K P PATEL Vs. GUJARAT SMALL INDUSTRIES CORPORATION LIMITED

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India the petitioner who is a confirmed Assistant Manager (works) in the employment of the respondent Corporation challenges the order of April 22 1979 Annexure K to the petition of termination of his services passed by the Managing Director of the respondent Corporation inter alia on the ground that in effect and substance it was an order of penalty and inasmuch as it was made without giving any opportunity to the petitioner of being heard it is a nullity. In any case it is assailed as arbitrary and therefore violative of Articles 14 and 16 of the Constitution of India. A few facts need be noticed in order to appreciate the challenge to the impugned order.

(2.) The petitioner joined the services of the Corporation as Settercum Operator in September 1969 on probation for a period of six months with a consolidated salary of Rs. 375/per month. He was confirmed on satisfactory completion of the probationary period by the order of March 12 1970 with effect from December 31 1969 and placed in the consolidated grade of 350-30-500 with initial consolidated salary of Rs. 440/per month. By an order of the Corporation of May 16 1970 the designation of the post of the petitioner was changed to that of Foreman of the Scooters Project Division of the Corporation. It is claimed by the petitioner that he was given his increment in May 1970. By an order of January 3 1972 the petitioner was given substantive posting as Foreman with retrospective effect from 1st October 1971 with a consolidated salary of Rs. 565/per month in the grade of Rs. 350-625. An office order was issued accordingly setting out the terms and conditions of his substantive appointment. The said order inter alia provided for termination of the services by giving one months notice on either side. In June 1973 the Maintenance Department of the Workshop of the Scooters Project Division was also placed in charge of the petitioner. The petitioner was promoted to the post of Assistant Manager Services with effect from 1 September 1977 at the salary of Rs. 910/per month in the time scale of Rs. 850-30-1000-EB-40-1400 and he was placed in charge of 4 departments namely (a) Tool room (b) Maintenance (c) Try out & proving of Production standards and (d) Inspection Erection & Commissioning of new plant and machinery. By an order of June 11 1978 he was put incharge of Machine shop Welding Paint shop Assembly and Despatch section and his salary was increased and fixed at Rs. 1200/in the said time scale and he was made accountable for the production discipline and rejection in all these departments. His designation was however changed from Foreman to that of Assistant Manager (works) with the condition that he would be confirmed on the said post after six months subject to satisfactory performance. By an order of January 4 1979 the petitioner was confirmed on the post of Assistant Manager (works) Girnar Scooter project with effect from the date of completion of his six months probation period. On February 23 1979 he was given one increment of Rs. 80.00. It is claimed by the petitioner that he achieved and fulfilled the target of 300 scooter engines and his confidential remarks were consistently good and that no adverse remarks were ever communicated to him. He asserted that his performance was exemplary and won the respects of subordinates and regards of his superiors. According to the petitioner the General Manager of the Scooter Project sought support and Cooperation of the petitioner in the conspiracy hatched by the Management for committing unfair labour practice by suspending and holding inquiry against two union leaders Shri Natubhai Dodia and V. N. Shah with the ulterior motive of removing them from service. The petitioner was required by the General Manager to give favourable statements and evidence against these leaders which the petitioner declined to join unholy alliance to substantiate false and trumped up charges. It is this stand of the petitioner which enraged the management who decided to terminate the services of the petitioner also and was abruptly served with an order of termination of April 22 1979 However to the surprise of the petitioner by the confirming letter of April 22 1979 under the signature of the General Manager (SP) . on behalf of the respondent Corporation he was intimated that since he refused to accept the termination order in person a telegram was sent intimating that he was no longer in the service of the Corporation with effect from the said date after factory hours and that the order was confirmed by the letter in question. The petitioner by telegram of July 23 1979 requested for reasons of termination since it was without any cause or reason and in violation of the rule of law. Since there was no response from the respondent Corporation the petitioner moved this Court by this special civil application for appropriate writs orders and directions to quash and set aside the impugned order of termination of services and for a declaration to treat the petitioner as if in service all along and to grant him all the benefits he was entitled to.

(3.) This petition was resisted by the Corporation and an affidavit of one Shri C. Narayan General Manager of the Girnar Scooters Project a Division of the respondent Corporation has been filed contending inter alia that the respondent Corporation was not State within the meaning of Article 12 of the Constitution of India and that in any case no writ of mandamus can be issued to the respondent Corporation which is a public limited company registered under the Companies Act 1956 It was conceded in the said affidavit in reply that the petitioner was a confirmed employee and has earned four promotions in last about nine years though his last confidential report was not good and the Corporation reserved their liberty to refer to and rely upon the said confidential report in respect of the petitioner. The respondent Corporation specifically joined issue in this affidavit in reply about the sincere satisfactory and diligent working of the petitioner by denying the assertions made in that behalf in the petition. The respondent Corporation reserved liberty to refer to and rely upon the memos as well as confidential reports of the relevant years as and when necessary. The respondent corporation specifically controverted and denied the allegation made by the petitioner that since he refused to fall in line with the management for committing unfair labour practice of victimising trade union leaders his services were terminated. It was claimed on behalf of the Corporation that the services were terminated according to the terms contained in the contract and particularly condition No. 8 of the office older of January 3 1972 by which the petitioner was substantively appointed as foreman which provided that the services were liable to be terminated by giving one months notice on either side and therefore the respondent Corporation was under no obligation to assign and communicate any reasons to the petitioner. It has been claimed by the respondent Corporation in the said affidavit in reply that the Managing Director had considered the case of the petitioner and after fully applying mind a decision to terminate the services was taken. The respondent Corporation contended that the petition was not competent since it is a Company established under the Companies Act and is not an instrument instrumentality or agency of the State and therefore amenable to the mandate of Articles 14 and 16 of the Constitution since it is not an authority or State within the meaning of Article 12 of the Constitution of India.