R. M. Sahai, J. - (1.) Differences between Petitioner's labour officer promoted and confirmed as Assistant Administrative Officer; and opposite party no. 2 General Manager of the Corporation, resulted in termination of petitioner's services by order dated 31st July, 1985 without issuing any notice or framing any charge-sheet against him in purported exercise of power derived from appointment letter which permitted General Manager to terminate services of petitioner with one month's notice. That such clauses or even rules are opposed to public Policy Central Inland Water Transport Corporation Ltd. v. Tarun Kanti writ Brojo Nath Ganguli 1986 II CLR 322 and are violative of Article 14 of of Constitution. O.P Bhandari v. Indian Tourism Dev. Corporation. 1986 II CLR 449 and therefore, liable to be struck down is too late in the day to be disputed.
(2.) What has been vehemently urged by learned Counsel for Corporation. however, is that since petitioner was guilty of unseemly behaviour unbecoming of an employee of petitioner's rank this Court should refrain from exercising its equity jurisdiction in his favour. The basis for this submission is the averment in supplementary affidavit of the General Manager, that petitioner started his dirty activities within the campus of the factory which had bad effect on the general discipline in as much as he started indulging in affairs not expected from an officer with.........a lady steno-typist........... regarding which complaint was received ..........on 4-7-1985 and 10-7-1985. To support these allegations the two complaints have been filed. Whether these complaints could have justified the action against petitioner is a matter which need not he adverted to. But if this was the foundation or basis then even if the clause would have been valid it would have been difficult to uphold the action. Depriving a person of his right to continue in employment till the age of superannuation on such allegation without any inquiry or charge-sheet or opportunity to employee is violative of rule of fairness. And yet it is being put forward as a shield to defend the arbitrary action of opposite party. Out of the two complaints the first is by one of the employees that he overheard the petitioner saying to another employee that the General Manager was issuing charge-sheet these days against employees without any rhyme or reason. And when he told petitioner that he was a characterless person and he shall report the matter then he used filthy words.The complaint is dated 7th July. That is within seven days of opposite party joining as General manager. Whether it was purposive or motivated needs not examined but those uninquired allegations could not disentitle petitioner from approaching this Court. The second complaint relates to something which had happened earlier According to it the petitioner was seen in company of a lady typist and his black deeds with her were a cause of agitation amongst employees. She was later on dismissed. But petitions was still seen in Cinema in her company. There was thus danger of repetition of his black deeds in future. Therefore, to avoid it the petitioner who was a characterless person should be dismissed. It is not clear as to who signed this complaint. In affidavit, it is stated that it was signed by several workers. No names have been disclosed. It is necessary to mention here that the opposite party who earlier officiated as General Manager resigned in 1981 was appointed General Manager Manager again and joined his duties on 1st July, 1984. And within ten days of his joining two complaints were received against petitioner. The first does not reflect either on his personal or official character. The second relates to something which happened in the past. It was brought to light only after opposite party joined. It claimed for action because petitioner was still seen in company of the lady typist who had been dismissed and there was likelihood of petitioner repeating his activities in future. The complaint gives an impression that it was more with a purpose to create background. It refers to petitioner's activities in past for which no action was taken. The only clear and specific averment was that petitioner was seen in company of lady typist. Whether going to Cinema with lady typist is unseemly behaviour?. It was not proved. But assuming it to be so it by itself did not amount to unseemly behaviour which could prevent this court from exercising enquity jurisdiction and strike down an illegal and invalid order. It is unnecessary to advert to allegations of bias made by petitioner against General Manager and agitation of employees against him, when he was in corporation in 1981, but the two complaints which resulted in petitioner's dismissal unquestionably demonstrate the inherent danger implicit in exercise of power without affording opportunity. Even if the action was not motivated it was arbitrary and vicious. Taking away bread and butter for personal prejudice and annoyance for action which were not relevant or were of remote past or to avoid future indiscipline was callous exercise of power.
(3.) Faced With this difficulty the learned counsel for Corporation relied heavily on Bhandari's case and strenously urged that petitioner being a 'gold collar' employee should not be reinstated but paid compensation equivalent to three years' pay. Least that can be said is that the submission proceed on complete mis-apprehension of the new dimension explained by the Hon'ble Court in relation to the re-instatement of public sector corporation. The exception to the normal rule of reinstatement has been confined to, 'high level managerial cadre'. 'Because' 'the public sector can never fulfil its life aim or successfully vie with private sector if it is not managed by capable efficient person with unimpeachable integrity and the requisite vision, who enjoy the fullest confidence of policy makers of such undertaking'. Manager is defined in Stroud's Judicial Dictionary, thus, "a manager in ordinary talk, is a person who has management of the whole affair of Company; not an Agent who is to do one thing or a servant who is to obey order and do another, but a manager entrusted with power to manage the whole of the affairs". In Prem Sagar v. M/s. Standard Vacuum Oil Company A.I.R. 1956 S.C. 111 , a question arose whether a road engineer promoted as operations assistant by M/s. Standard Vacuum Oil Co. was exercising managerial functions or he was a workman. It was pointed out by the Hon'ble Court that it was difficult, to lay down exhaustively all the tests which can be reasonably applied in deciding this question. Several considerations would naturally be relevant in dealing with this problem. It may be enquired whether person had a power to operate on the bank account or could make payments to third parties and enter into agreement with them on behalf of employer, whether he was entitled to represent the employer to world at large in regard to the dealing of the employer with stranger, did he have authority to supervise work of clerks employed in the establishment; did he have control and charge of the correspondence, could he make commitments on behalf of employer, could he grant leave to the members of the staff and hold disciplinary proceedings against them has he power to appoint members of the staff, or punish them; these and similar other tests may be usefully applied to the question about status of an employee. In Ved Prakash v. M/s. Delron Cable Lydia (P) Ltd. 1984 (48) F.L.R. 417 (S.C.) it was held that a security inspector in a factory could not be considered to be performing managerial function as he was not authorised to appoint or dismiss any workman or order- any inquiry against him. Therefore, whether an employee was discharging managerial functions or not is primarily question of fact which depends on hierarchy of the employment, nature of duties performed by employee and control he exercises on his subordinates. In absence of any averments in the counter-affidavit the claim of the learned counsel for opposite party that the petitioner was 'gold collar employee' cannot be accepted. In any case he cannot be considered to be an employee of high managerial level. He was only a labour officer, promoted as Assistant Administrative Officer. Such officer cannot be considered as manager. As stated no material has been brought on record about the official cadre in the Corporation. There was no charge of integrity or inefficiency. In December, 1984 the Deputy Financial Controller while forward petitioner's application for post of Personnel Manager in the same Corporation wrote. 'His work has been found very much satisfactory during his tenure of service in our organisation. He is capable of handling independently all personnel and administrative matters.........he should be treated as internal candidate .........In the present circumstances and environment of the company he can prove much successful in Personnel and Administrative department rather than an outsider new comer in maintaining the discipline and administration of the Company." Therefore, neither of the tests laid down by Hon'ble Court for exercise of discretion to 'sculpture the relief' for ends of justice by paying compensation instead of reinstatement have been made out. The petitioner is not even forty. It would be unjust and hard to deny him his due. The reinstatement should be unjust and hard to deny him his due. The reinstatement should be denied if the order is being quashed because of technical omissions. But not in a case where it has not the remotest touch of rationality and bristles with anxiety to get rid of an employee for frivolous reasons. To argue, therefore that the petitioner was not entitled to relief of reinstatement and the ends of justice shall be met by awarding him compensation, does not appear to be correct.;