vil Appeal Nos
3241 48 of 1981 Etc
From the Judgment and Order dated 2071983 of the Punjab  Haryana High Court in CWP Nos
469748750751752 and 753 of 1981 BN Shinghvi VA Bobde MK Ramamurthy NB Shetty KK Venugopal Dr Anand Prakash SS JavaIi HS Gill Brij Bhushan MG Ramachandran MC Dhingra AK Sanghi UA Rana BR Agarwala RC Pathak Naresh Mathur SK Sajwan
Baby Lal Praveen Kumar BB Singh Vineet Kumar BD Ahmed
RS Hegde Parijat Singh Mrs Jayshree Wad section Balakrishnan Ms Janani Mrs Urmila Kapoor TT Kunhikan nan HK Puri section Srinivasan Mrs M Karanjawala Vijay Kumar Verma
Ashok Grover VN Ganpule MA Gagrat Mrs PS Shroff Anil Gupta RA Gupta AK Ghosh section Mandal Ranjit Kumar M Veerappa Girish Chandra Dr Meera Aggar wal AK Srivastava KR Nambiar AG Ratnaparkhi R Satish PH Parekh SA Shroff and KV Sree Kumar for the appearing parties
This analogous cluster of seventeen appeals by special leave and a special leave petition involves a common question of law though they arise out of the following respective facts cA Nos
324 z 3248 of 1981 These eight appeals by the Land Development and Reclama tion Corporation Chandigarh are from the Judgment and Order of the Punjab and Haryana High Court dismissing its writ petitions challenging the Award dated 281980 of the Labour Court Chandigarh holding that the respondents were entitled to reinstatement with back wages except Yaspal CA No 3242 of 1981 who was to get wages up to 10101979 with benefits of continuity of service
The respondents were workmen under the management of the Corporation and their services were terminated on the ground that the Chairman had no power to appoint them
The Labour Court in its Award held that their services were terminated illegally without pay ment of retrenchment compensation under the  hereinafter referred to as the Act  and that they were entitled to reinstatement
117 CA No 686 NL of 1982 This appeal is from the Judgment dated 9111981 of the High Court of Bombay Nagpur Bench
The first respondent was an employee of the appellant s corporation since 1972
He was taken on probation in 1975 for one year which was extended from time to time lastly from 191977 to 3110
1977 whereafter his services being not found satisfactory were terminated with effect from 1111977 under Regulation 44b of the State Transport Employees Service Regulations of the Corporation
The Labour Court took the view that it amounted to retrenchment and the provisions of section 25F of the Act having not been complied with the termination was ille gal
The appellant s writ petition therefrom was dismissed
CA No 1817 of 1982 The respondent workman was employed by the appellant Bank on 3101962 as a clerk and he was put on probation for six months
As allegedly there was total lack of confidence of the bank in the employee it terminated his service on 2771974 on payment of three month s salary
The industrial tribunal by its award dated 3121981 directed reinstatement of the workman with full back wages on the ground of non compliance with the provisions of section 25F of the 
The employer Bank now appeals from that Award
CA No 1898 of 1982 Respondent Nos 2 6 were employed on probation by the appellant a partnership firm on 1261975
Respondent Nos
2 5 assaulted a supervisor and being afraid of police re mained absent from 2931976 and abandoned their jobs and their services were terminated
Respondent No 6 stopped attending duties from 981975 and he left the service of his own accord
The Labour Court by its Award dated 169
1980 held that their termination amounted to retrenchment and was illegal for non compliance with the provisions of section 25F of the Act and they were entitled to reinstatement with full back wages
The Management s writ petition challenging the Award having been unsuccessful it has appealed
CA No 3261 of 1982 Respondent Namdeo was a clerk under the appellant Maha rashtra State Road Transport Corporation
Pursuant to a disciplinary 118 proceeding his service was terminated with effect from 2341963 by giving him one month s salary in lieu of no tice
Moved by the respondent the Assistant Commissioner under section 16 of the CP  Berar Industrial Disputes Settle ment Act 1947 held the Inquiry Proceeding to be an empty paper formality and the termination amounted to dismissal and accordingly he set aside the order and directed the corporation to reinstate and pay him his back wages amount ing to Rs 1597 166 within one month
The Corporation having moved the State Industrial Court at Nagpur under section 165 of the Settlement Act that Court by its order dated 2991973 allowed the application and set aside the Assist ant Labour Commissioner s judgment and dismissed the work man s application holding that the acts of misconduct fairly stood proved and he deserved to be dismissed from service
The High Court on being moved by the workman set aside the Labour Court s order and restored that of the Assistant Labour Commissioner
Hence this appeal
CIVIL APPEAL NO
3025  
OF 1990 The services of the workman Sri Pratap Singh driver respondent No 3 were terminated with effect from 18101974 under clause 9ai of the DRTA Conditions of Appointment and Service Regulations 1952
As the conciliation efforts failed the order was placed before the Labour Court Delhi who set aside the order on the ground of noncompliance with the provisions of section 25F of the Act and ordered reinstate ment with full back wages and continuity of service
The High Court having dismissed the writ petition therefrom the appellant seeks special leave
We grant special leave and hear the appeal
CA No 885 of 1980 The workmen appellants Nos 2 and 3 were discharged on I 1111972 for their trade union activities
The Labour Court Bombay by its Award dated 2581977 refused to inter fere
Challenge to the Award in the High Court having failed the workmen appealed to this Court
CA No 1866 of 1982 The workman respondent No 2 reported for artisan train ing on 2591963 and was absorbed as artisan trainee on 1631964
He was made a skilled machine operator under the appellant company and was discharged with effect from 2371970
The Labour Court by its 119 Award dated 181980 held the termination to be illegal on ground of non compliance of section 25F of the Act though the order of discharge was issued under Standing Order 181
The Company has appealed against the said order
CA No 1868 of 1984 The respondent was an employee in the appellant s facto ry as welder and his services were terminated with effect from 21111972 under Standing Order No 28
The Labour Court by its Award dated 30121980 held the order of termi nation amounted to retrenchment and bad for non compliance with section 25F and hence set it aside and ordered reinstatement with full back wages
Hence this appeal
CA No 8456 of 1983 The respondent was dismissed by the appellant Corpora tion after disciplinary inquiry by order dated 2851971 paying one month s wages in advance
The workman having raised an industrial dispute the Labour Court Aurangabad by its Award dated 9111979 held the order of termination to be legal and proper
The respondent s writ petition therefrom was allowed and the Award was quashed and the workman was declared entitled t0 reinstatement
Hence this appeal
CA No 10828 of 1983
The respondent was a store keeper of Rungta Colliery
His name was struck off the rolls of the Colliery with effect from 871975
He having raised an industrial dis pute the Industrial Tribunal Jabalpur by its Award dated 2281977 held the striking off t0 be unjustified and that the termination amounted to retrenchment and bad for non payment of retrenchment compensation
In the workman s Letters Patent Appeal the Division Bench of the High Court also held that the termination amounted to retrenchment
Hence this Management s appeal
The respective cases were argued with some dexterity by the learned counsel Mr BN Singhvi Mr NB Shetye Mr SS Javali Mr KK Venugopal Mr VA Bobde Mr MK Ramamurthy Mr MG Ramachandran  Mr RS Hegde
On the above diverse facts two rival contentions are raised by the parties
The learned counsel for the employers contend that the word retrenchment  as defined in section 200 of the Act means termination of 120 service of a workman only by way of surplus labour for any reason whatsoever
The learned counsel representing the workmen counted that retrenchment  means termination of the service of a workman for any reason whatsoever other than those expressly excluded by the definition in section 200 of the Act
The precise question to be decided therefore is whether on a proper construction of the definition of retrenchment in section 200 of the Act it means termination by the employer of the service of a workman as surplus labour for any reason whatsoever or it means termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action and those expressly excluded by the definition
In other words the question to be decided is whether the word retrenchment in the definition has to be understood in its narrow natural and contextual meaning or in its wider literal meaning
Mr NB Shetye Mr KK Venugopal and the learned counsel adopting their arguments refer to the introduction of the provision of retrenchment in the Act
Retrenchment was not defined either in the repealed Trade Disputes Act 1929 or in the  as originally enacted
Owing to a crisis in the textile industry in Bom bay apprehending large scale termination of services of workmen the Government of India issued an Ordinance which later became the Industrial Disputes Amendment Act 1953 Act 43 of 1953 which was deemed to have come into force on the 24th day of October 1953
Besides introducing the definitions of lay off Clause 2 kkk and Retrenchment Clause 2oo this Amendment Act of 1953 also inserted Chapter VII in the Act which dealt with lay off and Retrenchment
That Chapter contained sections 25A to 25J Section 25A provided that sections 25C to 25E inclusive shall not apply to certain categories of industrial estab lishments
Section 25C dealt with right of workmen laid off compensation
Section 25D provided for maintenance of muster rolls of workmen by employers and section 25E stated the cases in which the workmen were not entitled to lay off compensation
Section 25F dealt with conditions precedent to retrenchment of workmen
Section 25G dealt with procedure for retrenchment and section 25H dealt with re employment of retrenched workmen and section 25J dealing with the effect of laws inconsistent with this Chapter said that the provi sions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law including standing orders made under the Industrial Employ ment Standing Orders Act 1946 XX of 1946 121 provided that nothing contained in this Act shall have effect to derogate from any fight which a workman has under any award for the time being in operation or any contract with the employer
The Statement of Objects and Reasons of the Amendment Act 1953 was as under The Industrial Disputes Amendment Bill 1953 seeks to provide for payment of compensation to workmen in the event of their lay off or retrenchment
The provisions included in the Bill are not new and were discussed at various tripar tite meetings
Those relating to lay off are based on an agreement entered into between the representatives of em ployers and workers who attended the 13th session of the Standing Labour Committee
In regard to retrenchment the Bill provides that a workman who has been in continuous employment for not less than one year under an employer shall not be retrenched until he has been given one month s notice in writing or one month s wages in lieu of such notice and also a gratuity calculated at 15 days  average pay for every completed year of service or any part thereof in excess of six months
A similar provision was included in the Labour Relations Bill 1950 which has since lapsed
Though compensation on the lines provided for in the Bill is given by all progressive employers it is felt that a common standard should be set for all employers Clause 200 as inserted read as under  Retrenchment  means the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary ac tion but does not include a voluntary retirement of the workman or b retirement of the workman on reaching the age of super annuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf or c termination of the service of a workman on the ground of continued ill health
 122 We are referred to contemporaneous interpretation of the word retrenchment
In Employees of Messrs India Reconstruc tion Corporation Ltd Calcutta vs Messers
India Recon struction Corporation Ltd reported in it was observed by the Calcutta High Court Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with
In sub stance the difference between closure and normal retrench ment is one of degree only
As in the case of retrenchment so in the case of closure the workmen are not responsible for closing their jobs
In both the cases what is called compensation by way of retrenchment relief should be admis sible
 In Messrs Benett Coleman and Company Ltd vs Their Employees reported in it was observed by Cal cutta High Court Thus whether the closure was justified or not the workmen who have lost their jobs would in any event get compensa tion
If it was not bona fide or not justified it may be that the measure of compensation would be larger than if it was otherwise
 The above almost contemporaneous exposition is worth consideration Contemporanea expositio est optima et fortio sima in lege Contemporaneous exposition is the best and strongest in the law
A statute is best ex plained by following the construction put upon it by judges who lived at the time it was made
In Pipraich Sugar Mills Ltd vs Pipraich Sugar Mills Mazdoor Union  the appellant company could not work its mills to full capacity owing to short supply of sugar cane and got the permission of the Government to sell its machinery but continued crushing cane under a lease from the purchaser
The workmen s union in order to frustrate the transaction resolved to go on strike and serving a strike notice did not cooperate with the management with the result that it lost heavily
On the expiry of the lease and closure of the industry the services of the workmen were duly terminated by the company
The workmen claimed the share of profits on the basis of the offer earlier made by the compa ny and accepted by the workers
The company having declined to pay and the dispute having been referred 123 the Industrial Tribunal held that the company was bound to pay and accordingly awarded a sum of Rs45000 representing their share of the profits and the award was affirmed by the Labour Appellate Tribunal
Question before this Court in appeal was whether the termination of the workmen on the closure of the industry amounted to retrenchment
It was held that the award was not one for compensation for termi nation of the services of the workmen on closure of the industry as such discharge was different from the discharge on retrenchment which implied the continuance of the indus try and discharge only of the surplusage and the workmen were not entitled either under the law as it stood on the day of their discharge or even on merits to any compensa tion
The contention of the workmen was that even before the enactment of Industrial Disputes Amendment Act 1953 the tribunal had acted on the view that the retrenchment includ ed discharge on closure of business and had awarded compen sation on that footing and that the award of the tribunal in Pipraich s case could be supported in that view and should not be disturbed
This was based on the decision in Employ ees of Messrs India Reconstruction Corporation Ltd Calcutta vs Messrs India Reconstruction Corporation Ltd supra and Messrs Benett Coleman and Company Ltd vs Their Employ ees supra
But their Lordship did not agree
Venkatarama Ayyar J speaking for the four Judge Bench said Though there is discharge of workmen both when there is retrenchment and closure of business the compensation is to be awarded under the law not for discharge as such but for discharge on retrenchment and if as is conceded retrench ment means in ordinary parlance discharge of the surplus it cannot include discharge on closure of business As a result it was held that the Award in Pipraich was against the agreement and could not be supported as one of compensation to the workmen
Thus this Court in Pipraich supra was dealing with the question whether the discharge of the workmen on closure of the undertaking would constitute retrenchment and whether the workmen were entitled on that account to retrenchment compensation and it was observed that retrenchment connoted in its ordinary acceptation that the business itself was being continued but that a portion of the staff or 124 the labour force was discharged as surplusage and the termi nation of services of all the workmen as a result of the closure of the business could not therefore be properly described as retrenchment which in the ordinary parlance meant discharge from the service and did not include dis charge on closure of business
The same view was expressed in Hariprasad Shivshankar Shukla vs AD Divikar 1957 SCR 121 also reported sub nomine Barsi Light Railway Co vs KN Joglekar  wherein the Constitution Bench heard two appeals namely Civil Appeal Nos 103 and 105 of 1956
In Civil Appeal No 105 of 1956 the main appellant was the Barsi Light Railway Company Ltd and the principal respond ent was the President of the Barsi Light Railwaymen s Union
Under an agreement dated August 1 1895 between the Secre tary of State for India in Council and the Railway Company the Secretary of State could purchase and take over the undertaking after giving Railway Company a notice
On Decem ber 19 1952 a notice was given to the Railway Company for and on behalf of the President of India that the undertaking of the Railway Company would be purchased and taken over as from January 1 1954
On November 11 1953 the Railway Company served a notice on its workmen intimating that as a result of the talking over the services of all the workmen of the Railway Company would be terminated with effect from December 31 1953
The notice further stated that the Gov ernment of India intended to employ such of the staff of the company as would be willing to serve on the railway on terms and conditions which were to be notified later
About 77 per cent of the staff of the Railway Company were reemployed on the same scales of pay about 23 per cent were reemployed on somewhat lower scales of pay and only about 24 per cent of the former employees of the Railway Company declined service under the Government
Applications for compensation having been filed on behalf of the erstwhile workmen of the Railway Company under section 15 of the  for payment of retrenchment compensation to the said workmen under clause b of section 25F of the Act the question was whether the erstwhile workmen were entitled to claim compen sation under clause b of section 25F of the Act and whether they had been retrenched by their former employer within the meaning of the expression retrenchment  in the Act
In Civil Appeal No 103 of 1956 the main appellant was Sri Dinesh Mills Ltd Baroda and the principal respondent was District Labour Officer and Inspector under the 
The appellant company was running a woollen mill at Baroda and had abut 450 workmen and 20 clerks who worked in shifts day and night
On or about October 31 125 1953 the appellant put up a notice declaring its intention to close down the entire mill
As a result of the closure the services of all 450 workmen and 20 clerks were terminat ed and the appellant company claimed that the closure was bona fide being due to heavy losses sustained by the compa ny
The principal respondent claimed retrenchment compensa tion for the workmen of the appellant under clause b of section 25F of the Act
Section 25F at the relevant time stood as follows 25F Conditions precedent to retrenchment of workmen
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until a the workman has been given one month s notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of the notice Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service b the workman has been paid at the time of retrenchment compensation which shall be equivalent to fifteen days  average pay for every completed year of service or any part thereof in excess of six months and c notice in the prescribed manner is served on the appro priate Government
 In both the appeals the question before the Constitu tion Bench was whether the claim of the erstwhile workmen both of the Railway Company and of Shri Dinesh Mills Ltd to the compensation under clauseb of section 25F of the Act was a valid claim in law
Observing that the Act had a plexus of amendments  and some of the recent amendments had been quite extensive in nature and that section 25F occurred in Ch
VA of the Act which dealt with lay off and retrenchment  in the Amending Act and analysing section 25F as it then stood SK Das J speaking for the Constitution Bench observed that in the first part of the section both the words re trenched  and retrenchment  were used and obviously they had the same meaning except that one was verb 126 and the other was a noun and that to appreciate the true scope and effect of section 25F one must first understand what was meant by the expression retrenched  or retrenchment  Analysing the definition of retrenchment  in section 200 the Court found in it the following four essential require ments a termination of the service of a workman b by the employer c for any reason whatsoever and d other wise than as a punishment inflicted by way of disciplinary action
The Court then said It must be conceded that the definition is in very wide terms
The question however before us is does this defini tion merely give effect to the ordinary accepted notion of retrenchment in an existing or running industry by embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases to exist on a bona fide closure or discontinuance of his business by the em ployer The Court further said There is no doubt that when the act itself provides a dictionary for the words used we must look into that dic tionary first for an interpretation of the words used in the statute
We are not concerned with any presumed intention of the legislature our task is to get the intention as ex pressed in the statute
Therefore we propose first to examine the language of the definition and see if the ordi nary accepted notion of retrenchment fits in squarely and fairly with the language used
 The Court reiterated the following observations in Pipraich supra But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff of the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment
 127 This was the ordinary accepted notion of retrenchment  in an industry before addition of section 2oo to the Act as retrenchment in that case took place in 1951
Replying to the argument that by excluding the bona fide closure of business as one of the reasons for termination of the serv ice of workmen by the employer one would be cutting down the amplitude of the expression for any reason whatsoever  and reading into the definition the words which did not occur there the Court agreed that the adoption of the ordinary meaning would give to the expression for any reason whatsoever  a somewhat narrower scope one might say that it would get a colour in the context in which expres sion occurred but the Court did not agree that it amounted to importing new words in the definition and said that the legislature in using that expression said in effect It does not matter why you are discharging the surplus if the other requirements of the definition are fulfilled then it is retrenchment
In the absence of any compelling words to indicate that the intention was to include bona fide closure of the whole business it would be divorcing the expression altogether from its context to give it such a wide meaning as was contended
About the nature of the definition it was said It is true that an artificial definition may include a meaning different from or in excess of the ordinary accepta tion of the word which is the subject of definition but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended
Where within the framework of the ordinary acceptation of the word every single requirement of the definition clause is fulfilled it would be wrong to take the definition as destroying the essential meaning of the word defined
 The Court in Hariprasad dealt with two other conten tions one was that before the amending Act of 1953 the retrenchment had acquired a special meaning which included the payment of compensation on a closure of business and the legislature gave effect to that meaning in the definition clause and by inserting section 25F
The second was that section 25FF inserted in 1956 by Act 41 of 1956 was Parlia mentary exposition  of the meaning of the definition clause and of section 25F
Rejecting the contentions the Court held that retrenchment meant the discharge of surplus workmen in an existing or continuing business it had acquired no special meaning so as to include discharge of workmen on bona fide closure of business though a number of Labour Appellate Tribunals awarded compensation to 128 workmen on closure of business as an equitable relief for variety of reasons
The Court accordingly held  that retrenchment as defined in section 200 and as used in section 25 has no wider meaning than the ordinary accepted connotation of the word it means the discharge of surplus labour or staff by the employer for any reason whatsoever otherwise than as a punishment inflicted by way of discipli nary action and it has no application where the services of all workmen have been terminated by the employer on real and bona fide closure of business as in the  case of Shri Dinesh Mills Ld or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company
 It is interesting to note that the Amending Act No 41 of 1956 inserted original section 25FF on September 4 1956
The objects and reasons were stated thus Doubt has been raised whether retrenchment compensation under the becomes payable by reason merely of the fact that there has been a change of employers even if the service of the workman is continued without interruption and the terms and conditions of his service remain unaltered
This has created difficulty in the transfer re constitution and amalgamation of companies and it is proposed to make the intention clear by amending section 25F of the Act
 Hariprasad s case supra was decided on November 27 1956
The Industrial Disputes Amendment Ordinance 1957 4 of 1957 was promulgated immediately thereafter with effect from December 1 1956 and that Ordinance was replaced by the Industrial Disputes Amendment Act 1957 XVIII of 1957
The following was the Statement of Objects and Reasons In a judgment delivered on the 27th November 1956 the Supreme Court held that no retrenchment compensation was payable under section 25F of the  to workmen whose services were terminated by an em ployer on a real and bona fide closure of business or when termination occurred as a result of transfer of owner 129 ship from one employer to another see AIR 1957 SC 12 1
This has led and is likely to lead to a large number of workmen being rendered unemployed without any compensa tion
In order to meet this situation which was causing hardship to workmen it was considered necessary to take immediate action and the Industrial Disputes Amendment Ordinance 1957 4 of 1957 was promulgated with retrospec tive effect from 1st December 1956 This Ordinance was replaced by an Act of Parliament enact ing the provisions contained in sections 25FF and 25FFF
These sections provide that compensation would be payable to workmen whose services are terminated on account of the transfer or closure of undertakings  In the case of trans fer of undertakings however if the workman is re employed on terms and conditions which are not less favourable to him he will not be entitled to any compensation
This was the position which existed prior to the decision of the Supreme Court
In the case of closure of business on account of the circumstances beyond the control of the employer the maximum compensation payable to workmen has been limited to his average pay for three months
If the undertaking is engaged in any construction work and it is closed down within two years on account of the completion of its work no compensation would be payable to workmen employed there in
 Hariprasad supra having accepted the ordinary contex tual meaning of retrenchment namely termination of surplus labour as the major premise it was surely open to the Par liament to have amended the definition of retrenchment in section 200 of the Act
Instead of doing that the Parliament added section 25FF and 25FFF which said 25FF
Compensation to workmen in case of transfer of under takings Where the ownership or management of an undertaking is transferred whether by agreement or by operation of law from the employer in relation to that undertaking to a new employer every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compen sation in accordance with the provisions of section 25F as if the workman had been retrenched 130 Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer if a the service of the workman has not been interrupted by such transfer b the terms and conditions of service applicable to the workman after such transfer are not in any way less favour able to the workman than those applicable to him immediately before the transfer and c the new employer is under the terms of such transfer or otherwise legally liable to pay to the workman in the event of his retrenchment compensation on the basis that his service has been continuous and has not been interrupted by the transfer 25FFF
Compensation to workmen in case of closing down of undertakings 1 Where an undertaking is closed down for any reason whatsoever every workman who has been in contin uous service for not less than one year in that undertaking immediately before such closure shall subject to the provi sions of sub section 2 be entitled to notice and compen sation in accordance with the provisions of section 25 F as if the workman had been retrenched Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer the compensation to be paid to the workmen under clause b of section 25 F shall not exceed his aver age pay for three months
 Thus by this Amendment Act the Parliament clearly provided that though such termination may not have been retrenchment technically so called as decided by this Court neverthe less the employees in question whose services were terminat ed by the transfer or closure of the undertaking would be entitled to compensation as if the said termination was retrenchment
As it has been observed the words as if brought out the legal distinction between retrenchment defined by section 200 as it was interpreted by this Court and termination of services consequent upon transfer of the undertaking
In other words the provision was that though termination of services on transfer or closure of 131 the undertaking may not be retrenchment the workmen con cerned were entitled to compensation as if the said termina tion was retrenchment
Thus we find that till then the accepted meaning of retrenchment was ordinary contextual and narrower meaning of termination of surplus labour for any reason whatsoever
In Anakapalla Co operative Agricultural and Industrial Society Ltd vs Workmen 1963 Suppl
1 SCR 730 a company running a sugar mill was suffering losses every year due to insufficient supply of sugarcane and wanted to shift the mill
The cane growers formed a co operative society and purchased the mill
As agreed between the company and the society the company terminated the services of the employ ees and paid retrenchment compensation to them under section 25FF of the Act
This society employed some of the old employees and refused to absorb some of them who raised an industrial dispute
The Industrial Tribunal having directed the purchaser society by its award to re employ them the society contended that it was not a successor in interest of the company and hence the claim of re employment was not sustainable and the services of the employees having been terminated upon payment of compensation by the company under section 25FF no claim could be made against the transferee socie ty
This Court held that the society was the successor in interest of the company as it carried on the same or similar business as was carried by the vendor company at the same place and without substantial break in continuity
It was further held that the employees were not entitled to both compensation for termination of service and immediate re employment at the hands of the transferee and section 25H was not applicable to the case as the termination of service upon transfer or closure was not retrenchment properly so called and that termination of service dealt with in section 25FF could not be equated with retrenchment covered by section 25F
It was observed that the words as if  in section 25FF clearly distinguished retrenchment under section 200 and termination under section 25FF
Gajendragadkar J as he then was speaking for the five Judges Bench said that in Hariprasad this Court was called upon to consider the true scope and effect of the concept of retrenchment as defined in section 200 and it held that the said definition had to be read in the light of the accepted connotation of the words and as such it could have no wider meaning than the ordinary connotation of the word and according to this connotation retrenchment meant the discharge of surplus labour or staff by the employer for any reason whatsoever otherwise  then as a punishment inflicted by way of disciplinary action and did 132 not include termination of services of all workmen on the bona fide closure of industry or on change of ownership or management thereof
It was observed    the effect of this decision was that though the definition of the word retrenchment  may perhaps have included the termination of services caused by the closure of the concern or by its transfer these two latter cases could not be held to fall under the definition because of the ordinary accepted connotation of the said word
This decision necessarily meant that the word retrenchment  in section 25FF had to bear a corresponding interpretation In Workmen of Subong Tea Estate vs The outgoing Manage ment of Subong Tea Estate and Anr reported in   it was similarly observed at page 613 of the report In dealing with the question of retrenchment in the light of the relevant provisions to which we have just referred it is however necessary to bear in mind that the manage ment can retrench its employees only for proper reasons
It is undoubtedly true that it is for the management to decide the strength of its labour force for the number of workmen required to carry out efficiently the work involved in the industrial undertaking of any employer must always be left to be determined by the management in its discretion and so occasions may arise when the number of employees may exceed the reasonable and legitimate needs of the undertak ing
In such a case if any workman become surplus it would be open to the management to retrench them
Workmen may become surplus on the ground of rationalisation or on the ground of economy reasonably and bona fide adopted by the management or of other industrial or trade reasons
In all these cases the management would be justified in effecting retrenchment in its labour force
Thus though the right of the management to effect retrenchment can not normally be questioned when a dispute arises before an Industrial Court in regard to the validity of any retrenchment it would be necessary for industrial adjudication to consider whether the impugned retrenchment was justified for proper reasons
It would not be open to the management either capriciously or without any reason at all to say that it proposes to reduce its labour 133 force for no rhyme or reason
This position can not be seriously disputed In Delhi Cloth and General Mills Ltd vs Shambhu Nath Mukherjee and Ors reported in  where the post of motion setter was abolished and the respondent was given a job of a trainee on probation for the post of As sistant Line Fixer and the management found him unsuitable for the job even after extending his probation period upto nine months and offered him the post of fitter on the same pay and the respondent instead of accepting the offer wanted to be given another chance to show his efficiency in his job and the management struck off his name from the rolls with out complying with the provisions of section 25Fa and b of the Act and the Labour Court having given award in the respondent s favour and the appellant s writ petition was rejected by the High Court Goswami J speaking for three Judges Bench said Striking off the name of the workman from the rolls by the management is termination of his service
Such termination of service is retrenchment within the meaning of section 200 of the Act
There is nothing to show that the provisions of section 25F a and b were complied with by the management in this case
The provisions of section 25Fa the proviso apart and b are mandatory and any order of retrenchment in violation of these two peremptory conditions precedent is invalid
 The appeal was accordingly dismissed
The earlier decisions were not referred to
Next comes the decision in State Bank of India vs Shri N Sundara Money reported  Chandra chud VR Krishna lyer and AC Gupta JJ
In an applica tion under Article 226 the respondent on automatic extin guishment of his service consequent to the pre emptive provision as to the temporariness of the period of his employment in his appointment letter claiming to have been deemed to have had continuous service for one year within the meaning of section 25B2 of the Act the Single Bench of the High Court having allowed his writ petition and the writ appeal of the appellant having also failed this Court in appeal found as fact that the appointment was purely tempo rary one for a period of 9 days but might be terminated earlier without assigning any reason therefor at the peti tioner s discretion and the employment unless terminated earlier would automatically cease at the expiry of the period ie 18111972
This 9 days  employment added on to what had gone before ripened to a continuous service for a year on the antecedent arithmetic of 240 days of broken bits of service and considering the meaning of retrench ment  it was held that the expression for any reason whatso ever 134 was very wide and almost admitting of no exception
The contention of the employer was that when the order of ap pointment carried an automatic cessatioin of service the period of employment worked itself out by efflux of time not by act of employer and such cases were outside the concept of retrenchment
This Court observed that to re trench is to cut down and one could not retrench without trenching or cutting but dictionaries are not dictators of statutory construction where the benignant mooof a law and more emphatically the definition clause furnish a different denotation
 Accepting the literal meaning Krishna Iyer J observed A break down of section 200 unmistakably expands the semantics of retrenchment Termination   for any reason whatso ever  are the key words
Whatever the reason every termina tion spells retrenchment
So the sole question is has the employee s service been terminated Verbal apparel apart the substance is decisive
A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term
To protect the weak against the strong this policy of comprehensive definition has been effectuated
Termination embraces not merely the act of termination by the employer but the fact of termina tion howsoever produced
May be the present may be a hard case but we can visualise abuses by employers by suitable verbal devices circumventing the amount of section 25F and section 200
Without speculating on possibilities we may agree that retrenchment  is no longer terra incognita but area covered by an expansive definition
It means to end con clude cease  In the present case the employment ceased concluded ended on the expiration of 9 days automatically may be but cessation all the same
That to write into the order of appointment the date of termination confers no mokshas from section 25F b is inferable from the proviso to section 25F1
True the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract section 25F and a omatic extinguishment of service by effluxion of time cannot be sufficient
 It was further observed Words of multiple import have to be winnowed judicially 135 to suit the social philosophy of the statute
So screened we hold that the transitive and intransitive senses are covered in the current context
Moreover an employer terminates employment not merely by passing an order as the service runs
He can do so by writing a composite order one giving employment and the other ending or limiting it
A separate subsequent determination is not the sole magnetic pull of the provision
A pre emptive provision to terminate is struck by the same vice as the post appointment termination
Dexterity of diction cannot defeat the articulated con science of the provision
 The precedents including Hariprasad do not appear to have been brought to the notice of their Lordship in this case
It may be noted that since Delhi Cloth and General Mills supra a change in interpretation of retrenchment in section 200 of the Act is clearly discernible
Mr Venugopal would submit that the Judgment in Sundara Money s case and for that matter the subsequent decisions in the line are per incuriam for two reasons i that they failed t0 apply the law laid down by the Constitution Bench of this Hon ble Court in Hariprasad Shukla s case supra and ii for the reason that they have ignored the impact of two of the provisions introduced by the Amendment Act of 1953 along with the definition of retrenchment in section 200 and section 25F namely sections 25G and 25H
We agree with the learned counsel that the question of the subsequent deci sions being per incuriam could arise only if the ratio of Sundara Money s case and the subsequent Judgments in the line was in conflict with the ratio in the Hariprasad Shuk la s case supra and Anakapalla s case supra
The issue it is urged was whether it was necessary for the Court to interpret section 200 as being restricted to termination of services of workmen rendered surplus for arriving at a decision in the case and if it was unnecessary to so inter pret section 200 for the purpose of arriving at a decision in that case the interpretation of section 200 would necessarily by rendered obiter
According to counsel the long discus sion on interpretation of section 200 could not be brushed aside as either obiter or mere casual observations of the Constitution Bench
It is urged that for thepurpose of ratio decidendi the question is not whether a subsequent Bench of the Su preme Court thinks that it was necessary or unnecessary for the Constitution Bench of the earlier Bench to have dealt with the issue but whether the Constitution Bench itself thought it necessary to interpret Section 200 for 136 arriving at its final decision
If the smaller Bench of the Supreme Court could ignore the earlier decision of a larger Bench of the Supreme Court by holding that in its opinion it was not necessary for the earlier Bench to have gone into the issue equally it would be open to a High Court to adopt the same approach and ignore binding Judgments of the Su preme Court giving rise to judicial indiscipline
According to counsel the Constitution Bench in its unanimous verdict undoubtedly found it necessary to go into the interpretation of section 200 and did so with elaborate reasoning supporting its findings because if the contention of the Management in that case was accepted namely that retrenchment would cover only termination of surplus labour for any reason whatsoever the logical result of this finding would be twofold i that the termination of the entirety of workmen by reason of closure would not be a termination of workmen rendered surplus and therefore a case of closure would be outside section 200 and ii secondly such termination of workmen rendered surplus could arise only if the industry continued to be a running industry
The question whether the positive content of section 200 restricting the definition of workmen rendered surplus for any reason whatsoever is part of the ratio or not submits Mr Venugopal is wholly an academic question in view of the fact that as many as 9 High Courts have restricted the applicability of section 25F 25G and 25H to only cases of termi nation of services of surplus labour for any reason whatso ever and not to other types of termination whatever may be the reason for such termination
Even if a Judgment was to be based on two alternative reasons or conclusions each one of these alternative reasons or basis would form the ratio of the Judgment
It is also urged that the argument would equally apply to the ratio of Anakapalla s case rendering the Judgments in Sundra Money s case and the later decisions per incuriam for not having noticed or followed a binding precedent of the Supreme Court itself as the Judgment of the Constitution Bench binds smaller Divisions of the Court
We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions
The Latin expression per incuriam means through inadvert ence
A decision can be said generally t0 be given per incuriam when this Court has acted in ignorance of a previ ous decision of its own or when a High Court has acted in ignorance of a decision of this Court
It can not be doubted that article 141 embodies as a rule of law the doctrine of precedents on which our judicial system is based
In Bengal Immunity Company Ltd vs State of Bihar  it was held that the words of article 137 14 1 binding on all courts within the territory of India though wide enough to include the Supreme Court do not include the Supreme Court itself and it is not bound by its own judgments but is free to reconsider them in appropriate cases
This is necessary for proper development of law and justice
May be for the same reasons before judgments were given in the House of Lords in Re Dawson s Settlement Lloyds Bank Ltd vs Dawson and Ors 1966 1 WLR 1234 on July 26 1966 Lord Gardiner LC made the following statement on behalf of himself and the Lords of Appeal in Ordinary Their Lordships regard the use of precedent as an indis pensable foundation upon which to decide what is the law and its application to individual cases
It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs as well as a basis for orderly development of legal rules
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law
They propose therefore to modify their present practice and while treating former decisions of this House as normally binding to depart from a previous decision when it appears right to do so
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts settlements of property and fiscal arrangements have been entered into and also the especial need for cer tainty as to the criminal law
 Though the above announcement was not made in the course of judicial proceeding it shows that it is open to House of Lords to depart from the doctrine of precedent when consid ered justified
Section 2 12 of the Government of India Act 1935 and article 141 of the Constitution of India were enacted to make the law declared by the Supreme Court binding on all courts in the country excluding as is now being interpret ed the Supreme Court itself
The doctrine of ratio deciden di has also to be interpreted in the same line
In England a decision is said to be given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co ordinate jurisdiction which covered the case before it or when it has acted in ignorance of a decision of the House of Lords
In the former case it must decide which decision to follow and in the latter it is bound by the decision of the House of Lords
It has been said that the decision of the House of 138 Lords mentioned above refers to a decision subsequent to that of the Court of Appeal
However a prior decision of the House of Lords inconsistent with the decision of the Court of Appeal but which was not cited to the Court of Appeal will make the later decision of the Court of Appeal of no value as given per incuriam
 But if the prior deci sion had been cited to the Court of Appeal and that court had misinterpreted a previous decision of the House of Lords the Court of Appeal must follow its previous decision and leave the House to rectify the mistake
In Halsbury s Laws of England 4th Ed
10 para 745 it has been said While former decisions of the House are normally binding upon it the House will depart from one of its own previous decisions when it appears right in the interests of justice and of the proper development of the law to do so
Cases where the House may reconsider its own previous decisions are those involving broad issues of justice or public policy and questions of legal principle
Only in rare cases will the House reconsider questions of construction of statutes or other documents
The House is not bound to follow a previous case merely because it is indistinguishable on the facts   The position and experience in this Court could not be much different keeping in view the need for proper develop ment of law and justice
As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them it is true that the Supreme Court may not be said to declare the law on those subjects if the relevant provi sions were not really present to its mind
But in this case sections 25G and 25H were not directly attracted and even if they could be said to have been attracted in laying down the major premise they were to be interpreted consistently with the subject or context
The problem of judgment per incuriam when actually arises should present no difficulty as this Court can lay down the law afresh if two or more of its earlier judgments cannot stand together
The question howev er is whether in this case there is in fact a Judgment per incuriarn
This raises the question of ratio decidendi in Hariprasad and Anakapalla s cases on the one hand and the subsequent decisions taking the contrary view on the other
139 An analysis of judicial precedent ratio decidendi and the ambit of earlier and later decisions is to be found in the House of Lords  decision in FA  AB Ltd vs Lupton Inspector of Taxes 19722 AC 634 Lord Simon concerned with the decisions in Griffiths vs JP Harrison Watford Ltd  and Finsbury Securities Ltd vs Inland Revenue Commissioners  with their inter relationship and with the question whether Lupton s case fell within the precedent established by the one or the other case said What constitutes binding precedent is the ratio decidendi of a case and this is almost always to be ascertained by an analysis of the material facts of the case that is general ly those facts which the tribunal whose decision is in question itself holds expressly or implicitly to be mate rial
 It has also been analysed A judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllo gism with the major premise consisting of a pre existing rule of law either statutory or judge made and with the minor premise consisting of the material facts of the case under immediate consideration
The conclusion is the deci sion of the case which may or may not establish new law in the vast majority of cases it will be merely the application of existing law to the facts judicially ascertained
Where the decision does consititute new law this may or may not be expressly stated as a proposition of law frequently the new law will appear only from subsequent comparison of on the one hand the material facts inherent in the major premise with on the other the material facts which consti tute the minor premise
As a result of this comparison it will often be apparent that a rule has been extended by an analogy expressed or implied
 To consider the ratio decidendi of a case we have therefore to ascertain the principle on which the case was decided
Sir George Jessel in Osborne vs Rowlett  remarked that the only thing in a judge s decision binding as an authority upon a subsequent judge is the principle upon which the case was decided 
The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a prece dent
In the process the 140 ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges
This is be cause Judges while deciding a case will give their own reasons but may not distinguish their remarks in a rigid way between what they thought to be the ratio decidendi and what were their obiter dicta that is things said in passing having no binding force though of some persuasive power
It is said that a judicial decision is the abstraction of the principle from the facts and arguments of the case A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower applica tion
 The submissions of Mr Venugopal that for the purpose of ratio decidendi the question is not whether a subsequent Bench of this Court thinks that it was necessary or unneces sary for the Constitution Bench or the earlier Bench to have dealt with the issue but whether the Constitution Bench itself thought it necessary to interpret section 2 00 for arriving at the final decision has to be held to be untena ble in this wide and rigid form
Analysing the compled syllogism of Hariprasad s case we find that its major premise was that retrenchment meant termination of surplus labour of an existing industry and the minor premise was that the termination in that case was of all the workmen on closure of business on change of ownership
The decision was that there was no retrenchment
In this context it is important to note what subsequent benches of this Court thought to be the ratio decidendi of Hariprasad and for that matter of Anakapalla
In Santosh Gupta vs State Bank Of Patiala reported in   O Chinnappa Reddy J sitting with Krish na Iyer J deduced the ratio decidendi of Hariprasad thus In Hariprasad Shivshankar Shukla vs AD Divikar the Su preme Court took the view that the word retrenchment  as defined in section 200 did not include termination of services of all workmen on a bona fide closure of an industry or on change of ownership or management of the industry
In order to provide for the situations which the Supreme Court held were not covered by the definition of the expression re trenchment  the Parliament added section 25FF and section 25FFF providing for the payment of compensation to the workmen in case of transfer of undertakings and in case of closure of undertakings respectively
 141 In Hariprasad supra the learned Judges themselves formulated the question before them as follows The question however before us is does this definition merely give effect to the ordinary accepted notion of retrenchment in an existing or running industry by embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases t0 exist on a bona fide closure or discontinuance of his business by the em ployer
 The question was answered by the learned Judges in the following words In the absence of any compelling words to indicate that the intention was even to include a bona fide closure of the whole business it would we think be divorcing the expres sion altogether from the context to give it such a wide meaning as is contended for by learned counsel for the respondents   it would be against the entire scheme of the Act to give the definition clause relating to retrench ment such a meaning as would include within the definition termination of service of all workmen by the employer when the business itself ceases to exist Rejecting the submission of Dr Anand Prakash that termina tion of service for any reason whatsoever meant no more and no less than discharge of a labour force which was a sur plusage it was observed in Santosh Gupta supra that the misunderstanding of the observations and the resulting confusion stem from not appreciating the lead question which was posed and answered by the learned Judges and  that the reference to discharge on account of surplusage  was illus trative and not exhaustive on account of transfer or closure of business
Mr VA Bobde submits and we think rightly that the sole reason for the decision in Hariprasad was that the Act postulated the existence and continuance of an industry and where the industry ie the undertaking itself was closed down or transferred the very substratum disappeared and the Act could not regulate industrial employment in the absence of an industry
The true position in that case was that section 200 and 25F could not be invoked since the undertaking itself 142 ceased to exist
The ratio of Hariprasad according to the learned counsel is discernible from the discussion at pp
13 1 132 of the report about the ordinary accepted notion of retrenchment in an industry  and Pipraich s case was re ferred to for the proposition that continuance of the busi ness was essential the emphasis was not on the discharge of surplus labour but on the fact that retrenchment connotes in its ordinary acceptation that the business itself is being continued   the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment
 At page 134 in the last four lines also it was said But the fundamental question at issue is does the definition clause cover cases of closure of business when the closure is real and bona fide The reasons for arriving at the conclusion are given as it would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termi nation of service of all workmen by the employer when the business itself ceases to exist and that the industrial dispute to which the provisions of the Act applies is only one which arises out of an existing industry
Thus the Court was neither called upon to decide nor did it decide whether in a continuing business retrenchment was confined only to discharge of surplus staff and the reference to discharge of surplusage was for the purpose of contrasting the situation in that case ie workmen were being re trenched because of cessation of business and those observa tions did not constitute reasons for the decision
What was decided was that if there was no continuing industry the provision could not apply
In fact the question whether retrenchment did or did not include other terminations was never required to be decided in Hariprasad and could not therefore have been or be taken to have been decided by this Court
Lord Halsbury s dicta in Quinn vs Leathem  at page 506 is    every judgment must be read as applicable to the particular facts proved or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law but gov erned and qualified by the particular facts of the case in which such expressions are to be found
The other is that a case is only on authority for what it actually decides
 This Court held in State of Orissa vs Sudhansu Misra   that a decision is only an authority for what it actually decides
143 What is of the essence in a decision is its ratio and not other observation found therein nor what logically follows from the various observations made in it
We agree with Mr Bobde when he submits that Hariprasad s case is not an authority for the proposition that section 200 only covers cases of discharge of surplus labour and staff
The Judg ments in Sundara Money supra and the subsequent decisions in the line could not be held to be per incuriam inasmuch as in Hindustan Steel and Santhosh Gupta s cases the Division Benches of this Court had referred to Hariprasad s case and rightly held that its ratio did not extend beyond a case of termination on the ground of closure and as such it would not be correct to say that the subsequent decisions ignored a binding precedent
In Hindustan Steel Ltd vs The Presiding Officer Labour Court  the question was whether termination of service by efflux of time was termination of service within the definition of retrenchment in section 2oo of the Act
Both the earlier decisions of the Court in Haripra sad supra and Sundara Money supra were considered and it was held that there was nothing in Hariprasad which was inconsistent with the decision in Sundara Money s case
It was observed that the decision in Hariprasad was only that the words for any reason whatsoever used in the definition of retrenchment would not include a bona fide closure of the whole business because it would affect the entire scheme of the Act
The decisions in L Robert D Souza vs Executive Engineer Southern Railway and Anr  The Managing Director National Garages vs
J Gonsalves  Goodlas Nerolac Paints vs Chief Commis sioner Delhi and Rajasthan State Electricity Board vs Labour Court  in which contrary view was taken were overruled in Santosh Gupta holding that the discharge of the workman on the ground that she did not pass the test which would have enabled her to be confirmed was retrenchment  within the meaning of section 2oo and therefore the requirement of section 25F had to be complied with
The workman was em ployed in the State Bank of Patiala from July 13 1973 till August 1974 when her services were terminated
According to the workman she
had worked for 240 days in the year preced ing August 21 1974 and the termination of her services was retrenchment as it did not fall within any of the three accepted cases
The management s contention was that termi nation was not due to discharge of surplus labour but due to failure of the workman to pass the test which could have enabled her to be confirmed in the service and as such it was not retrenchment
This contention was repelled
144 Both Mr Shetye and Mr Venugopal submit that judicial discipline required the smaller benches to follow the deci sions in the larger benches
This reminds us of the words of Lord Mailsham of Marylebone the Lord Chancellor in the hierarchical system of courts which exists in this country it is necessary for each lower tier   to accept loyal ly the decisions of the higher tiers
However in view of the ratio decidendi of Hariprasad as we have seen there is no room for such a criticism
In Management of Karnataka State Road Transport Corpora tion Bangalore vs M Boraiah reported in   a Division Bench of AN Sen and Ranganath Misra JJ
fol lowing the decisions in State Bank of India vs N Sundara Money supra Hindustan Steel Ltd vs Presiding Officer Labour Court Orissa supra Santosh Gupta vs State Bank of Patiala supra Indian Hume Pipe Co Ltd vs Workmen   Mohan Lal vs Management of Ms Bharat Electronics Ltd  and Surendra Kumar Verma vs Central Government Industrial Tribunal cum Labour Court New Delhi   held that in the above series of cases that have come later the Constitution Bench deci sion in Hariprasad supra has been examined and the ratio indicated therein has been confined to its own facts and the view indicated by the Court in that case did not meet with the approval of Parliament and therefore the law had been subsequently amended
Speaking for the Court RN Misra J significantly said We are now inclined to hold that the stage has come when the view indicated in Money case supra has been absorbed into the consensus  and there is no scope for putting the clock back or for an anti clockwise operation More than a month thereafter in Gammon India Ltd vs Niranjan Dass   a three Judges Bench DA Desai RB Misra and Ranganath Misra JJ construing the one month s notice of termination in that case due to reduc tion of volume of business of the company said On a true construction of the notice it would appeal that the respondent had become surplus on account of reduction in volume of work and that constitutes retrenchment even in the traditional sense of the term as interpreted in Pipraich Sugar Mills Ltd vs Pipraich Sugar Mills Mazdoor 145 Union though that view does not hold the field in view of the recent decisions of this Court in State Bank of India vs N Sundara Money Hindustan Steel Ltd vs Presiding Officer Labour Court Orissa Santosh Gupta vs State Bank of Patia la Delhi Cloth and General Mills Ltd vs Shambhu Nath Mukherjee Mohan Lal vs Management of Ms Bharat Electron ics Ltd and L Robert D Souza vs Executive Engineer South ern Railway
The recitals and averments in the notice leave no room for doubt that the service of the respondent was terminated for the reason that on account of recession and reduction in the volume of work of the company respondent has become surplus
Even apart from this the termination of service for the reasons mentioned in the notice is not covered by any of the clauses a b and c of section 200 which defines retrenchment and it is by now well settled that where the termination of service does not fall within any of the excluded categories the termination would be ipso facto retrenchment
It was not even attempted to be urged that the case of the respondent would fall in any of the excluded categories
It is therefore indisputably a case of retrenchment Emphasis supplied In a fast developing branch of Industrial and Labour law it may not always be of particular importance to rigidly adhere to a precedent and a precedent may need be departed from if the basis of legislation changes
It was in realisa tion of the idea of a living law that in Reg vs Home Secre tary exhibit P Khawaja reported in 1984 AC 74 HL it was said at p 84 The House will depart from a previous decision where it is right to do so and where adherence to a previous decision may lead to injustice in a particular case
Constitutional and administrative law are not fields where it is of partic ular importance to adhere to precedent
A recent precedent may be more readily departed from than one which is of long standing
A precedent may be departed from where the issue is one of statutory construction  We now take up the question of interpretation of section 200 of the Act dealing with the rival contentions namely ordinary or contextual as against literal meaning
146 When we analyse the mental process in drafting the definition of retrenchment in section 200 of the Act we find that firstly it is to mean the termination by the employer of the service of a workman for any reason whatsoever
Having said so the Parliament proceeded to limit it by excluding certain types of termination namely termination as a punishment inflicted by way of disciplinary action
The other types of termination excluded were a voluntary retrenchment or b retrenchment of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation on that behalf or c termination of service of a workman on the ground of continued ill health
Had the Parliament envisaged only the question of termination of surplus labour alone in mind there would arise no question of excluding a b and c above
The same mental process was evident when section 200 was amended inserting another exclusion clause bb by the Amending Act 49 of 1984 with effect from 1881984 termination of the service of work man as a result of the non renewal of the contract of em ployment between the employer and the workman concerned on its expiry of such contract being terminated under a stipu lation in that behalf contained therein
 This is literal interpretation as distinguished from contex tual interpretation The only rule of construction of Acts of Parliament says Tindal CJ in Sussex Peerage case 1844 11 C1  Fin 85 143 is that they should be construed according to the intent of the Parliament which passed the Act
If the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in their natural and ordinary sense
The words themselves alone do in such case best declare the intention of the lawgiv er
 In Mutto vs TK Nandi reported in  418 it was similarly said The Court has to determine the intention as expressed by the words used
If the words of a statute are themselves precise and unambiguous then no more can be necessary then to expound those words in their ordi nary and natural sense
The words themselves alone do in such a case best declare the intention of the lawgiver
 As was stated in Thompson vs Gould reported in  420 it is a wrong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do 147 so The cardinal rule of construction of statute is to read statutes literally that is by giving to the words their ordinary natural and grammatical meaning Jugalki shore vs Ram Cotton Co Ltd  To interpret an Act of Parliament is to give effect to its intention
Lord Simon in Ealing LBC vs Race Relations Board  360 said The Court sometimes asks itself what the draftsman must have intended
This is reasonable enough the draftsman knows what is the intention of the legislative initiator nowadays almost always an organ of the executive he know what canons of construction the courts will apply and he will express himself in such a way as accordingly to give effect to the legislative intention
Parliament of course in enacting legislation assumes responsibility for the language of the draftsman
But the reality is that only a minority of legislators will attend the debates on the legislation
Failing special interest in the subject matter of the legislation what will demand their attention will be something on the face of proposed legislation which alerts them to a questionable matter
Accordingly such canons of construction as that words in a non technical statute will primarily be interpreted according to their ordinary meaning    According to Lord Simon looking into the legislative history or  the preparatory works may sometimes be useful but may often lead to abuse and waste as an individual legislator may indicate his assent on an assumption that the legislation means so and so and the courts may have no way of knowing how far his assumption is shared by his col leagues even those present In the absence of such mate rial it is said the courts have five principal avenues of approach to the ascertainment of the legislative intention 1 examination of the social background as specifically proved if not within common knowledge in order to identify the social or juristic defect which is likely subject of remedy 2 a conspectus of the entire relevant body of the law for the same purpose 3 particular regard to the long title of the statute to be interpreted and where available the preamble in which the general legislative objectives will be stated 4 scrutiny of the actual words to be interpreted in the light of the established canons of interpretation and 5 examination of the other provisions of the statute in question or of other statutes in pari materia for the illumination which they 148 throw on the particular words which are the subject of interpretation
The Heydon s Rule requires that the court will look at the Act to see what was its purpose and what mischief in the earlier law it was designed to prevent
Four things are to be considered i What was the law before the making of the Act ii What was the mischief and defect for which the earlier law did not provide iii What remedy the Parlia ment had resolved to cure iv What is the true reason for the remedy The Court shall make such construction as shall suppress the mischief and advance the remedy
Where the statute has been passed to remedy a weakness in the law it is to be interpreted in such a way as well to bring about that remedy
The literal rules of construction require the wording of the Act to be construed according to its literal and gram matical meaning whatever the result may be
Unless otherwise provided the same word must normally be construed through out the Act in the same sense and in the case of old stat utes regard must be had to its contemporary meaning if there has been no change with the passage of time
However the Law Commission 21 of England has struck a note of caution that to place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship
In Whiteley vs Chappelf  a statute concerned with electoral mal practices made it an offence to personate any person enti tle to vote  at an election
The defendant was accused of personating a deceased voter and the court using the liter al rule found that there was no offence as the personation was not of person entitled to vote
A dead person was not entitled to vote
A deceased person did not exist and had no right to vote and as a result the decision arrived at was contrary to the intention of Parliament
As it was pointed out in Prince of Hanover vs Attorney General 1956 Ch
188 the Golden Rule in the form of modified literal Rule according to which the words of statute will as far as possible be construed according to their ordinary and plain and natural meaning unless this leads to an absurd result
Where the conclusion reached by applying the literal rule is contrary to the intention of Parliament the Golden rule is helpful
A tested rule is that of Noscitur a sociis
The meaning of a word can be gathered from its context
Under this rule words of doubtful meaning may be better understood from the nature of the words and phrases with which they are associated Muir vs Keay 1875 LR 10 QB 594
But this will not apply when the word itself has been defined
149 In the case before us the difficulty was created by defining retrenchment  to mean something wider than what it naturally and ordinarily meant
While naturally and ordi narily it meant discharge of surplus labour the defined meaning was termination of service of a workman for any reason whatsoever except those excluded in the definition itself
Such a definition creates complexity as the drafts man himself in drafting the other sections using the defined word may slip into the ordinary meaning instead of the defined meaning
Way back in the Queen vs The Commissioners under the Boiler Explosions Act 1882 1891 1 QB Division 703 a boiler for generating steam was situate above ground at a colliery and a pipe conducted the steam down the shaft and along the working to a pumping engine in the mine
A valve in this pipe in the mine and near the pumping engine blew off
The question was whether the pipe in which the explo sion occurred was a boiler  within the interpretation clause of the Boiler Explosions Act 1882
Lord MR Esher said If the Act had dealt with the explosion of a boiler and in some other  section with an explosion in pipes or in any other specified thing the matter would be easy but the draftsman has gone upon that which to my mind is a dangerous method of drawing Acts of Parliament
He has put in a sec tion which says that a boiler shall mean something which is in reality not a boiler
This third section of the Act of 1882 that is the Boiler Explosions Act 1882 is a peculiarly bad specimen  of the method of drafting which enacts that a word shall mean something which in fact it does not mean However a judge facing such a problem of interpretation can not simply fold his hands and blame the draftsman
Lord Denning in his Discipline of Law says at p 12 Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise and even if it were it is not possible to provide for them in terms free from all ambiguity
The English language is not an instru ment of mathematical precision
Our literature would be much the poorer if it were
This is where the draftsman of Acts of Parliament have often been unfairly criticised
A judge believing himself to be lettered by the supposed rule that he must look to the language and nothing else laments that the draftsmen have not provided for this or that or have been guilty of some or other ambiguity
It would cer 150 tainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity
In the absence of it when a defect appears a judge cannot simply fold his hands and blame the draftsman
He must set to work on the constructive task of finding the intention of Parlia ment and he must do this not only from the language of the statute but also from a consideration of the social condi tions which gave rise to it and of the mischief which it was passed to remedy and then he must supplement the writ ten word so as to give force and life  to the intention of the legislature
 Analysing the definition of retrenchment in section 200 we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in a and b namely voluntary retirement and retirement on reaching the stipulated age of retirement
There would be no volitional element of the employer
Their express exclu sion implies that those would otherwise have been included
Again if those cases were to be included termination on abandonment of service or on efflux of time and on failure to qualify although only consequential or resultant would be included as those have not been excluded
Thus there appears to be a gap between the first part and the exclusion part
Mr Venugopal on this basis points out that cases of voluntary retirement superannuation and tenure appointment are not cases of termination by the employer  and would therefore in any event be outside the scope of the main provisions and are not really provisos
The definition has used the word means 
When a statute says that a word or phrase shall mean not merely that it shall include certain things or acts the definition is a hard and fast definition and no other meaning can be assigned to the expression than is put down in definition per Esher MR Gough vs Gough A defi nition is an explicit statement of the full connotation of a term
Mr Venugopal submits that the definition clause cannot be interpreted in isolation and the scope of the exception to the main provision would also have to be looked into and when so interpreted it is obvious that a restrictive mean ing has to be given to section 200
It is also pointed out that section 25G deals with the prin ciple of last come first go  a principle which existed prior to the Amendment Act 151 of 1953 only in relation to termination of workmen rendered surplus for any reasons whatsoever and that was followed in Vishwamitra Press Kanpur vs Workers of Vishwamitra Press at p3341 Presidency Jute Mills Co Ltd vs Presidency Jute Mills Co
Employees Union 1952 LAC 62 Iron and Steel Mazdoor UnionKanpur vs JK Iron and Steel Co Ltd  Halar Sali and Chemical Works Jamnagar vs Workmen Prakriti Bhushan Gupta vs Chief Mining Engineer Railway Board  Sudarshan Banerjee vs Mcleod and Co Ltd 7 11
Besides it is submitted by its very nature the wide definition of retrenchment would be wholly inapplicable to termination simpliciter
The question of picking out a junior in the same category for being sent out in place of a person whose services are being terminated simpliciter or otherwise on the ground that the management does not want to continue his contract of employment would not arise
Similarly it is pointed out that starting from Sundara Money where termination simpliciter of a workman for not having passed a test or for not having satisfactorily completed his probation would not attract section 25G as the very question of picking out a junior in the same category for being sent out instead of the person who failed to pass a test or failed to satisfactorily complete his probation could never arise
If however section 25G were to be followed in such cases the section would itself be rendered uncon stitutional and violative of fundamental rights of the workmen under Articles 14 191g and 21 of the Constitu tion
It would be no defence to this argument to say that the management could record reasons as to why it is not sending out the juniormost in such cases
Since in no single case of termination simpliciter would section 25G be applicable and in every such case of termination simpliciter without exception reasons would have to be recorded Similarly it is submitted section 25H which deals with re employment of re trenched workmen can also have no application whatsoever to a case of termination simipliciter because of the fact that the employee whose services have been terminated would have been holding a post which eo instanti  would become vacant as a result of the termination of his services and under section 25H he would have a right to be reinstated against the very post from which his services have been terminated rendering the provision itself an absurdity
It is urged that section 25F is only procedural in character along with sections 25G and 25H and do not prohibit the substantive right of termination but on the other hand requires that in effecting termination of employmentnotice would be given and payment of money would be made and theater procedure under sections 25G and 25H would follow
152 Mr Bobde refutes the above argument saying that sections 25F 25G and 25H relate to retrenchment but their contents are different
Whereas section 25F provides for the conditions precedent for effecting a valid retrenchment section 25G only provides the procedure for doing so
Section 25H operates after a valid retrenchment and provides for re employment in the circumstances stated therein
According to counsel the argument is misconceived firstly for the reasons that section 2 itself says that retrenchment will be understood as defined in section 200 unless there is anything repugnant in the sub ject or context secondly section 25F clearly applies to re trenchment as plainly defined by section 200 thirdly section 25G does not incorporate in absolute terms the principle of last come first go  and provides that ordinarily last employee is to be retrenched and fourthly sections 25H upon its true construction should be held to be applicable when the retrenchment has occurred on the ground of the workman becoming surplus to the establishment and he has been re trenched under sections 25F and 25G on the principle last come first go 
Only then should he be given an opportunity to offer himself for re employment In substance it is submit ted that there is no conflict between the definition of section 200 and the provisions of sections 25F 25G and 25H
We find that though there are apparent incongruities in the provi sions there is room for harmonious construction in this regard
For the purpose of harmonious construction it can be seen that the definitions contained in section 2 are subject to their being anything repugnant in the subject or context
In view of this it is clear that the extended meaning given to the term retrenchment  under clause 00 of section 2 is also subject to the context and the subject matter
Section 25 F prescribed the conditions precedent to a valid re trenchment of workers as discussed earlier
Very briefly the conditions prescribed are the giving of one month s notice indicating the reasons for retrenchment and payment of wages for the period of the notice
Section 25 FF pro vides for compensation to workmen in case of transfer of undertakings
Very briefly it provides that every workman who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25F as if the workman had been retrenched
Emphasis supplied
Section 25 FFA pro vides that sixty days  notice must be given of intention to close down any undertaking and section 25 FFF provides for compensation to workmen in case of closing down of undertak ings
Very briefly stated section 25 FFF which has been already discussed lays down that where an undertaking is closed down for any reason whatsoever every workman who has been in continuous service for 153 not less than one year in that undertaking immediately before such closure shall subject to the provisions of sub section 2 be entitled to notice and compensation in accordance with the provisions of section 25 F as if the workman had been retrenched
Emphasised supplied
Section 25 H provides for re employment of retrenched workmen
In brief it provides that where any workmen are retrenched and the employer proposes to take toto his employment any person he shall give an opportunity to the retrenched workmen to offer themselves for re employment as provided in the section subject to the conditions as set out in the section
In our view the principle of harmonious construc tion implies that in a case where there is a genuine trans fer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections it would be inconsistent to read into the provisions a right given to workman deemed to be retrenched a right to claim re employment as provided in section 25 H
In such cases as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compensation in accordance with section 25 F
It is significant that in a case of transfer of an undertaking or closure of an under taking in accordance with the aforesaid provisions the benefit specifically given to the workmen is as if the workmen had been retrenched and this benefit is restricted to notice and compensation in accordance with the provisions of section 25 F
The last submission is that if retrenchment is under stood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the con tracts of employment in respect of the workmen whose service has been terminated
There may be two answers to this ques tion
Firstly those rights may have been affected by intro duction of sections 200 25F and the other relevant sections
Secondly it may be said the rights as such are not affect ed or taken away but only an additional social obligation has been imposed on the employer so as to give the retrench ment benefit to the affected workmen perhaps for immediate tiding over of the financial difficulty
Looked at from this angle there is implicit a social policy
As the maxim goes Stat pro ratione voluntas populi the will of the people stands in place of a reason
Regarding the seeming gaps in the definition one would aptly remember what Lord Simonds said against the view that the court having discovered the intention of Parliament must proceed to fill in the gaps and what the legislature had not written the court must write
It appears to me to be a naked usurpation of the legisla 154 tive function under the thin disguise of interpretation
And it is the less justifiable when it is guess work with what material the legislature would if it had discovered the gap have filled it in
If a gap is disclosed the remedy lies in an amending Act
 The Court has to interpret a statute and apply it to the facts
Hans Kelsen in his Pure Theory of Law P 355 makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law applying organ especially the court on the other
According to him jurisprudential interpretation i purely cognitive ascertainment of the meaning of legal norms
In contradistinction to the interpretation by legal organs jurisprudential interpretation does not create law
The purely cognitive interpretation by jurisprudence is there fore unable to fill alleged gaps in the law
The filling of a so called gap in the law is a law creating function that can only be performed by a law applying organ and the function of creating law is not performed by jurisprudence interpreting law
Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm
Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it but must leave the decision to the legal organ who according to the legal order is authorised to apply the law
 According to the author if law is to be applied by a legal organ he must determine the meaning of the norms to be applied he must interpret  those norms P 348
Interpretation therefore is an intel lectual activity which accompanies the process of law appli cation in its advance from a higher level to a lower level
According to him the law to be applied is a frame
There are cases of intended or unintended indefiniteness at the lower level and several possibilities are open to the appli cation of law
 The traditional theory believes that the statute applied to a concrete case can always supply only one correct decision and that the positive legal correct ness  of this decision is based on the statute itself
This theory describes the interpretive procedure as if it con sisted merely in an intellectual act of clarifying or under standing as if the law applying organ had to use only his reason but not his will and as if by a purely intellectual activity among the various existing possibilities only one correct choice could be made in accordance with positive law
According to the author The legal act applying a legal norm may be performed in such a way that it conforms a with the one or the other of the different meanings of the legal norm b with the will of the norm creating authority that is to be determined somehow  c with the expression which the norm creating authority has chosen d with the one or the other of the contradictory norms or e the concrete case to 155 which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other
In all these cases the law to be applied constitutes only a frame within which several applications are possible whereby every act is legal that stays within the frame
 The definitions is section 2 of the Act are to be taken unless there is anything repugnant in the subject or con text 
The contextual interpretation has not been ruled out
In RBI vs Peerless General Finance reported in   O Chinnappa Reddy J said Interpretation must depend on the text and the context
They are the bases of interpretation
One may well say if the text is the texture context is what gives the colour
Neither can be ignored
Both are important
That interpreta tion is best which makes the textual interpretation match the contextual
A statute is best interpreted when we know why it was enacted
With this knowledge the statute must be read first as a whole and then section by section clause by clause phrase by phrase and word by word
If a statute is looked at in the context of its enactment with the glasses of the statutemaker provided by such context its scheme the sections clauses phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context
With these glasses we must look at the Act as a whole and discover what each section each clause each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act
No part of a statute and no word of a statute can be construed in isolation
Statutes have to be construed so that every word has a place and everything is in its place
It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court con strued the expression Prize Chit  in Srinivasa and we find no reason to depart from the Court s construction
 As we have mentioned industrial and labour legislation involves social and labour policy
Often they are passed in conformity with the resolutions of the International Labour Organisation
In Duport Steels vs Sirs the House of Lords observed that there was a difference between applying the law and making it and that judges ought to avoid becoming involved in controversial social issues since this might affect their reputation in imparti ality
Lord Diplock said 156 A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may in actual operation turn out t0 have injurious consequences that Parliament did not anticipate at the time the statute was passed if it had it would have made some provision in the Act in order to prevent them  
But if this be the case it is for Parliament
not for the judiciary to decide whether any changes should be made to the law as stated in the Acts Applying the above reasonings principles and prece dents t0 the definition in section 200 of the Act we hold that retrenchment means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section
The result is that CA Nos
3241 48 of 1981 686NL of 1982 18 17 of 1982 1898 of 1982 3261 of 1982 1866 of 1982 1868 of 1982 8456 of 1983 10828 of 1983 and the appeal arising out of SLP C No 3149 of 1983 are dis missed with costs quantified at Rs3000 in each appeal
It is stated that in CA No 686 of 1982 the respondent has already been reinstated pursuant to the order dated 24101983 passed by this Court having regard to the fact that he has served since 1983 he shall be considered for confirmation with effect from his due date according to Rules if he is not already confirmed by the Corporation
In view of the facts and circumstances of the case we dispose of CA No 885 of 1980 with the direction that the two workmen involved in this appeal be paid compensation of Rs 125000 Rupees one lakh twenty five thousand each in full and final settlement of all claims including that of reinstatement
The payment shall be spread over a period from 11111972 till date for the purpose of Income tax
CA No 4116 NL of 1984 was on the board but the paper book is not available
Hence it is delinked from the series
CA Nos
512 513 of 1984 and CA No 783 of 1984 were wrongly placed on the board
Their subject matters are different and hence are delinked from this cluster to be heard separately by an appropriate bench
RNJ Appeals disposed of


Summary:
On July 19 1989 the Customs Department seized narcotic drugs from two cars one belonging to the petitioner detenu and the other to his associate
The statements of the driv ers were recorded under Section 108 of the on the very next day
Reports of the chemical examination of the seized drugs confirmed that they were narcoting drugs under the prevention of Illicit Traffic in Narcotic Drugs  Psychotropic Substances Act 1988
Accordingly with a view to preventing the petitioner from engaging in abetting and transportation of narcotic drugs the detaining authority passed a detention order under Section 31 of the Act on 20th December 1989 ie after about 5 months of seizure of the narcotic drugs
But the petitioner was arrested and detained on service of the order of detention on 15th Febru ary 1990
The petitioner filed a writ petition in this Court challenging the validity of the detention order contending 1 that it was illegal because 241 a there was inordinate delay in serving the detention order and arresting the detenu b it was passed on stale ground ie after five months of the seizure of narcotic drugs and c there was long delay in disposing the dete nu s representation 2 the non supply of relevant docu ments ie bail application and the order made thereon to the detenu seriously prejudiced his right to make effective representation under Article 225 of the Constitution 3 the averments made in the counter affidavit cannot be taken into consideration because it was not sworn by the detaining authority himself and 4 the detention order was vitiated for non application of mind
Dismissing the writ petition this Court HELD 1
There must be a live and proximate link  between the grounds of detention and the avowed purpose of detention
But In appropriate cases the Court can assume that the link is snapped  if there is a long and unex plained delay between the date of the order of detention and the arrest of the detenu
Where the delay is not only ade quately explained but is found to be the result of the detenu s recalcitrant or refractory conduct in evading arrest there is warrant to consider the link  not snapped but strengthened 25 IF G 21 In the instant case the averments that the Depart ment served two notices one on the petitioner s mother and another on his brother directing him to appear before the detaining authority have not been denied by the petitioner
Instead he intentionally absconded and thereby evaded ar rest
Therefore it cannot be said that the delay was not explained and the link between the grounds of detention and the avowed purpose of detention has been snapped
251H 252A B Shafiq Ahmad vs District Magistrate Meerut and Ors 1989 4 SCC 556 Bhanwarlal Ganeshmalji vs State of Tamil Nadu  Anr  and TA Abdul Rahman vs State of Kerala and Ors   relied on
In the instant case the cars containing brown sugar were impounded on July 19 1989 and statements of the driv ers were recorded next day
Reports of the chemical examIna tion of contraband drugs were received on 29th September 1989 13th October 1989 and 16th November 1989
The cus toms officials screened all these thIngs and the detaInIng authority after considering all these things passed the order of detention on December 20 1989
There fore it cannot be held that the delay of five months in making the impugned order of detention 242 rendered the detention illegal and bad as it was made on stale ground
The detention order has been made with promp titude considering the relevant and vital facts proximate to the passing of the impugned order of detention
248A C 3
It is evident from the record that after receipt of the representation of the petitioner it was sent to the detaining authority for his comments and immediately after the comments of the detaining authority were received the same were processed and put up before the Minister concerned who rejected the representation after considering the com ments of the detaining authority and the State Government
It is also evident that the Central Government passed the order after considering the comments of the detaining au thority
Therefore the contention that the detention order was passed by the Central Government without considering the comments of the detaining authority and there was long delay in disposing the detenu s representation affecting the validity of detention is without any substance
252C D E F 4
Article 225 of the Constitution mandates that all the relevant documents referred to in the grounds of deten tion and which are considered by the detaining authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu
248F 41 In the instant case the relevant document ie the bail application and the order made thereon was not consid ered by the detaining authority in coming to his subjective satisfaction and in making the impugned order of detention
Therefore the non furnishing to the detenu of the said document does not affect in any manner whatsoever the dete nu s right to make an effective representation in compliance with the provisions of Article 225 of the Constitution of India
248U 249A Binod Singh vs District Magistrate Dhanbad Bihar  Ors and Suraj Pal Sahu vs State of Maha rashtra  Ors
   held inapplicable
In the absence of personal allegation of mala fide or bias made by the detenu against the detaining authority in person the omission to file affidavit in reply by itself is no ground to sustain the allegation of mala fides or non application of mind
In the absence of detaining authority the affidavit must be sworn by some responsible officer who personally dealt with or processed the case in the Secre tariat or submitted it to the Minister
253A D 243 51 In the instant case the counter affidavit has been filed by the officer who was dealing with the papers relat ing to the particular order of detention and he placed those papers before the Minister concerned
Therefore the counter affidavit filed on behalf of the respondents cannot but be considered and there is no allegation of mala fide or malice or extraneous consideration personally against the detaining authority in making the impugned order of detention
253G H Madan Lal Anand vs Union of India  Ors
   Mohinuddin vs District Magistrate Beed and Ors   Niranjan Singh vs State of Madhya Pradesh   Habibullah Khan vs State of West Bengal  Jagdish Prasad vs State of Bihar  and Mohd Alam vs State off West Bengal   relied on 6
The persons examined under section 108 of the were well known to the petitioner
The statements of these persons clearly implicate the petitioner who know ing fully that the two cars will be used for the purpose of transportation of prohibited drugs ie heroin and for soiling of the same handed over the keys of the two cars to the driven Therefore the contention of the petitioner that the detention order was vitiated by non application of mind is devoid of merit
247A B 246F 7
Accordingly the impunged order of detention is quite in accordance with law and the same is valid
254A