Vikramajit Sen, J.
1. For justifying its action in putting an end to the services of its sundry workmen, the Delhi Transport Corporation (hereinafter referred to as 'the DTC')has relied on Regulation 14(10)(c) of the Delhi Road Transport Authority (Conditions of Appointment & Service) Regulations, 1952 (hereinafter referred to 'as the said Regulations'), which empowers the Management to deem/assume that its workman has resigned from service in the event that he overstays his sanctioned leave. On an industrial dispute having been raised and referred for adjudication, the Labour Court has not found the action of the Management treating the Workman as having resigned from his service to be in consonance with law. The workman concerned has thereforee been ordered to be reinstated along with a portion of backwages. The Awards have been assailed by the DTC in a batch of writ petitions. The gravamen of the arguments advanced on behalf of the DTC is that the Regulations have statutory force and hence must be applied without hesitation, restriction or reservation de hors the constraints and dictates of the principles of natural justice. As can be expected the workmen have supported the finding of the Labour Court and have challenged the virus of the Regulation which empowers and enables the Management to deem them to have resigned from service.
2. In Delhi Transport Corporation v. DTC Mazdoor Congress and Ors. : (1991)ILLJ395SC , the Constitution Bench of the Apex Court had to consider the virus of Regulation 9 of the said Regulations. These were promulgated under Section 53 of the Delhi Road Transport Act, 1950 (hereinafter referred to as 'the DRT Act'). Chief Justice S. Mukherji upheld the constitutionality of the said Regulations on the assumption that the powers contained therein would be exercised scrupulously, uncapriciously, fairly and objectively; and that the proper remedy for an employee whose services had been illegally terminated would be by way of an action in damages. However, this view was not shared by any of the other Learned Judge who comprised the Bench; they held the Regulation to be ultra vires. As there is some similarity between Regulation 9 and Regulation 14(10)(c) which falls for consideration before me, both are reproduced in juxtaposition :
'9. Termination of service - (a) Except as other-wise specified in the appointment orders, the services of an employee of the authority may be terminated without any notice or pay in lieu of notice:14(10)(c). Where an employee fails to resume duty on the expiry of the maxi-mum period of extraordinary, leave granted to him or where such an employee, who is granted a lesser amount of extra-ordinary leave than the maximum amount admissible, remains absent from duty for for any period which together with the extraordinary leave granted exceeds the limit up to which he could have been granted such leave under clause (b), he shall be deemed to have resigned his appointment and shall accordingly cease to be in the employment of the Authority.(i) During the period of probation and without assigning any reason thereof.(ii) For misconduct.(iii) On the completion of specific period of appointment,(iv) In the case of employees engaged on con-tract for a specific period, on the expirationof such period in accordance with the terms of appointment.(b) where the termination is made due to reductionof establishment or in circumstances other than those mentioned in (a) above, one month's notice or pay in lieu thereof will be given to all categories of employees.(c) Where a regular/temporary employee wishes to resign from his post under the authority he shall give three/one month's notice in writing or pay in lieu thereof to the Authority provided that in special cases the General Manager may relax, at his discretion, the conditions regarding the period of notice of resignation or pay in lieu thereof.'
A reading of Regulation 14(10)(b) of the said Regulations will also disclose that it intrinsically necessitates the eliciting of an Explanationn/response from the Workman before it can be resorted to by the Management. This Regulation reads as follows:
'10(b) The duration of extraordinary leave shall not ordinarily exceed three months or any one occasion. In exceptional cases it may be extended to eighteen months subject to such conditions as the Authority may by general or special orders prescribed only when the employee concerned is undergoing treatment for :-
(i) pulmonary tuberculosis in a recognised sanatorium, or
(ii) tuberculosis of any other part of the body by a qualified tuberculosis specialist, or
(iii) leprosy in a recognised leprosy institution or a specialist in leprosy recognised as such by the State Administrative Medical Officer concerned.
Note 1 - The concession of extraordinary leave up to eighteen months will be admissible also to an employee, who for want of accommodation in any recognised sanatorium at or near the place of his duty received treatment at his residence under a tuberculosis specialist recognised as such by the State Administrative Medical Officer concerned and produces a certificate signed by that specialist to the effect that he is under his treatment and that he has reasonable chances of recovery on the expiry of the leave recommended.
Note 2 - The concession of extraordinary leave up to eighteen months under this clause will be admissible only to those employees who have been in continuous service of the Authority for a period exceeding one year.'
In the DTC Mazdoor Congress case (supra) in the context of Regulation 9, which in its consequence and effect is analogous to Regulation 14(10)(c), the Apex Court was of the view that it was offensive to Chapter III of the Constitution. There is no justification to place the two Regulations in separate compartments and deal with them disparately. I find no force in Mr. Sabharwal repeated reiteration that since the deemed resignation Regulation has statutory force the pronouncements of the Constitution Bench in Deokinandan Prasad v. The State of Bihar and Ors., : (1971)ILLJ557SC are irrelevant. Even if the Regulations have statutory force, as has been repeatedly emphasised on behalf of the DTC, If Regulation 9 can be held ultra vires, so can Regulation 14. Ramaswamy, J. was of the view that 'conferment of power with wide discretion without any guidelines, without any just, fair or reasonable procedure is constitutionally anathema to Articles 14, 16(1), 19(1)(g) and 21 of the Constitution. Doctrine of reading down cannot be extended to such a situation'. Sharma and Sawant, JJ. also did not uphold the virus of the Regulation because of the inherent lack of adequate and appropriate guidelines contained in it. Similarly while concurring with the conclusion of Ramaswamy, J., Ray J. was of the following view :
'Learned Solicitor General of India contended before us that in the facts and the circumstances of this case, there was sufficient guideline in Regulation9(b) and the power of termination, properly read, would not be arbitrary or vocative of Article 14 of the Constitution. It may be mentioned that under the general law of contract of employment, which was commonly known as the law of master and servant', which is now termed as law of employer and employee, whether the contract of service is for a fixed period or not, if it contained a provision for its termination by notice, it could be so terminated. If there was no provision for giving notice and the contract was not for a fixed period, the law implied an obligation to give a reasonable notice. Where no notice in the first case or no reasonable notice in the second case was given and the contract was wrongfully terminated, such wrongful termination would give rise to a claim for damages. In this connection, reference may be made to the observations of this Court in the five Judge bench decision in Union of India v. Tulsiram Patel. This is also the position at common law. See Chitty on Contract, 26th edn. Vol. II, p. 808 or 25th edn. Vol. II, p. 712, paragraph 3490. In this connection, reliance may also be placed on paragraph 607 and 608 of volume 16, 4th edn. of Halsbury's Laws of England.
Under the Industrial Law, subject to the relevant statutory provision, the services of an employee could be terminated by reasonable notice. In such a case it was always open to the Industrial Tribunal to examine whether the power of termination by reasonable notice was exercised bona fide or mala fide. If, however, the Industrial Court was satisfied that the order of discharge was punitive, that it was mala fide, or that it amounted to victimisation or unfair labour practice, the Industrial Court was competent to set aside the order and in proper cases, direct the reinstatement oftheemployee. Reference may also be made to the observations of this Court in Tata Oil Mills Co. Ltd. v. Workmen. If, however, the exercise of such power was challenged on the ground of being colourable or mala fide or on account of victimisation or unfair labour practice, the employer must disclose to the Court the ground of his impugned action, so that the same may be tested judicially. See the observations of this Court in L. Michael v. Johnston Pumps India Ltd.
The relationship between a statutory corporation and its employees is normally governed by the relevant rules, regulations and standing orders. A statutory corporation is 'State' within the meaning of Articles 12 of the Constitution and its action is subject to judicial review in certain cases and certain circumstances. In the facts and circumstances of these cases, we have proceeded on that basis and we are of the opinion that it is the correct basis. The exercise of such power under regulations similar to the one impugned which has been upheld in various types of cases are instructive in their variety. It may be mentioned that the exercise of power under the very same Regulation 9(b) was upheld by the Court in a matter, wherein in an action by the employee of DTC, this Court in Delhi Transport Undertaking v. Balbir Saran Goel held that even if the employers of the respondent thought that he was a cantankerous man and it was not desirable to retain him in service it was open to them to terminate his services in terms of Regulation 9(b) and it was not necessary to dismiss by way of punishment for misconduct.
Thus on a conspectus of the catena of cases decided by this Court the only conclusion that follows is that Regulation 9(b) which confers powers on the authority to terminate the services of a permanent and confirmed employeeby issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons in the order and without giving any opportunity of hearing to the employee before passing the impugned order is wholly arbitrary, uncanalised and unrestricted violating principles of natural justice as well as Article 14 of the Constitution. It has also been held consistently by this Court that the Government carries on various trades and business activity through the instrumentality of the State such as Government Company or Public Corporations. Such Government Company or Public Corporation being State instrumentalities are State within the meaning of Article 12 of the Constitution and as such they are subject to the observance of fundamental rights embodied in Part III as well as to conform to the directive principles in Part IV of the Constitution. In other words the Service Regulations or Rules framed by them are to be tested by the touchstone of Article 14 of Constitution. Furthermore, the procedure prescribed by their Rules or Regulations must be reasonable, fair and just and not arbitrary, fanciful and unjust. Regulation 9(b), thereforee, confers unbridled, uncanalised and arbitrary power on the authority to terminate the services of a permanent employee without recording any reasons and without conforming to the principles of natural justice. There is no guideline in the Regulations or in the Act, as to when or in which cases and circumstances this power of termination by giving notice or pay in lieu of notice can be exercised. It is now well settled that the 'audi alteram partem' rule which in essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi-judicial orders but to administrative orders affecting prejudicially the party-in-question unless the application of the rule has been expressly excluded by the Act or Regulation or Rule which is not the case here. Rules of natural justice do not supplant but supplement the Rules and Regulations. Moreover, the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally. Considering from all aspects Regulation 9(b) is illegal and void as it is arbitrary, discriminatory and without any guidelines for exercise of the power. Rule of law posits that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. Regulation 9(b) does not expressly exclude the application of the 'audi alteram partem' rule and as such the order of termination of service of a permanent employee cannot be passed by simply issuing a month's notice under Regulation 9(b) or pay in lieu thereof without recording any reason in the order and without giving any hearing to the employee to controvert the allegation on the basis of which the purported order is made.
Regulation 9(b) of the impugned Regulations framed under the Delhi Transport Corporation Act which is in pan materia with the said Rule 9(i) is void under Section 23 of the Contract Act as being opposed to public policy and is also ultra virus Article 14 of the Constitution.'
3. The decision of the Hon'ble Supreme Court in Punjab and Sind Bank and Ors. v. Sakattar Singh 2001 LLR 155=2001 (1) Lab. I C 301, is not of much assistance to the DTC, and on the contrary, can be employed against it. The Court had repeatedly mentioned the absence of any Explanationn of the employee to the notice sent to him by the Management. The Court had observed that if the employee 'had submitted anexplanation regarding his unauthorised absence or placed any material before the Court that he did report for duty was not allowed to join duty, inquiry may be necessitated but not otherwise.' The Bench comprising three Learned Judges had followed the earlier decision in Syndicate Bank v. The General Secretary, Syndicate Bank Staff Association and Another 2000 LLR 689, in which the Court had spelt out the requirements of the principles of natural justice to be that (1) workman should know the nature of the complaint or accusation, (2) an opportunity to state his case should be made available, and (3) the management should act in good faith. In the latter case the Apex Court had found that all three criteria had been fully met. It specifically held that the principles of natural justice were inbuilt in the relevant provision, namely, Clause 16 of the Bipartite Settlement.
4. In LPA 6/1976 a Division Bench of this Court held that the effect of Section 4(e) and (f) of the Delhi Road Transport Laws (Amendment) Act, 1971 was that all Standing Orders, Rules and Regulations etc. relating to Road Transport Services, whether under the DRT Act, 1950 or the Delhi Municipal Corporation Act, 1957, which were then in force were deemed to be Regulations made by the new Corporation under Section 45 of the DRT Act. All of them would have uniform and equal applicability. This decision was applied by a Single Judge of this Court in CWP 957/1978 entitled Vijay Kapoor v. DTC to hold that the Corporation did not possess powers to alter the qualifications of workshop staff by a Resolution, since such a Resolution would be contrary and inconsistent with the Standing Orders prescribed such qualifications. These Standing Orders having acquired the status of Regulations framed under Section 45 of the DRT Act, would have to be strictly adhered to.
5. Chhotey Lal v. General Manager and Ors. 2001 Lab. I.C. 214, is of only little relevance since the case was decided strictly on the facts that had arisen therein, namely, that had a notice been sent at the address furnished by the employee, he would have given an Explanationn for his absence. The Court was mindful of the employee's protracted illness and treatment for Schizophrenia/Neurosis; and that this could well have constituted sufficient reason for his absence from work independent of his mother's illness. The Learned Judge found it unnecessary to entertain the challenge to the virus of the Regulation 14(10)(c). It had also been observed that the notice sent to the employee at his Delhi address did not permit sufficient time for a response to it, and was hence devoid of any legal efficacy.
6. In Aligarh Muslim University and Ors. v. Mansoor Ali Khan, : AIR2000SC2783 , the Court once again explained the applicability of rules of natural justice, viz. audi alteram partem. It set down that if no prejudice had been caused by the non-issuance of a Show Cause notice, this principle had not been transgressed as it would have been 'a useless formality', or in other words, 'on the admitted or indisputable facts only one view is possible'. The Court took judicial notice of the position that in the writ petition no new reason had been projected for seeking another extension in Libya other than that the Petitioner had obtained a further extension in his job. The University had already declined leave and had unequivocally stated so to the Petitioner.
7. The decision in D.K. Yadav v. J.M.A. Industries Limited, : (1993)IILLJ696SC , was principally on the lines of that of the Constitution Bench in DTC v. DTC Mazdoor (supra). The Court accepted that the Certified Standing Orders had statutory force, but despite this fact held that they should still be in consonance with the principles of natural justice and the mandates of Articles 14 and 21. The Court declined to give its imprimatur to a rule envisaging automatic termination of employment on the absence beyond the period ofsanctioned leave for more than eight days. The following extracts of the judgment in D.K. Yadav's case (supra) are significant:
'6. His contention that expiry of eight days' absence from duty brings about automatic loss of lien on the post and nothing more need be done by the management to pass an order terminating the service and per force termination is automatic, bears no substance. The Constitution Bench specifically held that the right of the employer given under the standing orders gets affected by statutory operation. In Robert D 'Souza case in para 7, this Court rejected the contention that on expiry of leave the termination of service is automatic and nothing further could be done. It was further held that striking off the name from the rolls for unauthorised absence from duty amounted to termination of service and absence from duty for 8 consecutive days amounts to misconduct and termination of service on such grounds without complying with minimum principles of natural justice would not be justified. In Shambhu Nath case three-Judge Bench held that striking off the name of the workman for absence of leave itself amounted to retrenchment. In H.D. Singh v. Reserve Bank of India this Court held that striking off the name from the rolls amounts to an arbitrary action. In State Bank of India v. Workmen a two-Judge Bench of this Court of which one of us, K. Ramaswamy, J. was a member was to consider the effect of discharge on one month's notice or pay in lieu thereof. It was held that it was not a discharge simplicities or a simple termination of service but one camouflaged for serious misconduct. This Court lifted the veil and looked beyond the apparent tenor of the order and its effect. It was held that the action was not valid in law.
14. It is thus well-settled law that right to life enshrined under Article 21 of the Constitution would include right to livelihood. The order of termination of the service of an employee/workman visits with civil consequences of jeopardising not only his/her livelihood but also career and livelihood of dependents. thereforee, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice. In D.T.C. v. D.T.C. Mazdoor Congress the Constitution Bench, per majority, held that termination of the service of a workman giving one month's notice or pay in lieu thereof without inquiry offended Article 14. The order terminating the service of the employees was set aside.
15. In this case admittedly no opportunity was given to the appellant and no inquiry was held. The appellant's plea put forth at the earliest was that despite his reporting to duty on December 3, 1980 and on all subsequent days and readiness to join duty he was prevented from reporting to duty, nor was he permitted to sign the attendance register. The Tribunal did not record any conclusive finding in this behalf. It concluded that the management had power under Clause 13 of the Certified Standing Orders to terminate with the service of the appellant. thereforee, we hold that the principles of natural justice must be read into the Standing Order No. 13(2)(iv). Otherwise it would become arbitrary, unjust and unfair violating Article 14. When so read the impugned action is vocative of the principles of natural justice.
16. This conclusion leads us to the question as to what relief the appellant isentitled to. The management did not conduct any domestic inquiry nor gave the appellant any opportunity to put forth his case. Equally the appellant is to blame himself for the impugned action. Under those circumstances 50 per cent of the back wages would meet the ends of justice. The appeal is accordingly allowed. The award of the Labour Court is set aside and the letter dated December 12, 1980 of the management is quashed. There shall be a direction to the respondent to reinstate the appellant forthwithand pay him back wages within a period of three months from the date of the receipt of this order. This appeal is allowed accordingly. The parties would bear their own costs.'
8. Unlike the obduracy of the Delhi Transport Corporation in these petitions; learned Counsel appearing for the Petitioner in Hindustan Paper Corporation v. Purendu Chakrobarty and Ors. 1997 SCC (L&S;) 244, conceded that the principles of natural justice must be read into that Company' s Conduct, Discipline and Appeal Rules which envisaged the loss of lien in case of unauthorised absence or overstaying leave for more than the specified number of consecutive days. As a consequence of this concession the constitutional propriety of the provision was salvaged. The Bench held that if an Explanationn of the employee was called for, the holding of a full fledged inquiry was not necessary. The issuance of a mere show-cause would suffice where only loss of lien was involved.
9. The arguments attaching to the virus and legality of the said Regulations had not been advanced in National Engineering Industries Ltd. v. Hanuman, : (1967)IILLJ883SC . The Apex Court had to decide whether loss of lien was tantamount to the termination of services. The case is thus not of much assistance or relevance. It is evident from a reading of the judgment of Wanchoo C. J. that the virus of the Standing Orders had not been assailed. However, in Jai Shanker v. State of Rajasthan, : (1966)IILLJ140SC , the Constitution Bench (of which K.N. Wanchoo, J. was a member) struck down a service Regulation permitting the removal of an employee for overstaying leave. Mr. Vinay Sabharwal, learned Counsel appearing on behalf of the DTC, had attempted to dilute the observations made by the Bench by contending that the Petitioner, Jai Shanker, was protected by Article 311 of the Constitution.This can be of little assistance to the DTC, since the Petitioners before me can fully rely on the protection of the Industrial Disputes Act which postulates inter alias that the workman should be allowed an opportunity of a hearing/enquiry before his services are terminated.
The Constitution Bench returned the following findings:
'It is admitted on behalf of the State Government that discharge from service of an incumbent by way of punishment amounts to removal from service. It is, however, contended that under the Regulations all that Government does, is not to allow the person to be reinstated. Government does not order his removal because the incumbent himself gives up the employment. We do not think that the constitutional protection can be taken away in this manner by a side wind. While, on the one hand, there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal, on the other, a person is entitled to continue in service if he wants until his service is terminated in accordance with law. One circumstance deserving removal may be over-staying one's leave. This is a fault which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a regulation is made, it is necessary that Governmentshould give the person an opportunity of showing cause why he should not be removed. During the hearing of this case we questioned the Advocate General what would happen if a person owing to reasons wholly beyond his control or for which he was in no way responsible or blameable, was unable to return to duty for over a month, and if later on he wished to join as soon as the said reasons disappeared? Would in such a case Government remove him without any hearing, relying on the regulation? The learned Advocate General said that the question would not be one of removal but of reinstatement and Government might reinstate him. We cannot accept this as a sufficient answer. The Regulation, no doubt, speaks of reinstatement but it really comes to this that a person would not be reinstated if he is ordered to be discharged or removed from service. The question of reinstatement can only be considered if it is first considered whether the person should be removed or discharged from service. Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for, if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here.'
In Scooters India Limited v. M. Mohammad Yaqub and Anr. 2000 IX A.D. (S.C.) 26, a similar Standing Order was found not to enable and empower the Management to terminate the services of the workman since the principles of natural justice had not been complied with. Mr. Vinay Sabharwal has also sought support of the decision of a Coordinate Bench in Indian Iron & Steel Company Limited v. Prahlad Singh (2001) 1 SCC 424, but it appears to me to be of no avail to the petitioner. In both cases, the previous decision of Uptron India Limited v. Shammi Bhan and Anr. : [1998]1SCR719 , was considered. The virus of the relevant Standing Order had not been assailed at all. The Apex Court upheld the order of the Tribunal which had dismissed the workman's claim on the grounds of laches of 13 years, as well as for the reason that no Explanationn/evidence had been given by the workman for not reporting back for duty within the stipulated period. Mr. Sabharwal has also relied on the decision in Hari Pada Khan v. Union of India and Ors., : (1996)ILLJ1044SC , in which the Bench comprising two Learned Judges did not perceive any legal impropriety in the impugned rule permitting the discontinuance of the services of the Petitioner, since he had been charge-sheeted and arrested thereafter. It did not follow an earlier decision of aCoordinate Bench in Workmen v. Hindustan Steel Limited : (1985)ILLJ267SC , in which it had been observed that Standing Orders should fall in line with the Constitution and thus the power of General Manager to dispense with an enquiry prior to the termination of an employee's services was struck down. The Standing Order was directed to be recast in conformity with Article 311. In Hari Pada 's case (supra) the opinion expressed by the Constitution Bench in the case of Union of India and Anr. v. Tulsiram Patel : (1985)IILLJ206SC , was followed. Both these cases involved the interpretation of Article 311 of the Constitution. In the latter case the Court expounded the 'pleasure doctrine' in the context of the holding of an enquiry against the delinquent officer. There can be no parallel in the application of the pleasure doctrine to industrial cases and that too on a mundane issue such as overstaying sanctioned leave. Mr. Sabharwal's reference to J.K. Cotton Spinning & Weaving Mills Limited v. State of U.P. and Ors. : (1991)ILLJ39SC , is also of little assistance to the DTC. Unlike as in the present case where the Delhi Transport Corporation has deemed the workman to have resigned, the employee had actually tendered his resignation in writing and had also received all his dues. Thereafter he had attempted to make out a case of forced resignation and thus retrenchment. These contentions were rejected by the Apex Court which specifically noted the distinction in the facts between that case and L. Robert D'Souza v. Executive Engineer, Southern Railway and Anr. : (1982)ILLJ330SC , where 'the termination was founded on the ground of unauthorised absence from duty which clearly was an act of the employer'. Similarly, I can see no justification for Counsel for DTC making a reference to M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. and Anr. : (1994)ILLJ597SC , where the Court had again noticed the absence of any challenge to the constitutionality of the statutory provisions of the Corporation Act. The ratio decidendi is contained in the following paragraph :
'14. The amendments introduced in Section 48 of the Corporation Act have clearly excluded the provisions of the Industrial Disputes Act so far as they are in conflict with the rules framed under Section 48(2)(cc). The result whereof will be that termination of the service of the appellant shall not be deemed to be a 'retrenchment' within the meaning of Section 2 (oo) even if sub-section (bb) had not been introduced in the said section. Once Section 2(oo) is not attracted, there is no question of application of Section 25-F on the basis of which the termination of the service of the appellant can be held to be invalid. The termination of the service of the appellant during the period of probation is in terms of the order of appointment read with Regulation 14 of the Regulations, which shall be deemed to be now Rules under Section 48(2)(cc) of the Corporation Act.
15. Even under general law, the service of a probationer can be terminated after making an overall assessment of his performance during the period of probation and no notice is required to be given before termination of such service. This aspect has been examined by this Court in the case of The Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalker where it has been pointed out that if the performance of the employee concerned during the period of probation is not found to be satisfactory on overall assessment, then it is open to the competent authority to terminate his service.'
10. Learned Counsel for the Petitioners also sought to garner support for the impugnedaction of the Delhi Transport Corporation from the decision in Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Limited, : (1999)ILLJ432SC , but on a reading thereof I am unable to appreciate the applicability. The contention is that it has been opined by the Court that if service conditions so envisage and permit, an employer has an option either to order a discharge simplicities or to take disciplinary action. The argument is that the Delhi Transport Corporation could well have initiated disciplinary proceedings and thereafter dismissed the workmen who had failed to report back for duty after exhausting the leave sanctioned to them. It is contended that the Management's action should be viewed as benevolent since no stigma attaches to a deemed resignation. As I see it, a workman would scarcely be mollified by a non-stigmatic termination of his services, when his very livelihood has been snatched away and his existence is at peril. However, these considerations may have relevance to a person belonging to the officer cadre and not to a workman. The factual matrix in Radhey Shyam Gupta's case (supra) has clearly and conveniently been glossed over. The Petitioner was neither protected by industrial law nor by Article 311 of the Constitution. Most importantly 'a simple order of termination was passed stating that the appellant had been appointed as Branch Manager by Order dated 17.7.1973, and Condition No. 3 of the appointment order provided that the services of the appellant could be terminated at any time, after giving one month's notice....' The Court did not hold that in the case of such a termination industrial or constitutional restraints could be ignored. It specifically followed its previous decision in Gujarat Steel Tubes Ltd. etc. etc. v. Gujarat Steel Tubes, Mazdoor Sabha and others, : (1980)ILLJ137SC , in which the services of approximately 400 workers had been 'terminated by way of discharge simpliciter'. This action was predicated on the Standing Orders which permitted the termination of services of even permanent employees by giving the prescribed notice or wages in lieu of such notice, provided the reasons for such action were recorded in writing and communicated to the workmen. The Standing Orders further permitted the services of non-permanent workmen to be terminated without notice except when the discharge was by way of punishment. Participating in an illegal strike was considered as a misconduct in the Standing Orders. The workmen had gone on an illegal strike, the Management purported to discharge them simpliciter. The precis of arguments were formulated by the Court thus :-
'Right at the forefront falls the issue whether the orders of discharge are, as contended by Sri Tarkunde, de facto dismissals, punitive in impact and, thereforee, liable to be voided if the procedural imperatives for such disciplinary action are not complied with, even though draped in silken phrases like 'termination simpliciter'. It is common case that none of the processes implicit in natural justice and mandated by the relevant standing orders have been complied with, were we to construe the orders impugned as punishment by way of discharge or dismissal. But Sri Asoke Sen impressively insists that the orders here are simple terminations with no punitive component, as, on their face, the orders read. To interpret otherwise is to deny to the employer the right, not to dismiss but to discharge, when the law gives him the option.'
Koshal J. was of the view that if no punitive intention was discernible 'the order would remain one of discharge simplicities even though it has been passed for the sole reason that a misconduct is imputed to the employee.' The Learned Judge saw no legal impropriety in MSO 25 which specifically gave the employer the power to get rid of a workman guilty of misconduct by passing an order of discharge simplicities under MSO 23. The Learned Judge further observed that since the MSO 23 (4. A) mandated recording the reasons for thetermination, it would always be clearly evident whether termination was punitive or otherwise. He opined that for an order to be founded on misconduct it must be intended to harm the concerned worker. He extracted the following passage from The Tata Engineering and Locomotive Co. Ltd. v. S. C. Prasad :
'No doubt, the fact that the order was couched in the language of a discharge simplicities is not conclusive. Where such an order gives rise to an industrial dispute its form is not decisive and the Tribunal which adjudicates that dispute can, of course, examine the substance of the matter and decide whether the termination is in fact discharge simplicities or dismissal though the language of the order is one of simple termination of service. If it is satisfied that the order is punitive or mala fide or is made to victimize the workmen or amounts to unfair labour practice, it is competent to set it aside. The test is whether the act of the employer is bona fide. If it is not, and is a colourable exercise of the power under the contract of service or standing orders, the Tribunal can discard it and in a proper case direct reinstatement.'
Koshal, J. was in a minority but even His Lordship was prepared to read qualifications into these wide powers. The Court reinstated all the permanent workers who had remained unemployed. After reviewing a plethora of precedents on the issue the majority view is to be found in paragraph 68, and reads as follows:
'If standing orders or the terms of contract permit the employer to terminate the services of his employee by discharge simplicities without assigning reasons, it would be open to him to take recourse to the said term or condition and terminate the services of his employee but when the validity of such termination is challenged in industrial adjudication it would be competent to the industrial tribunal to enquire whether the impugned discharge has been effected in the bona fide exercise of the power conferred by the terms of employment. If the discharge has been ordered by the employer in bona fide exercise of his power, then the industrial tribunal may not interfere with it; but the words used in the order of discharge and the form which it may have taken are not conclusive in the matter and the industrial tribunal would be entitled to go behind the words and form and decide whether the discharge is a discharge simplicities or not. If it appears that the purported exercise of power to terminate the services of the employee was in fact the result of the misconduct alleged against him, then the tribunal could be justified in dealing with the dispute on the basis that, despite its appearance to the contrary, the order of discharge is in effect an order of dismissal.'
11. A distillation of the many judgments of the Hon'ble Supreme Court discloses that the consistent opinion has been its insistence that statutes must conform with the acid test of rules of natural justice. The Apex Court has relentlessly struck down provisions in which the audi alteram partem principle has been ignored. Where it has been argued that this principle may be read into the statutory provision the Court has accepted the plea and thereby saved it from being struck down as unconstitutional. In those cases where the virus of the Statute has not been assailed it has nonetheless looked for a compliance with the audi-alteram partem requirement, such as in the Aligarh Muslim University's case (supra) where it observed that nothing hew had been stated by the Petitioner in his writ petition apart from the reasons which had previously given by him to the University and had been rejected by it. In the present case the statutory rule is not nullified by insisting that the DTC must enable the delinquent workman to be heard before his services are terminated on the premise of'deemed resignation'. On the Corporation issuing a notice to the workman he may furnish an unacceptable defense or no Explanationn at all. But it would atleast enable a workman who, by way of to take an illustration, may have suffered an accident on his way to reporting back for duty, to furnish an Explanationn which a responsible management would accept with alacrity. It would empower the DTC to apply the Regulation after a due consideration of the cause shown by the workmen. Granting an opportunity to be heard does not inexorably result in an Enquiry calling for being held.
12. The DTC, it appears,: was alive to the possibility that the invocation of Clause 14(10)(C) was not legal. On 6.2.1991 an Administrative Circular appears to have been issued which reads as follows:
'DELHI TRANSPORT CORPORATION
(A GOVT. OF INDIA UNDERTAKING)
I.P. ESTATE, NEW DELHI.
No. Adm. I-3(28)/91 Dated 6.2.91. It has been decided not to invoke Clause 14(10)(c) of the D.R.T.A. (Conditions of Appointment and Service) Regulations, 1952 in the cases where the employee remain/are found absent without permission or prior sanction of leave and instead the Unit concerned are advised to take disciplinary action against such employees in accordance with the standing Orders governing the conduct of D.T.C. employees.
The above decision has been taken with the approval of Chairman-cum-MD in consultation with Legal Deptt. It will remain in force till further orders.
Sd/-
(A.K. Srivastava)
Administrative Officer (HQ)'
13. The Explanationn that was given was that this Order had been passed after the termination of the services of the Petitioners and, thereforee, was not applied to their cases. It is now firmly entrenched in our service jurisprudence that the State and all other Authorities which come within the sweep of Article 12 of the Constitution must act as the model employers. Since the above Order was passed within a year, as a responsible employer, the DTC could well have reviewed the cases of the Petitioners so as to bring them on line with the cases of other employees of the Corporation. There is scant reason for treating the workforce in disparate manners, especially where the previous practice was not in consonance with law.
14. Civil Writ Petition Nos. 4231/97, 2594/98, 4866/99, 1555/99, 6235/99, 1635/ 2000, 2024/2000, 3650/2000, 3943/2000, 4042/2000 and 4106/2000 are hereby dismissed. All interim orders passed on applications filed by the DTC are recalled, and the applications are dismissed. If any amounts stand deposited by the DTC they shall be released forthwith to the workman concerned. Since the writ petitions have been disposed off the applications filed under Section 17-B of the Industrial Disputes Act are also disposed Off without further consideration but the workman concerned is granted the liberty to reagitate this claim in the event that the impugned Award and this Judgment is assailed further.
15. A copy of this Judgment be placed in each of the writ petitions since they have been dismissed by this common Judgment.