Karnataka High Court
Saddam Hussain Soferghar vs The General Manager on 29 January, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MRS.JUSTICE S.SUJATHA
WRIT PETITION No.35573/2019 C/W
W.P.No.35445/2019, W.P.No.34596/2019 (S - DIS)
& W.P.No.35930/2019 (S - RES)
IN W.P.No.35573/2019:
BETWEEN:
SADDAM HUSSAIN SOFERGHAR
S/O HASSAN BASHA
AGED ABOUT 29 YEARS
WAS WORKING AS ASSISTANT LINEMAN
SHIKARIPURA
SHIVAMOGGA DISTRICT-577427. ... PETITIONER
[BY SRI M.RAGHAVENDRA ACHAR, ADV.]
AND:
1. THE GENERAL MANAGER
ADM & HRD
MANGALURU ELECTRIC SUPPLY CO. LTD.,
REGD. OFFICE AT: PYARADIM PLAZA
A.B.SHETTY CIRCLE
PANDESHWARA, MANGALURU.
2. THE EXECUTIVE ENGINEER [EL.]
O & M DIVISION
MANGALURU ELECTRIC SUPPLY CO. LTD.,
SHIKARIPURA DIVISION,
SHIKARIPURA
SHIVAMOGGA DISTRICT-577427. ...RESPONDENTS
[BY SRI C.K.SUBRAHMANYA, ADV. FOR
SRI B.C.PRABHAKAR, ADV.]
-2-
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
ANNEXURE-C DATED 09.05.2018 PASSED BY THE
RESPONDENT No.2; AND ETC.,
IN W.P.No.35445/2019:
BETWEEN:
SIDDALINGAPPA BIRADAR
S/O CHANNABASAPPA,
AGED ABOUT 31 YEARS
WAS WORKING AS ASSISTANT LINEMAN,
SOMPUR, BUDIHAL POST,
VIJAYAPURA DISTRICT-586115. ... PETITIONER
[BY SRI M.RAGHAVENDRA ACHAR, ADV.]
AND:
1. THE GENERAL MANAGER
ADM & HRD, BESCOM,
CORPORATE OFFICE,
BENGALURU-560001.
2. THE EXECUTIVE ENGINEER (EL.)
DAVANAGERE DIVISION,
BESCOM, DAVANAGERE-577002. ...RESPONDENTS
[BY Ms. ANNU BHARADWAJ, ADV. FOR
SRI HARIKRISHNA S. HOLLA, ADV.]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
ANNEXURE-C DATED 01.06.2018 PASSED BY THE R-2.
IN W.P.No.34596/2019:
BETWEEN:
CHANDRASHEKHARA SHIVAPPA KUSABI
S/O SHIVAPPA,
-3-
AGED ABOUT 28 YEARS
WAS WORKING AS ASSISTANT LINEMAN,
KANDAGALL, KANDAGAL POST,
BAGALKOT DISTRICT-587154. ... PETITIONER
[BY SRI M.RAGHAVENDRA ACHAR, ADV.]
AND:
1. THE GENERAL MANAGER
ADM & HRD, BESCOM,
CORPORATE OFFICE,
BENGALURU-560001.
2. THE EXECUTIVE ENGINEER (EL.)
DAVANAGERE DIVISION,
BESCOM, DAVANAGERE-577002. ...RESPONDENTS
[BY Ms. ANNU BHARADWAJ, ADV. FOR
SRI HARIKRISHNA S. HOLLA, ADV.]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
ANNEXURE-C DATED 15.05.2018 PASSED BY THE R-2; AND
ETC.,
IN W.P.No.35930/2019:
BETWEEN:
SANTHOSH IVANAGI
S/O SHRISHAIL,
AGED ABOUT 33 YEARS
WAS WORKING AS ASSISTANT LINEMAN,
CHITRADURGA,
CHITRADURGA DISTRICT-577501. ... PETITIONER
[BY SRI M.RAGHAVENDRA ACHAR, ADV.]
AND:
1. THE GENERAL MANAGER
ADM & HRD, BESCOM,
-4-
CORPORATE OFFICE,
BENGALURU-560001.
2. THE EXECUTIVE ENGINEER (EL.)
O & M DIVISION,
BENGALURU ELECTRIC SUPPLY CO. LTD.,
CHITRADURGA DISTRICT-577501. ...RESPONDENTS
[BY SRI H.V.DEVARAJU, ADV.]
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
ANNEXURE-C DATED 31.01.2019 PASSED BY THE R-2.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED, IS COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
These petitions involving similar and akin issues, have been heard together and are disposed of by this common order.
2. The petitioners have assailed the orders passed by the respondent No.2, whereby the petitioners have been dismissed from service.
3. The petitioners were appointed as assistant linemen by the respondents and were serving as probationers. It is submitted that the respondent No.2 -5- had issued show cause notice/s alleging that the petitioners had tampered the marks cards which was denied by the petitioners.
4. It is the grievance of the petitioners that the order of dismissal from service has been passed by the respondent No.2 without holding any enquiry much against Regulation No.11 of the KEB Employees [Classification, Disciplinary, Control and Appeal] Regulations Act, 1987 ['Regulations' for short].
5. Learned counsel for the petitioners placing reliance on the judgment of the Cognate Bench of this Court in W.P.No.46307/2017 [D.D. 19.06.2019], submitted that the petitioners are entitled for the similar relief.
6. Learned counsel for the respondents argued that the petitioners were appointed as assistant linemen. In terms of the appointment order, it was made -6- clear that they will be on probation for one year to assess their suitability for the post. Referring to the conditions of the Appointment Orders, it was argued that the documents/information provided at the time of securing the job if found to be wrong or false, further in any circumstances and for violation of any Rules and Conditions, they will be removed from service without issuing any notice and suitable action shall be initiated against them in accordance with law. It was stipulated that the undertaking to the said effect has to be given on the stamp paper of Rs.200/- and such undertaking shall be placed in the service register. Subsequent to appointment of the petitioners on enquiry made with the concerned authorities, the manipulation made in the marks cards by the petitioners was discovered. Accordingly, notices were issued to the petitioners calling upon them to show cause why they should not be removed from service in addition to initiating criminal action against them for producing manipulated -7- marks cards to secure job, not being convinced, orders of dismissal were passed by the respondent No.2 with the explanation offered by the petitioners.
7. It was submitted that no enquiry as per Regulation 11 is warranted while dismissing the probationers from service. Learned counsel has placed reliance on the following judgments:
1. The workmen of Firestone Tyre and Rubber Co. of India [Pvt.] Ltd., V/s. The Management and Others [(1973) I LLJ 278 SC.
2. Engineering Laghu Udyog Employees Union V/s. Judge, Labour Court and Industrial Tribunal and Another [2004 [100] FLR 843 SC.
3. Kendirya Vidyalaya Sangathan and Others V/s. Ram Ratan Yadav, [2003 I LLJ 403 [SC]].
4. Rajajinagar Co. Operative Bank Ltd., V/s.
K.Gururaj [(2001) 10 SCC 681].
8. I have given my thoughtful consideration to the arguments advanced by the learned counsel -8- appearing for the parties and perused the material on record.
9. It is not in dispute that the petitioners were on probation at the time of passing of the orders of dismissal impugned herein. The core question that would arise for consideration of this Court is Whether holding an enquiry under Regulation No.11 of the Regulations is mandatory for issuing the order of dismissal to a probationer based on the allegation of manipulation of the marks cards - fraudulently obtaining orders of appointment?
10. It is well settled that the purpose of placing a person on probation is to train him during the said period and to assess his suitability for the job concerned. The appointment orders issued to the petitioners would indicate that any documents/information submitted by them if found to be wrong or false, their services would be terminated -9- without issuing any notice and the petitioners have agreed to the said condition by giving their consent individually on the stamp paper of Rs.200/- each.
11. The Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation and Others V/s. Zakir Hussain,1 while considering the termination of service of a conductor appointed by the State Road Transport Corporation on probation based on the remark given by checking staff for carrying number of passengers without tickets found to be not satisfactory, held that an enquiry before making the termination order was not obligatory. Further, the conductor as a probationer had no substantive right to hold the post and in such circumstances, the workman was not entitled to the protection under Article 311 [2] of the Constitution of India. Reference is made to the various judgments of the Hon'ble Apex Court on this issue.
1(2005) 7 SCC 447
- 10 -
12. The terms of service provided that the probationer could be terminated without any notice and without any cause, could not claim the protection of Article 311[2] of the Constitution of India as held by the Seven Judge Bench of the Hon'ble Apex Court in the case of Samshir Singh V/s. State of Punjab2.
13. The Division Bench of this Court in the case of Management of Continental...... V/s. Workmen of Continental.....,3, in the context of the Management dismissing the workman - a probationer for overstaying leave beyond the period of leave originally granted or subsequently extended, held that there is no question of giving hearing before termination of his service since an order of discharge or termination simipliciter is not an order of punishment. However, if an employee who is on probation or holding an appointment on temporary basis is removed from services with stigma because of some 2 1974 2 SCC 831 3 ILR 2004 KAR 54
- 11 -
specific charge; then the plea that his service is temporary or his appointment was on probation is not sustainable. In such a case, it is necessary for the employer to hold an enquiry affording him an opportunity to show that the charge leveled against him is either not proved or is without any basis. It is the very essence of the concept of probation that the person is on trial regarding his suitability for regular appointment and is liable to be discharged on being found to be unsustainable for permanent absorption on the expiry of the probationary period. It is thus clear that it is the inherent power of the employer to terminate during or at the end of the probationary period. However such termination or discharge should be termination or discharge simpliciter and it should not carry any stigma or disability for the concerned workman or employee to secure employment elsewhere.
- 12 -
14. In Ram Saran V/s. I.G. of Police CRPF4, the Hon'ble Apex Court held that no leniency can be shown to a person who has obtained appointment on the basis of forged document otherwise it shall amount to giving a premium to a person who committed forgery. It is well settled law that a Court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution of India must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law [A.P. State Financial Corporation V/s. Gar Re Rolling Mills5].
15. The legal maxim "Nullus Commodum Capere protest de injuria sua propria" [No one can take 4 [2006] 2 SCC 541 5 (1994) 2 SCC 647
- 13 -
advantage of his own wrongs] is one of the sailent tenets of equity.
16. In Kendriya Vidyalayas Sangtan supra, the Hon'ble Apex Court has held that the services of a probationer who gave the wrong information in regard to material particulars for securing the appointment, can be terminated without providing any opportunity to show cause against the proposed termination. However once a probationer is confirmed in the post, he gets the protection of Article 311 of Constitution of India.
17. In the case of Avtar Singh V/s. Union of India and Others6, the Hon'ble Apex Court has held thus:
"33. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran's case (supra), it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, 6 [2016] 8 SCC 471
- 14 -
however we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information."
18. In the light of these judgments, the conclusion which inevitably follows is that the termination of the probationer for producing the fake/manipulated marks cards to secure the appointment fraudulently is an order of termination simpliciter and is embodied in the terms and conditions of appointment order. As such, no shelter under Article 311 of Constitution of India is available to the probationer. Moreover, show cause notice was issued to the petitioners and reply/explanation was submitted by
- 15 -
the petitioners. In such circumstances, holding an enquiry under Regulation 11 of the Regulations is not mandatory. However, the position would be different in case of confirmed employees.
19. As could be seen from the judgment relied upon by the learned counsel for the petitioner it appears there was no occasion for the Hon'ble Court to adjudicate upon the aspect of the dismissal of the probationer sans holding an enquiry under Regulation 11 of the Regulations.
20. The judgments referred to by the learned counsel for the respondents would envisage that if it is apparent from the record that the management had given appointment on probation subject to verification of the facts given in the application form and on verification reveal that the facts given were wrong, the management is at liberty to dispense with the services of the probationer as the question of any stigma and penal consequences at that stage would not arise.
- 16 -
21. It is thus clear that the fraud and misrepresentation vitiates the proceedings and in case employment has been obtained on the basis of forged documents, the probationer may be terminated without holding any enquiry which would certainly disqualify the probationer for the job procured.
22. The sole ground of challenge being not holding an enquiry under Regulation 11, the same being held to be not mandatory, the writ petitions do not merit any consideration.
For the reasons aforesaid, writ petitions stand dismissed.
Sd/-
JUDGE NC.