AI Structured Summary
Not yet generated for this judgment
Judgment
A.S. Anand, C.J.—The Appellant at the relevant time, was serving as Sub Inspector in the Security Force with the Bharat Heavy Electricals
Limited, Trichy. He applied to the second respondent, the Senior Security Officer, Bharat Heavy Electricals Limited, Trichy, for permission to
grow a beard as he intended to perform Haj Pilgrimage and to sport the beard thereafter also. Permission was granted for a specified period of 45
days, vide letter dated 17th January, 1985. That permission for the specified period, however, was not considered sufficient by the appellant and
vide his letter, dated 25th January, 1985, he sought permission to keep the beard beyond the period of 45 days which in any case had lapsed. In
his letter, he submitted that Muslims employed in police, Military and other forces as also in other walks of life were allowed to grow beard and
that, therefore, he should not be denied the right to grow beard. The appellant, however, was informed by the third respondent, vide
communication dated 6th February, 1985, that being an employee of the Security Force, he was not permitted to keep a beard. He was told that
his conduct was subject to service rules and discipline and any disobedience thereof would be viewed seriously. The appellant made
representations to respondents 2 and 3 and on 15th in February, 1985, the third respondent informed she appellant that he could not keep a beard
and should come to duty clean shaven, failing which necessary disciplinary action would be taken. Aggrieved, the appellant filed W.P. No.1363 of
1985 which was dismissed by a very elaborate order by the learned single Judge on 13th July, 1986. The learned single Judge concerned himself
only with the question whether the refusal by respondents 2 and 3 to the appellant to grow a beard interfered with the appellant''s religious lights
and was violative of Article 25 of the Constitution of India and finding that it was not so, dismissed the writ petition thereby upholding the validity of
the communication dated 15th February, 1985, impugned in the writ petition.
Before proceeding to consider the case of the appellant in the light of the findings recorded by the learned single Judge, we consider it
appropriate to extract the communication dated 15th February, 1985, which was called in question through the writ petition, so as to test its
validity. The communication reads thus:
You have been clearly instructed in this office letter No. BHE/SSO/2112515 dt. 6.2.1985 that you are not permitted to cult beard for more than
45 days which was already lapsed on 13.1:1985 and advised to come for duty with clean shave and that there is no concession to be given as
Muslim who is working in a disciplined force. Being a Sub Inspector working in an uniformed force, you must adhere to rules and regulations of
this department and be an example to others. In spite of following the instructions given to you vide this office letter cited above, you are still
growing beard disobeying the orders lawfully issued to you."" ""You are hereby advised to remove the beard, on or before 22.2.1985, failing which
necessary disciplinary action will be taken against you.
Cursory look at the above communication shows that disciplinary action was threatened against the appellant in case he did not remove the
beard on or before 22nd February, 1985. It is stated in the communication that since the appellant was working in a disciplined, uniformed force,
he had to adhere to the "" rules and regulations"" of the department and the failure to do so could result, in disciplinary action being taken against him.
Undoubtedly, if there are any rules, regulations, Standing Orders or even executive instructions prohibiting the keeping of beard by members of
the Security Force, the respondents would be well within their rights to direct the employees not to keep a beard. Whether such rule or regulation,
etc., would be sustainable in the face of Article 25 of the Constitution of India is a different question. Therefore, in the first instance it would be
necessary to examine as to whether there are any rules, regulations, Standing orders or executive instructions, having the force of rules/law of the
department governing the matter under consideration which prohibit the members of the Security Force serving with Bharat Heavy Electricals
Limited to keep a beard.
That the appellant, while serving with Bharat Heavy Electricals Limited as Sub-Inspector, Grade II, is governed by the Central/Industrial
Security Force Act, 1968 (hereinafter called the Act) is not a matter in dispute. It also is not in dispute that there are no provisions in the Act laying
down that members of the Security Force cannot keep a beard. Section 22 of the Act empowers the Central Government, by notification in the
Official Gazette, to make rules for carrying out the purpose of the Act. In exercise of those powers, Central Industrial Security Force Rules, 1969
have been framed. Besides the Act and the Rules, there are also Standing Orders of Bharat Heavy Electricals Limited governing the service
conditions of the employees.
Neither under the Act or the Rules framed thereunder, or the Standing Orders, is there any provision which prohibits the members of the
Security Force to keep a beard. Learned Counsel for the respondents was unable to refer to any provision prescribing the norms of personal
appearance in the Act, Rules or Standing orders. In vain did we search for even an executive instruction which could be supplemental in character,
prohibiting the keeping of beard by the members of the Security Force. According to learned Counsel for the respondents, however, it is Open to
the respondents to issue reasonable instructions to its employees and their failure to carry out those instructions could invite disciplinary action. On
principle, there can be no quarrel with the proposition that reasonable instructions can be given by the management to the employees. The
question, however, is whether the instruction not to keep a beard, which does not have the sanction of any of the provisions of the Act, Rules,
Standing Orders or executive instructions, can be treated as ""reasonable"". In our opinion, it cannot be so. In the absence of rules, regulations, etc.,
executive instructions can be given to fill in the gap, but if there are no executive instructions also governing a field, we fail to see how any direction
can be given, which is not in furtherance of any of the provisions of the Act, Rules, regulations, etc. No disciplinary action can be initiated against
an employer for an act of commission or omission, unless there are provisions in the service rules, etc., prohibiting that act of commission or
omission. Vide the impugned communication itself, what the appellant was told was that he has bound by the ""rules and regulations"" of the
department and had. to adhere to the same and in case he disobeyed the rules and regulations and did not come clean shaven, he would have to
suffer disciplinary action. Since neither any rule nor any regulation or instruction of the department prohibits the keeping of a beard, the question of
the appellant violating any such rule or regulation or instruction by keeping a beard and thereby to invite disciplinary action does not arise. The
direction given to the appellant to shave off his beard on the assumption that the ""rules and regulations"",of the department prohibited the keeping of
a beard cannot be said to be either reasonable or lawful direction since no rules or regulations exist prohibiting the keeping of a beard while in
service. The direction given to the appellant, under the circumstances, was whimsical and arbitrary without any sanction of the Act, Rules, Standing
Orders, regulations or executive instructions governing the service conditions of the appellant. Learned Counsel for the respondents fairly
conceded that there was no provision in the service rules, regulations, Standing Orders, etc., prohibiting the keeping of a beard or providing any
specific norms of personal appearance. He however, made an attempt to sustain the impugned direction by urging that since under the Central
Industrial Security Force Rules, 1969, rules had been framed with regard to ""dress regulation"" of the members of the Security Force, the direction
issued in the impugned communication was traceable to that rule. We cannot agree. Keeping or not keeping a beard has nothing to do with the
uniform"" or the ""dress regulations"" of the members of the Security Force as it restricts itself to prescribing the description and quantity of arms,
accoutrements, clothing and other necessary articles like badges, etc., furnished to the members of the force and the manner of wearing the same.
The rule relating to the prescription of uniform, thus, cannot be extended to include within its ambit the keeping or not keeping of a beard. We are
unable to agree with the learned Counsel for the respondents that the impugned direction itself be treated as a ""rule"" made under she Act
prescribing that members of the Security Force cannot keep a beard. u/s 2(g) of the Act, ""prescribed"" means ''prescribed by rules under the Act'',
the impugned direction cannot, therefore, be equated with a ""rule"" framed under the Act. Section 22(3) of the Act provides:
Every rule made under the Section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total
period of thirty days, which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so
laid or the session immediately following, both Houses agree in making any modification in the rule, or both Houses agree that the rule should not
be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
and the above provision itself exposes the futility of the argument raised by the learned Counsel for the respondents. Learned Counsel for the
respondents was even unable to refer to any policy declaration of Bharat Heavy Electricals Limited, in furtherance whereof, the third respondent
had the authority to issue the impugned direction. Since it is not a part of the service discipline of the to which the appellant belongs that he should
be clean shaven only and that being the position, the threat held out to the. appellant to suffer disciplinary proceedings in the event he does not have
off his beard in the communication, which contains the impugned directions, cannot be sustained. The learned single Judge did not deal with this
aspect of the matter at ail and went on to consider as to whether or not the direction in question was violative of the fundamental rights guaranteed
by"" Article 25 of the Constitution of India. Strictly speaking, that question was required to be considered only if there was any rule, regulation, etc
authorizing- the issuance of the impugned direction and without adverting to that aspect, it was not necessary to deal with, the constitutional
question.
Since we have found that the impugned direction no to keep a beard has no sanction of, any rule, regulation or executive instruction we decline
the invitation to decide the question or express any opinion as to whether the direction contained in the impugned communciation is violative of the
fundamental rights guaranteed by Article 25 of the Consiitution of India. In refusing the invitation to deckle that question which, in our opinion, does
not really arise for determination in this case, we are influenced by the guidelines given by the apex Court in Naresh Shridhar Mirajkar and Others
Vs. State of Maharashtra and Another, wherein their Lordships observed:
We have referred to these respective arguments just to indicate the extent of the field which has been covered by learned Counsel who assisted us
in dealing with the present petitions. As this Court has frequently emphasised, in dealing with constitutional matters, it is necessary that the decision
of the Court should be confined to the narrow points which a particular proceeding raises before it. Often enough, in dealing with the very narrow
point raised by a writ petition wider arguments are urged before the Court, but the Court should always be careful not to cover ground which is
strictly not relevant for the purpose of deciding the petition before it. Obiter observations and discussion of problems not directly involved In any
proceeding should be avoided by Courts in dealing with all matters brought before them. But this requirement becomes almost compulsive when
the Court is dealing with constitutional matters. That is why we do not propose to deal with the. larger issues raised by the learned Counsel in the
present proceedings, and we wish to confine our decision to the narrow points which these petitions raise.
Thus, for what we have said above, we allow this writ appeal and set aside the order of the learned single Judge. As a consequence, the writ
petition is allowed to the extent that the direction contained in the impugned communication dated 15th February, 1985 issued by the third
respondent, is held as arbitrary and invalid and is hereby quashed. In the peculiar circumstances of this case, there shall be no order as to costs.