Karnataka High Court
B. T. Vishwanath vs Sri. Lakshminarasimha on 14 February, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL No.2514 OF 2017 (CPC)
BETWEEN
B.T.Vishwanath,
S/o. Late B.V.Thimmappa,
Aged about 55 years,
Working as II Division Clerk
Cum Rent Collector,
SLN Charities, Fort,
Bangalore-560002.
R/at No.24/1, 7th Cross,
N.R.Colony,
Bangalore-560019.
...Appellant
(By Sri. K.L.Ashok, Advocate)
AND
1. Sri. Lakshminarasimha
Swamy Charities,
Rep. by its Chairman,
Sri. N.Srinivasa,
Fort, Bangalore-560002.
2. Sri. Lakshminarasimha
Swamy Charities,
Rep. by its Secretary,
Fort, Bangalore-560002.
...Respondents
(By Sri. K.N.Nitish, Advocate, for R1 & R2)
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This MFA is filed under Order 43 Rule 1(r) of CPC,
against the order dated 25.02.2017 passed on I.A.No.1
in O.S.No.54/2017 on the file of the XXXVII Additional
City Civil & Sessions Judge, Bangalore, (CCH-38),
dismissing I.A.No.1 filed under Order 39 Rule 1 & 2 of
CPC.
This MFA coming on for final hearing this day, the
court delivered the following:
JUDGMENT
This appeal is by the plaintiff in O.S.54/2017 on the file of the XXXVII Additional City Civil Judge, CCH- 38, Bengaluru; He has challenged the order dated 25.2.2017 dismissing the application, I.A.No.1 filed under Order XXXIX Rules 1 and 2 CPC.
2. Plaintiff's case in brief is that, on 21.12.1983, the first defendant trust appointed him as a Second Division Clerk-cum-Rent Collector. His service was made permanent after completion of probationary period. He served in the trust for 33 years. Without any show cause notice or valid reason the trust terminated his services. Therefore, he challenged his termination by filing a suit seeking a 3 declaration that the termination order dated 26.12.2016 is illegal, arbitrary and unsustainable. Along with the plaint, he made an application for temporary injunction for staying the operation of the termination order.
3. The first defendant contended that it is a private trust. Admitting that the plaintiff was terminated from its employment, the first defendant denied that no opportunity was given to the plaintiff before terminating him. It also further pleaded that the plaintiff is not a government servant and therefore question of holding enquiry before terminating did not arise. It also contended that Article 311 (2) of the Constitution of India is not attracted. There were serious allegations of mishandling the financial matters by the plaintiff, and that he also acted against the interest of the trust. Since his employment was at the pleasure of the managing committee of the trust, he was terminated which action was within the frame work of the rules of the trust. The first defendant further stated that the suit is not maintainable and for this reason temporary injunction cannot also be granted.
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4. The learned trial judge having heard the plaintiff and the defendant came to the conclusion that the plaintiff was not entitled to an order of temporary injunction. Its findings are that the plaintiff has failed to make out a prima facie case in the background of the facts that though the first defendant trust was a public charitable trust, it has its own committee of management. Just because the Government of Karnataka has to appoint the Chairman and members of the committee of management, the trust was basically formed to promote moral, intellectual and industrial advancement of the pupils of Jyotinagar Vysya Community, in particular and pupils of other community in general. The trust was formed by Late Jyotinagara Vysya Yajaman Janopakari Doddanna Setty and, therefore, it is a private trust. Having come to the conclusion that the first defendant is a private trust, the trial court further held that it is the committee of management which is entitled to appoint the staff after obtaining approval from the government. The Chairman exercises the disciplinary action in respect of the staff and any action taken by him is 5 appealable to the committee of management. Since the Chairman is the appointing-cum-disciplinary authority he has power to take action. If the plaintiff has been terminated by exercising the powers confirmed on the Chairman, the plaintiff cannot question the same. The plaintiff was in the service of the trust at the pleasure of his employer. No enquiry was necessary before terminating him. Merely because Government of Karnataka has a partial control it cannot be said that the trust is exclusively under the control of the government. The trial court assigned the reason that Order XXXIX Rules 1 and 2 CPC does not contemplate to pass an order staying the operation of the particular order. The plaintiff cannot enforce the personal service. In view of these reasons, the trial court came to the conclusion that a prima facie case is not made out and, therefore, dismissed the application.
5. Learned counsel for the appellant argued that the impugned order is arbitrary and capricious. The trial court has given a wrong finding that the first defendant is a private trust. The nature of the trust, whether private or public, has 6 to be made out from the objects of the trust. In a public trust the beneficiaries are public at large. In this case the trust deed clearly provides that it came into existence for the benefit of pupils of Jyotinagara Vysya Community, in particular and pupils of all other communities in general. Its another object is to feed the Sadhus and to help the poor people of Jyotinagar Vysya Community. These objects make it very clear that the trust is a public trust. In fact, the trust had been notified to be brought under the purview of Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997. Thereafter, on 14.7.2014, another notification was issued deleting the trust from the list of notified institutions. The government appointed committee of management consisting of one chairman and nine members. The Government has control over the management of the trust. Therefore, it is not a private body though it is a trust. For this reason, before terminating a permanent employee of the trust, enquiry needs to be held. The entire action taken by the trust terminating the plaintiff from its services was against the principles of natural justice 7 and the established rules. The trial court holds that the plaintiff had been employed by the first defendant at its pleasure and no enquiry was necessary as the employment of the plaintiff by the first defendant was under a contract. The learned counsel argues that this finding is contrary to law. It is undisputed that no enquiry is held. The plaintiff served the institution blemishlessly for 33 years. His sudden termination was illegal. The plaintiff has lost source of his livelihood. The trial court ought to have considered these aspects of the matter and granted an order of injunction staying the operation of the impugned order. He further submitted that the Civil Court under Order XXXIX Rules 1 and 2 CPC can issue temporary injunction in the nature of staying the order impugned.
6. The learned counsel for the respondent argued that the first defendant is a public trust, being managed by trustees. It is not a "State" within the meaning of Article 12 of the Constitution of India, so as to say that Article 311 of the Constitution gets attracted. Though Rule 33 of the Trust provides that the Committee of Management is empowered to 8 appoint the staff, with the approval of the Government, the character of trust as being managed by trustees still exists. The Government has no word in the administration, much less in taking disciplinary action. The relationship between the appellant and the trust was purely contractual; personal service cannot be enforced. The trial court has rightly dismissed the application applying the correct position of law. Hence appeal deserves to be dismissed.
7. Considering the arguments, the first point that needs to be answered is whether the defendant trust, can be considered as a government controlled institution. The trial court's finding that the defendant is a private trust is wrong; having referred to the judgment of Delhi High Court in SHANTHI DEVI vs STATE (AIR 1982 DEL 453) on the point of difference in private trust and public trust, it should not come to that conclusion. Here the beneficiaries are not ascertained individuals, they are pupils. The other object of the trust is to feed Sadhus' and poor people. Therefore the first defendant is a public trust.
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8. Merely because the first defendant is a public trust, it cannot be said that it has characteristics of a Government Institution. It is argued that the trust was notified under Karnataka Hindu Religious Institutions and Charitable Endowment Act, and therefore it is a governmental organization. But it is also mentioned in the impugned order that the trust was deleted from the list of notified institutions. It is also true that the Government of Karnataka appoints the Chairman and the Committee Members. This control of Government in appointing the management board does not clothe it with character of Government Institution. The trust has come into existence by virtue of registration under Indian Registration Act. Though the objectives are public and charitable in nature, the management is with trustees, without any semblance of Government control in promoting and achieving the objectives of the trust.
9. Therefore, if the plaintiff was terminated, it was in furtherance of power vested in the chairman, who is the appointing-cum- disciplinary authority. As has been rightly 10 held by the trial court, the plaintiff's appointment is governed by private contract, his employment is at the pleasure of the employer. I find no infirmity in the conclusion of the trial court that there is no prima facie case for entertaining the application of temporary injunction. Since discretion has rightly been exercised, there cannot be interference with the impugned order. Appeal is dismissed. No costs.
Sd/-
JUDGE ckl