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1994 DIGILAW 229 (CAL)

Debabrata Majumdar v. Mayurakshi Cotton Mills

1994-08-01

KRISHNA CHANDRA AGGARWAL

body1994
JUDGMENT Krishna Chandra Agarwal, C.J. 1. This petition under Article 226 of the Constitution of India has been filed by Sri Debabrata Majumdar challenging the impugned order of termination No. CM/MCM/ APPNT/92 dated 7th September, 1992 passed by Member, Committee of Management, Mayurakshi Cotton Mills Limited, being in annexure "G" to the writ petition. 2. The petitioner was appointed as Deputy Manager cum Spinning Master for a specific period of 59 days. That would appear from annexure "H" to the writ petition. Said appointment letter being in annexure "H" to the writ petition further states that the writ petitioner could be terminated ipso facto and that there is no commitment on the part of the Committee of Management, Mayurakshi Cotton Mills Ltd. regarding future employment. The writ petitioner has also challenged the said annexure "H". It, however, appears that the writ petitioner was continued in service after the expiry of 59 days. 3. The contention of the petitioner was that although he had been initially appointed for the fixed period of 59 days, but as he had been continued after the expiry of that period, he became permanent despite no order of regularisation of making him permanent was passed. The petitioner alleged that as he became permanent his services could not be terminated by treating him temporary. 4. Further case of the writ petitioner was that the respondent Mayurakshi Cotton Mills Ltd. is a State having majority share being possessed by the State Government, and therefore the writ petitioner could not be terminated without complying with the order or principle of Article 311 of the Constitution. In the alternative, the petitioner urged that the termination being arbitrary, mala fide and vindictive, said termination was liable to be quashed. 5. I may deal with the issue of status, and character and nature of Mayurakshi Cotton Mills Ltd. to find out whether the Mills could be placed similarly as State. In the case reported in Panchra Mayurakshi Cotton Mills Employees Union & Ors. vs. State of West Bengal and Ors., 1993(2) CLJ 176 this question came for decision before a learned Single Judge of this Court who held that the Mayurakshi Cotton Mills Ltd. is not an authority or State within the meaning of Article 12 of the Constitution. In the case reported in Panchra Mayurakshi Cotton Mills Employees Union & Ors. vs. State of West Bengal and Ors., 1993(2) CLJ 176 this question came for decision before a learned Single Judge of this Court who held that the Mayurakshi Cotton Mills Ltd. is not an authority or State within the meaning of Article 12 of the Constitution. This view was taken by the learned single Judge relying on a decision of Anupam Ghosh vs. Union of India & Ors., reported in 1991 Lab. I.C. 2261. In my view, the decision given in the 1993 (2) CLJ 176 (supra) is quite clear and I am also of the same view that the respondent Mills was not a State or authority within the meaning of Article 226 of the Constitution inasmuch as it was not a monopoly concern. It is a trading concern like any other industry in the field of cotton production, whose function could not be stated to be the functions of Public law character and, It is not closely related to Government functions. In the background of the facts stated above, the nature of employment of the writ petitioner could not assume the role of being public in nature. It was in pursuance of a private contract that the petitioner had been initially appointed for a period of 59 days. This period of employment had been extended from time to time, but seeing the facts and circumstances, it would be found that the extended period essentially had the same nature and feature of service on which the initial employment was ordered. The employment as stated above, did not have a public law character or any public law element in it. That being so, in agreement with the view taken in 1993(2) CLJ 176 (supra) I hold that the writ petition is not maintainable. 6. So far as the question of arbitrariness is concerned, learned Advocate for the petitioner mainly based his submission relying on the reported case of K.C. Joshi vs. Union of India and Ors., AIR 1985 SC 1046 . In that case K.C. Joshi was an employee of the Oil & Natural Gas Commission(Corporation). The Supreme Court in that case held that the said O.N.G.C. (Corporation) was an instrumentality of the State and was comprehended in the expression 'other authority' in Article 12 of the Constitution. In that case K.C. Joshi was an employee of the Oil & Natural Gas Commission(Corporation). The Supreme Court in that case held that the said O.N.G.C. (Corporation) was an instrumentality of the State and was comprehended in the expression 'other authority' in Article 12 of the Constitution. Further that any termination of service of an employee of the said Corporation, if challenged, would make the court entitled to give a declaration that the employee continued to be in service. 7. In the instant case, I have pointed out that the respondent Mayurakshi Mills was not an instrumentality of the State and as such, Writ of Mandamus directing the respondent Mills to treat the petitioner to be in service cannot be granted. Further, the petitioner is not entitled to protection under Article 311 of the Constitution as he did not hold any civil post. So far as Article 14 of the Constitution is concerned, on the materials in this case the same is not also available to the petitioner even if it is conceded that he was entitled to seek protection of this Article. However, it may be made clear that as I have stated earlier, Article 14 will not apply to the case of the petitioner as he was not in any service whose function was of public character or nature. 8. In the reported case in K. C. Joshi vs. Union of India & Ors., (supra), the High Court concerned upheld the termination on the ground of unsuitability. The Hon'ble Supreme Court examined the materials and found that the charge of unsuitability was either cooked up or conjured up for a collateral purpose for doing away with the service of a trade union worker. The present is not a case of that type. Although some arguments were made that the Manager of the Mayurakshi Cotton Mills Ltd. had terminated the service of the petitioner mala fide this, after perusal of the records and considering the affidavits exchanged between the parties, is not satisfied and I am unable to find any allegation of mala fide being established in this case. It may be true that the Manager had not filed his own affidavit, but in the absence of his affidavit, it is not possible to hold that the allegations made by the petitioner about the termination being mala fide is established. Ajit Kumar. It may be true that the Manager had not filed his own affidavit, but in the absence of his affidavit, it is not possible to hold that the allegations made by the petitioner about the termination being mala fide is established. Ajit Kumar. Deb, one of the Directors of the respondent Mills has filed affidavits in detail and denied all the allegations of the petitioner. He has pointed out with the help of the papers and documents that the work of the petitioner was unsatisfactory. The termination of the petitioner's employment on the ground of unsatisfactory work does not cast any stigma, although in my opinion, in the case of private employment, as in the present case, veil is not required to be unveiled to disprove the case of stigma. The affidavits of Sri Ajit Kumar Deb as aforesaid fully and conclusively establish the case that the charge of the petitioner about illegal termination on the ground of mala fide or vindictiveness was not established. It was for the Management to find out whether the work of the petitioner was satisfactory and good and if the Management held the same against the petitioner, it is not for this Court to sit over in appeal over the decision of the management and to take a different view from that the Management. The High Court under Article 226 of the Constitution exercises jurisdiction of such nature which' does not permit it to reverse the order of the Management on the grounds on which the petitioner challenges the decision of the Management of Mayurakshi Cotton Mills Ltd. 9. For the view I have taken as aforesaid, the writ petition is dismissed without costs. All other orders are vacated. Let a xerox copy of the order, be supplied to the learned Advocates for the parties on the usual terms and on production of the application for certified copy of the order, as prayed for. Application dismissed.