judgement:
Appeals Nos. 244 and 245 of 1954.
Appeals from the judgment and order dated August 19, 1952, of the Labour Appellate Tribunal of India (Calcutta) at Allahabad in Miscellaneous Cases Nos, C 91 and 93 of 1952.
919 N. C. Chatterji, H. J. Umrigar, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellant in both appeals.
Purshottam Tricumdas, R. Ganapathy Iyer and B. P. Maheshwari, for respondents in both appeals.
M. C. Setalvad, Attorney General for India, Porus A. Mehta and R. H. Dhebar, for the Intervener.
October 24.
The Judgment of the Court was delivered by BHAGWATI J.
These two appeals :by special leave arise out of an order of the Labour Appellate Tribunal of India, Lucknow Bench, by which it dismissed the application of the appellant under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, hereinafter referred to as the Act for permission to dismiss the respondents from its employ and allowed the application of the respondents under section 23 of the Act for reinstatement.
The respondents are 76 employees of the appellant, a limited company of Sugar Mills, situated in village Chitauni in the district of Deoria and were working in the engineering department of the mills in the mill house, boiling house and the workshop sections.
There were disputes between the appellant and its workmen and, on the date in question, i.e., May 27, 1952, there was pending before the Labour Appellate Tribunal an appeal which was registered as Cal 101/51.
It appears that one Motilal Singh, an employee of the appellant, had been dismissed by it sometime prior thereto and he had been inciting the workmen to make common cause with him, and, at a meeting held the previous night, some sort of action had been decided upon.
When the workmen of the appellant entered the mills on the morning of May 27, 1952, these 76 workmen, though they entered their respective sections of the engineering department, did not commence any work from 7 a.m. as they should have done.
The sectional engineers in charge asked these workmen as to why they did not commence their work and became a ware of their intention to resort 920 to a tools down strike.
They reported the fact to the Chief Engineer who sent a slip to the General Manager informing him that the workers had gone on a tools down strike.
The General.
Manager thereupon personally went to the workshop, mill house and the boiling house and asked these workmen not to resort to such strike but the latter did not pay any heed to his advice.
The General Manager then asked the Chief Engineer to persuade these workmen to commence the work, give them time for about 2 hours till 10 30 a.m. and report to him if, in spite of his persuasions, they did not commence work.
The persuasions of the Chief Engineer and also of the section engineers proved of no avail and the 76 workmen persisted in their attitude with the result that the section engineers made their reports to the General Manager through the Chief Engineer giving the names of the workmen belonging to their respective sections who had resorted to the tools down strike with effect from 7 a.m. that day.
These reports were endorsed by the Chief Engineer and passed on to the General Manager who,in his turn, passed an order at about 10 30 a.m. suspending these 76 workmen till further orders.
The order for suspension was communicated to these workmen through their sectional heads and was also pasted on the notice board of the mills.
There was a recess between 11 a.m. and 1 p.m. and when the gates were opened at 1 p.m. these 76 workmen, in spite of the warnings of the gatekeepers and Jemadar to the contrary, rushed into the mills, entered their respective sections and adopted a threatening attitude.
The sectional engineers made reports to the General Manager in regard to this occurrence and these reports also were endorsed by the Chief Engineer and passed on by him to the General Manager.
The situation which was created by these workmen by forcibly entering their respective sections and continuing there threatening violence was explosive and the management had to call in the police in order to avert violence and damage to the property.
The police came in at 5 p.m. and order appears to have been restored.
There was no untoward incident that day 921 but the management appears to have viewed the situation with, seriousness and approached the Regional Conciliation Officer the next day in order to ask for advice in regard to the dismissal of these workmen.
The Regional Conciliation Officer, however, pointed out to the General Manager that, in view of the pendency of the appeal before the Labour Appel, late Tribunal, he had no jurisdiction to entertain any application for such permission and referred the General Manager to the Labour Appellate Tribunal.
The workmen, on the other hand, got a letter dated May 28, 1952, addressed to the General Manager by the General Secretary of the Chini Mill Mazdoor Sangh to the effect that they had gone to the gates of 'the mills as usual at 7 a.m. that day to attend to their work but they were not allowed to enter the mill pre mises.
They charged the management with the intention to victimise them on the charge of a tools down strike and stated that they had neither struck nor intended to strike but had been prevented from attending to their work and had therefore been advised to go back to their quarters with a view to maintain peace.
The last paragraph of that letter was very significant.
The General Manager was told that if he did not mend his illegal mistakes and did not take the workmen back on duty he would be responsible for any breach of peace.
After receipt of that letter it was evident that the workmen would resort to violent measures in order to attend to their work and a breach of peace was apprehended.
The management evidently continued the police precautions and, after having waited for some time, the General Manager furnished to these 76 workmen on June 2, 1952, a charge sheet wherein he charged them with having committed misconduct within the meaning of cl.
L. I (a) and (b) and wailful insubordination within the meaning of el.
L. I (a), (b) and (w) of the Standing Orders.
He called upon them to show cause within 24 hours of the receipt of the charge sheet why disciplinary action should not be taken against them and gave them intimation that an open enquiry in connection with the said charges 120 922 would be held by him at 8 a.m. on June 6, 1952.
He also intimated that if all the workmen arranged to present themselves earlier than June 6, 1952, he would take up the said enquiry earlier provided, however, an intimation was received to that effect from them or from their Union.
The workmen were to remain suspended till the enquiry was finished.
The workmen addressed uniform letters to the General Manager denying that there was any tools down strike on May 27, 1952, and alleging that the sectional heads and the Chief Engineer bad conspired together "under some mysterious preconceived plans" and stated that no useful purpose would be served by holding an enquiry on the 1 1 th day of their suspension.
They pointed out that such indefinite period of suspension during the pendency of the appeal before the Labour Appellate Tribunal and Reconciliation Board was illegal and unjustified and was in utter disregard of the Standing Orders.
By their further letter dated June 5, 1952, similarly addressed to the General Manager, they voiced their apprehension that they would not get any justice from an enquiry held by the management itself and asked for investigation by an impartial tribunal.
The management, however, held the enquiry as intimated at 8 a.m. on June 6, 1952.
The workmen non co operated and did not present themselves at the enquiry.
The General Manager immediately addressed a letter to these workmen putting on record that in spite of the orders conveyed by him earlier the workmen had disobeyed the.
same and had not appeared at the appointed time and place for the enquiry into the tools down strike.
He pointed out that by not appearing in this manner they had made themselves liable to dismissal for insubordination, and intimated that the management was applying to the proper authorities for permission to dismiss them pending receipt of which the workmen would remain under suspension.
This letter was received by the workmen at 9 a.m. that day and they replied through the General Secretary of the Chini Mill Mazdoor Sangh repeating that a demand had been made for an 923 investigation by an impartial tribunal and in so far as no impartial tribunal had been appointed they were not agreeable to present themselves and submit their defence at the enquiry which was conducted by the management itself.
The appellant thereafter made the necessary application under section 22 of the Act before the Labour Appellate Tribunal of India, Lucknow Bench, for permission to dismiss these 76 workmen.
In the affidavit which was filed in support of that application, all the facts herein before mentioned were set out in extenso and it was pointed out that the management, after giving full consideration to the explanations and offering every possible opportunity to these workmen to explain their conduct coupled with the unreasonable attitude adopted by them, had adjudged them guilty of misconduct under cl.
L. I (a), (b) and (w) of the Standing Orders and considered that any further employment of these workmen would be extremely detrimental to discipline and dangerous in the interests of the industry.
The workmen, in their turn, filed on June 9, 1952, an application under section 23 of the Act for requisite action to be taken against the appellant for having contravened section 22(b) of the Act by inflicting on them the punishment in the shape of harassment by resorting to an illegal lookout for an indefinite period with effect from May 27, 1952, without obtaining the prior permission of the , Labour Appellate Tribunal and "thereby acting contrary to law and resorting to mala fide actions in direct violation of the provisions of the Standing Orders in continuation of the management 's anti trade (Union) activities".
Counter affidavits were made by the workmen as also the management in reply to both the above applications.
The Labour Appellate Tribunal held that the appellant did not act in strict compliance with cl.
L. 12 of the Standing Orders and was, therefore, not entitled to ask for permission to dismiss the 76 workmen.
It accordingly dismissed the appellant 's application under section 22 of the Act.
In regard to the application of the workmen under section 23 of the Act, it held 924 that the wholesale suspension of the 76 workmen and their prevention from resuming work at I p.m. after the lunch hour amounted to a lockout and that this conduct of the appellant amounted to punishment of the workers whether by dismissal or otherwise and was, therefore, in contravention of section 22(b) of the Act.
It accordingly ordered the reinstatement of the workmen if they presented themselves at the office of the General Manager during office hours on any day within 15 days of the order and also ordered payment of half the salary and allowances for the period of non payment, viz., from the date of their suspension up to the date on which they were taken back in service.
Shri N. C. Chatterjee for the appellant before us has strenuously urged that the workmen had resorted to the tools down strike which was an illegal strike and that the appellant was well within its rights in suspending the pending enquiry and also pending the application for permission to dismiss them made before the Labour Appellate Tribunal.
Even if it be held that the appellant had declared a lockout, such a lockout was in consequence of the illegal strike resorted to by the workmen and could not be deemed to be illegal.
He further urged that the management had held an enquiry into the illegal strike which had been resorted to by the workmen and found that the workmen were guilty of misconduct and insubordination within the meaning of cl.
L. I (a), (b) and (w) of the Standing Orders and the appellant rightly came to the conclusion that any further employment of these workmen would be extremely detrimental to discipline and dangerous in the interests of the indus try.
He also contended that the delay in holding the enquiry was not unreasonable and the suspension of the workmen pending enquiry for more than four days was due to sufficient reason, the atmosphere created by the non cooperation of the workers being so tense as not being appropriate for the holding of an enquiry within those four days, that there was no breach of cl.
L. 12 of the Standing Orders and that the Labour Appellate Tribunal was in error when it 925 refused to grant the application under section 22 of the Act.
Civil Appeal No. 245 of 1954 which is directed against the order of the Labour Appellate Tribunal under section 23 of the Act may be disposed of at once.
The Labour Appellate Tribunal was of opinion that the conduct of the appellant in preventing the workmen from continuing work after I p.m. on May 27, 1952, came within the definition of a lockout and the workmen being employed in a public utility concern such lockout would be illegal without a proper notice.
It was further of opinion that this conduct amounted to punishment of a worker whether by dismissal or otherwise and was, therefore, in contravention of section 22(b) of the Act.
This conclusion of the Labour Appellate Tribunal was, in our opinion, based on a misapprehension of the whole position.
The position had been summed up by the Labour Appellate Tribunal in the following words: "As a matter of fact the management never thought of a lockout.
Their idea was to suspend the suspected persons pending enquiry for which they gave a notice".
If this was the correct position, the conclusion reached by the Labour Appellate Tribunal that the conduct of the management came within the definition of a lockout was absolutely unjustifiable.
The Labour Appellate Tribunal recorded its inability to come to a definite finding as to what was the position which obtained on May 27, 1952.
It observed "We have got a number of affidavits in support of the parties ' case and there is oath against oath.
We do not find ourselves in a position to hold definitely as to what was the exact situation.
But it does appear to us that a mountain has been made of a mole hill and conclusions have been arrived at without going deep into the matter".
Even if the parties had made a mountain of a mole hill and had reached conclusions without going deep into the matter, it was certainly the business of the Labour Appellate Tribunal itself to record a finding of fact in regard to the situation as it obtained on 926 that day.
This unfortunately the Labour Appellate Tribunal did not do and it came to record its conclusion, that the conduct of the management came within the definition of a lockout without realizing that such conclusion was inconsistent with what it ' had stated a little earlier that the management as a matter of fact never thought of a lockout.
We have been taken through the whole evidence by the learned counsel for the appellant and there is clear documentary evidence to show that the 76 workmen resorted to a tools down strike from 7 a.m. on May 27, 1952.
The reports which were made by the section engineers and sent to the General Manager through the Chief Engineer were clear and categoric in regard to such tools down strike having been resorted to by the workmen in question and the list of the 76 workmen which was prepared by the General Manager ordering their suspension was based on those reports.
The further reports which were made by the section engineers again sent by them to the General Manager through the Chief Engineer in the afternoon of May 27, 1952, also were clear and categoric in regard to the said workmen having been asked not to enter the workshop, the boiling house and the mill house at 1 p.m. but their having entered the same threatening violence.
A faint attempt was made to charge the section engineers and the Chief Engineer with having conspired "under some mysterious preconceived plans" but the same rested merely on a bare allegation and was not substantiated by any tangible evidence.
Even though there was some conflict of evidence in regard to the time when the notice of suspension was given by the General Manager to these workmen and when the notice in that behalf was pasted on the notice board of the appellant, it is abundantly clear on the documentary evidence above referred to that the 76 workmen resorted to a tools down strike from 7 a.m. on the morning of May 27, 1952, that they were suspended till further orders immediately after the receipt by the General Manager of the first series of reports from the section engineers, that they were prevented from entering the premises 927 at I p.m. but entered the same threatening violence.
If this is the true position it follows that there was no lockout declared by the appellant, much less an illegal lockout.
The workmen bad resorted to an illegal strike and the General Manager rightly ordered that the workmen indulging in such strike should be suspended pending further orders which obviously meant pending enquiry into their conduct and the obtaining of the permission to.
dismiss them as a result of such enquiry if the management thought fit.
If there was thus no illegal lockout at all, the conclusion reached by the Labour Appellate Tribunal in that behalf was absolutely unjustified.
Even if there had been a lockout as concluded by the Labour Appellate Tribunal the same was in consequence of the illegal strike which had been resorted to by these workmen and could not by virtue of section 24(3) of the , be deemed to be illegal.
There is, however, a more fundamental objection that, even if the appellant be held responsible for having declared an illegal lockout, the lockout would not come within the ban of section 22 of the Act.
The Labour Appellate Tribunal had before it an earlier decision of its own in Jute Workers Federation, Calcutta vs Clive Jute Mills(1), in which the same question had beed considered with reference to section 33 of the .
In that case, a lockout had been declared which involved 4,000 workers of the company and a preliminary contention was urged that there was no contravention of the provisions of section 33 of the .
The Labour Appellate Tribunal considered the question whether the lockout had (1) in fact altered the conditions of service of the workmen to their prejudice, or (2) had the effect of discharge, or (3) amounted to punishment of the workmen.
It came to the conclusion that a lockout had not the effect of a discharge, for a lockout does not automatically terminate the services of the workmen.
It did not also amount to punishment, for punishment presup (1) [1951] II L.L.J. 344.
928 poses an offence or misconduct.
A lockout is generally adopted as a security measure and may in certain cases be used as a weapon corresponding to what the employees have in the shape of a strike and that, therefore, a. 33(b) would not be contravened by the company by.
declaring a lockout.
The Labour Appellate Tribunal then considered whether a lockout would attract the operation of section 33(a).
It was of opinion that no automatic termination of the services of the employees was brought about by a lockout and the question was whether any of the conditions of service was altered thereby to their prejudice.
The contention of the Union was that the conditions of service were altered to the prejudice of the workmen because those employees did, not in fact get their pay during the period of the lockout with the possibility of losing it.
This contention was negatived and the Labour Appellate Tribunal was of opinion that the conditions of their service would be altered by the lockout if the employees lost their right to receive their pay during the period of lockout in 'all circumstances but the question whether they would be entitled to get their pay during that period could not be postulated with certainty for that would depend on a variety of considerations.
In the opinion of the Labour Appellate Tribunal to bring a case within section 33(a), the questioned act of the employer must directly and in fact alter the conditions of service to the prejudice of the workmen concerned, that is to say, the moment the lockout was declared.
The possibility that they may or may not get their pay meant that the lockout may or may not alter the conditions of their service to their prejudice.
Section 33(a) would not, therefore, be attracted by the mere fact of a lockout.
The Labour Appellate Tribunal thus came to the conclusion that neither section 33(a) nor section 33(b) would be contravened by the company in de claring the lockout.
This decision of the Labour.
Appellate Tribunal was followed in Colliery Mazdoor Congress, Asansol, vs New Beerbhoom Coal Co. Ltd.(1) and the Labour (1) 11952] L A.C. 219.
929 Appellate Tribunal there held that a lockout did not come within the ambit of section 33 and, therefore, no permission under that section was required for declaring a lockout.
We agree with the reasoning adopted in the above cases and are of opinion that a lockout is neither an alteration to the prejudice of the workmen of the conditions of service applicable to them within the meaning of cl.
(a) nor a discharge or punishment whether by dismissal or otherwise of the workmen within the meaning of cl.
(b) of section 33 of the , or section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, and that, therefore, no permission of the Conciliation Officer, Board or Tribunal as the case may be is necessary to be obtained before a lockout can be declared.
If the lockout is legal, no question can at all arise.
If, on the other hand,, the lockout is illegal, a remedy is provided in section 26 of the .
The employees affected by a lock out would in any event be entitled to refer the industrial dispute arising between themselves and the employer for adjudication by adopting the proper procedure in regard thereto.
The Labour Appellate Tribunal was, therefore, clearly in error when it came to the conclusion that the conduct of the appellant came within the definition of a lockout and that it amounted to punishment of the workmen whether by dismissal or otherwise and was, therefore, in contravention of s, 22(b) of the Act.
The application of the respondents under section 23 of the Act was accordingly liable to be dismissed and should have been dismissed by the Labour Appellate Tribunal.
Civil Appeal No. 245 of 1954 will, therefore, be allowed and the order of the Labour Appellate Tribunal reinstating the respondents in the service of the appellant will be set aside.
Coming now to Civil Appeal No. 244 of 1954, the first question to determine is whether the respondents had resorted to an illegal strike.
We have already pointed out the circumstances under which the 76 workmen resorted to the tools down strike from 7 a.m. on May 27, 1952, and recorded the finding 121 930 that they not only resorted to such strike but persisted in their attitude in spite of the persuasions of the Chief Engineer and the General Manager of the appellant.
The appellant having been declared a public utility concern, the workmen were not entitled to resort to such strike without giving to the appellant notice of the strike in terms of section 22(1) of the , and the tools down strike which was resorted to by them was, therefore, an illegal strike.
The fact that the strike was of a short duration viz., from 7 a.m. till 10 30 a.m. would not exculpate the respondents from the consequence" of having resorted to such illegal strike, the avowed intention of the strikers being not to resume work until their pre concerted plan conceived at, the meeting held on the previous night was carried out.
The strike resorted to by the workmen was of an indefinite duration.
and the management, having failed in its attempts to persuade the workmen to resume their work was well within its rights to suspend these workmen pending further orders.
(Vide Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham ' and Carnatic Co. Ltd.(1)).
The Labour Appellate Tribunal did not decide this issue at all but only considered the alleged non compliance by the appellant of cl.
L. 12 of the Standing Orders as determinative of the whole enquiry before it observing that "although the delay (in holding the enquiry) was not unreasonable, there was no doubt that the management did violate the letter of the rule".
It further observed that there was no sufficient reason indicated for extending the period of suspension beyond the period of four days provided in cl.
L. 12 of the Standing Orders, the tension created by the non co operation of the workers not having been considered sufficient to preclude the management from collecting materials for conducting the enquiry within the said period of 4 days, This reasoning of the Labour Appellate Tribunal was unsound.
Having once come to the conclusion that the delay was not unreasonable, there was no justification for the further (1) ; 931 conclusion reached by the Labour Appellate Tribunal that the tension created by the non co operation of the workers was not a sufficient reason for extending the period of such suspension.
The workmen had forcibly entered the premises of the mills in spite of the warnings of the watchmen and the Jemadar and had also entered the workshop, the boiling house and the mill house and continued to stay there threatening violence.
In their letter dated June 3, 1952, they had also threatened the General Manager that if he did not mend his illegal mistakes and did not take the workmen back on duty be would be responsible for any breach of peace.
This was enough evidence of their mentality and the management naturally enough apprehended breach of peace at the hands of these workmen.
If this was the tense atmosphere created by the non co operation of the workmen, the management was perfectly justified in postponing the enquiry by a few days and continuing the workmen under sus pension.
The delay which was thus caused in furnishing the charge sheets and giving notice of the enquiry to these workmen on June 2, 1952, was, therefore, sufficiently explained and if there was any one responsible for this.
delay it was the workmen and not the management.
It did not then lie in the mouth of the workmen to protest against this delay in the enquiry and trot out their suspension for a period exceeding four day 's as an excuse for abstaining from the enquiry.
As a matter of fact, the management intimated to the workmen that in spite of June 6, 1952, having been fixed as the date for the open enquiry, the management would be prepared to take up the enquiry earlier provided an intimation was received either from the workmen or from their Union to that effect.
Instead of responding to this gesture of the appellant the workmen persisted in asking for an independent enquiry and non co operated with the management in the enquiry which was ultimately held by it as notified at 8 a.m. on June 6, 1952.
We are of opinion that under the circumstances the appellant was not guilty of having contravened el.
L. 12 of the Standing Orders and the Labour Appellate 932 Tribunal was in error when it came to the contrary conclusion and dismissed the application of the appellant under section 22 merely on that ground without making any further enquiry into the circumstances of the case.
It appears that the Labour Appellate Tribunal was driven to take this step because it found itself unable to hold definitely as to what was the exact situation on May 27, 1952.
We shall only observe that if the Labour Appellate Tribunal had really ap plied its mind to the question it would have come to the conclusion that the respondents in fact did resort to the illegal strike from 7 a.m. on May 27, 1952, and that there was no contravention of cl.
L. 12 of the Standing Orders by the appellant.
The next question that falls to be determined is whether the enquiry which was held by the management on June 6, 1952, was a fair enquiry and whether the General Manager observed the principles of natural justice in the conduct of that enquiry Due notice of the enquiry was given to the respondents by the letter of the management addressed to them on June 2, 1952, and if the respondents did not avail themselves of the opportunity of presenting themselves and defending their action at the enquiry they had only themselves to blame for it.
It was within the province of the management to hold such an enquiry after giving due notice thereof to the respondents and to come to its own conclusion as a result of such enquiry whether the respondents were guilty of the charges which had been leveled against them.
If full and free opportunity was given to the respondents to present themselves at the enquiry and defend themselves it could not be said that the enquiry was anything but fair.
No principles of natural justice were violated and the management was at liberty to come to its own conclusions in regard to the culpability of the respondents and also to determine what punishment should be meted out to the respondents for the misconduct and insubordination proved against them.
If the ban which is imposed by section 22 of the Act had not been in existence, the management would have been entitled to impose the punishment on the 933 respondents and dismiss them without anything more, if it honestly came to the conclusion that dismissal of these workmen was the only punishment which should be meted out to them in all the circumstances of the case.
The respondents would no doubt then have been entitled to refer the industrial dispute which arose out of their dismissal for adjudication by adopting the proper procedure set out in the , and the Industrial Tribunal appointed by the Government for the adjudication of such dispute would have been in a position to thrash out all the circumstances and award to them the appropriate relief This course was, however, not open to the appellant by reason of the pendency of the appeal before the Labour Appellate Tribunal and the only thing which the appellant could do, therefore, was, after coming to its own conclusion as a result of such enquiry, to apply to the Labour Appellate Tribunal under s.22 of the Act for permission to dismiss the respondents and this the appellant did on June 8, 1952.
It was not open to the respondents then, having regard to the attitude which they had adopted throughout in relation to the said enquiry, to urge that the enquiry was not fair or impartial or that the principles of natural justice had been violated by the General Manager of the appellant in the conduct of the enquiry.
It was, however, urged on behalf of the respondents that the suspension for an indefinite period beyond the period of four days provided in cl.
L. 12 of the Standing Orders was a punitive measure and the appellant was not justified in imposing that punishment on them without the permission of the Labour Appellate Tribunal.
It was contended that such suspension involved loss of pay by the respondents and being of an indefinite duration inflicted such harassment on them that it could not be deemed to be anything except a punishment.
We do not accept this contention.
It has been rightly held by the Labour Appellate Tribunal that suspension without pay pending enquiry as also pending permission of the Tribunal under the relevant section could not 934 be considered a punishment as such suspension without payment would only be an interim measure and would last till the application for permission to punish the workman was made and the Tribunal bad passed orders thereupon.
If the permission was accorded the workman would not be paid during the period of suspension but if the permission was refused he would have to be paid for the whole period of suspension.
There is nothing like a contingent punishment of a workman and therefore such suspension could not be deemed to be a punishment of the workman at all.
Such suspension would of necessity be of an indefinite duration because to get a written permission of the Tribunal would mean delay and no Tribunal would likely issue any order without notice and without hearing all the parties concerned.
Orders for suspension were meant only as security measures or precau tionary ones taken in the interest of the industry itself or its employees in general.
These measures were sometimes called for immediately after an incident and any delay, however small, might defeat the purpose for which such measures were intended.
It would therefore be necessary to adopt these measures immediately and to suspend the workman pending the enquiry as also the permission to be obtained from the appropriate Tribunal for dismissing him if as a result of the enquiry the, management thought fit to inflict such punishment upon him.
The suspension.
, however, would not be a punishment by itself.
The ordinary dictionary meaning of the word "Punish" is "to cause the offender to suffer for the offence" or "to inflict penalty on the offender" or "to inflict penalty for the offence" (Concise Oxford Dictionary, 4th Ed.).
Punishment can be otherwise defined (Vide Law Lexicon by P.R. Aiyar, 1943 Ed.) as penalty for the transgression.
of law, and the word cc punish" denotes or signifies some offence committed by the person who is punished.
Any action of the employer to the detriment of the workman 's interest would not be punishment so long as no offence was found to have been committed by the workman.
The suspension under such circumstances, therefore, could 935 not be a punishment even though it may be of an indefinite duration and would not attract the operation of section 22 of the Act.
It could not be contended, therefore, that suspension without pay even for an indefinite period pending enquiry or pending the permission of the appropriate Tribunal to dismiss the workman would be a punishment which would require permission under section 22 of the Act before the same could be meted out to the workman.
(Vide Champdany Jute Mills And Certain Workmen(1); Joint Steamer Companies And Their Workmen(2); Assam Oil Co. Ltd. vs Appalswami(3); Standard Vacuum Oil Co. vs Gunaseelan, M. O.(4)).
The scope of the enquiry before the Labour Appellate Tribunal under section 22 of the Act has been the subject matter of decisions by this Court in Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union and Others(5) and The Automobile Products of India Ltd. vs Rukmaji Bala & Others(6).
The Tribunal before whom an application is made under that section has not to adjudicate upon any industrial dispute arising between the employer and the workman but has only got to consider whether the ban which is imposed on the employer in the matter of altering the conditions of employment 'to the prejudice of the workman or his discharge or punishment whether by dismissal or otherwise during tile pendency of the proceedings therein referred to should be lifted.
A prima facie case has to be made out by the employer for the lifting of such ban and the only jurisdiction which the Tribunal has is either to give such permission or to refuse it provided the employer is not acting mala fide or is not resorting to any unfair practice or victimization.
It cannot impose any conditions on the employer before such permission is granted nor can it substitute another prayer for the one which the employer has set out in his application.
If the permission is granted, the ban would be lifted and the employer would be at liberty, if he so chooses thereafter, to deal out the (1) [1952] I L.L.J. 554.
(2) [1954] II L.L.J. 328. ; (4) [1951] II L.L J. 221.
(5) [1954] II L.L.J. 656.
(6) , 936 punishment to the workman.
On such action being taken by the employer the workman would be entitled to raise an industrial dispute which would have to be referred to the appropriate Tribunal for adjudication by the Government on proper steps being taken in that behalf.
When such industrial dispute comes to be adjudicated upon by the appropriate Tribunal, the workman would be entitled to have all the circumstances of the case scrutinized by the Tribu nal and would be entitled to get the appropriate relief at.
the hands of the Tribunal.
If, on the other hand, such permission is refused, the parties would be relegated to the status quo and the employer would not be able to deal out the punishment which he intends to do to the workman.
Even then an industrial dispute might arise between the employer and the workman if the workman was not paid his due wages and other benefits.
Such industrial dispute also would have to be referred to the appropriate Tribunal by the Government and the Tribunal would award to the workman the appropriate relief having regard to all the circumstances of the case.
The Tribunal before whom such an 'application for permission is made under section 22 of the Act would not be entitled to sit in judgment on the action of the employer if once it came to the conclusion that a prima facie case had been made out for dealing out the punishment to the workman.
It would not be concerned with the measure of the punishment nor with the harshness or otherwise of the action proposed to be taken by the employer except perhaps to the extent that it might bear on the question whether the action of the management was bona fide or was actuated by the motive of victimization.
If on the materials before it the Tribunal came to the conclusion that a fair enquiry was held by the management in the circumstances of the case and it bad bona fide come to the conclusion that the workman was guilty of misconduct with which he had been charged a prima facie case would be made out by the employer and the Tribunal would under these circumstances be bound to give the requisite permission to the employer to deal 937 out the punishment to the workman.
If the punishment was harsh or excessive or was not such as should be dealt out by the employer having regard to all the circumstances of the case the dealing out of such punishment by the employer to the workman after such permission was granted would be the subject matter of an industrial dispute to be raised by the workman and to be dealt with as aforesaid.
The Tribunal, however, would have no jurisdiction to go into that question and the only function of the Tribunal under section 22 of the Act would be to either grant the permission or to refuse it.
(Vide Champdani Jute Mills And Shri Alijan(1); R.B section Lachmandas Mohan Lal & Sons Ltd. And Chini Mill Karmachari Union(2) Assam Oil Companies ' case(3)).
In the circumstances of the present case, once the appellant succeeded in establishing that the workmen had resorted to an illegal strike from 7 a.m. on May 27, 1952, that a fair enquiry into the alleged misconduct and insubordination of the workmen had been held by the management without violating any principles of natural justice, that the management had as a result of such enquiry found that the workmen had been guilty of misconduct and insubordination with which they had been charged and that the management had come to the bona fide conclusion that continuing the workmen in its employ was detrimental to discipline and dangerous in the interests of the appellant, the Labour Appellate Tribunal ought to have held that a prima facie case for the dismissal of the workmen had been made out by the appellant and ought to have granted the appellant the permission to dismiss the workmen.
We are, therefore, of opinion that the Labour Appellate Tribunal was clearly in error in rejecting the application of the appellant under section 22 of the Act and refusing it the permission to discharge the respondents from its employ.
Civil Appeal go.
244 of 1954 will, therefore, be allowed and the order of (1) [1952] II L.L.J. 629.
(2) [1952] II L.L.J. 787, (8) 122 938 the Labour Appellate Tribunal dismissing the application under section 22 of the Act will be set aside.
The appellant will be granted permission under section 22 of the Act to discharge the respondents from its employ.
Under the orders of the Court, one half of their salary has been already paid by the appellant to the respondents from May 27, 1952, onwards.
As a result of this decision, the appellant would be entitled to recover the same back from them.
Shri N. C. Chatterjee appearing on behalf of the appellant has, however, stated that the appellant would forego the recovery of that amount and would also keep the respondents on the reserve list to be employed in the mills as and when there were vacancies in their permanent cadre.
We hope that the respondents will take this offer in the true spirit with, which it has been made on behalf of the appellant and behave better in the future.
Shri N. C. Chatterjee has also left the question of costs of both these appeals to us and we do order that, in all the circumstances of the case, it would be proper that each party do bear and pay its own costs of both these appeals.
Appeals allowed.

summary:
Seventy six workers of the appellant company resorted to a tools down strike in sympathy with a dismissed co worker.
Repeated attempts to persuade them to resume work having failed the General Manager suspended them until further orders.
After midday recess the Management sought to prevent the workers from entering the mills but they violently entered the mills and the Police had to be called in by the company to keep the peace.
Charges of misconduct and insubordination were thereafter framed against the workers and they were called upon to show cause in an open enquiry to be held by the General Manager why disciplinary action should not be taken against them and the order of suspension was extended pending the enquiry.
The workers took up an attitude of total non cooperation and the atmosphere was tense with the result that the enquiry could not be held within 4 days.
The Management decided to dismiss the workers as a result of the enquiry but as an appeal was then pending before the Labour Appellate Tribunal, the company applied to it under section 22 of the Industrial Disputes (Appellate Tribunal) Act of 1950 for permission to do so and extended the period of suspension pending receipt of such permission.
The workmen in their turn filed an application under a. 23 of the Act to the Appellate Tribunal for requisite action to be taken against the company for having contravened section 22(b) of the Act by resorting to an illegal lock out and thereby punishing them without its prior permission.
The Appellate Tribunal held that the company had not held the enquiry within the time specified by el.
L 12 of the Standing Orders and on that ground dismissed its application.
It allowed the application of the workers holding that the wholesale suspension of the workers and preventing them from continuing work.
after the mid day recess amounted to a lock out 917 and punishment by the company and contravened section 22(b) of the Act and directed their reinstatement.
The company appealed.
It was contended on behalf of the company that there had been neither a breach of el.
L 12 of the Standing Orders nor a contravention of section 22(b) of the Act.
Hold, that the contentions were correct and the appeals must succeed.
The conduct of the company did not come within the definition of a lock out and even if there was any lock out it was in consequence of the illegal strike resorted to by the workmen and as such could not be deemed to be illegal by virtue of section 24(3) of the Industrial Disputes.
Act, 1947.
Moreover, even assuming that the company declared an illegal lock out it was not necessary for it to obtain the permission of the Appellate Tribunal under section 22 of the Act before it could do so.
A lock out was neither an alteration of the conditions of service within the meaning of el.
(a) nor a discharge or punishment by dismissal or otherwise within the meaning of el.
(b) of section 33 of the Industrial Disputes Act, 1947 or under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 and no permission was, therefore, required for its declaration.
If the lock out was illegal the workmen had their remedy under section 26 of the Industrial Disputes Act and in any event they had the right to have the dispute referred for adjudication.
Jute Workers Federation, Calcutta vs Clive Jute Mills ([1951] and Colliery Mazdoor Congress, Asansol vs New Beerbhoom Coal Co. Ltd. ([1952] L.A.C. 219), approved.
The Company having been declared a public utility concern, the workers had no right to go on strike without giving a notice in terms of section 22(1) of the and the tools down strike resorted to by them was illegal and the company was within its rights in suspending them.
Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd., ([1953] S.C.R. 219), referred to.
Mere failure to hold an enquiry within the period of four days prescribed by el.
L 12 of the Standing Orders could not determine the matter before the Appellate Tribunal and where, as in the instant case, the delay was due to the conduct of the workers it was sufficiently explained.
Where full and free opportunity was given to the workers to be present and defend themselves in a duly notified enquiry and they failed to do so, the Management was quite within its right to come to its own conclusion as to their guilt and the punishment to be meted out to them and it was not open to the workmen thereafter to urge that such enquiry was not fair or impartial or violated the principles of natural justice.
918 There could be no punishment so long as there was no offence and any action of the employer to the detriment of the workers ' interest would not amount to punishment.
The law did not contemplate anything like a contingent punishment of a worker and, consequently, where there was an interim order of suspension pending an enquiry or the grant of permission by the Appellate Tribunal, the question of pay for the period of such suspension depending on whether or not the permission would be granted, such suspension would not amount to punishment even where it was of an indefinite duration so as to attract the operation of section 22 of the In dustrial Disputes (Appellate Tribunal) Act, 1950.
Champdany Jute Mills and Certain Workmen, ([1952) 1 L.L.J. 554), Joint Steamer Companies and Their Workmen, ([1954] II L.L.J. 221), Assam Oil Co. Ltd. vs Appalswami, ([1954] , Standard Vacuum Oil Co. vs Gunaseelan, M. G. ([1954] II L.L.J. 656), relied on.
Under that section the only thing that the Appellate Tribunal had to consider was whether a prima facie case had been made out by the employer for lifting the ban imposed by the section and if, on the materials before it, it was satisfied that there bad been a fair enquiry in the circumstances of the case and the Management had bona fide come to the conclusion that the worker was guilty of misconduct with which he had been charged and it would be detrimental to discipline and dangerous in the interests of the company to continue him in its employ, a prima facie case was made out and the Tribunal would be bound to permit the employer to punish the workman.
It would be no part of its duty to judge whether the punishment was harsh or excessive, except so far it might bear on the bona fides of the Management, and could only grant the permission as sought for or refuse it and the question of the propriety of the punishment could be decided only by the appropriate Tribunal appointed by the Government for adjudicating the industrial dispute which would ensue upon the action of the management.
Atherton West & Co. Ltd. vs Suti Mills Mazdoor Union and Others, ([1953] S.C.R. 780), The Automobile Products of India Ltd. vs Bukmaji Bala & Others, ([1955] 1 S.C.R. 1241) Champdany Jute Mills and Shri Alijan, ([1952] II L.L.J. 629), R.B.S. Lachmandas Mohan Lal & Sons Ltd. and Chini Hill Karmachari Union, ([1952] II L.L.J. 787) and Assam Oil Companies ' Case, ([1954] L.A.C. 78), referred to.


judgement:
etition (Criminal) No. 4975 of 1981.
(Under Article 32 of the Constitution) Kapil Sibal, Ramesh C. Pathak, Subhash Sharma.
R. K Khinria and R.K. Handa for the Petitioner.
O.P. Sharma and M. section Dhillon for the Respondent.
The Judgment of the Court was delivered by SEN, J.
This is a petition under article 32 of the Constitution by one Nand Lal Bajaj for the issuance of a writ of habeas corpus for the release of his son, Inderjit @ Billa, who has been detained by an order of detention passed by the District Magistrate, Ropar, under section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter called 'the Act '), on being satisfied that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the life of the community.
Various grounds have been taken challenging the validity of the order of detention, but it is not necessary for us to deal with them all as the view that we take on one of them is sufficient to dispose of the petition.
The main contention is that the procedure adopted by the Advisory Board in allowing legal assistance to the State and denying such assistance to the detenu was both arbitrary and unreasonable and thus violative of article 21 read with article 14 of the Constitution.
First as to the facts.
On June 1, 1981, the District Magistrate passed an order of detention under sub section
(2) of section 3 of the Act on 721 being satisfied that detention of Inderjit was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community, and as required by sub section
(3) thereof, made a report forthwith to the State Government together with the grounds on which the order of detention had been made and the State Government approved of the same.
The detenu was apprehended on June 11, 1981 and served with the order of detention together with the grounds and, in due course, the detenu submitted his representation challenging the order of detention to the State Government.
He made a request in writing that he be allowed the assistance of counsel during the hearing before the Advisory Board, but the Government did not accede to his request.
However.
it appears that the detaining authority was represented by the State counsel at the hearing.
The detenu thereupon asked the Advisory Board that he may also be afforded an opportunity for legal assistance.
What transpired before the Advisory Board can best be stated in the words of the petitioner.
The relevant averment in para 17 of the petition is as follows: Before the commencement of these proceedings the detenu requested the State Government in writing that he be allowed assistance of counsel during the course of the proceedings before the Advisory Board.
The said request was denied.
The detenu to his utter surprise found that there he had to place his case before the Advisory Board without assistance of Counsel, the order of detention was defended by State Counsel.
The lawyers representing the State, during the course of the proceedings before the Advisory Board included the District Attorney and the Additional District Attorney who were assisted by the District Legal Advisor and one legal assistant.
The detenu had also requested to Advisory Board verbally that he be allowed the assistance of counsel during the course of the proceedings. (emphasis added) In answer to the rule nisi, the District Magistrate Ropar who is the detaining authority, has filed a counter affidavit by which he ex plained the circumstances which led to the issue of the detention order.
In reply to para 17 of the petition, it is averred: In reply to para 17 of the petition it is stated that section 11(4) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 722 1980 prohibited the assistance of a lawyer to the detenu before the proceedings of Advisory Board, which are confidential.
However the Advisory Board is competent to call any information from the appropriate Govt.
as laid in section 11(1) of the Act.
It is thus manifest that there was no traverse of the specific allegation made by the petitioner that while the Advisory Board allowed legal assistance to the detaining authority, there was denial of such an opportunity to the detenu.
In substance, the District Magistrate does not deal with the facts but states the law.
Despite the order of this Court for the production of the file containing the proceedings of the Advisory Board, all that was shown to us was the report of the Advisory Board.
We were in formed that the record was not with the State Government but with the Board.
It was represented that the Advisory Board does not forward its records because they are confidential.
In the absence of ) the record, there is no other alternative but to proceed on the allegations made by the petitioner.
The report of the Board does indicate that the Public Prosecutor who was present was questioned on one of the aspects of the matter.
It also records the presence of two Additional District Attorneys.
It is argued on behalf of the State that under sub section
(4) of section 11 of the Act the detenu was not entitled to any legal assistance before the Advisory Board.
The submission is that the proceedings of the Board and its report except that part of the report in which the opinion of the Board is expressed, are confidential.
Therefore, lawyers have no place in the proceedings before the Advisory Board.
It is further argued that the Advisory Board is entitled to devise its own procedure.
Our attention was drawn to sub section
(I) of section 11 of the Act, and it is urged that the Advisory Board is entitled not only to look into the record and see whether there was any material on which the order of detention could be passed under section 3 of the Act, but may also call for any such further information as it may deem necessary.
Sub sections
(I) of the Act on which reliance has been placed by the State are as follows: 11.
(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate 723 Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.
(4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceeding of the Advisory Board, and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
Under article 22(3) (b) of the Constitution, the right to consult and be defended by a legal practitioner of his choice is denied to any person who is arrested or detained under any law providing for preventive detention.
Sub section
(4) of section 11 of the Act is undoubtedly in conformity with article 22(3) (b) of the Constitution.
Normally, lawyers have no place in the proceedings before the Advisory Board.
The functions of the Advisory Board are purely consultative.
It is an independent body constituted under section 9 of the Act consisting of a silting Judge as the Chairman and not less than two other members who may be sitting or retired judges of the High Court.
It is expected that the Advisory Board would act in a fair and impartial manner in making a report whether or not there is, in its opinion, sufficient cause for the detention of a person.
In coming to that conclusion, the Board has to make an objective determination on the question as to whether there was sufficient material on which the subjective satisfaction of the detaining authority could be based.
Under sub section
(I) of section 11 of the Act, the Board is not only entitled to look into the record and see whether there was any material on which the order of detention could be passed under section 3 of the Act, but may also call for such further information as it may deem necessary from the appropriate Government or from the person concerned and if, in any particular case, it considers essential to do so or if the person concerned desires to be heard, shall hear him in person.
The Board is entitled to devise its own procedure.
It is the arbitrariness of the procedure adopted by the Advisory Board that vitiates the impugned order of detention.
There is no 724 denying the fact that while the Advisory Board disallowed the detenu 's request for legal assistance, it allowed the detaining authority to be represented by counsel.
It appears that the Advisory Board blindly applied the provisions of sub section (4) of section 11 of the Act to the case of the detenu failing lo appreciate that it could not allow legal assistance to the detaining authority and deny the same to the detenu.
The Advisory Board is expected to act in a manner which is just and fair to both the parties.
The report of the Board placed before us shows that the detenu exercised his right to recall some of the witnesses for the purpose of cross examination We are informed that the hearing before the Advisory Board went on for 4 to 5 days and there were as many as 11 witnesses cross examined by the detenu.
It cannot be, as is suggested by the counsel for the State, that the lawyers representing the State Government did not participate in the proceedings.
On the contrary, the report itself shows that the Public Prosecutor was called upon to explain some aspects of the case.
If the matter was so intricate, the Advisory Board should have ensured that both the parties had equal opportunity to place their respective cases.
It appears that the dice was loaded against the detenu in that whereas he had to go without legal assistance, the State Government had the benefit of an array of lawyers.
The expression 'procedure established by law ' in the context of deprivation of life and liberty under article 21 was interpreted in Maneka Gandhi vs Union of India(l) and the interpretation so put has been treated as involving an enlargement of the right conferred by article 21 of the Constitution.
As limited to the procedure, the judges were agreed that the procedure must be reasonable and fair and not arbitrary or capricious.
For, if the procedure was arbitrary, it would violate article 14 since article 14 is not consistent with any arbitrary power.(2) In interpreting the expression 'procedure established by law ' in article 21 with reference to article 14 of the Constitution, Bhagwati, J., observed(3): We must reiterate here what was pointed out by the majority in E.P. Royappa v T.N.(4) namely, that 'from a positivistic point of view, equality is antithetic to the rule of law in a republic, while the other, to the whim and caprice 725 of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of article 14 '.
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non arbitrariness pervades Article '4 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.
It must be 'right and just and fair ' and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
Arbitrariness is the very antithesis of article 14.
The principle of reasonableness is an essential element of equality and the procedure contemplated by article 21 must answer the test of reasonableness in order to be in conformity with article 14.
Among the concurring opinions, Krishna Iyer, J., although he generally agreed with Bhagwati, J., goes a step forward by observing(l): Procedural safeguards are the indispensable essence of liberty.
In fact, the history of procedural safeguards and the right to a hearing has a human right ring.
In India, because of poverty and illiteracy, the people are unable to protect and defend their rights: observance of fundamental rights is not regarded as good politics and their transgression as bad politics.
In short, the history of personal liberty is largely the history of procedural safeguards.
The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is, therefore, of prime importance to the body politic.
In Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and ors.(2) the inter relation between articles 21 and 14 of the Constitution was brought out by Bhagwati, J. in these words : The right of detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence 726 in a criminal proceeding but also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding, civil or criminal is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law.
It is increasingly felt that in the context of 'deprivation of life and liberty ' under article 21, the 'procedure established by law ' carried with it the inherent right to legal assistance.
Apart from authority it is easy to appreciate that in overwhelming majority of cases a detenu can do nothing to help himself before the Advisory Board.
The right to be heard before the Advisory Board would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.
It is expected that Parliament while making a law to regulate the procedure before an Advisory Board under article 22 (7) (c) of the Constitution should provide the right to consult and be defended by a legal practitioner of his choice.
It is incomprehensible that a person committing a crime should have under article 22(1) of the Constitution the right to consult and be defended by a legal practitioner of his choice, but a person under preventive detention, more often than not for his political beliefs, should be deprived of this valuable right.
It cannot be denied that preventive detention is an anachronism in a democratic society like ours.
The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideals of a parliamentary system of government.
In the nature of things, under the law as it exists, a person under preventive detention is not entitled to legal assistance.
However, we think it is futile for us to attempt to project our personal views in a matter which lies in the realm of decision making of Parliament.
The matter is essentially political and as such it is the concern of the statesman and, therefore, within the domain of the Legislature, and not the Judiciary.
In Smt.
Kavita vs The State of Maharashtra and Ors (1) the Court recently had an occasion to deal with section 8 of the , which is in pari materia with sub section
(4) of section 11 of Act.
The Court speaking through Chinnappa Reddy, J. Observed: 727 It is true that while section 8 (e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer.
The learned Judge emphasised that "as often than not adequate legal assistance may be essential for the protection of the Fundamental to Right to life and personal liberty guaranteed by Article 21 of the Constitution and the right to be heard given to a detenu by section 8 (e), COFEPOSA Act" and observed that this valuable right may be jeopardized and reduced to mere nothing with adequate legal assistance, in the light of the intricacies of the problems involved and other relevant factors.
He then went on to say whether or not legal assistance should be afforded by the Advisory Board must necessarily depend on the facts and circumstances of each individual case and observed: Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case.
In the present case, the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board.
Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have, if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer.
In that case, there was no denial of procedural fairness which is a part of the fundamental right guaranteed under article 21 of the Constitution, since no such request was made by the detenu before the Advisory Board.
The decision in Kavita 's case (supra) is, however, an authority for the proposition that while there is no right under section 8 (e) of the COFEPOSA Act to legal assistance to a detenu in the proceedings before the Advisory Board, he is entitled to make such a request to the Board and the Board is bound to consider such a request when so made.
In the present case, the detenu made such a request, but in the absence of the record of the Advisory Board, it is not possible to infer whether the request was considered.
Even if it was denied, as the petitioner himself alleges, there was no rational basis for a differential treatment.
There is no denial of the fact that while the detenu was not afforded legal assis 728 tance, the detaining authority was allowed to be represented by counsel.
It is quite clear upon the terms of sub section
(4) of section l l of the Act that the detenu had no right to legal assistance in the proceedings before the Advisory Board, but it did not preclude the Board to allow such assistance to detenu, when it allowed the State to be represented by an array of lawyers.
The matter can be viewed from another angle.
We were informed that the Advisory Board did not forward the record of its proceeding to the State Government.
If that be so, then procedure adopted was not in consonance with the procedure established by law.
The State Government while confirming the detention order under section 12 of the Act has not only to peruse the report of the Advisory Board, but also to apply its mind to the material on record itself was not before the State Government, it follows that the order passed by the State Government under section 12 of the Act was without due application of mind.
This is a serious infirmity in the case which makes the continued detention of the detenu illegal.
We refrain from expressing any opinion on the other grounds raised.
It appears to us prima facie that the grounds for detention set out the facts with sufficient degree of particularity and that they did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority.
It seems to us that the order of detention cannot also be challenged that the grounds furnished were vague or indefinite or lacking in particulars or were not adequate or sufficient for the satisfaction of the detaining authority, or, for that matter, for the making of an effective representation.
For the reasons stated above, the order of detention passed by the District Magistrate, Ropar dated June 1, 1981 is quashed and we direct that the detenu Inderjit alias Billa be set at liberty forthwith.
V. D. K. Petition allowed.

dataset_name: IN-Abs

summary:
Inderjit alias Billa has been detained by an order dated June 1, 1981 passed by the District Magistrate under sub section (2) of section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (PBMSECA).
The detenu submitted his representation challenging the order of detention on various grounds.
He had also made a request in writing that he be allowed the assistance of counsel during the hearing before the Advisory Board, but the Government did not accede to his request in view of section 11 of the Act.
On the contrary.
at the time of hearing before the Advisory Board the State was assisted by Public Prosecutor, two attorneys, a District Legal Advisor and a Legal Assistant.
Even at this stage, the detenu requested in writing for aid of a counsel but the same was rejected.
The State Government confirmed the detention under section 12 of the Act.
The father of the detenu, therefore, challenges the order of confirmation of the detention by the State.
Allowing the writ petition, the Court. ^ HELD 1:1.
Under Article 22(3)(b) of the Constitution, the right to consult and be defended by a legal practitioner of his choice is denied to any person who is arrested or detained under any law providing for preventive detention.
Subsection (3) of section 11 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 is undoubtedly in conformity with Article 22(3) (b) of the Constitution.
Normally, lawyers have no place in the proceedings before the Advisory Board.
[723 D] 1:2.
Upon the terms of sub section (4) of section 11 of the Act the detenu had no right to legal assistance in the proceedings before the Advisory Board but it did not preclude the Board to allow such assistance to the detenu when it allowed the State to be represented by an array of lawyers.
Kavita vs The State of Maharashtra & Ors., [1982] 1 SCR p. 138 is an authority for the proposition that while there is no right under section 8(e) of the COFEPOSA Act to legal 719 assistance to a detenu in the proceedings before the Advisory Board is entitled to make such a request to the Board and the Board is bound to consider such a request when so made.
[727 G H, 728 A B] Smt.
Kavita vs The State of Maharashtra & Ors., [1982] 1 SCR p. 138 distinguished.
The Advisory Board is entitled to devise its own procedure.
The functions of the Advisory Board are purely consultative.
It is an independent body constituted under section 9 of the Act consisting of a sitting judge as the Chairman and not less than two other members, who may be sitting or retired judges of the High Court.
It is expected that the Advisory Board would set in a fair and impartial manner in making a report whether or not there is, in its opinion, sufficient cause for the detention of person.
In coming to that conclusion, the Board has to make an objective determination on the question as to whether there was sufficient material on which the subjective satisfaction of the detaining authority could be based.
Under sub section (1) of section 11 of the Act, the Advisory Board may also call for such further information as it may deem necessary for the appropriate Govt.
Or from the person 'concerned and if, in any particular case, it considers essential to do so or if the person concerned desires to be heard, shall hear him in person.
Arbitrariness is the very antithesis of Article 14.
The principle of reasonableness is an essential element of equality and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.
The history of personal liberty is largely the history of procedural safeguards.
The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is, therefore, of prime importance to the body politic.
In the context of 'deprivation of life and liberty ' under Article 21, the 'procedure established by law ' carried with it the inherent right to legal assistance.
The right to be heard before the Advisory Board would be, in many cases, of little avail it did not comprehend the right to be heard by the counsel.
[723 D G, 725 C D, F, 726 B C] E.P. Royappa vs Tamil Nadu, [ , Maneka Gandhi vs Union of India.
[1978] 2 SCR 621; Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and Ors. ; at 531; reiterated.
The State Government while confirming the detention order under section 12 of the Act has not only to peruse the report of the Advisory Board, but also to apply its mind to the material on record.
If the record itself was not before the State Government as is evident from there turns filed in reply to the writ petition before this Court, it follows that the order passed by the State Government under section 12 of the Act was without due application of mind, which is a serious infirmity in the case which makes the continued detention of the detenu illegal.
[728 B D] OBlTER: It is expected that Parliament while making a law regulate the procedure before an Advisory Board under Article 22(7) (c) of the Constitution should provide the right to consult and be defended by a legal practitioner of his choice.
It is incomprehensible that a person committing a crime should 720 have under Article 22(1) of the Constitution the right to consult and be defended by a legal practitioner of his choice, but a person under preventive detention more often than not for his political beliefs should be deprived of this valuable right.
It cannot be denied that preventive detention is an anachronism in a democratic society like ours.
The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideals of a parliamentary system of government.
In the nature of things, under the law as it exists, a person under preventive detention is not entitled to legal assistance.
The matter is essentially political and as such it is the concern of the statesmen and, therefore, within the domain of the Legislature, and not Judiciary.
[726 C F]