TMI Blog1990 (2) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly dismissed from service. The dispute arising therefrom was referred under Section 10(1)(c) of the Act to Labour Court Dhanbad for adjudication. The Labour Court registered the case as reference case No. 4 of 1988 and issued notice to the parties. The parties entered appearance and filed their respective pleadings. When the matter was thus pending consideration the respondent seems to have written to the Government stating that it would be difficult for him to attend the Labour Court Dhanbad since he has been residing at Hajipur and it would be convenient for him if the case is transhttp:// JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9 ferred to Labour Court Patna. That application was made without intimation to the management. The Government however, has acceded to the request of the respondent and without opportunity to the management transferred the case to Labour Court Patna. The Notification issued in that regard reads as follows: NOTIFICATION Patna dated 8th August 1988 S.O. In exercise of powers conferred by sub-section (1) of Section 33-B of the Industrial Disputes Act, 1947 (14 of 1947) the Governor of Bihar after careful consideration of the application of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision is taken to transfer a pending case then the requirement of giving reasons becomes mandatory. The authority is under legal obligation to record reasons in support of its decision. Reasons would be life of the decision. Failure to give reasons or giving reasons not germane would be fatal to the decision. In Associated Electrical Industries (P) Ltd. v. Its Workmen, [1961] II LLJ 122, 130 the Government withdrew and http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9 transferred a reference from one tribunal to another tribunal merely stating that expediency required the withdrawal and transfer. The validity of the order of withdrawal and transfer was challenged inter-alia on the ground that no reasons were stated for passing the order. Gajendragadkar, J., (as he then was) speaking for this Court observed that the requirement about the statement of reasons to be recorded must be complied with both in substance and in letter. To say that it is expedient to withdraw a case from one tribunal and transfer it to another does not amount to giving reasons as required by the Section. In the instant case, the key question for consideration is whether the Government before ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary exercise of power of transfer is adequately safeguarded by the statutory requirement to record reasons for such transfer. The Allahabad High Court in Pioneer Ltd. v. Labour Court, Gorakhpur, [1983] (Lab) IC 335,338 has also expressed similar views. After the leading English case of Ridge v. Baldwin,I [1964] AC 40 and an equally important case of this Court in A.K. Kraipak Ors. v. Union of India, [1970] 1 SCR 457 there was a turning point in the development of doctrine of natural justice as applicable to administrative bodies. Both the authorities laid down that for application of rules of natural justice the classification of functions as judicial or administrative is not necessary. Lord Reid in Ridge case explained, that the duty to act judicially may arise from the very nature of the function intended to be performed and it need not be shown to be super added . Hegde, J., in Kraipak case said that under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. The concept of rule of law would lose its vitality if the instrumentalities of the State a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhagwati, J., expressed similar thought that audio alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. In Swadeshi Cotton Mills v. Union of India, [1981] 1 SCC 664 Sarkaria, J., speaking for himself and Desai, J., said that irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial, a duty to act fairly, that is, in consonance with the fundamental principles of substantive justice is generally implied. The presumption is that in a democratic polity wedded to the rule of law, the State or the Legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly. In the same case, Chinnappa Reddy, J., added (at 2 12) that the principles of natural justice are now considered so fundamental as to be implicit in the concept of ordered liberty . They are, therefore, implicit in every decision-making function, call it judicial, quasi-judicial or administrative. The learned Judge went on to state that where the statute is sile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good administration. It has no set form or procedure. It depends upon the facts of each case. As Lord Pearson said in Pearlberg v. Varty, (at 547), fairness does not necessarily require a plurality of hearings or representations and counter representations. Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly. A case with a not dissimilar problem was in Pannalal Binjraj and Anr. v. Union of India, [1957] 31 ITR 565. There the Commissioner of Income Tax by the power vested under section 5(7A) of Income Tax Act, 1922, transferred an assessee s case from one Income Tax Officer to another without hearing the assessee. Section 5(7A) of the Income Tax Act, 1922 provided: The Commissioner of Income-Tax may transfer any case from one Income-Tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Income-Tax Officer to another. Such transfer may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve got it verified by giving an opportunity to the management which is a party to the pending reference. Denial of that opportunity is a fatal flaw to the decision of the Government. The management need not establish particular prejudice for want of such opportunity. In S.L. Kapoor v. Jagrnohan, [1981] 1 SCR 746 at 765 Chinnappa Reddy, J., after referring to the observation of Donaldson, J., in Altco Ltd. v. Sutherland, [1971] 2 Lloyd s Rep. 515 said that the concept that justice must not only be done but be seen to be done is basic to our system and it is concerned not with a case of actual injustice but with the appearance of injustice or possible injustice. It was emphasized that the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. This takes us to the reasons given by the Government in support of the order of transfer. The Government has stated that the workman is having his residence at Hajipur and it would be ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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