judgement:
Civil Appeal Nos.
1584 1588 of 1973.
Appeals by Special Leave from the Judgment and Order dated 6th August, 1973 of the Madras High Court in Writ Appeal Nos.
13 to 17 of 1973.
AND 158 Writ Petition Nos.
357 of 1979 and 4367 of 1978.
(Under Article 32 of the Constitution) K. Parasaran, Soli.
General, N. Nettar and Miss A. Subhashini for the Appellants in all appeals.
T.S. Krishnamurthy Iyer, H. B. Dattar, A. K.Srivastava and T. P. Sunderarajan for the Petitioners in WPs.
4367 of 1978 & 357 of 1979.
T.S. Krishnamurthy Iyer, Vineet Kumar and A.K. Srivastava for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
These appeals, by special leave, raise the question whether the respondents are entitled to claim fixation of their seniority in the Subordinate Accounts Service after taking into account their length of service as Upper Division Clerks.
The respondents entered service in the Office of the Accountant General, Tamil Nadu as Upper Division Clerks.
They appeared in the Subordinate Accounts Service Examination but it was only after a number of attempts that they succeeded in passing.
They passed the examination held in November, 1969 and were promoted shortly thereafter.
They claimed seniority on the basis that their length of service in the inferior post should be taken into account, and rested their claim on paragraph 143 of the Manual of Standing Orders issued by the Comptroller and Auditor General as it stood before its amendment by a correction slip of 27th July, 1956.
The correction slip removed the factor of weightage on the basis of length of service in the determination of seniority.
The claim was rejected by the Comptroller and Auditor General.
A writ petition filed by them in the High Court of Madras was allowed by a learned Single Judge, and his judgment was affirmed by an appellate Bench, of the High Court.
Against the judgment of the appellate Bench, the Accountant General, Tamil Nadu and the Comptroller and Auditor General have appealed to this Court, and those appeals are pending as Civil Appeals Nos. 1584 to 1588 of 1973.
During the pendency of those appeals the President enacted the Indian Audit and Accounts Department (Subordinate Accounts Service & Subordinate Railway Audit Service) Service Rules, 1974 (referred to hereinafter as "the Rules of 1974").
The Rules of 1974 purport to give statutory recognition to the amendment of paragraph 143 by the Comptroller and Auditor General.
The validity of the Rules of 1974 and the amendment made in paragraph 143 are assailed by the respondents in the instant appeals.
159 The Rules of 1974 have been enacted by the President.
They are deemed to have come into force on 27th July, 1956, which has been defined, for the purposes of the Rules as the "appointed day".
The Subordinate Accounts Service (the "Service") includes members appointed to it before the appointed day as well as persons recruited to it in or before that day.
Rule 5 provides that recruitment shall be made by direct recruitment in accordance with, the orders or directions issued by the Comptroller and Auditor General from time to time and also by promotion.
Rule 6 provides: "6.
Appointments: Appointments to the Service shall be made from the list prepared in accordance with the orders and instructions issued by the Comptroller and Auditor General from time to time and applicable at the time of appointment to the Service.
" Rule 7 deals with seniority, and declares: "7.
Seniority: (1) The seniority inter se of the persons appointed to the service before the appointed day shall be regulated by the orders or instructions issued by the Comptroller and Auditor General as were in force at the relevant time before such day.
(2) The seniority inter se of the persons appointed to the Service on or after the appointed day shall be in the order in which the appointments are made to the service in accordance with rule 6.
Provided that a direct recruit shall on appointment to the Service rank senior to all officiating persons in the service (excluding a direct recruit) passing in the same departmental examination or subsequent departmental examinations.
Provided further that the seniority of a person who had declined the appointment to the Service but who is subsequently appointed to the Service shall be determined with reference to the date on which he assumed charge of the post in the cadre.
" By virtue of Rule 9, in matters not specifically provided for in the Rules, every person appointed to the Service is governed by the rules, regulations, orders or instructions made or issued in respect of the Central Civil Services as applicable to the Indian Audit and Accounts 160 Department.
Rule 10 empowers the Comptroller and Auditor General to issue, from time to time, such general or special instructions or orders as he may consider necessary or expedient for the purpose of giving, effect to the Rules.
The respondents have raised two contentions.
The first is that the Rules are invalid as clause (5) of article 148 to which alone, it is said, they must be ascribed, does not permit the retrospective enactment of rules made thereunder.
The other contention is that the specific rules affecting the seniority of the respondents are in valid be cause in entrusting power to the Comptroller and Auditor General to issue orders and instructions in his discretion the doctrine against excessive delegation of legislative power has been violated Taking the first contention first, it may be noted that the Rules of 1974 purport, according to the recital in the Notification dated 4th November, 1974 publishing them, to have been made by the President "in exercise of the powers conferred by the proviso to article 309 and clause (5) of article 148 of the Constitution and after consultation with the Comptroller and Auditor General of India".
The respondents say that the only provision of the Constitution under which those Rules could be made is clause (5) of article 148, and we should ignore reference to the proviso to article 309.
If that is done, they urge, there will be no justification for holding that the Rules of 1974 can be given retrospective operation.
Unlike the proviso to article 309, it is pointed out, clause (5) of article 148 does not permit the enactment of retrospectively operating rules.
We think that the respondents are right.
Article 309 provides for legislation by the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State, and the proviso to article 309 declares that until such legislation is enacted by the appropriate Legislature the President is empowered in the case of services and posts in connection with the affairs of the Union, and the Governor of a State in the case of services and posts in connection with the affairs of a State, to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts.
There is a clear dichotomy in the power conferred by article 309, a division of power between the Parliament or President, as the case may be, on the one side and the State Legislature or Governor on the other.
The division is marked by the circumstance that under Art 309, services and posts in connection with the affairs of the Union are dealt with by a separate authority from the services and 161 posts in connection with the affairs of a State.
That dichotomy it seems, is not possible in the power employed for appointing persons in the Indian Audit and Accounts Department and for prescribing their conditions of service.
The Comptroller and Auditor General of India, who is the head of that department, is a constitutional functionary holding a special position under the Constitution.
Under article 149, he performs duties and exercises powers in relation to the accounts of the Union and also of the States.
Clause (1) of article 151 requires him to submit a report relating to the accounts of the Union to the President, who causes them to be laid before each House of Parliament.
Likewise, clause (2) of article 151 requires him to submit a report relating to the accounts of a State to the Governor of the State, who causes them to be laid before the Legislature of the State.
It cannot be said, in the circumstances, that the persons serving in the Indian Audit and Accounts Department are holding office in connection with the affairs of the Union exclusively.
It may be pointed out that when the Constitutional Adviser prepared the Draft Constitution for consideration by the Constituent Assembly the document contained separate provisions for the appointment of the Auditor General of the Federation and Auditors General for the Provinces.
The Auditor General for the Federation was to be appointed by the President and his functions extended to the accounts of the Federation as well as of the Provinces.
But it was open to a Provincial Legislature to provide by law for the appointment of an Auditor General for the Province and the appointment to that office was to be made by the Governor.
The Expert Committee on the financial provisions of the Union Constitution favoured the continuance of a single Auditor General for the Government of India as well as for the Provincial Governments and hoped that the Provincial Governments would refrain from using their power of appointing separate Auditors General of their own.
When the matter came before the Drafting Committee, it decided that the persons performing the functions of the Auditor General in a State should be designated Auditor in Chief in order to distinguish him from the Auditor General of India, and that the salaries and allowances of the staff of these officers should be fixed by the Auditor General of India and the Auditor in Chief in consultation with the President and the Governor respectively.
Thereafter, the Drafting Committee reconsidered the desirability of permitting a multiplicity of audit authorities, one for the Union and one for each State.
On 1st August, 1949 Shri T.T. Krishnamachari moved an amendment deleting the draft articles enabling the State Legislatures to create their own Auditors in Chief.
He pointed out that since the Constituent Assembly had already adopted articles whereby the auditing and accounting would become "one institution, so to say, under the authority of the 162 Comptroller and Auditor General", it was not necessary to have separate provision for the States.
Accordingly, he proposed the addition of a new article now clause (2) of article 151] about the Comptroller and Auditor General, requiring him to submit the reports of the accounts of a State to the Governor for being laid before the State Legislature.
These amendments were adopted by the Constituent Assembly.
It is evident that the authority vested in the Comptroller and Auditor General ranges over functions associated with the affairs of the Union as well as over functions associated with the affairs of the States.
It is a single office, and the Indian Audit and Accounts Department, which it heads, is a single department.
They cannot be said to be concerned with the affairs of the Union exclusively.
Consequently, the regulation of the recruitment and conditions of service of persons serving in the Indian Audit and Accounts Department cannot be regarded as a matter falling with the domain of the President within the terms of the proviso to article 309.
A special provision was necessary to entrust the President with that power, and that provision is clause (5) of Art, 148.
The power contained in clause (5) of article 148 is not related to the power under the proviso to article 309.
The two powers are separate and distinct from each other and are not complementary to one another.
In our opinion, the reference to the proviso under article 309 in the recital of the Notification publishing the Rules of 1974 is meaningless and must be ignored.
The next question is whether clause (5) of article 148 permits the enactment of rules having retrospective operation.
It is settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only.
An exception, however, is the proviso to article 309.
In B. section Vadera vs Union of India & Ors.
this Court held that the rules framed under the proviso to article 309 of the Constitution could have retrospective operation.
The conclusion followed from the circumstance that the power conferred under the porviso to article 309 was intended to fill a hiatus that is to say, until Parliament or a State Legislature enacted a law on the subject matter of article 309.
The rules framed under the proviso to article 309 were transient in character and were to do duty only until legislation was enacted.
As interim substitutes for such legislation it was clearly intended that the rules should have the same range of operation as an Act 163 of Parliament or of the State Legislature.
The intent was reinforced by the declaration in the proviso to article 309 that "any rules so made shall have effect subject to the provisions of any such Act".
Those features are absent in clause (5) of article 148.
There is nothing in the language of that clause to indicate that the rules framed therein were intended to serve until Parliamentary legislation was enacted.
All that the clause says is that the rules framed would be subject to the provisions of the Constitution and of any law made by Parliament.
We are satisfied that clause (5) of article 148 confers power on the President to frame rules operating prospectively only.
Clearly then.
the rules of 1974 cannot have retrospective operation, and therefore sub rule (2) of rule 1, which declares that they will be deemed to have come into force on 27th July, 1956 must be held ultra vires.
If the Rules of 1974 do not cover the case of the respondents then admittedly the only question which remains in regard to them is whether the amendment intended by the Comptroller and Auditor General in 1956 to paragraph 143 of the Manual of Standing Orders results in amending that paragraph.
The amendment is in the form of a correction slip which, it is not disputed, possesses the status of an administrative instruction.
The contention on behalf of the respondents is that paragraph 143 possesses the status of a statutory rule and, therefore, the amendment attempted by the correction slip has no legal effect on it.
The High Court held that paragraph 143 was a statutory rule and it proceeded to hold so on the basis of affidavits filed before it.
But the matter has been more carefully researched since, and the relevant material is now set out in the special leave petition, which has given rise to this appeal.
It appears that in 1921 the Auditor General, as the administrative head of the Indian Audit Department, inserted article 1666A by a circular No. 1757 E/1129 dated 18th April, 1921 giving weight to the length of service in the fixation of seniority.
In the Audit Code prepared subsequently, Art, 1666A appeared as article 52.
Thereafter, in the Manual of Standing Orders issued by the Auditor General in 1938, article 52 found expression as paragraph 143.
The provision never acquired statutory force under the Government of India Act, 1919.
Learned counsel for the respondents urges that it acquired statutory force under sub section
(2) of section 252.
Government of India Act, 1935.
Sub sections
(1) and (2) of section 252 provide: "252.
(1) All persons who immediately before the commencement of Part III of this Act were members of the staff of the High Commissioner for India, or members of the staff of the Auditor of the accounts of the Secretary 164 of State in Council, shall continue to be, or shall become, members of the staff of the High Commissioner for India or, as the case may be, of the Auditor of Indian Home Accounts.
(2) All such persons aforesaid shall hold their offices or posts subject to like conditions of service as to remuneration, pensions or otherwise, as therefore, or not less favourable conditions, and shall be entitled to reckon for purposes of pension any service which they would have been, entitled to reckon if this Act had not been passed.
* * * * *" Sub section
(2) of section 252 does not help the respondents.
Firstly, the guarantee conferred by it covered those persons who held offices or posts on the staff of the Auditor of the accounts of the Secretary of State in Council and on the staff of the Indian Home Accounts immediately before the commencement of Part III of the Act.
The respondents are clearly not such persons.
Secondly, even if it be assumed that the benefit of sub section
(2) can be extended to the respondents, sub section
(2) merely protects the conditions of service enjoyed by them as they existed before.
The sub section does not enlarge or improve on the quality of those conditions of service.
If seniority was determined by a departmental instruction, sub section
(2) did not give that provision the higher status of a statutory rule.
It remained what it always was, a departmental instruction.
We were also referred to article 313 of the Constitution, but that provision also does not result in converting a departmental instruction into a statutory rule.
Plainly, paragraph 143 in the Manual of Standing Orders remained throughout a departmental instruction and, therefore, could be amended by the departmental instruction contained in the correction slip issued by the Comptroller and Auditor General in 1956.
On that conclusion being reached, the claim of the respondents must fail.
The appeals have to be allowed.
In the connected writ petition No. 357 of 1979 there are 15 petitioners.
The first ten passed the Subordinate Accounts Service Examination and were promoted to the service after 1956 and before the enactment of the Rules of 1974.
They will be governed by the legal position enunciated in the aforesaid appeals.
The eleventh, twelfth and thirteenth petitioners passed the examination immediately before the enactment of the Rules of 1974 but were promoted after the Rules were enacted.
The remaining petitioners appeared at the examination and were promoted after the enactment of the Rules.
In the case of the last two categories the Rules of 165 1974 will apply.
Having regard to the provision determining the fixation of seniority under the Rules of 1974 and the position obtaining thereafter, none of the petitioners can claim the benefit of weigtage on the basis of length of service.
But these petitioners rely on the second of the two contentions concerning the validity of the Rules of 1974.
They assail specifically the validity of Rule 7(2) which provides for fixation of seniority.
The argument is that the fixation of seniority has been made by Rule 7(2) to depend on the order in which appointments to the service are made under Rule 6, and that, it is pointed out, depends on an arbitrary power conferred on the Comptroller and Auditor General to pass orders and instructions.
We see no force in the contention.
The Comptroller and Auditor General is a high ranking constitutional authority, and can be expected to act according to the needs of the service and without arbitrariness.
He is the constitutional head of one of the most important departments of the State, and is expected to know what the department requires and how best to fulfil those requirements.
We are unable to hold that the power conferred on him under the Rules violates the principle against excessive delegation.
The writ petition No. 4367 of 1978 must also be treated on the basis that the petitioners are not, in the fixation of their seniority, entitled to weightage with reference to their length of service.
Both writ petitions must, therefore, be dismissed.
Civil Appeals Nos.
1584 1588 of 1973 are allowed, the judgment and order of the Madras High Court is set aside and the writ petition is dismissed.
Writ Petition Nos.
357 of 1979 and 4367 of 1978 are also dismissed.
In the circumstances, there is no order as to costs.
N.V.K. Appeals allowed and Petitions dismissed.

dataset_name: IN-Abs

summary/full:
In 1921 the Auditor General, as the administrative head of the Indian Audit Department, inserted Article 1666A by a circular No. 1757 E/1129 dated 18th April 1921 giving weight to the length of service as Upper Division Clerks in the fixation of seniority in the Subordinate Accounts Service.
In the Audit Code prepared subsequently, Article 1666A appeared as Article 52.
Thereafter, in the Manual of Standing Orders issued by the Auditor General in 1938, Article 52 found expression as paragraph 143.
By a correction slip dated 27th July, 1956, the Comptroller and Auditor General removed the factor of weightage on the basis of length of service in the determination of seniority.
The respondents in the appeals, who had entered service in the Office of the Accountant General, as Upper Division Clerks, appeared in the Subordinate Accounts Service Examination and passed the examination held in November 1969, and were promoted shortly thereafter.
They claimed seniority on the basis that their length of service in the inferior post should be taken into account, and rested their claim on paragraph 143 of the Manual of Standing Orders as it stood prior to its amendment by the correction slip of 27th July 1956.
The claim was rejected by the Comptroller and Auditor General A writ petition filed by them in the High Court was allowed by a Single Judge and the judgment was affirmed by the Appellate Bench of the High Court.
The Accountant General and the Comptroller and Auditor General appealed to this Court.
During the pendency of the appeals, the President enacted 156 the Indian Audit and Accounts Department (Subordinate Accounts Service & Subordinate Railway Audit Service) Service Rules, 1974.
They were deemed to have come into force on 27th July, 1956.
These rules purported to give statutory recognition to the amendment of paragraph 143 by the Comptroller and Auditor General.
Rule 6 provided for appointments to the service and Rule 7 dealt with seniority.
Rule 9 provided that in matters not specifically provided for the rules, regulations, orders or instructions of the Central Civil Services as applicable to the Indian Audit and Accounts Department would be applicable.
Rule 10 empowered the Comptroller and Auditor General to issue general or special instructions for giving effect to the Rules.
In the appeals, the respondents assailed the validity of the Rules of 1974 and the amendment made in paragraph 143, contending that the Rules are invalid as clause (5) of Article 148 does not permit the retrospective enactment of rules made thereunder, that the specific rules affecting the seniority of the respondents are invalid because in entrusting power to the Comptroller and Auditor General to issue orders and instructions in his discretion the doctrine against excessive delegation of legislative power has been violated, and that paragraph 143 possesses the status of a statutory rule and, therefore, the amendment attempted by the correction slip has no legal effect upon it.
In the connected writ petitions, the petitioners who had passed the Subordinate Accounts Service Examination were promoted to the Service after 1956 some before the enactment of the Rules of 1974 and some thereafter.
It was contended on their behalf that the fixation of seniority having been made by Rule 7(2) to depend on the order in which appointments to the service were made under Rule 6 depends on an arbitrary power conferred on the Comptroller and Auditor General to pass orders and instructions.
On the question whether the respondents are entitled to claim fixation of their seniority in the Subordinate Accounts Service after taking into account their length of service as Upper Division Clerks.
Allowing the appeals and dismissing the writ petitions, ^ HELD: 1.
There is nothing in the language of clause (5) of Article 148, to indicate that the rules framed therein were intended to serve until Parliamentary legislation was enacted.
All that the clause says is that the rules framed would be subject to the provisions of the Constitution and of any law made by Parliament.
Clause (5) of Article 148 confers power on the President to frame rules operating prospectively only.
The rules of 1974 cannot have retrospective operation.
Sub rule (2) of rule 1, which declares that they will be deemed to have come into force on 27th July, 1956 is therefore ultra vires.
[163B C] B.S. Vadera vs Union of India & Ors.
[1968] 3 S.C.R. 575 referred to. 2.
The Comptroller and Auditor General is a high ranking constitutional authority, and can be expected to act according to the needs of the service and without arbitrariness.
He is the constitutional head of one of the most important departments of the State, and is expected to know what the depart 157 ment requires and how best to fulfil those requirements.
The power conferred on him under the Rules does not violate the principle against excessive delegation.
[165C D] 3.
Paragraph 143 in the Manual of Standing Orders remained throughout a departmental instruction and, therefore, could be amended by the departmental instruction contained in the correction slip issued by the Comptroller and Auditor General in 1956.
[164F] 4.
There is a clear dichotomy in the power conferred by Article 309, a division of power between the Parliament or President, as the case may be, on the one side and the State Legislature or Governor on the other.
The division is marked by the circumstance that under Article 309 services and posts in connection with the affairs of the Union are dealt with by a separate authority from the services and posts in connection with the affairs of a State.
That dichotomy is not possible in the power employed for appointing persons in the Indian Audit and Accounts Department and for prescribing their conditions of service.
[160H 161A] 5.
The authority vested in the Comptroller and Auditor General ranges over functions associated with the affairs of the States.
It is a single office, and the Indian Audit and Accounts Department, which it heads, is a single department.
They cannot be said to be concerned with the affairs of the Union exclusively.
Consequently, the regulation of the recruitment and conditions of service of persons serving in the Indian Audit and Accounts Department cannot be regarded as a matter falling within the domain of the President within the terms of the proviso to Article 309.
[162 C] B. Shiva Rao, "The Framing of India 's Constitution: A Study" [1968] Chap.
12, pp.
414 417 referred to.
It cannot be said that persons serving in the Indian Audit and Accounts Department are holding office in connection with the affairs of the Union exclusively.
[161 C] 7.
The power contained in clause (5) of Article 148 is not related to the power under the proviso to Article 309.
The two powers are separate and distinct from each other and are not complementary to one another.
The reference to the proviso under Article 309 in the recital of the Notification publishing the Rules of 1974 is meaningless and must be ignored.
[162D E] 8.
Having regard to the provision determining the fixation of seniority under the Rules of 1974 and the position obtaining thereafter, none of the petitioners in the writ petitions can claim the benefit of weightage on the basis of length of service.
[165A]


judgement:
Appeal No. 144 of 1955.
Appeal by special leave from the judgment and order dated September 25, 1953, of the Labour Appellate Tribunal of India, Calcutta in Miscellaneous Case No. C 112 of 1953.
C. K. Daphtary, Solicitor General of India, A. B. N. Sinha and B. P. Maheshwari, for the appellant.
section P. Sinha, R. Patnaik and A. D. Mathur, for the respondents.
801 1956.
October 11.
The Judgment of the Court was delivered by section K. DAS J.
, This is an appeal by special leave from a decision of the Labour Appellate Tribunal, Calcutta, dated the 25th September, 1953.
The relevant facts lie within a narrow compass.
On the 4th of May 1953 the appellant, the Rohtas Industries Limited, Dalmianagar, made an application to the said Labour Appellate Tribunal under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950), hereinafter referred to as the Act, for permission to discharge ninety six temporary employees in the following circumstances.
The appellant company have a number of factories at Dalmianagar including a cement factory, power house, pulp mill, paper factory, chemical factory, factory for the manufacture of certain acids and an asbestos cement factory.
The company had a number of temporary employees who were engaged temporarily in connection with certain erection works for the extension and enlargement of those factories.
The terms of employment of these employees were embodied in a temporary appointment form which was signed by the employees as well as the management.
The said terms stated, inter alia, that "the company could discharge the employee at any time without notice, compensation and giving any reason therefor, whether on completion of the work on which the employee was engaged or earlier"; the terms also made it clear that whether the employee was on the same job or some other job, in the same department or some other, either on temporary work or permanent work, he would remain a temporary employee until the Works Manager issued a written letter expressly making him a permanent employee.
As and when the various erection works were completed, the temporary employees were first put on a list of spare men and then discharged.
Some time prior to the 3rd of July 1952, sixty nine of these temporary employees were spared for being discharged.
The names of these sixty nine employees were given in two lists, Appendix 802 A and Appendix B.
It was alleged that on the 3rd of July 1952, a number of these employees headed by one Brij Nandan Pandey entered the office of Shri L. C. Jain, Manager of the Cement Factory, and Brij Nandan Pandey assaulted the Manager.
A serious situation resulted from that 'incident and the company stopped the sixty nine temporary employees from coming to their factories or to their Labour Office and issued a notice to them stating that the company were applying to the Industrial Tribunal for permission to terminate their services.
At that time an industrial dispute relating to, among other things, the payment of bonus to the employees was pending adjudication in the Court of the Industrial Tribunal, Bihar.
On the 5th of July 1952, the appellant company made an application to the said Tribu nal for permission to discharge the sixty nine employees.
The application was made under section 33 of the .
On the 12th of July 1952, forty nine out of the said sixty nine employees made an application, under section 33 A of the , to the Chairman, Industrial Tribunal, Bihar, on the allegation that the appellant company had discharged sixty nine employees on the 5th July 1952 and had thereby contravened section 33 of the .
On the 20th of August 1952, thirty six more temporary employees were put on the spare list and an application was made to the Industrial Tribunal Bihar, for including these thirty six persons also in the application which had been made for permission to discharge the temporary men; thus, all told, the application related to one hundred and five temporary men.
The case of the appellant company was that the completion of the erection works for which these temporary men were originally employed was a gradual process and so far as the Cement Factory erection work was concerned, it was completed by the end of March 1952 except for certain minor additions and alterations.
Therefore, the appellant company no longer required the services of the temporary employees and they were put on the spare list as and 803 when their services were no longer required.
The two applications which had been made to the Industrial Tribunal, Bihar, the one under section 33 of the and the other under section 33 A of the said Act, remained pending with the Industrial Tribunal till the 17th of December 1952 on which date the application under section 33 A filed by forty nine of the sixty nine temporary employees, was dismissed.
On the 3rd of January 1953, the Chairman of the Industrial Tribunal, Bihar, intimated to the appellant company that the Tribunal was no longer competent to pass any orders on the application under section 33 of the , as the adjudication proceedings on the main reference had already concluded.
Two appeals were taken to the Labour Appellate Tribunal, one from the award made on the main adjudication and the other from the order made on the application under section 33 A of the .
On the 20th May 1953, the appeal from the order under section 33 A was dismissed.
As we are not concerned with that appeal in any way, nothing further need be said about it in this judgment.
The appeal from the main award was pending on the 4th of May 1953 on which date the appellant company made their application under section 22 of the Act to the Labour Appellate Tribunal for permission to discharge ninety six of the temporary employees.
Though there were one hundred and five temporary employees originally, with regard to whom an application had been made to the Industrial Tribunal, Bihar, nine out of them voluntarily left the service of the company; therefore, the number of temporary employees regarding whom the application under section 22 of the Act was made was ninety.
six only.
, The application was contested by forty two of the temporary employees, and in their affidavit they denied that any of the sixty nine workmen were originally recruited as temporary workmen and they further denied that they were involved in the incident relating to the assault on Shri L.C. Jain on the 3rd of July 1952.
They said that in effect they were 804 permanent employees and enjoyed all the benefits of permanent employees.
They further stated.
: "The erection work of the cement plants of the petitioners was completed towards the end of 1950 and it is therefore patently false to suggest that we became redundant as a result of the completion of the erection of the cement plants.
It is significant to note that a large number of workmen who had worked on the job of erecting the cement plants were discharged shortly after the completion of the said work on the ground that they were surplus.
The cement plants started to Work in full swing from about the first quarter of 1951 and we were working in the said cement plant producing cement from the very beginning.
right up to 5th July 1952, when we were informed that we were surplus.
In fact the real reason for the proposed retrenchment is the petitioner 's desire to increase the rate of exploitation of its workmen by increasing the workload".
With regard to the terms embodied in the appointment form, it was alleged that on or about the 3rd of December 1948 the employees of the appellant company were forced to go on strike on account of an industrial dispute; towards the end of the strike the workmen became exhausted and drifted back to work.
The strike was ultimately called off and the appellant company taking full advantage of their victory compelled a section of the workmen, who did not return to work until the strike was called off, to sign the ap pointment form with the purpose of humiliating and terrorising them.
The Labour Appellate Tribunal gave its decision on the 25th September 1953 which is the decision under appeal.
It dismissed the application of the appellant.
company on a finding which the Tribunal expressed in the following words: "It is thus clear that these 96 workmen had been working in the production departments from as far back as the beginning of the year 1951 and so the completion of the erection work cannot be put forward as the ground for their retrenchment".
805 Referring to the Directors ' Report dated the 10th of July 1951, the Tribunal came to the conclusion that the workmen 's version that the erection works had been completed by the end of 1950 was supported by the said report.
In other words, the decision of the Labour Appellate Tribunal was primarily based on the finding that the erection works were completed by the end of 1950 and therefore there was no ground for discharging the ninety six temporary men.
Learned counsel for the appellant has contended before us that (1) the Appellate Tribunal did not correctly appreciate the true scope and effect of section 22 of the Act; (2) the Appellate Tribunal gave attention to only one point, namely, the completion of erection works, and did not consider the other circumstances put forward on behalf of the appellant in support of their application; (3) instead of considering the real point which arose for determination on an application under section 22 of the Act, the Appellate Tribunal confined its attention to a point which was not decisive of the question before it; and (4) by reason of its failure to consider the real point for determination, the order of the Appellate Tribunal has resulted in manifest injustice.
In our opinion, these contentions are correct and should be upheld.
It was pointed out in The Automobile Products of India Ltd. vs Rukmaji Bala(1) that section 22 of the Act confers on the Appellate Tribunal a special jurisdiction which is in the nature of original jurisdiction and the Tribunal being an authority of limited jurisdiction must be confined to the exercise of such functions and powers as are actually conferred on it.
With regard to the scope of section 22 of the Act, it was observed: "The object of section 22 of the 1950 Act like that of section 33 of the 1947 Act as amended is to protect the workmen concerned in disputes which form the subject matter of pending proceedings against victimisation by the employer on account of their having raised industrial disputes or their continuing the (1) ; 105 105 806 pending proceedings.
It is further the object of the two sections to ensure that proceedings in connection with industrial disputes already pending should be brought to a termination in a peaceful atmosphere and that no employer should during the pendency of those proceedings take any action of the kind mentioned in the sections which may give rise to fresh disputes likely to further exacerbate the already strained relation between the employer and the workmen.
To achieve this object a ban has been imposed upon the ordinary right which the employer has under the ordinary law governing a contract of employment.
Section 22 of the 1950 Act and section 33 of the 1947 Act which impose the ban also provide for the removal of that ban by the granting of express permission in writing in appropriate cases by the authority mentioned therein.
The purpose of these two sections being to determine whether the ban should be re moved or not, all that is required of the authority exercising jurisdiction under these sections is to accord or withhold permission".
The earlier decision of this Court in Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union(1) dealt with clause 23 of the U. P. Government Notification dated the 10th March 1948 made in exercise of the powers conferred by sections 3 and 8 of the U. P. , and it was there observed that the scope of the enquiry was to come to a conclusion whether there was a prima facie case made out for the discharge or dismissal of the workman and the employer, his agent or manager was not actuated by any improper motives or did not resort to any unfair practice or victimisation in the matter of the proposed discharge or dismissal of the workman.
That being the scope of the enquiry on an application under section 22 of the Act, what the Labour Appellate Tribunal had to decide in the present case was whether the appellant company had made out a Prima facie,case for the proposed discharge and whether they were resorting to any unfair practice or victimisation in the matter of the proposed discharge.
(1) ; 807 Instead of doing that, the Labour Appellate Tribunal dismissed the application of the appellant company on the only ground that the version of the workmen that the erection works had been completed by the end of 1950 was supported by the Report of the Directors dated the 10th July 1951.
Learned counsel for the appellant has rightly pointed out that even in respect of the completion of erection works the conclusion of the Appellate Tribunal is a complete non sequitur.
First of all, the Directors ' Report was dated the 10th July 1951 though the balance sheet of the company with which the report was dealing related to the period ending on the 31st October 1950 The report naturally referred to such works as were completed on or before the 10th of July 1951.
It should be obvious that the completion of erection works must be a gradual process, and while some of the erection works might have been completed by the end of 1950 or July 1951, some were still in the process of completion.
Under their terms of employment, temporary employees could be moved from one work to the other and the mere circumstance, that they were employed in a production department for some time, even if true, did not make them permanent employees; nor did the circumstance that they enjoyed some of the benefits of permanent employees make them permanent.
These are circumstances which have been completely ignored by the Labour Appellate Tribunal.
It is worthy of note that in their application dated the 12th of July 1952, the forty nine workmen admitted: "though most of us were originally recruited for erection work in the Cement Factory, many of us were later on transferred as permanent workers to sugar and paper factories and some of us were absorbed as permanent workers in the maintenance section of the Cement Factory".
(Vide paragraph 3 of the application).
In the joint affidavit filed on the 12th August, 1953, in reply to the appellant 's application under section 22 of the Act, the said workmen denied however that 808 they were at any time engaged temporarily for temporary work vide paragraphs 3 and 6 of the affidavit.
Obviously, they were shifting from the position which they had originally taken up.
No evidence was given that the men who were employed temporarily were afterwards made permanent.
They filed a schedule, marked 'A ', to their affidavit wherein they showed their period of service and the name of the factory or plant from where their duties stopped.
On an ex amination of the schedule (Annexure A) it appears that a number of them were put on the spare list when the erection work was completed some time in 1952. 'Annexure 'A ' therefore supports the case of the appellant company that the completion of the erection works was a gradual process, some were completed in 1950, some in 1951 and some in 1952.
The first batch of sixty nine employees with whom we are concerned were put on the spare list between March and July 1952 and the second batch were put on the spare list in August 1952 when the relevant erection works were completed.
The finding of the Labour Appellate Tribunal with regard to the completion of erection works was vitiated by reason of the failure to take into consideration the circumstances stated above.
With regard to the terms of employment embodied in the temporary appointment form, the respondents ' case was that the appointment forms were signed as a result of the strike in 1948; it was never suggested that these forms were never signed at all and the comment of learned counsel for the respondents that the appellant company have not produced the appointment forms has very little force.
The respondents gave no evidence in support of the allegation that the appointment forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding.
None of the affidavits filed on behalf of the respondents suggested, even in a remote way, that the appellant company were resorting to any unfair practice or victimisation in the matter of the pro posed discharge.
809 Learned counsel for the respondents has contended before us that the finding of the Labour Appellate Tribunal is a finding on a question of fact, namely, whether the respondents were temporary or permanent employees.
He has argued that this Court should not interfere even though the finding is based on reasons which may not appear convincing to us.
We have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not.
The only finding which the Tribunal gave related to a different matter, namely, the completion of erection works.
Secondly, learned counsel for the respondents has contended that under section 22 of the Act the Appellate Tribunal had a discretion either to lift the ban or not to lift it and in a matter of discretion this Court should not interfere.
It is true that this Court does not sit upon the decisions of Industrial Tribunals like an ordinary Court of appeal, and there must be special circumstances to justify the exercise of our special power under article 136 of the Constitution.
In our opinion, such special circumstances exist in the present case where the Labour Appellate Tribunal has not directed its mind to the real question to be decided on an application under section 22 of the Act and has passed an order on the basis of a somewhat irrelevant finding which has resulted in manifest injustice.
The discretion which an Industrial Tribunal has must be exercised in accordance with well recognised principles.
There is undoubtedly a distinction between commercial and industrial arbitration.
As has been pointed out by Ludwig Teller (Labour Disputes and Collective Bargaining) Vol. 1, page 536: "Industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements".
810 A Court of law proceeds on the footing that no power exists in the courts to make contracts for people; and the parties must make their own contracts.
The courts reach their limit of power when they enforce contracts which the parties have made.
An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation.
We cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing agreement or existing obligations for no rhyme or reason whatsoever.
It has been necessary for us to go into the facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so.
The Act under which the Appellate Tribunal purported to pass its order has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956.
A question of some nicety as to the correct interpretation of section 33 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 might have arisen if we had thought fit to remand this case.
We do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under subsection (2) of section 33 of that Act.
No new facts need investigation in this case.
Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under section 22 of the Act clearly emerge from those affidavits.
We are satisfied Prima facie that the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed.
The appellant company have made out a prima facie case for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation.
In these circumstances, we would allow the appeal, set aside the decision of the Labour Appellate Tribunal dated the 25th September 1953 and pass the order 811 Which that Tribunal should have passed in this case, namely, that permission be granted to the appellant to discharge ninety six temporary workmen.
In the circumstances of this case, we think that the parties must bear their own costs throughout.
Appeal allowed.

summary/full:
The scope of an enquiry under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, is whether there is a prima facie case made out for the proposed discharge of the workman and the employer has not resorted to any unfair practice or victimisation.
Though an Industrial Tribunal can create new obligations or modify contracts in the.
interests of industrial peace or to prevent unfair practice or victimisation, its discretion has to be exercised in accordance with well recognised principles and it cannot ignore altogether an existing agreement or existing obligations.
The Automobile Products of India Ltd. vs Rukmaji Bala ([1955] 1 S.C.R. 1241) and Atherton West & Co. Ltd. vs Suti Mill Mazdoor Union, ([1953] S.C.R. 780), relied on.
Where, as in the present case, the Labour Appellate Tribunal did not direct its mind to the real question to be decided on an application under section 22 of the Act for permission to discharge the temporary employees and without deciding whether the workmen were temporary employees or not, passed an order dismissing the application on the basis of a finding which was not determinative of the real point or question at issue, held that the decision must be set aside and the proper order passed.


judgement:
ition No. 3050 of 1980.
(Under Article 32 of the Constitution) A. section Sohal and M. C. Dhingra for the Petitioner.
M. M. Abdul Khader, N. Nettar and M. N. Shroff for the Respondents.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Who will police the police ? Is freedom of movement unreasonably fettered if policemen are given power of externment for public peace? These twin problems of disturbing import, thrown up by this bizarre case, deserve serious examination.
The former is as important as the latter, especially when we view it in the strange police setting painted by the petitioner.
The constitutional question, which we will state presently and discuss briefly, has become largely otiose so far as the present petitioner is concerned because counsel for the State has assured the court that they will drop police surveillance or any action by way of externment as proposed earlier.
The police methodology, with sinister potential to human liberty described by the petitioner, if true, deserves strong disapproval and constitutional counter action by this Court.
But before committing ourselves to any course, we must set out the factual matrix from which the present case springs.
The statutory starting point of the criminal saga of Shri Prem Chand Paniwala, the petitioner, now threatened with externment proceedings, is the .
Sections 47 and 50 of the said Act clothe the Commissioner of Police with externment powers necessary for keeping the capital city crime free.
One such power relates to the removal of persons about to commit offences.
The procedural prescriptions and substantive directions, in this behalf, are laid down in the above provisions.
The Deputy Commissioner of Police (the DCP for short) in exercise of the said power, 1264 initiated proceedings against the petitioner and directed him to show cause why he should not be externed from the Union Territory of Delhi.
Paniwala who, from humble beginning as vendor of aerated water near a cinema theatre, had spiralled up into a prosperous dealer in Vasant Vihar, when confronted by this Police notice, decided upon a constitutional show down and came to this Court challenging the vires of the externment proceedings as arbitrary and unreasonable restrictions of his freedom of movement and, therefore, contrary to articles 14 and 19 and 21 of the Constitution.
The validity of the action, assuming the vires of the Act, involves also a consideration of the mala fides imputed by the petitioner to the DCP.
The blow of deportation may fall heavy on his fundamental rights admits of no doubt.
A flourishing businessman, happy with his wife and children, and settled in a comfortable locality in Delhi, if transported traumatically outside the Union Territory would surely suffer not merely financial mayhem, but also social, domestic and physical deprivation virtually amounting to economic harakiri an psychic distress.
Nevertheless, the Act permits externment, provided the action is bona fide.
All power, including police power, must be informed by fairness if it is to survive judicial scrutiny.
Cases are legion which leave one ill no doubt that mala fides is fatal, if it is made out.
From this angle, Prem Chand Paniwala has turned the focus on police malpractice vis a vis his own career; and even if a fragment of what he has said be true, the higher officers of the Delhi Police will need to look into the goings on at the lower level.
Here comes the relevance of autobiographical revelations made by the petitioner in more than one affidavit.
Certain facts emerge as fairly probable from the affidavits of both sides.
Prem Chand made a living as a paniwala or vendor of soft drinks near Delite Cinema even as a teenager, which shows that he had very poor beginnings.
How did he fall into the thraldom of the local police? He explains it in his affidavit: "He had a few mobile carts which were used for refrigerating water.
These carts used to be parked by the petitioner on the road side due to the indulgence of the police.
He was in his teens when he started his avocation and continued for a very long time.
Thus, he acquired an alias i.e. Prem Chand Paniwala.
Due to close association with Police and their connivance and indulgence, the petitioner thrived.
In this process, the petitioner became a prey and pawn in the hands of the police.
He was persuaded to be their perpetual stooge and stock witness.
1265 The Petitioner in the year 1965, when he was 25 years old was involved in a gambling case by the police and to mould him a permanent stock witness and lest he should be militant to defy them.
Despite his hesitation and unwillingness he was forced to become a permanent pawn of the police.
This is how, the petitioner landed himself in the web of the police; he had no alternative than to be like that as his livelihood was dependent upon the mercy and indulgence of the police".
The version of the petitioner is that once he yielded to the pressure of the Police to give false testimony disclosing a rubberised conscience and unveracious readiness to forswear himself, there was escalation of demands upon him and he became a regular pedlar of perjury "on police service".
Indeed, counsel for the petitioner argued that his client was a 'stock witness ' because he had to keep the Police in good humour and obliged them with tailored testimony in around 3,000 cases because the alternative was police wrath.
We were flabbergasted at this bizarre confession but to lend credence to his assertion counsel produced a Few hundred summonses where the petitioner was cited as a witness.
Were he not omnipresent how could he testify in so many cases save by a versatile genius for loyal unveracity? For sure, the consternation of the community at this flood of perjury will shake its faith in the veracity of Police investigation and the validity of the judicial verdict.
We have no doubt that the petitioner, who has given particulars of a large number of cases where he had been cited as witness, is speaking the truth even assuming that 3,000 cases may be an exaggeration.
In Justice, Justices and Justicing and likewise in the Police and Policing, the peril to the judicial process is best left to imagination if professional perjurers like the self confessed Paniwala are kept captive by the Police, to P be pressed into service for proving "cases".
Courts, trusting the Police may act on apparently veracious testimony and sentence people into prison.
The community, satisfied with such convictions, may well believe that all is well with law and order.
We condemn, in the strongest terms, the systematic pollution of the judicial process and the consequent threat to human rights of innocent persons.
We hope that the higher authorities in the Department who, apparently, are not aware of the nefarious goings on at the lesser levels will immediately take measures to stamp out this unscrupulous menace.
The reason why the petitioner has divulged his role as professional perjurer for the Police is simple and credible, at this price, the favours of the Police who allowed him to carry on his soft drinks business on the public street near a cinema house, not otherwise 1266 permissible under the law.
The Police blinked at the breach, the petitioner made good profits and by this mutual benefit pact, the prosecution got readymade evidence and Paniwala joined the nouveu riche.
He became respectable when he became rich and when he became respectable he became reluctant to play 'stock witness '.
For "the more things a man is ashamed of the more respectable he is" (Bernard Shaw).
Whenever he resisted the demand for giving false evidence the Police implicated him in some case or other and when he yielded, the case was allowed to lapse.
Indeed, it is surprising that the petitioner himself admits that he was "dubbed as a stock witness and often disbelieved by the courts.
Despite severe strictures passed by the courts, the Police did not give him up.
" Various details are furnished by the petitioner about his deposing on prosecutions for the survival of his business.
In the bargain, the petitioner acquired two houses in important localities and built up a lucrative fruit juice business.
There are more uncomplimentary revelations made in the petition but we do not think it necessary to set them out.
However, the crisis came when he declined to oblige with perjury since he felt his wealthy station in life and the character building stage of his children warranted giving up the profession of stock witness.
The Police avenged themselves by initiating externment which would inflict mortal economic injury, if carried out.
This version of the petitioner has been, in a way, denied.
It is also true that the Assistant Commissioner, in his affidavit in reply, has indicated that witnesses have been examined in support and in opposition of the allegations justifying externment and a final order has been made by the DCP directing the petitioner "to show good conduct for a period of three months only".
It is also stated that the witnesses were examined in camera, that the DCP had consideration for the materials placed before him "including education of his children etc.
and the assurance given by him".
An intelligent reading of the affidavit of the Assistant Commissioner, along with the vagueness in his denials regarding material particulars in the petitioner 's affidavits, leave us in grave doubt about the validity of the Police proceedings.
It is significant to notice that among the allegations against the petitioner are such vague statements as your activities in the area of Police Station Connaught Place and other area adjoining to the Police Station Connaught Place are causing and are calculated to cause harm, alarm and danger to the residents of the said localities and areas.
While we do not delve into details, it is useful to mention that the Police allegations are again vague in respect of the remaining imputations namely: 1267 "That you keep knife with you for unlawful purpose and threaten the persons residing in the area with dire consequences and further deter them from making report to police.
That you have engaged yourself in commission of offences against person and property attended with force and violence for which the following cases were registered against you by the Police. ".
The petitioner 's reply affidavit makes startling disclosures about the police methods of implicating innocent people.
However, the version of the petitioner can hardly be swallowed since he is a self confessed perjurer.
Nevertheless, it is not too much to ask Government to take effective measures to prevent Police methods straying into vice.
We hopefully remind the State about what Justice Brandieis once observed : "Crime is contagious.
If the government becomes a law breaker, it breeds contempt for law." . "TO declare that in the administration of the criminal law the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution.
Against that pernicious doctrine this court must resolutely set its face.
" In the same American decision we have just mentioned Justice Holmes observed; "We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.
" The provisions of the statute ostensibly have a benign purpose and in the context of escalation of crime, may be restrictions which, in normal times might appear unreasonable, may have to be clamped down on individuals.
We are conscious of the difficulties of detection and proof and the strain on the police in tracking down criminals.
But fundamental rights are fundamental and personal liberty cannot be put at the mercy of the Police.
Therefore, Ss. 47 and 50 have to be read strictly.
Any police apprehension is not enough.
Some ground or other is not adequate.
There must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence.
Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety.
We are clear that the easy possibility 1268 of abuse of this power to the detriment of the fundamental freedoms of the citizen persuades us to insist that a stringent test must be applied.
We are further clear that natural justice must be fairly complied with and vague allegations and secret hearings are gross violations of article 14, 19 and 21 of the Constitution as expounded by this Court in Maneka Gandhi.
We do not go deep into this question for two reasons: there is another petition where the constitutionality of these identical provisions is in issue.
Secondly, the counsel for the State has fairly conceded that no action will now be taken even by way of surveillance against the petitioner.
In an age when electronic surveillance and mid night rappings at the door of ordinary citizens remind us of despotic omens, we have to look at the problem as fraught with peril to constitutional values and not with lexical Laxity or literal liberality.
Having made these observations, we leave the question of vires open for final investigation, if necessary, in other cases pending before this Court.
We think counsel for the State was right in representing that no further action would be taken against the petitioner.
We dispose of the petition as calling no longer for directions but emphasise the need of the State to issue clear orders to the Police Department to free the processes of investigation and prosecution from the contamination of concoction through the expediency of stockpiling of stock witnesses.
To police persons who get rich quick by methods not easily or licitly understandable, is perhaps a social service.
Among the list of wanted persons must be not only the poor suspects but the dubious rich.
To keep an eye on their activities without close shadowing and surveillance may, perhaps, lead to criminal discoveries, if they are not too influential for the police.
By this judgment what we mean is not to tell the Police to fold up their hands and remain inactive when anti social elements suddenly grow in wealth but to be activist and intelligent enough to track down those who hold the nation 's health, wealth, peace and security in jeopardy.
The only insistence is that the means must also be as good as the ends.
P.B.R. Petition allowed.

summary/full:
Exercising power under sections 47 and SO of the (which clothe the Commissioner of Police with externment powers for keeping the capital city free of crime) the Deputy Commissioner of Police Delhi directed the appellant to show cause why he should not be externed from the Union Territory of Delhi.
The allegations against him were that his activities in the area of police station Connaught Place and the areas adjoining the police station were causing and were calculated to cause harm, alarm and danger to the residents of the said localities and areas that he kept a knife with him for unlawful purposes and threatened residents of that area with dire consequences and deterred them from reporting to the police and that he had engaged himself in the commission of offences against persons and property with force and violence.
In his petition under Article 32 of the Constitution challenging the vires of the externment proceedings as arbitrary and unreasonable restrictions on his freedom of movement, the petitioner stated that over the past 25 years with the indulgence of the local police he used to park his mobile refrigerated water carts on the road side in front of a cinema theatre in Delhi and that in return for the indulgence shown to him by the police and to keep them in good humour he yielded to their pressure and gave false testimony in as many as 3000 cases.
Even though Courts had dubbed him as a stock witness and passed severe strictures and disbelieved his testimony, the police did not give him up; that he had to continue to act as a tool in their hands for the survival of his business and that lately when he declined to oblige them because he felt that his wealthy station in life and the character building stage of his children warranted giving up the profession of stock witness, the police avenged themselves by threatening externment which would inflict mortal economic injury to him if the threat was carried out.
The Assistant Commissioner of Police in reply had stated that before the externment order was passed witnesses had been examined in camera in support and in opposition of the allegations justifying externment and that on a consideration of the materials placed before the Deputy Commissioner of Police, including the education of his children and the assurance given by the petitioner, final order had been passed directing him to show good conduct for a period of 3 months.
Allowing the petition, ^ HELD: The permits externment provided the action is bona fide.
All power, including police power, must be informed by fairness, if it is to survice judicial scrutiny.
Mala fides is fatal if it is made out.
[1164 D E] 1263 Sections 47 and 50 of the Act have to be read strictly; any police apprehension is not enough; some ground or other is not adequate; there must be a clear and present danger based upon credible material which makes the movements and acts of the person in question alarming or dangerous or fraught with violence.
Like wise there must be sufficient reason to believe that the person proceeded against is so dangerous that his mere presence in Delhi or any part thereof is hazardous to the community and its safety.
A stringent test must be applied by Courts in order that this power is not abused to the detriment of the citizen Natural justice must be fairly complied with and vague allegations such as those levelled against the petitioner and secret hearings are gross violations of Articles 14, 19 and 21.
[1267 G H,