutional document is even less suited to this task, for the philosophy
and ideologies underlying it must of necessity be expressed in broad and
general terms and process of amending a Constitution is too cumbersome and
time-consuming to meet immediate needs. This task must, therefore, of necessity
fall upon the courts because the courts can by the process of judicial
interpretation adapt the law to suit the needs of the society.
12. Following
passage is worthwhile to be reproduced below as it has become a classic, from
opening paragraph of Justice Oliver Wendell Holmes's “The Common Law”,
which contains lectures delivered by him while teaching law at Harvard and
which book was published in 1881 just one year before he was appointed an Associate
Justice of the Massachusetts Supreme Judicial Court:
“It is something to
show that the consistency of a system requires a particular result, but it is
not all. me life of the law has not been logic : it has been experience. The
felt necessities of the time, the prevalent moral and political theories,
intuitions of public policy, avowed or unconscious, even the prejudices which
judges share with their fellow-men, have had a good deal more to do than the syllogism
in determining the rules by which men should be governed. The law embodies the
story of a nation's development through many centuries, and it cannot be dealt
with as if it contained only the axioms and corollaries of a book of
mathematics. In order to know what it is, we must know what it has been, and
what it tends to become. We must alternately consult history and existing
theories of legislation. But the most difficult labor will be to understand the
combination of the two into new products at every stage. The substance of the
law at any given time pretty nearly corresponds, so far as it goes, with what
is then understood to be convenient; but its form and machinery, and the degree
to which it is able to work out desired results, depend very much upon its
past.”
13. Let
us revert to contention of petitioners that once respondents accepted and acted
upon terms and conditions of job contract, they are estopped in law to urge and
implore in contravention thereof. To this, learned senior counsel for
respondents has strenuously argued, and rightly so, that by virtue of superior
position of petitioners vis-à-vis respondents, they were made to comply job
contract inasmuch as respondents had no option but to kneel down before
petitioners. His further submission is that parties did not stand on an equal
footing and did not enjoy same bargaining power, and that the power used and
utilized by petitioners was arbitrary and uncanalized. The Supreme Court in Central
Inland Water Transport Corporation Ltd and another v. Brojo Nath and another
AIR 1986 SC 1571, has accepted the position that certain regulations
made by employers need to be struck down, being a reflection of unequal
bargaining powers. This position was reiterated in Delhi Transport
Corporation v. D.T.C. Mazdoor Congress and others JT 1990 (3) 725.
14. The
general rule as said by Willes, J., in Pickering v.
Ilfracombe Ry. Co., [1868] L.R. 3 C.P. 235 (at page 250) is as
follows:
"The general
rule is that, where you cannot sever the illegal from the legal part of a
covenant, the contract is altogether void; but where you can sever them,
whether the illegality be created by statute or by the common law, you may reject
the bad part and retain the good".
15. Under
which head would an unconscionable bargain fall? If it falls under the head of
undue influence, it would be voidable but if it falls under the head of being
opposed to public policy, it would be void. No case of the type before us
appears to have fallen for decision under the law of contracts before any court
in India nor has any case on all fours of a court in any other country been
pointed out to us. The word "unconscionable" is defined in the
Shorter Oxford English Dictionary, Third Edition, Volume II, page 2288,
when used with reference to actions etc. as “showing no regard for
conscience; irreconcilable with what is right or reasonable”. An unconscionable
bargain would, therefore, be one, which is irreconcilable with what is right or
reasonable. Although certain types of contracts were illegal or void, as the
case may be, at Common Law, for instance, those contrary to public policy or to
commit a legal wrong such as a crime or a tort, the general rule was of freedom
of contract. This rule was given full play in nineteenth century on the ground
that parties were best judges of their own interests, and if they freely and
voluntarily entered into a contract, only function of the court was to enforce
it. It was considered immaterial that one party was economically in a stronger
bargaining position than other; and if such a party introduced qualifications
and exceptions to his liability in clauses which are today known as “exemption
clauses” and other party accepted them, then full effect would be given to
what parties agreed. Equity, however, interfered in many cases of harsh or
unconscionable bargains, such as, in the law relating to penalties, forfeitures
and mortgages. It also interfered to set aside harsh or unconscionable
contracts for salvage services rendered to a vessel in distress, or
unconscionable contracts with expectant heirs in which a person, usually a
money-lender, gave ready cash to the heir in return for property, which he
expects to inherit and, thus, to get such property at a gross undervalue. It
also interfered with harsh or unconscionable contracts entered into with poor
and ignorant persons who had not received independent advice [See: Chitty
on Contracts, Twenty-Fifth Edition, Volume I, paragraphs 4 and 516].
16. Legislation
has also interfered in many cases to prevent one party to a contract from
taking undue or unfair advantage of other. Instances of this type of
legislation are usury laws, debt relief laws and laws regulating the hours of
work and conditions of service of workmen and their unfair discharge from
service, and control orders directing a party to sell a particular essential
commodity to another.
17. In Lingappa
Pochanna Appelwar v. State of Maharashtra (1985) 1 SCC 479, the Supreme
Court said that Legislators, Judges and administrators are now familiar with
concept of distributive justice. Our Constitution permits and even directs the
State to administer what may be termed “distributive justice”. The concept of
distributive justice in the sphere of law-making connotes, inter alia,
removal of economic inequalities and rectifying injustice, resulting from
dealings or transactions between unequals in society, as is the position in
present case. Law should be used as an instrument of distributive justice to
achieve a fair division of wealth among members of society based upon the
principle: „From each according to his capacity, to each according to his
needs‟. Distributive justice comprehends more than achieving lessening of
inequalities by differential taxation, giving debt relief or distribution of
property owned by one to many, who have none by imposing ceiling on holdings,
both agricultural and urban, or by direct; a regulation of contractual
transactions by forbidding certain transactions and, perhaps, by requiring
others. It also means that those who have been deprived of their properties by
unconscionable bargains, should be restored their property. All such laws may
take the form of forced redistribution of wealth as a means of achieving a fair
division of material resources among members of society or there may be legislative
control of unfair agreements.
18. When
our Constitution states that it is being enacted in order to give to all the
citizens of India “Justice, social, economic and political”, when clause
(1) of Article 38 of the Constitution directs the State to strive to promote
welfare of people by securing and protecting as effectively as it may a social
order in which social, economic and political justice shall inform all
institutions of national life, when clause (2) of Article 38 directs the State,
in particular, to minimize inequalities in income, not only amongst individuals
but also amongst groups of people residing in different areas or engaged in
different vocations, and when Article 39 enjoins upon the State that it shall,
in particular, direct its policy towards securing that citizens, men and women
equally, have the right to an adequate means of livelihood and that operation
of economic system does not result in concentration of wealth and means of
production to common detriment and that there should be equal pay for equal
work for both men and women, it is doctrine of distributive justice which is
speaking through these words of the Constitution.
19. Yet
another theory, which has made its emergence in recent years in the sphere of
the administrative laws, is test of reasonableness or fairness of a clause in
administrative matters, where there is inequality of bargaining power. Lord
Denning, M.R., appears to have been propounder, and
perhaps originator – at least in England, of this theory. In Gillespie
Brothers & Co. Ltd. v. Roy Bowles Transport Ltd., [1973] 1 Q.B. 400,
Lord Denning said:
“The time may come
when this process of 'construing' the contract can be pursued no further. The
words are too clear to permit of it. Are the courts then powerless? Are they to
permit the party to enforce his unreasonable clause, even when it is so
unreasonable, or applied so unreasonably, as to be unconscionable? When it gets
to this point, I would say, as I said many years ago :
„there is the
vigilance of the common law which, while allowing freedom of contract, watches
to see that it is not abused' : John Lee & Son (Grantham) Ltd. v.
Railway Executive [1949] 2 All. E.R. 581, 584. It will not allow a party to
exempt himself from his liability at common law when it would be quite
unconscionable for him to do so.”
20. It
was in Lloyds Bank Ltd. v. Bundy, [1974] 3 All E.R. 757 that Lord
Denning first clearly enunciated his theory of “inequality of
bargaining power”. He began his discussion on this part of the case by
stating:
“There are cases in
our books in which the courts will set aside a contract. Or a transfer of
property, when the parties have not met on equal terms, when the one is so
strong in bargaining power and the other so weak that, as a matter of common
fairness, it is not right that the strong should be allowed to push the weak to
the wall. Hitherto those exceptional cases have been treated each as a separate
category in itself. But I think the time has come when we should seek to find a
principle to unite them. I put on one side contracts or transactions which are
voidable for fraud or misrepresentation or mistake. All those are governed by
settled principles. I go only to those where there has been inequality of
bargaining power such as to merit and intervention of the court.”
21. He
then referred to various categories of cases and ultimately deduced therefrom a
general principle in these words:
“Gathering all
together, I would suggest that through all these instances there runs a single
thread. They rest on „inequality of bargaining power‟. By virtue of it, the
English law gives relief to one who, without independent advice, enters into a
contract on terms which are very unfair or transfers property for a
consideration which is grossly inadequate, when his bargaining power is
grievously impaired by reason of his own needs or desires, or by his own
ignorance or infirmity, coupled with undue influences or pressures brought to
bear on him by or for the benefit of the other. When I use the word „undue‟ I
do not mean to suggest that the principle depends on proof of any wrongdoing.
The one who stipulates for an unfair advantage may be moved solely by his own
self-interest, unconscious of the distress he is bringing to the other. I have
also avoided any reference to the will of the one being „dominated‟ or
„overcome‟ by the other. One who is in extreme need may knowingly consent to
a most improvident bargain, solely to relieve the straits in which he finds
himself. Again, I do not mean to suggest that every transaction is saved by
independent advice. But the absence of it may be fatal. With these
explanations, I hope this principle will be found to reconcile the cases.” (Emphasis
supplied)
22. From
the above it emerges that should our Courts not advance with the times? Should
they still continue to cling to outmoded concepts and outworn ideologies?
Should we not adjust our thinking caps to match the fashion of the day? Should
all jurisprudential development pass us by, leaving us floundering in the
sloughs of nineteenth-century theories? Should strong be permitted to push weak
to wall? Should they be allowed to ride roughshod over weak? Should Courts sit
back and watch supinely while strong trample underfoot rights of weak? We have
a Constitution for our country. Our judges are bound by their oath to “uphold
the Constitution and the laws”. The Constitution was enacted to secure to
all the citizens of this great Country social and economic justice. Article 14
of the Constitution guarantees to all persons, equality before law and equal
protection of laws. The principle deducible from above discussion on this part
of the case, is in consonance with right and reason, intended to secure social
and economic justice and conforms to mandate of great equality clause in
Article 14. This principle is that Courts will not enforce and will, when
called upon to do so, strike down an unfair and unreasonable contract, or an
unfair and unreasonable clause in a contract or unfair and unreasonable act of
employer upon employees, who are not equal in bargaining power. Respondents,
obviously, in the present case are not in bargaining position, but for all
practical purposes, petitioners have been in bargaining position.
23. By a
hair‟s breadth ever has the voice of timorous spoken more clearly and loudly
than in the words of Lord Davey in Janson v. Uriefontein
Consolidated Mines Limited [1902] A.C. 484, 500 “Public policy is
always an unsafe and treacherous ground for legal decision.” That was in
the year 1902. Seventy-eight years earlier, Burrough, J., in Richardson
v. Mellish, [1824] 2 Bing. 229, 252; s.c. 130 E.R. 294, 303 and [1824-34] All
E.R. Reprint 258, 266, described public policy as “a very unruly
horse, and when once you get astride it you never know where it will carry you.”
The Master of Rolls, Lord Denning, however, was not a man to shy
away from unmanageable horses and in words, which conjure up before our eyes
the picture of young Alexander the Great Taming Bucephalus, he said in Enderyby
Town Football Club Ltd. v. Football Association Ltd., [1971] Ch. 591, 606,
“With a good man in the saddle, the unruly horse can be kept in control. It
can jump over obstacles.” Had the timorous always held the field, not only
the doctrine of public policy but even the Common Law or the principles of
Equity would never have evolved. Sir William Holdsworth in his “History
of English Law”, Volume III, page 55, has said:
“In fact, a body of
law like the common law, which has grown up gradually with the growth of the
nation, necessarily acquires some fixed principles, and if it is to maintain
these principles it must be able, on the ground of public policy or some other
like ground, to suppress practices which, under ever new disguises, seek to weaken
or negative them.”
24. It
is thus clear that principles governing public policy must be and are capable,
on proper occasion, of expansion or modification. Practices considered
perfectly normal at one time, have today become obnoxious and oppressive to
public conscience. If there is no head of public policy which covers a case,
then the court must in consonance with the public conscience and in keeping
with the public good and public interest declare such practice to be opposed to
the public policy. Above all, in deciding any case which may not be covered by
the authority, our Courts have before them beacon light of Preamble to the
Constitution. Lacking precedent, the Court can always be guided by that light
and principles underlying Fundamental Rights and Directive Principles enshrined
in our Constitution.
25. So
far as the original terms of employment, in the present case vis-à-vis services
of respondent with petitioners, are concerned, they are governed and regulated
by the Casual Laboure‟s (Grant of Temporary Status and Regulations) Scheme,
1993. Respondents, admittedly, have been working and discharging their duties.
Communication dated 13th January 2014 (Annexure C to Reply) is
an Achilles‟ heel in the case of petitioner against impugned Award. The said
communication divulges that engagement of respondent was made when the Valley
was totally in grip of militancy and that they are continuing. It also reveals
that case of respondents had been time and again forwarded to Directorate
General, AIR, New Delhi, for their regularization as the power regularize the
services of respondents was lying with Directorate General, All India Radio,
New Delhi.
26. The
submission of petitioners that once respondents signed job contract, accepting
thereby terms and conditions contained therein including not to claim for
regularizing their services, they are estopped in law to turnaround and
reagitate the matter and this Court, therefore, cannot interfere with it. It is
not possible for me to equate casual workers/labourers with goods, which can be
bought and sold. They are after all human beings. It is equally not possible
for me to equate a contract of employment with a mercantile transaction between
two businessmen and muchless to do so when contract of employment is between a
powerful employer and a weak casual labour. The actions of the State and its
functionaries must be inconformity with Article 14 of the Constitution. The
progression of judicial concept of Article 14 from a prohibition against
discriminatory class legislation to an invalidating factor for any
discriminatory or arbitrary State action has been traced in Union of
India v. Tulsiram Patel (1985) SCC 398. The principles of natural
justice have now come to be recognized as being a part of the Constitutional
guarantee contained in Article 14. In Tulsiram Patel's case the
Supreme Court said:
“The principles of
natural justice have thus come to be recognized as being a part of the
guarantee contained in Article 14 because of the new and dynamic interpretation
given by this Court to the concept of equality which is the subject-matter of
that Article. Shortly put, the syllogism runs thus: violation of a rule of
natural justice results in arbitrariness which is the same as discrimination;
where discrimination is the result of State action, it is violation of Article
14; therefore, a violation of a principle of natural justice by a State action
is a violation of Article 14. Article 14, however, is not the sole repository
of the principles of natural justice. What it does is to guarantee that any law
or State action violating them will be struck down. The principles of natural
justice, however, apply not only to legislation and State action but also where
any tribunal, authority or body of men, not coming within the definition of
„State‟ in Article 12, is charged with the duty of deciding a matter.”
27. Nevertheless,
in the context of the unequal bargaining power of petitioners qua respondents,
who had been desperate for sustaining their respective families, particularly
during turmoil and hard days, conditions sketched in job contract qua deciding
their fate of regularization of service through unequal bargaining power, is
nothing but an unconscionable covenant, forced by petitioners on the persons
(respondents) who hardly had any strength to resist might of petitioners. In
fact, respondents had practically no choice in the matter and had to relinquish
their claim for making both ends meet. This type of covenant cannot be said to
be right or reasonable and amounts to unconscionable contract, as has been held
by the Supreme Court in the case of Central Inland Water Transport Corpn
Ltd. v. Brojo Nath Ganguly (supra).
28. The
act of the petitioners not granting and giving respondents the same benefit as
has been bestowed to similarly situated persons, violates the Constitutional
rights guaranteed to respondents. It is not only in cases to which Article 14
applies that the rules of natural justice come into play. As pointed out in Tulsiram
Patel’s case (supra), “The principles of natural justice are not the
creation of Article 14. Article 14 is not their begetter but their
constitutional guardian.” That case has traced in some detail the genesis
and development of the concept of principles of natural justice and of audi
alteram partem rule. They apply in diverse situations and not only to cases
of State action. As pointed out by O. Chinnappa Reddy, J., in Swadeshi
Cotton Mills v. Union of India AIR 1981 SC 818, they are implicit in
every decision-making function, whether judicial or quasi-judicial or
administrative. Indubitably, in certain circumstances principles of natural
justice can be modified and, in exceptional cases, can even be excluded as
pointed out in Tulsiram Patel’s case (supra).
29. In
the backdrop of preceding discourse, the Award, impugned in this petition, has
been passed by learned Tribunal after taking into consideration all facets of
the matter including the Scheme of 1993 as also the pleadings of both parties
that unequivocally furnish aid and assistance to the case of respondents. And
the reference made by learned counsel for petitioners to J. D. Jain v.
Management of SBI & anr, (1982) 1 SCC 143; Sadhu Ram v. Delhi Transport
Corporation, (1983) 4 SCC 156; Mukand Ltd. V. Mukand Staff & Officers
Association, (2004) 10 SCC 460; and Anurag Kumar Singh & ors v. State of
Uttarakhand & ors, 2016 (9) SCC 426, has not furnished any aid and
assistance to the case of petitioners. Having said so, writ petition is liable
to be dismissed.
30. Taking
the foregoing discussion, observations and reasons together, the writ petition
on hand lacks in merit, and is, accordingly dismissed. Interim
direction, if any, shall stand vacated.
31. Record
be returned.
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