G.N.RAY,J. - (1.) These three Rules are directed against orders passed by the Chairman -cum -Managing Director, National Textile Corporation (West Bengal, Assam, Bihar and Orissa) Ltd. terminating the services of the petitioners. As some common questions of law and fact are involved in all these Rules, for the purpose of deciding the question of maintainability of the writ petitions at the instance of the respective petitioners, the above three Rules have been taken up for hearing analogously and if the writ petitions are held maintainable the Rules may be heard separately for assessment of the respective cases of the petitioners on merits. It is contended by the petitioners in all these Rules that such terminations were made arbitrarily, capriciously and without giving the petitioners any opportunity of being heard and without drawing any disciplinary proceeding against the respective petitioners. The petitioners contend that the petitioners are permanent employees and as such their services cannot be terminated arbitrarily and without starting any disciplinary proceeding.
(2.) MR . Parthasarathi Sengupta, the learned Counsel appearing for the - National Textile Corporation Limited has raised a preliminary objection as to the maintainability of the writ petitions and has contended that the decision on the preliminary point is essentially necessary and it will not be proper to go into the merits of the cases because if the writ petitions are not maintainable in law and the petitioners are not entitled to get any relief whatsoever in the writ jurisdiction of this Court, the consideration of the cases on merits will be an exercise in futility. The learned Counsel appearing for the petitioners have, however, seriously disputed the said contention of Mr. Sengupta and have contended that it will be desirable to hear the matters both on the preliminary point and also on merits so that the Appeal Court may get the views of the trial Judge both on merits and also on the preliminary objections raised on behalf of the respondents. I was initially inclined to hear the writ petitions also on merits, but Mr. Sengupta has very strongly contended that the preliminary objections raised in the instant cases should be decided at the first instance so that there may not be any occasion for the Court to hear at length the merits of three different writ petitions involving different questions of fact and waste its valuable time. In the aforesaid facts and circumstances, the preliminary objections raised on behalf of the respondent have been taken up for consideration at the first instance. Mr. Sengupta, the learned Counsel for the Respondent National Textile Corporation Ltd., has contended that the National Textile Corporation Limited is a Government Company. The said company has been formed after some of the Textile Units had been nationalised by the Sick Textile Undertakings (Nationalisation) Act, 1974. Mr. Sengupta submits that the said National Textile Corporation Limited may be a 'State' within the meaning of Article 12 of the Constitution of India because of the instrumentality or the agency of the Government, but the provisions of Part II of the Constitution of India and also the provisions of Article 311 of the Constitution are not attracted to the company or to a 'State' within the meaning of Article 12 of the Constitution if the same is not State in its ordinary connotation. For this contention, Mr. Sengupta has referred to a Bench decision of the Patna High Court made in the case of Chairman, Bihar State Road Transport Corporation v. Dharmendra Nath Gupta reported in 1978 Lab. I.C. 1633. It has been held in the said decision that 'State' under Article 12 of the Constitution includes other authority for Part III. The provisions under Article 311 will not apply to the 'State' within the meaning of Article 12 if it is not a State constituting Federation or Union of States comprising Union of India. Mr. Sengupta has contended that an order of reinstatement of an employee can be passed only under three circumstances. If a statutory body violates any statutory provision relating to service conditions of an employee, then any order of termination of service passed in contravention of such statutory provisions becomes illegal and unenforceable in law and on that score alone, an order of reinstatement can be passed by a Court and/or by this Court in its constitutional writ jurisdiction. Similarly for violation of Article 311 of the Constitution in case of Govt. servant, an order of reinstatement may be made. Save as aforesaid, an Industrial Tribunal or Labour Court may also pass an order of reinstatement in certain cases. Mr. Sengupta has also contended that in all cases, ipso facto violation of a statutory provision does not entitle the person aggrieved to enforce statutory rights under the constitutional writ jurisdiction. If the statutory provision is incorporated in a contract between the parties then the statutory provisions become part of the terms of the contraband for specific performance of such contract, the High Court shall not entertain an application under Article 226 of the Constitution. Mr. Sengupta has contended that the petitioners have pleaded illegal termination of their contracts of service. Accordingly for enforcement of the contractual obligation the writ petition is not maintainable. For this contention, Mr. Sengupla has referred to a decision of the Supreme Court made in the case of Divisional Forest Officer v. Biswanath Tea Co. Ltd. reported in : [1981]3SCR662 . It has been held in the said decision that a statutory provision if incorporated in a lease or contract will lose its statutory powers and will become a part of the terms of the lease and the High Court in such circumstances, in the exercise of its extraordinary jurisdiction under Article 226, will not entertain petition either for specific performance or for damages. Mr. Sengupta has also contended that Article 311 of the Constitution has no manner of application to the servants of the private companies or the Government companies and for this contention, he has referred to a decision of the Allahabad High Court made in the case of New India Assurance Co. Ltd. v. R.N. Chaturvedi reported in 1978 Lab. I.C. 1349. It has been held in the said decision that Article 311 does not apply to servants of companies even though they may be Government companies or companies controlled by the Government. Mr. Sengupta has contended that reinstatement can be made under Article 311 of the Constitution if the dismissal or removal of a Government servant offends the said Article 311 and/or if an Industrial Tribunal or Court passes an order for reinstatement in some specific cases. Save as aforesaid, a personal service cannot be enforced even if the dismissal or removal is made in breach of the terms of the contract. Even in cases of public bodies, namely statutory corporations or other public institutions set up under a statute, the employees of such Corporations and/or organisations are not protected by the provisions of Article 311 of the Constitution. In this connection, Mr. Sengupta has referred to the Bench decision of the Bombay High Court made in the case of N. Fakirbhai Patel v. Reserve Bank of India reported in 1979 -I L.L.J. 163. The Bombay High Court has held in the said decision that Article 311 of the Constitution is not attracted in cases of employees of the Reserve Bank of India because such employees do not hold any civil post under the statute. He contends that similar view has also been expressed by different High Courts in respect of employees of State Bank of India Mr. Sengupta has, therefore, contended that the service condition of the petitioner not being controlled by any statutory provisions and the concerned employees not holding any civil post, the orders of dismissal or removal, even if the same have violated the terms and conditions of service, cannot be challenged in the constitutional writ jurisdiction of this Court and the petitioners are also not entitled to ask for specific performance of such personal contract. Mr. N.C. Chakraborty, the learned Counsel appearing for the petitioner in Civil Rule No. 56(W) of 1981 has contended that employees of the Statutory corporation and/or Government Companies and other statutory bodies cannot be equated with employees of the private concern and even assuming that they do not hold any civil post under any statute, the statutory corporations, the Government companies and other public bodies are under an obligation to enforce the rules and/or norms framed or set by them relating to service conditions of their employees and if any order of dismissal or removal is made in contravention of such rules or norms, the employee can make an application under Article 226 of the Constitution and ask for cancellation of the said order passed in breach of such rules and/or norms. In this connection, Mr. Chakraborty has referred to a decision of the Supreme Court made in the case of Calcutta Dock Labour Board v. Jaffar Imam reported in 1965 -II L.L.J. 112. For violation of the provisions of the Calcutta Dock Workers (Regulation of Employment) Schemes, a writ petition was moved by the aggrieved employees and the Supreme Court held in the said decision that the writ petition was maintainable for enforcement of the breach of the provisions of the said scheme. Mr. Chakraborty has also referred to a decision of the Supreme Court made in the case of Sirsi Municipality v. C.K. Francis Tellis reported in 1973 -I L.L.J. 226. The Supreme Court has also held that a writ petition is maintainable for violation of the rules framed in exercise of the powers conferred on the Municipality by the statute. Reliance has also been made by Mr. Chakraborty to the decision of the Supreme Court made in the case of Sukhadev Singh v. Bhagatram Sardar reported in 1975 -I L.L.J. 399. It has been held in the said decision that employees of the Oil and Natural Gas Commission, Life Insurance Corporation of India. The Finance Corporation of India are employees of the statutory bodies and are entitled to a declaration against their dismissal if such orders of dismissal or removal are in contravention of statutory provisions although such employees are not servants of the Union or the State Government. Mr. Chakraborty has also referred to a bench decision of this Court made in the case of M.N. De v. B.N. Mukherjee reported in (1974) 78 Cal W.N. 100. The Division Bench of this Court has held in the said decision that a petition under Article 226 of the Constitution is maintainable; although the source of the right was initially a contract, the party injured by the breach of such contract by arbitrary and unlawful action on the part of the public authority invested with statutory powers is entitled to file a writ petition and his remedy is not confined to a suit. Mr. Chakraborty has relied on a decision of the Supreme Court made in the case of Managing Director, U.P. Warehousing Corporation v. Vijay Narayan Vajpayee reported in 1980 -II L.L.J. 222. The Supreme Court has observed in the said case that the authority of the rule that an employee of a statutory body even if it be owned and managed by the Government does not enjoy the statutory status appears to have been eroded by the later decisions of the Supreme Court, particularly by the pronouncement in Sukhdev Singh's case (supra). Mr. Chakraborty has also strongly relied on a later decision of the Supreme Court made in the case of Som Prakash Rekhi v. Union of India reported in 1981 -I L.L.J. 79. It has been held in the said decision that if the statutory corporation, body or other authority is an instrumentality or agency of the Government, it would be an 'authority' and therefore 'State' within the meaning of Article 12 of the Constitution and as such is subject to the same constitutional limitations as Government. The Supreme Court has further observed in the said decision the commensense signification of the expression 'other authorities under the control of the Government of India' is plain and there is ho reason to make exclusions on sophisticated grounds such as that the legal person must be a statutory corporation, must have power to make laws, must be created by and not under a statute and so on. Mr. Chakraborty has, there -tore, contended that if without holding any departmental enquiry or giving any opportunity to the concerned employee, the employee of a public body or statutory corporation is dismissed or removed from service, such employee has certainly a right to ask for quashing the said order of dismissal or removal in the constitutional writ jurisdiction of this Court, Mr. Chakraborty has also contended that as a matter of fact, the writ petition by an employee suspended by the National Textile Corporation of India, namely, the employer in the instant Rules, has been entertained by this Court and in support of his contention he has referred to a decision of this Court made in the case of Surendra Nath Banerjee v. Union of India reported in (1981) 85 Cal W.N. 51. This Court has specifically held that a writ petition by a suspended employee of the National Textile Corporation is maintainable.
(3.) MR . Samir Mukherjee, the learned Counsel appearing for the petitioner in the Civil Rule No. 10396 (W) of 1980 has also supported the argument of Mr. Chakraborty appearing in the other Civil Rule and has also contended that if a procedure has been laid down by a public body for regulating the conditions of service of its employees it is immaterial if such procedure or rule is statutory or not. He also contends that although the source of right may be a contract even then against an unjust action of a public body invested with statutory rights, a writ petition is maintainable and for this contention, he refers to the decision of the Supreme Court made in the case of Divisional forest Officer, South Khery v. Ram Sanehi reported in : AIR1973SC205 . Mr. Mukherjee has also relied on some of the observations of the Supreme Court made in the case of Ramana Dayaram Shetty v. The International Air Port Authority of India reported in 1979 -II L.L.J. 217 to the effect that public bodies cannot act arbitrarily and in contravention to norms or rules of procedure laid down by them.;