Termination of service can be punitive in nature even if it is purportedly under the terms of the contract of employment, if it is shown that the employee was singled out for termination on account of misconduct or inefficiency, and that juniors with a better service record were retained in service.

S.K.Jha and S.K.Chaudhuri JJ.

1. These two applications involve the same vexed question, although-in our view-on settled principles, of determining whether, on the facts and in the circumstances of these cases, the termination of petitioners services can be said to be by way of punishment or termination simpliciter under the terms of contract of employment. If it be held that it is by way of punishment, the writ petitions under Articles 226 and 227 of the Constitution of India are bound to succeed. On the contrary, if the petitioners have been thrown out merely under the contract of service, they must fail.

2. Common points on similar set of facts are involved in these writ applications. Therefore, the judgment of C.W.J.C. 2314 of 1979 shall also decide the fate of C.W.J.C. 2989 of 1979. Hence, we proceed to deal with the case of Subhash Chandra Choudhury, the petitioner in C.W.J.C. 2314/79, first.

3. Before dealing with the points involved in this application, it is only necessary and proper that the relevant facts be stated at the outset,

4. C.W.J.C. 2314/79 : The petitioner feels aggrieved by order No. 464 W/C dated 17-7-79 passed by the Managing Director (respondent 3) of the Bihar State Warehousing Corporation, Patna (hereinafter to be referred to as the Corporation), respondent 1, contained in memo No. 2794 dated 17-7-79, by which the petitioners service has been terminated with effect from the afternoon of 17-7-79. A copy of the impugned memo containing the order terminating his service is marked Annexure 1 to the writ application. The petitioner was admittedly appointed as an Assistant under the Corporation on 16-10-69, a copy of his appointment letter being marked Annexure 3. The petitioner, accordingly admittedly again, falls within the category of Class II employee of the Corporation.

Before proceeding with the further naration of facts some cobwebs in the mind of learned Counsel for both the parties have to be cleared. Mr. Prabha Shankar Mishra, learned Counsel for the petitioner, and Mr. Jai Narayan, learned Counsel for the respondents, both proceeded upon the assumption that the Corporation was a statutory body set up under Sec.18 of the Warehousing Corporations Act, 1962 (Act 58 of 1962), a Central Act (hereinafter to be called the Act). But that is not the position, We would have refrained from going into the question had it not been necessary to detain ourselves on this aspect of the matter for testing the validity of the arguments of the learned Counsel for the parties with regard to some statutory regulations which shall be alluded to subsequently at a more appropriate place. The legal position is this. Previously there was a Central Act known as the Agriculture Produce (Development and Warehousing Corporations) Act, 1956 (Act 28 of 1956), (hereinafter to be referred to as the 1956 Act.) Sec.28 of the 1956 Act provided for the setting up of State warehousing Corporations. Sub-section (1) of Sec.28 empowered the State Government, by notification in the official Gazette and with the approval of the Central warehousing Corporation, to establish a Warehousing Corporation for the State under such name as may be specified in the notification. The Bihar State Warehousing Corporation, respondent No. l, was set up by such a notification, as envisaged under Sec.28(1) of the 1956 Act. Sub-section (2) of Sec.28 provided that such a State Warehousing Corporation established under Sub-section (1) shall be a body corporate by the name notified under that subsection, having perpetual succession and a common seal, with power to acquire, hold and dispose of property and to contract, and may, by the said name, sue and be sued. The nomenclature given to respondent 1 was in pursuance of the provisions of Sub-section (2) of Sec.28 of the 1956 Act. That Act further provided under Sec.30 for the Management of a State Warehousing Corporation and set out in Sub-section (1) of Sec.30 that the general superintendence and Manag