- (1.) We have considered the grounds urged in the Review petitions and since we find no substance in them, the Review Petitions are dismissed. 1A. THAKKAR, J (Minority view) :-While it is not agreeable to disagree with the majority, my conscience commands, and my sense of duty demands, that I should disagree. Disagree with the proposed order dismissing the Review Petitions in limine with the remark that "we find no substance in them", without affording to the petitioners any opportunity of hearing in the Court to substantiate the grounds urged by them.
(2.) One of the grounds urged, ground No. 8 in the petitions, is :- "8. That during the course of arguments the parties had proceeded on the assumption that the Hon'ble Court would decide only the 7 questions framed by the then Hon'ble Chief Justice and the individual petitions on merits would be dealt with either by the Division Benches of this Hon'ble Court or by the respective High Courts. It was on this assumption that the parties addressed their arguments and submissions only on those general questions. It is. for this reason that written submissions were made only in T.C. No. 55 of 1982 amongst all the railway matters. None of the petitioners had been given any opportunity to argue their cases on merits. The judgment under review dismissed all the Transferred Cases and thus all these petitions stand decided on merits also. It is, therefore, necessary that in the interest of justice, the petitioner should be given another opportunity to argue their petitions on merits. This has caused serious prejudice to their cases is apparent from the facts of a few cases reference whereto is made hereinafter. It is not possible to say that there is no substance in this ground because no notices have been issued on the Review Petitions and the averments have not been controverted by the other side. So also it is not stated in the majority judgment that the averments are factually untrue. Reference may be made to ground number 9 in Review Petitions Nos. 571 to 586A of 1985 which reads as under :- "9. That it may be submitted that the petitioner Shri Narpat Singh had been served with the Office Order identical to the one reproduced in para 3 above and was charged with stoppage of work from 3-2-1981 and missing from his place of duty and for intimidating and pressurising the loyal employees for not joining duty. The fact is that the petitioner, Narpat Singh is a patient of Asthama and was under the treatment of the Railway Medical Authorities between December 1980 to 1-2-1981 as outdoor patient. On 2-2-1981 while on duty as Shed-man is DSL/Shed BGKT in shift 6 hours to 14 hours, he developed breathing difficulties and was unable to perform his duties. He obtained sick memo G/92 on 2-2-1981 from GFC/DSL BGKT and while leaving duty proper charge was handed over by the petitioner. He was advised complete rest and sick certificate No. 62 of 2-2-1981 for 27 days was submitted. In these circumstances the petitioner could not be treated as on unauthorised absence from work from 3-2-1981 when he had obtained G-92 on 2-2-1981 and had sent in his sick certificate and had observed all due formalities of reporting sick as required under the rules. Had the cases been argued on merits, the petitioner, Narpat Singh would have shown to the Hon'ble Court as to how he could not be treated on unauthorised absence and that the dismissal order has been mala fide issued in a mechanical manner and cannot be sustained." That the matter of Narpat Singh was not argued on its individual merits is correct. Unless the factual averments made in para 9 are shown to be untrue, these may be considered adequate to vitiate the impugned order on the ground that it manifests non-application of mind and is built on 'no evidence'. This is a good ground to entertain the Review Petition and issue notice to the other side for hearing in the Court.
(3.) In the majority judgment (1985) 3 SCC 398 (451) paragraph 59 : (AIR 1985 SC 1416 at p. 1443 (Para 59)) the proposition of law has been enunciated that the pleasure under Art. 310(1) can be exercised even by an authority specified in the Act or rules made under Art. 309 (proviso) in the passage quoted below :- "Thus, though under Art. 310(1) the tenure of a government servant is at the pleasure of the President or the Governor, the exercise of such pleasure can be either by the President or the Governor acting with the aid and on the advice of the Council of Ministers or by the authority specified in the Acts made under Art. 309 or in rules made under such Acts or made under the proviso to Art. 309 and in the case of Cl. (c) of the second proviso to Art. 311(2), the inquiry is to be dispensed with not on the personal satisfaction of the President or the Governor but on his satisfaction arrived at with the aid and on the advice of the Council of Ministers ............" (Emphasis supplied) Serious Constitutional questions, such as the following, arise in this context: When the Constitution advisedly invests powers in regard to the exercise of pleasure on the incumbents of highest executive office can these powers be exercised by any other official, say Divl. Mechanical Engineer (DME) By a process of interpretation (and not amendment) can it be so construed that what the President by virtue of Art. 31011,) can do, the DME of the Railway can do by virtue of the same Article It would virtually amount to amending Art. 310(1) by adding the words "or by any other authority ........". That is to say to rewrite an article in the Constitution. Is this permissible What is more, the power under Art. 310(1) is exercisable even by the President or the Governor, not on his personal satisfaction, but with the aid and on the advice of the Council of Ministers. Can the same power be exercised by a D.M.E. or any other lower functionary acting on his own, there being no question of his acting with the aid or advice of the Council of Ministers Can the DME who does not even act in the name of the President, surrogate for the President It is certainly an important Constitutional issue which requires to be examined, but has not been examined, from this perspective though the point was debated. This is another ground to entertain the Review Petition and to issue a notice to the other side for hearing in the Court.;