K.C. Joshi v. Union of India and ors.

869 .K.C. JOSHI _v._ UNION OF INDIA AND ORS. _April 23, 1985_ [D,A. DESAI AND RANGANATH MISRA, JJ.] _Constitution of India 1950, Ariic/es 12,14,16 310 and 3/1:_ _Oil and Natural Gas Commission-Whether ·an_ _instrumentality of the State_ _-Whether amenable to writ juri.fdiction-Employees of corporation-Whether_ _entf .._ _tied to protect/oil of equality in_ _1narters of public e111ploy1nent._ _Labour Law:_ _Employee elnployed_ _on_ _'regular basis until further orders'-Services of_ _employee-Whether could be ter1ninated by_ _one month's notice._ _Income Tax Act_ _1961,_ _Section_ _89_ _and Income Tax Rules, Rule 21A:_ _Emp/oyee-TerminaJion order set aside-Awarded back wages and c_,on1pen-_ _sation in_ _lieu ofreinstate1nent-Re/ief of incon1e_ _tax-Entitle1nent of.._ The appellant was .initially appointed in the -Respondent·Public Sector Undertaking as an Assistant Store Keeper and la~cr selected as a Store Keeper. The office orde_r recited that the appellant had been appointed as Store Keeper till further orders, that his appointment was purely temporary, that he will be on probation for period of 6 months, and that the appointment m'.ly be termi nated_at any time by a month's notice. On successful completion of the probation period of six months·, the appe11ant was informed that 'he was continued in service on a regular basis until further orders.' The appellant wa~ later transfer red. aad the Transfer Order was challenged by him in a suit, and he obtained an interim order restraining the undertaking from implementing the transfer order. A B #### c D E F G The E~p!oyees' Union 'sub1nitted a charter of demands and it was folio· wed by a notice threatening direct action by the members of the Union. The appellant was an a1;tive worker of the union, The Employees went on strike, and ff A B ##### c D 870 WPREMP. COURT REPORTS (1985] 3 S.C.R. the Union submitted a list of work1nen to the CorpJration requesting the Corporation to give them the statu'i of protected workn1en as required by section 33(4) of the Industrial Di5putcs Act, 1947. The Appellant's name app~:tred at S.No. 2 in the letter. By an Office Order the service~ of the app.:llant wi~re terminated with immediate effect in accordance with the term<> and conditions of the service, and a cheque for one month's pay in lieu of notice accompanied 'the order. The appellant challenged the legality and validity of the order terminating his service in a Writ Petition and a Division Bench of the High Court dismissed the Petition. It held t'hat though on successful completion of the probation period, the appellant had been appointed on a regular basis as Store Keeper, he was non-the-Jess a te1nporary employee of the Corporation till the date on which his services were terminated. The Corporation was not an Industrial Establishment within the n1eaning of the expression in the Industrial Employment (Standing Orders) Act, 1946 and therefore the Model Standing Ordersenacted under the Act were not applicable to the CorpOration. The Oi.der of termination of service was not violalive of the Oil and Natural Gas Commission (Conduct, Discipline and Appeal) Regulations, 1964 as the service of the appellant was not dispensed with on the allegation of misconduct, but it was an order of termination of service sirnpliciter in accordance with Regulation 25. As the service of the appellant 'vere tenninatcd not because of any personal bias of the officers of the Corporation, but because of his unsatisfactory work, the allegation of mala tides cannot be upheld. Allowing the appeal to this Court, E 1-IELD : l. The judgment of the J-Iigh Court is quJshed and set aside and the rule is made absolute in the writ petition. The Oil and Natural Gas Cornmission is directed to pay Rs.2 lakhs to the appellant in lieu of back wages and compensation in lieu of reinstatement within a period of four weeks. Tht: appellant is entitled to relief under section 89, Income Tax Act, 1961 read with. Rnle 21 A of the Jn:::ome Tax Rulc1, be.::ause the compensation awarded include salary wl1ich had been in arrear for 18 y~ars a'> also the compensation in lieu F of reinstatement [878H, 879A, E-GJ ###### • G Q 2. If the appellant was appointed on regular basis, his service cannot be terminated hy one month's notice, If it was by way of punishment, as the High Court has found it to be so, termination is violative of the principles of natural justice in that no opportunity was giv.::n to the appdlant to clear himself of the alleged misconduct whic\1 proved the real ban;; for making of the order ofter-, · mination of service. If it is discharge sitnpliciter, it would beviolative of Article 16, because a nutnber of store-keepers junior to the appellant are shown to have been retained in the service and cannot b~ picked arbilrarily. Jfe had the pro.: tection of Article 16 which confers on him the fundamental right of equality and equal treatme~t in the matter of public employment. 3. The sever~l communications which include q letter of appreciation a.m;J K.C. JOSHI _v._ UNION 871 a certificate eulogizing the services of the appellaat, clearly show that the charge of unsuitability was either cooked up or conjured up for a collatt:ra·J purpose of doing away with the service of an active trade-union worker who because of his activities became an eye-sore. The view taken by the High Coult that the termination of service was legal, valid or justified is not therefore tenable. [877H ; 878C] A. 4. Ordinarily, where the order of termination of service is sliown 8. to be bad and illegal, the nec<!s;ary declaration must follow that the employee continues to be in an uninterrupted service and he is entitled.to full back· wages. [8780] In the instant case, the appellant was out of service from December 29, 1967. A period of nearly 18 years have rolled by and he would have to go back to some chag3.rined master. On enquiry, the appellant .jnfdrmc:d that substantial and adequate compensation would be more acceptable to him than reinstatement with backwages. [878EJ _Shri Sant Raj_ & _Anr._ v. _Sh. O.P.Sing/a_ & _Anr,_ Civil Appeal No. 650/82 dated April 9, 1985 referred to. _S._ -An unbiased Judge, and an opportunity to controvert the aUegation and to clear oneself are· the minimum principles of natural justice which must inform the drastic power of dismissal affecting the livelihood of an employee. (876F] 6. The Oil and Natural Gas Commission is an instrumentality of the· State and is comprehended in the expression 'other authority' in Art. 12, and any terrainatation of service of the employee of the Corpora.tion, ·if successfully questioned would permit the court to make a declaration that the employee continues to be in service. Even if the employees of the Corporation, which is aQ. instrumentality of the State, cannot bi said to be the members of a civil 1ervice _of_ th• Union or an All India Service, or hold aoy civil post under the Union, for the purpose of Articles 310 and 311 and therefore, not entitled· to the protection of Art. 311, they would none-the .. !ess be entitled to the protection of thefundamental rights enshrined in Articles 14 and 16 of the Constitution that is they would be entitled to the protection of equality in the matter of emp!oyment in public service and they caaoot be dealt with in_ an arbitrary manner. (8740; 875C] _SEfkhdev_ _Singh_ & _Ors._ V. _Bhagatram Sardar Singh Raghuvanshl_ &: _Anr:,_ [1975] 3 SCR 619 and _A._ _L._ _Kalra_ v. _Project and Equipment Corporatioii of India_ _Ltd.,_ (1984] 3 SCC 317 referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3187 of 1982 From the Judgment and Order dated 22.1.1974 of the Allahabad Hi~h Court in C.M.P. No. 1395 of 1968, C1 D E F_ 872 SUPREME COURT REPORTS [1985] 3 s.c.R. A _A.K. Gupta_ for the Appellant. _B._ _Datta, Rishi Kesh, Badri Prasad, Ajit Pudissary, Girlsh_ _Chandra and Ms. A. Subhashini_ for the Respondents. B The Jndgment of the Court was delivered by ###### c D F G ·DESAI, J. Another unequal fight between a giant public sector undertaking : Oil and Natural Gas Commission C'Cor· poration' for short) and a Store Keeper which has been br0ught to this Court by the ultra legalist stand ·taken by th~ Corpor~tion which lacks equanimity and smacks of victimisation. The appellant was appointed as Assistant Store Keeper in April, 1962 and was posted at Dehradun. Later on when the Corporation decided to recruit Store Keeper, the appellant was selected in open competition and was appointed on December 7, 1963 as such. He was posted at Cambay, Gujarat and fater on on December 24, 1963 sent back to Dehradun. The office order dated February 26, 1964 recites that the appellant has been appoin ted as'Store Keeper till further orders and the post is sanctioned for the period February 7, 1964 to February 29, 1964. Jn other words, a man selected in an open competition was offered the post which was to last for 22 days.roughly. He was also told that his appointment was purely temporary and that other terms of service were those as set out in the letter dated December 7, 1963, one of which was that the appellant will be on probation for a period of six months from the dale of the appointment aild the same may be extended at the discretion of the appointing authority and that the appointment may be terminated at any time by a months' notice given by either side. On January 13, 1965, the appellant was informed in writing by the Memorandum No. PF/K-44-/64-ENT that the appellant on successful completion of the probation period of six months, is continued in service on re gular basis until further orders. By oll!ce order dated April 6, 1947, the appellant who was described as Store Keeper, Grade I Mech. Engg. Branch was transferred to Cambay-Nawagam project. This transfer order was challenged by the appellant on diverse grounds in a suit filed by him. He sought an interim in· , K.C. JOSHi _v._ UNiON _(Desai, J.)_ 873 junction restraining the respondentg from implementing'the order of transfer. Interim injunction as prayed for was granted. A B ###### c D E The Oil & Natural Gas Commission Employees Mazdoor Sabha (Union for short), Dehradun submitted a charter of demands on May 15, 1967 and it was followed by a notice threatening direct action by the members of the Union. It appears that the appellant was an active worker of the Union. The usual management response emerged by a secret letter dated September 1, 1967. Shri R.P. Sharma, Chief Engineer under whom the appellant was at the relevant time working was told that the appellant is the main trouble maker and that he is being given free hand ,,_, by his immediate superiors and that the Chief Engineer did not / - keep strict vigilance over the activities of the appellant. The employees of the Corporation went on strike on September 12, 1967. It wa1 called off on September 24, 1967. On September 28, 1967, tbe Union submitted a list of workmen to the Corporation requesting the Corporation to give them the status of protected workmen as required by Sec. 33 (4) of tbe Industrial Disputes Act, !947. Appellant's name appears at S. No. 2 in this letter. On December 27, 1967 the Union complained of victimisation of the active union workers including the appellant. On December 29, !967 Office Order No. M (Engg) 1 (1)/67 was issued by which the services of the appellant were terminated with immediate effect in. accordance with the terms and conditions of bis service. A cheque in the amount of Rs. 317 accompanied the order being one month's PlfY in lieu of notice. The appellant challenged in Writ Petition No. 1395/68 in the Allaliabad High Court the legality and validity of the order terminating his services. F A Division Bench of the Allahabad High Court held that despite the order dated January 13, 1965 that on successful completion of the probation period, the appellant has been appointed on a regular basis as Store Keeper, he was none-the-less a temporary employee of the Corporation till the date on which his services were terminated. The High Court further held that the G Corporation is not an industrial establishment within the meaning of the expression in Industrial Employment (Standing Orders) Act, 1946 and therefore the Model Standing Orders enacted under the Act were not applicable to the undertaking of t,he Corporation. }lowever, the Hi$h Court e11amined an alternative contention that ff A B ###### c D E 874 SUPREME COURT REPORTS [1985) 3 SC.R. assuming that the Industrial Establishment (Standing (Orders) Act, 1946 does apply to the undertaking of the Corporation, yet in view of the provisions contained in Sec. 13B of the Act, no provisions of the Act would apply to the undertaking of the Corporation. The High Court repelled the contention of the appellant that the order of termination of service is violative of Oil and Natural Gas Commission (Conduct, Discipline and Appeal), Regulations, 1964 observing that as the service of the appellant was not dispensed with on the allegation of misconduct, but as it was an order of termination of service simpliciter in accordance with the Regulation 25, no other regulation is shown to have been contravened by the impugned order. The High Court rejected the submission on behalf of the appellant that as the Corporation is a State or at any rate instrumentality of the State' as contemplated ~ by Art. 12 of the Constitution and therefore, the appellant is en titled to the protection of Art. 14 and 16 observing that 'it is not the requirement of law that in or~er to dismiss one employee on the ground of unsuitability, the Government or the Corporation is required to dismiss all' an observation which has left us guessing for its content and meaning. The Division Bench finally concluded that as the service of the appellant were terminated not because of any personal bias of the officers of the Corporation but because of his unsatisfactory work, the allegation of mala fides cannot be upheld. Accordingly, the writ petition was dis(llissed with no order as to costs. Hence this appeal by special leave. Mr. B. Datta, learned counsel who appeared for the responF dents did not press before us the contention that the Corporation is not an instrumentality of the State. In view of the numerous decisions of this Court and especially one in _Sukhdev Singh_ & _Ors._ v. _Bhagatram Sardar Singh Raghuvanshi_ & _Anr.(_ _[1]_ _),_ a Constitution Bench of this Court in terms held that 'the Oil and Natural Gas Commission is an instrumentality of the State and is compreG bended in the expression 'other authority' in Art. 12, and that any termination of service of the employee of the Corpora ti on, if (1) [1975] 3 S.C.R. 619, ## " IC.C. JOSHI. UNION _v._ _(Desai,_ J.) 875 successfully questioned would permit the court to make a declara tiori that the employee continues to be in service.' Even if the employees of the Corporation, which is an instrumen'. tality of' the State, cannot the be said to be the members of a civil service of the Union or an AU-India service or hold any civil post under the Union, for the purpose of Art. 310 and 311 and therefore, not entitled to the protection of Art. 311, they would none·theless be entitled to the protection of the fundamental rights enshrined in Art. 14 and 16 of the Constitution. In other words, they would be entitled to the protection of equality in .the matter of employment in public service and they cannot be dealt with in an arDitrary manner. (See _A.L._ _Kalra_ v. _Project and Equipment Corpo-_ _ration_ _of India Ltd.)(')._ The next question i1 whether the service of the appellant was terminated in ·accordance with ·Jaw or regulation or in a thoroughly arbitrary manner ? Factual matrix set out hereinbefore will affirmatively show that on successful completion of his probation period, the appellant was appointed on the regular establishment as Store Keeper. Thus effective from 13, 1965, the appellant was appointed on regular basis as Store Keeper. There is nothing to show in the order that on completion of the probation period, he was appointed as a temporary Store Keeper. The words used are: 'He is continued in service on a regular basis until further orders.' The expression 'nntil further orders' suggest an indefinite perio.d. It is difficult to construe it as clothing him with the status of a temporary employee. It is even worst than being a probationer because the apprehended further order may follow the very next day. Therefore, the expression 'until farther order' being thorough_ Jy irrelevant has to be ignored. It is even inconsistent with the appointment on regular basis as stated in that very order. Ifthe appellant was appointed on regular basis, his service cannot be ierminated by one month's notice. If it is by way of punishment, as the High Court has found it to be so, it will be violative of the principles of natural justice in that no opportunity ;was given to the appellant to clear himself of the (I) (1984] 3 s.c.c. 317. A #### c ###### 'i> E F G H ##### 876 SUPREME COURT REPORTS (19ssi 3 s.c.k. A alleged misconduct which never found its expression on paper but which remained in the minds of those passing the order of . termination of service. If it is discharge simpliciter, it would be violative of Art. 16 because a number of Store Keepers junior to the appellant ·are shown to have been retained in service and the appellant cannot be picked arbitrarily. He had the protection of B Art. 16 which confers on him the fundamental right of equality and equal treatment in the matter of public employment. ###### c **D** E F G ' Mr. Datta however, contended that the earlier order dated December 7, 1963 recites that the appointment could be terminated by either side by one month's . notice and that was the power invoked _in_ terminating the service of the appellant. The order dated December 7, 1963 was at **tilt** time when the appellant was appointed on probation. On successful completion of probation, the appellant became a member of the regular establishment. The contract of service, if any, has to be in tune with Art. 14 and 16 and such unilateral power of termination of service without giving reasons _is_ so abhorent that it smacks of discrimination and therefore, violative of Art. 14. The High Court brushed aside this aspect by merely observing that 'in order to dismiss one employee on the ground of unsuitability, the Government or the Corporation is not required to dismiss all'. If it is suggested that you can dismiss anyone without a semblance of an enquiry or without whisper of the principles of natural justice, then such an approach overlooks the well-~stablished principle that where State actiiln affects livelihood or attaches stigma, the punitive action can be taken after holding an enquiry according to the principles of natural justice. In other words, an unbiased Judge, and an opportunity to controvert the allegation and to clear oneself are the minimum principles of natural justice which must inform such drastic power of dismissal affecting livelihood of an employee. If the observation of the High Court was with reference to the contention of the order being violative of Art. 14 and 16, it overlooks the fact that the Corporation attempted to sustain its action on the ground that the services of the appellant were no more required which will certainly impel the court to enquire whether the post had been abolished or whether retaining the juniors, the inconvenient person was thrown out under the garb of being surplus. Therefore, the approach of the High Court in this behalf is not appreciable. ##### ice. 1osai. v. UNION (Desai, i.) s77 Accepting the finding of the High Court that the appellant was removed from service on the ground of bis unsatisfactory work, the same could not have been done without an enquiry in accordance with principles of natural justice. At any rate the action appears to be thoroughly arbitrary. If the facts are properly viewed this public sector corparation has disclosed the typical private employer's unconcealed dislike and detestation of an active trade unionist. From the facts stated in the earlier portion of the judgment, i! appears that appellant was a protected workman. Add to this the fact that the secret letter of Mr. L J. Johnson dated September 6, 1967 reveals the inner working C:,f the mind of the top brass of the Corporation when Mr. Johnson states that Mr. Joshi (appellant) is the main trouble maker in the corporation. Earlier on March 1,, 1"7, ta• Assistant Direstor wrote to the Director of Stores to transfer the appellani from Dehradun to Assam, the usual manage ment response namely, to transfer the active trade union worker to weaken the trade union movement. Even a charge of victimisation _qua_ the appellant was made in writing. The then Petroleum Minister Mr. Ashok Mehta_ wrote to Mr. Natwarlal Shah, ONO.· Employees Mazdoor Sabha wherein he assured that the Corporation would not be interested in victimising anyone and. yet soon after within three months, the services. of the appellant were terminated. And now reasons for the termination of service of the appel· !ant may be examined. The appellant is considered unsuitable _f9r_ the job as found by the High Court. How be became unsuitable is an aspect not even examined by the High Court. On the contrary one has to refer to several communications eulogizing the services of the appellant which have been placed on record. One Ganga Ram, Personnel Officer, ONGC, Tel Bhavan, Dehradun has certified on August 26, 1964 that Shri Joshi was found'to be 'very sincere, conscientious, dependable and hard working official and he is very much loyal to his duties as Store Keeper and he has done exceed ingly well' He also states that 'Mr. Joshi knows his job thoroughly well'. On April 15,1965, the Controller of Stores and Purchase, t.he immediate superior of the appellant writes t.hat 'Mr. Joshi knows his work very well and be is very conversant with the purchase work, accounting and maintenance of stores. He is a very bright young man of blameless character and would do very well in any position of responsibility'. This letter of appreciation was .sent when the A B. ###### c D E F G # " A B #### c .D F _G._ H 878 SUPkEME COURT IUJPORTS (1985) 3 S.C.ll. officer was relinquishing his charge of the post of Controller 0 Stores and Purchase. On January 16.1968, the Chief Engineer Shri R.P .. Sharma has issued a certificate in which it is stated that he found Mr. Joshi sincere, intelligent and hard working young man fully trust-worthy and dependable for any confidence that may be reposed in him'. This will clearly show that the charge of unsuitabi.' lity was either cooked up or conjured up for a collateral purpose of doing away with the service of an active trade-union worker who because of his activities became an eye sore. Accordingly we are unable to agree with the view taken by the High Court that the termination of service was legal, valid or justified. This appeal will accordingly succeed. The question then is : what .relief we must grant ? Ordinarily, where the order of termination of service is shown to be bad and illegal, the necessary declaration must follow that the employee continues to be in an uninterrupted service and he is entitled to full backwages. We would have been perfectly justified in giving the declaration and making that order. However, the appellant is out of service from December 29, 1967 till today. A period of nearly 18 years have rolled by and he will have to go back to some chagarined master. We therefore, enquired from the learned counsel appearing for the appellant whether substantial and ade· quate compensation.would be more acceptable to him or reinstate· men! with backwages. The appellant opted for the latter and Mr. B. Datta learned counsel for ·,e commission conceded that the Corporation would willingly payl _hs._ 2 lakhs as and by way of backwages and compensation in lieu of reinstatement. This matter was adjourned to [enable learned coutsel for the appellant to work out the spread over of backwages. Mr. A.K. Gupta, learned counsel for the appellant has submitted the calcula·1ions of backwages. The figures therein set out are not disputed. We accept the same and treat it as part of the judgment. A copy of it shall always be annexed to the copy of this judgment. Accordingly this appeal is aliowed and the judgment of the High Court is· quashed and set aside and the rule is made absolu.te in the writ petition. The Oil and Natural Gas Commission is directed _I_ I ~· K.C. JOSHI. _v._ UNION: _(Desai,'_ J.) to pay Rs. 2 lakhs to the appellant on .the basis of the calculations I A herein submitted in lieu of backwages and compensation in lieu of reinstatement within a period of four weeks from today. In view of the computation made in respect of backwages and compensation·from year and year, we must make it abundantly clear H whether •the Commission would be entitled to deduct income-tax ·· while making the payment. In tr'- ;onnection we would follow .the decision of this Court 'in _Shri_ :0 _Raj_ & _Anr._ v. _0. P._ _Sing la_ & _Anr.(')_ ######, . In tune with that decision we give the following directions. Now that.the amount is being paid in one lump sum, it'is likely that the employer may take recourse to Sec. 192 of the Income Tax Act, 1961 which provides that when any person responsible for paying any im:ome chargeable under the head 'Salaries' shall, at the time of payment deduct income tax on the amount payable·at the average rate of income-tax computed ont he basis of the rates in'.force for the financial year in which the payment is made, on the estimated income of the assessee under this head for that financial year. If therefore the employer proceeds to deduct the income-tax as provided by Sec. 192, we would .like to make it abundantly clear .that each appellant would be entitled to the relief under Sec. 89 of the Income Tax Act which provides that where, by reason of any portion of assessee's salary being paid in arrears or in advance or by reason of his having received in any one financial year salary for more than 12 months or a payment which under .the provisions of clause (3) of Section 17 is a profit in lieu of salary, bis income is assessed at a rate higher than that it .would otherwise have been assessed, the Income Tax Officer shall on an application made to him in this behalf grant such relief as may be prescribed. The prescribed relief is set out in Rule 2 iA of the Income-tax Rules. The appellant is entitled to relief under Sec. 89 because compensation herein awarded includes salary which has been in arrear for 18 years as also the compensation in lieu of reinstatement and the relief should be given as provided by Sec. 89 of the Income-tax Act (I) [1985] 3 S.C.R: R 623 ( ##### n· E (, H SUPREME COURT REPORTS [1985[ 3 s.c.R.. A read with Rule ~IA of the Income Tax Rules. The appellant indisputably is entitled to the same. If any application is necessary to be made, the appellant may submit the s.ame to the competent authority aud the Commission shall assist the appellant for obtaining the relief.· B #### c The appeal is allowed as herein indicated, with no order as to costs. · N.V.K. _Appeal allowed._ _I_ . _>-·_