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Judgment
S.M. Daud, J.—This petition under Article 226 of the Constitution takes exception to the propriety and legality of an order terminating petitioner''s services and seeks a direction that the said order be ignored and petitioner be given all the benefits available and attached to his employment.
The questions that arise for determination in this petition have to be considered in the following background: -
In or about January/February 1983, respondent No. 1 by an advertisement solicited applications for the post of Electrical Officers in the grade of 1470-50-1770-55-2045-60-2285-75-2510-80-2590 for their Nhava Yard Off-shore Fleet in the Nhava Yard. Petitioner was one of those who responded to the advertisement. He was interviewed, and after the requisite formalities, was appointed as an Electrical Officer in the aforesaid grade by letter dated February 28, 1984. The appointment letter is at Ex.''A'' and term 2 thereof promised confirmation to the petitioner after the expiry of the probationary period subject to the condition that his services were found suitable. Under the terms and conditions governing the matter, officers like the petitioner were to be on a probation for a period of six months from the date of joining, though the employer could in its discretion extend such period of probation for a further period not exceeding six months. After the expiry of the initial six months, the period of probation was extended. On April 25, 1984, respondents issued the communication which is at Ex.''B-2'' and which communicated to the petitioner, the Managing Director''s approval to his confirmation in the post of Electrical Officer with effect from October 1, 1983. The second paragraph of this communication informed petitioner that the question of grant of annual increment unto him would be considered on his completing one year of service. On August 13, 1984, Ex. ''B-1'' was addressed to the petitioner and the relevant portion there from reads thus: -
The question of grant of an increment to you with effect from 7.3.1984 was considered in the light of your performance during the last 12 months of your service from 7.3.1983. Your performance has been assessed and graded as "Average" and you lack ''leadership'' and ''initiative''. It is observed that while you were on "D.B. Mahavir", you liked paper work more than electrical problems which were abundant on the vessel. It has also been recorded that you are not keen to remain in the Company. It has, therefore, been decided to defer grant of increment to you by six months with effect from 7.3.1984.... you are advised in your own interest and in the interests of the Company to overcome the above mentioned deficiencies and come up to the required standard, failing which your services will be terminated.
On August 22, 1954, the petitioner addressed Ex.''B-3'' to the respondents in which he narrated personal difficulties and made a request for being given a shore job on compassionate grounds. On October 29, 1984, petitioner and respondents addressed letters to each other, possibly in ignorance of the incoming communication. Petitioner''s letter was a refutation of the allegation that he lacked leadership, or that he was over-fond of paper work. He pleaded for a reconsideration of the decision refusing to grant him increments. Respondents'' communication made a reference to the unsatisfactory performance of petitioner right, from October 1, 1983 till March 31, 1984, the communications in the past to make him improve his performance, his failure to show any perceptible improvement and the decision to terminate his services in accordance with the Service Rules applicable. A cheque for Rs. 5,278.50ps. being three months'' salary in lieu of notice as per the Service Rules, was sent along with the letter. Petitioner preferred an appeal and before the same was decided, he moved this Court under Article 226. The appeal preferred by him was later dismissed.
Petitioner''s grievance is that the order of termination was void. In fact, he had been dismissed or removed from service inasmuch as the impugned order of termination itself showed that respondents had taken recourse to a punitive measure. The formalities requisite for exercising the power of dismissal or removal had not been followed. Therefore, the impugned order was void. Assuming that the same was in conformity with the rules governing his service, the said rule to which respondents had resorted, was violative of Articles 14 and 16 of the Constitution, and therefore, void. However looked at, the order could not be sustained. Hence the relief to declare the termination as null and void and a consequential direction that respondents treat the petitioner as being in service and entitled to all the benefits attached thereto.
On behalf of the respondents, an affidavit in reply is filed. In this affidavit, it is contended that petitioner''s confirmation was due to his work being satisfactory and a recommendation made to that effect by the master of the vessel "Suvidha". This was a confirmation in the ordinary course. However later, there was a review of the petitioner''s performance - the period of such performance taken into consideration, being October 1983 to February 1984. The master of the vessel "Mahavir" who carried out this review, reported that petitioner''s abilities were "average" and that he showed a preference for paper work rather than solving electrical problems which was his main task. Further, remarks were made by the Manager and Director of Off-shore which were not complimentary to the petitioner. This is why an increment was not given to the petitioner when it became due. His letter dated August 22, 1984 showed that he was not interested in electrical work. Having found his work to be consistently below par, the Undertaking was compelled to terminate his employment. The Service Rule relied upon for effecting the termination was valid. A provision of that nature was absolutely necessary to ensure that the Undertaking was not foisted with someone in the managerial cadre who could not carry out the task for which that cadre existed. The petition was without merit and deserved to be dismissed
Having regard to the submissions aforesaid, the points for determination will be: -
Whether the impugned order at Ex. ''C-1'' dated 29-10-1984 is void?
Whether petitioner is entitled to re-instatement with full benefits or only to compensation as urged on behalf of the respondents?
What order?
My findings, for reasons given below, are:-....
Yes, it is.
To re-instatement with full benefits.
See order.
REASONS
Ex. ''C-1'' leaves no manner of doubt that though worded as an order of termination, it conveyed in reality a punitive decision. The Supervisory Staff Service Rules enable termination, vide Clause 16 which is worded thus:-
Termination: The services of an Assistant may be terminated without assigning any reasons, as under:
(a) of a confirmed Assistant by giving him three calendar months'' notice in writing or salary in lieu of notice.
(b) of an Assistant of probation by giving him one calendar month''s notice in writing or salary in lieu of notice.
It may be stated that there was compliance with the requirements of Rule 16 inasmuch as the petitioner being a confirmed Assistant was given three calendar months'' salary in lieu of notice. But having regard to the stigma passed upon the petitioner in Ex. ''C-1'' the same does not merit the description of being an order of termination. There is reference in Ex. ''C-1'' to the unsatisfactory performance of the petitioner, his failure to come up to the required standard and his inability to show an improvement in his performance. Ail these reflect upon the petitioner''s capacity and competence. Disguising an order of removal or dismissal by use of the word "termination" and showing a paper conformity with the rule governing termination, does not change the reality. The relevant Conduct, Discipline and Appeal Rules make a clear distinction between ''removal'' and "dismissal'' on the one hand and ''termination of services'' on the other. In this connection, Rule 26 lists ''removal'' and ''dismissal'' in the clause dealing with the major punishments, while ''termination'' comes in later. Now in the instant case, the impugned order as also what had preceded the same, left no room for doubt of the Undertaking''s dissatisfaction with the capacity and competence of the petitioner. He was in fact accused of a misconduct which would be covered by Clause 22(9) of the Conduct, Discipline and Appeal Rules. This clause reads as under: -
...the following acts of omission and commission shall be treated as mis-conduct:
Neglect of work or negligence in the performance of duty including malingering or slowing down of work.
The rules provide for the procedure that has to be followed for the imposition of a major penalty. ''Removal'' was a major penalty and admittedly no enquiry as required by Rule 29 of the Conduct, Discipline and Appeal Rules was held. This apart, and, assuming that Rule 16 of the Supervisory Staff Service Rules applied, the same cannot be given effect to, having regard to the decision of the Supreme Court reported in West Bengal State Electricity Board and Others Vs. Desh Bandhu Ghosh and Others, , Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, and O.P. Bhandari Vs. Indian Tourism Development Corpn. Ltd. and Others, . However looked at, the impugned order cannot be sustained and is void.
The next question will be as to the relief that petitioner is entitled to. Mr. Damania for the respondents relies upon the decision in Bhandari''s case (supra) and submits that the employer having lost total confidence in the petitioner, should not be compelled to accept him. An order for some amount as reasonable compensation, would serve the ends of justice. On the other hand, petitioner''s counsel points to the fact that petitioner belonged to the Nahar community which is a Scheduled Caste, that he had acquired a job after a great deal of effort, that he did the best that could be done and that the impugned order was issued with a view to punish him for his having claimed an increment. Now, it is true that petitioner belongs to a caste which has been classified as a Scheduled Caste. It is also true that getting jobs is not easy. But it is not this or that factor alone which has to be taken into consideration. It is the totality of the situation which has to be looked into. Here, petitioner had been employed in about March 1983 and was given the marching orders on October 29, 1984. This means that the total period served by him was less than two years. On April 25, 1984, he was given a communication intimating approval to the successful completion of probation. The only adverse communication given to him prior to the impugned order, is, that of August 13, 1984. Possibly, some other communications, if not in writing, at least orally, may have been communicated. Petitioner had his difficulties, and had therefore, pleaded for a shift from a sea to a shore job. I will assume that the petitioner was below par and Jacked leadership and initiative and also showed an unwanted preference for paper work over electrical problems. But would this suffice to render petitioner ineligible for the normal rule, which is, that where an order of removal or dismissal is found to be void, the employee gets re-instatement with full back wages? I am conscious that there has to be distinction between the cases of workmen and clerical staff on the one hand, and, the managerial cadre on the other. The Supreme Court in Bhandari''s case (supra) had this to say on the subject and I am in respectful agreement there with: -
Although in cases of workmen and ''white collar'' employees reinstatement would be a rule and compensation in lieu thereof an exception, but as regards the high level managerial cadre, the matter deserves to be viewed from an altogether different perspective a larger perspective which must take into account the demands of national interest and the resultant compusion to ensure the success of the public sector in its competitive coexistence with the private sector. The public sector can never fulfil its life aim or successfully view with the private sector if it is compelled and obliged to entrust its management on incapable or inefficient personnel in whom it has no trust or faith and with whom it cannot function harmoniously. These factors have to be taken into account by the court at the lime of passing the consequential order, for the court has full discretion in the matter of granting relief, and the court can sculpture the relief to suit the needs of the matter at hand. The court, if satisfied that ends of justice so demand, can certainly direct that the employer shall have the option not to reinstate provided the employer pays reasonable compensation as indicated by the court.
(underlinings mine) [herein indicated in italics- Eds.].
Therefore it is not every case of incapacity or inefficiency where the employer gets exonerated from the liability to re-instate the employee concerned. Here is the case of one who worked for barely two years. Some six months prior to the passing of the impugned order, the Undertaking was conveying its approval to the confirmation of the petitioner. The confirmation was being made with retrospective effect from October 1, 1983. Surely, petitioner''s capacity and efficiency could not have gone down to such an extent that there was no alternative left, but to dispense with his services. If the Court has discretion to mould the relief, it certainly should not pay undue attention to the epithets of incapacity and inefficiency flung at the employee by the employer. Read reasonably, it would appear that the petitioner though not very bright or over-anxious to work, could in course of time have improved. In Bhandari''s case (supra), the employee was the Manager of a hotel run by the employer. His conduct had created an almost irreversible barrier of ill-will between the workers on the one hand and the employer on the other. The workers had lodged a strong protest against his conduct and had threatened the management with a strike in the context of some acts of the employer. Therefore, the continuance of the employee was detrimental to the larger interests of the employer, which was a public sector undertaking. That, cannot be said of the petitioner. He is, all said and done, a small person occupying a small position. This, therefore, is not a case where the rule expounded in Bhandari''s case (supra) can be made applicable. The result is that the petition will have to be allowed. Hence the order.
ORDER
Rule in terms of prayer (a) made absolute with no order as to costs.