Holding

The review petitions lack substantive grounds and are dismissed.

Summary

The petitioners, railway employees, were dismissed or removed for participating in a strike without any enquiry. They filed writ petitions, which were transferred to the Supreme Court and ultimately dismissed. The petitioners then filed review petitions alleging that they were denied a chance to argue the merits, that the Court had decided the cases on general questions only, and that the dismissal orders were based on no evidence and violated natural justice and constitutional provisions. The majority held that the grounds of the review petitions lacked substance and dismissed them without granting a hearing, while Justice Thakkar dissented, arguing that the petitioners were entitled to a hearing and that important constitutional questions regarding Article 310(1) and Article 311(2)(b) needed consideration. The Court affirmed that the power of pleasure under Article 310(1) can be exercised by authorities specified in the Act, and that the principles of natural justice must be observed even in disciplinary actions against workers.

Issues considered

The adequacy of the grounds raised in the review petitions and whether they merit a hearing.
Whether the power of pleasure under Article 310(1) can be exercised by lower officials such as a Divisional Mechanical Engineer.
Whether the principles of natural justice apply to disciplinary actions against striking railway workers.
Whether Article 311(2)(b) bars an enquiry in cases of strike and if it was intended to break a strike.
The right of workers to strike in pursuit of economic justice and its constitutional protection.

Legislation cited

Constitution of Indias. 309, s. 310(1), s. 311(2)(b)

Subjects

strikerailway employeesdisciplinary dismissalArticle 310Article 311natural justicereview petitionconstitutional lawlabour law

Judgment

A '
SHY AM LAL SHARMA & ORS.
v.
UNION OF INDIA

NOVEMBER 8/26, 1985
B
[P.N. BHAGWATI, C.J., V.D TULZAPURKAR,
R.S. PATHAK, D.P. MADON AND M.P. THAKKAR, JJ.]

Constitution of India, 1950-Articles 310(1) & 311(2)(b)-Power
exercisable by President/Governor-Not on personal satisfaction but
with the aid and advice of Council of Ministers-Workers have a right to
C struggle and strive for econofflic justice-Constitution makers did not
•
design provisions for breaking a worker's strike.

The petitioners, who were Railway employees, were either dismis-
sed or removed from service without holding any enquiry for striking
D work, paralysing railway services, assualting and intimidating loyal
workers and superior officers, etc. The writ petitions filed in the High
Courts challenging the orders of dismissal or removal stood transferred
to this Court, heard along with other writ petitions and civil appeals
and hy judgment dated I !th July, 198S dismissed.

E The petitioners sought review of the said judgment alleging that
during the course of arguments, parties had proceeded on the assump-
tion that the Court would decide only the seven questions framed hy the
then Hon'hle the Chief Justice, and the individual petitions on merits
would be dealt with either hy the Division Benches of this Court or by
the respective High Courts, that the parties addressed their arguments
p and submissions only on those general questions, that written submis-
sions were made only in transfer case No. SS of 1982 among,'it all the
railway matters, that none of the petitioners had been given any
opportunity to argue their cases on merits, that the judgment under
review dismissed all the transferred cases and thus all these petitions
stand decided on merits also, that this has caused serious prejudice to
G their cases and, therefore, in the interest of justice, another opportu-
nity should be given to argue the petitions on merits.

Dismissing the Review Petitions,

HELD: Per P.N. Bhagwati, C.J., V.D. Tu/zapurkar, R.S. +·
H Pathak and D.P. Madon, JJ.

898
S.L SHARMA v. UNION OF INDIA 899

The Review Petitions are dismissed as there is no substance in the
grounds urged. A

Pe; M. P. Thakkar, J. dissenting.

I. There is good ground to entertain the Review Petitions and
issue notice to the other side for hearing. [904E] - B

2. There is substance in the grounds because no notices have been
issued on the Review Petitions and the averments have not been con-
-"'(- troverted by the other side. In the majority judgment also it has not
been stated that the averments are factually untnie. [9010-E]

3. That the matter of Narpat Singh was not argfied on its indi- c
vidual merits is correct. Unless the factual averments made in Para 9 of
the Review Petition are shown to be untrue, these may be considered
adequate to vitiate the impugned order on the ground that it manifests
non-application of mind and is built on 'no evidence'. [902C]
D
-4. In the majority judgment the proposition· of law has been
enunciated that the pleasure under Article 310( I) can be exercised even
by an authority specified in the Act or rules made under the proviso to
' Article 309. [9020-E]

S. The power under Article 310(1) is exercisable even by the E
President or Governor, not on his personal satisfaction, but with the aid
and on the advice of the Council of Ministers. Can the same power be
exercised by a Divisional Mechanical Engineer or any other lower func-
tionary acting on his own, there being no question of his acting with the
aid or advice of the Council of Ministers? Can the D.M.E. who does not
even act in the name of the President, surrogate for the President? It is p
certainly an important Constitutional issue which requires to be
examined, but has not been examined from this perspective though the
point was debater. [9038-DI

6. Will it not tantamount to speaking in two voices to hold that
principles of Natural Justice need not be complied with even in regard G
., + to the quantum of punishment to be inflicted on a workman, even
though the law declared so far demands that even a black marketeer
cannot be black-listed without observing the principles of Natural
Justice? Is a workman who 'sweats' for the Nation not entitled to the
same treatment as a black-marketeer, who 'bleeds' the Nation? [9030-E]
H
900 SUPREME COURT REPORTS [1987] 1 S.C.R.

A 7. The workers certainly have a right to struggle and strive for
economic justice in a country the Constitution of which in the Pream-
ble, proclaims it to be a "Sovereign SOCIALIST Secular ~mocratic
Republic". Going on strike in the course of such a struggle cannot be
characterized as holding the country to ransom and be frowned upon.
Nor can they be condemned as seekers of private gain for endeavouring
B to remove their economic distress and plight to bring about a just
society. And it cann_ot be said on that account that it is not "reas<1nably
practicable" to hold the enquiry in the case of any workman ifthere is a
country-wide general strike by workers. [9048-9040]
-y/ -
I
8. Article 311(2)(b) was surely not designed by the Founding
Fat.hers in order to enable 'breaking' of a strike called in support of
C workers' demands for soeio-economic justice. The issue therefore de-
serves to be examined in the light of this perspective. [9040]
~

CIVIL ORIGINAL JURISDICTION: Review Petition Nos.
571-586 & 586A of 1985.
D
In Transfer Cases Nos. 52 to 68 of 1982.

By Circulation.
j '
The Order of the Court was delivered by
E
ORDER

We have considered the grounds urged in the Review Petition
and since we find no substance in them. the Review Petition are
dismissed.
F
PER THAKKAR, J. While it is not agreeable to disagree with
the majority, my conscience commands, and my sense of duty
den.ands. that I should disagree. Disagree with the proposed order
dismissing the Review Petitions in limine with the remark that "we
find no substance in them". without affording to the Petitioners any
G opportunity of hearing in the Court to substantiate the grounds urged
by them. +.,
, One of the grounds urged. ground No. 8 in the Petitions, is:-

"8. That during the course of arguments the parties had
H proceeded on the assumption that the Hon'ble Court ·111ould
S.L. SHARMA v. UNION OF INDIA (1HAKKAR. J.) 901

decide only the :J questions framed by the then Hon'ble A
Chief Justice and the individual petitions on merits would
be dealt with either by the Division Benches of this Hon-
'ble Court or by the respective High Courts. It was on this
assumption that the parties addressed their arguments and
submissions only on those general questions. It is for this
reason that written submissions were made only in T.C. B
No. 55 of 1982 amongst all the Railway matters. None of
the Petitioners had been given any opportunity to argue
their cases on merits. The judgment under review dismis-
sed all the Transferred Cases and thus all these petitions
stand decided on merits also. It is, therefore, necessary that
in the interest of justice, the petitioner should be given
another opportunity to argue their petiticns on merits. This C
has caused serious prejudice to their cases is apparent from
the facts of a few cases reference whereto is made herein
after."

It is not possible to say that there is no substance in this ground D
because no notices have been issued on the Review Petitions and the
averments have not been controverted by the other side. So also it is
not stated in the majority judgm·ent that the averment is factually
untrue. Reference may be made to ground number 9 in Review Peti-
tions Nos. 571to586A of 1985 which reads as under:-
E

- "9. That it may be submitted •that the petitioner Shri
Narpat Singh had been served with the Office Order
identical to the one reproduced in para 3 above and was
charged with stoppage of work from 3.2.1981 and missing
from his place of duty and for intimidating and pressurising
the loyal employees fornot joining duty. F

The fact is that the ·petitioner, Narpat Singh is a
patient of Asthama and was under' the treatment of the
Railway Medical Authorities between December 1980 to
1.2. 1981 as outdoor patient. On 2.2. 1981 while on duty as
Shed-man is DSL/Shed BGKt in shift 6 hours to 14 hours, G
he developed breathing difficulties and was unable to
perform his duties. He obtained sick memo G/92 on
2.2.1981 from GFO/DSL BGKt and while leaving duty
proper charge was handed over by the petitioner. He was
advised complete rest and sick certificate No. 62 of
2.2. 1981for27 days was submitted. H
902 SUPREME COURT REPORTS [1987] 1 S.C.R.

In these circumstances the petitioner could not be
A treated as on un-authorised absence from work from
3.2. 1981 when he had obtained G-92 on 2.2.1981 and had
sent in his sick certificate and had observed all due
formalities of reporting sick as required under the ~ules.
Had the cases been argued on merits, the petitioner,
Narpat Singh would ha¥e shown to the Hon'ble Court as to
how he could not be treated on un-authorised absence and
that the dismissal order has been malafidely issued in a
mechanical manner and cannot be substained."
··y'-
That the matter of Narpat Singh was not argued on its individual
merits is correct. Unless the factual averments made in para 9 are
c 'shown to be untrue, these may be considered adequate to vitiate the
impugned order on the ground that it manifests non-application of
mind and is built on 'no evidence'. This is a good ground to entertain
the Review Petition and issue notice to the other. side for hearing in the
C\lurt.
D 3. In the majority judgment [1985] 3 SCC 398 (451)
paragraph 59 the proposition of law has been enunciated that the
pleasure µnder Article 310(1) can be exercised even by an authority
specified in the Act or rules made under Article 309 (proviso) in the '
p;issage quoted below:-

E "Thus, though under Article 310(1) the tenure of a govern-
ment servant is at the pleasure of the President or the
Governor, the exercise of such pleasure can be either by the
President or the Governor acting with the aid and on the
-
advice of the Council of Ministers or by the authority speci-
fied in the Acts made under Article 309 or in rules made
f under such Acts or made under the proviso to Article 309
and in the case of clause (c) of the second proviso to Article
311 (2), the inquiry is to be dispensed with not on the per-
sonal satisfaction of the President or the Governor but on
his satisfaction arrived at with the aid and on the advice of
the Council of Ministers .... "
G
(Emphasis supplied) +·
Serioµs Constitutional questions, such as the following, arise in this
context: Wilen the Constitution advisedly invests powers in regard to
tlw exen;ise of pleasure on the incumbe.nts of highest executive office
ft
H can these PQWers be eJ1ercised by any other official, say Div!. Mechani-
S.L. SHARMA v. UNION OF INDIA [THAKKAR, J.) 903
~
A cal Engineer (DME)? By a process of interpretation (and not amend-
A
ment) can it be so construed that what the President by virtue of
Article 3 IO ( 1) can do, the DME of the Railway can do by virtue of the
same Article? It would v?rtually amount to amending Article 310 ( 1)
by adding the words "or by any other authority ... ". That is to say to
rewrite an article in the Constitution. Is this permissible? What is
-1. more, the power under Article 310 ( 1) is exercisable.even by the Presi- B
' dent or the Governor, not on his personal satisfaction, but with the aid
and on the advice of the Council of Ministers. Can the same power be
exercised by a D.M.E. or any other lower functionary acting on his
-1 own, there being no question of his acting with the aid or advice of the
council of Ministers? Can the DME who does not even act in the name
of the President, surrogate for the President? It is certainly an im-
• ~ portant Constitutional issue which requires to be examined, but has c
not been examined, from this perspective though the point was
debated. This is another ground to entertain the R,eview Petition and
to issue a notice to the other side for hearing in the Court.

4. Another ground for entertaining the Review Petition is this: D
Will it not be tantamount to speaking in two voices to hold that princi-
pies of Natural Justice need not be complied with even in regard to the
J.
quantum of punishment to be inflicted on a workman, even though the
>- law declared so far demands that even a black marketeer cannot be
black-listed without observing the principles of Natural Justice? Is a
workman who 'sweats' for the Nation not entitled to the same treat- E
ment as a black marketeer who 'bleeds' the Nation?

5. An extremely serious and important ground for review also
arises in the context of the doctrine enunciated in the following pas-
sages [1985] 3 sec 398 (522, 523), paragraphs 170, 173_:-
F
I "It-may be that the railway servants went on these strikes
with the object of forcing the Government to meet their
demands. Their demands were for their private gain and in
their private interest. In seeking to have these demands
conceded they caused untold hardship to the public and
prejudicially affected public good and public interest and G
+- '
the good and interest of the nation.

. _- ............ In the context of an all-India strike I

where a very large, number of railway servants had struck ·
work, the railway services paralysed, loyal workers and
superior officers assaulted and intimidated, the country H
904 SUPREME COURT REPORTS [!987] I S.C.R.

held to ransom, the economy of the country and public
A interest and public good prejudicially affected, prompt and
immediate action was called for to bring the situation to
normal. In these circumstances, it cannot be said that an
enquiry was reasonably practicable."
·~·
B The workers certainly have a right to struggle and strive for economic
justii:e in a country the Constitution of which, in the preamble,
proclaims it to be a "Sovereign SOCIALIST Secular Demorcratic Re-
public". Going on strike in the course of such a struggle cannot be
characterized as holding the country to ransom and be frowned upon.
y..-
Nor can they be condemned as seekers of private gain for endeavour- \
ing to remove their economic distress and plight to bring about :i just
c society. And it cannot be said on that account that it is not "reasonably ·.~ .
practicable" to hold the inquiry in the case of any workman if there is a
country wide general strike by workers. Article 3!1(2)(b) was surely
not designed by the Founding Fathers in order to enable 'braking' a
strike called in support of workers' demands for soci-0-economic
D justice. The issue therefore deserves to be examined in the light of this
perspective and the Review Petitions deserve to be admitted.

6. On these grounds and in the light of the other grounds urged
in the Review Petitions, the Review Petitions deserve to be heard in •
the Court. It is therefore directed that the Review Petitions be admit-
ted, notices be issued to the Respondents, and the matters may be
E
placed in the Court for further hearing.

A.P.J.