Karnataka High Court
Ganapathi P. Hegde vs General Manager (Fpu), Karnataka Agro ... on 2 December, 1994
Equivalent citations: ILR1995KAR427
ORDER Saldanha, J.
1. This Petition is one more of those cases where an employee was sought to be deprived of the normal security and benefits attached to a post by having resort to certain sharp practices. The fact that the respondents are a public sector Corporation only worsens the situation and it is a matter of great regret that such bodies which should normally set an example as model employers are guilty of such indiscretions. The petitioner was appointed as a Sales Personnel by the respondent-Corporation on 26.9.1986. He has specifically averred that this was a permanent vacancy which fact has been refuted by the Corporation which contends that it was entitled to employ the persons on contract basis. Undoubtedly, the appointment letter does state so and this factor is relied upon and very heavily by the respondents who contend that it was a short term contract renewable from year to year if the Corporation so desired and if the petitioner's services were required. That the petitioner has been working for the Corporation for almost eight years until his services were terminated by order dated 25.3.1994 is undisputed. The respondents have however contended that initially the petitioner's services were found unsatisfactory and therefore, his probationary period was extended subsequently. According to them, he has been continued purely by way of a renewal of the initial contract of appointment and they have also pointed out to me that in the year 1992 certain disciplinary proceedings were instituted against the petitioner and an enquiry was held wherein the Enquiry Officer by his report dated 20.8.93 found the petitioner guilty of misconduct alleged against him on most of the charges. The respondents have set up an ingenious explanation for their not having terminated the contract earlier on the ground that in the year 1989 the petitioner approached this Court by way of W.P. No. 4213/89 which was finally disposed of on 3.11.93 with a direction that the respondents should consider the petitioner's case for regularisation of his appointment in the light of the law laid down by the Supreme Court. The pendency of this Writ Petition according to the respondents was the reason why they did not terminate the petitioner's services earlier even though, if as alleged by them his services were unsatisfactory, nothing prevented the Corporation from applying to the Court on this ground. This is a specious explanation, to say the least.
2. After the disposal of the Writ Petition, the respondents were obliged to consider the petitioner's case for regularisation which was not done. As late as on 25.3.1994 the petitioner was served with the impugned order passed by the Managing Director which is one of the strangest orders that I have come across in a long time. After lengthy recitals, the order proceeds to state that the petitioner has been found guilty of certain acts of misconduct in the disciplinary proceedings. The order cryptically stops there as far as this aspect of the matter is concerned and it is therefore evident that the disciplinary authority himself realised that the proceeding itself was totally sham as it was instituted to hit back at the petitioner for having approached the Court for Justice. The Corporation, therefore, quite obviously realised the consequences of proceeding further with that step and therefore dropped the proceedings abruptly, which is evident from the order dated 25.3.94.
3. The impugned order next proceeds to state that the confidential reports for the years 91-92 and 92-93 indicated that his performance was average/below average. Strangely enough, the performance for the preceding year which is the immediate period for assessment has not been set out and it is quite clear that the authority was struggling to make out a case against the petitioner. There is an abrupt statement that the Decisions of the Supreme Court are not applicable to the petitioner's case but there is no indication as to why this conclusion has been arrived at. The petitioner's services have thereafter been terminated by that order with immediate effect. The fact that he was given a sum of Rs. 6000/- in lieu of notice is no consolation as the manner in which the order was passed clearly indicates that it was nothing short of an order of dismissal. It is this order that has been challenged in the present petition.
3a. Mr. Bhagwat, on behalf of the petitioner has placed rightful reliance on the appointment letters issued to the petitioner which unequivocally indicate that it was nothing short of a regular appointment to a permanent post though there are references to the fact that the salary is consolidated at Rs. 1000/- per month and further more, there is a statement that it is a purely temporary appointment. The respondents, as indicated earlier, contend that by virtue of the terms of the contract of service, the appointment was only on an ad-hoc basis and that therefore no rights have accrued to the petitioner. Obviously, they expect this Court to accept the terminology of the various letters/orders issued to the petitioner from time to time. Unfortunately, for the respondents, it is the duty of the Court in appropriate cases such as the present one to construe the real nature of the transaction and not to be misled by any deliberate attempts to create a different impression. The appointment letter goes into everything including the terms and conditions of service such as leave, conduct regulations, confidentiality etc. and therefore, one needs to take cognizance of the fact that it was a full-fledged regular appointment letter to a permanent post though there was a clear attempt to virtually defraud the petitioner of his legitimate rights that would accrue to him as a full fledged employee. It is in this context, that Mr. Bhagwat has relied on the Decision of the Supreme Court , Bhagwati Prasad v. Delhi State Mineral Development Corporation, wherein the Supreme Court was concerned with the practice of keeping persons on daily wages and giving them breaks in service purely in order to deprive them of the security of tenure and the Supreme Court not only disapproved of such practices but directed regularisation. Mr. Bhagwat also relies on a Decision of this Court in I.L.R. 1991 KAR 2488, Umesh S. Naik v. Karnataka Food & Civil Supplies Corporation, wherein under slightly different circumstances, this Court set aside orders of termination which were held to be malafide and directed reinstatement of the petitioners. Mr. Bhagwat draws a parallel with the present case and submits that the order of termination in this case is vitiated by malafides and liable to be quashed. Towards this end, he submits that it was the wrongful acts of the respondents in denying the petitioner a permanent appointment that forced him to seek the protection of this Court, Only because he had done so, the respondents got after him from every conceivable angle including institution of disciplinary proceedings and once the case was over, they have hit back at him and terminated his services. Mr. Bhagwat states that the so called confidential reports or assessments cannot be relied upon by the respondents because his client has never been aware of these reports and the same was prepared behind his back. As regards this last aspect of the matter, I had occasion to observe that they are not the immediately past records. I need to uphold the objection canvassed by the learned Counsel also on the ground that it is a well settled principle of Service Law that adverse confidential reports must be communicated to the employee concerned, the first reason being that the employee should improve his performance if it is found to be wanting. More importantly, Courts have taken Judicial notice of the fact that such adverse reports are often times unjustified, motivated or baseless. Therefore, it is an inflexible Rule of Service Law that adverse reports must be communicated in writing and the employee given an opportunity to represent against them, if these have not been communicated, they cannot be acted upon to the detriment of the employee. Mr. Bhagwat is therefore right even on this count when he submits that this Court must ignore the so called adverse reports.
4. I need to deal in passing with the wording of the appointment letters issued to the petitioner because it is on this basis that the respondents argued that he has no case. That the petitioner was at all times in need of the job is undisputed and it is a sad reflection on a public sector Corporation that it exploited the situation in which a poor young man was placed by seeking to deprive him of his rightful emoluments and further more, by seeking to hit back at him when he approached this Court for Justice. The appointment letters are hit by the principle of unconscionability. The Supreme Court had occasion to deal with the doctrine of unconscionability in the celebrated case of Central Inland Water Transport 3. and it is well settled law that where a dominant party seeks to take undue advantage of another particularly in matters of service, that a Court will refuse to enforce that contract but would on the other hand construe it in the light of principles of fair play. Applying those principles, I have no hesitation in holding that the petitioner was rightfully appointed to a permanent post and that he is entitled to receive his salary and emoluments in keeping therewith. It also follows that the abrupt termination of the petitioner's service which is akin to an order of dismissal is wholly and completely defenceless and will necessarily have to be quashed.
5. I need to deal with in passing the Decision of the Supreme Court , V. Balasubramanian and Ors. v. Tamil Nadu Housing Board and Ors. cited by the petitioner's Counsel on the basis of which, he submitted that the Supreme Court held that after the initial period of qualifying service, the junior engineers were entitled to the posts in question despite an error in the Rules. In the light of that Decision Mr. Bhagwat submits that this Court must construe that the petitioner, after having completed his initial period, had qualified for appointment. In this regard, he relies on Annex.C to the Petition dated 5.10.87 which is a recommendation by the General Manager which reads as follows:-
"I would now say with reasonable certainty that Sri Hegde is above average and his performance is reasonably good. I believe it is neither good for him nor for the corporation to keep the matters pending. Therefore he may also be considered for permanent appointment."
On this basis, to my mind the petitioner is fully justified in his contention that the respondents are Virtually estopped from contending that he was not qualified for permanent appointment.
6. Counsel representing the respondent Corporation sought to alternatively contend, that the record of the case justifies the termination because the work of the petitioner was found to be substandard. For this purpose, he relies on the confidential reports which I have already dealt with and which to my mind, cannot be used against the petitioner for an additional reason in so far as, when there is documentary evidence to indicate that he was found to be good in his work and of a sufficiently high calibre, it is difficult to accept that he could have suddenly undergone rapid deterioration. That record is obviously tainted and bears a relation to the petitioner having moved the Court. In this regard, Courts will have to take very serious notice of incidents of the present type. An employee is at a disadvantageous position even when dealing with a company or a small firm and the contest becomes hopelessly lop-sided when the respondents are a public Corporation or a Government. In such a background, it is with a high degree of fear that an employee approaches a Court even in the face of injustice and, it has almost become dangerous for an employee to succeed because the respondents are invariably hell-bent on retribution thereafter, Courts of Justice will therefore have to deal very firmly with such post litigational revenge-actions and the present case is one such. The officers of the respondent-Corporation responsible for this will have to take serious note of the fact that the Courts will neither tolerate nor condone misconduct of the present type which is nothing short of an act of contempt.
7. Respondent's Counsel who has produced the record of the enquiry proceedings has contended that the petitioner had unjustifiably stayed away from his duties and that he has committed other acts, of misconduct which were sufficiently serious. He contends that the enquiry officer has recorded findings against the petitioner which would fully justify an order of dismissal. This argument cannot avail the respondents who have dropped the enquiry proceedings of their own accord and who are therefore estopped from trying to rely on them in support of their action. On the contrary, those proceedings are virtually fatal to the respondent's case because they cut across the very foundation of the defence in so far as unless the petitioner was a full fledged employee, they could not have charge-sheeted and subjected him to disciplinary proceedings.
8. Lastly, the respondents Counsel submitted that the only direction from this Court on the earlier occasion was that the respondents should consider the petitioner's case for regularisation of his services and that it was therefore within the discretion of the respondents to absorb him or not to absorb him. In the light of that order, an ingenious argument has been put forward namely that the petitioner cannot claim his rights to the substantive post since that issue was yet to be decided and the respondents contend that his overall record did not justify any such regularisation. To my mind, what is sought to be contended is that this Court cannot go behind the last order or for that matter, nor can it examine the validity of the order of termination. I have carefully gone through the earlier order of this Court and the Petition filed on the last occasion and I find that the solitary ground on which the matter was disposed off was that the petitioner contended that he was entitled to the benefit of the Supreme Court Judgment in relation to regularisation of teachers and others who had worked for a certain period of time. That was not a decision on merits because the Court left that consideration to the Corporation in the faith that the Corporation would fairly and correctly and in keeping with principles of law decide the petitioner's case. That unfortunately has not happened which is why the petitioner has come back to Court with a composite challenge and on this occasion, the entire evaluation on merits has to be done by the Court. The last order therefore would not create any bar to a decision on merits at this point of time.
9. Before parting with this case, I need to observe that this Court has come across a large number of instances where the pernicious practice of appointing persons temporarily on a contract basis or in the case of members of the teaching profession, by giving them several breaks under the guise of reappointing them. These are down right wrong and dishonest practices and in all instances where it is demonstrated to the satisfaction of the Court that the post existed, that the person was duly qualified and that an attempt has been made to deliberately harass and deprive the employee of just dues, benefits and security of tenure, the Court is obliged to set the record right.
10. On an overall view of the record of this case, to my mind, the petitioner qualifies for the reliefs asked for. The petition accordingly succeeds. The order of termination dated 25.3.94 is quashed and set aside. The respondents are directed to forthwith reinstate the petitioner to the post last held by him. The respondents shall compute the normal salary payable to the petitioner having regard to his seniority with effect from the date of his original appointment i.e. 26.9.1986 and shall pay to the petitioner his salary and allowances on that scale with effect from 1.12.1994. The respondents shall compute the normal salary that would have been received by the petitioner in the substantive posts that has been held by him all these years and shall pay to him the arrears at the very earliest but not later than 31.3.1995. The petitioner shall be treated as a full fledged employee of the respondent-Corporation for all intents and purposes having regard to the findings in this Judgment. The respondents, in the light of the observations made in this Judgment shall ensure that no further vindictive action is taken against the petitioner unless they desire to invite contempt proceedings from this Court. Rule absolute accordingly. No order as to costs.