- (1.) BY the Court.- BY means of this writ petition the petitioner who was Store In charge in U. P. State Spinning Mills Co. Ltd. opposite party no. 1, has challenged the termination order dated 4-7-1988 U. P. State Spinning Mills Co. Ltd. is a Government Company incorporated under Section 617 of the Companies Act and is an 'state' within the meaning of Article 12 of the Constitution of India. Opposite party no 1 advertised number of posts for its various units in different parts of the State on 24-7-1984 in Hindustan Times, inviting applications from candidates possessing qualification and experience mentioned therein. It was also provided therein that the minimum salary will be Rs. 13090/- per annum plus included free house, water and electricity. The petitioner who was qualified for the said post was selected and appointed vide order dated 13-12-1984. In the appointment letter it was provided that he was being appointed on temporary capacity on consolidated salary of Rs. 1200/- plus free housing accommodation or house rent in lieu thereof from the date of his joining. It was also mentioned therein that his services may be terminated without assigning any reason whatsoever on one month's notice and that he shall be bound by various by-laws of the Company. The petitioner accepted the terms and conditions as is evident from the document filed along with counter affidavit as Annexure 2. The petitioner was granted special increment vide order dated 12-3-88 with effect from 1-10-1987 and it was on 6-7-1988 that he was served with the termination order dated 4-7-1988. The petitioner's services were governed by Uttar Pradesh State Spinning Mills Company (No. 1) Ltd. (Recruitment and Service Conditions) BYe-Laws, 1978 as was provided in his appointment order. The U. P. State Textile Corporation BYe-Laws were adopted for the employees of opposite party no. 1. BYe-law 17 (1) of the said BYe-laws provides for probation of a directly recruited employee for a period of two years which can be extended for one year by the appointing authority. In the said bye-laws there is no provision for terminating the services of an employee except by way of punishment. However, by-law 8(1) of the said BYe-laws provides for a procedure for terminating the services of temporary employees on one month's notice or emoluments in lieu thereof.
(2.) ON behalf of the petitioner it has been contended that after completion of three years, he became permanent employee and as such his services could not have been terminated. However, he has also challenged the legality of said Bye-laws on the ground that there is no guidelines to be exercised while terminating services of an employee and as such same are violative of Article 14 of the Constitution of India. In the counter affidavit filed by opposite parties it has not been denied that the post of Store In charge was duly approved by the Managing Director and it was a permanent post. But it has been pleaded that the petitioner was never appointed on probation and he was a temporary employee. Bye-law 3 (xxii) of the said Bye-laws provides definition of temporary employee, which reads as under :- "Temporary employee" is he who has been appointed an a temporary post or in a temporary capacity on a permanent post. In other words, a temporary employee is he who has been appointed temporarily or for a specified period, as the case may be." On the basis of said bye-law it has been contended that even if the post is of a permanent nature and petitioner was not appointed for specified period yet he had given a written undertaking in which it has been admitted and agreed by him that his services were temporary and terminable at one month's notice from either side without assigning any reason whatsoever, the services can be terminated. The appointment letter indicates that the petitioner was a permanent employee and as such his services could not have been terminated. The legality of said bye-laws has been challenged on the ground that there are no guidelines for terminating services of a permanent employee and as such same are violative of Article 14 of the Constitution of India. The petitioner's services were transferable and during his service tenure he was transferred. The petitioner has clearly averred that the post against which he was appointed was duly approved by the Board of Directors and was permanent post as defined in bye-law 3 (7) of U. P. State Textile Corporation (General Service Conditions) Bye-Laws, 1978 (here-in-after referred to as the bye-laws) and the said post is still continuing and no one has been appointed against said post and one S. K. Mukherji who was appointed in 1987 that is after him is still continuing and even the principle of 'last come first go' was also not followed. In the counter affidavit filed by opposite parties, they have not denied that the post against which petitioner was working was duly approved post and the same is still continuing and that S. K- Mukherji was subsequently appointed who is continuing. They have mainly relied on the definition of 'temporary employee' saying that the petitioner was appointed temporarily and it was provided in the appointment letter that his services were terminable at one month's notice on either side without assigning any reason and that the petitioner agreed to that condition. In the appointment letter it was mentioned that he was being appointed in temporary capacity as Store ln charge on consolidated salary of Rs. 1200/- p.m. plus free furnished accommodation or H. R. A. as per rules with effect from 26-11-1984. The petitioner was also required to sign an undertaking on a pro forma in which one condition was that his services were temporary and were terminable at one month's notice from either side and the last condition was that he shall abide by all other terms and conditions of services, rules and regulations of the company, as enforced from time to time.
(3.) IT is not in dispute that the petitioner earned increments and his salary was also increased. The relevant bye-laws of U. P. State Textile Corporation (Recruitment and Promotion) Bye-laws, 1978 read as under ;- "15. Selection Committee : (1) In the case of Class A and Class B posts the appointing authority shall make appointment on the service of the Selection Committee constituted (either as a standing committee or an ad-hoc nominated committee) by the Managing Detector 2.............. 3............. 4............ 17. Probation. (I) Every person on appointment, whether by direct recruitment or by promotion, shall be placed on probation for a period of two years commencing from the date on which he assumes charge of the post 12. Creation of posts-The power to create posts, including the determination of their classification and emoluments, shall vest in the Board Provided............ 18. Discharge during probation (I) A directly recruited probationer may be discharged by the appointing authority during or at the end of the original or the extended period of probation, as the case may be, without assigning any reason. Such discharge shall be without notice and shall not entitle the discharge to any compensation. (2)............ (3).......... 19. Confirmation. A probationer shall be confirmed on his post at the end of the original or the extended period of probation if the appointing authority is, upon the report of the supervising officer and/or otherwise satisfied that the probationer has made due use of his opportunities of service, has completed successfully such training as may have been preset ibed and is otherwise fit for confirmation." The above Bye-laws were framed by the Corporation in exercise of its powers conferred under the Article of Association. On behalf of opposite parties reliance was placed on U. P. State Textile Corporation (General Service Conditions) Bye-laws, 1978 Bye-law no. 3 (xxii) defines the 'Temporary employee' which says that temporary employee is he who has been appointed on temporary post or in a temporary capacity on a permanent post. In other words, a temporary employee is he who has been appointed temporarily or for a specified period, as the case may be. Bye-law 3 (xxiii) defines the word 'tenure' of which clause (b) reads as under :- (xxiii) (b). Temporary tenure, that is the right of a temporary nature, such as that of a temporary employee, that is, one who is appointed in a purely temporary capacity (either for a specified period or for a period expressed as "temporary") ; Bye-laws no. 7 provides that appointment on a post not created as a permanent post shall be made on a temporary basis. While bye-law makes provision for termination by notice on either side.;