judgement:
it Petitions Nos. 627, 662,296, 27 1 & 452 of 1987.
(Under Article 32 of the Constitution of India).
WITH Civil Miscellaneous Petition No. 12733 of 1988.
M.K. Ramamurthy, M.A. Krishnamurthy and Mrs. Indira Sawhney for the Petitioners.
Ram Panjwani, Raj Panjwani and Vijay Panjwani for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
This batch of petitions brought under Arti cle 32 of the Constitution of India challenge certain ac tions taken by the officers of the Trade Fair Authority of India (TFAI) in exercise of their disciplinary jurisdiction whereby the services of certain regular workmen have been terminated and several casual or daily rated workers are rendered jobless.
Put briefly, the facts giving rise to these petitions are as under: The 'Trade Fair Authority Employees ' Union (Union here after) was demanding housing facilities, regularisation of atleast 50% of casual or daily rated employees and upward revision of the salaries and allowances of the workers of TFAI.
These demands were discussed with the Chief General Manager of TFAI on August 29, 1986 and thereafter from time to time but nothing concrete emerged.
The case 262 of the Union is that the Chief General Manager had assured the Union representatives that although it may not be possi ble to regularise the service of casual labour to.
the extent Of 50% some posts had already been identified and the Standing Committee of TFAI which was seized of the matter would take a decision at an early date.
On the question of upward revision of wages and allowances the Union 's case is that the Chief General Manager had given an assurance that pending final decision by the High Powered Committee of TFAI, the scales prevailing in MMTC and STC could be adopt ed.
The grievance of the Union is that despite these assur ances no action to implement the same was taken whereupon the Union wrote to the Chief General Manager on October 29, 1986 seeking implementation of the assurances at an early date and not later than November 15, 1986.It was also commu nicated that the workers belonging to the Union had decided to proceed on a token strike of one day on November 13, 1986.
At a subsequent meeting held on November 3, 1986 the General Manager of TFAI is stated to have assured the Union representatives that the Standing Committee will be request ed to take up the issue on priority basis so that the out come becomes known by the end of November, 1986.
No such decision was taken by the end of November, 1986; not even after the Union 's reminders of December 18, 1986 and January 9, 1987 whereupon the Union wrote a letter dated January 15, 1987 to the Chief General Manager to permit the Union to hold a General Body Meeting of the Union on January 19, 1987 during lunch hours.
In anticipation of such permission being granted, which had always been granted in the past, the Union despatched notices to its members to attend the meet ing.
However, the Chief General Manager informed the Union representatives that the permission was refused.
Within minutes of the receipt of this communication, the President of the Union sent a reply stating that it was not possible to cancel the meeting at such short notice.
The General Body Meeting was held as schedule and a decision was taken to strike work on January 21, 1987 to protest against the management 's failure to implement the assurances already given.
On the same day, January 19, 1987, the Union served the management with a notice informing it about the decision to strike work on January 21, 1987.
The management reacted by placing the President, Vice President and Executive Mem bers of the Union under suspension with immediate effect, i.e. with effect from January 20, 1987.
This angered the striking workmen who had gathered outside the precincts of TFAI on January 21, 1987.
They demanded the immediate with drawal of the suspension orders failing which they threat ened that the strike would continue indefinitely.
Intimation to this effect was served on the Chief General Manager.
The management however suspended all the re 263 maming office bearers, the executive members and leading activists of the Union w.e.f. January 23, 1987.
The strike was, however, called off w.e.f.
January 24, 1987, according to the Union in the larger interest of .TFAI and in national interest as the President of India was to inaugurate the AHARA '87 on January 25, 1987, while according to the man agement it continued for almost two weeks.
Writ Petition No. 296/1987 is by those 42 suspended workers.
Now, during the strike some of the casual workers at tended duty and their services remained unaffected, some others who reported for duty after the strike and were prepared to sign an undertaking in the prescribed form were given work while the remaining casual workers who did not sign such an undertaking or were late in reporting for work were denied employment.
The Union 's case is that out of a total work force of about 500 casual workers, 160 did not participate in the strike and about 90 signed the undertak ing and they have since been employed while the remaining casual workers are denied work.
The Union sought the inter vention of the Union Commerce Minister and also invoked the jurisdiction of the Labour Commissioner, Delhi Administra tion, with a view to finding an amicable settlement as the discharged workers were facing untold miseries.
However, contends the Union, the response of the management was not positive and hence the Union was left with no alternative but to invoke this court 's jurisdiction for an early solu tion of the unemployment problem faced by the workers.
Writ Petition No. 271/87 is by 243 casual laborers who have thus been rendered jobless.
Thereafter the management by their orders of March 3, 1987 terminated the services of all the 12 office bearers and Executive Committee Members who had been suspended earlier in exercise of their power under the special proce dure outlined in Rule 32 of the TFAI Employees (Conduct, Discipline and Appeal) Rules, 1977 ( 'The Rules ' hereafter).
This rule inter alia empowers the Board of TFAI to impose any of the penalties specified in Rule 25 (which includes penalties from Censure to Dismissal), without holding an inquiry if the Board is satisfied for reasons to be stated in writing that it is not practicable to hold such inquiry or in the interest of the security of the Authority it is not expedient to hold such inquiry.
This provision overrides the need to hold a departmental inquiry under Rules 27 to 29 of the Rules.
The Board in the impugned orders of dismissal has assigned three reasons in support of its decision that is not practicable to hold an inquiry, namely "(i) you by yourself and together with and through other associates have threatened, intimidated and terrorised the Disci 264 plinary Authority so that he is afraid to direct the inquiry to be held; (ii) you the employee of Trade Fair Authority of India particularly through and together with your associates have terrorised and threatened and intimidated witnesses who are likely to give evidence against you with fear of repris al as to prevent them from doing so; and (iii) as an atmos phere of violence and of general indiscipline and insubordi nation has been created by a group of suspended employees".
The board has also stated in the impugned order that it is not expedient in the interest of security of the TFAI to hold an enquiry in the manner provided by the Rules.
Annex ure I to each order sets out the reasons which impelled the Board to visit the 12 employees with the extreme penalty of dismissal.
These 12 dismissed workers have challenged the orders of dismissal by their writ petition No. 267 of 1987.
Writ Petition No. 452 of 1987 is by one Raju, an employ ee of TFAI.
He was a casual laborer of TFAI since 1982 and was selected on July 4, 1986 as a Mini Stiller Driver in the scale of Rs.260 400.
He joined the new post on the same day but his appointment was cancelled without assigning any valid reason on July 25, 1986 and he was reverted as a daily wager.
He too had joined the others for regularisation of his service and had taken part in the strike.
The management by office order dated March 2, 1987 terminated his service w.e.f. December 1, 1986.
No enquiry was held nor was any opportunity to explain his conduct given to the delinquent before his services came to be terminated.
He has, there fore, challenged the order dated July 25, 1986 and the subsequent order dated March 2, 1987 as violative of the principles of natural justice.
Writ Petition No. 662 of 1987 concerns two daily rated Security Guards of TFAI whose services came to be terminated by TFAI.
The service of Bansi Dhar came to be terminated on April 2, 1987 while that of his companion Vipti Singh came to be terminated on April 8, 1987.
Their allegation is that their services were dispensed with because they refused to give false evidence against their co workers who were active members of the Union and who had filed W.P. No. 271/87 challenging the mala fide action of TFAI terminating the services of 243 casual daily rated workers.
They contend that even though they had remained on duty during the strike, their services were terminated because they refused to falsely implicate their coworkers who had espoused their cause.
They, therefore, contend that their termination smacks of victimisation.
In all the writ petitions Mr. N.N. Kesar, Manager (Admn) TFAI 265 has filed his counter contending that as the.
petitions require collection of facts this Court should refuse to entertain these petitions and should relegate the petition ers to the industrial tribunal or the concerned High Court.
According to the deponent TFAI had to take action against the office bearers of the Union as they had created an atmosphere of violence and had paralysed the smooth func tioning of TFAI from November, 1986 onwards.
Instances of insubordination, threats, violence and lack of discipline have been enumerated to show that officers of TFAI found it difficult to carry out their functions and duties because of constant fear to themselves and their kith and kin.
Even though permission for holding a General Body meeting on January 19, 1987 within the precints of TFAI was refused, the meeting was held at which inflammatory and provocative speeches were made by the Union leaders.
Extracts from the speeches of the various Union leaders have been set out in the counter to acquaint the court to the type of atmosphere that prevailed at a point of time when several important foreign delegates and VIPs were attending the International Fair held by TFAI.
The secret reports which were received from the officers of TFAI at different levels also suggested that trouble was brewing and immediate firm action was necessary.
Therefore, when the management learned that the employees had decided to go on a token strike on January 21, 1987 it took action of suspending some of the office bearers of the Union.
After the strike was prolonged upto January 23, 1987, TFAI had to make alternative arrangements includ ing security arrangements to ensure that no untoward inci dent occurred during the visit of foreign VIPs and more particularly during the visit of the President of India who was to inaugurate the AHARA 1987 on January 25, 1987.
Even during the visit of the President certain employees posted themselves at the main gates along with the President, Vice President, General Secretary and Secretary of the Union for picketing.
Since certain other inaugurations by VIPs were to take place between January 28, 1987 and February 2, 1987, TFAI was constrained to file a suit No. 263 of 1987 in the Delhi High Court against the Union and seven office bearers to restrain them from preventing and obstructing the entry of delegates, guest, dignitaries, etc.
into the Pra gati Maidan where TFAI was having its fair.
An ex parte injunction was granted prohibiting picketing, slogan shout ing, etc.
within 75 meters of all gates leading to the Fair as shown in the map appended to the suit.
It will thus be seen that according to TFAI the workers ' agitation was not a peaceful one as is alleged by the petitioners.
It was in the backdrop of these facts that the Board decided to terminate the services of the 12 employees by virtue of the power conferred on it by Rule 32 of the Rules.
The reasons which impelled 266 the Board to take this drastic action have been set out in the annexure appended to each order of dismissal.
TFAI, therefore, contends that the action taken against the 12 erring workers is just, legal and proper and this Court should refuse to interfere with the same.
So far as the suspended employees are concerned TFAI contends that it has power under Rule 22 of the Rules to suspend erring delin quents pending inquiry.
Such suspended employees are enti tled to suspension allowance paid at 50% of salary and allowances.
It is denied that TFAI has used the power of suspension as a coercive measure.
It is however stated that the correct number of suspended employees is 34 as named in the Counter.
Out of these 34 employees, the suspension order of 33 workmen have since been revoked on acceptance of their explanation.
Hence the suspension order that survives is against Peon Umed Singh only, who is receiving suspension allowance as per rules.
Insofar as the casual labour is concerned, it is con tended that TFAI had taken over the maintenance of Pragti Maidan from C.P.W.D.w.e.f.
January 1983.
The Standing Com mittee had, therefore, sanctioned a certain number of posts of the Engineering staff for this purpose.
A number of daily wage posts on muster roll were created from time to time and were filled in by both skilled and unskilled labour.
A proposal for regularising such employees was pending before the Standing Committee which had called for information.
It was however tentatively decided that 85 posts may be consid ered urgently for regularisation.
This proposal was cleared in January, 1987.
The matter was pending with the Internal Works Study Unit in the Ministry of Commerce and their report was awaited.
It was, therefore, contended that TFAI was always sympathetic in its approach and yet the Union gave a call for a strike on January 19, 1987.
The TFAI denies that it did not provide work to casual labour when they reported on January 24, 1987 or thereafter or that they demanded any such undertaking as alleged.
As regards the termination of Raju 's service it is contended by TFAI that he was given a provisional appoint ment on July 4, 1986 but the same had to be terminated on July 25, 1986 firstly because it subsequently came to light that he was convicted on June 30, 1987 under Sections 87 and 113 of the Motor Vehicles Act and fined Rs.300 and secondly because of his outrageous behaviour with his dealing assist ant on July 22, 1986.
These two reasons 'formed the basis and the grounds and the administrative reasons ' for with drawal of the provisional offer made in the letter of July 4, 1986.
However, the letter of July 25, 1986 uses the words 'some administrative reasons ' for cancel 267 lation of the order and impugned order of March 2, 1987 gives no reason whatsoever.
It is, ' therefore, contended that since the offer was only provisional, the petitioner had no right to the post and hence the petition deserves to be dismissed.
So far as the termination of service of the two Security Guards is concerned it is contended that the allegation that their services were dispensed with because they refused to co operate with the management and give evidence against their co workers is denied.
It is, therefore, contended that their petition is without merit.
When these petitions reached hearing before this Court on October 13, 1987, this Court passed a common order di recting the Chief Secretary of Delhi Administration to spare the services of a Judge of the Labour Court to look into the facts of these cases and finalise its report so as to reach the Registry of this Court on or before December 18, 1987.
Since the inquiry could not be finalised within the time allowed the time was extended upto October 31, 1988.
Shri Bhola Dutt, Presiding Officer, Labour Court (VII) submitted his report on October 29, 1988.
Before finalising its report the Labour Court gave an opportunity to the contesting parties to file their pleadings.
Issues were framed thereaf ter, parties were permitted to lead oral and documentary evidence, counsel were heard on the evidence tendered and only thereafter the Labour Court recorded its findings.
It came to the conclusion that the 243 casual labourers had been doing conservancy work since several years and all of them were denied work when they reported for duty on January 24, 1987 and thereafter because the work of Safai Kamdars was handed over to M.C.D.w.e.f.
January 22, 1987.
It, howev er came to the conclusion that denial of work to all the 243 casual workers was not justified.
So far as the only sus pended employee Peon Umed Singh is concerned, the Labour Court opined that mere participation in the strike called by the Union would not furnish a sufficient cause to order large scale suspension of employees much less termination of their employment.
Since 33 of his colleagues similarly suspended were taken back in service there was no justifica tion to single out Umed Singh for different treatment, more so when no disciplinary action is initiated or contemplated against him.
With regard to the termination of Raju driver 's service, the Labour Court came to the conclusion that the management had acted in an illegal manner.
In the first place it was not possible to accept the reason that during the summer season there is paucity of work and hence the provisional offer made on July 4, 1987 had to be cancelled within twenty days on July 25, 1987.
It would it difficult to believe that 268 within such a short period there was a slump in work neces sitating cancellation of the order.
As to the second reason regarding his conviction under the Motor Vehicles Act it pointed out that the allegation that he had abused Amar Singh was not inquired into and the delinquent was not given an opportunity to explain his conduct.
Certain other allega tions by the management regarding his behaviour e.g. absence without prior intimation, etc., all amount to misconduct for which a departmental enquiry was necessary and in the ab sence of such an enquiry the order was unsustainable.
It therefore, held that the termination of Raju 's service was illegal.
The case of the two security guards has been dealt with in detail by the Labour Court.
The Labour Court points out that the management decided to refuse work to Bansi Dhar as his performance was not found to be satisfactory.
He was served with memos dated December 25, 1984, February 10, 1986 and February 20, 1987 with a warning to improve his perform ance failing which the management would be constrained to refuse work to him.
The note submitted by the Chief Security Officer on March 3, 1987 that his termination may be consid ered if he is found absent or indisciplined in future is indicative of the fact that the management desired to give him an opportunity to improve.
Nothing had happened between March 3, 1987 and April 2, 1987 to warrant the termination of his service.
The Labour Court, therefore, held that the termination of his employment by the order of April 2, 1987 was not sustainable.
As regards his companion Vipti Singh the management pointed out that apart from the fact that his service was not satisfactory as is reflected by the memos of August 14, 1985 and October 20, 1986, he was found to have signed the attendance register from March 23, 1987 to March 29, 1987 even though he was admittedly absent on those days.
The Labour Court examined this ground in detail and came to the conclusion that even though the workmen had signed his presence on those dates, some doubt arose on account of absence of cross marks in the register.
The Labour Court, therefore, came to the conclusion that the termination of the service was also not justified.
Taking note of the fact that the Union was demanding the upward revision of wages of non executive staff, housing facility and regularisation of casual labour and the manage ment 's failure to accede to the demands notwithstanding the meetings held on August 29, 1986, November 3, 1986 and January 19, 1987, the Labour Court came to the conclusion that the strike was legal and justified, peaceful and nonvi olent and for a duration of only three days.
The Labour Court also 269 came to the conclusion that there was no justification for resorting to the exercise of extraordinary powers under Rule 32 of the Rules.
In the view of the Labour Court participa tion in strikes and slogan shouting are part of trade union activity and hence it was not legal and proper to visit the twelve Union leaders with the extreme punishment of dismiss al from service.
It, therefore, held that their dismissal was illegal, unjustified and wholly arbitrary.
All the above findings of the Labour Court have been assailed by the TFAI in the objections to the report.
It is not necessary for us to indicate in detail the nature of the objections but suffice it to say that according to the TFAI the findings reached by the Labour Court are one sided, perverse and contrary to the evidence on record.
We have perused the objections as well as the reply filed thereto by the petitioners.
From the above resume it clearly emerges that the char ter of demands put forth by the Union was pending considera tion.
The main demands were three in number, namely, (i) for upward revision of wages (ii) for regularisation of services of casual labour and (iii) for providing housing facilities to the employees.
Efforts to settle these pending issues through negotiations were made at the level of the Chief General Manager and it appears that this response was not negative.
It appears that the question of regularisation of casual and daily rated workers was referred to the Standing Committee of the Board which had taken the tentative deci sion to create 85 posts on the regular establishment for regularisation.
This proposal was forwarded to the I.W.S. unit of the concerned Ministry for approval.
However since the final decision was delayed the union leaders become restive.
The Union representatives, therefore, decided to call a General Body Meeting to decide on the future course of action.
On January 15, 1987 it wrote to the management to permit it to hold a meeting on January 19, 1987.
Notwith standing the refusal of the permission the Union was com pelled to hold the meeting as it had informed its members and it was not possible to shift the venue at short notice.
The angered leaders who addressed the workers condemned the management 's action in refusing to solve the outstanding problems of the workers in strong language.
We have perused the extracts from their speeches on which TFAI relies.
The language used is no doubt harsh and it would have been proper if such language had been avoided.
Counsel for TFAI also strongly contended that since the strike was illegal the workers are not entitled to any relief.
We see no merit 270 in this submission.
The right to form association or unions is a fundamental right under Article 19(1)(c) of the Consti tution.
Section 8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled.
The right to form associations and unions and provide for their registration was recognised obviously for conferring certain rights on trade unions.
The necessity to form unions is obviously for voicing the de mands and grievances of labour.
Trade unionists act as mouthpieces of labour.
The strength of a trade union depends on its membership.
Therefore, trade unions with sufficient membership strength are able to bargain more effectively with the managements.
This bargaining power would be consid erably reduced if it is not permitted to demonstrate.
Strike in a given situation is only a form of demonstration.
There are different modes of demonstrations, e.g., go slow, sit in, work to rule, absentism, etc., and strike is one such mode of demonstration by workers for their rights.
The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers.
This right has been recognised by almost all democratic countries.
Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers.
But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it.
These are to be found in sections 10(3), 10A(4A), 22 and 23 of the (`I.D. Act ' for short).
Section 10(3) empowers the appropriate Government to prohibit the continuance of a strike if it is in connection with a dispute referred to one of the fora created under the said statute.
Section 10A(4A) confers similar power on the appropriate Government where the industrial dispute which is the cause of the strike is referred to Arbitration and a notification in that behalf is issued under Section 10(3A).
These two provisions have no application to the present case since it is no body 's con tention that the union 's demands have been referred to any forum under the statute.
The field of operation of Sections 22 and 23 is differ ent.
While Section 10(3) and Section 10A(4A) confer power to prohibit continuance of strike which is in progress, Sec tions 22 and 23 seek to prohibit strike at the threshold.
Section 22 provides that no person employed in a public utility service shall proceed on strike unless the require ments of clauses (a) to (d) of sub section (1) thereof are fulfilled.
The expression 'public utility service ' is de fined in Section 2(n) and indisputably TFAI does not fall within that expression.
Section 23 next imposes a general restriction on declaring strikes in breach of contract during pendency of (i) conciliation proceedings.
(ii) pro ceed 271 ings before Labour Court, Tribunal or National Tribunal, (iii) arbitration proceedings & (iv) during the period of operation of any settlement or award.
In the present case no proceedings were pending before any of the aforementioned fora nor was it contended that any settlement or award touching these workmen was in operation during the strike period and hence this provision too can have no application.
Under Section 24 a strike will be illegal only if it is commenced or declared in contravention of Section 22 or 23 or is continued in contravention of an order made under Section 10(3) or 10A(4A) of the I.D. Act.
Except the above provisions, no other provision was brought to our attention to support the contention that the strike was illegal.
We, therefore, reject this contention.
The next question is whether the material on record reveals that the office bearers of the union had given threats to officials of TFAI as alleged.
The Labour Court has negatived the involvement of office bearers of the union in giving threats either in person or on telephone.
We have perused the evidence on record in this behalf and we are inclined to think that there were angry protests and efforts to obstruct the officers from entering the precints of TFAI but there is no convincing evidence of use of force or violence.
From what we have discussed above we are of the view that although TFAI was sympathetic to regularisation of service of the casual workers, since the proposal had to pass through various levels it was not possible to take an early decision in the matter.
It was held up in the Ministry for which TFAI could not be blamed.
So also the proposal to revise the wages of non executive staff was under considera tion since some time.
However, the Union leaders lost pa tience and took a decision to proceed on strike on the eve of the President 's visit to TFAI.
This action of the Union impelled TFAI to make alternative arrangements.
It, there fore, dismissed the 12 union leaders invoking Rule 32 of the Rules.
On going through the material placed before the Labour Court, we feel that the criticism levelled by TFAI that it exceeded its brief and has betrayed a somewhat one sided approach cannot be said to be wholly misplaced.
We have, however, looked to the bare facts found by it.
We are howev er disinclined to analyse the evidence before the Labour Court because we are of the view that even though TFAI was not averse to the demands of labour it could not take a final decision at an early date for want of approval from the concerned Ministry.
This angered the Union representa tives more particularly because the 272 executive staff was granted upward revision of salary, allowances, etc., and hence they decided to call a meeting of the general body to decide on the future course of ac tion.
In their frustration they decided to put pressure by proceeding on strike.
During the strike period certain events happened which we wish were avoided.
But fortunately nothing destructive, meaning thereby damaging to the proper ty of TFAI, took place.
A few brushes and exchange of strong words appear to have taken place which are described as threats by the management.
The vast mass of labour was only responding to the call of the Union.
Even the union repre sentatives were acting out of frustration and not out of animoisity for the officers.
The facts of this case, there fore, demand that we appreciate the conduct of both sides keeping in mind the prevailing overall situation.
While the workers were frustrated for want of an early solution, the management was worried because of the impending visit of the President on January 25, 1987.
Instead of trying to lay the blame at the door of either party, which would only leave a bitter taste for long, we think we should resolve the crisis in the larger interest of the institution.
Taking an overall view of the facts and circumstances which emerge from the oral as well as documentary evidence placed on record, we are of the opinion that while some of the Union leaders acted in haste, they do not appear to have been actuated by any oblique motive.
The management also took action against the workmen not because it was unsympa thetic towards their demands but because of the anxiety caused to them on account of untimely action taken by the Union only a few days before the President 's scheduled visit to the fare.
The management also felt hurt as its reputation was at stake since several dignitaries from abroad were participating in the fare.
Its action must, therefore, be appreciated in this background.
The interest of the institution must be paramount to all concerned including the workmen.
At the same time this Court cannot be oblivious to the economic hardship faced by la bour.
We have already pointed out earlier how both parties reacted to the tense atmosphere that built up over a period of time.
The facts found by the labour court clearly show that while the labour was frustrated as its demands were outstanding since long and they were finding it difficult to combat the inflation without an upward revision in wages, etc., the management was worried about TFAI 's reputation likely to be lowered in the eyes of visiting dignitaries because of certain events that were happening due to the workers ' agitation.
In these circumstances it would be unwise and futile to embark upon a fault finding mission.
273 Keeping the interest of the institution in mind and bearing in mind the economic hardships that the labour would suffer if the impugned orders are not set aside, we think that it would be desirable to restore the peace by directing the re instatement of the workers.
However, so far as the case of the security guard Vipti Singh is concerned, we are constrained to say that the material on record does disclose that he had signed the attendance register showing his presence from March 23, 1987 to March 29, 1987 even though he was in fact absent on those days.
His explanation in this behalf is far from convincing.
We are, therefore, of the opinion that he deserves punishment, but not the extreme punishment of dismissal from service.
We think that the ends of justice would be met if we direct his reinstatement without back wages.
So far as the case of driver Raju is concerned, it must be pointed out that the management cancelled the offer of July 4, 1986 by the letter of July 25, 1986 because of his conviction under Sections 87 and 113 of the Motor Vehicles Act and his so called outrageous behaviour with the dealing assistant on July 22, 1986.
These being clearly acts of misconduct, the action of the management must be held to be penal in nature and cannot be sustained as it was taken without hearing the delinquent.
To hold an enquiry against him at this late stage is not desirable.
In the result all the writ petitions are allowed and the rule is made absolute in each case to the extent indicated hereinafter.
The management will prepare a list of casual daily rated workers who were its employees prior to the strike on January 21, 1987 in accordance with their seniori ty, if such a list does not exist.
TFAI will provide them work on the same basis on which they were given work prior to the strike.
After the seniority list is prepared TFAI will absorb 85 of the seniormost casual workers in regular employment pending finalisation of the regularisation scheme.
TFAI will complete the regularisation process within a period of 3 months from today.
TFAI will determine the .umber of casual employees who would have been employed had they not proceeded on strike.
The wages payable to such casual employees had they been employed for the period of 6 months immediately preceding the date of this order will be worked out on the basis of actual labour employed and the amount so worked out will be distributed amongst the casual employees who report for work in the next three months after TFAI resumes work to casual labour.
Peon Umed Singh, Securi ty Guard Bansi Dhar and Driver Raiu will also be reinstated in service forthwith.
They too will be paid 274 back wages (less suspension allowance, if any) for a period of 6 months immediately preceding this order.
So far as Driver Raju is concerned he will be absorbed in regular service as per the offer made in the letter of July 4, 1987 disregarding the subsequent communication of July 25, 1987.
The security guard Vipti Singh will also be reinstated in service but without back wages.
In the case of the 12 dis missed workers we are, on the facts placed before us, of the view the circumstances did not exist for the exercise of extraordinary powers under Rule 32 of the Rules.
The orders terminating the services of the 12 union representatives are therefore set aside and they are ordered to be reinstated in service forthwith with back wages coveting a period of 6 months immediately preceding the date of this order.
They should be reinstated forthwith.
In view of the above direc tions no further order is required on the C.M.P TFAI will pay Rs.5,000 in all by way of costs to the Union.
Y. Lal Petition allowed.

summary/full:
Trade Fair Authority of India Employees ' Union had been demanding from the management (i) housing facilities for the employees; (ii) regularisation of at least 50% of casual or daily rated employees and (iii) upward revision of the salaries and allowances of the workers.
These demands were discussed by the Union with the management from time to time but nothing concrete except assurances emerged.
On October 29, 1986, the Union wrote to the General Manager seeking implementation of the assurances not later than November 15, 1986.
It was also communicated that the workers would pro ceed on one day 's token strike on 13.11.86, if no action was taken.
In response thereto the General Manager only assured the Union representatives that the Standing Committee which was seized of the matter, would be requested to take up the matter on priority basis but things remained standstill till the end of November 1986 and the reminders sent thereafter also did not yeild the desired result.
Thereupon on January 15, 1987 the Union sought permission to hold the general body meeting on 19.1.87 during lunch interval and in antici pation of the grant of such permission issued notices of the meeting to the members.
The General Manager however declined to grant the necessary permission.
But the General Body Meeting of the Union was held as scheduled and a decision was taken to strike work on 21.1.1987 aS a protest.
The management was put on notice, which reacted by suspending the President, Vice President & other Executive Members of the Union.
WOrkers ' demand for withdrawal of the orders of suspension was rejected.
Instead all the remaining office bearers & leading activists were suspended.
These suspended employees have filed a writ petition 258 challenging their suspension.
During the strike some workers attended duty while some others gave undertaking in the prescribed form; all such workers were allowed to work but others who refused to sign the Undertaking but reported for work were denied employ ment Efforts to solve the unemployment problem of such employees having failed, they too have filed a writ petition seeking necessary relief.
By its order of March 3, 1987 the management terminated the services of all the 12 office bearers under Rule 32 of the Trade Fair Authority of India Employees (Conduct, Disci pline and Appeal) Rules 1977 without holding a departmental inquiry as contemplated by Rules 27 to 29 of the Rules.
According to the management the reason for not holding the inquiry was that the workers had terrorised & intimidated not only the Disciplinary Authority but also the witnesses and an atmosphere of violence, general in discipline and insubordination was created, as a result of which it was not practicable to hold the inquiry.
These dismissed employees have also filed a Writ Petition.
One Raju, a casual laborer of TFAI since 1982, was selected on July 4, 1986 as a Mini stiller Driver.
He joined the new post on the same day but his appointment was can celled without assigning any reason and he was reverted as a daily wager.
He too had joined the others for regularisation of his service and has taken part in the strike.
His serv ices were terminated on December 1, 1986 without any in quiry.
He too has filed a Writ Petition challenging the action of the management.
Another Writ Petition has been filed by two daily rated Security Guards of TFAI whose services were terminated, even though they had remained on duty during the strike.
Their contention is that they were dismissed as they refused to falsely implicate their co workers who had espoused their cause.
They urge their 's was a case of victimisation.
In the counter affidavit filed on behalf of the manage ment, it was urged that as the petitions require collection and adjudication of facts, the petitioners should be rele gated to the Industrial Tribunal or the concerned High Court.
On merits, it was contended that the office bearers of the Union had created an atmosphere of violence and had paralysed the smooth running of the TFAI from November 1986 onwards; the officials being terrified were unable to func tion; that the union held the meeting even though permission was refused for the purpose; that provocative speeches undermining discipline were made 259 at the meeting, and that the ultimate termination of the services was motivated, nor coercive.
As the strike neither was prolonged, the management was forced to make alternative arrangements including those of the security as the Presi dent of India was to inaugurate AHARA 1987 on January 25, 1987 and foreign VIPs were expected to visit the Pragati Maidan.
To ensure proper security, the management was even forced to file a suit and obtain an injuction from the High Court restraining the union members from preventing and obstructing the entry of delegates, guests & dignitaries into Pragati Maidan.
Likewise the management sought to defend its action in regard to casual labour by saying that 85 posts were consid ered necessary for regularisation and the matter was pending with the Standing Committee.
It was denied that the manage ment was not sympathetic.
On similar grounds the action taken by the management against Raju and the two security guards were sought to be justified.
When the Petitions reached hearing, the Court directed the Delhi Administration to spare the services of a Judge of the Labour Court to look into the facts of these cases and transmit his report to this Court.
The concerned Judge considered the facts of each case after giving full opportu nity of hearing and leading evidence to the parties and thereafter submitted his report to this Court.
On most of the issues involved the Judge found in favour of the work men.
Allowing the Writ Petitions with directions this Court, HELD: The right to form association or Unions is a fundamental right under Article 19(1)(c) of the Constitu tion.
The necessity to form unions is obviously for voicing the demands and grievances of labour.
The trade unionists act as mouthpieces of labour, [270A B] Strike in a given situation is only a form of demonstra tion, e.g. go slow.
sit in work to rule absentism etc.
Strike is one such mode of demonstration by workers for their rights.
The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers.
This right is recognised by almost all Democratic Countries.
But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on it by section 10(3), 10A (4A), 22 and 23 the Industrial Disputes Act.
These provisions, however, have no application to the present case since it is no body 's contention that the Union 's demands had been referred to any forum under the statute.
Though there were angry protests and 260 efforts to obstruct the officers from entering the precincts of TFAI there was no convincing evidence of use of force of violence.
[270C F] Although TFAI was sympathetic to regularisation of service of the casual workers, since the proposal had to pass through various levels it was not possible to take an early decision in the matter.
In their frustration workers decided to put pressure by proceeding on strike.
During the strike certain events happened which were avoidable but nothing destructive meaning thereby damaging the property of TFAI took place.
[271H; 272A] So far as the case of security guard Vipti Singh is concerned, we are constrained to say that the material on record does disclose that he had signed the attendance register showing his presence from March 23, 1987 to March 29, 1987, even though he was in fact absent on those days.
His explanation in this behalf is far from convincing.
The ends of justice would be met if his re instatement without back wages is directed.
[273B C] In the case of Raju, the action of the management must be held to be penal in nature and cannot be sustained as it was taken without hearing the delinquent, [273D] Keeping in view the interest both of the labour and the institution, the Court directed that the management will prepare a list of casual daily rated workers who were its employees prior to the strike on January 21.
1987 in accord ance with their seniority, if such a list does not exist.
TFAI will provide them work on the same basis on which they were given work prior to the strike.
After the seniority list is prepared TFAI will absorb 85 of the seniormost casual workers in regular employment pending finalisation of the regularisation scheme.
TFAI will complete the regulari sation process within a period of 3 months from to day.
TFAI will determine the number of casual employees who would have been employed had they not proceeded on strike.
The wages payable to such casual employees had they been employed for the period of 6 months immediately preceding the date of this order will be worked out on the basis of actual labour employed and the amount so worked out will be distributed amongst the casual employees who report for work in the next three months after TFAI resumes work to casual labour.
Peon Umed Singh, Security Guard Bansi Dhar and Driver Raju will also be re instated in service forthwith.
They too will be paid back wages (less suspension allowance, if any) for a period of six months immediately preceding this order.
So far as Driver Raju is concerned he 261 will be absorbed in regular service as per the offer made in the letter of July 25, 1987.
The Security Guard Vipti Singh will also be re instated in service but without back wages.
In the case of the 12 dismissed workers the circumstances did not exist for the exercise of extraordinary powers under Rule 32 of the Rules.
The orders terminating the service of the 12 union representatives are therefore set aside and they are ordered to be retained in service forthwith with hack wages covering a period of six months immediately preceding the date of this order.
They should be reinstated forthwith.
[273E H; 274A B] TFAI to pay Rs.5,000 by way of costs to the Union.
[274C]


judgement:
vil Appeal Nos.
4068 70 of 1989 etc.
9 From the Judgment and Order dated 26.8.88 of the Cen tral Administrative Tribunal, Bangalore in Appln.
99 1 993 of 1988.
For the appearing parties: G. Ramaswamy, Additional Solicitor General, Anil Dev Singh, 277 U.R. Lalit, C.V. Subba Rao, T.C. Sharma, Ms. A. Subhashini, C.S. Vaidyanathan, S.R. Setia, S.R. Bhat, Mrs. V.D. Khanna, R. Ramachandran, N.B. Bhat, Altar Ahmed, and S.K. Bhattacha rya.
The Judgment of the Court was delivered by DUTT, J.
These special leave petitions have been heard at length and elaborate submissions have been made on behalf of the parties at the preliminary hearing and, accordingly, we grant special leave in all these matter and proceed to dispose of the same on merits.
These appeals have been preferred by the Union of India and some erstwhile Emergency Commissioned Officers (for short 'ECOs ') and Short Service Commissioned Officers (for short 'SSCOs ') and directed either against the judgment of the learned Single Judge of the Calcutta High Court or against the judgment of the Central Administrative Tribunal, Bangalore.
The Tribunal has struck down the impugned rules, namely, rule 3(2)(d) of the Indian Forest Service (Regula tion of Seniority) Rules, 1968, hereinafter referred to as 'IFS (Regulation of Seniority) Rules, 1968 ', and clauses (c) and (d) of sub rule (3) of rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954, hereinafter referred to as 'IPS (Regulation of Seniority) Rules, 1954 ', as ultra vires Articles 14 and 16 of the Constitution of India and has directed the Government of India to assign fresh years of allotment to the ECOs and SSCOs, who were some of the respondents before the Tribunal.
Before the Calcutta High Court, rule 3(2)(d) of the IPS (Regulation of Seniority) Rules, 1954 was involved and the High Court on a construction of that rule allowed the writ petition of the respondents and set aside the impugned order relating to the year of allotment of ECOs and SSCOs.
The period between 1.11. 1962 and 10.1.
1968 is marked by three events, namely, Indo Chinese War followed by Indo Pakistan War and the proclamation of emergency.
These ECOs and SSCOs voluntarily entered the Armed Forces of the Union of India at a time when the security of the nation was in peril due to external aggression.
As they were engaged in defending the country by accepting the war service, they did not get any opportunity to enter into civil services.
The Central Government assured them that after the cessation of emergency, they will be rehabilitated in civil life so that they might not 278 suffer on account of their rendering services to the nation.
The grievance of the respondents who have been recruited to Indian Forest Service or the Indian Police Service from State Services is that although the ECOs or SSCOs, have been recruited in the said All India Services after the respond ents, yet their year of appointment has been fixed earlier than the year of allotment of the respondents.
At this stage, we may refer to the impugned rules.
Rule 3(2)(d) of the IFS (Regulation of Seniority) Rules, 1986 provides as follows: "3(2).
The year of allotment of an officer appointed to the Service shall be (a). . . . . . (b). . . . . . (c). . . . . . (d) Where an officer is appointed to the Service in accordance with rule 7A of the Recruitment Rules, deemed to be the year in which he would have been so appointed at his first or second attempt after the date of joining pre commission training or the date of his commission where there was only post commission training according as he qualified for appointment to the Service in his first or second chance, as the case may be, having been eligible under regulation 4 of the Indian Forest Service (Appointment by Competitive Examination) Regulations, 1967.
Explanation.
If an officer, who qualified himself for appointment to the Service in a particular year, could not be so appointed in that year on account of non availability of a vacancy and is actually appointed in the next year, then his year of allotment would be depressed by one year.
He shall be placed above all the officers re cruited under Rule 7A of the Recruitment Rules and who have the same year of allotment.
" Rule 3(2)(d) refers to rule 7A of the Recruitment Rules which provides, inter alia that till January 28, 1974, 20 per cent of the per 279 manent vacancies in the Indian Foreign Service to be filled by direct recruitment in any year shall be reserved for being filled by ECOs and SSCOs of the Armed Forces of the Union of India, who were commissioned after November 1, 1962 and who have been released from the Armed Forces after a spell of service.
Clauses (c) and (d) of sub rule (3) of rule 3 of IPS (Regulation of Seniority) Rules, 1954 provides as follows: "3(3)(a) . . . . . (d) . . . . . (c) The year of allotment of an offi cer appointed to the Service in accordance with rule 7A of the Indian Police Service (Recruitment) Rules, 1954, shall be deemed to be the year in which he would have been so appointed at his first or second attempt after the date of joining pre commission training or the date of his commission where there was only post commission training according as he qualified for appointment to the Service in his first or second chance, as the case may be, having been eligible under rule 4 of the Indian Police Service (Appointment by Competi tive Examination) Regulations, 1955.
Explanation.
If an officer, who qualified himself for appointment to the Service in a particular year could not be so appointed in that year on account of non availability of a vacancy and is actually appointed in the next year then his year of allotment would be depressed by one year.
He shall be placed above all the officers recruited under Rule 7A of the Recruitment Rules and who have the same year of allotment.
(d) The year of allotment of an offi cer appointed to the Service in accordance with rule 7A of the Indian Police Service (Recruitment) Rules, 1954, having been eligi ble under the second proviso to sub regulation (iii) of Regulation 4 of,the Indian Police Service (Emergency Commissioned and Short Service Commissioned Officers) (Appoint 280 ment by Competitive Examination) Regulations, 1971, shall be deemed to be the year in which he would have been so appointed at his first or second attempt, after the date of joining pre commission training or the date of his Commission where there was only post comission training and also after the lapse of as many years as would have been necessary for him to complete his studies, in the normal course, for the award of the educational qualifica tions prescribed for direct recruitment to the Indian Police Service according as he quali fied for appointment to the Service in his first or second chance as the case may be." Both the above rules, namely, IFS (Regulation of Senior ity) Rules, 1968 and IPS (Regulation of Seniority) Rules, 1954 have been framed under All India Services Act, 1954, hereinafter referred to as 'the Act '.
The Act, before it was amended, conferred power on the Central Government to make rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Services.
No power was, however, conferred by the Act on the Central Government to frame rules with retrospective effect.
The impugned rules, namely, rule 3(2)(d) of the IFS (Regulation of Seniority) Rules, 1968 and clauses (c) and (d) of sub rule (3) of rule 3 of IPS (Regulation of Seniority) Rules, 1954 are admittedly retrospective in operation.
It is now a settled principle of law that if the statute under which a rule is framed does not confer on the authority concerned the power to make such a rule with retrospective effect, the authority will have no power to frame any rule with retro spective effect.
The impugned rules, with which we are concerned, have been made by the Central Government with retrospective effect, although there was no such power conferred by the Act in that regard.
The All India Services (Amendment) Act, 1975 has been enacted by Parliament for the purpose of validating the impugned rules.
By section 2 of the Amendment Act, a new sub section (1 A) has been inserted after sub section (1) of section 3 of the Act, which has been referred to as "the principal Act" in the Amendment Act.
Sub section (1 A) pro vides as follows: "(1 A).
The power to make rules conferred by this section shall include the power to give retrospective effect from a 281 date not earlier than the date of commencement of this Act, to the rules or any of them but no retrospective effect shall be given to any rule so as to prejudicially affect the inter ests of any person to whom such rule may be applicable.
" The provision for validation is contained in section 3 of the Amendment Act and it reads as follows: "3.
No rule made, or purporting to have been made, with retrospective effect, under section 3 of the principal Act before the commencement of this Act shall be deemed to be invalid or ever to have been invalid merely on the ground that such rule was made with retrospective effect and accordingly every such rule and any action taken or thing done thereunder shall be as valid and effective as if the provisions of section 3 of the principal Act, as amended by this Act, were in force at all material times when such rule was made or action or thing was taken or done.
" The ECOs and SSCOs, who are some of the appellants, after demobilisation of the military emergency service, have been appointed in the Indian Police Service and the Indian Forest Service in 1969.
In view of their past service in the army, which they had voluntarily joined for the defence of the country during the period between 1.11.
1962 and 10.1.
1968, the impugned rules were framed providing for the year of allotment of such officers appointed in the Indian Police Service or in the Indian Forest Service with retrospective effect from the date they would have been appointed at their first or second attempt after the date of joining pre com mission training or the date of their commission where there was only post commission training.
Thus, even if an officer has been appointed in an All India Service in 1969 in a regular manner after being selected on the basis of the result of the competitive examination in 1969, his year of allotment will be one or two years after his joining the pre commission training in the army service.
Suppose, an officer, after having been selected for the army service, joined his pre commission training in 1963.
In 1963 he was, therefore, eligible for taking a competitive examination for being recruited to an All India Service.
If he was not successful, he would get a second chance in the next year, that is, in 1964.
If, after his release from the army in 1968, he took the competitive examination and successfully competed in such examination and was selected for appoint ment in the first chance.
according to the impugned rules, his 282 year of all allotment would be 1963.
If he was either not successful in his first attempt or did not avail himself of the same, he would have another chance to compete in the examination for recruitment in an All India Service in the next year, that is, in 1969 and if he was successful and appointed, his year of allotment would be 1964.
In other words, and impugned rules give weightage to ECOs and SSCOs of the past services rendered by them in the emergency army service.
It has been already noticed that the Tribunal has struck down the impugned rules as ultra vires the provisions of Articles 14 and 16 of the Constitution.
According to the Tribunal, the impugned rules are discriminatory in nature without any reasonable justification therefore and thus offends against the provisions of Articles 14 and 16 of the Constitution.
The same contention has been advanced on behalf of the respondents before us.
It has not been disput ed before the Tribunal and also before us, that the ECOs and SSCOs formed a definite class, distinct from the respondents or other officers of Indian Forest Service and Indian Police Service.
In other words, it is the admitted position that the classification of ECOs and SSCOs is rounded on an intel ligible differentia which distinguishes them from the re spondents and other officers of Indian Police Service and Indian Forest Service.
It has, however, been strenuously 'urged that the differentia on which the classification is rounded is lacking in rational relation to the object sought to be achieved by the impugned rules and, as such, it does not satisfy the test of reasonable classification as contem plated by Article 14 of the Constitution.
This is also the view of the Tribunal.
We are unable to accept the contention.
The impugned rules have been framed with a view to giving weightage to the ECOs and SSCOs in recognition of their past services in the army during the period of emergency.
We fail to under stand why the classification has no rational relation to the objects sought to be achieved by the impugned rules.
The classification has been made only for the purpose of compen sating the ECOs and SSCOs for their lost opportunity because of their joining the army service and the impugned rules best subserve the purpose.
Accordingly, we do not think that there is any merit in the finding of the Tribunal and also in the contention of the respondents that the impugned rules are violative of the provisions of Articles 14 and 16 of the Constitution.
Both the High Court and the Tribunal have taken the view that although section 3 of the All India Services (Amend ment) Act, 1975 validates the impugned rules purporting to have been made with 283 retrospective effect, yet the impugned rules are invalid inasmuch as they prejudicially affect the interests of the respondents.
Much reliance has been placed by the respond ents on the provision of the new sub section (I A) of sec tion 3(1) of the Act as inserted by section 2 of the Amend ment Act, 1975.
Sub section (1 A) provides, inter alia, that no retrospective effect shall be given to any rule so as to prejudicially affect the interests of any person to whom such rule may be applicable.
The contention of the appel lants is that sub section (1 A) is itself not retrospective in operation and, as such, has no application to the im pugned rules which are retrospective in operation, that is, before sub section (1 A) was inserted in section 3.
It is, however, difficult to accept the contention of the appellants that sub section (i A) is only prospective and does not apply to the impugned rules which are retro spective in operation.
It has been already noticed that the impugned rules have been validated with retrospective effect by section 3 of the Amendment Act which, in validating any rule made with retrospective effect under section 3 of the Act, provides that no such rule shall be deemed to have been invalid or ever to have been invalid merely on the ground that such rule was made with retrospective effect and, accordingly, every such rule and any action taken or thing done thereunder shall be as valid and effective as if the provisions of section 3 of the Act (principal Act), as amended by the Amendment Act, were in force at all material times when such rule was made or action or thing was taken or done.
In view of section 3, it has to be deemed that provisions of Section 3, as amended by the Amendment Act, were in force at all material times when such rule was made.
In view of the provisions of section 3 of the Amendment Act, sub section (1 A) which has been inserted in section 3 of the Act by way of amendment, must be deemed to be in force at the time the impugned rules were made.
But the question is, even though sub section (1 A) is deemed to have been there at the time the impugned rules were framed with retro spective effect, whether the impugned rules prejudicially affect the interests of the respondents.
It is urged on behalf of the respondents that the im pugned rules take away the vested rights of the respondents and, consequently, prejudicially affect their interests.
Accordingly, it is submitted that the impugned rules are illegal and cannot operate retrospectively in the face of the provision of sub section (1 A).
This contention does not at all impress us.
The respondents have been given a partic ular seniority in accordance with the relevant rules.
The seniority of the respondents is not taken away or interfered with by the impugned rules.
The year of 284 allotment of the respondents remains the same and is not altered to their prejudice.
The impugned rules only provide for giving weightage to the ECOs and SSCOs for their past services in the army during the emergency period and their year of allotment will be determined in accordance with the impugned rules.
It is, however, complained that by giving the ECOs and SSCOs a year of allotment which is prior to the year of allotment of the respondents, the respondents have become their juniors and their (respondents) chances of promotion are seriously affected.
At this stage, we may also notice the contention of Mr. Raju Ramachandran, learned Counsel appearing on behalf of some of the respondents.
It is submitted by the learned Counsel that as the respondents have acquired a particular seniority, section 3 of the Act as amended, if read as suggested by the army officers, would contravene the funda mental rights of the respondents.
This extreme contention is not sustainable on the face of it, for even assuming that the seniority of the respondents or their chances of promo tion are affected by the impugned rules, surely it cannot be said that there has been a contravention of the fundamental rights of the respondents.
Nobody has any fundamental right to a particular seniority or to any chance of promotion.
It is not the case of respondents that because of the impugned rules their cases for promotion will not be taken into consideration by the authorities.
The decision in A. Janard hana vs Union of India; , has no manner of application to the facts and circumstances of the instant cases.
In that case, this Court has laid down that it is open to the Government to retrospectively revise service rules, it the same does not adversely affect vested rights.
Further, it has been observed as follows: "After the promotee is promoted, continuously renders service and is neither found wanting nor inefficient and is discharging his duty to the satisfaction of all, a fresh recruit from the market years after promotee was inducted in the service comes and challenges all the past recruitments made before he was born in service and some decisions especially the ratio in Jaisinghani 's case as interpreted in two B.S. Gupta 's cases gives him an advantage to the extent of the promotee being preceded in seniority by direct recruit who enters service long after the promotee was promoted.
When the promotee was promoted and was render ing service, the direct recruit may be a schoolian or college.
going boy.
He emerges from the education institu 285 tion, appears at a competitive examination and starts challenging everything that had hap pened during the period when he has had noth ing to do with service.
" We have already pointed out that the impugned rules do not affect the vested rights of the respondents adversely.
In Janardhana 's case, this Court was dealing with the ques tion of seniority of promotees vis a vis fresh recruits from the market and observed that when the promotee was promoted and was rendering service, the direct recruit might be a schoolian or college going boy.
In the instant cases before us, the dispute is not between promotees and direct re cruits, the latter having no past services to their credit.
The ECOs and SSCOs are not in the position of direct re cruits, for they have a record of past services in the army which have been taken into consideration for fixing their year of allotment in accordance with the impugned rules.
So, Janardhana 's case has no manner of application to the facts and circumstances of the instant case before us.
It is not that for the first time by impugned rules, the past services of the ECOs and the SSCOs have been taken into consideration for the purpose of giving them their year of allotment with retrospective effect, that is to say, on a date earlier than their actual appointment in the Indian Police Service or in the Indian Forest Service, as pointed out by Mr. G. Ramaswamy, learned Additional Solicitor Gener al appearing on behalf of the Government appellants.
The learned Additional Solicitor General has drawn our attention to the notings in the Government files for the purpose of showing the Government policy to rehabilitate the ECOs and SSCOs in All India Services, Central Services and State Services in order to ensure good response and to provide sufficient incentives for those who offered themselves for emergency commissions.
These, notings start from November 17, 1962.
It is not necessary for us to make a particular reference to the notings in the Government files.
Suffice it to say that in view of the voluntary offer of services by the of youngmen our country to defend the country against foreign aggression, the Government took a very sympathetic view and took steps to compensate them after their discharge from the Emergency Commission Service, for the opportunity lost by them in joining the All India Services.
One thing which is very significant to be mentioned here that although their past services were taken into consideration, the Government did not relax the minimum qualifications required for the All India Services.
These ECOs and SSCOs had to appear in the competitive tests held by the Union Public Service Commission and they were appointed only 286 after they become successful in such tests.
In this connection, we may refer to the Office Memoran dum dated January 29, 1966 providing for the rehabilitation of the ECOs and SSCOs recruited since November 1, 1962, after their release from the Armed Forces.
The contents of the Memorandum are in the nature of executive instructions, but such executive instructions were followed and were given effect.
Paragraph 6 of the Memorandum which deals with seniority and pay reads as follows: "6.
Seniority and pay.
Seniority and pay of those candi dates who are appointed against the reserved vacancies in the All India and Central Serv ices would be determined on the assumption that they entered service/post at the first opportunity they had after joining for pre Commission training.
The principles regarding fixation of pay and seniority laid down in this Ministry 's Office Memorandum No. F. 35/11/62 Ests.
(E) dated the 6th August, 1963 read with Office Memorandum of even number dated 15th February, 1965 (copy enclosed) will apply mutatis mutandis to determine the pay and seniority of ex Emergency Commissioned Officers/Short Service Regular Commissioned Officers appointed against the reserved vacan cies.
" Thus, although the impugned rules were not in existence in 1966, the executive instructions as contained in the Office Memorandum conferred the same benefit as conferred by the impugned rules.
In other words, it is apparent that the executive instructions have now been adopted as rules framed under the Act.
Even otherwise, the Released Emergency Com missioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1967, framed by the Presi dent of India under the proviso to Article 309 and clause (5) of Article 148 of the Constitution of India, contained similar provisions as to the seniority and pay of ECOs and SSCOs.
Indeed, the provision of rule 6 relating to seniority of pay of ECOs and SSCOs is somewhat similar to paragraph 6 of the Office Memorandum.
The date of commencement of the said rules is significant to be noticed.
Under subrule (2) of rule 1, the said rules shall be deemed to have come into force with effect from January 29, 1966 which is the date of the said Office Memorandum.
It is, therefore, manifestly clear that the executive instructions, as contained in the Office Memorandum, have been 287 incorporated in the form of rules framed under proviso to Article 309 and clause (5) of Article 148 of the Constitu tion of India.
It is, however, submitted on behalf of the respondents that in view of the All India Services (Conditions of Serv ice Residuary Matters) Rules, 1960 (for short 'Residuary Rules '), the said rules framed under the proviso to Article 309 and clause (5) of Article 148 of the Constitution of India will not apply to persons appointed to an All India Service.
The contention, in our opinion, is not correct, for clause (a) of rule 2 of the Residuary Rules provides that the Central Government may make regulations to regulate any matters relating to conditions of service of persons ap pointed to an All India Service for which there is no provi sion in the rules made or deemed to have been made under the Act and until such regulations are made such matters shall be regulated in the case of persons serving in connection with the affairs of the Union of India, by the rules, regu lations and orders applicable to officers of the Central Services Class I.
Admittedly, no rules under the Act were then framed in regard to the seniority of ECOs and SSCOs and/or granting them weightage for their past war service and, accordingly, the rules framed under the proviso to Article 309 and clause (5) of Article 148 of the Constitu tion of India applicable to Class I Officers of the Central Government were also applicable to ECOs and SSCOs relating to their seniority in the All India Services.
It is urged on behalf of the appellants that while the benefit of weightage is being conferred on the discharged ECOs and SSCOs way back from 1966, the writ petitions of the respondents should have been dismissed on the ground of inordinate delay and laches.
In support of this contention, some decisions have been cited by the appellants.
Similarly, the respondents have also placed reliance on some other decisions of this Court.
We do not think that after the writ petitions were entertained by the Calcutta High Court and by the Tribunal and disposed of on merits, it will be proper at this stage to dismiss the writ petitions on the ground of inordinate delay or laches.
At the same time, it should be borne in mind that when a particular rule conferring bene fits on a particular group of Government servants in recog nition of their past services in the army, has been in operation for over twenty years, this Court will be very slow to interfere with the rule and deprive such group of Government servants of the benefits so conferred on them.
This, however, does not mean that this Court will shut its eyes even though such rules are illegal and are violative of the provisions of Articles 14 and 16 of the Constitution.
He have, however, held that the impugned rules do not offend against or infringe the provi 288 sions of Articles 14 and 16 of the Constitution.
Now, we may consider the contention of Mr. Lalit, learned Counsel appearing on behalf of the respondents in the appeal arising out of S.L.P. (C) No. 10105, of 1988.
These respondents were in the State Forest Service before 1966 and, subsequently, absorbed in the Indian Forest Serv ice under the Central Government.
It is not disputed that unlike Indian Police Service, the Indian Forest Service was constituted much later in the year 1966.
It is also not disputed that the respondents were the first batch of incum bents or entrants in the Indian Forest Service.
It is sub mitted on.behalf of the respondents that the Indian Forest Service was constituted with the respondents as the initial recruits.
We may now refer to some of the provisions of Indian Forest Service (Recruitment) Rules, 1966, hereinafter re ferred to as 'IFS Recruitment Rules '.
Rule 3 of the IFS Recruitment Rules relates to the constitution of the Serv ice.
It provides as follows: "3.
Constitution of the Service.
The Service shall consist of the following persons, name ly: (a) Members of the State Forest Service recruited to the service at its ini tial constitution in accordance with the provisions of sub rule (1) of rule 4; and (b) Persons recruited to the service in accordance with the provisions of sub rules (2) to (4) of Rule 4." So, under rule 3, the Service consists of members of the State Forest Service recruited to the Service at its initial constitution and persons recruited in accordance with the provisions of sub rules (2) to (4) of rule 4.
The next relevant provision is rule 4.
Sub rules (1) and (2) of rule 4, which are relevant for our purpose, are extracted below: "4.
Method of recruitment to the Service. (1) As soon as may be after the commencement of these rules, the Central Government may re cruit to the Service any person from amongst the members of the State Forest Service ad judged suitable in accordance with such regu lations as the Central Government may make in consultation with the State Governments and the commission; 289 Provided that no member holding a post referred to in sub clause (ii) of clause (g) or rule 2 and so recruited shall, at the time of recruitment, be allocated to any State cadre other than the cadre of a Union Territo ry.
(2) After the recruitment under sub rule (1), subsequent recruitment to the Serv ice, shall be by the following methods, name ly; (a) by s competitive examination; (aa) by selection of persons from amongst the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned after the 1st November, 1962, but before the 10th January, 1968 and who are released in the manner specified in sub rule (1) of rule 7A; (b) by promotion of substantive members of the State Forest Service.
" It appears from sub rules (1) and (2) that there are four methods of recruitment.
The first method is as con tained in rule 4(1), that is, the initial recruits from the State Forest Service.
The other three methods of recruitment have been provided for in sub rule (2) including the re cruitment of ECOs and SSCOs who were commissioned during the period of emergency and released in the manner specified in sub rule (1) of rule 7A.
It is ', however, clear that the recruits under sub rule (2) including the ECOs and SSCOs are recruited after the initial recruits under rule 4(1).
Anoth er thing to be noticed is that the first examination for recruitment in the Indian Forest Service was held by the Union Public Service Commission in 1967.
It is strenuously urged by Mr. Lalit that as the re spondents were the initial recruit or, in other words, the Indian Forest Service having been constituted with them, no person recruited under rule 4(2) of the IFS Recruitment Rules can be given seniority over the respondents who are the initial recruits.
As the Indian Forest Service itself was constituted in 1966, there is no question of giving seniority to any recruits beyond 1966.
It is urged by the learned Counsel that the first 1967 after the constitution of their service, there is also no question of lost opportu nity so far as the ECOs and SSCOs are concerned.
It is submit 290 ted that if such examinations had started to be held from 1962, then it could be said that the ECOs and SSCOs had lost the opportunity of competing in such examinations in view of their joining the army.
Accordingly, it is submitted that so far as the Indian Forest Service is concerned, the consider ation for giving weightage to the ECOs and SSCOs on the basis of their past services in the army does not apply.
Attractive though the contentions are, we are unable to accept the same.
It is true that the respondents were the initial recruits when the Indian Forest Service was consti tuted in 1966 and that the other recruits including the ECOs and SSCOs entered the service after the respondents, but this fact has very little bearing on the question of fixing the year of allotment having regard to the past services of such recruits.
The respondents themselves were 'appointed to the Indian Forest Service in 1966, but they have been given the year of allotment as '1964 1/2 ', that is to say, long before the Service came into existence.
If it is possible in the case of the respondents, we fail to understand why it is not possible in the case of other recruits including the ECOs and SSCOs.
The grievance of the respondents is that the ECOs and SSCOs having been appointed subsequent to their appointment or, in other words, they having entered service after the respondents, they could not be given a year of allotment prior to that allotted to the respondents.
This contention is again misconceived.
So far as the respondents are concerned, the year of allotment has been granted to them on the basis of certain principles, as contained in rule 3 of IFS (Regulation of Seniority) Rules, 1968.
The ECOs and SSCOs are, however, governed by the impugned rules and their year of allotment has been fixed as '1964 ' which is prior to the year of allotment of the respondents and, accordingly, the ECOs and SSCOs are senior to the respond ents in the Indian ForeSt Service.
In the Indian Police Service also the year of allotment of the ECOs and SSCOs is prior to that of those respondents who are in that Service.
We do not think that any invidious discrimination has been made between the ECOs and SSCOs on the one hand and the respondents on the other, both in regard to Indian Forest Service and Indian Police Service, as contended on behalf of the respondents.
As soon as it is found that the ECOs and SSCOs have been classified into a distinct and separate class, and that such classification is reasonable, no objec tion can be taken to the year of allotment given to them in accordance with the impugned rules.
After giving our anxious consideration to the respective contentions of the parties and after considering the different rules and regulations and also the fact that the ECOs and SSCOs had 291 voluntarily offered their services for the defence of the country during the period of emergency, disagreeing with the High Court and the Tribunal, we are of the view that no illegality has been committed by the Government in framing the impugned rules with retrospective effect.
We hold that the impugned rules are quite legal and valid.
For the reasons aforesaid, the impugned judgments of the High Court and of the Tribunal are set aside and all these appeals are allowed.
There will, however, be no order as to costs in any of these appeals.
R.N .J.
Appeals allowed.

dataset_name: IN-Abs

summary/full:
The grievance of the respondents who have been recruited to Indian Forest Service and the Indian Police Service is that although the Emergency Commissioned Officers & Short Service Commissioned Officers in Short ECOS & SSCOS respec tively have been recruited after the respondents yet their year of appointment has been fixed earlier than the year of allotment of the respondents under rule 3(2)(d) of the IFS (Regulation of Seniority) Rules, 1968 & Clauses (c) & (d) of sub rule (3) of Rule 3 of I;P.S. (Regulation of Seniority) Rules, 1954 which is retrospective in operation.
The Tribu nal struck down the rules as ultra vies of Articles 14 & 16 of the Constitution.
Both the High Court and the Tribunal have taken the view that although Section 3 of the All India Services (Amendment) Act, 1975 validates the impugned rules purporting to have been made with retrospective effect, yet the impugned rules are invalid in as much as they prejudi cially, affect the interests of the respondents.
While allowing the appeals and disagreeing with High Court and the Tribunal, this Court, HELD: The Tribunal has struck down the impugned rules, namely rule 3(2)(d) of the Indian Forest Service (Regulation of Seniority) Rules, 1968 and clauses (c) and (d) of sub rule (3) of Rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954 as ultra vires Articles 14 and 16.
Office Memorandum dated January 29, 1966 provides for the rehabilitation of the ECOS and SSCOs recruited since 276 November 1, 1962 after their release from the Armed Forces.
The contents of the Memorandum are in the nature of execu tive instructions.
[277D: 282B; 286B] Although the impugned rules were not in existance in 1966 the executive instructions as contained in the Office Memorandum conferred the same benefit as conferred by the impugned rules.
In other words, it is apparent that the executive instructions have now been adopted as rules framed under the Act.
[286E] The Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1967 framed by the President of India under the proviso to Article 309 and clause (5) of Article 148 of the Constitution of India, contained similar provisions as to the seniority and pay of ECOS & SSCOs.
[286F] No invidious discrimination has been made between the ECOs & SSCOs on the one hand and the respondents on the other, both as regard the Indian Forest Service and Indian Police Service, as contended.
[290E] As soon as it is found that the ECOs and SSCOs have been classified into a distinct and separate class and that such classification is reasonable, no objection can be taken to the year of allotment given to them in accordance with the impugned rules.
Disagreeing with the High Court and the Tribunal, this Court is of the view that no illegality has been committed by the Government in framing the impugned rules with retrospective effect.
Held that the impugned rules are quite legal and valid.
[290G H; 291A] It is now a settled principle of law that if the statute under which a rule is flamed does not confer on the authori ty concerned the power to make such a rule with retrospec tive effect, the authority will have no power to frame any rule with retrospective effect.
[280F] A. Janaradhana vs Union of India, ; , referred to.