Rajasthan High Court - Jaipur
Ramdhar Singh vs Rajasthan Communications Ltd. on 20 August, 1993
Equivalent citations: (1994)IILLJ673RAJ
JUDGMENT G.S. Singhvi, J.
1. The petitioner has challenged the order dated October 10, 1987 passed by the Director, Rajasthan Communications Ltd., for termination of his service.
2. The petitioner joined service as a Helper on ad hoc basis with effect from February 8, 1986. He was given regular pay scale of a helper with effect on April 1, 1987. He was appointed on probation by order dated April 25, 1987. The period of probation was fixed as one year and it could be extended at the discretion of the management of the company. During the period of probation, the impugned order dated October 10, 1987 was issued by the respondent-company terminating the services of the petitioner on the ground of unsatisfactory performance during the period of probation.
3. The petitioner has challenged the order of termination by stating that a direction had been given by the company to various employees including the petitioner to report for duty on September 30, 1987 which was a holiday. None of the employees turned up on that day. The Director got annoyed with the petitioner on this count and, therefore, he got issued the order of termination of his service. The petitioner's plea is that termination order is founded on misconduct, namely, failure of the petitioner to report for duty on September 30, 1987 and that such an order could not have been issued except after compliance with the principles of natural justice. He has also attacked the order of termination on the ground of arbitrariness and violation of the Articles 14 and 16 of the Constitution.
4. The respondent has pleaded that it is not a State under Article 12 of the Constitution of India and, therefore, no writ is maintainable against the company. In an additional affidavit of Shri Ravindra Upadhyaya, Assistant Manager (P&A), filed on April 15, 1993 it has been stated that the company was initially floated by RIICO as its subsidiary unit. By a resolution dated December 13, 1985 the company was converted into a joint sector company. M/s. Bagalkot Udyog Ltd. became its co-promoter. The co-promoter held a majority of the shares in terms of the agreement. Presently, the RIICO has only 26 per cent, shares and the remaining are with Kanodia Industries Ltd. The private concern has full control over the management of the company and the RIICO does not have free or dominant role in the working of the company. By a letter dated March 22, 1993 issued by the Comptroller and Auditor-General of India, the company is no longer governed by the provisions of Section 6(19-B) of the Companies Act, 1956. On the merits, the respondent has pleaded that the petitioner's work was not satisfactory during the period of probation. It was below average. He was found to be arrogant and indisciplined. In his annual performance report also adverse entries have been made. The respondent has denied the allegation of the petitioner that the petitioner was asked to report for duty on September 30, 1987. Its case is that some employees were asked to report for duty on September 30, 1987 and they in fact attended to their duties. Since the petitioner was not one of the persons who were called for duty on September 30, 1987 there was no question of annovance of the Director on account of alleged failure of the petitioner to turn up for duty on September 30, 1987. The respondent has also placed on record letter dated February 28, 1988 written by the petitioner wherein he has stated that he had accepted dues from the company and he has not raised any dispute and he has not authorised anybody to take any legal proceedings.
5. In rejoinder, the petitioner has alleged that the order placing him on probation was never served upon him. He has denied that his work was below average. He has stated that he was never warned of any infirmity in his work or conduct. He has placed on record a copy of the order dated September 29, 1987 to show that he was in fact one of the persons who were called for duty and that the only ground for termination of his service is failure of the petitioner to turn up for duty on September 30, 1987. The petitioner has also questioned the genuineness of Annexure R-3 and has stated that this document has been procured by the respondent-company.
6. From the rival pleadings, it is clear that the petitioner was initially appointed on an ad hoc basis on fixed salary and thereafter he was appointed on probation. Even though the petitioner has stated that he was not served with the order appointing him on probation, he has not explained as to under which order he was given regular pay scale. Therefore, it is not possible to accept the plea of the petitioner that he was not on probation with effect from April 1, 1987. The services of the petitioner have been terminated on account of alleged unsatisfactory performance during the period of probation. The order terminating the service of the petitioner is innocuous and does not contain any stigma. A statement contained in the order of termination to the effect that performance of the petitioner during the period of probation has not been satisfactory does not per se cast any stigma on the petitioner. However, there is a serious controversy between the parties on two issues. Firstly, the parties are in dispute about the performance of the petitioner. While the petitioner has stated that his performance is satisfactory, the respondents have disputed this. Secondly, parties are in dispute on the point as to whether the petitioner was in fact called for performing duties on September 30, 1987. The order dated September 29, 1987 which has been placed on record suggests that the petitioner was one of the persons who were called for duty on September 30, 1987 but no evidence is available on record to show that as to whether that order was served upon the petitioner or not. There is no evidence available on record as to what constituted the actual foundation for termination of the service of the petitioner, i.e., whether it was on account of unsatisfactory performance during the period of probation or on account of alleged absence of he petitioner from duty on September 30, 1987. Such disputed questions of fact cannot appropriately be adjudicated upon by this Court particularly when there is absence of sufficient material before the court. Moreover, for adjudication of such disputed questions of fact, remedy is available to the petitioner under the Industrial Dispute Act, 1947. The procedure prescribed under the Industrial Disputes Act, 1947, empowers the Labour Court/Industrial Tribunal to record evidence (oral as well as documentary) and examine various disputed questions of fact. The petitioner's case is one of that category which can appropriately be adjudicated under the Industrial Disputes Act, 1947, and, therefore, I do not find any justification for entertaining the writ petition.
7. One more serious controversy which exists between the parties pertains to Annexure R-3. By that letter, the petitioner has given out that he has accepted all his dues and that he has not authorised anybody for filing the writ petition or any other litigation. In his rejoinder, the petitioner has filed an affidavit asserting that this document is not genuine. The question as to whether Annexure R-3 bears the signature of the petitioner or not can be decided on the basis of evidence and this Court is ill-equipped to decide such issue.
8. There is yet another reason as to why relief cannot be given to the petitioner. The respondent company was originally created as a subsidiary of RIICO. However, in the year 1985, almost 50 per cent, shares of the company were transferred to a private company. The company itself was declared as a joint stock company. As on date, 74 per cent, shares are held by private parties. It is, therefore, reasonable to conclude that the RIICO does not have financial control over the working of the respondent- company. The management of the company is also not controlled by the RIICO which has only a few persons on the Board of Directors of the respondent-company. Thus, there is a lack of administrative control of the State over the working of the respondent- company. That apart, it is clear that the company is engaged in manufacture of electronic equipment and it is not possible to accept the plea of the petitioner that the activities of the respondent-company are akin to State functions or pertain to discharge of public obligations of the State or social obligations of the State enunciated in Part IV of the Constitution. These factors are all sufficient for holding that the respondent- company is neither an instrumentality nor an agency of the State.
9. For the reasons mentioned above, the writ petition fails and it is hereby dismissed. The petitioner shall be free to raise a dispute under the provisions of the Industrial Disputes Act, 1947. The parties are left to bear their own costs.