CONSTITUTIONAL LAW

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Waiting in the Wings — Article 14
by Sunil Gupta *

Cite as : (1987) 2 SCC (Jour) 1

Legal circles are all agog with the recent judgment of the Supreme Court in Central Inland Water Transport Corporation v. Brojo Nath Ganguly1 Efforts are afoot to lift it up and place it in the company of causes celebre like E. P. Royappa2, Maneka Gandhi3, M.P. Sugar Mills4 and International Airport Authority5 which have adorned the constitutional history of India and marked the development and glorification of Article 14 for the last one decade or so.

Indeed, the grandeur of the judgment in Water Transport1and the rhetoric with which it reverberates leave none in doubt about its genre. The absorbingly effusive, cautiously decorous and anecdote-ridden style of Justice Madon has an irresistible charm of its own. The judgment gives one the feeling of a closely studied and meticulously arranged academic offering. But it is submitted with respect that when it comes to paying homage to the high pedestal of Article 14, the judgment gives all but a fair deal to the strength, bounty and majesty of that great Fundamental Right.

Carrying coals to New castle

Article 14 has stood throughout at the pinnacle as a potentious, impregnable constitutional bulwark against all excesses and illegalities of the State and its instrumentalities. It has provided the great equalising and rationalising principle the test of which every legislative enactment as also every executive action must pass if it has to live to see the light of another day. It has been revered, on the one hand, by the people for its exalting magnanimity and held in awe, on the other hand, by the rulers for its unsparing potentiality. The judgment in Water Transport1, for the first time draws that great magnanimity and potentiality under a cloud by making Article 14 dependent for meaning and energy on the provisions of a mere legislative enactment, the Indian Contract Act, 1872.6-7

The big question is whether it was and is necessary, much less imperative, to judge the validity of an action of the State8 on grounds of arbitrariness, unreasonableness and unconscionableness under ordinary legislative enactments over and above or in addition to9 and notwithstanding the overriding constitutional tests of validity available under the all-pervasive and protective canopy of Article 14 of the Constitution.

The dispute

Water Transport1 involved the question of validity of a service rule framed by a government company, namely, Central Inland Water Transport Corporation.10 The rule viz. Rule 9(i), empowered the Corporation to terminate the services of its employees at will. Two employees of the Corporation, both victims of Rule 9(i), challenged the termination of their services in writ petitions before Calcutta High Court. The plea was that Rule 9(i) was arbitrary, unreasonable and, hence, violative of Article 14 of the Constitution. The High Court agreed. The petitions were allowed. The termination was set aside. Rule 9(i) was struck down. The judgment11 was delivered by Justice M. M. Dutt12 It was a delightfully brief and concise opinion, shorn of unwanted dilation and detail. The argument of the Corporation had been that Rule 9(i), being a contractual rule which laid down the conditions of service of its employees, was not subject to Article 14. It was rejected by the High Court. The High Court held:

Article 14 of the Constitution will apply to any governmental action either in the shape of any rule or otherwise. In other words, if there be any arbitrary exercise of power or assumption of any arbitrary power such exercise of power or assumption of power, if contravenes Article 14 of the Constitution, ... will be struck down as void. It matters very little that any arbitrary rule or regulation forms one of the conditions of service.

The Corporation went up in appeal against the High Court's Judgment to the Supreme Court. Water Transport1 is Justice Madon's Judgment in that appeal.

An unprecedented precedent

As seen above, the High Court made no bones about its faith and confidence in the efficacy and self-sufficiency of Article 14. The principle of reasonableness and non-arbitrariness which "pervades Article 14 like a brooding omnipresence"13 was an adequate touchstone for it. With Article 14 in hand, the High Court found it neither necessary nor fruitful to burden itself with the task of testing validity of Rule 9(i) under any other law. True, Rule 9(i), in a way, formed part of a contract of employment. But the contract was an act of a State instrumentality. Thus, the question of scrutinising the rule on the score of any principle of the law of contracts did not arise. In fact, to the High Court it mattered little that Rule 9(i) was a contractual rule incorporating conditions of service.

Not so with the Supreme Court. Faced with the same dilemma in appeal, the Apex Court reacted differently. Speaking through Justice Madon, it held:

The said Rules constitute a part of the contract of employment ... The validity of Rule 9(i) would, therefore, first fall to be tested by the principles of the law of contracts.14

This is new ground. A new step in the field of constitutional law. There is no precedent. Henceforth, as per the dictum of Water Transport1, for challenging an action of the State or its instrumentality on the ground of Article 14, one may have first to establish the arbitrariness, or unreasonableness, or, for that matter, the unconscionableness of the impugned action on the homeground of the ordinary branch of law to which that action belongs. For instance, if the challenge under Article 14 is to a notification of the Government fixing an utterly paltry and illusory sum of compensation for an injury to a workman under the Workmen's Compensation Act, the inadequacy or illusoriness of the amount would "first fall to be tested" by the principles of compensation under the law of torts. If the challenge under Article 14 is to an action of the State depriving divorced Muslim women of the benefit of maintenance from their ex-husbands while leaving the benefit open to women of other religions, the unfair and differential treatment of the Muslim women would "first fall to be tested" by the tenets of their personal law, namely, Mohammedan Law. If the challenge under Article 14 is to the irrationality and unwarrantedness of norms fixed by an agency of the State for the conduct of meetings of an association or union of its employees, the irrationality and unwarrantedness of those norms would "first fall to be tested" by the principles of the law of meetings.

The principle that an action of the State facing the challenge of non-arbitrariness under Article 14, a ground of constitutional law, shall first have to face the test of an ordinary law was, indeed, never known before. The law settled in India, if anything, was to the contrary. In Indian Express Newspapers v. Union of India15 a question posed was whether in India, in spite of the presence of Article 14, a piece of subordinate legislation shall have to face the test of non-arbitrariness generally and generically applicable to that class of legislation.16 Speaking for the Supreme Court, Justice Ven-kataramiah observed:

In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution.17

Justice A.P. Sen, a party to the above decision, concurred with the opinion of Justice Venkataramiah. Now, in Water Transport1, Justice Sen casts his vote with the opinion of Justice Madon even as it draws the law in a contrary direction.18

The judgment in Water Transport1 runs upon a stream of jurisprudential effervescence. The desire all the way seems to be to unravel the depths and bring to surface new principles. A prefatory observation by Justice Madon reads:

No case of the type before us appears to have fallen for decision under the law of contract before any court in India nor has any case on all fours of a court in any other country been pointed out to us.19

There is truth in that. Cases of the type before Justice Madon have time and again fallen for decision before courts. But the need to employ the law of contracts for the same purpose for which Article 14 is made available by the Constitution has never been felt before. There are a few recent instances of such cases from the Supreme Court itself.

(i) Air India v. Nergesh Meerza20

This became popularly known as the Air Hostesses case20. It was a significant case. It involved an examination of reasonableness — nay, conscionability — of certain terms in the air hostesses' contract of employment with Air India. The impugned conditions of service compelled an air hostess to retire from service in any of the three contingencies viz. on marriage if it took place within four years of service, on first pregnancy, or on attaining the age of 35 years. The Supreme Court approved the first condition prohibiting marriage for four years. The other two conditions of service were struck down,21 Rejecting the argument of the airlines that "a woman after bearing children becomes weak in physique or in her constitution". Justice Fazal Ali held:

Having taken the AH in service and after having utilised her services for four years, to terminate her service by the Management if she becomes pregnant amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature. It seems to us that the termination of the services of an AH under such circumstances is not only a callous and cruel act but an open insult to Indian womanhood — the most sacrosanct and cherished institution. We are constrained to observe that such a course of action is extremely detestable and abhorrent to the notions of a civilised society. Apart from being grossly unethical, it smacks of a deep-rooted sense of utter selfishness at the cost of all human values. Such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of Article 14 of the Constitution.22

Similarly, as regards the condition that an air hostess would retire on attaining the age of 35 years, the Supreme Court held:

The argument that AHs should be young and attractive and should possess pleasing manners seems to suggest that AHs should by their sweet smiles and pleasant behaviour entertain and look after the passengers which cannot be done by women of older age. This argument seems to us to be based on pure speculation and an artificial understanding of the qualities of the fair sex and, if we may say so, it amounts to an open insult to the institution of our sacred womanhood. Such a morbid approach is totally against our ancient culture and heritage as a woman in our country occupies a very high and respected position in the society as a mother, a wife, a companion and a social worker. It is idle to contend that young women with pleasing manners should be employed so as to act as show pieces in order to cater to the varied tastes of the passengers when in fact older women with greater experience and goodwill can look after the comforts of the passengers much better than a young woman can. Even if the Corporation had been swayed or governed by these considerations, it must immediately banish or efface the same from its approach. More particularly such observations coming from a prestigious corporation like A.I. appear to be in bad taste and is proof positive of denigration of the role of women and a demonstration of male chauvinism and verily involves nay discloses an element of unfavourable bias against the fair sex which is palpably unreasonable and smacks of pure official arbitrariness.23

(ii) Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd.24

A condition in the contract of employment gave unfettered discretion to the employer to give or not to give retiral benefits to an employee on his retirement. The denial of the benefits was challenged by a retired employee. The said condition of service came under review by the Supreme Court in exercise of the powers under Industrial Employment (Standing Orders) Act, 1946. Borrowing principles of fairness and reasonableness from expositions thereof made under Article 14 of the Constitution25 Justice Desai held:

If gratuity is a retiral benefit and can be earned as a matter of right on fulfilling the conditions subject to which it is earned, any rule conferring absolute discretion not testable on reason, justice, or fair play, must be treated as utterly arbitrary and unreasonable and discarded ... and arbitrary denial referable to whim, fancy or sweet will of the employer must be rejected as arbitrary .... The claim to absolute discretion not to pay gratuity even when it is earned is a hangover of the laissez faire days and utterly inconsistent with the modern notions of fair industrial relations and, therefore, it must be rejected as ineffective and hence unenforceable.26

The Court further observed:

Viewed from a slightly different angle, our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the antiatetthesis of rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is therefore violative of Article 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot coexist. Therefore, also the conferment of absolute discretion by Rule 10 of the Gratuity Rules to give or deny the benefit of the rules cannot be upheld and must be rejected as unenforceable.27

(iii) K.L. Tripathi v. State Bank of India28

One of the questions in this case was whether a term in a contract of service could be held to be valid if it was in derogation of principles of natural justice.29 Justice Sabyasachi Mukharji, speaking for the Supreme Court, agreed with the submission that:

Even if the party had bound himself by the contract, as he had accepted the Staff Rule, there cannot be any contract with a statutory corporation which is violative of the principles of natural justice in matters of domestic enquiry involving termination of services of an employee.30

In other words, a term in a contract of employment would not be held to be good and valid if it offended principles of natural justice. The underlying current was, once again, Article 14. Modern constitutional thinking characterises Article 14 as the "constitutional guardian"31 of principles of natural justice.32

(iv) Workmen v. Hindustan Steel Ltd.33

A Standing Order34 provided for dismissal of an employee without inquiry. But that did not make it incumbent on the employer, a public sector undertaking, to record reasons for the dispensation of inquiry. The reasonableness of the provision came up for examination before the Supreme Court. Disapproving the provision, even as it formed a term in a contract of employment,34 Justice Desai held:

A Standing Order which confers such arbitrary, uncanalised and drastic power to dismiss an employee by merely stating that it is inexpedient or against the interest of the security to continue to employ the workman is violative of the basic requirement of natural justice inasmuch as that the General Manager can impose penalty of such a drastic nature as to affect the livelihood and put a stigma on the character of the workman without recording reasons why disciplinary inquiry is dispensed with and what was the misconduct alleged against the employee.35

(v) West Bengal Electricity Board v. Desh Bandhu Ghosh36

A case of extraordinary import and importance. The dispute identical to Water Transport1. The contractual term37 under consideration resembling "on all fours" Rule 9(i) of Water Transport1. In a momentous decision, almost the first of its kind, Justice O. Chinnappa Reddy handed out a new promise of fairness and fair play in employer-employee relations under the State. The words were few and simple. But the tidings were happy and clear. No fretting. No dilating. No philosophizing. No sermonizing. No groping in the dark for moral and legal support from any discipline other than the constitutional discipline. But the job done. The mission achieved. And the banner of Article 14 kept flying high. The brevity of the judgment itself was expression of the trust reposed by the Highest Court in the buoyancy of that great constitutional blessing. Striking down the impugned provision, the Court held:

On the face of it the regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination. It is a naked 'hire and fire' rule, the time for banishing which altogether from employer-employee relationship is fast approaching. Its only parallel is to be found in the Henry VIII clause so familiar to administrative lawyers.... Article 14 has been interpreted in several decisions of this Court and conferments and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down by this Court as offending Article 14.38

(vi) Sushil Kumar Yadunath Jha v. Union of India39

The services of a government school teacher were terminated. After a break in service a fresh appointment was given. But the fresh appointment put the teacher at a disadvantage. It carried a stipulation against continuity in service. The distraught teacher had no option but to accept it. The employer denied condonation of break in service. Setting at naught the unreasonable stipulation, Justice Pathak (as he then was) held:

It is true that the terms on which he was appointed afresh expressly stated that he would not be entitled to continuity of service, but we must have regard to the circumstances in which he accepted those terms. He was in no position to bargain for a better deal and in the straightened circumstances in which he found himself he was compelled to accept whatever was dictated to him. We do not for a moment suggest that the sanctity of the contract between the parties should be given a go-by, but what we do find is that here is a case where the subsequent conduct and the quality of his performance, of which high appreciation was recorded by his superiors, indicated that he should be relieved of the disadvantage suffered by him pursuant to that term in his contract of fresh appointment. Having regard to the interest of justice and in all the circumstances of this case we are of opinion that the appellant is entitled to an order condoning the break in his service and holding that he should be considered as continuing in service throughout from the date of his original appointment. We order accordingly.40

The long extracts from the above decisions are not without purpose. They tell how those cases involved questions of public policy which were as important as the questions in Water Transport1. They demonstrate how the Apex Court was every time as much alive to its duties and as much conscious of the stakes as in Water Transport1. They bear testimony to the fact that considerations of public policy arising from unreasonable and unconscionable terms in contracts of employment under the State were at all times as much a matter of concern to Judges as in Water Transport1. Yet never before, recourse was taken to Section 23 of the Contract Act, as in Water Transport1.

It is not that the earlier Benches were ignorant or unmindful of basic principles of the law of contracts. Quite apart from the superfluity and non-advisability of getting concerned with those principles, the idea of Section 23 of the Contract Act not only did not but could not have occurred to the learned Judges deciding those cases. The reason apparently is that Section 23 does not relate to and is not applicable to such situations.7

The short arms of Section 23 stretched

Section 23 has a limited purpose.41 It deals with the "consideration" or "object" of an agreement. It strikes at any agreement, the consideration or object of which is unlawful. One of the ways in which the consideration or object may be unlawful is its being regarded by the Court as opposed to public policy. In every agreement of employment there are terms specifying the object of the agreement and terms providing the consideration therefor. The object is the employment of the employee for rendering services to the employer. The consideration is the remuneration to be paid by the employer to the employee. It is to these terms containing the object and consideration of the agreement alone that Section 23, on its plain and simple terms, would apply. It is not to any and every term in the agreement that Section 23 would be attracted. For instance, a term providing for the conditions of retirement, or for the grant of gratuity, or for the procedure of departmental enquiry, or, for that matter, for the termination of the agreement would not fall in the category of terms specifying the "object" or "consideration" of the agreement.42 Such a term does not constitute the subject-matter of Section 23. Such a term, be it against public policy, would remain outside the purview of Section 23. Nor would the unreasonableness or unconscionability of such a term be enough reason to drag the agreement or any part of it into the dragnet of Section 23.

In Water Transport1, there is no inquiry whether Rule 9(i) concerns or contains the "object" or "consideration" of the agreement in question. No discussion as to how the wrath of Section 23 would be incurred by Rule 9(i) without the satisfaction of this precondition. No reflection on the wisdom and learning of those who witnessed legal battles on the same ground earlier and yet refrained from employing the armoury of (Section 23 of) the Contract Act. No waiting to ask and answer preliminary questions. The judgment migrates from conclusion to conclusion. At times the conclusion comes first, the reasoning thereafter. The determination that Rule 9(i) has to be adjudged void under some or the other provision of the Contract Act comes first. Side by side runs the consideration that by process of elimination Section 23 is the only provision which can help render Rule 9(i) void. The reasoning that Rule 9(i), being unconscionable, offends public policy and is, therefore, hit by Section 23 comes at the fag end.

The way the argument of Section 23 is built up is curious. The resolve to test Rule 9(i) against the principles of Contract Act, before anything else, is taken in advance.14 The remaining task is accomplished in a rummaging spree at the end of which the catch is, as was pre-determined, Section 23. The chain of thought follows the following footsteps:

(i) Under which head would an unconscionable bargain fall? If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void.43

(ii) To say that such a contract is only voidable would be to compel each person with whom the party with superior bargaining power had contracted to go to court to have the contract adjudged voidable. This would only result in multiplicity of litigation ... Such a contract or such a clause in a contract ought, therefore, to be adjudged void. 44

(iii) In order that such a contract should be void, it must fall under one of the relevant sections of the Indian Contract Act. 44

(iv) The only relevant provision in the Indian Contract Act which can apply is Section 23 .... 45

Unfortunately, as suggested above, even Section 23 cannot apply because Rule 9(i) is no part of the "object" or "consideration" for the agreement.

The long arms of Article 14 clipped

Lessons in fairness and reasonableness were learnt at all times at the feet of Article 14. The record of a mighty Fundamental Right guaranteed and secured by a great Republican Constitution has an impeccable worth and virtue of its own. It can scarcely be improved upon with charities from inferior legislative enactments. Thus, when all is said and done in Water Transport1, the desire to seek light from Section 23 for the edification of Article 14 becomes a mellowed force. The instinct and need to test and affirm newfound principles against the proven path reigns supreme. Hence the observation:

Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power.46

All the same, Article 14 is employed only as a help. Colours of fairness and reasonableness are drawn from the constitutional repertoire of Article 14. But filled in on the canvas to make motifs of Section 23, Contract Act. The ultimate picture depicts a heroic feat accomplished with the image of Section 23 as the victor emerging in the forefront. The role of Article 14 remains shrouded in the faint adumbrations behind. Thus, after recording the findings as to how Rule 9(i) has "no guidelines whatever"47 and provides "no opportunity whatever of a hearing"47, how "even where the Corporation could proceed under Rule 36 and dismiss an employee on the ground of misconduct after holding a regular disciplinary enquiry, it is free to resort instead to Rule 9(i) in order to avoid the hassle of an inquiry"47, how "Rule 9(i) thus confers an absolute, arbitrary and unguided power upon the Corporation"47, how "it violates one of the two great rules of natural justice — the audi alteram partem rule"47, and how "It is also discriminatory" 48, the conclusion finally drawn is that Rule 9(i) is void (first and foremost) under Section 23 of the Contract Act:

A clause such as Rule 9(i) in a contract of employment affecting large sections of the public is harmful and injurious to the public interest for it tends to create a sense of insecurity in the minds of those to whom it applies and consequently it is against public good. Such a clause, therefore, is opposed to public policy and being opposed to public policy it is void under Section 23 of the Indian Contract Act.49

Article 14 is included in the cast but as a supporting actor waiting in the wings:

... clause (i) of Rule 9 ... is void under Section 23 of the Indian Contract Act, 1872, as being opposed to public policy and is also ultra vires Article 14 of the Constitution. 50

POSTSCRIPT

There is yet one more pronouncement by the Supreme Court on the validity of a service rule similar to Rule 9(i) viz. O.P. Bhandari v. I.T.D.C. Ltd.51 Once again, the Supreme Court has struck down "a naked hire and fire rule". The observations of Justice Madon in Water Transport1 are given due consideration. But the thesis on Section 23, Contract Act, is not mentioned. The only touchstone employed by the Court is the constitutional touchstone of Article 14 (and Article 16). Speaking through Justice Thakkar the Court has held:

This rule cannot coexist with Articles 14 and 16(1) of the Constitution of India. The said rule must therefore die, so that the fundamental rights guaranteed by the aforesaid constitutional provisions remain alive. For, otherwise, the guarantee enshrined in Articles 14 and 16 of the Constitution can be set at naught simply by framing a rule authorizing termination of an employee by merely giving a notice. In order to uphold the validity of the rule in question it will have to be held that the tenure of service of a citizen who takes up employment with the State will depend on the pleasure or whim of the competent authority unguided by any principle or policy. And that the services of an employee can be terminated though there is no rational ground for doing so, even arbitrarily or capriciously. To uphold this right is to accord a "Magna Carta" to the authorities invested with these powers to practise uncontrolled discrimination at their pleasure and caprice on considerations not necessarily based on the welfare of the organisation but possibly based on personal likes and dislikes, personal preferences and prejudices. An employee may be retained solely on the ground that he is a sycophant and indulges in flattery, whereas the services of one who is meritorious (but who is wanting in the art of sycophancy and temperamentally incapable of indulging in flattery) may be terminated. The power may be exercised even on the unarticulated ground that the former belongs to the same religious faith or is the disciple of the same religious teacher or holds opinions congenial to him. The power may be exercised depending on whether or not the concerned employee belongs to the same region, or to the same caste as that of the authority exercising the power, of course without saying so. Such power may be exercised even in order to make way for another employee who is a favourite of the concerned authority. Provincialism, casteism, nepotism, religious fanaticism, and several other obnoxious factors may in that case freely operate in the mind of the competent authority on deciding whom to retain and whom to get rid of. And these dangers are not imaginary ones. They are very much real in organisations where there is a confluence of employees streaming in from different States. Such a rule is capable of robbing an employee of his dignity, and making him a supine person whose destiny is at the mercy of the concerned authority (whom he must humour) notwithstanding the constitutional guarantee enshrined in Articles 14 and 16 of the Constitution of India. To hold otherwise is to hold that the fundamental right embedded in Articles 14 and 16(1) is a mere paper tiger and that it is so ethereal that it can be nullified or eschewed by a simple device of framing a rule which authorizes termination of the service of an employee by merely giving a notice of termination. Under the circumstances the rule in question must be held to be unconstitutional and void.52

There is not a whisper of Section 23, Contract Act, in O.P. Bhandari51. It is the resilience and invincibility of Article 14 alone which once again comes to the rescue. Long live Article 14.

* Advocate, Allahabad High Court, Allahabad Return to Text

1. (1986) 3 SCC 156. Hereafter Water Transport Return to Text
2. (1974) 4 SCC 3 Return to Text
3. (1978) 1 SCC 248 Return to Text
4. (1979) 2 SCC 409 Return to Text
5. (1979) 3 SCC 489 Return to Text
6. Hereafter the Contract Act Return to Text
7. This is the humble opinion of the present author Return to Text
8. i.e. State including its agencies and instrumentalities Return to Text
9. or, for that matter, for the purposes of Return to Text
10. Hereafter Corporation Return to Text
11. Judgment of the High Court is reported as Central Inland Water Transport Corporation Ltd.v. Tarunkanti in 1986 Lab IC 494, at p. 496 (para 9). Emphasis supplied Return to Text
12. As His Lordship then was; (now a Supreme Court Judge) Return to Text
13. Supra, Note 3, at p. 284 (para 7) Return to Text
14. Supra, Note 1, at p. 205 (para 74). Emphasis supplied Return to Text
15. (1985)1 SCC 641 Return to Text
16. For testing the vires of subordinate legislation Return to Text
17. Supra, Note 15, at p. 690 (para 77) Return to Text
18. Alluding to the enigma of concurring Judges it has been once said :
         "In any adjudication at the level of the Supreme Court, the resolution of a Judge to agree or concur with the opinion of a brother Judge and not to render an independent opinion is doubtless a conscious decision. A thing of discernment. Born of careful deliberation. Yet an opinion is able to find favour with a Judge (in agreement) one day and the next day the Judge is brought on to agree with an opposite point of view. Without overruling the earlier view."
         "Of Judicial Vicissitudes and Self-contradiction" by Sunil Gupta, (1982) 3 SCC (Journal) 13, at page 18. In footnote 25, on the same page, the author questioned :
         "Is there a difference between the propensity of a Judge delivering Judgment and that of a Judge simply agreeing or concurring in it?" Return to Text
19. Supra, Note 1, p. 206 (para 76). Emphasis supplied Return to Text
20. (1981) 4 SCC 335 Return to Text
21. On the footing of Article 14. And without borrowing any principles from the law of contracts - either before or after the application of the test of Article 14. Return to Text
22. Ibid., at p. 367 (para 82). Emphasis supplied. Return to Text
23. Ibid., at p. 376 (para 108). Emphasis supplied. Return to Text
24. (1984) 3 SCC 369. Return to Text
25. But without seeking the aid of the principles of the law of contracts Return to Text
26. Supra, Note 14, at pp. 382-383 (para 19). Emphasis supplied Return to Text
27. Ibid., at p. 383 (para 20). Emphasis supplied Return to Text
28. (1984) 1 SCC 43 Return to Text
29. And offended the employee's right to fair play Return to Text
30. Supra, Note 28, at p. 57 (para 29) Return to Text
31. Union of India v. Tulsiram Patel, (1985) 3 SCC 398, at p. 453 (para 72) Return to Text
32. In Union of India v. Tulsiram Patel, Justice Madon lent voice to this new thinking and set forth the rationale behind it in perspicacious terms :
         "The principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of the article. Shortly put, the syllogism runs thus; violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14; therefore, a violation of principles of natural justice by a State action is a violation of Article 14." Ibid. at p. 476 (para 95) Return to Text
33. 1984 Supp SCC 554 Return to Text
34. In Sudhir Chandra Sarkar v. Tata Iron and Steel Co. Ltd., the Supreme Court held that "Conditions of service prescribed in Standing Orders get incorporated in the contract of the service of each employee with his employer". See (1984) 2 SCC 369, at p. 379 (para 14) Return to Text
35. Supra, Note 33, at p. 560. Emphasis supplied Return to Text
36. (1985) 3 SCC 116 Return to Text
37. A statutory regulation Return to Text
38. Supra, Note 36, pp. 118-119 (para 4). Emphasis supplied Return to Text
39. (1986) 3 SCC 325 Return to Text
40. Ibid., at p. 328 (para 5). Emphasis supplied Return to Text
41. The relevant portion of Section 23, Contract Act, reads as follows:
         "23. The consideration or object of an agreement is lawful, unless . . . the court regards it as immoral, or opposed to public policy.
         In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." Return to Text
42. The meaning of "consideration" and "object" in Section 23 is clear from the following Illustrations appended to that section:
         (e) A, B and C enter into an agreement for the division amongst them of gains acquired, or to be acquired, by them by fraud. The agreement is void, as its object is unlawful.
         (f) A promises to obtain for B an employment in the public service, and B promises to pay 1000 rupees to A. The agreement is void, as the consideration for it is unlawful.
         (h) A promises B to drop a prosecution which he has instituted against B for robbery and B promises to restore the value of the things taken. The agreement is void, at its object is unlawful. Return to Text
43. Supra, Note 1, at p. 206 (para 76). Emphasis supplied Return to Text
44. Ibid., at pp. 216-217 (para 91). Emphasis supplied Return to Text
45. Apparently, the plea of Section 23 was contributed to the case by the Court itself. No submission seems to have been made by the parties as such on the score of Section 23. The contentions of the parties are reproduced in the judgment (Supra, Note 1, pp. 173-174)(paras 13-A and 14). In fact, the limited plea of the employees was quite to the contrary, viz.... "that even assuming it Rule 9(i) may not be void as a contract, in any event it offended Article 14 as it conferred an absolute and arbitrary power upon the Corporation". (Supra, Note 1, p. 205)(para 72). So also in the High Court judgment there is no evidence that the parties pleaded Section 23 (Supra, Note 11). Return to Text
46. Supra, Note 1, at pp. 188-189 (para 46). Emphasis supplied Return to Text
47. Ibid., at p. 221 (para 98) Return to Text
48. Ibid., at p. 222 (para 99) Return to Text
49. Ibid., at p. 222 (para 100). Emphasis supplied Return to Text
50. Ibid., at p. 228 (para 112). Emphasis supplied. (Note the word "also" - as though Article 14 could play no more than the role of an 'also-ran') Return to Text
51. (1986) 4 SCC 337. Hereafter O.P. Bhandari Return to Text
52. Ibid., at pp. 341-342 (para 4). Emphasis supplied. The extensive abstract is once again to show how mindful the Court was of considerations of public policy Return to Text