PETITIONER: HERBERTSONS LIMITED Vs. RESPONDENT: WORKMEN OF HERBERTSONS LIMITED AND ORS. DATE OF JUDGMENT03/11/1976 BENCH: <NAME>, P.K. BENCH: <NAME>, P.K. CHANDRACHUD, Y.V. FAZALALI, SYED MURTAZA CITATION: 1977 AIR 322 1977 SCR (2) 15 1976 SCC (4) 736 CITATOR INFO : RF 1978 SC 982 (5) D 1979 SC1196 (8,19) R 1981 SC2163 (6) ACT: Industrial Disputes Act , 1947---S. 18--Settlement under s. 18(1) --Scope of <ORG> arrived at settlement--Individual workers--If should know implications. HEADNOTE: In respect of certain demands of the workers of the appellant company <ORG> made its award. When the Special Leave Petition of the appellant was pending before this <ORG> the parties filed consent terms for staying the award. In the meantime the 3rd respondent, <ORG>, wrote to the employer that all the workers who were members of the 2nd respondent, also <ORG>, resigned from that union and joined the 3rd respondent. 'The employer accordingly recognised the 3rd respondent as the Trade <ORG> representing/he workers and de-recognised the 2nd respondent. Under s. 18(1) of the Industrial Disputes Act the em- ployer entered into a settlement with the 3rd respondent in substitution of the award pending before this <ORG>. When the 3rd respondent sought to be substituted in place of the 2nd respondent in the Special Leave Petition, the 2nd re- spondent resisted the application claiming that it had still the allegiance of 50 workmen of the company. But this <ORG> added the 3rd respondent as a respondent. Since the 2nd respondent claimed to have some workers on its rolls as members and had not .accepted the settlement, this <ORG> passed a preliminary order to the effect that "in view of the fact that admittedly a large number of workmen employed by the appellant have accepted the settlement is it shown by the 2nd respondent union that the said settlement is not valid and binding on its members and whether the settlement is fair and just." Before the <ORG> the 2nd respondent did not lead any evidence to show 'the actual number of its members. The <ORG> recorded its finding that respondent No. 2 had been able to prove that the settlement was not valid and I bind- ing on its members and was incomplete to that extent. It was contended by 'the 2nd respondent that even if the set- tlement was binding on the company and the 3rd respondent representing a large majority of workmen, it was not binding .on its members under s. 18(1) . Dismissing the appeal, HELD: The settlement is fair and just. The award of the <ORG> shall be substituted by the settlement and the settlement shall be the substituted award. [24D] (1) (a) When this <ORG> called for a finding of the <ORG> it was satisfied that if the settlement was fair and just it would allow the parties to be governed by the settlement substituting the award. The Wording of the issue sent to the <ORG> for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were its members. Since a recognised and regis- tered union had entered into. a voluntary settlement this <ORG> thought that if the same was found to be. just and fair that could be allowed to be binding on all the work- ers even if a very small number of workers were not mem- bers of the majority union. [20E-F] (b) In the instant case the numerical strength of the members of the 2nd respondent, who are workers of the compa- ny, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as just and fair. Not a single worker of the company claimed before the <ORG> to be its member and asserted that the settlement was 16 not fair and just. All the workers of the company had accepted the settlement and received the arrears and emolu- ments in accordance with the same [20H] (2) (a) The assumption of the <ORG> that the quantum of the membership of the 2nd respondent did not call for a finding at all in view of this <ORG>'s order is incorrect. The <ORG> was conscious that under s. 18(1) the settle- ment was binding on the company and the 3rd respondent <ORG>. Yet it examined the question whether the workers voluntarily accepted the settlement knowing all the conse- quences, which was a wrong approach. [21B-C] (b) When a recognised union negotiates with an employer the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement since a recognised union. which is expected to protect the legitimate interests of labour enters into a settlement in the best interests of labour. [21D] (c) Prima facie this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration. [21E] (d) Having regard to the totality of the terms of the settlement it is difficult to hold that the terms are in any way unfair or unreasonable. An adjudication has to be dis- tinguished from a voluntary settlement. By the settlement labour has scored in some aspects and saved all unnecessary expenses in uncertain litigation. The settlement cannot be judged on the touchstone of the principles laid down by this <ORG> for adjudication. [22D; 23D] (3) There may be several factors that influence parties to come to a settlement as a phased endeavour in collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement there is always a likelihood of further advance in the shape of improved emoluments by voluntary settlement, avoiding fric- tion and unhealthy litigation. This is the quintessence of settlement which courts and <ORG>s should endeavour to encourage.[23E] (4) It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained, the <ORG> will be slow to hold a settle- ment as unfair and unjust. the settlement has to be accepted or rejected as a whole. [24B] In the instant case the 3rd respondent representing the large majority of the workmen has stood by this settlement which is a strong factor difficult to ignore. When a union backed by a large majority of workmen has accepted a settle- ment in the course of collective bargaining, this <ORG> would not interfere with the settlement. [24C] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1901 of 1970. (From the Award dated 4/6.3.1970 of <ORG> in Ref. (I.T.) No. 158/67, published in <ORG>, Part I-L dated 16-4-1970). <NAME>, <NAME>, <NAME> and <NAME> for the Appellant.

<NAME> and <NAME> for Respondent No. 2. <NAME>, <NAME> and Miss <NAME>, for Respondent No. 3.

The Judgment of the Court was delivered by GOSWAMI, J.--This appeal by special leave brings forth a rather disquieting feature of union rivalry whereby the significance of collective bargaining which is the forte of a union, is sought to be made a flop. We say this in the absence of any suggestion of mala fides or of any other ulterior motive alleged by .the contending union on time part of the rival union or its principal officer who had negotiated a certain settlement on behalf of the workmen in substitution of the award of <ORG> out of which this appeal arose. The appellant before us is the employer, supported, whole- hog, by <ORG>, respondent NO.

3.Respondent No. 2 is the only contending union, viz.<ORG>.

On May 18, 1967, there was a :reference by the Govern- ment of Maharashtra of an industrial dispute under section 10(1)(d) .of the Industrial Disputes Act to <ORG> for adjudicating eight demands such as, wage scales, adjustment of. increments, classification of workmen into different grades, dearness allowance, restropective effect of the claim from 1st June, 1966, gratuity, sick leave and wages for Sundays and holidays when called upon to .Work The dispute was between-<ORG>, Bombay and their workmen. A written statement was submitted 'by <ORG> (2nd respondent), claiming to represent the majority of the workmen on: July 25, 1967. It appears that this written statement was signed by <NAME> as General Secretary. The company submitted their written statement on August 17, 1967, in which; inter alia, they pleaded. incapacity to have greater burden on account of financial position. It was stated that the company had been making losses year after year since 1963-64 During the pendency of the dispute before the <ORG>, <ORG> was amalgamated .with <ORG> (the appellant) (hereinafter to be de- scribed as-the company) with effect from 1.10.1968 under the provisions of the" Companies Act by an order of <ORG> dated 6th January, 1969. The wage scales existing at the time. of the reference were as follows :--

Unskilled Rs. 1.25-0.10-2.25 Semi-skilled Rs. 1.50-0.15-3.00 Dearness allowance Rs. 2.16 per day.

The demand of the workmen on the other hand was as follows.

Unskilled Rs. 1.50-0.15-3.00 per day Semi skilled Rs 1.75 0.20 3.75 " " Skilled Rs. 2.50-0.30-5.50 " " Highly skilled Rs. 3.50-0.45.8.00 " "

Dearness allowance "as paid to. the Bombay Textile Oper- atives". 3--1458SCI/76 The <ORG> (<ORG>) made its award on March 4, 1970. As regards the demand for wages and dearness allowance, the award of <ORG> was as follows :-

Grade I Rs Plus Revised (Unskilled) 1.30-0. 12-2.50 Textile dearness allowance. Grade II B (Semi-skilled) 1.40--0.15-3.20 do A (Semi-skilled) 1-60-0.30-3.60 do Grade III 1.80-0.20-2.80-0.25-4.80 do (Skilled)

The company preferred an application for special leave to this Court on May 12, 1970, against the award. On May 25, 1970, certain consent terms for staying the award were filed by the parties without prejudice to the rights in the appeal whereby the company agreed to pay Rs. 2.50 as addi- tional dearness allowance per day from October 1, 1968. This Court admitted the special leave petition and posted the stay application for hearing on September 24, 1970, on which date in modification of the earlier stay order the parties further agreed that from 1st September, 1970, till the disposal of the appeal, the total dearness allowance would be calculated at Rs. 5/- per day irrespective of the index figures. On February 22, 1973, the company agreed to increase the dearness allowance further by 80 paise with effect from January 1, 1973.

From June 1973 certain new developments took place. On June 7, 1973, a letter was received by the company from the 3rd respondent, <ORG>, stating that all the workers of the company had resigned from the 2nd respondent union (<ORG>) and joined the 3rd respondent union. On June 7, 1973, the 3rd respondent sent a communication to the respondent No. 2 with a copy to the company enclosing a letter signed by the workers stating that they had resigned from the 2nd respondent union. On June 25, 1973, the 3rd respondent sent a reminder to the company to recognise the <ORG>. By a letter dated 2nd/5th July, 1973, to the President, <ORG>, who was incidentally the same <NAME> who had earlier submitted the written statement in behalf of the <ORG>, the company granted recognition to the <ORG> and informed the 2nd respondent of its derecognition.

On October 18, 1973, the company entered into a memorandum of settlement with <ORG> which was in substitution of the award which was pending appeal before this Court. Copies of this settlement were forwarded to the Secretary to the <ORG>, <ORG>, the Commissioner of Labour, the Deputy Commissioner of Labour and the Conciliation Officer. It is common ground that this is a settlement under section 18 (1) of the Industrial Disputes Act .

The 3rd respondent applied to this Court to be substi- tuted if place of the 2nd respondent and the Other union. The 2nd respondent alone resisted the application claiming that it had still the allegiance of 50 workmen of the company. This Court allowed <ORG> to be added as the 3rd respondent.

The company also submitted a petition to this Court to decide the appeal in terms of the memorandum of settlement dated October 18, 1973. This Court on December 19, 1974, passed the following order :--

"The number of workmen concerned in this industrial dispute is 210. The appellant employer and the 3rd respondent union which claims to have 193 members on its rolls have entered into a settlement. The 2nd respondent union which claims to have about 55 members on its rolls has not yet accepted the settlement. We think it just, therefore, to pass the same kind of preliminary order that was passed in <ORG> vs. Their workmen in the following terms :--

"In view of the fact that admittedly a large number of workmen employed by the appellant have accepted the settlement, is it shown by the 2nd respondent union that the said settlement is not valid and binding on its members and whether the settlement is fair and just?"

"<ORG>, Maharashtra, would consider the issue and submit its finding within two months from this date. After the finding is received, the appeal would be set down for hearing. Parties should be allowed to lead evidence."

When the matter went back, it appears that respondent No. 2 did not lead any evidence before the <ORG> (<NAME>). The company and the 3rd respondent, on the other hand, examined 7 witnesses including <NAME>, the President of the 3rd respondent union. Certain documents were also filed before the <ORG> by the parties. The <ORG> after hearing the parties in due course recorded its findings on September 9. 1975 and forwarded the same to this Court. The findings of the <ORG> recorded are as follows :--

(1) Respondent 2 <ORG> has been able to prove that the Disputed Settlement is not valid and binding on its members.

(2) The Disputed Settlement is incomplete to the extent mentioned above. (3) The scheme of D.A. provided for in the Disputed Settlement in so far as it affects workmen at or just above the subsistence level is not fair, just and reasonable.

(4) The rest of the Disputed Settlement is fair, just and reasonable."

That is how this appeal has come up for bearing before us. The first question that arises for consideration is whether the findings. of the <ORG> are sustainable. The appellant and respondent No. 3. with one voice, have as- sailed the findings 1 to 3 whereas the 2nd respondent has supported all the findings. It is strenuously submitted by the 2nd respondent that there is no reason why we should interfere with the findings of fact returned by the <ORG> and relying upon these it is further contended that we should hear the appeal on the merits ignoring the settlement altogether.

Before we proceed further it is necessary to appreciate the implication of the order of this <ORG> passed on Decem- ber 19, 1974, set out earlier. This order was passed after hearing the parties for some time when the appeal was first called for hearing on December 19, 1974. From the recitals in the order it is apparent that the parties were prepared to abide by the settlement if the same was fair and just. We are not prepared to accept the position, as urged by the 2nd respondent, that even if the settlement is binding on the parties executing the document, namely, the company and the 3rd respondent representing a large majority of the workmen, since the same is not binding on the members of <ORG>, howsoever small the number, under section 18 (1) of the Industrial Disputes Act , the appeal should be heard on merits. On the other hand, we take the view that after hearing the parties this <ORG> was satisfied when it had called for a finding of the <ORG> that if the settlement was fair and just it would allow the parties to be governed by the settlement substituting the award. The wording of the issue sent to the <ORG> for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were their members upon whom they could clearly assert that the settlement was not binding under section 18(1) of the Indus- trial Disputes Act . It cannot be assumed that the parties were not aware of the implications of section 18(1) of the Industrial Disputes Act when the <ORG> passed the order of December 19, 1974. This <ORG> would not have sent the case back only to decide the legal effect of section 18(1) of the Industrial Disputes Act. Since a recognised and registered union had entered into a voluntary settlement this <ORG> thought that if the same, were found to be just and fair that could be allowed to be binding on all the workers even if a very small number of workers were not members of the majority union. It is only in that context that after hear- ing the parties the case was remanded to the <ORG> for a finding on the particular issues set out above. The numerical strength of the members of the 2nd re- spondent, who are workers of the company, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as just and fair. In that view of the matter we are unable to appreci- ate that the 2nd respondent did not choose it fit to produce evidence to show the actual number of the workers of the company having membership of the 2nd respondent. It is rather odd that not a single worker of the company claimed before the <ORG> to be a member of the 2nd respondent and to assert that the settlement was not fair and just. This is particularly so when all the workers of the company have accepted the settlement and also received the arrears and emoluments in accordance with the same.

The <ORG> thought that the question of the quantum of membership of the 2nd respondent did not call for a finding at all in view of <ORG> order. As observed above that was not a correct assumption. On the other hand, we feel that this view of the <ORG> has led it to approach the matter in an entirely erroneous manner. The <ORG> is, rightly enough, conscious that under section 18 (1) of the Industrial Disputes Act the settlement was binding on the company and the members of the 3rd respondent union. Even so, the <ORG> devoted nearly half of its order in scanning the evidence given by the company and respondent No. 3 to find out whether the terms of the settlement had been explained by the President of the union to the workmen or not and whether the workers voluntarily accepted the settlement knowing all the "consequences". This to our mind is again an entirely wrong approach.

When a recognised union negotiates with an employer the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement since a recognised union, which is expected to protect the legitimate interests of labour, enters into a settlement in the best interests of labour. This would be the normal rule. We cannot altogeth- er rule out exceptional cases where there may be allegations of mala fides, fraud or even corruption or other induce- ments. Nothing of that kind has been suggested against the President of the 3rd respondent in this case. That being the position, prima facie, this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration.

It is true that in the course of evidence given by the 'President as also by two workmen and other officers of the company the <ORG> has found certain discrepancies. For example, the President in the course of cross-examination stated that since the workers had already agreed he only tried to improve upon the settlement by negotiating .with the company for 85% and 871/2% dearness allowances instead of 80% earlier agreed to by the workers on their own. We do not think that this admission by the President would reduce the efficacy of the settlement or affect its validity. It may be that negotiations had been going on for some time and even some important workers had been individually approached by the management, but it is clear that the President of the union had taken upon himself the responsibility for the settlement upon which he. on his own turn, succeeded in making some effective improvements beneficial to the Work- men. The <ORG> further made some observations that <NAME> was actually unaware of the consequences that would ensure to the workmen as a result of the settlement Reading the evidence of <NAME> as a whole. we, however. find "hat it cannot be said that he was unaware of the conse- quences. We are also unable to hold that he had knowingly and deliberately suppressed the fact about the importance of the consequences to the workers if the settlement were accepted. As a matter of fact it has been stated by the workmen. who were exam- ined, that <NAME> did mention that they would lose Rs. 12/- to Rs. 15/- in dearness allowance if the settlement superseded the award. Mathematically this may not be correct as perhaps, on account of the rise of consumer price index, the loss in dearness allowance could have been even double the figure given by the President. That, however, per se, does not make the settlement unfair or unreasonable. It is found by the <ORG> that in the matter of wages the settlement has given better terms and that the same cannot be said to be unfair. The <ORG> has stated in more than one place that the only objection to this settle- ment levelled by the 2nd respondent is with regard to the quantum of dearness allowance. While the award has given the Revised Textile dearness allowance, the settlement has substituted 86% and 871/2% of the Revised Textile allowance for the first and the second period respectively. While the award is for one year, subject to the provisions of the Industrial Disputes Act , the settlement is for a period of three years. Having regard to the totality of the terms of the settlement we are unable to agree with the <ORG> that the terms are in any way unfair or unreasonable. Besides, the settlement has to be considered in the light of the conditions that were in force at the time of the reference. It will not be correct to judge the settle- ment merely in the light of the award which was pending appeal before this Court. So far as the parties are con- cerned there will always be uncertainty with regard to the result of the litigation in a court proceedings. When, therefore, negotiations take place which have to be encour- aged, particularly between labour and employer in the inter- est of general peace and well being, there is always give and take. Having regard to the nature of the dispute, which was raised as far back as 1968, the very fact the existence of a litigation with regard to the same matter which was bound to take some time must have influenced both the par- ties to come to some settlement. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust.

There are three categories of workers, permanent work- ers, listed casual workmen and certain other casual workmen. It is said that the third category of workmen are employed seasonally for a period of 20 days or so. Their number is also said to be not more than 20 or 30. The terms and conditions relating to this category of casual workmen were left, under the settlement, to be mutually decided by the parties. It is because of this feature in the settlement that the <ORG> held that the settlement was incomplete. We are, however, informed that as a matter of fact by mutual agreement some terms have been settled even for this third category of casual workmen. At any rate, because no deci- sion was arrived at with regard to this small number of seasonal workmen, it cannot be said that the settlement is bad on that account.

The <ORG> next dealt with the principles applicable in granting dearness allowance to workers. It is while dealing with this part of the <ORG>'s award that <NAME> for the 2nd respondent sought to make a strong plea in favour of sustaining the award by disregarding the set- tlement. According to counsel the wage level of the workers is more or less at subsistence level and, therefore, cent per cent neutralisation of the cost of living or, at any rate, 95% neutralisation should have been allowed while setting dearness allowance. Since the <ORG> has rightly taken that settled principle into consideration and the settlement has departed from it, the same should be held as unjust and unfair to the workmen.

We should point out that there is some misconception about this aspect of the case. The question of adjudication has to be distinguished from a voluntary settlement. It is true that this <ORG> has laid down certain principles with regard to the fixation of dearness allowance and it may be even shown that if the appeal is heard the said principles have been correctly followed in the award. That, however, will be no answer to the parties agreeing to a lesser amount under certain given circumstances. By the settlement, labour has scored in some other aspects and will save all unnecessary expenses in uncertain litigation. The settle- ment, therefore, cannot be judged on the touchstone of the principles which are laid down by this <ORG> for adjudica- tion.

There may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding fric- tion and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication. The <ORG> fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair.

Mr. <NAME> has drawn our attention to several authori- ties of this Court with regard to the principles of fixation of dearness allowance including the recent decision of this Court in <CITATION> and earnestly submitted that there is a "peremptive necessity" to grant cent per cent or at any rate 95% neutralisation of the cost of living as dearness allowance (5th principle of <ORG> supra). Even the <ORG> has relied upon the above decision. But, as we have pointed out, that is not the correct way to decide whether a settlement voluntarily arrived at by the parties is just and fair. The matter would have been abso- lutely different if on the face of it the settlement was highly unconscionable or grossly unjust. Even according to the <ORG>, the reduction of the dearness allowance to 85% and 871/2% from cent per cent is the only objectionable feature to enable it to hold that that part of the (1) Supp. S.C.R. 453.

settlement is unjust and unfair. The <ORG> found that all other terms of the settlement were "fair, just and reasonable".

It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the <ORG> will be slow to hold a settle- ment as unfair and unjust. The settlement has to be accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust. Even before this <ORG> the 3rd respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore. As stated elsewhere in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settle- ment. Besides, the period of settlement has since expired and we are informed that the employer and the 3rd respondent are negotiating another settlement with further improve- ments. These factors, apart from what has been stated above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement. That being the position, we unhold the settlement as fair and just and order that the award of the <ORG> shall be substituted by the settlement dated October 18, 1973. The said settlement shall be the substituted award. The appeal is disposed of accordingly. There will be no order as to costs.

B.P.R. Appeal dismissed.


PETITIONER: FERTILIZER CORPORATION KAMGAR UNION (REGD.), SINDRI ANDOTHER Vs. RESPONDENT: UNION OF INDIA AND OTHERS DATE OF JUDGMENT13/11/1980 BENCH: <NAME>, Y.V. ((CJ) BENCH: <NAME>, Y.V. ((CJ) BHAGWATI, P.N. KRISHNAIYER, V.R. FAZALALI, SYED MURTAZA KOSHAL, A.D. CITATION: 1981 AIR 344 1981 SCR (2) 52 1981 SCC (1) 568 CITATOR INFO : RF 1981 SC1722 (3) R 1982 SC 149 (22,25,608,966) F 1982 SC1107 (17,19) MV 1983 SC 75 (46) RF 1985 SC1147 (15) R 1986 SC 157 (8,11) 1986 SC 847 (40) R 1989 SC1988 (18) RF 1991 SC1902 (36) ACT: Constitution of India- Article 19(1)(g)- Sale of redundant/retired plants & equipment-Occupation of an industrial worker-Whether affected by such sale- Article 14- Whether violated- Article 43A- Wrongs committed by management in public sector whether can be remedied- Article 32- Access to Justice-Public Property dissipated by sale-When and by whom can the sale be set aside. HEADNOTE: The petitioners (workers) challenged the legality of the sale of certain plants and equipment of <ORG>, whereby the highest tender submitted by respondent No. 4 was accepted by <ORG> and approved by <ORG>. The petitioners, amongst others, contended that (i) that the decision to sell the plants and equipment of the <ORG> was taken without calling for any report;(ii) the original tender of Rs. 7.6 crores was unaccountably reduced to Rs. 4.25 crores; (iii) the price of the plants and equipment, which was ultimately realised in the sale was manipulated with ulterior purposes; (iv) the decision to restrict fresh offers, in respect of the reduced equipment, to the tenderers who had submitted tenders for more than Rs. 4 crores was unfair and arbitrary; (v) the said decision resulted in a huge loss to the public exchequer and (vi) the sale had jeopardised the employment of 11000 odd workers who faced retrenchment as a result of the sale. On behalf of petitioners 3 and 4 it was further contended that the sale will deprive them of their fundamental right under Article 19(1) (g) to carry on their occupation as industrial workers and that the sale is in violation of the provisions of Article 14 of the Constitution being arbitrary and unfair. The respondents raised a preliminary objection to the maintainability of the writ petition on the ground that the petitioners have no locus standi and that the impugned sale did not violate any of the fundamental rights of the petitioners. Dismissing the petition: ^ HELD (By the <ORG>) The petitioners' right under Art. 19(1)(g) to carry on their occupation as industrial workers was not affected by the sale, nor was their fundamental right, if any, under Article 14 of the Constitution violated. [60 A] (Per <NAME>, C.J., <NAME> & <NAME>, <NAME>.) 1. The violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32. 53 The jurisdiction conferred on <ORG> by Article 32 is an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated. A right without a remedy is a legal conundrum of a most grotesque kind. [59 E-F] 2. Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose. [59 E] 3(i). There is no substance in the grievance that the petitioners' right under Article 19(1)(g) is violated or is in the imminent danger of being violated by the impugned sale, since not only did the sale not affect the employment of the workers employed in the <ORG>, but those of them who were rendered surplus from time to time on account of the closure of the plants were absorbed in alternate employment in the same complex. [60 C, F-G] (ii) The right of petitioners 3 and 4 and of the other workers is not, in any manner, affected by the impugned sale. The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment. If the workers are retrenched consequent upon and on account of the sale, it will be open to them to pursue their rights and remedies under the Industrial Laws. The closure of an establishment in which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 19(1)(g) of the Constitution. [60 G-H, 61 A] 4. Article 19(1)(g) confers a broad and general right which is available to all persons to do work of any particular kind and of their choice. It does not confer the right to hold a particular job or to occupy a particular post of one's choice. Even under Article 311 of the Constitution, the right to continue in service falls with the abolition of the post in which the person is working. The workers in the instant case can no more complain of the infringement of their fundamental right under Article 19(1)(g) than can a <ORG> servant complain of the termination of his employment on the abolition of his post. The choice and freedom of the workers to work as industrial workers is not affected by the sale. The sale may at the highest affect their locum, but it does not affect their locus, to work as industrial workers. [61 B-D] 5. In the instant case, it is quite difficult to hold that the decision to sell the plants and equipment of the <ORG> was arbitrary, unreasonable or mala fide. The real drive of the petition is against the decision of the <ORG> to sell the plants and equipment. It is that decision which is stated to furnish the cause to complain of the violation of the right conferred by Article 14 , fairness, justness and reasonableness being its implicit assumptions. [64 D-F] 6. As far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the <ORG> has put all its cards on the table. One cannot exclude the possibility here that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegation of mala fides. [64 G-H, 65 A-B] 54 7. It cannot be held that the petitioners' rights, if any, under Article 14 are violated, in view of the fact that neither the decision to sell nor the sale proceedings were unreasonable, unjust or unfair. But if and when a sale of public property is found to be vitiated by arbitrariness of mala fides, it would be necessary to consider the larger question as to who has the right to complain of it. [65C, D- E] 8.(i) The maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water-tight compartments. The question whether a person has the locus to file a proceedings depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution. [65 E- G] (ii) The <ORG> might not have refused relief to the workers if it had found that the sale was unjust, unfair or mala fide. If a public property is dissipated, it would require a strong argument to convince the <ORG> that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the <ORG> is ineffective because the parliamentary control of public enterprises is "diffuse and haphazard". [65 G-H, 66 A] (Per <NAME> and <NAME>, <NAME>. concurring) 1. Public law, as part of the panorama of the developmental process, must possess the specific techniques of public sector control within well-defined parameters which will anathematise administration by court writ and interdict public officials handling public resources in disregard of normatice essentials and constitutional fundamentals. In a society in which the <ORG> had thrust upon it the imperative of effectuating massive transformation of economy and social structure the demands upon the legal order to inhibit administrative evils and engineer developmental progress are enormous, though novel. [68 E & 69 A-B] 2. It is important to underscore the vital departure from the pattern of judicial review in the Anglo-American legal environment because the demands of development obligated by Part IV compel creative extensions to control jurisprudence in many fields, including business administrative law, contract law, penal law, fiscal law and the like. [69 C-D] 3. Judicial interference with the <ORG> cannot be meticulous. The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If <ORG> <ORG> company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super-auditor, take <ORG> to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration. [71 A-C] 55 4. Locus Standi must be liberalized to meet the challenges of the time. Ubi jus ibi remedium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets. [71 D-E] 5. An officious busybody picking up a stray dispute or idle peddlar of blackmail-litigation through abuse of the process of the court cannot be permitted to pollute the court instrumentality, for private objectives. Public justice is always and only at the service of public good, never the servant or janitor of private interest or personal motive. [72 B-C] 6. Public interest litigation is part of the process to participate justice and 'standing' in civil litigation of that pattern must have liberal reception at the judicial door-steps. [74 E-F] 7. Certainly, it is not part of the judicial process to examine entrepreneurial activities to ferret out flaws. The court is least equipped for such oversights, Nor, indeed, is it a function of the judges under the constitutional scheme. The internal management, business activity or institutional operation of public bodies cannot be subjected to inspection by the <ORG>. To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental rules of reasonable management of public business, if breached will become justiciable. [77 A-C] 8. Article 43A of the Constitution confers, in principle, partnership status to workers in industry and therefore technical considerations of corporate personality cannot keep out those who seek to remedy wrongs committed in the management of the public sector. [76 <CITATION> .  1 S.C.R. 97 Wisconsin Law Review, Vol. 1966: 999 at P. 1064 and M. Cappelletti, Rabels Z (1976) 669 at 672 referred to. JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 3804 of 1980. (Under Article 32 of the Constitution).

<NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the Petitioners.

<NAME>, Att. General of India, <NAME>, <NAME> and <NAME> for Respondent No. 1.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME> for Respondent No. 2.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Mrs. <NAME> and <NAME> for Respondent No. 4.

The Judgment of <NAME>, C.J., <NAME> and <NAME> JJ. was delivered by, <NAME>. <NAME> gave a concurring Opinion of his own and on behalf of <NAME> J.

CHANDRACHUD, C.J. By this petition under Article 32 of the Constitution, the petitioners challenge the legality of the sale of certain plants and equipment of <ORG>, whereby the highest tender submitted by Respondent 4 in the sum of Rs. 4.25 crores was accepted on May 30, 1980. The relief sought by the petitioners is that the respondents should be directed not to sell away the plant and equipment, that they should be asked to withdraw their decision to sell the same and that the said decision should be quashed as being illegal and unconstitutional.

Petitioner 1 is <ORG>, Petitioner 2, <NAME>, a Member of <ORG> from Dhanbad, is the President of that Union, while Petitioners 3 and 4 are workers employed in the Factory. Respondent 1 to the Writ Petition is <ORG>, Respondent 2 is <ORG>, ('<ORG>'), Respondent 3 is <ORG>, while the added Respondent 4, <NAME>, is the highest tenderer. Respondent 2, <ORG>, is a Company incorporated under the Companies Act 1956 and is a 'Government Company' within the meaning of Section 617 of that Act. It established <ORG> which was commissioned in 1951. By article 66(1) of the Articles of Association of respondent 2, its directors are appointed by the President of India.

On January 4, 1980 <ORG> of respondent 2, (<ORG>), decided that tenders should be invited for the sale of 'Redundant/retired plants and equipment of respondent 3. In pursuance of that decision, an advertisement was inserted in the newspapers on February 25, 1980 inviting tenders for the sale of nine units of the "closed down chemical plants" of the <ORG> on "as is where is" basis. The advertisement gave to the intending purchasers the option to quote for four alternatives, one of which was the quotation for individual equipment such as pumping sets and compressors. Each tenderer was required to submit three separate envelopes: Envelope No. 1 relating to the payment of earnest money; envelope No. 2 relating to the terms and conditions of the sale; and envelope No. 3 relating to the amount of bid offered by the tenderer. The offers were to be valid until June 19, 1980.

On March 20, 1980 when the envelopes bearing No. 1 were opened, it was found that two tenderers had not complied with the term as to the payment of the earnest money. As a result, the number of valid tenders was reduced to nine. Discussions took place thereafter between the tenderers and the authorities, as a result of which an agreed formula was evolved regarding the exclusion of the weights of foundation and the exclusion of sales-tax from the bids offered. A few items were also excluded from the list of articles advertised for sale. In the light of these modifications, the tenderers were asked to submit fresh quotations in a separate envelope marked 'No. 4'.

On March 21, 1980 envelopes bearing No. 3 which contained the original offers and those bearing No. 4 which contained the modified offers, were opened in the presence of the tenderers. The highest original offer was that of respondent 4 in the sum of Rs. 7.6 crores. The highest modified offer of Rs. 6.2 crores was also made by respondent

4. The sale was thereafter adjourned.

On March 31, 1980 a letter was received by Respondent 2 that a part of the plants and equipment which were advertised for sale were needed by <ORG> for the purposes of experiment and research. On April 10, 1980 a similar request was received from <ORG> of Respondent 2. On May 14, 1980 <ORG> decided that only those items should be offered for sale which remained after meeting the requirements of <ORG>) and <ORG> and that fresh offers should be invited for the reduced stock, restricted to the tenderers who had submitted modified tenders in sums exceeding Rs. 4 crores. There were six such tenders amongst the nine valid tenders. A week later, the six tenderers who had submitted those tenders were called to <ORG> and a fresh list of reduced items was furnished to them. They submitted their revised tenders in sealed covers on May 23, 1980. On May 24, <ORG> considered the offer made by Respondent 4 in the sum of Rs. 4.25 crores as the best, that being the highest amongst the fresh reduced offers. <ORG> referred the matter to the <ORG> on the same date and on May 29, the <ORG> gave its approval to the acceptance of respondent 4's offer. On May 30, a letter of Intent was issued by Respondent 2 in the name of Respondent 4 who paid the security deposit of Rs. 50 lakhs on June 13, 1980. An order of sale in favour of Respondent 4 was issued by Respondent 2 on July 7, 1980 whereupon Respondent 4 started dismantling the machinery and equipment which he had purchased. This Writ Petition was filed on August 14, 1980. On August 25, the <ORG> issued a show cause notice on the writ petition and stayed the sale.

The petitioners challenge the sale, inter alia, on the following grounds:

(1) that the decision to sell the plants and equipment of the <ORG> was taken without calling for any report, expert or otherwise; (2) that the original tender of Rs. 7.6 crores was unaccountably reduced to Rs. 4.25 crores; (3) that the price of the plants and equipment, which was ultimately realised in the sale was manipulated with ulterior purposes; (4) that the decision to restrict the fresh offers, in respect of the reduced equipment, to the tenderers who had submitted tenders for more than Rs. 4 crores was unfair and arbitrary;

(5) that the said decision resulted in a huge loss to the public exchequer since, if the sale was readvertised, an appreciably higher price would have been realised; and (6) the sale has jeopardised the employment of 11000 odd workers who face retrenchment as a result of the sale.

Petitioners 3 and 4 support this petition under Article 32 of the Constitution by contending that the sale will deprive them of their fundamental right under Article 19(1)(g) to carry on their occupation as industrial workers. They contend further that the sale is in violation of the provisions of Article 14 , since it is arbitrary and unfair.

The learned Attorney General, who appears on behalf of <ORG>, has raised a preliminary objection to the maintainability of the writ Petition on the ground that in the first place, the petitioners have no locus standi to file the petition and secondly, that the impugned sale does not violate any of the fundamental rights of the petitioners. We must decide this objection before considering the contentions raised by <NAME> on behalf of the petitioners.

Article 32 of the Constitution which guarantees by clause (1) the right to move <ORG> by appropriate proceedings for the enforcement of the rights conferred by Part III, provides by clause (2) that:

"<ORG> shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part".

It is manifest that the jurisdiction conferred on this Court by Article 32 can be exercised for the enforcement of the rights conferred by Part III and for no other purpose. Clause (1) as well as clause (2) of Article 32 bring out this point in sharp focus. As contrasted with Article 32 , Article 226 (1) of the Constitution provides that:

"Notwithstanding anything in article 32 <ORG> shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any <ORG>, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose". (emphasis supplied).

The difference in the phraseology of the two Articles brings out the marked difference in the nature and purpose of the right conferred by these Articles. Whereas the right guaranteed by Article 32 can be exercised for the enforcement of fundamental rights only, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose.

The jurisdiction conferred on <ORG> by Article 32 is an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated. A right without a remedy is a legal conundrum of a most grotesque kind. While the draft Article 25 , which corresponds to Article 32 , was being discussed in <ORG>, Dr. <NAME> made a meaningful observation by saying:

"If I was asked to name any particular article in this Constitution as the most important-an article without which this Constitution would be a nullity-I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the <ORG> has realised its importance". (Constituent Assembly Debates, December 9, 1948, Vol. VII, p. 953).

But though the right guaranteed by Article 32 is one of the highly cherished rights conferred by the Constitution, the purpose for which that right can be enforced is stated in the very article which confers that right. The violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32.

That makes it necessary to consider whether any of the fundamental rights of the petitioners is violated or is in the imminent danger of being violated by the sale of the plants and equipment of the <ORG>. The grievance of the petitioners is that two of their fundamental rights are violated by the sale, one under Article 19(1) (g) and the other under Article 14 of the Constitution.

We find no substance in the grievance that the petitioners' right under Article 19(1)(g) is violated or is in the imminent danger of being violated by the sale. That Article confers on all citizens the right to practise any profession or to carry on any occupation trade or business. The right of the petitioners to carry on an occupation is not infringed by the sale mediately or immediately, actually or potentially, for two reasons. In the first place, <NAME>, who is the Chief Engineer of <ORG>, says in paragraph 5 of the counter-affidavit filed by him on behalf of the <ORG>, that although the old plants and equipment had to be shut down from 1976 to 1979 because they had become redundant, unsafe or unworkable, no employee was deprived of his employment on that account. <NAME> says further in the same paragraph and in paragraph 6 of the counter-affidavit, that the management of the <ORG> had decided to deploy the workmen working in the plants that had to be shut down in various other plants set up under the scheme of modernisation and rationalisation and in the various facilities that had been renovated in the Sindri complex itself. Thus, not only did the sale not affect the employment of the workers employed in the <ORG>, but those of them who were rendered surplus from time to time on account of the closure of the plants were absorbed in alternate employment in the same complex.

Secondly, the right of Petitioners 3 and 4 and of the other workers to carry on the occupation of industrial workers is not, in any manner affected by the impugned sale. The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment. If the workers are retrenched consequent upon and on account of the sale, it will be open to them to pursue their rights and remedies under the Industrial Laws. But the point to be noted is that the closure of an establishment in which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed by Article 19(1)(g) of the Constitution. Supposing a law were passed preventing a certain category of workers from accepting employment in a fertiliser factory, it would be possible to contend then that the workers have been deprived of their right to carry on an occupation. Even assuming that some of the workers may eventually have to be retrenched in the instant case, it will not be possible to say that their right to carry on an occupation has been violated. It would be open to them, though undoubtedly it will not be easy, to find out other avenues of employment as industrial workers. Article 19(1)

(g) confers a broad and general right which is available to all persons to do work of any particular kind and of their choice. It does not confer the right to hold a particular job or to occupy a particular post one's choice. Even under Article 311 of the Constitution, the right to continue in service falls with the abolition of the post in which the person is working. The workers in the instant case can no more complain of the infringement of their fundamental right under Article 19(1)(g) than can a Government servant complain of the termination of his employment on the abolition of his post. The choice and freedom of the workers to work as industrial workers is not affected by the sale. The sale may at the highest affect their locum, but it does not affect their locus, to work as industrial workers. This is enough unto the day on Art. 19(1)(g).

In regard to the infringement of the right under Article 14 , the contention of the petitioners is that the plants and equipment of the factory were sold without the benefit of any expert report, that the decision to effect the sale was taken arbitrarily, that it was actuated by an ulterior motive, and that the sale is vitiated by the violation of the principles of natural justice since the ultimate bid was restricted to a select group of persons. The petitioners contend that the arbitrariness and unfairness of the sale is reflected in the circumstance that the original bid of Rs. 7.6 crores came down to Rs. 4.25 crores. If the sale was readvertised after there was a material variation in its terms, the plants and equipment, according to the petitioners, would have fetched a much higher price.

A clear and satisfactory answer to this contention is provided by the learned Additional Solicitor General, who appears on behalf of Respondent 2, <ORG>. He has pointed out to us numerous circumstances from which it would appear that the grievance of the petitioners that the sale was unfair and arbitrary is not justified.

The affidavits filed on behalf of the respondents, particularly those of <NAME>, Chief Engineer of <ORG> and of <NAME>, Under Secretary in <ORG>, <ORG>, show that the Sindri Plant, which was commissioned in 1951 and was expanded in 1959 and 1969 by providing certain extra facilities, had outlived its use. Various schemes were considered from time to time for improving the economics of <ORG> in order to ensure continued employment to the workers. The first of such schemes was the Sindri Rationalisation Scheme, which was approved by the <ORG> in 1967. This scheme was completed in October 1979 at a cost of Rs. 60.77 crores While the Rationalisation Scheme was under implementation, it transpired that the <ORG> manufacturing facilities based on coke were fast deteriorating and unless the equipment was renovated substantially or was replaced with modern equipment, it was impossible to expect stability in the production of Nitrogenous fertilisers from the plant. Different alternatives were before the <ORG> in this behalf, and, finally, the Sindri Modernisation Scheme was approved by it in November 1973. This Scheme envisaged the shutting down of the old <ORG> plant based on coke and the setting up of a modern <ORG> plant producing 900 tonnes a day of <ORG> with low sulphur heavy stock as food-stock. This scheme was completed in October 1979 at a cost of Rs. 183.19 crores. Thus, the long term plan of the <ORG> was to retain the Ammonium Sulphate plant after renovating it and to shut down the old coke-based <ORG> plant. The plant operations with the old plant showed considerable deterioration in 1975-76. A team of engineers of <ORG> as well as of <ORG> of <ORG>, in association with the engineers of <ORG>, Durgapur, undertook Survey, examination and inspection of the plants with a view to determining their status and condition. A committee of Directors was also appointed for the same purpose. One of the main criteria which the Directors kept before themselves in view of the reported unsafe working condition of the plant was the safety of the personnel and the workmen. The matter was thereafter kept under constant review and parts of the plant were retired or closed down from time to time as and when their operation became unsafe and uneconomical. The running of the old plant had indeed become so uneconomical that as against the cost of production of Rs. 787.23 per ton of <ORG> in 1971-72, the cost of production in 1978-79 was approximately Rs. 6296/- per ton. An additional circumstance which compelled the closure of a part of the plant is the fact that the raw material required for the old plant comprised special high quality coal which is in short supply.

On the question of arbitrariness of the sale, the following facts and circumstances are particularly relevant:

(1) The decision of <ORG> in respect of the sale relates only to the redundant or retired plants and equipment; (2) The Board is authorised by article 68(20) of the Articles of Association of the Corporation to sell even the whole of the undertaking with the prior approval of the President of India. Such approval was taken before the sale was finalised in favour of Respondent 4;

(3) The decision of the Board was restricted to a small part of the assets of <ORG>. The balance sheet for 1954-55 of the erstwhile <ORG> shows that the assets of the said <ORG> were of the value of Rs. 22,82,99,086/- as on April 1, 1954, out of which plants, equipment, machinery, etc. were of the value of Rs. 14,68,59,502/-. The original cost of the plants and equipment, which have now been sold, was about Rs. 10 crores, of which the written-down value as on March 31, 1980 was about Rs. 50 lakhs. The present outlay on <ORG> is in the region of Rs. 220 crores;

(4) The decision to sell the redundant or retired plants became necessary for the reason that they had out lived their life, having run for a period ranging from 18 to 28 years. It had also become unsafe, hazardous and uneconomic to run such plants and equipment; and (5) Although the old plants had to be shut down on account of the sale, no employee at all was retrenched or is likely to be retrenched on account of the sale.

The answer which the Minister for Petroleum and Chemicals gave on the floor of the <ORG> to the question put by respondent 2 is, if we may say so, strictly 'parliamentary'. The question was whether there was any report justifying the sale. The answer was 'NO' because there were reports which preceded the sale and which advised the sale. But they did not 'justify' the sale, which is an ex post facto matter. In fact many a report had suggested the disbanding of worn out, uneconomical and hazardous plants of <ORG> undertakings like:

1. Report of the Fertilizer Mission to India of <ORG> published July, 1969.

2. Techno economic study of Alternative schemes for <ORG> prepared by <ORG> of <ORG> of India and published May 1971.

3. Techno economic Feasibility Report of Sindri Modernisation Project published by <ORG> 1973 of <ORG>.

4. Appraisal of <ORG>

Report of <ORG>, <ORG>, published November, 1974.

5. Report on Works Transformation and Environmental Study by <ORG>

<ORG>, published July 1975.

In view of these facts and circumstances, it is quite difficult to hold that the decision to sell the plants and equipment of the <ORG> was arbitrary, unreasonable or mala fide. It has to be emphasized that the real drive of the petition is against the decision of the <ORG> to sell the plants and equipment. It is that decision which is stated to furnish the cause to complain of the violation of the right conferred by article 14 , fairness, justness and reasonableness being its implicit assumptions.

There is only one other aspect of the matter and that we are unable to view with any great equanimity. It is clear from the proceedings that the plants which were initially advertised for sale went through variation on two occasions. The first variation which was made on March 20, 1980 may not be regarded as substantial. But after the sale was adjourned to March 31, 1980, the requests received by the <ORG> from the other public sector undertakings stating, that they were in need of a part of the equipment which was advertised for sale, led to a substantial reduction in the goods advertised for sale. The authorities then sent for the nine tenderers and negotiated with them across the table. We want to make it clear that we do not doubt the bonafides of the authorities, but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the <ORG> has put all its cards on the table. In the instant case, the officers who were concerned with the sale have inevitably, though unjustifiably, attracted the criticism that during the course of negotiations the original bid was reduced without a justifying cause. We had willy-nilly to spend quite some valuable time in satisfying ourselves that the reduction in the price was a necessary and fair consequence of the reduction in the quantity of the goods later offered for sale on March 31, 1980. One cannot exclude the possibility that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegation of mala fides.

In view of the fact that neither the decision to sell nor the sale proceedings were unreasonable, unjust or unfair, it cannot be held that the petitioner's rights, if any, under Article 14 are violated. The learned Attorney General contended that arbitrariness would be actionable under Article 32 , only if it causes injury to the fundamental rights of the petitioner, and that the petitioners in the instant case have no fundamental right in the exercise of which they can challenge the sale. We consider it unnecessary to examine this contention because the sale is not vitiated by any unfairness or arbitrariness. If and when a sale of public property is found to be vitiated by arbitrariness or mala fides, it would be necessary to consider the larger question as to who has the right to complain of it.

That disposes of the question as regards the maintainability of the writ petition. But, we feel concerned to point out that the maintainability of a writ petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water-tight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the <ORG> that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the <ORG> is ineffective because the parliamentary control of public enterprises is "diffuse and haphazard". We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide.

Several decisions were cited before us by the learned Attorney General, the learned Additional Solicitor General, <NAME> and <NAME> on the question of the maintainability of the writ petition. We consider it unnecessary to discuss them in view of the fact that we have come to the conclusion that the petitioner's fundamental right under Article 19 (1) (g) to carry on the occupation of an industrial worker is not affected by the sale, and similarly, that his fundamental right, if any, under Article 14 of the Constitution has not been violated.

The question as regards 'access to justice'. particularly under Article 226 of the Constitution, has been dealt with by Brother <NAME>, at some length, for which reason I do not consider it necessary to dwell upon that topic.

In the result, we dismiss the petition and discharge the rule. There will be no order as to costs.

<NAME>, J. This Writ Petition which, in the forensic unfolding through oral submissions, has exceeded our expectations, bristles with profound issues of deep import one of which is the citizen's legal standing vis a vis illegal handling of public resources a jurisprudential area of critical importance but of precedential barrenness and, therefore, all the more demanding in the developmental setting and social justice imperatives of Law India. The learned Chief Justice has considered with care some of the profound questions covered in the course of the arguments and it may be supererogation to tread the same territory. The general factual presentation and legal conclusions of the learned Chief Justice have our concurrence. Equally, the approach to Arts. 14 and 32, with its fascinating expansionism, is of strategic significance, viewed in the perspective of Third World jurisprudence. Maybe, that while we broadly agree, our emphasis may differ, our shades of meaning may vary and, in some places, even our processes of reasoning may lead us to other destinations. Even so, a general consensus suffices and we desist from dealing with all the points discussed by our learned brothers. Nevertheless, some problems of seminal significance affecting the adjectival law are of such compelling futuristic impact that we shall examine them alone in our separate opinion.

The facts have been stated, the arguments have been indicated and that helps us to plunge straight into the points we propose to consider. Briefly, a <ORG> company has gone through the long exercise of selling and allegedly obsolescent steel plant for junk price, after receiving tenders, holding discussions, making modifications and ultimately settling the sale in favour of <NAME> of Calcutta. In this process, two decisions were taken; the first was a policy decision to sell a substantial plant, part of which could have been salvaged, as if the entire material were scrap; the second question which the company decided was to call for tenders but to settle the sale, not exactly as originally intended, but with many changes, negotiations and alterations, so much so, while the maximum offer in the first round was for over Rs. 7 crores the actual offer which was accepted was for Rs. 4 crores and odd, the difference being explained by the respondents on the score that many items included in the original proposal to sell had since been withdrawn.

When a plant is shut down, as in this case, it has been, for reasons the merits of which we do not propose to scrutinise, the workers employed in it are ordinarily thrown out of employment. Assuming some patch-work arrangement to give lingering employment for some time more were offered as a measure of alleviation, that certainly is not equal to the steady and assured service in a public sector undertaking which is a Government company owned entirely by the President of India. Their economic fortunes and employment status are affected by the amputation of a limb of the company. These workers have invoked the jurisdiction of this <ORG> under Art. 32 of the Constitution and sought to demolish through the writ of this <ORG>, both the decision to sell the plant on the score of obsolescence and the dubious manner of sale which, in their submission, has resulted in colossal loss to the public exchequer and, vicariously, to the citizenry of the country, including, a fortiori, the workers in the enterprise. Two questions incidentally arise: Have the workers locus standi under Art. 32 , which is a special jurisdiction confined to enforcement of fundamental rights ? What, if any, are the fundamental rights of workmen affected by the employer's sale of machinery whose mediate impact may be conversion of permanent employment into precarious service and eventual exit ? Lastly, but most importantly, where does the citizen stand, in the context of the democracy of judicial remedies, absent an ombudsman? In the face of (rare, yet real) misuse of administrative power to play ducks and drakes with the public exchequer, especially where developmental expansion necessarily involves astronomical expenditure and concomitant corruption, do public bodies enjoy immunity from challenge save through the post mortem of parliamentary organs. What is the role of the judicial process, read in the light of the dynamics of legal control and corporate autonomy ? This juristic field is virgin but is also heuristic challenge, so that law must meet life in this critical yet sensitive issue. The active co-existence of public sector autonomy, so vital to effective business management, and judicial control of public power tending to berserk, is one of the creative claims upon functional jurisprudence.

The <ORG> cannot wait and, despite allergy to minimal decisional law-making in vacant spaces, the rule of law in this virgin area cannot leave the fertile field fallow.

Judicial, though interstitial, law-making is needed in this field. "Many of the judges of England have said that they do not make law. They only interpret it. This is an illusion they have fostered. But it is notion which is now being discarded everywhere. Every new decision- on every new situation-is a development of the law. Law does not stand still. It moves continually." We have no doubt that public law, as part of the panorama of the developmental process, must possess the specific techniques of public sector control within well defined parameters which will anathematise administration by court writ and interdict public officials handling public resources in disregard of normative essentials and constitutional fundamentals.

The functional future of the rule of law in our country depends on the fulfillment of the words of Chief Justice <NAME>: Our Judges are not monks or scientists, but participants in the living stream of national life . Our system faces no theoretical dilemma, but a single continuous problem; how to apply to ever-changing conditions the never- changing principles of freedom". The Indian citizen does expect some cybernetic system or ombudsman Mechanism whereby power geared to public good does not betray the goals of social engineering. The jural postulates which are an imperative of our Independence and planned development assume this command function of the law It is good that we state the inter-action between planning and law in the words of Prof. <NAME>:

"Plan is that aspect of the social process which is concerned with the maximum utilization of institutions and resources from the point of view of economic development; law is that aspect of the social process which is concerned with the structuring and enforcing of social policy (plan) in terms of the rights and duties therefrom".

Our national reconstruction involves an enormous increase in public sector operations in fulfillment of the paramount directives of Part IV of the Constitution. In a society in which the <ORG> had thrust upon it the imperative of effectuating massive transformation of economy and social structure the demands upon the legal order to inhibit administrative evils and engineer developmental progress are enormous, though novel. The present case, whatever the merits and the ultimate conclusion, does raise the deeper issue of the dynamics of social justice vis-a-vis the role of the Rule of Law where the public sector occupies the commanding heights of the national economy and yet asserts a right to be free from judicial review. That cannot be. While it is unnecessary for us to spell out in greater detail the emergence of a new branch of administrative law in relation to the national plan and the public sector of the economy. It is important to underscore the vital departure from the pattern of judicial review in the Anglo American legal environment because the demands of development obligated by Part IV compel creative extensions to control jurisprudence in many fields, including business administrative law, contract law, penal law, fiscal law and the like.

<NAME>, dealing with the law of economic development in Sub-Saharan Africa has dealt with the maintenance of legality in a developmental setting with focus on stability and change and the evolution of new norms of constitutional and administrative law. He rightly stresses what applies to India as well:

"If there are to be some reasonable norms for administrative behaviour in Africa, the formulation of codes of administrative law is desirable. But such codes are not self-enforcing; without institutional devices to support them, they become meaningless."

He continues to make certain observations on the enforcement on the regime of legality and their importance for the Indian scene:

"If the tone of public life is sufficiently honest and fair-minded, formal norms are relatively unneeded. That is not the position in Africa; on the contrary, there is a notable lack of restraints upon the exercise of state power. This betrays itself most blatantly in the widespread corruption that seems to exist, especially in West Africa. When corruption permeates the entire fabric of government, legality is the first sufferer, for state power is exercised on grounds unrelated to its nominal purposes. In English-speaking Africa, the devices for the enforcement of the few standards of administrative probity that exist are in the common-law tradition. In some cases there are internal administrative appeals. Resort to the courts for relief is theoretically available if an ascertainable norm has been violated. Relief can be sought in a civil action brought by the extreme cases, in a criminal action brought by the director of public prosecutions.

The civil remedies for administrative wrongdoing thus depend upon the action of individual citizens. In such an action, the individual is pitted against the <ORG>-always an unequal contest. The individual does not have even the few procedural devices that the common law imports into criminal actions to try to redress the balance. At his own expense, he must challenge the vast panoply of <ORG> power with all its resources in personnel, money, and legal talent, by a civil action for a declaratory judgment or for an extraordinary remedy-injunction, writ of mandamus, or writ of prohibition. Aside from the manifold technical insufficiencies of these forms of action, the financial impediments to such an action are staggering. As a result of these impediments, in the United <ORG>s, where almost the sole institutional protection against administrative error or arbitrariness is such an action, usually only great corporations or individuals who are supported by large voluntary associations have been able to carry through litigation. To rely upon such individual actions as the primary means of policing administrative action in Africa is to rely upon what is nonexistent."

A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Arts. 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the court until other ombudsman arrangements a problem with which <ORG> has been wrestling for too long-emerges. I have dwelt at a little length on this policy aspect and the court process because the learned Attorney General challenged the petitioners locus standi either qua worker or qua citizen to question in court the wrong doings of the public sector although he maintained that what had been done by the <ORG> was both bona fide and correct.

We certainly agree that judicial interference with the <ORG> cannot be meticulous in our Montesquien system of separation of powers. The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If <ORG> of a Government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super-auditor, take <ORG> to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules, of public administration.

Assuming that the <ORG>-company has acted mala fide, or has dissipated public funds, can a common man call into question in a court the validity of the action by invocation of Arts. 32 or 226 of the Constitution.? Here, we come up on the crucial issue of access to justice and the special limitations of Art. 32 which is the passport to this <ORG>.

We have no doubt that in a competition between courts and streets as dispenser of justice, the rule of law must win the aggrieved person for the law court and wean him from the lawless street. In simple terms, locus standi must be liberalised to meet the challenges of the times. Ubi just ibi remedium must be enlarged to embrace all interests of public-minded citizens or organisations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice in its triune facets. Lord <NAME>'s warning in his Hamlyn Lectures lend strength to our view :

"I shall endeavour to show that there are in the contemporary world challenges, social, political and economic, which, if the system cannot meet them, will destroy it. These challenges are not created by lawyers; they certainly cannot be suppressed by lawyers: they have to be met either by discarding or by adjusting the legal system. Which is to be ?"

Lest there should be misapprehension, we wish to keep the distinction clear between the fundamental right to enforce fundamental rights and the interest sufficient to claim relief under Art. 226 and even under other jurisdictions. The learned Attorney General almost agreed, under pressure of compelling trends in the contemporary law of procedure, that Art. 226 may probably enable the petitioner to seek relief if the facts suggested by the court hypothetically existed. <NAME> also took up a similar position. I will put aside Art. 32 for a moment and scan the right under Art. 226. There is nothing in the provision (unlike under Art. 32 ) to define 'person aggrieved', 'standing' or 'interest' that gives access to the court to seek redress.

The argument is, who are you to ask about the wrong committed or illegal act of the <ORG> if you have suffered no personal injury to property, body, mind or reputation ? An officious busybody picking up a stray dispute or idle peddlar of blackmail-litigation through abuse of the process of the court cannot be permitted to pollute the court instrumentality, for private objectives. Public justice is always and only at the service of public good, never the servant or janitor of private interest or personal motive.

Law as I conceive it, is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundary will be litigation-happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms suffer from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public-minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi.

<NAME> and <NAME> wrote in Legal Control of Government:

"Restrictive rules about standing are in general inimical to a healthy system of a administrative law. If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases where they wish to sue merely out of public spirit, why should they be discouraged?" They further observed:

"The problem of standing, or locus standi is inherent in all legal systems...... But in the United States, perhaps because of the constitutional basis which the subject has acquired in federal law it can be discussed as a single topic. In Britain it is a thing of shreds and patches, made up of various differing rules which apply to various different remedies and procedures. It is a typical product of the untidy system of remedies, each with its own technicalities, which all British administrative lawyers would like to see reformed."

We have no doubt that having regard to the conditions in Third World countries, <NAME> is right in his stress on the importance of access:

"The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee legal rights."

The need for a radical approach has been underscored in New Zealand by <NAME>:

".......today it is unreal to suggest that a person looks to the law solely to protect his interests in a narrow sense. It is necessary to do no more than read the newspapers to see the breadth of the interests that today's citizen expects the law to protect-and he expects the court where necessary to provide that protection. He is interested in results, not procedural niceties."

India is an a fortiori case, especially as it suffers from the pathology of mid Victorian concepts about cause of action. <ORG> in its discussion paper No. 4 has considered the pros and cons and strongly supported the wider basis for access to justice. Class-actions will activise the legal process where individuals cannot approach the court for many reasons. I quote from the Discussion Paper No. 4 :

"Widened standing rules may assist consumers in attaining relevant injunctive or declaratory relief but they do not assist in recovering losses inflicted by illegal trading practices, nor do they threaten the illegal trader where he is mot hurt, his pocketbook. The most potent legal instrument in that regard so far devised is the modern class action, to some an 'engine of destruction', to others a mighty force for good. Consider the New York Commissioner of Consumer Affairs giving evidence before <ORG> in 1970.

'A federal class action law will have more impact on the market places of the nation than all the myriads of laws and ordinances against fraud and deception which are hidden away, in the statute books of the 50 States and their various sub-divisions, put together. All these laws make fraud illegal. But they have not made fraud unprofitable. Many of these laws can only be invoked by administrative agencies, which long ago lost their concern for the consumer and their appetite for action.

A <ORG> class action law...... will put the power to seek justice in court where it belongs-beyond the reach of campaign contributors, industry lobbyists, or Washington lawyers-and it will put power in the hands of the consumers themselves and in the hands of their own lawyers, retained by them to represent their interests alone.' "

Public interest litigation is part of the process of participate justice and 'standing' in Civil litigation of that pattern must have liberal reception at the judicial doorsteps. The flood-gates argument has been nailed by <ORG> :

"The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom. A major expressed reason for limiting standing rights is fear of a spate of actions brought by busybodies which will unduly extend the resources of the courts. No argument is easier put, none more difficult to rebut. Even if the fear be justified it does not follow that present restrictions should remain. If proper claims exist it may be necessary to provide resources for their determination. However, the issue must be considered.

. . . . Over recent years successive decisions of <ORG> have liberalised standing so as to afford a hearing to any person with a real interest in the relevant controversy. Surveying the result in 1973 Professor <NAME> commented : 'When the floodgates of litigation are opened to some new class of controversy by a decision it is notable how rarely one can discern the flood that the dissentors feared.

Professor <NAME> went on to point out that the liberalised standing rules had caused no significant increase in the number of actions brought, arguing that parties will not litigate at considerable personal cost unless they have a real interest in a matter." We agree with the conclusion of the <ORG>: "The moral, perhaps, applies; if the courts cannot, or will not, give relief to people who are in fact concerned about a matter then they will resort to self-held, with grave results for other persons and the rule of law. Some may reply that if there is no evidence of a great increase in numbers there is no evidence of need for enlarged standing rights. The reply would overlook two considerations. One case may have a dramatic effect on behaviour in hundreds of others; this is the whole notion of the legal 'test case'. Secondly, the mere exposure to possible action is likely to affect the behaviour of persons who presently feel themselves immune from legal control".

In <ORG>, Ratlam, a bench of this Court observed:

" 'It is procedural rules' as this appeal proves, 'which infuse life into substantive rights, which activate them to make them effective' .... The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of 'standing' of British Indian vintage. If the centre of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the tradi-

tional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. In that sense, the case before us between the Ratlam Municipality and the citizens of a ward, is a pathfinder in the field of people's involvement in the justicing process, sans which as Prof. <NAME> points the system may 'crumble under the burden of its own insensitibity'........... Our judicial system has been aptly described as follows:

Admirable though it may be, (it) is at once slow and costly. It is a finished product of great beauty, but entails an immense sacrifice of time, money and talent.

This 'beautiful' system is frequently a luxury; it tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims.

Why drive common people to public interest action ? Where Directive Principles have found statutory expression in Do's and Dont's the court will not sit idly by.......

After all (Australian, 16 November, 1977) was right. We quote as a concluding thought of benign import for us:-

"Under a banner 'Easier Access to Courts of Law' the Australian, 16 November 1977 declared: 'Perhaps-and it is only a perhaps-there was once some justification for restricting access to the courts to prevent their being bogged down in a morass of ineffectuality. But today's better informed, better educated, more literate and more politically aware citizens should certainly not be barred from the courts by tradition. The law can no longer be a closed shop."

In the present case a worker, who, clearly, has an interest in the industry, brings this action regarding an alleged wrong-doing by <ORG>. Article 43A of the Constitution confers, in principle, partnership status to workers in industry and we cannot, therefore, be deterred by technical considerations of corporate personality to keep out those who seek to remedy wrongs committed in the management of public sector. Locus standi and justiciability are different issues, as I have earlier pointed out. This takes us to the question of justiciability of questions like sale of public property by public bodies. Certainly, it is not part of the judicial process to examine entrepreneurial activities to ferret out flaws. The court is least equipped for such oversights. Nor, indeed, is it a function of the judges in our constitutional scheme. We do not think that the internal management, business activity or institutional operation of public bodies can be subjected to inspection by the <ORG>. To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental rules of reasonable management of public business, if breached, will become justiciable.

If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 226.

The learned Attorney General drew our attention to Art. 32 and cited decisions to support his contention that only the petitioner's fundamental rights could be agitated under that Article. As the rulings now stand, he is right, although the question still survives as to whether a worker's fundamental right under Art. 14 is not affected when arbitrary action of the enterprise in which he is employed ha an impact on his well-being.

The democratisation of judicial remedies which is the thrust of our separate opinion, induces us to conclude with a quote :

It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereigns boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.

Having sought to illumine the half-lit zone of access jurisprudence, we wish to make it clear that we are not dealing with the likely application Art. 19(1) (f) or of Art. 14 which have been raised in the present case because the learned Chief Justice has held that on the merits the action of the <ORG> is above board. The question which we reserve may well be considered when an appropriate occasion arises.

N. K. A. Petition dismissed.