S. C. AGARWAL, J. - (1.) IN this writ petition, the petitioner S. L Soni, is seeking to challenge the validity of the order (Ex. 5) dated 27th May, 1982 whereby the services of the petitioner were terminated.
(2.) THE Rajasthan State Mineral Development Corporation Ltd. (hereinafter referred to as the "respondent Corporation") is a limited company incorporated in 1979 under the provisions of the Indian Companies Act, 1956. All the shares of the resprondent Corporation are held by the Government of Rajasthan and all the Directors of the respondent Corporation including the Chairman, the Managing Director and the Executive Director are either nominees of the Government of Rajasthan or those appointed by the respondent Corporation in the general meeting. Prior to the incorporation of the respondent Corporation, there was a Corporation known as Rajasthan State Industrial and Mineral Development Corporation Ltd. (in short RSIMDC ). By an agreement between RSIMDC and the respondent Corporation the RSIMDC transferred its business and assets and liabilities relating to its mining activities as well as the ownership and management of the mines belonging to it to the respondent Corporation. The petitioner was initially appointed as Accountant in the RSIMDC vide order dated 31st July, 1973. He was promoted as Sr. Accountant on ad hoc basis in the RSIMDC vide order dated 1st July, 1978. As a result of the transfer and ownership of the mining activities of the RSIMDC to the respondent Corporation, the petitioner having opted for the service of the respondent Corporation, came in the service of the respondent Corporation. On the basis of the recommendations of the Departmental Promotion Committee (DPC) the petitioner was promoted to the post of Sr. Accountant by order (Ex. 1) dated 16th April, 1980 with effect from the date of his ad hoc promotion to the post of Sr. Accountant. By the said order the petitioner was also confirmed with effect from the date of his transfer, i. e. 1st December, 1979. By order (Ex. 2) dated 29th September, 1980, the petitioner, on the recommendations of the DPC, was promoted to the post of Assistant Manager (Accounts.) The aforesaid promotion of the petitioner on the post of Assistant Manager (Accounts) was on probation basis and was subject to his satisfactory completion of one year's probationary period. While the petitioner was working as Assistant Manager (Accounts), the impugned order (Ex. 5) dated 27th May, 1982 was passed whereby the services of the petitioner were terminated with effect from 27th May, 1982. Along with the said order, a Demand draft for Rs. 4, 737. 30, being three months salary in lieu of requisite notice, was also enclosed. Feeling aggrieved by the aforesaid order terminating his services, the petitioner has filed this writ petition. In the writ petition the petitioner has submitted that the petitioner was a workman within the meaning of section 2 (s) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') and that the respondent Corporation is an industry within the meaning of section 2 (j) of the Act and that the services of the petitioner were terminated in contravention of the provisions of Section 2-5-F of the Act inasmuch as the said termination of the services of the petitioner constitutes retrenchment and it was incumbent upon the respondent Corporation to have paid retrenchment compensation to the petitioner at the time of termination of his service and the same was not done. In the writ petition, the case of the petitioner is further that the respondent Corporation is "state" as the said expression is defined in Article 12 of the Constitution of India and that the impugned order of termination of the services of the petitioner has been passed in violation of the provisions of Articles 14 and 16 of the Constitution of India. In this connection it has been submitted that other persons who were appointed along with the petitioner as Assistant Manager (Accounts) and are junior to the petitioner are continuing in service while the petitioner has been picked out for discriminatory treatment. It has also been submitted that the impugned order of termination is not an order of termination simpliciter but is, in substance, an order terminating the services of the petitioner by way of punishment for the conduct of the petitioner in relation to an incident involving the employees of the respondent Corporation in connection with the holding of a condolence meeting on the death of three employees of the respondent Corporation in an accident. The case of the petitioner is that the aforesaid incident constitutes the foundation for the passing of the impugned order terminating the services of the petitioner and that no charge-sheet was served upon the petitioner and he was not afforded any opportunity to offer his explanation with regard to the same. The writ petition has been contested by the respondent. In the reply that has been filed on behalf of the respondent Corporation it has been asserted that the respondent Corporation being a company registered under the Companies Act, is not an instrumentality of the Government of Rajasthan and is not amenable to the writ jurisdiction under Article 226 of the Constitution. In the said reply it has also been stated that the relationship of the petitioner and the respondent Corporation is that of master and servant and it is governed by the terms of appointment/contract and since the matter arose out of contract, the petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution and the only remedy that was available to him is to file a civil suit for breach of contract. In the reply it has been denied that the petitioner was a workman under section 2 (s) of the Act and it has been asserted that the petitioner was posted as Asstt. Manager (Accounts) in the Marketing division and was performing managerial, supervisory and administrative functions and he was supposed to have supervised the work of his sub-ordinates In the said reply it has also been stated that the impugned order terminating the services of the petitioner was passed as per conditions of the petitioner's appointment order and that there is no requirement in the conditions in the appointment order for enquiry etc. before termination of service. In the said reply the assumption of certain facts by the petitioner being foundation for the termination of his services has been denied. It is also stated in the reply that the provisions of Articles 14 and 16 of the Constitution are not applicable to the facts of the case.
(3.) THE petitioner has filed a rejoinder to the aforesaid reply filed on behalf of the respondent Corporation. In the said rejoinder he has reiterated that the respondent Corporation is State under Article 12 of the Constitution since it is an agency or instrumentality of the Government of Rajasthan being under the financial as well as the administrative control of the Government In the said rejoinder it has been stated that in the provisional seniority list of Accountants as on 31st August, 1978 and in the provisional seniority list of Sr. Accountants as on 31st July, 1980, the petitioner has been shown senior to Shri S. L. Sharma who was also promoted as Asstt. Manager (Accounts) alongwith the petitioner vide order (Ex. 2) dated 29th March, 1980 and that Shri B. L. Sharma has been allowed to continue while the services of the petitioner have been terminated. After the said rejoinder had been filed a supplementary affidavit of Shri L. N. Bhattacharjee was filed on behalf of the respondent, Corporation. In para 4 of the said supplementary affidavit it has been stated that the termination of the services of the petitioner is well founded and justified on the facts as set out in sub-paras (a) to (g) of para 4 In the aforesaid sub-paragraphs (a) to (g) of para 4, it has been stated that on 13th May. 1982 there was a sad accident in which the jeep of the respondent Corporation was involved and three employees of the respondent Corporation had died. The funeral of the deceased employees was held on 14th May, 1982 and at that time it was also decided that a condolence meeting would be held in the head office on J 5th May. 1982 at 12-30 noon and thereafter holiday would be declared. At that time a difference of opinion arose between the petitioner and one Shri M. R. Gujar, Section Incharge. Materials division, on the question as to whether a condolence meeting should have been held on 14th or 15th May, 1982, and that the petitioner and Shri M. R. Gujar created a scene by hurling abuses and unparliamentary words and objectionable remarks and that they also made undesirable remarks about the Secretary and Financial Adviser of the respondent Corporation and that when Shri Saini, P. A. to the Financial Adviser, made an attempt to pacify the petitioner the petitioner shouted and tried to manhandle Shri Saini. In the aforesaid affidavit it is stated that the respondent Corporation had acted bona fide in terminating the services of the petitioner taking an over all view of the facts and circums-tances mentioned in para 4 of the affidavit in the larger interest of the respondent Corporation. In the said affidavit it is also stated that the order of termination is an order of discharge simpliciter and even if it be assumed that the termination of the petitioner was in the nature of punitive action against him, it was not incumbent upon the respondent Corporation to initiate any disciplinary proceedings before taking any action inasmuch as there is no requirement in the Rules, circulars or terms and conditions applicable to the petitioner for holding disciplinary proceedings and that the respondent Corporation was entitled to terminate the services of the petitioner by giving the prescribed notice or by paying the salary in lieu thereof. The petitioner has filed a reply to the aforesaid supplementary affidavit wherein he has disputed the correctness of the averments contained in para 4 of the supplementary affidavit. The first contention that was urged by Shri G. S. Singhvi, the learned counsel for the petitioner was that the petitioner was a workman within the meaning of section 2 (s) of the Act and he was entitled to the protection of section 25-F of the Act since the order terminating the services of the petitioner constitutes retrenchment under section 2 (oo) of the said Act and as the petitioner was not paid retrenchment compensation at the time of the passing of the order of termination, the said order terminating the services of the petitioner was passed in contravention of the provisions of section 25-F of the Act and is, therefore, void. In support of his aforesaid contention Shri Singhvi has referred to the office order (Ex. 4) dated 30th September, 1980 which defines the duties that were being discharged by the petitioner as Assistant Manager (Accounts) at the time of the passing of the impugned Order and has submitted that none of the aforesaid duties which are mentioned in the said order, can be regarded as managerial or supervisory in nature. ;