CALCUTTA DOCK LABOUR BOARD

11.

JAFFAR IMAM AND OTHERS

March 22, 1965

[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO AND

V. RAMASWAMI, JJ.] Natural Justice-Detention under Preventive Detention Act- Termination of service based on such detention-Validity.

The respondents had been detained u"'der the Preventive Detention Act. On their release theiir employer-the appellant-Board, commenced disciplinary proceedings and show cause notices why their services should not be terminated on the principal ground that they had been detained for acts prejudicial to the .maintenance of public order. Not being satisfied with their answers, the appellant terminated their servi9es. The respondents' appeals to the Chairman of the appellant-Board were dismissed. Thereupon, the respondents

tiled writ petitions in the High Court, challenging the orders on the grounds that reasonable opportunity was not given to them, and that even the relevant statutory provisions had been contravened. The petitions were dismissed, but were allowed by a Division Bench on appeal.

In the apveal to this Court, HELD: If the appellants wanted to take disciplinary action against respondents on the ground that they were guilty of misconduct, it was absolutely essential that the appellant should have held a proper enquiry instead of equating the detention to a conviction by 2riminal Court. At this enquiry, reasonable opportunity should have been given to the respondents to show cause and before reaching its conclusion, the appellant was bound to lead evidence against the respondents, and give them a reasonable chance to test the evidence in accordance with the rules of natural justice. Therefore, the Court of appeal was right in taking the view that in the departmental enquiry which the appellant held against the respondents it was not open to the appellant to act on suspicion, and inasmuch as the appellant's decision was based only upon the detention orders and nothing else, there could be little doubt that the said conclusion was based on suspicion and nothing more. [ 459E-H]

Case law referred to : G An obligation to hold such an enquiry is also imposed on the employer by cl. 36(3) of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951, and cl. 45(6) of the Scheme of- 1956.

[459G]

CIVIL APPELLATE JurusmCTION: Civil Appeals Nos. 569 to 571 of 1964.

B Appeals from the judgment and orders dated August 4, 1961 of the Calcutta High Court in Appeals from Original Orders Nos.

22. 29 and 30 of 1959.

B. Sen and S. N. Mukheriee, for the appellants.

K. R. Chaudhuri, for the respondents.

The Judgment of the Court was delivered by Gajendragadkar,' C. J. These three appeals arise out of writ petitions filed by the three respondents, Jaffar Bnndaban Nayak and Jambu Patra, respectively on the Ongmal Side of the Calcutta High Court against the appellant, the Calcutta Dock Labour Board. Each one of the respondents challenged the validity of t)ie order passed by the appellant, terminating his employment as a registered dock worker with the appellant, on the ground that the said order was illegal and inoperative. The basis on which the impugned orders were challenged was that the enquiry which had been held before passing the said orders had not afforded to the respondents a reasonable opportunity to defend themselves and as such, the principles of natural justice had not been followed and even the relevant statutory provisions had been contravened. The writ petitions filed by Jaffar Imam and Jambu Patra were heard by.

Sinha, J., whereas the writ petition filed by Bridaban Nayak was heard by P.B. Mukherji, J. The learned single Judges who heard these respective writ petitions substantially took the same view and rejected the contentions raised by the respondents. In the result, the writ petitions were dismissed.

Against these decisions, the respondents preferred appeals befol'e a Division Bench of the Calcutta High Court. The Division Bench has allowed the appeals and has issued an appropriate writ directing that the impugned orders by which the employment of the respondents was terminated by the appellant should be quashed.

The appellant then applied for and obtained a certificate from the said High Court and it is with the certificate thus granted to it that it has come to this Court in appeal.

It appears that the three respondents were Dock workers attached to the Port of Calcutta and were registered in the Reserve Pool. On August 12, 1955, the Commissioner of Police, Calcutta, passed an order under s. 3(1)(a)(ii) of the Preventive Detention Act,

1950 (No. 4 of 1950) (hereinafter called 'the Act'} directing that the respondents should be detained, as he was satisfied that they were guilty of violent and riotous behaviour and had committed assault and as such, it was necessary to detain them with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. The respondents then made representaticns to the State Government under s. 7 of the Act alleging that the grounds set out in the detention orders passed against them were untrue and that their detention was in fact malafide.

On receipt of these representations, they were forwarded by the State Government to the Advisory Board under s. 9. It is wellknown that the Act had made a provision for referring orders of detention to the Advisory Boards constituted under s. 8. When the

Adviso_ry received the representations. made by ihe respon- . dents, .1t took mto a?count the material placed before it, considered

the said representat10ns, and submitted its report within the time

OALCUTr1. DOCK LABOUR llOAIID v. JAFFAII IMAM (GajendragaJkar, O.J.) 456

specified by s. 10(!). Since the report was against the respondents, their detention was confirmed by the State Government under s. 11 of the Act and in consequence, their detention was continued for about 11 months.

After they were released from detention, they applied for allocation to registered dock employment, but instead of passing orders in favour of such allocation, the appellant commenced disciplinary proceedings against them and not; ces were served on them to show cause why their services should not be terminated on 14 days' notice in terms of clause 36(2)(d) of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951 (hereinafter called "the Scheme"). The principal ground in these notices was that the respondents had been detained for acts prejudicial to the maintenance of public order and as such, their services were liable to be terminated. Accordingly, the respondents showed cause against the proposed order, but the Deputy Cha 'rman of the appellant was not satisfied with their representations, and so, he terminated their services on December 17, 1956. While doing so, each one of them was given 14 days' wages in lieu of notice for the equivalent period. The respondents challenged this decision by preferring appeals to the Chairman of the appellant, but their appeals did not succeed and the orders passed by the Deputy Chairman were confirmed on April 4, 1957. It is against these appellate orders that the respondents filed the three writ petitions which have given rise to the present appeals.

It is plain that both the Deputy Chairman who passed the impugned orders against the respondents, and the Chairman of the appellant who heard the respondents' appeals, have taken the v:ew that the orders of detention passed against the respohdents, in substance, amounted to orders of conviction and as such, the appellant was justified in terminating the respondents' employment. Both the original as well as the appellate orders nnequivocally state that having regard to the fact that the respondents had been detained, and that their detention was confirmed and continued after consultation with the Advisory Board, it is clear that they were guilty of the conduct alleged against them in the orders. of detention. In

that connection. it was pointed out that the Advisory Board consisted of persons of eminent status and undoubted impartiality, and so, the fact that the representations made by the respondents were

not accepted by the Advisory Board and that their detention was confirmed by the State Government in consultation with the Advisory Board, was enough to justify the appellant in terminating the employment of the respondents.

The two learned single Judges who heard the respective writ petitions substantially took the same view. Sinha, J. has observed that the respondents had a hearing before a very responsible body and the report that went against them showed that the detain!ng authority was justified in holding that the respondents were gmlty

of the charges and had thus. committed acts of ii1discipline and A misconduct within the meaning of the Scheme. In fact, Sinha J., felt no hesitation in holding that the appellant would be entitled to take disciplinary action against the respondents upon suspicion, and he held that the appellant's susp'cion against the respondent5 was more than justified by the fact that the detention of the respondents received the approval of the Advisory Board. P.B. Mukherjee, J., B also approached the question on the same lines. He held that the appellant was entitled to take into consideration the fact that the respondents had been detained, that the statutory Advisory Board had considered the representat'ons of the respondents and had not accepted them, and that the grounds of detention showed that the detaining authority was satisfied that the respondents were guilty C of the conduct which was prejudicial to the maintenance of public order. "In the premises", sa; d the learned Judge, "I am satisfied that the order terminating Brindaban Nayak's services was justified".

The Conrt of Appeal which heard the three appeals filed by the respondents against the respective orders passed by the two learned single Judges has disagreed with the approach adopted by them in d; smissing the respondents' writ petitions. It has held that in acting merely on suspicion based on the fact that the respondents had been detained, the appellant had acted illegally and that made the impugned orders invalid and inoperative. Mr. B. Sen for the appellant contends that the view taken by the Court of Appeal is erroneous in law.

Before dealing with this point, it would be useful to refer to the relevant provisions of the Scheme. The Scheme has been made

by the Central Government in exercise of the powers conferred on F it by sub-s. (I) of s. 4 of the Dock Workers (Regulation of Employment) Act, 1948 (IX of 1948). Clause 3(n) defines a "reserve pool" as mean'ng a pool of registered dock workers who are available for work, and who are not, for the time being, in the employmerrt of a registered employer as a monthly worker. The three respondents belong to this category of workers. Clause 23 of the Scheme guaran- G tees the specified minimum wages to workers on the Reserve Pool Register. Clause 29 prescribes the obligations of registered dock wo.rkers, whereas clause 30 provides for the obligations of registered employers. Clause 31 prescribes restriction on employment, Clause 33 deals with wages, allowances and other conditions of service, whereas clause 34 is concerned with pay in respect of un- H employment or underemployment. Clause 36 deals with. disciplinary procedure and it is with this clause that we are directly concerned in these appeals. Clause 36(2) provides that a registered dock worker in the Reserve Pool who is avaHable for work and fails to comp!.\'. w!th. ai:iy of the_ provisions of the Scheme, or commits any act md1sc1plme or ma.\'. be_ reported in writing to the Special Officer, who may, after mvest1gatmg the matter and without prejudice to in addition to the powers conferred by clause 35,

CALCUTTA DOCK LABOUR BOARD v. JAFFA& IMAM(Gajeridragadkar, C.J.) 457

A take any of the five steps indicated by sub-clauses (a) to (e) as regards that worker. Sub-clause (e) refers to dismissal of the guilty workman. Clause 36(3) lays down that before any action is taken under sub-cl. (!) or (2), the person concerned shall be given an opportunity to show cause why the proposed action should not be taken against him. Clause 36A provides for the disciplinary powers B of the Chairman of the Board. Clause 37 deals with termination of employment. Clauses 38 and 39 provide for appeals. That, in brief, is the nature of the Scheme. This Scheme was substituted by another Scheme in 1956. Clause 45(6) of !h's new Scheme corresponds to

cl. 36(3) of the earlier Scheme. In other words, the relevant clauses under both the Schemes require that before any disciplinary action C is taken against a worker, an opportunity must be given to him to show cause why the proposed action should not be taken against him.

There can be no doubt that when the appellant purports to exercise its authority to terminate the employment of its employees D such as the respondents in the present case, it is exercising authority and power of a quasi-judicial character. In cases where a statutory body or authority is empowered to terminate the employment of its employees, the said authority or body cannot be heard to say that it will exercise its powers without due regard to the principles of natural justice. The nature or the character of the proceedings E which such a statutory authority or body must adopt in exercising its disciplinary power for the purpose of terminating the employment of its employees, has been recently considered by this Court in several cases, vide the Associated Cement Companies Ltd.,

v. P. N. Sharma & Another,(') and Lala Shri Bhagwan and Another

v. Shri Ram Chand & Anr.,(') and it has been held that in ascertain F ing the nature of such proceedings with a view to decide whether the principles of natural justice ought to be followed or not, the tests laid down by Lord Reid in Ridge v. Baldwin & Others(') are relevant. In view of these decisions, Mr. Sen has not disputed this position and we think, rightly. ·

G Therefore, the question which falls to be considered is whether the appellant can successfully contend that it was justified in acting upon suspicion against the respondents, the basis for the suspicion being that they were detained by orders passed by the appropriate authorities and that the said orders were confirmed by the State Government after consultation with the Advisory Board. It is hard- H ly necessary to emphasise that one of the basic postulates of the rule of law as administered in a democratic country governed by a written Constitution, is that no citizen shall lose his liberty without

a fair and proper trial according to law; and legal and proper trial

(1) [1965] 2 S.C.R. 366.

(') [1965] 3 R.C.R. 218.

(') L.R. [J9C.>] A. C. 40.

8UPRE?4E COURT REPORTS

(1965) .3 S.O • .B.

according to Jaw inevitably ineans, inter alia, rl trial held ill accor-

JI; dance with the relevant statuiory provisions or in their absence, consistc:1tly. with the principles of natural justice. The Act is an exception to this rule and in that sense, it am"mints to. an encroachment on the I'berty of the citizen. But the said Act has been held to be constitutionally valid, and so far as detention of a citizen effecJed by an order validly passed bY. the appropriate authorities in exercise B of the powers confer.red on , th.em is concerned, its validity can be challenged only on grounds permissible in the light of the relevant provisions' pf the Act. or on the ground of malafides. Whenever detenus move the High Courts or the Supreme Court challenging the validity of the orders"of detention passt<CI against them, the scope of the. enquiry which can be legitimately held in such pro- C ceeaings is thus circumscribed and limited. In such proceedmgs, Courts cannot entertain the plea that the of liberty suffered. by - the detenu by his detention is the result of mere suspicions entertained by the detaining authorities, provided the detaining authorities act bona fide; their subjective judgment about the prejudicial character of the activities or conduct of the citizen sought to be D detained, is not open to challenge or scrutiny in ordinary course, and in that sense, it may have to be conceded that the.loss of liberty has to be suffered by a citizen if he is detained validly under the relevant provisions of the Act. Thus far, there is no dispute.

A But the question wIµch we have to consider in the present ap- E peals is of a different character. A citizen may suffer loss of liberty if he is detained validly under the Act; even so, does it follow that the detenion order which deprived the citizen of his liberty should also serve indirectly but effectively the purpose of depriving the said citizen of his livelihood?· If the view taken by the appellanrs officers who tried the diss:iplinary proceedings. is accepted, it would F follow that if a citizen is detained and his detention is confirmed by the State Government, his services .would be terminated merely and splely by reason of such detention. In our opinion, such a position is , obviously and demonstrably inconsistent with the elementary 'concept of the rule of law on which our constitution is founded.

When a citizen is cjetained, he may not succeed in .challenging the G order of detention passed against liim, unless he is able to adduce grounds permissible under the Act. But we are:-unable to agree with Mr. Sen's argument that after. such a citizen is released from detention, an 'employer, like the appellant, can immediately start disci-. plinary proceedings against him and tell him in substance that he was detained for prejudicial activities which amount to misconduct H and that the detention order was confirmed by the State Government after consultation with the Advisory Board, and so, he is liable to be dismissed from his employment. It. is obvious that the

Advisory Board does not try question about the propriety or validity of the citizen's detention as a Court-of law would; indeed, its function is limited to consider the relevant material p)aced before it and the received from the detenu, and then submit -

I 1

0.U.CUTl'A DOCK LABOUR BOARD t•, JAFFAR IMAM (Gajendragadkar, C.J.) 459

its report to the State Government within the time specified by s. l 0(1) of the Act. It is not disputed that the Advisory Board considers evidence against the detenu which has not been tested in the normal way by cross-examination; its decision is essentially different in character from a judicial or quasi-judicial decision. In some cases, a detenu may be given a hearing; but such a hearing is often, if not always, likely to be ineffective, because the detenu is deprived of an opportunity to cross examine the evidence on which. the detaining authorities rely and may not be able to adduce evidence before the Advisory Board to rebut the allegations made against him.

Having regard to the nature of the enquiry which the Advisory Board is authorised or permitted to hold before expressing its approval to the detention of a detenu, it would, we think, be entirely erroneous and wholly unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal The main infirmity which has vitiated the impugned orders arises from the fact that the said orders equate detention of a detenu with his conviction by a criminal court. We are, therefore, satisfied that the Court of Appeal was right in taking the view that in a departmental enquiry which the appellant held against the respondents it was not open to the appellant to act on suspicion, and inasmuch as the appellant's decision is clearly based upon tjie detention orders and nothing else, there can be little doubt that, in substance, the said conclusion is based on suspicion and nothing more.

Even in regard to its employees who may have been detained under the Act, if after their release the appellant wanted to take disciplinary action against them on the ground that they were guilty of misconduct, it was absolutely essential that the appellant should have held a proper enquiry. At this enquiry, reasonable opportunity should have been given to the respondents to show cause and before reaching its conclusion, the appellant was bound to lead evidence against the respondents, give them a reasonable chance to test the said evidence, allow them liberty to lead evidence in defence, and then come to a decision of its own. Such an enquiry is prescribed by the requirements of natural justice and an obligation to hold such an enquiry is also imposed on the appellant by clause

36(3) of the Scheme of 1951 and cl. 45(6) of the Scheme of 1956.

It that in the present enquiry, the respondents were not given notice of any specific allegations made against them, and the record clearly shows that no evidence was led in the enquiry at all.

It is only the detention orders that were apparently produced and it is on the detention orders alone that the whole proceedings rest and the impugned orders are founded. That being so, we feel no hesitation in holding that the Court of Appeal was pedectly right in setting aside the respect!ve orders passed by the two learned single Judges when they dismissed the three writ petitions filed by the respondents.

Mr. Sen strenuously contended that if we were to insist upon a proper enquiry being held against the respondents before terminating their services, the appellant would find it impossible to take A any disciplinary action against them. He urges that the respondents

are bullies and they have terrorised their co-workers to such an extent that no one would be willing or prepared to give evidence against them in a departmental enquiry. Even assuming that Mr. Sen is right that the appellant would experience difficulty in bringing home its charges to the respondents, we do not see how such a fear B could justify the approach adopted by the enquiry officer in the present case. What would happen if a desperate character who is m the employment of the appellant had not been detained under the Act? In such a case, before -the appellant can validly dismiss such an employee, it will have to hold a proper enquiry. The circumstance that the respondents happened to be detained can afford no C justification for not complying with the relevant statutory provision and not following the principles of natural justice. Any attempt to short-circuit the procedure based on considerations of natural justice must, we think, be discouraged if the rule of law has to prevaif,. and in dealing with the question of the liberty and livelihood of a citizen, considerations of expediency which are not permitted by D law can have no relevance whatever.

The result is, the appeals fail and are dismissed with costs.

Appeals dismissed.