# [1965] 3 S.C.R. 453

- **Citation:** [1965] 3 S.C.R. 453
- **Court:** Supreme Court of India
- **Decided:** 1965-03-22
- **Case number:** CIVIL APPELLATE JurusmCTION: Civil Appeals Nos. 569 to 571 of 1964
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1965-3-s-c-r-453-3505
- **Pages:** 8

## Headnote

Natural Justice-Detention under Preventive
Detention ActTermination· of service based on such detention-Validity.
The respondents had been detained u"'der the Preventive Detention Act. On their release theiir employer-the appellant-Board,
commenced disciplinary proceedings and
show cause notices
why their services should not be· terminated on the principal ground
that they had been detained for acts prejudicial to the .maintenance
of public order. Not being satisfied with their answers, the appellant
terminated their servi9es. The respondents' appeals to the Chairman
of the appellant-Board were dismissed. Thereupon, the respondents
tiled writ petitions in the High Court, challenging the orders on the
grounds that reasonable opportunity was not given to them, and that
even the relevant statutory provisions had been contravened. The
petitions were dismissed, but were allowed by a Division Bench on
appeal.
In the apveal to this Court,
HELD: If the appellants wanted to
take disciplinary action
against respondents on the ground that they were guilty of misconduct, it was absolutely essential that the appellant should have held
a proper enquiry instead of equating the detention to a conviction by
2riminal Court. At this enquiry, reasonable opportunity should have
been given to the respondents to show cause and before reaching its
conclusion, the appellant was bound to lead evidence
against the
respondents, and give them a reasonable chance to test the evidence
in accordance with the rules of natural justice. Therefore, the Court
of appeal was right in taking the view that in the departmental enquiry which the appellant held against the respondents it was not
open to the appellant to act on suspicion, and inasmuch as the appellant's decision was based only upon the detention orders and nothing
else, there could be little doubt that the said conclusion was based
on suspicion and nothing more. [ 459E-H]

## Text

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CALCUTTA DOCK LABOUR BOARD
11.
JAFFAR IMAM AND OTHERS
March 22, 1965
[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO AND
V. RAMASWAMI, JJ.]
Natural Justice-Detention under Preventive
Detention ActTermination· of service based on such detention-Validity.
The respondents had been detained u"'der the Preventive Detention Act. On their release theiir employer-the appellant-Board,
commenced disciplinary proceedings and
show cause notices
why their services should not be· terminated on the principal ground
that they had been detained for acts prejudicial to the .maintenance
of public order. Not being satisfied with their answers, the appellant
terminated their servi9es. The respondents' appeals to the Chairman
of the appellant-Board were dismissed. Thereupon, the respondents
tiled writ petitions in the High Court, challenging the orders on the
grounds that reasonable opportunity was not given to them, and that
even the relevant statutory provisions had been contravened. The
petitions were dismissed, but were allowed by a Division Bench on
appeal.
In the apveal to this Court,
HELD: If the appellants wanted to
take disciplinary action
against respondents on the ground that they were guilty of misconduct, it was absolutely essential that the appellant should have held
a proper enquiry instead of equating the detention to a conviction by
2riminal Court. At this enquiry, reasonable opportunity should have
been given to the respondents to show cause and before reaching its
conclusion, the appellant was bound to lead evidence
against the
respondents, and give them a reasonable chance to test the evidence
in accordance with the rules of natural justice. Therefore, the Court
of appeal was right in taking the view that in the departmental enquiry which the appellant held against the respondents it was not
open to the appellant to act on suspicion, and inasmuch as the appellant's decision was based only upon the detention orders and nothing
else, there could be little doubt that the said conclusion was based
on suspicion and nothing more. [ 459E-H]
Case law referred to :
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An obligation to hold such an enquiry is also imposed on the employer by cl. 36(3) of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951, and cl. 45(6) of the Scheme of- 1956.
[459G]
CIVIL APPELLATE JurusmCTION: Civil Appeals Nos. 569 to
571 of 1964.
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Appeals from the judgment and orders dated August 4, 1961
of the Calcutta High Court in Appeals from Original Orders Nos.
22. 29 and 30 of 1959.
B. Sen and S. N. Mukheriee, for the appellants.
K. R. Chaudhuri, for the respondents.
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454
SUPREME COURT REPORTS
'(1965] 3 S.O.R.
The Judgment of the Court was delivered by
Gajendragadkar,' C. J. These three appeals arise out of
writ petitions filed by the three respondents, Jaffar
Bnndaban Nayak and Jambu Patra, respectively on the Ongmal Side of
the Calcutta High Court against the appellant, the Calcutta Dock
Labour Board. Each one of the respondents challenged the validity
of t)ie order passed by the appellant, terminating his employment
as a registered dock worker with the appellant, on the ground that
the said order was illegal and inoperative. The basis on which the
impugned orders were challenged was that the enquiry which had
been held before passing the said orders had not afforded to the
respondents a reasonable opportunity to defend themselves and as
such, the principles of natural justice had not been followed and
even the relevant statutory provisions had been contravened. The
writ petitions filed by Jaffar Imam and Jambu Patra were heard by.
Sinha, J., whereas the writ petition filed by Bridaban Nayak was
heard by P.B. Mukherji, J. The learned single Judges who heard
these respective writ petitions substantially took the same view and
rejected the contentions raised by the respondents. In the result, the
writ petitions were dismissed.
Against these decisions, the respondents preferred appeals
befol'e a Division Bench of the Calcutta High Court. The Division
Bench has allowed the appeals and has issued an appropriate writ
directing that the impugned orders by which the employment of
the respondents was terminated by the appellant should be quashed.
The appellant then applied for and obtained a certificate from the
said High Court and it is with the certificate thus granted to it that
it has come to this Court in appeal.
It appears that the three respondents were Dock workers attached to the Port of Calcutta and were registered in the Reserve
Pool. On August 12, 1955, the Commissioner of Police, Calcutta,
passed an order under s. 3(1)(a)(ii) of the Preventive Detention Act,
1950 (No. 4 of 1950) (hereinafter called 'the Act'} directing that the
respondents should be detained, as he was satisfied that they were
· guilty of violent and riotous behaviour and had committed assault
·and as such, it was necessary to detain them with a view to preventing them from acting in any manner prejudicial to the maintenance
of public order. The respondents then made representaticns to the
State Government· under s. 7 of the Act alleging that the grounds
set out in the detention orders passed against them were untrue and
that their detention was in fact malafide.
On receipt of these representations, they were forwarded by
the State Government to the Advisory Board under s. 9. It is wellknown that the Act had made a provision for referring orders of
detention to the Advisory Boards constituted under s. 8. When the
Adviso_ry
received the representations. made by ihe respon-
. dents, .1t took mto a?count the material placed before it, considered
the said representat10ns, and submitted its report within the time
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OALCUTr1. DOCK LABOUR llOAIID v. JAFFAII IMAM (GajendragaJkar, O.J.) 456
specified by s. 10(!). Since the report was against the respondents,
their detention was confirmed by the State Government under s. 11
of the Act and in consequence, their detention was continued for
about 11 months.
After they were released from detention, they applied for allocation to registered dock employment, but instead of passing
orders in favour of such allocation, the appellant commenced disciplinary proceedings against them and not;ces were served on them
to show cause why their services should not be terminated on 14
days' notice in terms of clause 36(2)(d) of the Calcutta Dock Workers (Regulation of Employment) Scheme, 1951 (hereinafter called
"the Scheme"). The principal ground in these notices was that the
respondents had been detained for acts prejudicial to the maintenance of public order and as such, their services were liable to be
terminated. Accordingly, the respondents showed cause against the
proposed order, but the Deputy Cha 'rman of the appellant was not
satisfied with their representations, and so, he terminated their services on December 17, 1956. While doing so, each one of them was
given 14 days' wages in lieu of notice for the equivalent period. The
respondents challenged this decision by preferring appeals to the
Chairman of the appellant, but their appeals did not succeed and
the orders passed by the Deputy Chairman were confirmed on
April 4, 1957. It is against these appellate orders that the respondents filed the three writ petitions which have given rise to the present appeals.
It is plain that both the Deputy Chairman who passed the impugned orders against the respondents, and the Chairman of the
appellant who heard the respondents' appeals, have taken the v:ew
that the orders of detention passed against the respohdents, in substance, amounted to orders of conviction and as such, the appellant was justified in terminating the respondents' employment. Both
the original as well as the appellate orders nnequivocally state that
having regard to the fact that the respondents had been detained,
and that their detention was confirmed and continued after consultation with the Advisory Board, it is clear that they were guilty
of the conduct alleged against them in the orders. of detention. In
that connection. it was pointed out that the Advisory Board consisted of persons of eminent status and undoubted impartiality, and
so, the fact that the representations made by the respondents were
not accepted by the Advisory Board and that their detention was
confirmed by the State Government in consultation with the Advisory Board, was enough to justify the appellant in terminating
the employment of the respondents.
The two learned single Judges who heard the respective writ
petitions substantially took the same view. Sinha, J. has observed
that the respondents had a hearing before a very responsible body
and the report that went against them showed that the detain!ng
authority was justified in holding that the respondents were gmlty
156
SUPREME COURT REPORTS
[1965] 3 S.C.R.
of the charges and had thus. committed acts of ii1discipline and
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misconduct within the meaning ·of the Scheme. In fact, Sinha J.,
felt no hesitation in holding that the appellant would be entitled to
take disciplinary action against the respondents upon suspicion, and
he held that the appellant's susp'cion against the respondent5 was
more than justified by the fact that the detention of the respondents
received the approval of the Advisory Board. P.B. Mukherjee, J.,
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also approached the question on the same lines. He held that the
appellant was entitled to take into consideration the fact that the
respondents had been detained, that the statutory Advisory Board
had considered the representat'ons of the respondents and had not
accepted them, and that the grounds of detention showed that the
detaining authority was satisfied that the respondents were guilty
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of the conduct which was prejudicial to the maintenance of public
order. "In the premises", sa;d the learned Judge, "I am satisfied
that the order terminating Brindaban Nayak's services was justified".
The Conrt of Appeal which heard the three appeals filed by
the respondents against the respective orders passed by the two
learned single Judges has disagreed with the approach adopted by
them in d;smissing the respondents' writ petitions. It has held that
in acting merely on suspicion based on the fact that the respondents
had been detained, the appellant had acted illegally and that made
the impugned orders invalid and inoperative. Mr. B. Sen for the
appellant contends that the view taken by the Court of Appeal is
erroneous in law.
Before dealing with this point, it would be useful to refer to
the relevant provisions of the Scheme. The Scheme has been made
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by the Central Government in exercise of the powers conferred on
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it by sub-s. (I) of s. 4 of the Dock Workers (Regulation of Employment) Act, 1948 (IX of 1948). Clause 3(n) defines a "reserve pool"
as mean'ng a pool of registered dock workers who are available for
work, and who are not, for the time being, in the employmerrt of a
registered employer as a monthly worker. The three respondents belong to this category of workers. Clause 23 of the Scheme guaranG
tees the specified minimum wages to workers on the Reserve Pool
Register. Clause 29 prescribes the obligations of registered dock
wo.rkers, whereas clause 30 provides for the obligations of registered employers. Clause 31 prescribes restriction on employment,
Clause 33 deals with wages, allowances and other conditions of
service, whereas clause 34 is concerned with pay in respect of unH
employment or underemployment. Clause 36 deals with. disciplinary procedure and it is with this clause that we are directly concerned in these appeals. Clause 36(2) provides that a registered dock
worker in the Reserve Pool who is avaHable for work and· fails to
comp!.\'. w!th. ai:iy of the_ provisions of the Scheme, or commits any
act
md1sc1plme or
ma.\'. be_ reported in writing to the
Special Officer, who may, after mvest1gatmg the matter and· without
prejudice to
in addition to the powers conferred by clause 35,
CALCUTTA DOCK LABOUR BOARD v. JAFFA& IMAM(Gajeridragadkar, C.J.) 457
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take any of the five steps indicated by sub-clauses (a) to (e) as regards that worker. Sub-clause (e) refers to dismissal of the guilty
workman. Clause 36(3) lays down that before any action is taken
under sub-cl. (!) or (2), the person concerned shall be given an opportunity to show cause why the proposed action should not be
taken against him. Clause 36A provides for the disciplinary powers
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of the Chairman of the Board. Clause 37 deals with termination of
employment. Clauses 38 and 39 provide for appeals. That, in brief,
is the nature of the Scheme. This Scheme was substituted by another
Scheme in 1956. Clause 45(6) of !h's new Scheme corresponds to
cl. 36(3) of the earlier Scheme. In other words, the relevant clauses
under both the Schemes require that before any disciplinary action
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is taken against a worker, an opportunity must be given to him to
show cause why the proposed action should not be taken against
him.
There can be no doubt that when the appellant purports to
exercise its authority to terminate the employment of its employees
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such as the respondents in the present case, it is exercising authority and power of a quasi-judicial character. In cases where a statutory body or authority is empowered to terminate the employment
of its employees, the said authority or body cannot be heard to say
that it will exercise its powers without due regard to the principles
of natural justice. The nature or the character of the proceedings
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which such a statutory authority or body must adopt in exercising
its disciplinary power for the purpose of terminating the employment of its employees, has been recently considered by this Court
in several cases, vide the Associated Cement Companies Ltd.,
v. P. N. Sharma & Another,(') and Lala Shri Bhagwan and Another
v. Shri Ram Chand & Anr.,(') and it has been held that in ascertain·
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ing the nature of such proceedings with a view to decide whether
the principles of natural justice ought to be followed or not, the
tests laid down by Lord Reid in Ridge v. Baldwin & Others(') are
relevant. In view of these decisions, Mr. Sen has not disputed this
position and we think, rightly.
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Therefore, the question which falls to be considered is whether
the appellant can successfully contend that it was justified in acting
upon suspicion against the respondents, the basis for the suspicion
being that they were detained by orders passed by the appropriate
authorities and that the said orders were confirmed by the State
Government after consultation with the Advisory Board. It is hardH
ly necessary to emphasise that one of the basic postulates of the
rule of law as administered in a democratic country governed by a
written Constitution, is that no citizen shall lose his liberty without
a fair and proper trial according to law; and legal and proper trial
(1) [1965] 2 S.C.R. 366.
(') [1965] 3 R.C.R. 218.
(') L.R. [J9C.>] A. C. 40.
458
8UPRE?4E COURT REPORTS
(1965) .3 S.O • .B.
according to Jaw inevitably ineans, inter alia, rl trial held ill accorJI;
dance with the relevant statuiory provisions or in their absence, consistc:1tly. with the principles of natural justice. The Act is an exception to this rule and in that sense, it am"mints to. an encroachment
on the I'berty of the citizen. But the said Act has been held to be
constitutionally valid, and so far as detention of a citizen effecJed
by an order validly passed bY. the appropriate authorities in exercise
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of the powers confer.red on ,th.em is concerned, its validity can be
challenged ·only on grounds permissible in the light of the relevant
provisions' pf the Act. or on the ground of malafides. Whenever
detenus move the High Courts or the Supreme Court challenging
the validity of the orders"of detention passt<CI against them, the
scope of the. enquiry which can be legitimately held in such proC
ceeaings is thus circumscribed and limited. In such proceedmgs,
Courts cannot entertain the plea that the
of liberty suffered. by -
the detenu by his detention is the result of mere suspicions entertained by the detaining authorities, provided the detaining authorities act bona fide; their subjective judgment about the prejudicial
character of the activities or conduct of the citizen sought to be
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detained, is not open to challenge or scrutiny in ordinary course,
and in that sense, it may have to be conceded that the.loss of liberty
has to be suffered by a citizen if he is detained validly under the
relevant provisions of the Act. Thus far, there is no dispute.
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peals is of a different character. A citizen may suffer loss of liberty
if he is detained validly under the Act; even so, does it follow that
the detenion order which deprived the citizen of his liberty should
also serve indirectly but effectively the purpose of depriving the
said citizen of his livelihood?· If the view taken by the appellanrs
officers who tried the diss:iplinary proceedings. is accepted, it would
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follow that if a citizen is detained and his detention is confirmed by
the State Government, ·his services .would be terminated merely and
splely by reason of such detention. In our opinion, such a position
is , obviously and demonstrably inconsistent with the elementary
'concept of the rule of law on which our constitution is founded.
When a citizen is cjetained, he may not succeed in .challenging the
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order of detention passed against liim, unless he is able to adduce
grounds permissible under the Act. But we are:-unable to agree with
Mr. Sen's argument that after. such a citizen is released from detention, an 'employer, like the appellant, can immediately start disci-.
plinary proceedings against him and tell him in substance that he
was detained for prejudicial activities which amount to misconduct
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and that the detention order was confirmed by the State· Government after consultation with the Advisory Board, and so, he is
liable to be dismissed from his employment. It. is obvious that the
Advisory Board does not try
·question about the propriety or
validity of the citizen's detention as a Court-of law would; indeed,
its function is limited to consider the relevant material p)aced before
it and the
received from the detenu, and then submit -
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0.U.CUTl'A DOCK LABOUR BOARD t•, JAFFAR IMAM (Gajendragadkar, C.J.) 459
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its report to the State Government within the time specified by
s. l 0(1) of the Act. It is not disputed that the Advisory Board considers evidence against the detenu which has not been tested in the
normal way by cross-examination; its decision is essentially different
in character from a judicial or quasi-judicial decision. In some
cases, a detenu may be given a hearing; but such a hearing is often,
if not always, likely to be ineffective, because the detenu is deprived
of an opportunity to cross examine the evidence on which. the detaining authorities rely and may not be able to adduce evidence before
the Advisory Board to rebut the allegations made against him.
Having regard to the nature of the enquiry which the Advisory
Board is authorised or permitted to hold before expressing its approval to the detention of a detenu, it would, we think, be entirely
erroneous and wholly unsafe to treat the opinion expressed by the
Advisory Board as amounting to a judgment of a criminal
The main infirmity which has vitiated the impugned orders arises
from the fact that the said orders equate detention of a detenu with
his conviction by a criminal court. We are, therefore, satisfied that
the Court of Appeal was right in taking the view that in a departmental enquiry which the appellant held against the respondents it
was not open to the appellant to act on suspicion, and inasmuch as
the appellant's decision is clearly based upon tjie detention orders
and nothing else, there can be little doubt that, in substance, the
said conclusion is based on suspicion and nothing more.
Even in regard to its employees who may have been detained
under the Act, if after their release the appellant wanted to take
disciplinary action against them on the ground that they were
guilty of misconduct, it was absolutely essential that the appellant
should have held a proper enquiry. At this enquiry, reasonable
opportunity should have been given to the respondents to show
cause and before reaching its conclusion, the appellant was bound
to lead evidence against the respondents, give them a reasonable
chance to test the said evidence, allow them liberty to lead evidence
in defence, and then come to a decision of its own. Such an enquiry
is prescribed· by the requirements of natural justice and an obligation
to hold such an enquiry is also imposed on the appellant by clause
36(3) of the Scheme of 1951 and cl. 45(6) of the Scheme of 1956.
It
that in the present enquiry, the respondents were not
given notice of any specific allegations made against them, and the
record clearly shows that no evidence was led in the enquiry at all.
It is only the detention orders that were apparently produced and it
is on the detention orders alone that the whole proceedings rest and
the impugned orders are founded. That being so, we feel no hesitation in holding that the Court of Appeal was pedectly right in setting aside the respect!ve orders passed by· the two learned single
Judges when they dismissed the three writ petitions filed by the respondents.
Mr. Sen strenuously contended that if we were to insist upon
a proper enquiry being held against the respondents before termi-
460
SUPREME COURT REPORTS
(1965] 3 S.CJ,11,
nating their services, the appellant would find it impossible to take
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any disciplinary action against them. He urges that the respondents
are bullies and they have terrorised their co-workers to such an
extent that no one would be willing or prepared to give evidence
against them in a departmental enquiry. Even assuming that Mr. Sen
is right that the appellant would experience difficulty in bringing
home its charges to the respondents, we do not see how such a fear
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could justify the approach adopted by the enquiry officer in the
present· case. What would happen if a desperate character who is
m the employment of the appellant had not been detained under
the Act? In such a case, before -the appellant can validly dismiss
such an employee, it will have to hold a proper enquiry. The circumstance that the respondents happened to be detained can afford no
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justification for not complying with the relevant statutory provision
and not following the principles of natural justice. Any attempt to
short-circuit the procedure based on considerations of natural justice must, we think, be discouraged if the rule of law has to prevaif,.
and in dealing with the question of the liberty and livelihood of a
citizen, considerations of expediency which are not permitted by
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law can have no relevance whatever.
The result is, the appeals fail and are dismissed with costs.
Appeals dismissed.