Case: Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress

there is lack of confidence in the employee which makes it necessary in the interest of the Corporation to immediately terminate the services of the employee. These, however, are illustrative and not exhaustive. therefore, each case of the conferment of the power involved should be decided on the aforesaid basis. 120. I am conscious that clear intention as indicated in a legislation cannot be permitted to be defeated by means of construction. It has been said that if the legislature has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. I do not agree. Our legislatures are limited by the constitutional inhibitions and it is time, in my opinion, that we should read their Acts and enactments with the attribute that they know their limits and could not have intended to violate the Constitution. It is true that where there are clear, unambiguous and positive terms in a legislation, the Court should be loath to read down. It should proceed with a straight-forward method of striking down such legislations. But where the statute is silent or not expressive or inarticulate, the Court must read down in the silence of the statute and in the in articulation of its provisions, the constitutional inhibitions and transmute the major inarticulate premise into a reality and read down the statute accordingly. It is true perhaps, as has been said, that in the history of constitutional law, statutes are seldom read down to mean what they say and intend. It is begging the question. If the statutes are seldom read down to mean what they say and intend. It is begging the question. If the statute does not specifically say, in such circumstances, as to how do we find the intention to transgress the constitutional limitations. At least, the relevant provisions of the relevant statutes and the rules, mentioned hereinbefore, are, in my opinion, on these points, not expressive enough to betray an intention transgress constitutional limitations. I am afraid that reference to Elliott Ashton Welsh, II v. United States 398 US 333 : 26 L.Ed. 2d 308 is inept in the background of the principles we are confronted with. The plain thrust of legislative enactment has to be found out in the inarticulate expressions and in the silence of the legislation. In doing so, to say what the legislature did not specifically say, is not distortion to avert any constitutional collision. In the language of the relevant provisions with which we are confronted, I do not find that intention of the legislature to flout the constitutional limitations. 121. I am also unable to accept the contention of Mr. Garg as well as Mr. Ramamurthi that it is clear as a result of the constitutional position of the security of tenure of the employees as well as the expressed language of the provisions of several enactments that there is no valid power of the termination of employment of the permanent employees without holding an enquiry or giving an opportunity to the employees to rebut the charges on the grounds of termination in all circumstances. It was contended, as I have noted, by Shri R.K. Garg that no principle of interpretation permitted reading down a provision so as to make it into a different provision altogether different from what was intended by the legislature or its delegate. Reference was made to the decision of this Court in R.M.D.C.s case (supra). I am unable to accept this contention. It is not that the reading down is used for a purpose which is just the opposite which the legislature had intended. Legislature had not intended arbitrary or uncontrolled or whimsical power. Indeed it considered. This is not the proper way to read that power in the said Regulation 9(b). Para 522 of the Shastri Award, read properly, must be circumscribed with the conditions indicated above as a necessary corollary or consequence of that power. It is also not reading to the legislature conditions which were not there in the second proviso Article 311(2) of the Constitution. In view of the ratio of the five-judge Bench decision of this Court in Tulsirams case (supra), which had examined all the relevant decisions, I am unable to accept the submission of Shri R.K. Garg and Mr. Ramamurthi. Absolute powers, it is true, cannot be regulated without essential legislative policy, but here properly read, absolute power was not there. Power that was only constitutionally valid, that power can be presumed to have been given and if that presumption is made, conditions indicated above inevitably attach. 122. We are not concerned with the concept of industrial democracy sought to be propounded by Mr. Garg in this case. The validity and the propriety of having industrial democracy is not in issue. What is in issue is demonstrable fair play and justice, as sought for by Mr. Garg, in the exercise of the power which must be conceded as an essential attribute for proper functioning of the institution. 123. It is true that no drafts as such have been submitted by the learned Attorney General or by the learned Solicitor General nor by any counsel appearing for the management. But these conditions, which we have noted, are necessary corollary flowing from the conferment of the power of termination in a constitutional manner for the smooth, proper and efficient running of the industry. 124. In the aforesaid view of the matter, I am unable to accept the submissions of Mr. Garg and Mr. Ramamurthi. The power must be there, the power must be read down in the manner and to the extent indicated above, in my opinion, of terminating the services of permanent employees without holding any enquiry in the stated contingencies and this would be by either virtue of the silence of the provision indicating the contingencies of termination or by virtue of constitutional inhibitions. That reading would not violate the theory that judges should not make laws.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It may be mentioned that under the general law of contract of employment, which was commonly known as the law of master and servant, which is not termed as law of employer and employee, whether the contract of service is for a fixed period or not, if it contained a provision for its termination by notice, it could be so terminated. If there was no provision for giving notice and the contract was not for a fixed period, the law implied an obligation to give a reasonable notice. Where no notice in the first case or no reasonable notice in the second case was given and the contract was wrongfully terminated, such wrongful termination would give rise to a claim for damages. In this connection, reference may be made to the observations of this Court in the five-judge bench decision in Union of India and Anr. v. Tulsi Ram Patel [1985] Supp. 2 SCR 131. This is also the position at common law15. The relationship between a statutory corporation and its employees is normally governed by the relevant rules, regulations and standing orders. A statutory Corporation is "State" within the meaning of Article 12 of the Constitution and its action is subject to judicial review in certain cases and certain circumstances. In the facts and circumstances of these cases, we have proceeded on that basis and we are of the opinion that it is the correct basis. The exercise of such power under regulations similar to the one impugned which has been upheld in various types of cases are instructive in their variety. It may be mentioned that the exercise of power under the very same Regulation 9(b) was upheld by the Court in a matter, wherein in an action by the employee of D.T.C., this Court in Delhi Transport Corporation Undertaking v. Balbir Saran Goel (1970)IILLJ20SC held that even if the employees of the respondent thought that he was a cantankerous man and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9(b) and it was not necessary to dismiss by way of punishment for misconduct16. Reliance was placed on this decision by the High Court in the Judgment under appeal. The High Court in our opinion rightly pointed out, however, that the decision was on a different basis and could not be availed of in deciding controversy involved in the present determination17. It may be mentioned that the case of civil servants is, however, governed by their special constitutional position which accords them status; the legal relationship (between the Government and its servants) is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of state are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. See the observations of this Court in Roshan Lal Tandon v. Union of India (1968)ILLJ576SC D-E. But even then the services of a temporary civil servant (although entitled to the protection of Article 311 of the Constitution) is subject to termination by notice. But beside the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work. See the observations of this Court in Champak Lal Chiman Lal Shah v. The Union of India (1964)ILLJ752SC . The services of a temporary government servant, further, may be terminated on one months notice whenever the government thinks it necessary or expedient to do so for administrative reasons. It is impossible, this Court observed, to define before hand all the circumstances in which the discretion can be exercised. The discretion was necessarily left to the Government. See observations of this Court in Ram Gopal Chaturvedi v. State of M. P. (1970)ILLJ367SC19. It must, however, be borne in mind that in some recent cases this Court has taken the view that a regulation providing for the termination of the service of an employee of the public corporation by notice only or pay in lieu thereof is invalid under Article 14 of the Constitution. We have referred to the decisions of the Workmen of Hindustan Steels case (supra); West Bengal State Electricity Boards case (supra) and Central Inland Water Transport Corporations case (supra)We must lean in favour of that interpretation because it helps to sustain the validity of the lawFrom what the learned Attorney General submitted and what appears to be the correct that every legislature intends to act within its powers. therefore, in a limited Government, the legislature attempts to function within its limited powers. It would not, therefore, be expected to have intended to transgress its limitsThe provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence30. The principles of natural justice or holding of an enquiry is neither a universal principle of justice nor inflexible dogma. The principles of natural justice are not incapable of exclusion in a given situation. For example, Article 311(2) of the Constitution which essentially embodies the concept of natural justice, itself contemplates that there may be situations which warrant or permit the non-applicability of the principles underlying Article 311(2) of the Constitution. Reference may be made to the second proviso to Article 311 of the Constitution. This court has also recognised that the rule of audi alteram partem can be excluded where having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its application and even warrants its exclusion. If importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands, natural justice could be avoided. See the observations of this Court in Maneka Gandhis case at p. 681 of the report (supra). This Court in Tulsi Ram Patels case (supra) had in terms ruled that not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. But the principles of natural justice must not be displaced save in exceptional casesThe reading down, the learned Attorney General conceded cannot, however, be done where there was no valid reason and where it would be contrary to proclaimed purpose. See the observations of this Court in Minerva Mills Ltd. and Ors. v. Union of India and Ors. [1981]1SCR20632. In any event Counsel is right that the observations made at p. 259 of the report (supra) were in a different context and the challenge based on Articles 19(1)(g) and 31 does not appear to have any substance in resolving the present controversy before usThere is no evidence from either side as to whether the appellant had worked somewhere else though the appellant did not work with the respondent because of his suspension. The appellant had, however, stated that he did not so work. In that view of the matter, if the contentions of the appellant are accepted that the clause under which the terms of employment of the appellant was agreed and under which the termination was effected without any enquiry and further in view of the fact that the learned trial Judge before whom the appellant had filed the suit first and decreed the suit declaring the appellant to be entitled to be in service, the appellant, in our opinion. should rightly be granted a monetary claim for Rs.4,83,061.90 paise and further interest at 6% from 30th September, 1984. This would be in consonance with justice and equity in the facts and the circumstances of this case. This order, however, will have to be passed if we accept the contention on behalf of the appellant herein on the construction of the clause94. In this connection, it may, however, be noted that the General Insurance was nationalised under the provisions of the General Insurance Provisions (Nationalisation) Act, 1972 and the said Act came into force on 20th September, 1972. Prior to this, General Insurance (Emergency Provisions) Act, 1971 was passed under the provisions of which Act all undertakings of all Insurers vested in the Central Government with effect from 13th May, 1971. This was pending nationalisation which took place in 1972 as aforesaid96. The original terms and conditions had not been altered and the employees like the appellant in C.A. No. 855/84 continued to be governed by the original terms and conditions of the contract at the time of termination. The original terms and conditions of employment, therefore, continued in force. The contract of service was entered into when the appellant joined the Orissa Cooperative Insurance Society Ltd. way back in 1961 and at the time of take-over by the Central Government was the Divisional Manager of the said society. After the take over by the Central Government of general insurance in 1972, a great deal of reorganisation had to be effected in order to tone up the system of general insurance which had become unwieldy due to the mushroom growth of societies with no control whatsoever when insurance was in private hands98. The above clause covered cases of retrenchment, abolition of posts and other situations which had been adjudicated upon by this Court. If, however, the Central Inland Waters case (supra) is applied, Smt. Shyamla Pappu submitted, then the management of the Intervener Company will be powerless even in a case of abolition of posts or retrenchment or any other allied situation. It is seen that the power to terminate an employee is co-existent with the power to appoint. Smt. Shyamla Pappu relied on the General Clauses Act and submitted that the Central Inland Waters case (supra) was erroneous in so far as it made a complete negation of this power. Then, it was submitted by her that in case of an employer who had made all the necessary investigation and the employee concerned has been fully heard before the order of termination and if the decision of Central Inland Waters case was applied, then even such a case would be a case of illegal termination, considering that there would be no power to terminate. It was submitted that the Central Inland Waters case had to be read down because paras 77, 92 and 93 of the report take in even private employment. The sweep of the judgment cannot hold good and had to be curtailed99. According to Smt. Pappu, what then was the position of terminations effected when the law was different? It cannot be said that they are entitled to relief now. It should be clarified that the judgment of this Court would apply prospectively, it was submitted. Past cases might be treated as concluded in view of the law prevailing at that time and also in view of the contentions urged by the parties in the courts below at various stages. In the event, this Court comes to the conclusion that even old cases would be covered by the judgment now rendered, the orders already passed may be upheld and a post-decisional hearing might be directed so that the management concerned has the opportunity of showing that there existed good reasons for termination though the same were not communicated to the employee concerned because the law then existing did not require such a communication. In the interest of justice, we should allow such a courseThe instances of actual user of power, however, are not wholly irrelevant on the question of the validity or extent of the power because these explain the extent and content of power and/or occasion for such user. Firstly, we have to, in view of the facts and the circumstances of the civil Appeal No. 2876 of 1986, consider the amplitude of the power under clause (b) of Regulation 9 of the Regulations concerned. We have noted the contents of that Regulation. We have also noted the amplitude of the expression of that power as was canvassed before the High Court in the matter under appeal and as noticed by the decision of this Court in Delhi Transport Undertaking v. Balbir Saran Goels case (supra). A survey of the several authorities of law and the development of law from time to time would lead one to the conclusion that the philosophy of the Indian Constitution, as it has evolved, from precedent to precedent, has broaden the horizons of the right of the employees and they have been assured security of tenures and ensured protection against arbitrariness and discrimination in discharge or termination of his employment. This is the basic concept of the evolution from the different angles of law of master and servant or in the evolution of employer and employee relationship. It is true that the law has travelled in different channels, government servants or servants or employees having status have to be differentiated from those whose relationships are guided by contractual obligations102. But it has to be borne in mind that we are concerned in these matters with the employees either of semi-Government or statutory corporations or public undertakings who enjoy the rights, privileges, limitations and inhibitions of institutions who come within the ambit of Article 12 of the Constitution103. We have noted the exhaustive and the learned analysis of the background of the diverse facts projected in the several cases and appeals before us105. We have noted several decisions, numerous as these are, and the diverse facts, as we have found. We have noted that in some cases arbitrary action or whimsical action or discriminatory action can flow or follow by the preponderance of these powers. The fact that the power so entrusted with a high ranking authority or body is not always a safe or sound insurance against misuse. At least, it does not always ensure against erosion of credibility in the exercise of the power in particular contingency. Yet, discipline has to be maintained, efficiency of the institution has to be ensured. It has to be recognised that quick actions are very often necessary in running of an institution or public service or public utility and public concern. It is not always possible to have enquiry because disclosure is difficult; evidence is hesitant and difficult, often impossible. In those circumstances, what should be the approach to the location of power and what should be the content and extent of power, possession and exercise of which is essential for efficient running of the industries or services? It has to be a matter both of balancing and adjustment on which one can wager the salvation of rights and liberties of the employees concerned and the future of the industries or the services involved106. Bearing in mind the aforesaid principles and objects, it appears to us that the power to terminate the employment of permanent employment must be there. Efficiency and expediency and the necessity of running an industry or service make it imperative to have these powers. Power must, therefore, with authorities to take decision quickly, objectively and independently. Power must be assumed with certain conditions of duty. The preamble, the policy, purpose of the enacting provision delimit the occasions or the contingencies for the need for the exercise of the power and these should limit the occasions of exercise of such powers. The manner in which such exercise of power should be made should ensure fairness, avoid arbitrariness and mala fide and create credibility in the decisions arrived at or by exercise of the power. All these are essential to ensure that power is fairly exercised and there is fair play in action. Reasons, good and sound, must control the exercise of power108. Notice of hearing may or may not be given, opportunity in the form of an enquiry may or not be given, yet arbitrariness and discrimination and acting whimsically must be avoided. These power must, therefore, be so read that the powers can be exercised on reasons, reasons should be recorded, reasons need not always be communicated, must be by authorities who are competent and are expected to act fairly, objectively and independently. The occasion for the use of power must be clearly circumscribed in the above limits. These must also circumscribe that the need for exercise of those power without holding a detailed or prolonged enquiry is there109. As we have noted, a good deal of controversy was that these inhibitions or limitations or conditions are not there in the amplitude or the extent of the power enumerated or stated in Regulation 9(b) of the aforesaid Regulations concerned or of similar provisions that we have examined in these casesIf we do not read the conferment of the power in the manner we have envisaged before, the power is liable to be struck down as bad. This, we say in spite of the argument by many including learned Solicitor General of India and Smt. Shyamla Pappu that in contractual obligations while institutions or organisations or authorities, who come within the ambit of Article 12 of the Constitution are free to contract on the basis of hire and fire and the theory of the concept of unequal bargain and the power conferred subject to constitutional limitations would not be applicable. We are not impressed and not agreeable to accept that proposition at this stage of the evolution of the constitutional philosophy of master and servant framework or if you would like to call it employer or employee relationship. therefore, these conferment of the powers on the employer must be judged on the constitutional peg and so judged without the limitations indicated aforesaid, the power is liable to be considered as arbitrary and struck down114. 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, and for that matter any language in use today, is not an instrument of mathematical precision. It has been said that our literature would have been much the poorer if it were Leaving, however, the question of richness or poverty of our literature apart, we must proceed on the assumption that human mind cannot foresee everything. It has, therefore, been said that when a question arises whether the power has been properly conferred and even if so, the extent of it. Lord Denning has opined that a Judge in such a situation cannot simply fold his hand and blame the draftsmen and look for new enactment. Lord Denning invites us to set to work on the construction task of finding the intention of the Parliament or the law making body and we must, however, do this not only from the language of the statute, because, as we have seen, language is an imperfect medium and very often thoughts are perpetually in search of broken language. But the judge must also do it from a consideration of the social conditions which give rise to it, and of the mischief which it was intended to remedy and also in the light of the constitutional inhibitions and then supplant the written words and add to it end give force and life to the intention and purpose of the legislature or the law making authority. A judge must not alter the material of which a law or an instrument is woven, but he can and should iron out the creases and if one may venture to say, make articulate the inarticulate premise but make articulate only which follow from necessary compulsions of the situations and the constitutional position. See in this connection the observations of Lord Denning in " The Discipline of Law" at p. 12115. It is true that judicial jealously of legislature in law making has long been outdrawn, but the strict construction remains still an established rule. It is generally accepted principle that judges in interpreting statutes, should give effect to the legislators intent. By doing so, the courts do recognise their subordinate position and their obligation to help the legislature to achieve its purpose. But in that effort, creativity is essential. There have been differences of opinion on the practices that the courts may employ in attempting to discover the legislative intent. In the beginning, conventional practice was only to look to the words of the statutes. Now the entire spectrum has to be examined. It has been said that judges are not unfettered glossators116. It is true that there is no actual expression used enabling the legislation or the statute in question indicating the limitations or conditions as aforesaid. But it must proceed on the premise that the law making authority intended to make a valid law to confer power validly or which will be valid. The freedom, therefore, to search the spirit of the enactment or what is intended to obtain or to find the intention of the Parliament gives the Court the power to supplant and supplement the expressions used to say what was left unsaid. This is a power which is an important branch of judicial power, the concession of which it taken to the extreme is dangerous, but denial of that power would be ruinous and this is not contrary to the expressed intention of the legislature or the implied purpose of the legislation. It was not as Shri Ramamurthi tried to argue that legislature wanted to give an uncontrolled and absolute power to discharge employees on the part of the employers without any enquiry in all circumstances. That cannot be and that was not intended to be as can be implied from all the circumstances117. In the aforesaid view of the matter, I would sustain the constitutionality of this conferment of power by reading that the power must be exercised on reasons relevant for the efficient running of the services or performing of the job by the societies or the bodies. It should be done objectively, the reasons should be recorded, it should record this and the basis that it is not feasible or possible reasonably to hold any enquiry without disclosing the evidence which in the circumstances of the case would be hampering the running of the institution. The reasons should be recorded, it need not be communicated and only for the purpose of the running of the institution, there should be factors which hamper the running of the institution without the termination of the employment of the employee concerned at that particular time either because he is a surplus, inefficient, disobedient and dangerous119. I have noted the guidelines for the exercise of the power, preamble, relevant sections from which the reasons should be inferred and recorded, although they need not be communicate. These should be recorded in order to ensure effective judicial review in a given case. Termination simpliciter under Regulation 9(b) or similar powers can be exercised only in circumstances other than those in regulation 9(a). The exercise of such powers can only be for purposes germane and relevant to the statute. There are several illustrations of that, namely, the employee is incompetent or unsuitable so as to make his continuance in the employment detrimental to the interest of the institution, where the continuance of the employee is a grave security risk making his continuance detrimental to the interest of the Corporation and where because of the conduct of the employee, there is lack of confidence in the employee which makes it necessary in the interest of the Corporation to immediately terminate the services of the employee. These, however, are illustrative and not exhaustive. therefore, each case of the conferment of the power involved should be decided on the aforesaid basis120. I am conscious that clear intention as indicated in a legislation cannot be permitted to be defeated by means of construction. It has been said that if the legislature has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. I do not agree. Our legislatures are limited by the constitutional inhibitions and it is time, in my opinion, that we should read their Acts and enactments with the attribute that they know their limits and could not have intended to violate the Constitution. It is true that where there are clear, unambiguous and positive terms in a legislation, the Court should be loath to read down. It should proceed with a straight-forward method of striking down such legislations. But where the statute is silent or not expressive or inarticulate, the Court must read down in the silence of the statute and in the in articulation of its provisions, the constitutional inhibitions and transmute the major inarticulate premise into a reality and read down the statute accordingly. It is true perhaps, as has been said, that in the history of constitutional law, statutes are seldom read down to mean what they say and intend. It is begging the question. If the statutes are seldom read down to mean what they say and intend. It is begging the question. If the statute does not specifically say, in such circumstances, as to how do we find the intention to transgress the constitutional limitations. At least, the relevant provisions of the relevant statutes and the rules, mentioned hereinbefore, are, in my opinion, on these points, not expressive enough to betray an intention transgress constitutional limitations. I am afraid that reference to Elliott Ashton Welsh, II v. United States 398 US 333 : 26 L.Ed. 2d 308 is inept in the background of the principles we are confronted with. The plain thrust of legislative enactment has to be found out in the inarticulate expressions and in the silence of the legislation. In doing so, to say what the legislature did not specifically say, is not distortion to avert any constitutional collision. In the language of the relevant provisions with which we are confronted, I do not find that intention of the legislature to flout the constitutional limitations121. I am also unable to accept the contention of Mr. Garg as well as Mr. Ramamurthi that it is clear as a result of the constitutional position of the security of tenure of the employees as well as the expressed language of the provisions of several enactments that there is no valid power of the termination of employment of the permanent employees without holding an enquiry or giving an opportunity to the employees to rebut the charges on the grounds of termination in all circumstances. It was contended, as I have noted, by Shri R.K. Garg that no principle of interpretation permitted reading down a provision so as to make it into a different provision altogether different from what was intended by the legislature or its delegate. Reference was made to the decision of this Court in R.M.D.C.s case (supra). I am unable to accept this contention. It is not that the reading down is used for a purpose which is just the opposite which the legislature had intended. Legislature had not intended arbitrary or uncontrolled or whimsical power. Indeed it considered. This is not the proper way to read that power in the said Regulation 9(b). Para 522 of the Shastri Award, read properly, must be circumscribed with the conditions indicated above as a necessary corollary or consequence of that power. It is also not reading to the legislature conditions which were not there in the second proviso Article 311(2) of the Constitution. In view of the ratio of the five-judge Bench decision of this Court in Tulsirams case (supra), which had examined all the relevant decisions, I am unable to accept the submission of Shri R.K. Garg and Mr. Ramamurthi. Absolute powers, it is true, cannot be regulated without essential legislative policy, but here properly read, absolute power was not there. Power that was only constitutionally valid, that power can be presumed to have been given and if that presumption is made, conditions indicated above inevitably attach122. We are not concerned with the concept of industrial democracy sought to be propounded by Mr. Garg in this case. The validity and the propriety of having industrial democracy is not in issue. What is in issue is demonstrable fair play and justice, as sought for by Mr. Garg, in the exercise of the power which must be conceded as an essential attribute for proper functioning of the institution123. It is true that no drafts as such have been submitted by the learned Attorney General or by the learned Solicitor General nor by any counsel appearing for the management. But these conditions, which we have noted, are necessary corollary flowing from the conferment of the power of termination in a constitutional manner for the smooth, proper and efficient running of the industry124. In the aforesaid view of the matter, I am unable to accept the submissions of Mr. Garg and Mr. Ramamurthi. The power must be there, the power must be read down in the manner and to the extent indicated above, in my opinion, of terminating the services of permanent employees without holding any enquiry in the stated contingencies and this would be by either virtue of the silence of the provision indicating the contingencies of termination or by virtue of constitutional inhibitions. That reading would not violate the theory that judges should not make laws125. In the aforesaid view of the matter, I direct that whenever question of exercise of the power of termination of permanent employees by reasonable notice without holding any enquiry arises, the extent of the power should be read in the manner indicated above and we reiterate that such powers can be exercised for the purposes of the Act which will be determinable by the preamble and by relevant enacting provisions and the contingencies for the exercise of the power must be specified and powers should be exercised by authority competent and independent enough and should be articulated by reasons stated even if not communicated. These are the limitations inherent and latent in the framework of our Constitution and the power with these limitations is valid126. Having regard to the aforesaid view, I will have to dispose of the appeals in terms of the aforesaid principlesHaving regard to the finality of the position of law and having regard to the theory that parties have adjusted their rights on the understanding of the law as it was, in our opinion, justice of the situation would be met if we declare and hold that pending litigations should be examined in the light of the aforesaid principles and dispose of in the aforesaid light, namely, where issues of damages or consequences of termination by virtue of exercise of the power are still pending adjudication in any forum and have not been finally adjudicated, these should be re-examined by the appropriate authorities before whom these issues are pending in the light of these principles, that is say, the exercise of the power should be judged on these conditions and in the light of those conditions. If in the light of these conditions, the exercise of the power is valid, the termination should be held to be valid, if on the other hand, there was exercise without compliance with these conditions, the termination would be invalid and consequences in law of damages or reinstatement or others will follow. But previous terminations where the his is no longer pending before any authority will not be reopened. To that extent. I will declare this to be the law prospectively128. I had, after circulating the draft judgment herein, the advantage of the views of my learned brothers. They do not agree with me. With respect, I am definitely of the opinion that time has come for the judicial interpretation to play far more active, creative and purposeful role in deciding what is "according to law". Law as evolved in India today, in my opinion, makes the limitations on user of power quite clear and distinct, in this branch. These are constitutional limitations. therefore, every provision in any legislation by limited legislatures, in my opinion, should be judged bearing in mind that the legislature and the law-making authorities were aware and are bound by these constitutional limitations. These inhibitions must be read into these provisions so that law becomes effective, purposeful and legal. In that view of the matter, I am of the opinion that we should approach the question of constitutional limitations or inhibitions in our interpretation in deciding in each individual cases by not what has been but what may be. This is the role and purpose of constitutional interpretation by the apex Court of the country. I know that this view of mine is not shared in this decision by my learned brothers. I respect their views, but I would like to hope that one day or the other this Court would be mature enough to fulfil what is purposeful and I believe to be the true role and purpose of the Court in interpretation in the light of constitutional inhibitions. Having had the advantage of the views of my learned brothers, I regret, with respect, I cannot join them in their views. I am the loser for the same, but I will fondly hope only for the time being129. I believe that we must do away with the childish fiction that law is not made by the judiciary. Austin in his Jurisprudent at page 65, 4th edn. has described the Blackstones principle of finding the law as the childish fiction. Chief Justice K. Subba Rao in I.C. Golak Nath and Ors. v. State of Punjab and Anr. [1967]2SCR762 has referred to these observations. This Court under Article 141 of the Constitution is enjoined to declare law. The expression declared is wider than the words found or made. To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by this Court is the law of the land. To deny this power to this Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country. See the observations of Chief Justice K. Subba Rao in I.C. Golak Nath and Ors. v. State of Punjab and Anr. (supra at pp. 813/14). I would, therefore, plead for a more active and creative role for the courts in declaring what the law is.