JUDGMENT 1. IN this application under article 226 of the Constitution of India, the petitioner has challenged the order of termination dated 10th August, 1982. The petitioner is an Honours Graduate from the Calcutta University in 1962 the Petitioner obtained Diploma in Jute Manufactures from Dundee technical college Dundee, Scotland with industrial Organisation and Work Study. He obtained Full Technology certificate from the City and Guild of London Institute. He had practical training as Student Apprentice in James Mackie and Sons Ltd., Belfast and received training from the Thomas c. Kay in Dundee, U. K. In 1963, the petitioner joined Bird and Heilgers Group of Jute Mills as Covenated assistant. The petitioner held the post of Administrative Officer till his appointment in National Company Limited in 1976. By notification dated 30th July, 1976 the Central Government took over the management of National Company Limited as an undertaking under section 18a of the Industries (Development and Regulation) Act, 1951 and appointed an "authorised Body" of eleven persons for the purpose of management of the National Company limited. Lt. General J. S. Aurora became the Chairman of the 'authorised Body' Pursuant to the advertisement issued by s. R. Batliboi and Company for the post of Purchase Manager (Jute) the Chairman of the "authorised Body" appointed the petitioner as Purchase Manager (Jute) at a salary of Rs. 2,000 /-and all other perquisites. The petitioner was confirmed in the said post and thenceforward continued as a permanent employee. On 27th April, 1980, The National Company Limited (Acquisition and Transfer of Undertakings) Ordinance, 1980 came info force and the right, title and interests of the undertaking vested in the Central Government by Notification dated 28th April, 1980, under section 5 (1) of the Ordinance; right, title and interest of the undertakings instead of continuing to vest in Central Government vested in the existing central Government: Company of Jute Corporation of India. Thereupon, Jute Corporation appointed a committee of eleven persons to manage the affairs of the undertaking and the respondent no. 2 A. R. Chowdhury was one of them. On 19th July, 1980 the Ordinance was repealed and The National Company Limited (Acquisition, of Transfer and Undertaking) Act, 1 980 came into force. On 3rd, June, 1989 the Undertaking as a Central Government company was incorporated at National Jute Manufactures corporation Ltd. and the petitioner continued as Purchase manager (Jute. 2 A. R. Chowdhury was one of them. On 19th July, 1980 the Ordinance was repealed and The National Company Limited (Acquisition, of Transfer and Undertaking) Act, 1 980 came into force. On 3rd, June, 1989 the Undertaking as a Central Government company was incorporated at National Jute Manufactures corporation Ltd. and the petitioner continued as Purchase manager (Jute. Although on 2 8th February, 1980 the "authorised body" terminated the service of Mr. B. K. Basu, Executive. Director, he moved the High Court contending that he did not receive any letter of termination till then and asking relief against his threatened termination. He, however, did not prosecute the case and on 17th July, 1980, the application (being c. O. No. 7082 (W) of 1980 was dismissed. On 4th May, 1981, the Chairman-cum-Managing Director of National Jute Manufactures corporation Limited issued, a General Notice that. Mr. B. K. Basu has been re-appointed with the approval of the textile Department. On 7th June, 1982, the said Mr. Basu transferred the petitioner to the post of Assistant Manager which according to the petitioner is a lower rank. The petitioner accepted the said transfer to that post on protest. The said protest was recorded in a letter against the aforesaid transfer and a copy was forwarded to the respondent No. 2. Then on 17th January, 1982, Mr. Basu made allegations against the petitioner that he had taken away two daily Jute Purchase registers for 1978 and 1979 and the petitioner replied the same stating, inter alia, that the used to ask him to sell without following the procedure. Then on 22nd February, 1982 mr. Basu wrote a confident fetter to the respondent No. 2 praying for an investigation about the allegations made in the letter dated 16th February 1932 and en 26th February, 1982 the respondent No. 2 endorsed a note for investigation. On 4th March, 1982, Mr. Basu appointed a Board of Enquiry consisting of three of his subordinates. On 8th March, 1982 the petitioner attended the enquiry arid the Chairman of the heard refused to accept a written representation whereupon the petitioner met respondent No. 2, Managing Director, and reported the matter to him and on his suggestion filed a letter hong with the representation to his Receiving Clerk. On 8th March, 1982 the petitioner attended the enquiry arid the Chairman of the heard refused to accept a written representation whereupon the petitioner met respondent No. 2, Managing Director, and reported the matter to him and on his suggestion filed a letter hong with the representation to his Receiving Clerk. On 10th march, 1982, the petitioner moved an application against his order of transfer as well as other orders and also for a writ of Quo-Warranto against Sri B. K. Basu and M. N. Roy, J. issued a Rule being C. R. NO. 1721 (W) of 1982 in terms of the prayers and status quo with the direction that investigation would go on but final order" should not be. given effect to. On 20th march, 1932 the respondent No. 1 affirmed an application for vacating or modifying the interim order. On 23rd, March, 1982 the petitioner affirmed an application for injunction restraining sri B. K. Basu from functioning as Executive Director. On 30th March, 1982 the advocate for the petitioner asked for inspection of records in respect of original approval by Textile Department, Government of India and the reply as given by the Unit-National, of the Corporation was "you are aware of the said approval as you have annexed a copy thereof in your client's petition" though no copy of approval was annexed except the circular by the Chairman-cum-Managing Director. Thereafter on 22nd April, 1982, M. N. Roy, J. disposed of the said two applications one made by the respondent No. 1 for modification of the interim order and the other made by the petitioner for injunction, by appointing Mr. K. K. Chatterjee as Investigation Officer in place of the Board on the suggestion of the learned Counsel who appeared for national Unit. On an application made by the petitioner on 2nd, June, 1982, M. N. Roy, J. fixed 23rd, June, 1982 as the date of hearing of the investigation. On 23rd June, 1982 the petitioner went before Sri K. K. Chatterjee but had to leave the investigation after an hour as Sri Chatterjee refused to receive written representations, call witnesses and document. On the same date two registered letters were sent, one by Mr. T. N. Banerjee, Advocate and another by the petitioner to Sri K. K. Chatterjee but both came back with the endorsement 'left' on 24. 6. 82. On the same date two registered letters were sent, one by Mr. T. N. Banerjee, Advocate and another by the petitioner to Sri K. K. Chatterjee but both came back with the endorsement 'left' on 24. 6. 82. On 24th Jane, 1982 the petitioner made an application before M. N. Roy, J. for further directions'. But Mr. K. K. Chatterjee did not file any affidavit-in-opposition. The affidavit-in-opposition was affirmed by one a. R. Mukherjee the respondent No. 2 who conducted the proceeding before the investigation on behalf of the Corporation. On 5th July, 1982 the petitioner filed a suit being T. S. NO. 1251 of 1982 as the Corporation Officers were describing his absence as unauthorised though the petitioner filed leave applications with medical certificates and asked for a declaration that the letter dated 2 1st, June, 1982 was malafide and for injunction. The petitioner obtained injunction from dismissing him or penalising him otherwise owing to his absence. The respondent No. 1 moved this Court in revision against the said order before P. K. Banerjee, J. and obtained stay with the direction that the proceedings may continue and any action that may be taken by the Company may be taken and final order may be passed but the final order would not be communicated to the petitioner subject to further order. By the letter dated 26th July, 1982 the petitioner was informed that he had no leave due to his credit and period of his absence will be treated as unauthorised. M. N. Roy, J. rejected the said application of the petitioner made on 24th June, 1982 with the direction that the respondents would be entitled to take further steps in the matter if they were so advised subject to the result of the Rule No copy of the report of Sri K. K. Chatterjee was given to the petitioner and M. N. Roy, J. directed the respondents to give copy to the petitioner. On 9th August, 1982 M. N. Roy, J. vacated interim orders passed in the said Writ application of the petitioner being C. R. NO. 1721 (W) of 1982 and on 10th August, 1982 the letter of termination was issued. On 9th August, 1982 M. N. Roy, J. vacated interim orders passed in the said Writ application of the petitioner being C. R. NO. 1721 (W) of 1982 and on 10th August, 1982 the letter of termination was issued. It may be mentioned that by the judgment dated 2nd June, 1983 M. N. Roy, J. upheld the contention of the petitioner in the said Rule that the said B. K. Basu, executive Director, had no authority to hold the post and the Rule was made absolute. An order of stay was obtained by the respondents from the Court of appeal 2. ON the aforesaid facts the petitioner contends that the termination of his services were invalid, motivated and contrary to the relevant rules and against the principles of natural justice and also violative of Articles 14 and 16 of the constitution. The main contention is that the termination is not a termination simpliciter. It is the result of various concerted moves made by the respondents which in effect amounts to dismissal without affording him any opportunity of hearing. The principal contention of the respondents is that Section 13 of the National Company Limited (Acquisition and Transfer of Undertakings)Act, 1980 declares that terms and conditions of service as existing on the date of vesting of the company shall continue unless terms and conditions have been duly altered by the new Government Company. Since no alterations have been made in the terms and conditions of the petitioner's service, the conditions as laid down in the letter of appointment dated 8th October, 19 76 continued after the vesting. In other words, the contention is that the letter dated 10th August, 1982 is termination of service simpliciter. 3. THE contentions raised by the learned Advocates have to be considered in the light of the provisions of National company Limited (Acquisition and Transfer of Undertakings) Act, 1980 and the facts and circumstances appearing from records. The said Act provides for the acquisition and transfer of the undertakings of Messrs. National Company Limited with a view to securing the proper management of such undertakings so as to subserve the interests of the general public by ensuring the continued manufacture, production and distribution of articles made of jute, which are essential to the needs of the economy of the country and for matters connected therewith or incidental thereto. National Company Limited with a view to securing the proper management of such undertakings so as to subserve the interests of the general public by ensuring the continued manufacture, production and distribution of articles made of jute, which are essential to the needs of the economy of the country and for matters connected therewith or incidental thereto. Section 13 of the said Act declares that the terms and conditions of service as existing on the date of vesting of the company shall continue unless terms and conditions have been duly altered by the new Government company. The appointment letter dated 8th October, 1976 by clause 5 declares as follows : " If you services are found satisfactory, you will be confirmed in writing after the probationary period and thereafter your services can be terminated at any time by giving you one month's notice or by paying one month's salary in lieu thereof". 4. THE letters of termination dated 10th August, 1982 which -has been impugned in this proceeding is, inter alia, to the following effect : "we regret to in form you that your services with the unit-National are no longer. required. Accordingly, your services are hereby terminated with immediate effect in accordance with Clause 5 of the terms and conditions as stated in your letter of appointment". The first question which calls for determination in this case is that whether the employer, a Government Company can terminate the services of a confirmed employee by giving one month's notice under the terms of the contract. The petitioner was appointed as the Purchase Manager (Jute) by the Authorised body on 8th October, 1976, after the management of the erstwhile National Company Limited was taken over by the Central government. Thus in effect it was an appointment made by the government. The petitioner completed his probationary period and he was also confirmed in his post with effect from 15th november, 1976. The letter of confirmation was issued by the chairman of the Authorised Body on 6th May, 1977 in the following terms : " On your completion of the probationary period of six month ending on 14th May, 1977 satisfactorily, we are pleased to confirm your services with the Company from 15. 11. 76. " 5. IN April, 1980 the National Company Limited (Acquisition and undertakings) Ordinance, 1980 came into force and the undertakings vested in the Central Government. 11. 76. " 5. IN April, 1980 the National Company Limited (Acquisition and undertakings) Ordinance, 1980 came into force and the undertakings vested in the Central Government. The said Ordinance was repealed by the National Company Limited (Acquisition and Transfer Undertakings) Act, 1980. On 3rd June, 1980 the undertakings as a Central Government Company was incorporated as National Jute Manufactures Corporation Limited. On 10th august, 1982 the Government Company purported to terminate the services of the petitioner on the ground that his services "are no longer required". Thus, the petitioner's appointment, confirmation and termination were all by the Government or the Government Company. The Government Company is wholly controlled and managed by the Government. It is an instrumentality of the Central Government and as such an 'other authority' and there fore a 'state' within the meaning of Article 12 of the Constitution, Even if the employees of such Government company do not hold civil posts under the Union, they no doubt are in public employment. The question, therefore, is whether on the facts and circumstances of this case, the services of a confirmed employee of the Government Company although having no protection of Article 311 of the Constitution, could be terminated simply on the ground that his services are no longer required. It has been contended that since there was no alteration under Section 13 of the said Acquisition and transfer of Undertakings Act, the condition of services as regards termination by a notice would be applicable and accordingly the employer has got the right to terminate the services of the petitioner without assigning any reasons therefor. 6. IN my view this contention is not tenable. Even where article 311 has not been made applicable, as the case of an employee of the Government Company, such employee cannot be thrown out of employment as and when the employer pleases. He must also have some security of his service. Unless there is security of service no incumbent discharge his duties and responsibilities. The fear of lost the job would pervade his mind and thought, in that event efficiency of the incumbent is bound to be affected, so also his moral. In public employment there should be job security of the permanent employees. Their tenure cannot depend on the subjective satisfaction of the authority. The fear of lost the job would pervade his mind and thought, in that event efficiency of the incumbent is bound to be affected, so also his moral. In public employment there should be job security of the permanent employees. Their tenure cannot depend on the subjective satisfaction of the authority. The Court has to scrutinise the facts and circumstances leading to the termination to determines whether the termination is based on any objective factors. The employees cannot be left on the mere ipsi dixit of the employer. In this connection reliance was placed in the decision of the Supreme Court in the case of The Managing Director, u. P. Warehousing Corporation and Ors. vs. Vijay Narayan Vajpayee reported in AIR 1980 SC 840 . The Supreme Court in that case was considering the termination of an officer of Uttar Pradesh State Warehousing Corporation which was constituted under the Madhya Pradesh State Warehousing corporation Act, 1956 as subsequently replaced by Madhya Pradesh state Warehousing Corporation Act, 1962. It is a statutory body wholly controlled and managed by the Government. There, the Supreme Court observed : "even if at the time of dismissal, the statutory regulations had not been framed or had not come into force, then also, the employment of the respondent was public employment and the statutory body, the employer could not terminate the services of its employee without due enquiry 'in accordance with the statutory regulations, if any in force, or in the absence of each Regulations, in accordance with the rules of natural justice. " 7. REFERENCE may also be made to a recent decision of the Supreme Court in the case of West Bengal State Electricity board and Ors. v. Desh Bandhu Ghosh and Ors. reported in a. I. R. (1985) S. C. 722. In that case the services of the deputy Secretary of the West Bengal State Electricity Board were terminated with immediate effect on payment of three months salary in lieu of three months' notice. The order gave no reasons for terminating the services of the respondent and there was nothing in the order which could possibly be said to attach any stigma to the respondent. The order gave no reasons for terminating the services of the respondent and there was nothing in the order which could possibly be said to attach any stigma to the respondent. Apparently the order was made under Regulation 34 of the Board's regulations which enables the Board to terminate the services of any permanent employee by giving three months' notice or on payment of salary for the corresponding period in lieu thereof. The High Court contrasted Regulation 34 which provides for the termination of services of both permanent and temporary employees of the Board on attaining the age of superannuation, as a result of the disciplinary action etc. The High Court struck down the Regulation 34 holding that it was arbitrary in nature and suffered from the vice of enabling discrimination. The contention raised on behalf of the West Bengal State Electricity Board was chat sufficient guidelines for the exercise of the power under Regulation 34 were given and in any case the power to terminate the services of a permanent employee was vested in higher ranking officials who might be expected to be exercised in a reasonable way. The Supreme Court negative that contention and held as follows : "we are not impressed with the submission of the learned counsel for the Board. On the face of it the regulation is totally arbitrary and confers on the board a power which is; capable of vicious discrimination. It is a naked hire-and-fire' rule, the time for banishing Which altogether from employer-employee relationship is fast approaching. Its only parallel is to be found in the Henry- VIII class so familiar to administrative lawyers. In Moti Deka v. North Blast frontier Railway, A. I. R. 1964 S. C. 600 Rules 148 (3)and 149 (3) of the Indian Railway Establishment Code were quashed on the ground that they were contrary to Article 311 (2) of the Constitution. The challenge was upheld though no opinion was expressed on the question whether the rule offended Articles 14 of the Constitution. Since then Article 14 has been interpreted in several decisions of this Court and conferment and exercise of arbitrary [power on and by the State or its instrumentalities have been frowned upon and struck down by this Court as offending Article 14. In S. S. Muley v. J. R. D. Tata (1979) 2 S. L. R. 438 = 1980 L. I. C. 11. In S. S. Muley v. J. R. D. Tata (1979) 2 S. L. R. 438 = 1980 L. I. C. 11. P. B. Sawant, J. of the Bombay High Court considered at great length Regulation 48 (a) of the Air India Employees service Regulations which conferred similar power on the Corporation as Regulation 34 confers on the Board in the present case. The learned Judge struck down Regulation 48 (a) and we agree with his reasoning and conclusion. In Workmen, Hindustan Steel Ltd. v. Hindustan Steel Ltd., A. I. R. 1985 S. C. 251 this Court had occasion to hold that a Standing Order which conferred such arbitrary, uncanalised and drastic power to enable the employer to dispense with an enquiry and to dismiss an employee, without assigning any reason, by merely stating that it was expedient and against the interest of the security to continue to employ the workman was violative of the basic requirement of natural justice. " In this case also a naked hire-and-fire rule has been applied to a permanent employee without assigning any reason at all. Although Mr. Gupta, Learned Senior Advocate for the respondents has submitted that the judgment of the Supreme Court in the West Bengal State Electricity Board's case (supra) proceeded on the basis of the Regulation 34 is discriminatory standing side by side with Regulation 33. Regulation 33 provided for the termination of appointment without notice and Regulation 34 provided for termination of employment on notice. The Supreme Court struck down the latter as being capable of discriminatory application. It is clear that the Supreme Court has not gone to the extent of holding that a provision of termination of simpliciter is to be considered ultra vires and bad and wherever and wherever it is found. In the present case there is no question of two sets of rules providing for different methods of termination standing side by side. Moreover, rule in the present case is contractual and even assuming that the respondent is a state within the meaning of Article 12 of the Constitution, it cannot be said that such a contractual clause is arbitrary. In the present case there is no question of two sets of rules providing for different methods of termination standing side by side. Moreover, rule in the present case is contractual and even assuming that the respondent is a state within the meaning of Article 12 of the Constitution, it cannot be said that such a contractual clause is arbitrary. It is true that the Supreme Court considered the scope of Regulations 33 and 34 in the said judgment but the observation of the Supreme Court that a naked hire-and-fire rule cannot be applied was made in the light of other decisions considered by the Supreme Court in the. said judgment. The said statement of law is in general terms and not limited to the facts of that case as contended by the respondents. In that case Supreme Court quoted with approval the judgment in the case of Workmen of Hindustan steel Ltd. and Anr. v. Hindustan Steel Ltd. and Ors. reported in A. I. R. (1985) S. C. 251 where the dismissal was sought to be justified by a Standing Order. In that case (Hindustan steel Ltd.) the Supreme Court observed : "turning to the facts of the case, a bare perusal of the impugned order is both instructive and provides ample material' for pointing out how the drastic power can be arbitrarily exercised without keeping in view the pre- requisite to be satisfied for exercise of the power. The order reads as under :the expression 'no longer expedient' as used in the order clearly spells out the fact that some enquiry was started the Supreme Court further observed : "the view we are taking gets some support from a decision of this Court. In a slightly different situation, this Court in L. Michael v. Jhonson Pumps India ltd. (1975) 3 S. C. R. 489 = A. I. R. 1975 S. C. 661, observed that discharge simpliciter on the ground of loss of confidence when questioned before a court of law on the ground that it was a colourable exercise of power or it is a malafide action, the employer must disclose that he has acted in good faith and for good and objective reasons. Mere ipse dixit of the employer in such a situation is of no significance. " 8. THERE is another aspect of the matter. Mere ipse dixit of the employer in such a situation is of no significance. " 8. THERE is another aspect of the matter. Once the petitioner was confirmed in the post his appointment becomes permanent. He has acquired a right to the post. Such right cannot be taken away without following the basic principles of justice and fair-play and above all the principles of natural justice. Even in a case where the termination is based on a contractual clause the Government Company being an 'authority' within the meaning of Article 12 of the Constitution cannot act arbitrarily. Their action must be judged in the light of reasonableness. Their action should not be actuated by malice or ill-will. In a case like this when the Officer's confirmed services are terminated by the government Company, it is absolutely necessary that there must be ground justifying such termination. The theory of 'hire-and-fire' cannot be applied in the case of public employment. The Supreme Court in U. P. Warehousing Corporation case (supra) noted the contention of the employee that a declaration to enforce a contract of personal service can not be granted by the Court and the only remedy of the employee is to file a suit for damages for wrongful dismissal. There chinnappa Reddy, J. observed : "i find it very hard indeed to discover any distinction on principle, between a person directly under the employment of the Government and a person under the employment of an agency or instrumentality of the government or a Corporation, set up under a statute or incorporated but wholly owned by the Government. . . . ". 9. THE State and the multitudinous agencies and corporations set up by it are the principal purchasers of the produce and the products of our country and they control a vast and complex machinery of distribution. The Government, its agencies and instrumentalities, Corporations set up by the Government under Statutes and Corporations incorporated under the Companies Act but owned by the Government have thus become the biggest employers in the country. There is no good reason why, if Government is bound to observe the equility clause of the Constitution in the matter of employment and in its dealings with the employees, the Corporations set up or owned by the Government should not be equally bound and why, instead, such Corporations could become citadels of patronage and arbitrary action. There is no good reason why, if Government is bound to observe the equility clause of the Constitution in the matter of employment and in its dealings with the employees, the Corporations set up or owned by the Government should not be equally bound and why, instead, such Corporations could become citadels of patronage and arbitrary action. In a country like ours which teems with population, where the state, its agencies, is instrumentalities and its Corporations are the biggest employers and where millions seek employment and security, to confine the applicability of the equality clauses of the Constitution, in relation to matters of employment, strictly to direct employment under the Government is perhaps to mock at the Constitution and the people. Some element of public employment is all that is necessary to take the employee beyond the reach of the rule which denies him access to a Court to enforce a contract of employment and denies him the protection of Articles 14 and 16 of the Constitution. After all, employment in the public sector has grown to vast dimensions and employees in the public sector often discharge as onerous duties as civil servants and participate in activities vital to our country's economy. In growing realisation of the importance of employment in the public sector, Parliament and the legislatures of the States have declared persons in the service of local authorities, Government Companies and statutory corporations as public servants and extended to them by express enactment the protection usually extended to civil servants from suits and prosecution. It is, therefore, but right that the independence and integrity of those employed in the public sector should by secured as much as the independence and integrity of civil servants. 10. IF the expression no longer expedient' used in the hindustan Steel's case (supra) spells out the fact that some enquiry was started, the expression no longer required' would similarly spell out the fact that there was something behind the termination. The petitioner was a confirmed staff and as such his services must have been terminated for some reasons which are not apparent on the order of termination. A person in the public employment cannot be thrown out of employment even according to the terms of contract specially when such an employee is a confirmed employee and has served for long years. A person in the public employment cannot be thrown out of employment even according to the terms of contract specially when such an employee is a confirmed employee and has served for long years. In Gujarat Steel case (infra) Supreme Court observed that to dismiss a worker in an economy cursed by massive unemployment is a Draconian measure as a last resort. Where the contractual employment assumes the character of public employment the services of an employee cannot be terminated without observing the principles of fair-play and justice. 11. SECTION 13 of the National Company Limited (Acquisition and Transfer of Undertrakings) Act, 1980 amply demonstrates that from the date of vesting an employee of the erstwhile company shall hold office or service under the central Government or the existing, or new, Government Company, as the case may be, with the same rights and privileges unless the conditions of service are duly altered by the Central government or the existing or new Government Company, as the case may be As indicated earlier, the petitioner was appointed by the Authorised Body when the management of the erstwhile company was taken over by the Central Government and, thereafter, he continued under the said Act as an employee of the Government Company. Thus by virtue of Section 13 of the said Act, the petitioner's contractual employment has assumed that character of a public employment. An argument was also advanced by Mr. Dipankar Gupta, the learned advocate for the respondents that the petitioner continued in the employment on the same terms and conditions under the Government Company, the respondent No. 1, and as such the respondent No. 1 rightly invoked the contractual clause in terminating the service of the petitioner. This contention, however, cannot be accepted. In Section 13 (1) of the said Act, an employee shall hold office or service with the same rights and privilages as no pension gratuity and other matters as would have been admissible to him if there has been no such vesting unless his remuneration and other conditions of service are duly altered. This contention, however, cannot be accepted. In Section 13 (1) of the said Act, an employee shall hold office or service with the same rights and privilages as no pension gratuity and other matters as would have been admissible to him if there has been no such vesting unless his remuneration and other conditions of service are duly altered. In a similar Act of acquisition being The Burmah Shell (Acquisition of Undertakings in India) Act, 1976, in Section 9 which contains the provisions relating to the employees of Burmah Shell, it has been provided that an officer or other employee shall hold office or serving under the Central Government or the government Company, as the case may be, on the same terms and conditions and with the same rights of pension, gratuity and other matters as would have been admissible to him if there was no such vesting and shall continue to do so until his remuneration and conditions of service are duly altered. The word "same terms and conditions" are absent in the said national Company Limited (Acquisition and Transfer of Undertakings) Act, 1980. It cannot, therefore, be said that after the petitioner became an employee of the Central Government or the Government Company the terms and conditions regarding termination of service remained intact. 12. EVEN if the petitioner was governed by the terms of contract of his appointment, termination of such appointment cannot be brought about simply in accordance with the terms of contract. The contention is that the petitioner being bound by the terms of contract cannot make any grievance if such termination was made in accordance with the terms and conditions of the service. Relience was placed in the decision of the Supreme Court in the case of Subba Reddy v. Andhra University, reported in 1976 S. C. 2049. Similar contention came up for consideration in the case of D. P. Seshachalm vs. Administrative Staff College of India reported in 1984 LAB I. C. 875. The petitioner in that case was a permanent employee of the respondent college. His services were terminated with immediate effect and he was offered three months salary in lieu of the notice due to him. This termination was challenged by the petitioner. The petitioner in that case was a permanent employee of the respondent college. His services were terminated with immediate effect and he was offered three months salary in lieu of the notice due to him. This termination was challenged by the petitioner. There the college authority urged contention that when the service of the petitioner had been terminated in compliance with the terms of contract, the petitioner could ask for no more and could make no complaint. Andhra Pradesh High court considered several decisions of the Supreme Court including the decision in the case of Subbareddy (supra)and held : "it is no doubt true that in Subbareddy's case (AIR 1976 SC 20 69) the Supreme Court upheld the termination of a University Teacher's employment brought about by giving a prior notice, as it has been done in this case. But in Subbareddy's case, the question relating to the job security that Articles 16 and 2 1 of the constitution accord to an employee of the State were neither raised nor considered. The question there considered was whether the University's action terminating the services of Subbareddy was ultra vires of the terms of contract of employment and the rules framed by the university. The question whether the termination of the employment was in violation of the relevant constitutional provisions was never raised on that case. Subbareddy's case does not therefore, foreclose consideration of the question whether the respondent college can terminate the petitioner's service by merely giving three months notice without following the constitutional mandates. In view of the above discussion and particularly in view of what the Supreme Court laid down in Royappa's case (1974 Lab IC 427) (supra) in belliappa's case (1979 Lab IC 146) (supra) and chandrabhan's case 1983 Lab IC 1128) and what the Full bench of our High Court said in APSRTC case (AIR 1980 andhra Pradesh 132) (supra) I hold that the respondent-college had acted without jurisdiction in terminating the services of the petitioner without affording him an opportunity to show cause and without assigning any reasons. It can be no argument to say that the petitioner by entering into a contract of employment had agreed to the termination of his services by the method of three months' notice. It is settled law that the petitioner cannot barter away his fundamental rights (see Bashewar Nath vs. Commr. of I. T. AIR 1959 SC 149 . It can be no argument to say that the petitioner by entering into a contract of employment had agreed to the termination of his services by the method of three months' notice. It is settled law that the petitioner cannot barter away his fundamental rights (see Bashewar Nath vs. Commr. of I. T. AIR 1959 SC 149 . The contractual term providing for three month's notice should, in my opinion, he read subject to the constitution. By reading down the rules and the terms of the contract of employment as merely providing for a minimum proceedure to be followed by the State in exercising its power to terminate the services of its employees, we can bring the rules and the terms into harmony with the constitutional mandates. Then, these rules and the terms of contract of employment would be merely procedural in nature and would act as additional safeguards to the employee and as additional checks on the respondent college's power to terminate the services of its employees. That is the only way to cure them of their constitutional vice and excess. On the other hand if these rules and terms of contract of employment were considered as independent and substantive sources of authority of the respondent college to terminate the services of a teacher, they will have to be struck down as unconstitutional on the ground of their incompatibility with Articles 14, 16 and 21 of the Constitution. In that view, I reject the argument of the respondent college justifying the termination of the petitioner's services on the basis of the terms of contract of employment. I will also hold that Subbareddy's case ( AIR 1975 SC 2049 ) is limited to the resolution of the question of observance of the terms of contract of employment and cannot be considered as an authority on the breoder constitutional issues raised in this case as to the right of the petitioner to continue in service under the protection of Articles 14, 16 and 2 1 of the Constitution. Those questions in my view, were considered and decided by the decisions in Royappa's case 1974 LAb IC 427) (SC) Belliappa's case (1979 Lab IC 146) (SC) and Chandrabhan's case (1983 Lab IC 1128) (SC. I accordingly reject this argument of the respondent college. " 13. I respectfully agree with the views taken by P. A. Chowdhury, J. in that case. I accordingly reject this argument of the respondent college. " 13. I respectfully agree with the views taken by P. A. Chowdhury, J. in that case. The said principles would equally apply to the facts of this case. The contention of Mr. Dipankar Gupta therefore, must fail. 14. THE next contention is that the petitioner's service has not been duly terminated in terms of section 13 of the said Act. The decision to terminate the service of the petitioner was taken by the Committee of Directors and was issued by the Managing Director both of whom had neither any independent authority under Article 92 (21) nor any delegated authority under Article 97 of the Articles of Association. It is contended that it is incumbent on the respondents to comply with the Articles of Association before any action of terminating the service of the petitioner would be taken by, the respondents. Articles 91 provides that the business of the Company shall be managed by the board of Directors. Article 92 provides that without prejudice to the general powers conferred by the Articles and subject to the provisions of Sections 291 to 294 and 297 of the Companies Act, 1956 the Board of Directors shall have powers enumerated in Article 92. Article 92 (21) provides as follows : - " (21) To appoint and at their discretion remove or suspend such General Managers, Secretaries, Accountants, Officers, clerks, Agents and Servants as they may from time to time think fit and to determine their powers and duties and fix their salaries or emoluments and require security in such instances and to such amounts as they may think fit, provided however, that prior approval of the President shall be taken for appointment of -i) persons who have already attained the age of 58 years, whether they be from public or private sector, with pay, including pension/pensionary equivalent, if any, of more than Rs. 2,500/-per month, and ii) foreign nationals except foreign technical personal to any post without any ceiling of salary to such personnel and also when such appointment is in broad conformity with the policy of the government. " 15. ARTICLE 97 provides as follows : - "97. 2,500/-per month, and ii) foreign nationals except foreign technical personal to any post without any ceiling of salary to such personnel and also when such appointment is in broad conformity with the policy of the government. " 15. ARTICLE 97 provides as follows : - "97. Subject to the provisions of the Act, the Board may delegate any of their powers to Committees consisting of such member of members of their body as they think fit and may from time to time, revoke such delegation. Any committee so formed shall in the exercise of the powers so delegated 'conform to any regulations that may, from time; to time be imposed upon it by the Board. The proceedings of such a committee shall be placed before the Board at its meeting. " 16. THE contention of the respondents is that Sub-clause (21) of article 92 specifically authorised the Board of directors to terminate the service of any employee. In this case the committee of Directors at its meeting held on 10th august, 1982 directed the Managing Director to issue of letter of termination to the petitioner. The Board at its 22nd meeting held on 14th March, 1984 ratified the termination of service of the petitioner. Under Clause 97, the proceeding of the Committee shall be placed before the Board of Directors at the next meeting. Admittedly, this was not done. Under Clause 97, Board of directors may delegate any of their powers to Committees but such delegation must be specific. In the meeting held on 15th March, 1982 the Board of Directors constituted a committee of Directors. The Minutes of the proceedings of the Board of Directors held on 15th March, 1982 are, inter alia, as follows :- "in the context of the appointment of the Managing director and other Functional Directors, the Board decided that different committees and sub-committees constituted earlier for dealing with various functions should be dissolved and a committee of Directors was constituted to look after the affairs of the Corporation. It is decided by the Board that the Committee of : directors should be composed of : a) Chairman, b) Managing Director, c) Functional Directors. In addition to the aforesaid incumbents, such Board members/outside experts as may be available in Calcutta could be invited at the said Committee meetings to avail of their experience in relevant areas as may be required from time to time. In addition to the aforesaid incumbents, such Board members/outside experts as may be available in Calcutta could be invited at the said Committee meetings to avail of their experience in relevant areas as may be required from time to time. This arrangement will come into force with immediate effect. " 17. THEREFORE on and from 15th March, 1982, the Committee of Directors was constituted to look after the affairs of the Company. Prior to the constitution of the Committee of' Directors there were different committees and sub-committees who were empowered to deal with specific matters. The expression - "look after the affairs of the Company" is vague. It is not said that the business of the company shall be managed by the Committee of Directors and one of such businesses is specified in sub-clause (21) of Clause 92. To 'look after' means to supervise. It appears that the object was that the affairs of the Company would be supervised by the Committee of the Directors but the specific power given to the Board under the Articles or the Companies act, this must be exercised by the Board of Directors. In any event if the Committee of Directors takes any decision, such decision has to be placed in the next meeting of the board. The object is to get such decision ratified by the board immediately. Further even if a power can be delegated such delegated power cannot be delegated. If the committee of Directors has been delegated the power to terminate interms of Clause 92 (21), such power cannot be delegated to the Managing Director alone. It was after the Board approved the termination, the letter of termination could be issued by the Managing Director on behalf of the Board. The respondents did not comply with the provisions of the articles of Association in terminating the services of the petitioner. In the case of B. S. Minhas vs. Indian Statistical Institute reported in AIR 1984 SC 363 , the Supreme court after considering its previous decisions held that the Indian Statistical Institute, a society registered under the Societies Registration Act and governed by the Statistical Institute act, is an authority' within the meaning of Article 12 of the Constitution and they are bound to follow the bye-laws, if the bye-laws have been framed for the conduct of its affairs to avoid arbitrariness. The Statistical Institute cannot avoid the liability for not following the procedure prescribed by bye-law. It was further held by the Supreme Court that compliance with the bye-laws is necessary in the name of fair play 18. THE following facts would emerge from the file of the Managing Director and which would unmistakably demonstrate the manner in which the respondents proceeded in this matter. On 9th August, 1982, M. N. Roy, J. vacated the interim order in C. R. No. 1721 (W) of 1982. On 10th August, 1982, the Advocate-on-record of the respondents wrote a letter to the respondent no. 1 in the following terms : 19. THE said letter could not have been received by the managing Director before 10th August, 1982. A draft termination letter was also annexed. Thus before 10th, the Advocate-on-Record was requested to draft the letter of termination by the Managing Director. Immediately thereafter, a draft minute was prepared. The said draft minute is reproduced below with additions and deletions as found on the draft : "we have discussed the matter among ourselves and have gone through the history of the cases along with the relevant papers sent herewith. We agree with you that some deterrent action should be taken in respect of those three cases in the interest of the company. We, therefore, authorise you through delegation, as managing Director of the Corpn. to take appropriate action against these three cases of Unit National. We also affirm that considering the facts and circumstances of the cases and in view of the gravity of the situation, you can, if necessary, even go to the extent of terminating their services. Director Director Director Director. Since I was the investigating officer and expressed my views in the report of the investigation, i refrain from expressing any opinion in the matter as a Director. Sd /- K. K. Chatterjee. " 20. IT will be evident from the said draft that the Committee of Directors did not discuss the matter amongst themselves. They purported too have gone through the history of the cases along with relevant papers sent therewith. It appears that on the basis of the said draft the following minute was prepared on 7th August, 1982. " 20. IT will be evident from the said draft that the Committee of Directors did not discuss the matter amongst themselves. They purported too have gone through the history of the cases along with relevant papers sent therewith. It appears that on the basis of the said draft the following minute was prepared on 7th August, 1982. The aforesaid letter was forwarded to S. P. Mallick, jute Commissioner, A. K. Moitra, Chairman-cum-Managing Director, jute Corporation of India, S. K. Bhattacharya, Labour commissioner, M. P. Radhakrishnan, Chief Manager (Commercial division), State Bank of India and J. S. Chanana, Deputy general Manager, Industrial Development Bank of India. On 10th August, 1982, itself a reply came from the Jute Commissioner addressed to the Managing Director in the following terms : " With reference to your letter dated 10th August, 1982, I believe by virtue of his position the Managing director of N. J. M. C. is fully competent to take such disciplinary action as he deems appropriate in the interest of N. J. M. C". 21. THE contention that on 10th August, 1982 there was meeting of the Committee of Directors and in the said meeting a decision was taken to terminate the services of the petitioner cannot be accepted. The respondents proceeded in hot-haste. The minutes of the meeting of the Committee of directors allegedly held on 10th August, 1982 at 2 P. M. are as follows :- "minutes of the meeting of the Committee of the directors held on 10. 8. 1982 at 2 P. M. Present : -1. Shri A. B. Roy Chowdhury, Chairman. 2. Shri A. R. Choudhry, Managing Director. 3. Shri K. K. Chatterjee, Director (Technical. 4. Shri N. Mitter, Director (Marketing)5. Shri A. K. Biswas, Director (Finance. 6. Shri P. K. Johari, Director (Personnel. 7. Shri S. Mallick, Jute Commissioner, Director. The Chairman welcomed the Directors and state that in view of the urgency, the meeting of Committee of directors is called at short notice. The termination of services of Shri N. Kumar and shri R. L. Joshi of Unit : National. The Managing Director stated that he had already circulated the history of the above two cases to Chairman and Functional Directors. He had also written to other Directors stationed at Calcutta. He had only received a reply from Shri S. P. Mallick, Jute Commissioner, government of India and Ex-Chairman and Managing Director, NJMC. The Managing Director stated that he had already circulated the history of the above two cases to Chairman and Functional Directors. He had also written to other Directors stationed at Calcutta. He had only received a reply from Shri S. P. Mallick, Jute Commissioner, government of India and Ex-Chairman and Managing Director, NJMC. After discussion the Committee of Directors decided to terminate the services of Shri N. Kumar and Shri r. L. Joshi in terms and conditions of their service and Managing Director is directed to issue the letters of termination forthwith to them. Shri K. K. Chatterjee, director (Technical) refrains from expressing his opinion being investigating officer in case of N. Kumar. There being no other business, the meeting ended with a vote of thanks to the Chair. " 22. THE said meeting of the Committee of Directors was not properly held. Firstly, no notice indicating the Agenda of the meeting of the Committee of Directors has been produced. Secondly, the minute which was prepared on 7th August, 1982 did not mention regarding the termination of the services of the petitioner. It was suggested that appropriate disciplinary action as may be thought fit, may be taken against the petitioner and one R. L. Joshi Thirdly, the statement of the Managing Director that he had already circulated the history of two cases to the Chairman and functional Directors is not supported by evidence on record. On the contrary it would be evident from the records produced that the minute dated 7th August, 1982 was prepared by Mr. K. K. Chatterjee, Director and the other Directors signed the said minute as prepared. Fourthly, the note prepared on 21st July, 1982 was forwarded to the Directors stationed at Calcutta only on 10th August, 1982 and except the Jute commissioner no one replied to the said note. Although the jute Commissioner was shown to be present in the meeting allegedly held on 10th August, 1982 but it is unlikely that he was present in the said meeting as he had already expressed his views by a letter dated 10th August, 1982 to the managing Director. This goes to show that the Minutes of the meeting dated 10th August, 1982 were prepared to make out a case. This goes to show that the Minutes of the meeting dated 10th August, 1982 were prepared to make out a case. Fifthly, it is not evident from the records whether apart from the Jute Commissioner the said note dated 21st July, 1982 as forwarded by the letter dated 10th August, 1982 was received by the other four persons mentioned in the said letter dated 10th August, 1982. Last but not least the minute book of Committee of directors which has been produced, shown that after the committee of Directors was appointed on 15th March, 1982, the first meeting was held on 10th August, 1982. It is suprising that the Committee of Directors did not even meet on any earlier occasion. It is also very significant that the signature of none of the Directors stated to be present in the said meeting appears against the respective names. In all meetings of the Committee of Directors excepting the meeting held on 10th August, 1982, the Secretary was in attendance. It is not known why in this particular meeting the Secretary was not present. In some of the minutes it is found that the Directors who were present also signed the minutes e. g. 4th and 5th meetings of the Committee of the Directors. 'the manner in which the Minute Book of the committee of Directors has been kept raises a serious doubt about the meeting allegedly held on 10th August, 1982. 23. IN the said meeting the Managing Director was directed to issue the letter of termination forthwith but the letter of termination was ready before the decision was taken as would be evident from the said letter of the Advocate for the respondents who drafted the letter of termination. Thus before any resolution was formally adopted in the meeting, if at all held on 10th August, 1982, the decision had already been taken by some of the members of the Committee of directors to terminate the services of the petitioner as disciplinary measure. Although the action against the petitioner was by way of disciplinary measure the Committee of Directors did not consider it necessary to give any hearing to the petitioner to explain his conduct. If any decision was taken on 10th August, 1982 by the Committee of Directors, this was not approved by the Board even by circulation. Although the action against the petitioner was by way of disciplinary measure the Committee of Directors did not consider it necessary to give any hearing to the petitioner to explain his conduct. If any decision was taken on 10th August, 1982 by the Committee of Directors, this was not approved by the Board even by circulation. This ought to have been placed in the next meeting of the Board of Directors which was not done. Strangely enough it was placed before the 22nd meeting of the Board of Directors held on 14th March, 1984, although after August, 1982 and before 14th March, 1984 about 10 meetings of the Board were held. 24. THE Board of Directors in its meeting held on 14th march, 1984 purported to ratify the termination of the services, inter alia, of the petitioner. From the said minute which is in following terms, it is found that the Board of Directors had some doubt whether such ratification was necessary, but ultimately they ratified the action of Committee of Directors. 22. 7 Ratification of termination of services of Shri nirmal Kumar and Shri R. L. Joshi of Unit : national. The Committee of Directors in its Meeting held on 10. 8. 82 had approved the termination of services of Shri Nirmal Kumar and Shri R. L. Joshi of Unit : National and the Managing director was directed to issue the Letter of termination. A copy of the Minutes of the Meeting is enclosed. A doubt has been raised whether the ratification of the decision of Committee of Directors by the Board is necessary. The Board considered the matter in details and after discussions approved and ratified the decisions of the Committee of Directors held on 10. 8. 82. "resolved that the decision of the termination of services of Shri Nirmal Kumar and Shri r. L. Joshi of Unit : National taken by the committee of Directors in its Meeting held on 10. 8. 82 be and is hereby approved and the actions taken by the Managing Director be and is hereby ratified with retrospective effect. " If the order of termination is void, the retrospective effect cannot make it valid. No reason is given why the ratification was not made in the next meeting of the Board as enjoined by Article 97. 25. 82 be and is hereby approved and the actions taken by the Managing Director be and is hereby ratified with retrospective effect. " If the order of termination is void, the retrospective effect cannot make it valid. No reason is given why the ratification was not made in the next meeting of the Board as enjoined by Article 97. 25. ALL these facts would go to show that the Committee of the Directors did not act in compliance with the principles of justice and fair play. 26. THE next contention of the petitioner is that the termination in this case is violative of Articles 14 and 16 of the Constitution the specific case of the petitioner is that while the three Officers were retained the petitioner's services were terminated on the ground that his services were no longer required. In paragraph 36 of the petition the petitioner has specifically alleged that three officers e. g. D. D. Bervey, S. K. Sarkar and P. K. Ghosh, who were drawing salary of more than Rs. 2,000/- and who were appointed before the vesting were retained in services. The said three Officers as well as the petitioner are executive Officer. None of the Officers holding the same rank of the petitioner was picked up for the purpose of termination by the Contract Clause. It is alleged that the petitioner had only been picked up for the purpose of termination. In the Affidavit-in-Opposition the respondents have stated that the services of the said three Officers were required and as such the question of termination of their services did not arise. Petitioner's services were not required by the Company so his services were terminated in accordance with the Clause 5 of the terms and conditions of his service as stated in his letter of appointment. The respondents have not disclosed in the affidavit nor does it appear from the records why petitioner's services were not required. It may be mentioned that Mr. Dipankar Gupta, learned Counsel for the respondents, has submitted that the only ground of termination is that the services of the petitioner were not required by the Company and Clause 5 of the letter of appointment was invoked. In the public employment the employer cannot terminate the services of a confirmed employee which concerns his livelihood without assigning the reason therefor. In the public employment the employer cannot terminate the services of a confirmed employee which concerns his livelihood without assigning the reason therefor. Such termination must be based on objective factors and not on the subjective satisfaction of the employer. Why the services of the petitioner were no longer required should have been disclosed. But that has not been done. Reliance is placed in the case of the Manager, Government Branch Press vs. D. B. Belliappa reported in AIR 1979 SC 429 . In that case belliappa was appointed temporary junior compositor in the government Branch Press. The employment was temporary and was to continue until further orders. The Branch Manager served a show cause notice dated 29th December, 1966 on belliappa as to why disciplinary action should not be taken against him as per Rules as he had taken out of the press some copies of the Ballot papers relating to the Director's election of Coorg Cardamom Co-operative Societies, Marcare. On 3rd January, 1967 an order was served on Belliappa terminating his services. Belliappa instituted a writ petition in the High Court of Mysore with a prayer to quash the order terminating his service. The Manager filed a counter-affidavit stating that his appointment was purely temporary governed by the conditions in the contract of service, and was liable to be terminated without notice at any time. Belliappa by a Supplementary Affidavit alleged that three other persons who were appointed, as temporary junior compositors subsequent to the petitioner's appointment had been retained and continued in the service, while a discriminatory treatment was meted out to him without any reason. The High Court allowed the writ petition holding that the impugned order contravenes the guarantee of equal treatment embodied in article 16 of the Constitution. The Government moved before the Supreme Court by Special Leave. Supreme Court took note of the fact that the service of Balliappa was terminated without assigning any reason albert in accordance with the conditions of his service while three employees, similarly situated junior to Belliappa in the same temporary cadre had been retained. The Supreme Court observed : "the protection of Articles 14 and 16 (1) will be available even to such a temporary government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similarly circumstanced. The Supreme Court observed : "the protection of Articles 14 and 16 (1) will be available even to such a temporary government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similarly circumstanced. It is true that the competent authority had the discretion under the conditions of service governing the employee concerned to terminate the latter's employment without notice. But such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates policy is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and 16 (1. " 27. THE Supreme Court also observed : " Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service., it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting perhaps, in cases analogous to those covered by Art. 311 (2), Proviso (C), the authority cannot withhold such information from the Court on the lame excuse, that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the Rules governing the conditions of the service. "the giving of reasons" as Lord denning put it in Breen vs. Amalgamated Engineering Union (1971) 1 All ER 1148 is one of the fundamentals of good administration" and to recall the words of the Court in khudi Ram vs. State of West Bengal (1975) 2 SCR 832 at P. 845; ( AIR 1975 SC 550 at P. 558) in a Government of laws "there is nothing like unfettered discretion immune from judicial reviewability. " The executive, no less than the judiciary, is under a general duty to act fairly. Indeed fairness founded on reason is the essence of the guarantee epitomised in Arts. 14 and 16 (1. " 28. THE Supreme Court also noted the contention of the government that Belliappa had entered into the contract of service on the terms of employment offered to him. Indeed fairness founded on reason is the essence of the guarantee epitomised in Arts. 14 and 16 (1. " 28. THE Supreme Court also noted the contention of the government that Belliappa had entered into the contract of service on the terms of employment offered to him. One of the terms of that contract, embodied in the letter of his appointment is that his service was purely temporary and was liable to termination at the will and pleasure of the appointing authority, without reason and without notice. Having willingly accepted the employment on terms offered to him, the employee cannot complain against the impugned action taken in accordance with those mutually agreed terms. Supreme Court observed : "this argument is wholly misconceived. It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to Government servants. Secondly, even with regard to private employment, much of it has passed into the fossails of time. The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of 18th Century and the first half of the 20th Century which rationalised the employer's absolute right to discharge the employee. "such a philosophy" as pointed out by K. K. Mathew, J. (vide his treatise "democracy, Equality and Freedom" page-326) of the employer's dominion over his employee may have been in tune with the rustic simplicity of by gone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers". To bring it in time economic conditions and more of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment to whom the constitutional protection of Arts. 14, 15, 16 and 311 is available. The argument is therefore overruled. " 29. RELIANCE was also placed on the decision of the Supreme court in the case of Uma Charan vs. State of Madhya Pradesh reported in AIR 1981 SC 1915 in support of the contention that unless the reasons are disclosed it can not be said how the authority proceeded to decide the matter in issue before them. There, the Supreme Court was considering the supersession of a member of the State Police Service by the Selection Committee. There, the Supreme Court was considering the supersession of a member of the State Police Service by the Selection Committee. The Supreme Court in that case followed its earlier decision in the case Union of India vs. Mohan Lal Kapoor reported in AIR 1974 SC 87 and quoted the following passage from the said judgment : "in the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Articles 14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been co-related to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is not enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. " 30. THE principles laid down in the aforesaid decisions would apply to the facts of this case which are eloquent. The discretion has not been exercised in accordance with reasons and fair play. Even if it is the discretion of the employer to retain or not to retain any employee in service, such discretion is subject to judicial scrutiny. Further the charge of hostile discrimination has not been dispelled by the respondents. The theory of will and pleasure of the appointing authority or the theory of termination without reason or notice no longer holds the field nor does it apply to persons in public employment. Further the charge of hostile discrimination has not been dispelled by the respondents. The theory of will and pleasure of the appointing authority or the theory of termination without reason or notice no longer holds the field nor does it apply to persons in public employment. The termination of the services of the petitioner cannot therefore be sustained on the facts of this case. It is next contended that the decision of the Committee of Directors is vitiated by reason of the presence of one mr. K. K. Chatterjee, a Director, who investigated into the complaints made by the petitioner. He was biased against the petitioner. This contention is not without substance. As indicated earlier it was K. K. Chatterjee who was appointed to investigate. He submitted his report holding that the petitioner failed to prove his allegations against the Executive director, B. K. Basu. The said K. K. Chatterjee prepared the minute dated 7th August, 1982 suggesting disciplinary action against the petitioner. He had certain views against the petitioner and as such he should not have associated himself with the initiation of the move for termination of petitioner's services. Reliance is placed on a decision of the Supreme Court in the case of A. K. Kraipak and Ors. v. Union of India and Ors. reported in A. I. R. 1970 S. C. 150 for the proposition that the person who was interested in the proceeding should not have participated in the final decision. Supreme Court observed : "it is unfortunate that Naqushbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered as the most appropriate person to be in the Selection Board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member of the Selection Board. He was one of persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the Committee when his name was considered. He was one of persons to be considered for selection. It is against all canons of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the Committee when his name was considered. But then the very fact that he was a member of the Selection board must have had its own impact on the decision of the Selection Board. Further admittedly he participated in the deliberations of the Selection Board when the claims of his rivals particularly that of Basu was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the selection Board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the interest of naqushbunds to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safeguarding his position while preparing the list of selected candidates. " 31. THE next contention which calls for determination is whether termination of the petitioner's services is termination simpliciter as contended by the respondents or the termination is by way of disciplinary action, and malafide. It is therefore necessary to set out the facts in detail which are eloquent. What is apparent is not real and the reality of the situation will be borne out from those facts. 32. THE petitioner was working as a Purchase Manager (Jute)since his appointment on 8th October, 1976. He was confirmed on 15th November, 1976. After completion of the probationary period he was also allowed an increment of Rs. What is apparent is not real and the reality of the situation will be borne out from those facts. 32. THE petitioner was working as a Purchase Manager (Jute)since his appointment on 8th October, 1976. He was confirmed on 15th November, 1976. After completion of the probationary period he was also allowed an increment of Rs. 100/- but in January, 1982 the then Executive Director made the following order : "in order to utilise the expertise, experience and qualifications of the Managerial personnel in various discipline in the best interest of the Unit, some reorganisation has already been made and in that process keeping in view of your technological background, 'it has been decided to transfer you to the Mills as an assistant Manager in No. 1 Mill, with immediate effect. Your terms and conditions of service will remain unaltered. " From the Purchase Manager (Jute) the transfer to the post of Assistant Manager was undoubtedly a demotion in status and the petitioner protested against the said order by his letter dated nil Which is to the following effect : "your order referred to above asking me to hand my charges over to the Commercial Manager and report as an Assistant Manager, Mill No. 1 to the Senior Manager, has come as a bolt from the blue on me. Ever since my joining the National Co., presently the largest unit of N. J. M. C. Ltd. I have been serving as the purchase manager (Jute) to which was added the additional responsibility of the stores purchase for the last couple of months. I would like to bring the fact to your notice that my appointment in this Unit was directly as Manager i. e. Purchase Manager and not as an Assistant Manager. In my bolt-less career I have never served under a Manager here and have always been responsible directly either to the Chairman or Chief Executive/executive Director as such. Notwithstanding my technical expertise which you have alluded to in your order. I have also held for nearly a decade and a half now, offices with specialisation in commercial as well as administrative management. Hence, I treat your order as a grave injustice inflicted on me, which I am afraid would cast on otherwise shade unbecoming for my dignity and reputation. I have also held for nearly a decade and a half now, offices with specialisation in commercial as well as administrative management. Hence, I treat your order as a grave injustice inflicted on me, which I am afraid would cast on otherwise shade unbecoming for my dignity and reputation. For the sheer sake of discipline, however, I have handed over the charges duly to your nominated person and assumed my new office though no place as per your directive and that too on a holiday. Moreover, on my joining at Mill No. 1, I found to my extreme surprise a circular signed by yourself wherein I was made responsible to the Manager of the said Mill (personally, however, I nave no contention against him. Inspite of giving you my peace of mind in person on this issue, i find to my utter dismay that no redress has been initiated from your end till date, which compels me to register my protest in black and white for meant to be kindly forwarded to the Managing Director and the Chairman respectively for necessary action. " 33. ON 17th January, 1982 the Executive Director in his letter to the petitioner stated as follows : "further to our official order dated 7. 1. 82, you were advised to hand over the charge to Sri A. N. Mitra, commercial Manager and at the time of handing over the charge, you handed over only one file of Jute Department and one file of Modernisation/renovation Scheme to Sri A. N. Mitra, Commercial Manager. Moreover, you mentioned to Sri Mitra in presence of the undersigned that all the files were kept in the department. But when the undersigned was leaving the office around 7 p. m. it was an utter surprise to note that you collected six files (including cover, files) from calcutta Office and kept them in the car and you went again upstair and came back with another file. The undersigned pointed out to you that you should have taken out all such files without the knowledge of Sri A. N. Mitro but you replied that those were all your personal files. It is a general custom/system that at the time of handing over the charges you should have mentioned/shown the papers to Sri A. N. Mitra, Commercial Manager, before taking out all these files which are Government documents. It is a general custom/system that at the time of handing over the charges you should have mentioned/shown the papers to Sri A. N. Mitra, Commercial Manager, before taking out all these files which are Government documents. But unfortunately you have not been in this case. On 15. 1. 82 it have been reported by Sri R. Santhalia, officer of Jute department that Daily Jute Purchase registers for 1978 and 1979 which used to be signed by the then Chairman, Financial Controller and Purchase manager was not available in the office and according to them, as well as it was in the knowledge of the undersigned that these Registers used to be maintained and kept by you only. Therefore, it appears while you have taken out your so-called personal files, you have taken out these two registers which is highly irregular in the part of a Managerial Staff. You are, therefore, advised to immediately hand over these two Registers to the Senior Manager, Sri a. R. Mukherjee for his onward transmission to Calcutta office. " (underlined by me. 34. IT reply to the said letter dated 17th January, 1982 the petitioner addressed a letter dated 16th February, 1982 to Mr. B. K. Basu, the Executive Director. In the said letter he has, inter alia, stated that the Authorised Body terminated the service of the said Mr. B. K. Basu and he moved this Hon'ble Court. On 4th May, 1981, the said Executive director was re-instated with the approval of the Department of Textiles. The said B. K. Basu allegedly told the petitioner that he would be taught a good lesson as he doubted that the petitioner might be instrumental to the termination of his service. He also denied the allegations made in the said letter dated 17th January, 1982. it was stated that he only took his own personal files and all the registers were lying in the department and the allegations made in the said letter are malicious. It was, inter alia, further stated in the said letter as follows :- "it may be noted here that you advised me in the month of October, 1981, to sell certain items of scraps i. e. drums etc. It was, inter alia, further stated in the said letter as follows :- "it may be noted here that you advised me in the month of October, 1981, to sell certain items of scraps i. e. drums etc. worth heavy amounts without giving advertisement in the newspaper and I did not agree to the same but gave advertisement in several newspapers and also hung up the sale tender on the Notice Board. You also asked me to sell waste yarn in jute godown and gunny cuttings in Mill No. 3 by private negotiations with your nominated parities but I did not agree to the same, I understand the said stock is still existing. You also asked me to sell 100 MT of Mill caddis on the basis of quotation of your nominated parties but I did not agree and followed the normal procedure of hanging up a sale tender on the notice board and sending the intimation for sale to several enlisted qenuine buyers. In the circumstances stated above, you are requested to withdraw your direction to hand over the two Registers to Shri A. R. Mukherjee. You are also requested to call back the transfer order and put me in my original position. " on 17th February, 1982 a report was sent by the senior Manager (A. R. Mukherjee) to the Executive Director (B. K. Basu) that the petitioner was not reporting for duty since 15th February, 1982. He further recorded : "we wish to put on record that this is not expected from an officer of Assistant Manager's rank". . On 18th February, 1982 the Manager, Mill No. 1 (S. K. Barat) intimated to the Senior Manager that the petitioner was not attending his duties from 15th February, 1982. He went out of the Mill Quarter on 14th February, 1982, being his off-day. He further intimated as follows :- "i have been reported that Sri Kumar has come back to the compound last night but he did not attend his duties this morning and neither he has applied/approached nor sent any information for any leave. " 35. ON 18th February, 1982 the said Executive Director wrote a letter to the petitioner. He further intimated as follows :- "i have been reported that Sri Kumar has come back to the compound last night but he did not attend his duties this morning and neither he has applied/approached nor sent any information for any leave. " 35. ON 18th February, 1982 the said Executive Director wrote a letter to the petitioner. In the said letter it was stated that the transfer of the petitioner was done "in the best interest of the Company pursuant to certain re-organisations and in good faith, and also in accordance with the terms and conditions" of the petitioner's service. He further stated : "when you were in the Head Office you were virtually and to all intendts and purposes in the rank of Assistant Manager and receiving all the benefits including increments LTA etc. as applicable to an Assistant Manager". 36. IT was further stated as follows : inspite of the above, your letter dated 16. 2. 82 making allegations which are totally incorrect and the same has been made with motive and for ulterior purpose. This should not have been done by a man of your position, holding the post of Assistant Manager. We deny and dispute your statements which are contrary to office records as what has been stated hereinbefore. " On 18th February, 1982 the Medical Officer of the Respondent no. 1 sent a report to the Senior Manager to the following effect : " I examined Mr. N. Kumar (Asstt. Manager, Mill-I)to-day who is a chronic diabetes and found the current blood Sugar (P. P.) report is 204, which is a little less than before and Blood Pr. is about normal (130/80 mm of Hg. I told him to continue the drugs as advised before. I did not advice him for rest as he is improving. This is your information please. " 37. ON 19th February, 1982 the Medical Officer of the Company sent a letter to the Senior Manager informing him that he examined the petitioner and found him much better than before and prescribed some medicines and advised him to join his duty. 38. ON 19th February, 1982, the Senior Manager sent a Confidential letter being leter No. SM/44/82-66 to the Executive Director enclosing the said letter of the Medical Officer. 38. ON 19th February, 1982, the Senior Manager sent a Confidential letter being leter No. SM/44/82-66 to the Executive Director enclosing the said letter of the Medical Officer. In the said confidential letter the Senior Manager, inter-alia, stated as follows :- " Though Sri N. Kumar is staying in the Mill compound since 17th February, night (As per Mr. S. K. Barat's note dated 18. 2. 82 - copy enclosed for your ready reference), he is not attending his duties. Moreover, when our Mill Medical Officer did not grant him leave it appeared that Sri Kumar wanted to avoid his work for the reasons best known to him and it is felt that an officer of his status should not behave in the manner as this was creating a precedent to the Junior staff members and this act on the part of Sri N. Kumar was subversive of discipline and called for immediate action (underlined by me. By a letter dated 19th February, 1982 the Senior Manager informed the Executive Director as follows : "i enclose herewith a true copy of a letter sent by Sri N. Kumar addressed to the Manager, Mill No. 1 dated 18. 2. 1982 (but was sent by Sri N. Kumar on 19. 2. 1982 at 9 A. M.) which speaks for itself. He also enclosed a photostat copy of a medical certificate from an outside medical practitioner, Dr. S. K. Batabyal, m. B. B. S. recommended for rest for one week. This morning Sri Kumar again sent for Doctor A. K. Hore around 9. A. M. and told him that as he was not feeling well as such he should grant him sick leave. But Dr. Hore after examining, told him that he should join his duties, and he did not grant him any leave (Dr. A. K. Hore1s letter dated 19. 2. 82 enclosed herewith for your ready reference. In my opinion, that this is an afterthought as Sri n. Kumar did not get medical leave from the Company's mill Medical Officer, so immediately he sent the above application by putting previous date to establish medical/sick leave, it is curious to note than Sri Kumar sent the photostat copy instead of original medical certificate along with his application which amply proves that he had something underneath his sleeves. I have already informed you my opinion in Letter no. I have already informed you my opinion in Letter no. SM/44/82-66 that the way Sri Kumar is behaving is behaving is not at all expected from a person of an Assistant Manager's rank, as this sort of behaviour is bound again that disciplinary action should be taken immediate1y. " (underlined by me. 39. ON 21st February, 1982, S. K. Barat, Mill Manager No. 1 wrote the following letter to the petitioner :- "yesterday (20. 2. 82) after-noon the undersigned asked you to come to your duties on Sunday, the 21st february, 1982, as it was felt necessary to bring you on your off-day i. e., Sunday. the 21st February, 1982, for certain Companys' important work in regard to Modernisation and Rehabilitation Scheme, Where, the Executive director would be discussing with all the Senior officers regarding the Plan/programme and Progress on the above subject. You were also further told that you would be given this day-off, on Monday, the 22nd February, 1982, and you never raised any objection to my instruction also did not mention your inability/difficulty to attend your duties on Sunday the 21st February, 1982. But on fortunately, inspite of my instruction you disobeyed my order and instead of attending to your mill duty as instructed you left the compound without taking prior permission. This amounts to gross misconduct on your part and we wish to put his own record, as this is not excepted from an officer of the rank and status of assistant manager. " 40. THE petitioner replied to the said letter on 25th February, 1982. He stated in the said letter that he made representations to the executive Director stating facts and making grievance for his transfer. He denied the allegations made in the letter of the said Mill Manager and also stated that the said Mill Manager acted as an instrument of the said executive Director and made allegations against him knowing fully well that the said allegations were false. On 2nd march, 1982 the Senior Manager wrote a letter to the executive Director complaining that the petitioner was not attending the Mill since 1st March, 1982. He further stated in the letter as follows :- "sri Kumar left the Will compound on 28. 2. 82 morning, his usual off-day, and did not come back to his mill quarters so far. He further stated in the letter as follows :- "sri Kumar left the Will compound on 28. 2. 82 morning, his usual off-day, and did not come back to his mill quarters so far. We have not been informed either by him or by his family members staying inside the mill campus as to why Sri Kumar is not attending his duty and they have not informed us where Sri Kumar is staying at present. If an Assistant Manager of a Mill goes out of the compound without informing or at least by keeping a message regarding his place of destination and approximate time of return to his superior, how possibly the mill discipline can be maintained and moreover the way Sri N. Kumar is creating a precedent no management can accept such act in the interest of smooth running of the administration. Moreover, this may kindly be noted that Sri N. Kumar started this game toy not reporting his duties after his usual day-off since 15th February, 1982, which was informed to you earlier vide our Letter No. SM/51/82-65 dated 17. 2. 82 addressed to you. " On 3rd March, 1982 Senior Manager wrote to the petitioner that the petitioner had keen absenting himself without leave or intimation whatsoever on and from 1st March, 1982. It is also alleged in the said letter that the petitioner had been staying overnight outside the mill premises for three days without prior permission from his superior. The petitioner was therefore directed to resume his duty immediately and submit a satisfactory explanation stating reason for his "unauthorised absence" on and from 1st March, 1982 and for "staying overnight outside the mills premises". On 3rd March, 1982 the Senior Manager wrote a letter to the Executive Director that the petitioner neither came back to his quarter nor sent any intimation regarding his whereabouts, and a letter has been written to the petitioner asking his explanation. 41. ON 4th March, 1982, the petitioner was informed by the said Executive Director, B. K. Basu as follows :- " Reference your letter dated 16. 2. 82 addressed to the undersigned, the management has decided to hold an investigation in this matter. You are, therefore, advised to report to Shri H. C. Datta, Financial Controller, at Head Office on Monday, the 8th March, 1982 at 10. 00 A. M. sharp, along with your relevant papers. 2. 82 addressed to the undersigned, the management has decided to hold an investigation in this matter. You are, therefore, advised to report to Shri H. C. Datta, Financial Controller, at Head Office on Monday, the 8th March, 1982 at 10. 00 A. M. sharp, along with your relevant papers. Senior Manager, Mills, has been advised to arrange for your transport. " (underlined by me. 42. ON 5th March, 1982 the petitioner was informed that the Board, of Enquiry would be constituted by the Financial controller as the Chairman, Secretary of the Company and chief Personnel Officer as the members. The petitioner immediately wrote a letter to the Executive Director that he might be supplied with a copy of the decision along with reasons for the investigation, as without copy it was not possible for the petitioner to attend the investigation on 6th March, 1982. The petitioner was informed by the Executive Director that the question of forwarding a copy of the management's decision did not arise. It was further stated in the said letter "to ascertain the veracity of your alleged compliants, the management has directed the financial Controller, as Chairman of the Board of Enquiry to make a prone into the allegations as alleged by you in your letter dated 16. 2. 82. " By another letter the Financial controller directed the petitioner to appear before him with relevant documents on 8th March, 1982. On 10th March, 1982, the petitioner moved this Court against the order of his transfer as well as other orders and also for a writ of quo warranto against the said B. K. Basu, Executive Director when M. N. Roy, J. issued a Rule being Civil Rule no. 1721 (W) of 1982 and directed status-quo with the direction that investigation would go on bur final order should not be given effect to. On 23rd March, 1982 the petitioner wrote a letter to the Chairman of the Board of Investigation wherein he has stated, inter alia, as follows : - "now it transpires from the Affidavit-in-Opposition affirmed on behalf of the Corporation by Sri A. R. Mukherjee, Senior Manager, Mills that by a letter dated 22nd February, 1982 Sri Basu asked the Managing Director for formation of Board of Investigation and on 2 6th february, 1982, the Mnaging Director endorsed on the said letter approving the same. The Mnaging Director is not the 'management' but Board of Directors is, as such the order of investigation is not the order of the 'management'. Further, it is apparent, that Sri basu has formed the body of the investigation consisting of his subordinates. The said formation is against cannons of justice as the allegations are against Sri basu. " On the same day, he also wrote a letter to the Managing director stating therein that the Chairman of the Board of Investigation did not accept the written representation of the petitioner and accordingly he was filing an advance copy of the reply with intimation to the Managing Director. 64. It appears that a letter was written on 9th March, 1982 by the Senior Manager to the petitioner and in reply to the said letter the petitioner also addressed a letter to the senior Manager dated 3rd April, 1982. The Senior manger by his letter dated 2 8th April, 1982 informed the petitioner as follows :- " You are in definance of the rules of the Company and disregarding orders of the superiors acting in your own way and your one wrong leads to another and it is evident from your letter under reference that you are now committing wrongs to cover up other wrongs committed by you. However, since you are not able to read between the lines, you are mixing up things yourself and thereby pushing the horizon of truth beyond your reach. You are yourself mixing up things which are very unfortunate. We reiterate that the deduction of salary as intimated to you in our letter no. SM/43/82-83 dated 9th march, 1982 is quite in order and as such we are unable to comply with your request as made in your said letter. In conformity with the procedure prevailing in the industry including our Company, the Medical Officer has submitted his report to the authority which has been communicated to you. We confirm that you are in the habit of absenting yourself without leave or intimation and do not regulariseyour absence in the proper manner which is an offence. The allegations made in your letter which are contrary to the records of the Company and to the letters writen to the Company are denied and disputed. " (Emphasis supplied) 43. We confirm that you are in the habit of absenting yourself without leave or intimation and do not regulariseyour absence in the proper manner which is an offence. The allegations made in your letter which are contrary to the records of the Company and to the letters writen to the Company are denied and disputed. " (Emphasis supplied) 43. BY a letter dated 6th May, 1982 the petitioner replied to the said letter of the Senior Manager dated 28th April, 1982 in the following terms :- " You are in the habit of evading proper reply to proper issue. Your allegation of defiance of the rules of the company and disregarding orders of the superiors is maliciously false. Your answer is vague. You have falsely alleged that the report of the medical Officer has been communicated to me. and the matter ance with Sri B. K. Basu. However, 7 make it clear that I shall have co take recourse to law against you personally for your malicious conduct of deduction, two days' salary illegally and I reserve my said right according to law. " 44. IN reply to the said letter of the petitioner dated 6th May, 1982 the Senior Manager who became the Chief mill manager wote to the petitioner in his letter dated 2nd June, 1982 as follows : -. "we are at a loss to understand how a subordinate officer could write such an acrimonious, malicious motivated and highly insolent letter to his superior officer. All the expressions couched in your said letter a re machiavellian in spirit as well as in form. We note that you are not coming to your duties day after day and month after month while you have been seen moving around in many places regularly. You have left your mill quarter and staying outside without giving any intimation to the management as required. You have taken away important files and registers of the Unit and have not returned the same to the undersigned as instructed earlier. You are deliberately indulging in all sorts of activities bordering on grass indiscipline including in subordination and wilful disobedience and particularly by your certain atrocious deeds you are trying to malign the management and thereby acting against the management. You are writing letter after letter full of glaring lies and reckless remarks which are considered to be highly derogatory toe the management. You are writing letter after letter full of glaring lies and reckless remarks which are considered to be highly derogatory toe the management. You are, therefore, finally advised to restrain yourself and stop all subversive activities immediately and also join your duties without further delay, otherwise the management will be compelled to take steps in accordance with law. " On 13th June, 1982 the petitioner replied to the said letter denying the allegations made by the Chief Mill Manager in his letter dated 2nd June, 1982. He stated that he was on leave on medical ground and he had applied for leave with medical certificate from Dr. B. R. Sengupta and Dr. Samir Banerjee, both of them were Preidency Surgeons. He also denied that any file or register of the Unit had been taken away by him' and have not been returned. He asked the chief Mill Mnager to furnish a copy of the Instruction in this regard. He also requested to arrange for his salary since March, 1982. 45. BY the Order passed by M. N. Roy, J. one K. K. Chatterjee, director (Technical) was appointed as Investigating officer and the Board of Investigation was dissolved. The inquiry took place before the said K. K. Chatterjee on 23rd june, 1982 and concluded on the same day. The said K. K. Chatterjee submitted a report to the Managing Director on 23rd June, 1982 istsle holding that the petitioner has failed to prove the allegations made by him in his letter dated 16th February, 1982 and the allegations have not been established. 46. AT this stage it may be mentioned that the said investigation was initiated by the Executive Director in terms of his confidential letter dated 22nd February, 1982 addressed to the Managing Director. The said letter is reproduced below : The Managing Director's file has been produced. It appears from the date-stamp on the said letter that the said letter was received in the office of the Managing director on 7th April, 1982. On the said letter itself the type note of the Managing Director appears which is unsigned. The signature of the Managing Director should have appeared on the said letter itself. The decision of investigation was not taken by the Board or Committee of directors but by the Managing Director himself. It is not apparent from the records who directed how the Board would be constituted. The signature of the Managing Director should have appeared on the said letter itself. The decision of investigation was not taken by the Board or Committee of directors but by the Managing Director himself. It is not apparent from the records who directed how the Board would be constituted. It appears that the Executive Director himself constituted the Board. The grievance of the petitioner is not unfounded. Although the allegations were against the Executive Director, he himself constituted the Board. 47. IT appears from the records that the following note was prepared on 7th August, 1982 which was signed by the directors on different dates :-"we have gone through the history of the case along with the relevant papers sent herewith. We agree that appropriate disciplinary action as may be thought fit may be taken against Sri R. L. Joshi and Sri N. Kumar. (underlined by me. I have already indicated how the decision was taken to terminate the services of the petitioner and how the letter of termination was issued. It appears from the records that a Circular dated 21st July, 1982 was prepared by the Managing Director for being sent to all Directors resident in the city of Calcutta. The said Circular was sent to the Chairman-cum-Managing director of the Jute Corporation of India, Jute commissioner, Labour Commissioner, General Manager (Commercial Division), State Bank of India and Deputy general Manager, Industrial Development Bank of India on 10th August, 1982. The material part of the said circular is as follows :-The facts are eloquent. The background is crystal clear. The attending circumstances leading to the termination of the services of the petitioner amply demonstrate the real motive behind the termination. In the case of Chartered bank vs. Employees' Union reported in AIR 1960 SC 919 the supreme Court emphasised : ". . . . . . . . . The form of the order of termination is not conclusive of the true nature of the order, for it is possible that the form may be merely a camouflage for an order of misconduct. . . . . . . . . The form of the order of termination is not conclusive of the true nature of the order, for it is possible that the form may be merely a camouflage for an order of misconduct. It is, therefore, always open to the Tribunal to go behind the form and look at the substance and if it comes to the conclusion, for example, that though in form the order amounts to termination simplicitor, it in reality cloaks a dismissal for misconduct, it will be open to it to set it aside as a colourable exercise of the power. " 48. IN Murgan Mills reported in AIR 1965 SC 1496 the Supreme Court held. . . . . "the requirement of bona fides was essential and if the termination of service was a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial, tribunal would have the jurisdiction to intervene and set aside such termination. The form of the order in such a case is not conclusive and the tribunal can go behind the oder to find the reasons which led to the order and then consider for itself whether the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice. If it came to the conclusion that the termination was a colourable exercise of the power or was a result of victimisation or unfair labour practice it would have the jurisdiction to intervene and set aside such termination. " In Samsher Singh's case reported in AIR 1974 SC 2192 the Supreme Court ruled : "the form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving' stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. That is easitly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside. " 49. In such a case the simplicity of the form of the order will not give any sanctity. That is easitly what has happened in the case of Ishwar Chand Agarwal. The order of termination is illegal and must be set aside. " 49. THE Supreme Court considered all the aforesaid judgments in a recent decision in the case of Gujarat Steel tubes Limited vs. Gujarat Steel Tubes Muzdoor Sabha and Ors. reported in AIR 1980 SC 1896 . There the question was whether the termination was simple termination or punitive discharge. There the Supreme Court observed that the order of discharge has to be scanned to find out whether it is punishment or innocent termination". "neither judicial naivete nor managerial ingenuity will put the Court off the track of truth. " The Supreme Court also observed that an isolated reading of the formal notice terminating the services may reveal no stigma, no penalty, no misconduct but on a close scrutiny it would appear that it is punitive discharge. Supreme Court after narrating the fact chronologically held : "this insult and injury apart, the orders of termination were chronicled in separate proceedings. The formal order was like a decree, the grounds recorded contemporaneously were like the judgment, to use court vocabulary. It was obvious that the foundation for the termination was the catena of charges set out by the Management. The true character of the order could not be hidden by the unfair device of keeping a separate record and omitting it from the formal communication. Law is not such an ass as yet and if the intent and effect is damnatory the action is disciplinary. " 50. THE Supreme Court further observed : "first, we must decide whether the order of termination was a punitive discharge or a simple discharge; here we reach the dilemma of the law for discovering unfailing guidelines to distinguish between discharge simpliciter and dismissal sinister. The search for infalliable formulae is vain and only pragmatic humanism can help navigate towards just solutions. We have earlier explained that from Dhingra's case ( AIR 1958 SC 36 ) to Shamsher Singh's case ( AIR 1974 SC 2192 ), the law has been dithering but some rough and ready rules can be decocted to serve in most situations. The search for infalliable formulae is vain and only pragmatic humanism can help navigate towards just solutions. We have earlier explained that from Dhingra's case ( AIR 1958 SC 36 ) to Shamsher Singh's case ( AIR 1974 SC 2192 ), the law has been dithering but some rough and ready rules can be decocted to serve in most situations. Law in this area, is a pragmatist, not a philologist, and we have set out the dual diagnostic tests applicable in such oases. " The Supreme Court proceeded to hold : "in our opinion, the facts of the case before us speak for themselves. Here are workmen, on strike. The strike is illegal. The Management is hurt because production is paralysed. The strikers allegedly indulge in objectionable activities. The exasperated Management hits back by ordering their discharge for reasons set out in several pages in the appropriate contemporaneous proceeding. Misconduct after misconduct is flung on the workers to justify the drastic action. In all conscience and common sense, the discharge is the punishment for the misconduct. The Management minces no words. What is explicitly stated, is not a colourless farewell to make way for fresh hands to work the factory until the strike is settled but a hard hitting order with grounds of guilt and penalty of removal. 51. THE inference is inevitable, however, ingenious the contrary argument, that precisely because the Management found the workmen refractory in their misconduct they were sacked. May be, the Management had no other way of working the factory but that did not change the character of the action taken. Once we hold the discharge punitive the necessary consequence is that enquiry before punishment was admittedly obligatory and confessedly not undertaken. The orders were bad on this score alone. " 52. THE Supreme Court further observed : "the anatomy of a dismissal order is not a mystery, once we agree that substance, not semblance, governs the decision. Legal criteria are not so slippery that verbal manipulations may outwit the Court. Broadly stated, the face is the index to the mind and an order fair on its face may be taken at its face value. But there is more to it than that, because sometimes words are designed to conceal deeds by linguistic engineering. Legal criteria are not so slippery that verbal manipulations may outwit the Court. Broadly stated, the face is the index to the mind and an order fair on its face may be taken at its face value. But there is more to it than that, because sometimes words are designed to conceal deeds by linguistic engineering. So it is beyond dipute that the form of the order, or the language in which it is couched is not conclusive. The Court will hit the veil to see the true nature of the order. Many situations arise where courts have been puzzled because the manifest language of the termination order is equivocal or misleading and dismissals have been dressed up as simple termination. And so, judges have delved into distinction of the order and a variety of other variations to discover the true effect of an order of termination. Rulings are a maw on this question but, in sum, the conclusion is clear. If two factors co-exist, an inference of punishment is reasonable though not inevitable. 53. If the severance of service is effected, the first condition is fulfilled and if the foundation or causa causans of such severance is the servant's misconduct the second is fulfilled. If the basis or foundation for the order of termination is clearly not turpitudinous or stigmatic or rooted in misconduct or visited with evil pecuniary effects, then the inference of dismissal stands negated and vice versa. These cannons run right through the disciplinary branch of master and servant jurisprudence, both under Art. 311 and in other cases including workmen under managements. The law cannot be stultified by verbal haberdashery because the court will lift the mask and discover the true face. " 54. THUS, the form of the order in such a case is not conclusive. "what is decisive is the plain reason for the discharge, nor the strategy of non-inquiry or clever avoidance of stigmatising epithets". The Court has to find out from other proceedings or documents connected with the formal order of termination what' the true ground for the termination is. The facts of this case clearly indicate that the order of termination has a "punitive flavour in cause or consequence". It is therefore, a dismissal. It is a punishment. What then are the facts ? The facts of this case clearly indicate that the order of termination has a "punitive flavour in cause or consequence". It is therefore, a dismissal. It is a punishment. What then are the facts ? The facts are : a) On 20th February, 1980, the Authorised Body of the respondent No. 1 terminated the services of the Executive director Sri B. K. . Basu allegedly on ground of irregularities pointed out by the internal audit report. Before the said order of termination was served upon the said Executive Director he challenged the said order under Article 226 of the Constitution being civil Order No. 7082 (W) of 1980 Ultimately the said, b. K. Basu on 17th July, 1980 did not prosecute the matter and the said application was dismissed. It also appears that he also challenged his termination in a suit being Suit No. 387 of 1980 in the City Civil court. On 4th May, 1981 the said B. K. Basu was reinstated in the post of Executive Director. b) The petitioner was transferred from the post of Purchase Manager (Jute) to the post of Assistant Manager of Mill No. 1. The petitioner was aggrieved. He protested to this transfer and wrote letters alleging that it was in fact a demotion. Executive Director in his letter dated 18th February, 1982 replied that the petitioner was "virtually and to all intents and purposes in the rank of Assistant Manager. " Although the terms and conditions remained unaltered, it was in effect demotion in status. c) By the letter dated 17th January, 1982 of the Executive director charge was levelled against the petitioner that he had removed official files on the pretext they were his personal files and had further removed two Jute Registers of the years 1978 and 1979. This was "highly irregular on the part of the managerial staff. " d) In reply to the said allegations as contained in the said letter dated 17th January, 1982 the petitioner in his letter dated 16th February, 1982 also made certain allegations against the Executive Director. One of such allegations is that the services of the said Executive Director were terminated and ultimately the Executive Director was reinstated. His reinstatement was questioned. There were other allegations of unauthorised sale of certain goods. One of such allegations is that the services of the said Executive Director were terminated and ultimately the Executive Director was reinstated. His reinstatement was questioned. There were other allegations of unauthorised sale of certain goods. It appears from the personal file of the petitioner that on the said letter of the petitioner the Executive Director made several observations. One of such observations is that the allegtions in the said letter amount to "insubordination" and allegations were also false. e) On 17th February, 1982 Senior Manager made report to the Executive Director that the petitioner was not reporting for duty since 15th February, 1982. On 18t February, 1982 the Manager Mill No. 1 intimated to the Senior Manager that the petitioner was not attending his duties and he neither approached nor sent any information for any leave. On 18th February, 1982 the Medical Officer sent a report to the Senior manager that the petitioner was a chronic Diabetic patient, but he was not advised for rest as he was improving. On 19th February, 1982 Senior Manager informed executive Director regarding medical certificate submitted by the petitioner that the petitioner had. . . . . " something underneath his sleeve", and "this sort of behaviour is bound to spoil the discipline of the mill and that disciplinary action should be taken immediately. " f) On 19th February, 1982 Medical Officer of the Company sent a report to the Senior Manager that the petitioner was examined and some medicines were prescribed and he was advised to join his duty. g) On 19th February, 1982 Senior Manager sent a confidential letter to the Executive Director where he said that the act on the part of the petitioner meaning thereby his absence from duty was "subversive of discipline and called for immediate action. " h) On 21st February, 1982 the Mill Manager wrote a letter to the Petitioner regarding his absence from duty and intimated that the petitioner "disobeyed" his order and left the compound without taking prior permission and "this amounts to gross misconduct. " i) On 2nd March, 1982 Senior Manager wrote a letter to the Executive Director complaining that the petitioner was not attending the mill since 1st March, 1982. " i) On 2nd March, 1982 Senior Manager wrote a letter to the Executive Director complaining that the petitioner was not attending the mill since 1st March, 1982. He said that the "mill discipline could not be maintained and moreover the petitioner was creating a precedent and no management could accept such act in the interest of smooth running of the administration. The petitioner started this game since 15th february, 1982. j) On 3rd March, 1982 Senior Manager issued a show cause notice to the petitioner for his "unauthorised absence". on and from 1st March, 1982 and "for staying overnight outside the mill premises. " k) On 4th March, 1982 Executive director informed that the management had decided to hold an investigation to the allegations made by the petitioner in his letter dated 16th February, 1982. l) On 10th March, 1982 the petitioner moved an application under article 226 of the Constitution challenging the reinstatement of the said B. K. Basu being C. R. No. 1721 (W) of 1982. An interim order inter alia status quo was passed by M. N. Roy, J. m) The Senior Manager by his letter dated 28th April, 1982 informed the petitioner that the petitioner has been acting "in definance of the rules of the Company and disregarding the orders of the superior. " He is in the "habit of absenting himself without leave or intimation and did not regularise his absence in his proper manner "which is an offence. " n) On 6th May, 1982 Senior Manager wrote a letter to the petitioner that the petitioner "was deliberately indulging in all sorts of activities bordering gross indiscipline including insubordination and wilful disobedience. His " deeds are acricious. " Unless the petitioner stops all subversive activities" management would be compelled to take steps" in accordance with the law. o) An investigation was started pursuant to the order of M. N. Roy, J. and a reported was also submitted by the Investigating Officer on 23rd June, 1982 to the effect that the petitioner failed to establish the allegations made against the Executive Director. p) On 5th July, 1982 the petitioner filed a title suit being Title Suit No. 1251 of 1982 in the City Civil court at Calcutta against the respondent No. 1 challenging the letter dated 21st June, 1982 refusing leave to the petitioner. p) On 5th July, 1982 the petitioner filed a title suit being Title Suit No. 1251 of 1982 in the City Civil court at Calcutta against the respondent No. 1 challenging the letter dated 21st June, 1982 refusing leave to the petitioner. q) On 21st July, 1982 a note was prepared by the Managing director wherein it has been stated that the petitioner has failed to establish the allegation made against the Executive Director in his letter dated 16th February, 1982 and the petitioner submitted a document to the Court from the Unit's records without knowledge and approval of the management. This was an unauthorised removal of the Company's records" without the knowledge and approval of the management which was " a serious matter to reckon with. " It was also stated therein that since the allegations are of serious nature and against the top man of the unit, "it is not possible to reply on him any longer, and certain action against him is warranted. " r) On 7th August, 1982 a minute was prepared, a disciplinary action as may be thought fit may be taken against the petitioner. The draft which was prepared on 7th August, 1982 as reproduced earlier would show that the Committee of Directors decided to take deterrent action against the petitioner. 55. IT was also suggested that in view of the gravity of the situation the Managing Director could even go to the extent of terminating his services. 56. ON 9th August, 1982 the interim orders passed in the application filed by the petitioner against the said b. K. Basu were vacated. It is not, however, clear whether the order of status quo passed on 10th August, 1982 was vacated or not. On 10th August, 1982 a draft letter of termination was prepared by the learned Advocate of the respondents and a meeting of the Committee of Directors was held and the letter of termination was issued. 57. IT may be mentioned that on 2nd June, 1983 M. N. Roy, J. made the Rule absolute holding that the Executive director B. K. Basu was not properly appointed to the post. Accordingly a writ of Quo-Warranto was issued. 58. THE aforesaid facts would unmistakely demonstrate that the termination of service of the petitioner was in colourable exercise of the power and it was a punitive discharge. Accordingly a writ of Quo-Warranto was issued. 58. THE aforesaid facts would unmistakely demonstrate that the termination of service of the petitioner was in colourable exercise of the power and it was a punitive discharge. The termination was as and by way of disciplinary measure. It is not a termination simpliciter as contended by Mr. Dipankar Gupta. I have no doubt in my mind that the respondents terminated the services of the petitioner because the petitioner made allegations against the Executive Director about his conduct as well as his reinstatement. Thereafter various allegations were brought against the petitioner either of unauthorised absence or of insubordination or indiscipline, misconduct etc. It is significant; that although in the draft prepared by K. K. Chatterjee it was mentioned that the Chairman is authorised to take extreme measure of terminating the service of the petitioner but the Directors in their minutes dated 7th August, 1982 approved that a disciplinary proceeding should be taken against the petitioner. But no disciplinary proceeding was taken. 59. ON 10th August, 1982 in the alleged meeting of the committee of Directors it was decided to terminate the services of the petitioner. When the termination is in consequence of disciplinary action, unless an enquiry is held against the delinquent after giving to the delinquent an opportunity of being heard, the order of termination will be rendered void. In this case the termination is not a termination simpliciter and it is by way of punishment. 60. IT may be mentioned in this connection that in the affidavit-in-opposition which was filed by the respondent on 12th June, 1984 it has been stated that the Committee of Directors decided to take appropriate disciplinary action as against the petitioner after considering the report of the proceedings of the investigation and thereafter on 10th August, 1982 discussed the matter fully and it was decided to terminate the services of the petitioner and also to empower the Managing Director to take steps to terminate the services in accordance with the terms and conditions of the services of the petitioner. This affidavit-in-opposition was affirmed by one Jyoti Bhusan sengupta, the Secretary of the Company held on 10th August, 1982. The allegations made in paragraph 17 of the affidavit-in-opposition have been stated to be based on records. As indicated earlier the decision was taken on 7th August, 1982 before M. N. Roy J. vacated the interim orders. This affidavit-in-opposition was affirmed by one Jyoti Bhusan sengupta, the Secretary of the Company held on 10th August, 1982. The allegations made in paragraph 17 of the affidavit-in-opposition have been stated to be based on records. As indicated earlier the decision was taken on 7th August, 1982 before M. N. Roy J. vacated the interim orders. No notice of the meeting of the Committee of Directors has been produced. The report of the investigating Director k. K. Chatterjee was to the effect that the petitioner failed to establish the allegations made in his letter dated 16th February, 1982. If the report is taken to be the ground for termination, that by itself would show that it was a colourable exercise of power. At least one of the allegations was sustained. M. N. Roy, J. held that the said B. K. Basu had no power, authority, competence and jurisdiction. It may also be mentioned that in the said decision. (Nirmal Kumar vs. B. K. Basu) reported in 88 CWN 10 M. N. Roy, J. observed at page 37 : it is to be noted further that over the issue of transfer, in terms of the leave as granted by the court, Department proceedings were initiated and I am informed that on investigation the petitioner has been found guilty and his services have been terminated. " The petitioner, however, was not found guilty in any departmental proceeding nor any departmental proceeding was initiated either. Investigation was made by K. K. Chatterjee, a Director on the allegations made by the petitioner, and not against the petitioner. The fact that the Court was informed that in the Departmental Proceedings, investigation was made and the petitioner was found guilty and his services were terminated would show that what was apparent was not real. It was indeed a punitive discharge. 61. IN the result this application succeeds. The Rule is made absolute. The order of termination dated 10th August, 1982 is set aside and quashed. Let appropriate writs be issued. Since the order of termination is held invalid the petitioner's services are never deemed to have been lawfully terminated. The petitioner was thus wrongfully prevented from discharging his duties as public servant and he will be entitled to all benefits of services including monetary benefits. The petitioner will be entitled to cost of this application assessed at 100 Gms. Since the order of termination is held invalid the petitioner's services are never deemed to have been lawfully terminated. The petitioner was thus wrongfully prevented from discharging his duties as public servant and he will be entitled to all benefits of services including monetary benefits. The petitioner will be entitled to cost of this application assessed at 100 Gms. The respondents are directed to pay all the arrears after adjustment of the payments already made from time to time in terms of the orders passed during the pendency of the Rule. All arrears shall be paid within a month from date. The petitioner shall be reinstated forthwith. 62. MR. Sen Gupta, Ld. Adv. appearing for the respondent nos. 1 and 2 prays for stay of operation of the order. Such prayer is refused. Rule made absolute.