SHYAM SUNDAR PAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is directed against the dismissal of the writ petition of the appellant challenging the termination of his service by the General Manager, New India Assurance Company Ltd.

(2.) The appellant's case may be stated as follows: - The appellant was appointed as Assistant Manager effective from 20th September, 1959 by the Howrah Insurance Co, Ltd. The said letter of appointment is Annexure 'A' to the writ petition. The appellant has contended that matter the completion of i.e. probationary period, the appellant became a permanent employee of the said Howrah Insurance Co. Ltd., in September, 1972, the General Assurance business (Nationalisation) Act, 1972 came into force and the said Howrah insurance Co. Ltd. was amalgamated with some other Insurance Companies and such Insurance Companies including the said Howrah Insurance Co. Ltd. were merged with the New India Assurance Co. Ltd. The said New India Assurance Co. Ltd. is a Government of India Undertaking and as such 'State' within the meaning of Article 12 of the Constitution of India, Under the provisions of the said General Assurance Business (Nationalisation) Act, 1972, the appellant became an employee of the said New India Assurance Co. Ltd. under the same terms and conditions under which he had been serving at the time of merger of the said Howrah Insurance Co. Ltd. with the New India Assurance Co. Ltd. It was provided for in the said Nationalisation Act of 1972 that so long the conditions of service were not framed and/or changed, the employees would enjoy the conditions of service under which they had been acting prior to merger on 17th September 1975. A scheme being General Assurance (Rationalisation of Pay Scales and other conditions of Service of 0fficers) Scheme 1975 was framed and the said scheme came into force with effect from 1st October 1975. The appellant thereafter wrote to the Chairman, New India Assurance Co. Ltd. claiming his categorisation under the scheme as an Officer after giving the bio-data. It appears that, a Committee was formed for categorization of the employees of the said New India Assurance Co. Ltd. and considering, the bio-data of the appellant the said Committee categorised the appellant as Field Inspector and not as an Officer. The appellant thereafter made a protest against him categorisation as Class II staff and had contended, that he was initially appointed by the Howrah Insurance Co. Ltd. as an Assistant Branch Manager and in managerial capacity be had worked all along and as such by the categorisation of the appellant as the Class II staff there had been a demotion of the appellant. It appears that a Screening Committee was formed .for the interview of Grade II employees including the appellant between 11th March to 13th March 1976. The said Screening Committee on review of the performance remarked that the appellant was not fit to continue his service. In view of such report, the General Manager by his Memo, dated 27th March 1976 informed the appellant that in view of his unsatisfactory performance, the management had decided to terminate his service with immediate effect. The appellant was informed that he would be paid one month's salary in lieu of notice. It was also mentioned in the letter of termination that the said letter was without prejudice to the company's right to take any action against the appellant, if warranted, under such circumstances as would come to light hereafter.

(3.) After a contested hearing the writ petition of the appellant, challenging the said termination of his service was dismissed by the learned Trial Judge. The learned Trial Judge has noted that the appellant was an Assistant Branch Manager of the Howrah Insurance Co. Ltd., which was comparatively a small company and 21 companies carrying on business m general insurance were merged with the New India Assurance Co. Ltd. which will appear from the list of the merged companies mentioned in the First Schedule of the New India Assurance Co. Ltd. (Merger) Scheme, 1973: The learned Trial Judge was of the view that as employees of the different merged Companies holding different designations and doing different types of works became employees of the New India Assurance Co. Ltd. because of the merger of such companies, there was a necessity of categorisation of the employees of such different companies since merged with the said New India Assurance Co. Ltd. On a review of the performance of the appellant he was categorised as a Development Inspector and the learned Trial Judge has noted that, such categorisation was in conformity with the nature of the work entrusted to the appellant under Clauses 3 and. 4 of the letter of appointment. The learned Trial Judge has also came to the finding that the categorisation of the appellant as Development Inspector was unilateral and the appellant was not consulted before such categorisation but there was no discrimination against the appellant because many other persons were also categorised as Development Inspectors along with the appellant. As the Appellant became a Development Inspector with effect from August 25, 1975, the General Insurance (Rationalisation of Pay Scales and other conditions of services of Officers) Scheme, 1975 was not applicable to the appellant because under paragraph 3(1) of the said Scheme, any employee who has been declared as a member of the Development Staff by the Committee appointed by the Board would not be considered as an Officer. Another scheme known as General Insurance (Rationalisation of Pay Scales and other conditions of service of Development Staff) Scheme, 1976 was enforced but since the said scheme came into force from May 1, 1976, the said scheme also did not apply to the appellant in view of the fact that his services were terminated with effect from March 27, 1976. The learned Trial Judge was, therefore, of the view that the appellant at the relevant time was enjoying the terms and conditions of his initial appointment by the Howrah Insurance Co. Ltd., in view of the provisions of Section 7(1) of the General Insurance Business (Nationalisation) Act, 1972. The learned Trial Judge was of the view that the appellant failed to fulfil the terms and conditions of his employment in the matter of securing the required quantum of premium for the New India Assurance Co. Ltd. The learned Trial Judge has noted that from the bio-data submitted by the appellant, it will appear that his performances in the years 1969, 1970 and 1971 were not satisfactory and he failed to collect the guaranteed premium. The learned Trial Judge has held that an employer is under no obligation to retain an employee in service if the employee was found unsuitable or he was unsuited for the post he is holding. It has been held that the New India Assurance Co. Ltd., had a right inherent in every employer to terminate the service of the employer because his performance as Development Inspector was found to be unsatisfactory. The learned Judge has also held that the use of the expression "Unsatisfactory performance" in the letter of termination, therefore, cannot be termed as a blamish or stigma and no aspersion can be said to have been cast upon the appellant by using the said expression in the letter of termination. The learned Trial, Judge has also held that the said letter of termination was issued on the basis of recommendation of the Screening Committee and as such it cannot be held that such letter of termination was issued mala fide. It has also been held that as the said termination of service of the appellant was in accordance with the terms of contract of agreement of service, such termination did not amount to penalty within the meaning of General Insurance Conduct, Discipline & Appeal) Rules, 1975 and as such there was no occasion to consider the breach of provisions of the said Discipline & Appeal Rules. The learned Trial Judge has held that at the, relevant time the terms and conditions of the appellant's service even after merger were not controlled by any statutory rules and as such there was no question of infringement of any statutory rules in terminating the service of the appellant. The learned Trial Judge has also held that the appellant has been trying to enforce certain rights or obligations arising from a contract of service in the writ petition, but such enforcement of contractual right in writ jurisdiction is not warranted.