N Criminal Appeal No 603 of 1989
From the Judgment and Order dated 861989 of the Bombay High Court in Crl
Application No 995 of 1989
B R Handa and AM Khanwilkar for the Appellant
Ram Jethmalani PK Dey Ms Rani Jethmalani NP and DM Nargolkar for the Respondents
The Judgment of the Court was delivered by 317 ABMADI J
Special leave granted
Heard counsel on both sides
The facts leading to this appeal are as under On May 30 1988 the respondent a retired Naval Officer of the rank of Captain was apprehended at the Bombay Inter national Airport Sahar Airport when he was about to take the Air India Flight from Bombay to New York
On search of his luggage certain highly sensitive documents marked se cretconfidential were found
A complaint was lodged against him for the breach of the provisions of the Official Secrets Act 1923 and the 
Soon after his arrest he filed an application dated 22nd September 1988 for bail
That application was rejected by the High Court on 29th September 1988
Thereafter he filed a writ petition challenging the validity of Sections 3 and 5 of the Official Secrets Act 1923 but that writ petition was dismissed by a Division Bench of the Bombay High Court on 8th December 1988
In the meantime he had preferred an application dated 21st November 1988 for transfer of his case to another learned Judge and for grant of bail
While granting the prayer for transfer the Division Bench refused to enlarge the respondent on bail by its order dated 19th December 1988
Soon thereafter on 18th January 1989 the respondent filed the third application for bail which too was rejected by Suresh J Having thus failed to secure enlargement on bail the respondent approached the learned Sessions Judge Bombay for a direction to the jail authorities that he be produced before the Head of the Orthopaedic Department of J J
Hospital as he had some spinal pain
The respondent also moved a separate application for being admitted to the Naval Hospital
The learned Sessions Judge acceded to his request and got him examined by Dr Dongaonkar who submitted his report on 3rd February 1989
On 10th February 1989 the respondent moved another application complaining of viola tion of Court s order and for enlargement on bail
This was followed by yet another application for bail dated 16th February 1989 and in the alternative for a direction to admit him to a suitable hospital where he may be served meals cooked at his home
On the said application certain directions were given and the respondent was shifted to the general ward of GT Hospital Bombay
The Trial Court flamed charges against the respondent on 27th February 1989
On 24th April 1989 the respondent filed yet another application for grant of bail on medical grounds and in the alternative for being admitted to a hospital or any other place where he can conveniently receive instructions in yogic exercises
All his pending applications made for bail etc were rejected by Puranik J by a common order dated 6th June 1989 except Criminal Application No 995 of 1989 preferred in April 1989 318 for enlargement on bail on medical grounds
Possibly the fact that he had referred this application was not brought to the notice of Puranik J Two days after the rejection of the group of bail applications by Puranik J application No 995 of 1989 was disposed of by Suresh J who directed that he be enlarged on bail for a period of two months on his furnishing security in the sum of Rs 10000 with one surety on the terms and conditions catalogued at a to g of the order
The learned Judge felt that by permitting him to be kept in virtual house arrest the State s grievance that he meets visitors including mediamen and gives inter views at the GT Hospital open ward will not survive
He was also of the view that having regard to his spinal disor der it was necessary that he had proper facilities for yogic exercises under expert guidance
It is this order of the learned Judge that is assailed before us by the State of Maharashtra
When this matter came up for admission before Shetty J during vacation the learned Judge after taking note of the fact that respondent was suffering from disc prolapse for which he was treated by Dr Dongaonkar and had shown considerable improvement and after evaluating the opinion of Dr Khadilkar who had certified that the respondent was fit to attend court observed as under Having regard to the nature of the offences charged the sickness or disability complained of the nature of the treatment required the certificates given by the Doctors I am of the opinion that the bail order made by the High Court appears to be a bit out of the ordinary
 The learned vacation Judge then directed notice to issue and stayed the operation of the High Court s Judgment of 8th June 1989
While doing so he observed that the respondent should be given necessary treatment of Yogic exercises in the Jail
Therefore since the passing of this order on 15th June 1989 the operation of the High Court s order enlarg ing the respondent on bail and placing him in virtual house arrest on the terms and conditions set out in the court s order is stayed
The learned counsel for the State of Maharashtra con tended that the learned Judge in the High Court while pass ing the impugned order of 8th June 1989 ought to have realised that only two days before his colleague Puranik J had rejected all the pending bail applications except Criminal Application No 99589 preferred at intervals by the respondent
In Criminal Application No 37589 one of the prayers 319 made in paragraph 7e was as under That the applicant may pending his illness be ordered and directed to be placed under house arrest andor be released on bail on such terms and conditions as may be Puranik J considered this request of the respondent in paragraph 24 of his order of 6th June 1989 and rejected the same
Despite the rejection of the said application No 375 of 1989 along with a group of applications seeking enlarge ment on bail and other directions Suresh J granted almost the same request only two days later while disposing of the application No 99589
That is what Shetty J described as a bit out of the ordinary  when the matter came up for hearing before this Court on 4th August 1989 a communica tion received from the respondent requesting that he be brought to Delhi by plane to enable him to argue the matter in person was placed before the Court
This Court while rejecting his request for being brought by plane from Bombay to Delhi observed that he may inform the Court if he desired legal aid
At the next hearing instead of informing the Court whether he desired legal aid he repeated his request for personal appearance through his son which was rejected
However the Supreme Court Legal Aid Committee was requested to appoint an Advocate to appear and argue the case on his behalf
The matter was listed for hearing on 8th September 1989
When the matter was called on for hearing Mr Jethmala ni learned counsel for the respondent made a fervent plea that having regard to the age and the condition of the respondent this Court should recall its earlier order staying the operation of the impugned order and should refuse to exercise its jurisdiction under Article 136 of the Constitution of India
The submission of Mr Jethmalani was that ordinarily bail should be granted to under trials and this Court should refrain from exercising jurisdiction under Article 136 to cancel bail granted by the High Court
He made an endeavour to satisfy us that even on merits this was a fit case for grant of bail notwithstanding the fact that several bail applications made by the respondent one after another
were rejected by the High Court
We cannot accede to the submissions of Mr Jethmalani
It is evident from the facts stated above that after the respondent s successive applications for bail were spurned he requested for being admitted to the hospital on medical grounds that is on the 320 ground that he was suffering from spinal disorder
He was first admitted to the JJ Hospital and was later shifted to GT Hospital open ward on his request
After improvement to the extent of 70 and above was reported by Dr Dongaonkar who treated him and on Dr Khadilkar declaring him fit to attend the court he contended that he had consulted a yoga instructor who advised him a course in yogic exercises to get rid of his spinal disorder
In the meantime he had filed a number of applications for being released on bail
This batch of applications were put up before Puranik J for disposal
The attention of Puranik J was not drawn to the pendency of one such application No 99589 till he disposed of the batch of such bail applications on 6th June 1989
Even if the said application was filed after the hearing started before Puranik J the learned Judge could have been told about its pendency before he rendered his decision on 6th June 1989
This conduct of the respondent has given rise to the argument that the respondent desired to keep the question regarding his enlargement on bail alive
We have pointed out that in one of the applications No 37589 he had sought precisely the same relief which came to be grant ed by the impugned order
The question then is whether there was justification for releasing the respondent on bail to facilitate yogic exercises under expert guidance at his residence albeit under conditions of surveillance even though Puranik J had rejected a more or less similar prayer only two days before Should this Court refuse to exercise jurisdiction under Article 136 of the Constitution even if it is satisfied that the jurisdiction was wrongly exercised Liberty occupies a place of pride in our socio political order
And who knew the value of liberty more than the rounding fathers of our Constitution whose liberty was curtailed time and again under Draconian laws by the coloni al rulers
That is why they provided in Article 21 of the Constitution that no person shall be deprived of his person al liberty except according to procedure established by law
It follows therefore that the personal liberty of an indi vidual can be curbed by procedure established by law
The Code of Criminal Procedure 1973 is one such procedural law
That law permits curtailment of liberty of anti social and anti national elements
Article 22 casts certain obliga tions on the authorities in the event of arrest of an indi vidual accused of the commission of a crime against society or the Nation
In cases of under trials charged with the commission of an offence or offences the court is generally called upon to decide whether to release him on bail or to commit him to jail
This decision has to be made mainly in non bailable cases having regard to the nature of the crime the circumstances in which it was committed the 321 background of the accused the possibility of his jumping bail the impact that his release may make on the prosecu tion witnesses its impact on society and the possibility of retribution etc
In the present case the successive bail applications preferred by the respondent were rejected on merits having regard to the gravity of the offence alleged to have committed
One such application No 36 of 1989 was rejected by Suresh J himself
Undeterred the respondent went on preferring successive applications for bail
All such pending bail applications were rejected by Puranik J by a common order on 6th June 1989
Unfortunately Puranik J was not aware of the pendency of yet another bail appli cation No 99589 otherwise he would have disposed it of by the very same common Order
Before the ink was dry on Pura nik J s order it was upturned by the impugned order
It is not as if the court passing the impugned order was not aware of the decision of Puranik J in fact there is a reference to the same in the impugned order
Could this be done in the absence of new facts and changed circumstances What is important to realise is that in Criminal Application No 375 of 1989 the respondent had made an indentical request as is obvious from one of the prayers extracted earlier made therein
Once that application was rejected there was no question of granting a similar prayer
That is virtually overruling the earlier decision without there being a change in the fact situation
And when we speak of change we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence
Between the two orders there was a gap of only two days and it is nobody s case that during these two days drastic changes had taken place necessitating the release of the respondent on bail
Judicial discipline propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik J only a couple of days before in the absence of any substan tial change in the fact situation
In such cases it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one Judge or selected another to secure an order which had hitherto eluded him
In such a situation the proper course we think is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications
Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking
Such a practice would also discourage the filing of successive bail applications without change of circum stances
Such a practice if adopted would be condusive to judicial discipline and would also 322 save the Court s time as a Judge familiar with the facts would be able to dispose of the subsequent application with despatch
It will also result in consistency
In this view that we take we are fortified by the observations of this Court in paragraph 5 of the judgment in Shahzad Hasan Khan vs Ishtiaq Hasan Khan 1987 2 SCC 684
For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substan tial change in the fact situation
That is what prompted Shetty J to describe the impugned order as a bit out of the ordinary 
Judicial restraint demands that we say no more
It is true that ordinarily this Court does not interfere with an order granting bail but in the facts of this case we feel judicial discipline will be sacrificed at the altar of judicial discretion if we refuse to exercise our jurisdic tion under Article 136 of the Constitution
In the result we allow this appeal and set aside the impugned order dated 8th June 1989 granting bail to the respondent accused
RSS Appeal allowed


Summary:
Trade Fair Authority of India Employees  Union had been demanding from the management i housing facilities for the employees ii regularisation of at least 50 of casual or daily rated employees and iii upward revision of the salaries and allowances of the workers
These demands were discussed by the Union with the management from time to time but nothing concrete except assurances emerged
On October 29 1986 the Union wrote to the General Manager seeking implementation of the assurances not later than November 15 1986
It was also communicated that the workers would pro ceed on one day s token strike on 131186 if no action was taken
In response thereto the General Manager only assured the Union representatives that the Standing Committee which was seized of the matter would be requested to take up the matter on priority basis but things remained standstill till the end of November 1986 and the reminders sent thereafter also did not yeild the desired result
Thereupon on January 15 1987 the Union sought permission to hold the general body meeting on 19187 during lunch interval and in antici pation of the grant of such permission issued notices of the meeting to the members
The General Manager however declined to grant the necessary permission
But the General Body Meeting of the Union was held as scheduled and a decision was taken to strike work on 2111987 aS a protest
The management was put on notice which reacted by suspending the President Vice President  other Executive Members of the Union
WOrkers  demand for withdrawal of the orders of suspension was rejected
Instead all the remaining office bearers  leading activists were suspended
These suspended employees have filed a writ petition 258 challenging their suspension
During the strike some workers attended duty while some others gave undertaking in the prescribed form all such workers were allowed to work but others who refused to sign the Undertaking but reported for work were denied employ ment Efforts to solve the unemployment problem of such employees having failed they too have filed a writ petition seeking necessary relief
By its order of March 3 1987 the management terminated the services of all the 12 office bearers under Rule 32 of the Trade Fair Authority of India Employees Conduct Disci pline and Appeal Rules 1977 without holding a departmental inquiry as contemplated by Rules 27 to 29 of the Rules
According to the management the reason for not holding the inquiry was that the workers had terrorised  intimidated not only the Disciplinary Authority but also the witnesses and an atmosphere of violence general in discipline and insubordination was created as a result of which it was not practicable to hold the inquiry
These dismissed employees have also filed a Writ Petition
One Raju a casual laborer of TFAI since 1982 was selected on July 4 1986 as a Mini stiller Driver
He joined the new post on the same day but his appointment was can celled without assigning any reason and he was reverted as a daily wager
He too had joined the others for regularisation of his service and has taken part in the strike
His serv ices were terminated on December 1 1986 without any in quiry
He too has filed a Writ Petition challenging the action of the management
Another Writ Petition has been filed by two daily rated Security Guards of TFAI whose services were terminated even though they had remained on duty during the strike
Their contention is that they were dismissed as they refused to falsely implicate their co workers who had espoused their cause
They urge their s was a case of victimisation
In the counter affidavit filed on behalf of the manage ment it was urged that as the petitions require collection and adjudication of facts the petitioners should be rele gated to the Industrial Tribunal or the concerned High Court
On merits it was contended that the office bearers of the Union had created an atmosphere of violence and had paralysed the smooth running of the TFAI from November 1986 onwards the officials being terrified were unable to func tion that the union held the meeting even though permission was refused for the purpose that provocative speeches undermining discipline were made 259 at the meeting and that the ultimate termination of the services was motivated nor coercive
As the strike neither was prolonged the management was forced to make alternative arrangements including those of the security as the Presi dent of India was to inaugurate AHARA 1987 on January 25 1987 and foreign VIPs were expected to visit the Pragati Maidan
To ensure proper security the management was even forced to file a suit and obtain an injuction from the High Court restraining the union members from preventing and obstructing the entry of delegates guests  dignitaries into Pragati Maidan
Likewise the management sought to defend its action in regard to casual labour by saying that 85 posts were consid ered necessary for regularisation and the matter was pending with the Standing Committee
It was denied that the manage ment was not sympathetic
On similar grounds the action taken by the management against Raju and the two security guards were sought to be justified
When the Petitions reached hearing the Court directed the Delhi Administration to spare the services of a Judge of the Labour Court to look into the facts of these cases and transmit his report to this Court
The concerned Judge considered the facts of each case after giving full opportu nity of hearing and leading evidence to the parties and thereafter submitted his report to this Court
On most of the issues involved the Judge found in favour of the work men
Allowing the Writ Petitions with directions this Court HELD The right to form association or Unions is a fundamental right under Article 191c of the Constitu tion
The necessity to form unions is obviously for voicing the demands and grievances of labour
The trade unionists act as mouthpieces of labour 270A B Strike in a given situation is only a form of demonstra tion eg go slow
sit in work to rule absentism etc
Strike is one such mode of demonstration by workers for their rights
The right to demonstrate and therefore the right to strike is an important weapon in the armoury of the workers
This right is recognised by almost all Democratic Countries
But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it by section 103 10A 4A 22 and 23 the Industrial Disputes Act
These provisions however have no application to the present case since it is no body s contention that the Union s demands had been referred to any forum under the statute
Though there were angry protests and 260 efforts to obstruct the officers from entering the precincts of TFAI there was no convincing evidence of use of force of violence
270C F Although TFAI was sympathetic to regularisation of service of the casual workers since the proposal had to pass through various levels it was not possible to take an early decision in the matter
In their frustration workers decided to put pressure by proceeding on strike
During the strike certain events happened which were avoidable but nothing destructive meaning thereby damaging the property of TFAI took place
271H 272A So far as the case of security guard Vipti Singh is concerned we are constrained to say that the material on record does disclose that he had signed the attendance register showing his presence from March 23 1987 to March 29 1987 even though he was in fact absent on those days
His explanation in this behalf is far from convincing
The ends of justice would be met if his re instatement without back wages is directed
273B C In the case of Raju the action of the management must be held to be penal in nature and cannot be sustained as it was taken without hearing the delinquent 273D Keeping in view the interest both of the labour and the institution the Court directed that the management will prepare a list of casual daily rated workers who were its employees prior to the strike on January 21
1987 in accord ance with their seniority if such a list does not exist
TFAI will provide them work on the same basis on which they were given work prior to the strike
After the seniority list is prepared TFAI will absorb 85 of the seniormost casual workers in regular employment pending finalisation of the regularisation scheme
TFAI will complete the regulari sation process within a period of 3 months from to day
TFAI will determine the number of casual employees who would have been employed had they not proceeded on strike
The wages payable to such casual employees had they been employed for the period of 6 months immediately preceding the date of this order will be worked out on the basis of actual labour employed and the amount so worked out will be distributed amongst the casual employees who report for work in the next three months after TFAI resumes work to casual labour
Peon Umed Singh Security Guard Bansi Dhar and Driver Raju will also be re instated in service forthwith
They too will be paid back wages less suspension allowance if any for a period of six months immediately preceding this order
So far as Driver Raju is concerned he 261 will be absorbed in regular service as per the offer made in the letter of July 25 1987
The Security Guard Vipti Singh will also be re instated in service but without back wages
In the case of the 12 dismissed workers the circumstances did not exist for the exercise of extraordinary powers under Rule 32 of the Rules
The orders terminating the service of the 12 union representatives are therefore set aside and they are ordered to be retained in service forthwith with hack wages covering a period of six months immediately preceding the date of this order
They should be reinstated forthwith
273E H 274A B TFAI to pay Rs5000 by way of costs to the Union
274C