Civil Appeal No 3187 of 1982 From the Judgment and Order dated 2211974 of the Allahabad High Court in CMP No 1395 of 1968
872 AR Gupta for the Appellant
B Datta Rishi Kesh Badri Prasad Ajit Pudissary Girish Chandra and Ms A Subhashini for the Respondents
The Judgment of the Court was delivered by DESAI J
Another unequal fight between a giant public sector undertaking Oil and Natural Gas Commission Corporation  for short and a Store Keeper which has been brought to this Court by the ultra legalist stand taken by the Corporation which lacks equanimity and smacks of victimisation
The appellant was appointed as Assistant Store Keeper in April 1962 and was posted at Dehradun
Later on when the Corporation decided to recruit Store Keeper the appellant was selected in open competition and was appointed on December 7 1963 as such
He was posted at Cambay Gujrat and later on December 24 1963 sent back to Dehradun
The office order dated February 26 1964 recites that the appellant has been appointed as Store Keeper till further orders and the post is sanctioned for the period February 7 1964 to February 29 1964
In other words a man selected in an open competition was offered the post which was to last for 22 days roughly
He was also told that his appointment was purely temporary and that other terms of service were those as set out in the letter dated December 7 1963 one of which was that the appellant will be on probation for a period of six months from the date of the appointment and the same may be extended at the discretion of the appointing authority and that the appointment may be terminated at any time by a months  notice given by either side
On January 13 1965 the appellant was informed in writing by the Memorandum No PFK 44 64 ENT that the appellant on successful completion of the probation period of six months is continued in service on regular basis until further orders
By office order dated April 6 1947 the appellant who was described as Store keeper Grade I Mech
Branch was transferred to Cambay Nawagam project
This transfer order was challenged by the appellant on diverse grounds in a suit filed by him
He sought an interim in 873 junction restraining the respondents from implementing the order of transfer
Interim injunction as prayed for was granted
The Oil  Natural Gas Commission Employees Mazdoor Sabha Union for short Dehradun submitted a charter of demands on May 15 1967 and it was followed by a notice threatening direct action by the members of the Union
It appears that the appellant was an active worker of the Union
The usual management response emerged be a secret letter dated September 1 1967
Shri RP Sharma Chief Engineer under whom the appellant was at the relevant time working was told that the appellant is the main trouble maker and that he is being given free hand by his immediate superiors and that the Chief Engineer did not keep strict vigilance over the activities of the appellant
The employees of the Corporation went on strike on September 12 1967
It was called off on September 24 1967
On September 28 1967 the Union submitted a list of workmen to the Corporation requesting the Corporation to give them the status of protected workmen as required by Sec 33 4 of the 
Appellant s name appears at section No 2 in this letter
On December 27 1967 the Union complained of victimisation of the active union workers including the appellant On December 29 1967 Office Order No M Engg 1 167 was issued by which the services of the appellant were terminated with immediate effect in accordance with the terms and conditions of his service
A cheque in the amount of Rs 317 accompanied the order being one month s pay in lieu of notice
The appellant challenged in Writ Petition No 139568 in the Allahabad High Court the legality and validity of the order terminating his services
A Division Bench of the Allahabad High Court held that despite the order dated January 13 1965 that on successful completion of the probation period the appellant has been appointed on a regular basis as Store Keeper he was none the less a temporary employee of the Corporation till the date on which his services were terminated
The High Court further held that the Corporation is not an industrial establishment within the meaning of the expression in and therefore the Model Standing Orders enacted under the Act were not applicable to the undertaking of the Corporation
However the High Court examined an alternative contention that 874 assuming that the Industrial Establishment Standing Orders Act 1946 does apply to the undertaking of the Corporation yet in view of the provisions contained in Sec
13B of the Act no provisions of the Act would apply to the undertaking of the Corporation
The High Court repelled the contention of the appellant that the order of termination of service is violative of Oil and Natural Gas Commission Conduct Discipline and Appeal Regulations 1964 observing that as the service of the appellant was not dispensed with on the allegation of misconduct but as it was an order of termination of service simpliciter in accordance with the Regulation 25 no other regulation is shown to have been contravened by the impugned order
The High Court rejected the submission on behalf of the appellant that as the Corporation is a State or at any rate instrumentality of the State  as contemplated by article 12 of the Constitution and therefore the appellant is entitled to the protection of Art 14 and 16 observing that it is not the requirement of law that in order to dismiss one employee on the ground of unsuitability the Government or the Corporation is required to dismiss all an observation which has left us guessing for its content and meaning
The Division Bench finally concluded that as the service of the appellant were terminated not because of any personal bias of the officers of the Corporation but because of his unsatisfactory work the allegation of mala fides cannot be upheld
Accordingly the writ petition was dismissed with no order as to costs
Hence this appeal by special leave
Mr B Datta learned counsel who appeared for the respondents did not press before us the contention that the Corporation is not an instrumentality of the State
In view of the numerous decisions of this Court and especially one in Sukhdev Singh  Ors
vs Bhagatram Sardar Singh Raghuvanshi  Anr1 a Constitution Bench of this Court in terms held that the Oil and Natural Gas Commission is an instrumentality of the State and is comprehended in the expression other authority  in article 12 and that any termination of service of the employee of the Corporation if 1 197513 SCR 619
875 successfully questioned would permit the court to make a declaration that the employee continues to be in service  Even if the employees of the Corporation which is an instrumentality of the State cannot the be said to be the members of a civil service of the Union or an All India service or hold any civil post under the Union for the purpose of article 310 and 311 and therefore not entitled to the protection of article 311 they would none theless be entitled to the protection of the fundamental rights enshrined in article 14 and 16 of the Constitution
In other words they would be entitled to the protection of equality in the matter of employment in public service and they cannot be dealt with in an arbitrary manner
See AL Kalra vs Project and Equipment Corporation of India Ltd1
The next question is whether the service of the appellant was terminated in accordance with law or regulation or in a thoroughly arbitrary manner  Factual matrix set out hereinbefore will affirmatively show that on successful completion of his probation period the appellant was appointed on the regular establishment as Store Keeper
Thus effective from 13 1965 the appellant was appointed on regular basis as Store Keeper
There is nothing to show in the order that on completion of the probation period he was appointed as a temporary Store Keeper
The words used are He is continued in service on a regular basis until further orders  The expression until further orders  suggest an indefinite period
It is difficult to construe it as clothing him with the status of a temporary employee
It is even worst than being a probationer because the apprehended further order may follow the very next day
Therefore the expression until further order  being thoroughly irrelevant has to be ignored
It is even inconsistent with the appointment on regular basis as stated in that very order
If the appellant was appointed on regular basis his service cannot be terminated by one month s notice
If it is by way of punishment as the High Court has found it to be so it will be violative of the principles of natural justice in that no opportunity was given to the appellant to clear himself of the 1 11984 3 SCC 317 876 alleged misconduct which never found its expression on paper but which remained in the minds of those passing the order of termination of service
If it is discharge simpliciter it would be violative of article 16 because a number of Store Keepers junior to the appellant are shown to have been retained in service and the appellant cannot be picked arbitrarily
He had the protection of article 16 which confers on him the fundamental right of equality and equal treatment in the matter of public employment
Mr Datta however contended that the earlier order dated December 7 1963 recites that the appointment could be terminated by either side by one month s notice and that was the power invoked in terminating the service of the appellant
The order dated December 7 1963 was at the time when the appellant was appointed on probation
On successful completion of probation the appellant became a member of the regular establishment
The contract of service if any has to be in tune with article 14 and 16 and such unilateral power of termination of service without giving reasons is so abhorent that it smacks of discrimination and therefore violative of article 14
The High Court brushed aside this aspect by merely observing that in order to dismiss one employee on the ground of unsuitability the Government or the Corporation is not required to dismiss all 
If it is suggested that you can dismiss anyone without a semblance of an enquiry or without whisper of the principles of natural justice then such an approach overlooks the well established principle that where State action affects livelihood or attaches stigma the punitive action can be taken after holding an enquiry according to the principles of natural justice
In other words an unbiased Judge and an opportunity to controvert the allegation and to clear oneself are the minimum principles of natural justice which must inform such drastic power of dismissal affecting livelihood of an employee
If the observation of the High Court was with reference to the contention of the order being violative of article 14 and 16 it overlooks the fact that the Corporation attempted to sustain its action on the ground that the services of the appellant were no more required which will certainly impel the court to enquire whether the post had been abolished or whether retaining the juniors the inconvenient person was thrown out under the garb of being surplus
Therefore the approach of the High Court in this behalf is not appreciable
877 Accepting the finding of the High Court that the appellant was removed from service on the ground of his unsatisfactory work the same could not have been done without an enquiry in accordance with principles of natural justice
At any rate the action appears to be thoroughly arbitrary
If the facts are properly viewed this public sector corporation has disclosed the typical private employer s unconcealed dislike and detestation of an active trade unionist
From the facts stated in the earlier portion of the judgment it appears that appellant was a protected workman
Add to this the fact that the secret letter of Mr L J Johnson dated September 6 1967 reveals the inner working of the mind of the top brass of the Corporation when Mr Johnson states that Mr Joshi appellant 5 the main trouble maker in the corporation
Earlier on March 29 1967 the Assistant Director wrote to the Director of Stores to transfer the appellant from Dehradun to Assam the usual management response namely to transfer the active trade union worker to weaken the trade union movement
Even a charge of victimisation qua the appellant was made in writing
The then Petroleum Minister Mr Ashok Mehta wrote to Mr Natwarlal Shah
ONG Employees Mazdoor Sabha wherein he assured that the Corporation would not be interested in victimising anyone and yet soon after within three months the services of the appellant were terminated
And now reasons for the termination of service of the appellant may be examined
The appellant is considered unsuitable for the job as found by the High Court
How he became unsuitable is an aspect not even examined by the High Court
On the contrary one has to refer to several communications eulogizing the services of the appellant which have been placed on record
One Ganga Ram Personnel Officer ONGC Tel Bhavan Dehradun has certified on August 26 1964 that Shri Joshi was found to be very sincere conscientious dependable and hard working official and he is very much loyal to his duties as Store Keeper and he has done exceedingly well  He also states that Mr Joshi knows his job thoroughly well 
On April 151965 the Controller of Stores and Purchase the immediate superior of the appellant writes that Mr Joshi knows his work very well and he is very conversant with the purchase work accounting and maintenance of stores
He is a very bright young man of blameless character and would do very well in any position of responsibility 
This letter of appreciation was sent when the 878 officer was relinquishing his charge of the post of Controller of Stores and Purchase
On January 161968 the Chief Engineer Shri R P Sharma has issued a certificate in which it is stated that he found Mr Joshi sincere intelligent and hard working young man fully trust worthy and dependable for any confidence that may be reposed in him 
This will clearly show that the charge of unsuitability was either cooked up or conjured up for a collateral purpose of doing away with the service of an active trade union worker who because of his activities became an eye sore
Accordingly we are unable to agree with the view taken by the High Court that the termination of service was legal valid or justified
This appeal will accordingly succeed
The question then is what relief we must grant  Ordinarily where the order of termination of service is shown to be bad and illegal the necessary declaration must follow that the employee continues to be in an uninterrupted service and he is entitled to full backwages
We would have been perfectly justified in giving the declaration and making that order
However the appellant is out of service from December 29 1967 till today
A period of nearly 18 years have rolled by and he will have to go back to some chagarined master
We therefore enquired from the learned counsel appearing for the appellant whether substantial and adequate compensation would be more acceptable to him or reinstatement with backwages
The appellant opted for the latter and Mr B Datta learned counsel for the commission conceded that the Corporation would willingly pay Rs 2 lakhs as and by way of backwages and compensation in lieu of reinstatement
This matter was adjourned to enable learned counsel for the appellant to work out the spread over of backwages
Mr AK Gupta learned counsel for the appellant has submitted the calculations of backwages
The figures therein set out are not disputed
We accept the same and treat it as part of the judgment
A copy of it shall always be annexed to the copy of this judgment
Accordingly this appeal is allowed and the judgment of the High Court is quashed and set aside and the rule is made absolute in the writ petition
The Oil and Natural Gas Commission is directed 879 to pay Rs 2 lakhs to the appellant on the basis of the calculations herein submitted in lieu of backwages and compensation in lieu of reinstatement within a period of four weeks from today
In view of the computation made in respect of backwages and compensation from year and year we must make it abundantly clear whether the Commission would be entitled to deduct income tax while making the payment
In this connection we would follow the decision of this Court in Shri Sant Raj  Anr
vs OP Singla  Anr1 In tune with that decision we give the following decision
Now that the amount is being paid in one lump sum it is likely that the employer may take recourse to Sec
192 of the Income Tax Act 1961 which provides that when any person responsible for paying any income chargeable under the head Salaries  shall at the time of payment deduct income tax on the amount payable at the average rate of income tax computed on the basis of the rates in force for the financial year in which the payment is made on the estimated income of the assessee under this head for that financial year
If therefore the employer proceeds to deduct the income tax as provided by Sec 192 we would like to make it abundantly clear that each appellant would be entitled to the relief under Sec
89 of the Income Tax Act which provides that where by reason of any portion of assessee s salary being paid in arrears or in advance or by reason of his having received in any one financial year salary for more than 12 months or a payment which under the provisions of clause 3 of Section 17 is a profit in lieu of salary his income is assessed at a rate higher than that it would otherwise have been assessed the Income Tax Officer shall on an application made to him in this behalf grant such relief as may be prescribed
The prescribed relief is set out in Rule 21A of the Income tax Rules
The appellant is entitled to relief under Sec 89 because compensation herein awarded includes salary which has been in arrear for 18 years as also the compensation in lieu of reinstatement and the relief should be given as provided by Sec 89 of the Income tax Act 1 880 read with Rule  IA of the Income Tax Rules
The appellant indisputably is entitled to the same
If any application is necessary to be made the appellant may submit the same to the competent authority and the Commission shall assist the appellant for obtaining the relief
The appeal is allowed as herein indicated with no order as to costs
NVK Appeal allowed


Summary:
The appellant was initially appointed in the Respondent Public Sector Undertaking as an Assistant Store Keeper and later selected as a Store Keeper
The office order recited that the appellant had been appointed as Store Keeper till further orders that his appointment was purely temporary that he will be on probation for period of 6 months and that the appointment may be terminated at any time by a month s notice
On successful completion of the probation period of six months the appellant was informed that he was continued in service on a regular basis until further order  The appellant was later transfer red and the Transfer Order was challenged by him in a suit and an obtained an interim order restraining the undertaking from implementing the transfer order
The Employees  Union submitted a charter of demands and it was followed by a notice threatening direct action by the members of the Union
The appellant was an active worker of the union
The employees went on strike and 870 the Union submitted a list of workmen to the Corporation requesting the Corporation to give them the status of protected workmen as required by section 334 of the industrial Disputes Act 1947
The Appellant s name appeared at SNo 2 in the Letter
By an Office Order the services of the appellant were terminated with immediate effect in accordance with the terms and conditions of the service and a cheque for one month s pay in lieu of notice accompanied the order
The appellant challenged the legality and validity of the order terminating his service in a Writ Petition and a Division Bench of the High Court dismissed the Petition
It held that though on successful completion of the probation period the appellant had been appointed on a regular basis as Store Keeper he was non the less a temporary employee of the Corporation till the date on which his services were terminated
The Corporation was not an Industrial Establishment within the meaning of the expression in the and therefore the Model Standing Orders enacted under the Act were not applicable to the Corporation
The Order of termination of service was not violative of the Oil and Natural Gas Commission Conduct Discipline and Appeal Regulations 1964 as the service of the appellant was not dispensed with on the allegation of misconduct but it was an order of termination of service simpliciter in accordance with Regulation 25
As the service of the appellant were terminated not because of any personal bias of the officers of the Corporation but because of his unsatisfactory work the allegation of mala fides cannot be upheld
Allowing the appeal to this Court  HELD 1 The judgment or the High Court is quashed and set aside and the rule is made absolute in the writ petition
The Oil and Natural Gas Commission is directed to pay Rs2 lakhs to the appellant in lieu of backwages and compensation in lieu of reinstatement within a period of four weeks
The appellant is entitled to relief under section 89 Income Tax Act 1961 read with Rules 21 A of the Income Tax Rule because the compensation awarded include salary which had been in arrears for 18 years as also the compensation in lieu of reinstatement 878H 879A E G 2
If the appellant was appointed on regular basis his service cannot be terminated by one month s notice
If it was by way of punishment as the High Court has found it to be so termination is violative of the principles of natural justice in that no opportunity was given to the appellant to clear himself of the alleged misconduct which proved the real bans for making of the order of termination of service
If it is discharge simpliciter it would be violative of Article 16 because a number of store keepers junior to the appellant are shown to have been retained in the service and cannot be picked arbitrarily
He had the protection of Article 16 which confers on him the fundamental right of equality and equal treatment in the matter of public employment
The several communications which include a letter of appreciation and 871 a certificate eulogizing the services of the appellant clearly show that the charge of unsuitability was either cooked up or conjured up for a collateral purpose of doing away with the service of an active trade union worker who because of his activities became an eye sore
The view taken by the High Court that the termination of service was legal valid or justified is not therefore tenable
877H 878C 4
Ordinarily where the order of termination of service is shown to be bad and illegal the necessary declaration must follow that the employee continues to be in an uninterrupted serviced and he is entitled to full back wages
878D In the instant case the appellant was out of service from December 29 1967A period of nearly 18 years have rolled by and he would have to go back to some chagarined master
On enquiry the appellant informed that substantial and adequate compensation would be more acceptable to him than reinstatement with backwages
878E Shri Sant Raj  Anr
vs Sh
OPSingla  Anr Civil Appeal No 65082 dated April 9 1985 referred to
An unbiased Judge and an opportunity to controvert the allegation and to clear oneself are the minimum principles of natural justice which must inform the drastic power of dismissal affecting the livelihood of an employee
876F 6
The Oil and Natural Gas Commission is an instrumentality of the State and is comprehended in the expression other authority  in article 12 and any termination of service of the employee of the Corporation if successfully questioned would permit the court to make a declaration that the employee continues to be in service
Even if the employees of the Corporation which is an instrumentality of the State cannot be said to be the members of a civil service of the Union or an All India Service or hold any civil post under the Union for the purpose of Articles 310 and 311 and therefore not entitled to the protection of article 311 they would none the less be entitled to the protection of the fundamental rights enshrined in Articles 14 and 16 of the Constitution that is they would be entitled to the protection of equality in the matter of employment in public service and they cannot be dealt with in an arbitrary manner
874G 875C Sukhdev Singh  Ors
vs Bhagatram Sardar Singh Raghuvanshi  Anr  and A L Kalra vs Project and Equipment Corporation of India Ltd referred to