GANESH CHANDRA MUKHERJEE Vs. NATIONAL TEXTILE CORPN WEST BENGAL ASSAM BIHAR AND ORISSATLD
LAWS(CAL)-1983-7-2
HIGH COURT OF CALCUTTA
Decided on July 18,1983

GANESH CHANDRA MUKHERJEE Appellant
VERSUS
NATIONAL TEXTILE CORPN.(WEST BENGAL,ASSAM,BIHAR AND ORISSA)LTD. Respondents

JUDGEMENT

G. N. ROY, J. - (1.) This Rule is directed against the order of termination of service of the petitioner with effect from 10th December, 1980 issued by the respondent No. 5, viz. the Chairman-cum-Managing Director of the N. T. ,C (WBABO) Ltd. The petitioner was initially appointed in Hindusthan Steel Ltd., Durgapur and was ultimately promoted as Senior Administrative Officer. Later on, the petitioner went on deputation to the National Textile Corporation Ltd., but the petitioner was assured to be permanently absorbed if the petitioner would desire to remain in the National Textile Corporation Ltd. The Hindusthan Steel Ltd. thereafter asked for option of the petitioner on condition that the petitioner would be absorbed permanently in the National Textile Corporation Ltd. and if the petitioner would opt for such absorption, the Durgapur Steel Plant would not take back the petitioner after the expiry of the period of deputation. On such condition, the petitioner consented to go on deputation to N. T, C. and his last pay certificate was issued by the Hindusthan Steel Ltd. It appears that the petitioner was initially appointed as Manager, Centralised Purchase Division with effect from 27th August, 1976 under the N. T. C. (West Bengal, Assam, Bihar & Orissa)Ltd. The post of the petitioner was thereafter upgraded and the petitioner was later on promoted as General Manager of the constituent unit of Banga Laxmi Cotton Mills. The said post of the General Manager was redesignated as Chief Executive Officer. It appears that the petitioner was sent to attend the course of general management for senior executives at the Administrative Staff College of India at Hyderabad. Later on, the petitioner was transferred to Headquarter as Officer on Special Duty for assisting the Chief Technical Officer. The petitioner was thereafter appointed as Chief Executive Officer of Sodepur Cotton Mills and in addition, the petitioner was also appointed Convenor of the committee to investigate into the complaints on. civil works at Banga Laxmi Cotton Mills. It appears the petitioner was also appointed as Chief Executive Officer of Bangashree Cotton Mills in addition to Sodepur Cotton Mills and thereafter he was also appointed as Chief Executive Officer of Gaya Cotton and Jute Mills in addition to Sodepur Cotton Mills and Bangashree Cotton Mills. It is the case of the petitioner that the Managing Director of the respondent No. 2 viz. the National Textile Corporation Ltd. which is the holder company of the National Textile Corporation (West Bengal, Assam, Bihar & Orissa) Ltd. held a review meeting at Calcutta relating to the affairs of the N. T. C. (WBABO) and Mr. S. K. Banerjee, the Chairman-cum-Managing Director of the N. T. C. (WBABO) became annoyed with the petitioner for certain statements made by the petitioner to the Managing Director of the said holding company in the said review meeting. The petitioner has alleged the said Chairman-cum-Managing respondent No. 5, expressed his anger for the statement by the petitioner in the review meeting and asked the petitioner to voluntarily resign, otherwise he was heartened to be teased out. The petitioner contends that on 26th June, 1980 the petitioner was asked to concentrate four days at Gaya Cotton and Jute Mills at Gaya and two days at Bangashree Cotton Mills in a week and the charge of Sodepur Cotton Mills was taken off from the petitioner. As it was difficult for the petitioner to stay 'four days at Gaya for looking after the Gaya Cotton and Jute Mills and two days in Calcutta for looking after the works of Bangashree Cotton Mills every week, the petitioner prayed for a month's leave, but such leave was not granted to the petitioner. The petitioner thereafter on 12th December, 1980 applied for sick leave from the said date from his residence and sent copies to Bangashree Cotton Mills. The petitioner contends that the petitioner apprehended vindictive action on the part of the Chair-man-cum-Managing Director of the N. T. C. (WBABO). The petitioner wrote each of the Directors of the N. T. C. (WBABO) and also the Managing Director of the holding company for restraining the said respondent No. 5 from taking any action against the petitioner until such opportunity would be given to the petitioner. It, however, appears that on 10th December, 1980, the respondent No. 5 viz. The Chairman-cum-Managing Director of the N. T, C. (WBABO) passed an order of termination of the petitioner with immediate effect by forwarding a cheque giving 3 months' salary in lieu of notice. As aforesaid, the said order of termination passed against the petitioner is the subject matter of challenge in the instant Rule. The petitioner contends that the said order of termination is in effect an order of dismissal and removal from service and the same had been passed by the respondent No. 5 malafide and arbitrarily, without any reason, whatsoever and in violation of the condition of the service by which the employer is bound. The petitioner also contends that the Chairman-cum-Managing Director had no jurisdiction to pass the order of termination against the petitioner. It is contended by the peitioner that the petitioner is a permanent employee of the National Textile Corporation (West Bengal, Assam, Bihar & Orissa) Ltd. and as such"' the petitioner has a right to remain as an employee of the said N. T. C. (WBABO) Ltd. until he attains the age of superannuation as per service rules. It is contended by the petitioner that removal, discharge and|or dismissal are major penalties under the rules of service of the N.T.C. (WBABO) Ltd. and the impugned order of termination which is nothing but removal from service is a major penalty but the same has been passed exparte without initiating any disciplinary proceedings and without giving the petitioner any opportunity of being heard. The petitioner also contends that there was no contract of employment with the petitioner and the N.T.C. (WBABO) but such contract; was made with the holding company viz. N.T.C. Ltd. and as such the Chairman-cum-Managing Director of the N.T.C. (WBABO) had no authority to pass the impugned order of termination against the petitioner in any event. The; petitioner further contends that even assuming that the petitioner's employment was with the N.T.C. (WBABO), it; is the Board of Directors and not the Chairman-cum-Managing Director which was competent to pass the order of termination or dismissal of service of the petitioner. The petitioner contends the petitioner was originally an employee of the Hindusthan Steel Ltd. and it was. agreed with the holding company at Delhi that the petitioner should be sent on deputation if the petitioner would be absorbed permanently in the N.T.C. Accordingly, the petitioner exercised his option. It is immaterial as to whether the petitioner's service was utilised by the subsidiary company viz. N. T. C. (WBABO). According to the petitioner, he was absorbed by the holding company and as such the order of termination cannot be made by the subsidiary company. In support of the petitioner's contention that it was the Board of Directors and not the Chairman-cum-Managing Director which is competent to pass the order of termination against the petitioner, the petitioner has contended that under Regulation 21 of Rule 93 of the Articles of Association of N. T. C. (WBABO), the Board has power to terminate the service of certain categories of employees to which the petitioner belonged. Accordingly the Chairman cum- Managing Director had no authority to terminate the service of the petitioner and the purported order of termination of service must be held to be void and without jurisdiction.
(2.) It may be noted here that initially about the maintainability of this writ petition by the petitioner against the order of termination, a preliminary objection was raised on behalf of the N.T.C. (WBABO) and the Chairman-cum-Managing Director of the N.T.C. (WBABO). After a prolonged hearing, this Court has decided that against illegal and arbitrary order of termination of service of the petitioner who was an employee of the Government Company which is an instrumentality or agency of the Central Government and as such 'State' within the meaning of Article 12 of the Constitution, the petitioner was entitled to challenge the validity of the order of termination in a writ proceeding. Accordingly, the Rule was set down for hearing on merits.
(3.) The petitioner contends that the impugned order of termination was passed arbitrarily and capriciously by the Chairman-cum-Managing Director of the N.T.C. (WBABO) without any just cause and such order was passed in contravention of the service rules of the petitioner. Mr. Chakraborty, the learned Counsel for the petitioner has contended that removal and/or ' dismissal from service is a major penalty and for imposing major penalty, a disciplinary proceeding is required to be initiated. No such proceeding had ever been initiated against the petitioner and the impugned order of termination has been passed exparte. The said order of termination is nothing but an order of dismissal or removal from service. Accordingly, the same must be held to be illegal and without jurisdiction.;


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