Dtc Mazdoor Congress And Others vs Union Of India And Others
Dtc Mazdoor Congress And Others
Union Of India And Others
on 14 May, 1986
Equivalent citations: ILR 1986 Delhi 158
Author: B Kripal
Bench: B Kripal, S Ranganathan
Headnote: The Supreme Court held that the subsequent Rules and Regulations, framed in the exercise of powers conferred by Section 53 of the Delhi Transport Authority, does not give reasonable justification as to termination of services of its employees, moreover it violates Article 14 of the Constitution of India.
JUDGEMENT: B KRIPAL
This writ petition under Article 226 of the Constitution has been filed by the D.T.C. Mazdoor Congress, Petitioner No. 1 and four other employees of the Delhi Transport Corporation Respondent No. 2 (hereinafter referred to as ‘DTC’), wherein the challenge is to the validity of Regulation 9(a) & (b) of D.R.T.A. (Conditions of Appointment and Service) Regulations, 1952 and the termination of Services of Petitioners 2 to 4.
2. According to the petition, at the time of termination of their services, Petitioner No. 2 was working as a Conductor since 1969. Petitioner No. 3 was working as an A.T.I. since 1970 and Petitioner No. 4 was working as a Driver since 1974. All the said petitioners were permanent employees of the DTC. Petitioner No. 5 however, was on probation. The said Petitioners 2 to 4 are members of Petitioner No. 1, which is a recognised trade union of the workers employed with the DTC.
3. It is alleged that the DTC terminated the services of a driver and a conductor on 15th February, 1985. This led to a reaction of the workers who opposed the action which had been taken against the said employees. The reinstatement of the said workers was demanded. The dispute was not resolved and this led to further spreading of agitation in various depots of DTC and it resulted in complete stoppage of work. The main agitation of the workers was against the use of Regulation 9(a) & (b) of the D.R.T.A. Regulations. According to the petitioners, the DTC terminated the services of more than 200 workers who were working as probationers/daily wagers. Their services were terminated by invoking Regulation 9(a) of the Regulations. The service of Petitioner No. 5, who was a probationer, was terminated under that provision. The services of Petitioners 2 to 4, who were permanent employees, were terminated by orders dated 4th June, 1985 by invoking the provisions of Regulation 9(b).
4. The above mentioned Regulation 9(a) & (b) of the Regulations were framed in exercise of powers conferred by Section 53 of the Delhi Road Transport Authority Act, 1950, which provision enables the formulation of Regulations. Regulation 9 of the said Regulations reads as under :-
“9. Termination of Service : (a) Except as otherwise specified in the appointment orders, the services of an employee of the Authority may be terminated without any notice or pay in lieu of notice :-
(i) During the period of probation and without assigning any reason thereof.
(ii) For misconduct.
(iii) On the completion of specific period of appointment.
(iv) In the case of employees engaged on contract for a specific period, on the expiration of such period in accordance with the terms of appointment.
(b) Where the termination is made due to reduction of establishment or in circumstances other than those mentioned at (a) above, one month notice or pay in lieu thereof will be given to all categories of employees.
(c) Where a regular/temporary employee wishes to resign from his post under the Authority he shall give three/one month’s notice in writing or pay in lieu thereof to the Authority provided that in special case, the General Manager may relax, at his discretion, the conditions regarding the period of notice of resignation or pay in lieu thereof.”
5. Mr. V. P. Singh, learned counsel for the petitioners, stated that since the filing of this petition, the notices issued under Regulation 9A by DTC to its various employees, including petitioner No. 5, have been withdrawn and all those persons have been reinstated. The effect of this is that at this point of time there is no person who is aggrieved by any action having been taken by DTC under Regulation 9(a). The question, therefore, of considering the validity of said Regulation 9(a) does not arise. We do not intend to consider the validity of the said provision in the abstract or as an academic exercise.
6. Petitioners 2 to 4, against whom action has been taken by DTC by issuing notices of termination under Regulation 9(a) have still not been reinstated. The learned counsel for the petitioners has contended that their termination of service should be set-aside because Regulation 9(b) itself is ultra vires. In this connection it was submitted that the said provisions gives absolute unbridled and arbitrary powers to the Management to terminate the services of any permanent or temporary employee. Giving of such a power is, it is submitted, on the face of it violative of Article 14 of the Constitution. In support of this contention, the learned counsel for the petitioners has strongly relied on the decisions of the Supreme Court in the case of Workmen of Hindustan Steel Ltd. and another v. Hindustan Steel Ltd. and others (1985 – I – LLJ – 267) West Bengal State Electricity Board and others v. Desh Bandhu Ghosh and others, (1985 – I – LLJ – 373) Central Inland Water Transport Corporation Ltd. & Another v. Tarun Kanti Sengupta and another (1986 – II – LLJ – 171) decided on 6th April, 1986.
7. Before considering the vires of Regulation 9(b), it is necessary to consider a preliminary objection which has been raised by Mr. Bhandari on behalf on DTC. It was contended by him that this Court ought not to exercise its extraordinary jurisdiction under Article 226 of the Constitution in as much as an alternative remedy was available to the petitioners. It was contended that the petitioners were workmen within the meaning of that expression under the Industrial Disputes Act. Their termination could be subject matter of a reference being made under section 10 of the Industrial Disputes Act. When such a reference is made, it would be open to DTC, it was submitted, to satisfy the Industrial Tribunal that action against the petitioners had been validly taken. In this connection, reliance was placed by the learned counsel on the cases of Thansingh Nathmal v. Supdt. of Taxes , State of Madhya Pradesh v. Bhailal Bhai, Basant Kumar Sarkar and others v. Eagle Rolling Mills Ltd. and others, (1964 – II – LLJ – 105) Mr. Bhandari elaborated this argument further by contending that by permitting the petitioners to take recourse to proceedings under Article 226 of the Constitution, the Court would be depriving the respondent of an opportunity of leading evidence before the Industrial Tribunal in an effort to satisfy the Tribunal that the services of the petitioners were rightly terminated.
8. We are unable to agree with the contentions of Mr. Bhandari. It has not been disputed by the learned counsel that the Industrial Tribunal would have no jurisdiction to adjudicate upon the vires of Regulation 9(b). The Industrial Tribunal must necessarily proceed on the basis that if an action has been taken under Regulation 9(b) for a bona fide reason, then the action would have to be upheld. In the present case the notices of termination have been issued in exercise of the power conferred by Regulation 9(b). There is nothing on the record to show that this power has been exercised to terminate the services of the petitioners on account of any misconduct on their part. In fact if their services were being terminated on account of misconduct then powers which would have been exercised by DTC would have been under Regulation 9(a)(ii) and not under Regulation 9(b). Moreover, in the return filed to the writ petition, the respondents have stated that the services of the petitioners were terminated in public interest, public good and their unsuitability in relation to the positions held by them. If Regulation 9(b) is valid then for the aforesaid reasons the petitioners services could have been terminated. It is for this reason that the petitioners have had to challenge the conferring of the power on the DTC to terminate the services in such circumstances. It is difficult to see how the petitioners could get the relief without their successfully challenging the said Regulation 9(b) and such a challenge cannot be made before the Industrial Tribunal. Therefore, it is incorrect for the respondents to contend that there is any alternative remedy available to the petitioners. The aforesaid decisions of the Supreme Court relied upon by the learned counsel for the respondents would have no application to the facts of the present case. They would be applicable if we had found that the remedy available to the petitioners by way of an industrial dispute was an adequate and effective remedy. As the Industrial Tribunal is not empowered to adjudicate upon the validity of Regulation 9(b) it must be held that the said Tribunal is not a proper forum which the petitioners should be asked to approach. The only remedy available to the petitioners was to approach this Court under Article 226 of the Constitution in an effort to challenge the validity of said Regulation 9(b).
9. Mr. Chandrasekhran on behalf of Union of India contended that the validity of Regulation 9(b) has already been tested by the Supreme Court and the same had been upheld, and therefore, this Court ought not to allow the petitioners to challenge the said Regulation in these proceedings. In this behalf the learned counsel sought to rely on the decision of the Supreme Court in the case of Delhi Transport Undertaking v. Balbir Saran Goel, (1970 – II – LLJ – 20). We are unable to accept the aforesaid contention of the learned counsel. In Balbir Saran’s case, his services were terminated under Regulation 9(b) after paying one month’s salary in lieu of notice. The said termination was challenged. While considering the challenge to the said action which had been taken, the Supreme Court no doubt interpreted Regulation 9(b). In that case there was no challenge made to the validity of the Regulation. The Supreme Court did not have an occasion to examine as to whether the said Regulation was ultra vires Article 14 or not. The parties proceeded on the assumption that the said Regulation was intra vires. The said decision can, therefore, be of little assistance to the respondents.
10. On the merits of the case we find that Regulation 9(b) give absolute power to DTC to terminate the services of any of its employees. In the present case the termination is not due to any reduction of establishment. The services have been terminated for circumstances which are not mentioned in the impugned orders. In the return to the writ petition it has been stated that services have been terminated in public interest, public good and because of the unsuitability of the petitioners. The said Regulation 9(b) gives absolute power to D.T.C. to terminate the services of permanent employees like petitioner 2 to 4 by giving one month’s notice or pay in lieu thereof without even specifying as to the reasons why the services are being terminated and without giving any opportunity to the petitioners to show cause as to why the services should not be terminated. The Supreme Court has had an occasion to consider similar provisions. In Workmen of Hindustan Steel Limited case (supra), the validity of Standing Order No. 32 came up for consideration. The standing Order read as follows :
“32. Special procedure in certain cases. Where a workmen has been convicted for a criminal offence in a court of or where the General Manager is satisfied, for reasons to be recorded in writing, that it is inexpedient or against the interests of security to continue to employ the workman may be removed or dismissed from the service without following the procedure laid down in Standing Order 31.”
11. It was observed by the Supreme Court, while construing this provision, as follows :
“A Standing Order which confers such arbitrary, uncanalised and drastic power to dismiss employee by merely stating that it is in expedient or against the interest of the security to continue to employ the workman are violative of the basic requirement of natural justice in as much as the General Manager can impose penalty of such a drastic nature as to affect the livelihood and put a stigma on the “character of the workman without recording reasons why disciplinary inquiry is dispensed with and what was the misconduct alleged against the employee.”
In West Bengal State Electricity Board’s case (supra) the validity of Regulation 34 was challenged. This regulation read as follows :
“34. In case of a permanent employee, his services may be terminated by serving three month’s notice or on payment of salary for the corresponding period in lieu thereof.”
The Supreme Court held that this regulation was not valid as it was totally arbitrary and conferred on the Board a power which was capable of vicious discrimination.
12. Similar was the provision in Central Inland Water Transport Corporation’s case (supra) where it was rule 9 of the Service Rules which enabled the employer to terminate the services for acts other than misdemeanour. The said rule read as follows :
“9. TERMINATION OF EMPLOYMENT FOR ACTS OTHER THAN MISDEMEANOUR –
(i) The employment of a permanent employee shall be subject to termination of three month’s notice on either side. The notice shall be in writing on either side. The Company may pay the equivalent of three months’ basic pay and dearness allowance, if any, in lieu of notice or may deduct a like amount when the employee has failed to give due notice.
(ii) The services of a permanent employee can be terminated on the grounds of “Services no longer required in the interest of the Company” without assigning any reason. A permanent employee whose services are terminated under this clause shall be paid 15 days’ basic pay and dearness allowance for each completed year of continuous service in the Company as compensation. In addition he will be entitled to encashment of leave at his credit.
The Supreme Court, while considering the validity of this Rule, observed as follows :
“A clause such as Rule 9(i) in a contract of employment affecting large sections of the public is harmful and injurious to the public interest for it tends to create a sense of insecurity in the minds of those to whom it applies and consequently it is against public good. Such a clause, therefore, is opposed to public policy and being opposed to public policy, it is void under Section 23 of the Indian Contract Act.”
13. Regulation 9(b) in the present case is similar to the provisions which were held to be ultra vires by the Supreme Court in the aforesaid cases. Mr. Bhandari has not been able to bring out any distinction between Regulation 9(b) and the aforesaid provisions. Regulation 9(b) in our opinion, clearly gives unguided and unbridled power to the management to terminate the services of any employee, whether workman or supervisor and whether temporary or permanent. Such unbridled power is capable of abuse and can be arbitrarily exercised without giving any opportunity or chance to an employee to explain his case. Such an arbitrary provision is clearly violative of Article 14 of the Constitution and, therefore, must be struck down.
14. For the aforesaid reasons we allow the writ petition. We declare Regulation 9(b) of the Regulations to be illegal and ultra vires and as a consequence thereof the orders terminating the services of petitioners 2 to 4 are quashed and these petitioners are deemed to be in the service of D.T.C. and they would be entitled to back wages and all other benefits by way of annual increments etc. to which they would have been entitled if their services had not been terminated. We direct the D.T.C. to pay to the petitioners their back wages and other benefits within three months from to day. The petitioners will also be entitled to costs. Counsel’s fee Rs. 500/-.