(1.) The primary question raised in these Writ Appeals is one which neither the abstract reasonable man whose opinion the Judges often invoke nor the common man whose opinion the others seek elsewhere would have any hesitation in answering in a certain way but which the learned Advocate-General would have us answer the other way because, he said, such was the law. The facts are as follows:
(2.) The respondents in most of the Writ Appeals are casual labourers employed by the Administration of the Southern Railway, who are entitled to be treated as temporary employees having completed more than six months of continuous employment in terms of paragraph 2501 (b) (i) of the Indian Railway Esablishment Manual. Between 3-5-1974 and 28-5-1974 there was a nation-wide strike of Railway employees. Even on 25-11-1973 the Government of India, Ministry of Labour, in exercise of its power under Rule 118 of the Defence of India Rules, 1971 had issued an order prohibiting any strike in connection with any Industrial Dispute in any of the Railway Services in India for a period of six months with effect from 26-11-1973. On 25-4-1974 the General Manager of the Railway Administration had drawn the attention of the members of the staff to the contents of the order and had notified by prominent display on notice boards at all offices otherwise that any strike on the Part of the employees would be illegal. On 8-5-1974 the Union Minister of Railways warned the striking workers, through the media of the radio and the newspapers, that those that failed to report for duty by the afternoon of 9-5-1974 would be placed under suspension and further severe action would follow. In respect of casual labourers it was decided by the Railway Administration that if they did not report for duty by midnight of 9/10th May 1974, action would be taken to terminate their employment by invoking the provisions of rule 149 of the Indian Railways Establishment Code, Volume I. This decision also was much publicised. The respondents who had absented themselves from duty since 3-5-1974 did not report for duty as directed. According to them they did not intentionally participate in the strike but they were unable to report for duty as they apprehended physical violence from some of the striking workers. Some of them did report for duty after 20-5-1974 and before the strike was called off on 28-5-1974. Notices were served on the respondents in the following form -
(3.) The learned Advocate-General for the appellants, strenuously contended that the notices were innocuous and cast no stigma on the respondents that the notices were authorised by Rule 149 of the Indian Railway Establishment Code and that it was immaterial what the motive was behind the notices. He argued that if the Government had the right by reason of the terms of the employment, contractual or statutory, to terminate the services of an employee by giving notice of a prescribed period, it was not for the court to go behind the notice and probe into the motive that inspired the notice. He argued that where action was taken pursuant to a rule and nothing was said about any misconduct in the order of termination of service, such order could not be questioned. True, he argued the Supreme Court had stated that the test for attracting Art. 311 (2) of the Constitution was whether the misconduct was a mere motive for the order of termination of service, or whether it was the very foundation of such order, but he said, misconduct which did not appear on the face of the order could never be considered to be the very foundation of the order. In the instant case, he submitted. Rule 149 of the Indian Railway Establishment Code enabled the Railway Administration to terminate the services of a temporary employee by giving one month's notice. The individual orders issued to the respondents made no reference to any misconduct. Art. 311 (2) of the Constitution was therefore not attracted. The learned Advocate-General cited a large catena of cases.