Karnataka High Court
Umesh S. Naik vs Karnataka Food And Civil Supplies ... on 25 March, 1992
Equivalent citations: ILR1992KAR2488, 1992(3)KARLJ405, (1993)ILLJ448KANT
ORDER
1. Since the questions involved in all these petitions are common, these petitions are clubbed and disposed of by this Common Order.
2. The case of the petitioners in all the petitions is that first respondent appointed either on February 29, 1988 or on September 5, 1988 and on subsequent dates these petitioners either as Junior Assistants or Class IV employees on temporary basis. After thus appointing, all the petitioners reported for duty and continued in respective posts. They were given increments and other benefits entitled to. When such being the position, the respondent-1, without servings a notice to these petitioners and hearing them in the matter, by an order dated August 5, 1989 terminated the services of the petitioners. One of the termination orders of one of the petitioners reads as follows :-
"The services of Sri. V. C. Naik, who has been appointed as Junior Assistant/Sales Assistant on purely temporary basis, are hereby terminated with immediate effect since the management has decided that his services are no longer required".
Aggrieved by the order of termination the petitioners have approached this Court under Article 226 of the Constitution of India with a view to get protection to their service conditions and the relief sought in all the petitions are almost identical and substance of the relief reads as follows :-
"(i) that the orders of termination are against the principles of natural justice;
(ii) though the petitioners were appointed on temporary basis but allowed them to continue for a period of more than one year and even they were given increments, made them to believe that their services are going to be regularised, as such they did not try for jobs elsewhere, under these circumstances it is not open to the respondent Corporation to discontinue their services, thus the Respondent was not justified in terminating their services;
and
(iii) that the reason given by the Respondent in the orders of termination that their services are terminated as the management has decided that their services are no longer required, is without any basis."
After hearing both sides, earlier I had passed an order on July 3, 1990 quashing the order of termination made by the 1st respondent by its order dated September 5, 1989. The petitioners contended :-
(a) the order of termination quite arbitrary and made with a mala fide intention so as to accommodate others in place of the petitioners;
(b) the termination is not in conformity with Section 25(F) of the Industrial Disputes Act;
(c) that substantial delay may cause if they are asked to approach the Industrial Tribunal for relief.
Thus they requested this Court to exercise its power under Article 226, without directing the petitioners to exhaust alternative remedy.
3. The respondents denied the contentions put forward by the petitioners and resisted the claim by filing objections. It was contended by them that appointments were made purely on temporary basis; that as the services of the petitioners were no longer required by respondent-1 their services were terminated and that the said terminations were not with any mala fide intention; when there is alternative remedy of approaching the Industrial Tribunal available to the petitioners, it is not proper to seek relief under Article 226 of the Constitution.
4. After giving my careful thought to the rival contentions, a Common Order dated July 3, 1990 was passed allowing all the Writ Petitions observing that when once appointment is made, it is not proper to terminate the services of the petitioners unless it is shown that the establishment is abolished. It was also held that termination was quite arbitrary, inasmuch as the respondents terminated the services of the petitioners even though at the time of termination, and even a little earlier to that, respondent-1 appointed others for the similar posts. Regarding alternative remedy it was observed that the same was not an universal Rule of Law so as to apply in all the cases but theory of exhaustion of alternative remedy be dispensed with in appropriate cases. While so observing that order of termination dated September 5, 1989 were quashed directing the respondents to continue the services of the petitioners in their respective posts with all consequential benefits. It was also observed that in case the Corporation wants to make regular appointments to these posts preference should be given to these petitioners. Respondents challenging my above order preferred Writ Appeals in W.A. Nos. 2559 to 2591/90. By an order dated January 10, 1991 the Division Bench of this Court disposed of the said Writ Appeals which read thus :-
"After much arguments are advanced on behalf of the appellant stating that the impugned orders are innocuous in nature, according to the respondents these orders are no more than a camouflage in order to oblige the Karnataka Food and Civil Supplies Corporation Employees Union (Reg.), Bangalore, because of the pressure exerted by it; therefore, the impugned orders are not innocuous but it is actuated by mala fides. Unfortunately, though this point was raised in the Writ Petition, it has not been traversed by the Appellant-Corporation, nor again do we find this was argued before the learned Judge, much less dealt with. Therefore, we hereby set aside the Judgment of the learned Judge and remit the matter to him for re-consideration."
5. Subsequent to the order passed in Writ Appeals, all the petitioners again requested for further hearing. An opportunity was given to both sides to establish their case, namely, whether orders of termination are a camouflage in order to oblige the Karnataka Food and Civil Supplies Corporation Union (Reg.), Bangalore or orders of termination are innocuous in nature.
6. In order to see justice is not only done but it is seen to be done, sufficient opportunity of hearing was given to both the parties. They were even permitted to file additional statement of facts, if any, if they so choose. The cases were heard on different dates as desired by the Counsel. They were permitted to cite authorities which they wanted to rely upon in support of their case. Majority of the authorities relied upon by both sides cover the same principle. Hence, the present Order.
7. In order to dispose of these Writ Petitions it is proper to once again repeat a few facts which gave rise to these Petitions.
The case of the petitioners is that the Karnataka Food and Civil Supplies Corporation, Bangalore, which is respondent in all the Petitions is an undertaking of the State of Karnataka. Thus it is an authority as defined under Article 12 of the Constitution of India. Its main function is to have control and supervision over proper distribution and rationing of foodgrains in the State. In order to see that its functions are discharged effectively respondent thought to fill up posts of various categories including Junior Assistants, Class IV employees etc. Pursuant to the Notification issued in local papers thousands of candidates including the petitioners submitted their applications. Subsequently, either on February 29, 1988 or on September 5, 1988, respondents appointed petitioners either as Junior Assistants or as Class IV employees. The said appointments initially were purely on temporary basis. After their initial appointment the Corporation felt necessity to continue their service without terminating them within a period of one year. Respondents also granted increments to all the petitioners. Thus respondents made all the petitioners to believe that their services are going to be regularised.
Even though there was necessity to retain the services of the petitioners and there was scope and possibility to extend the activities of the respondent-Corporation by appointing additional staff, curiously by an order dated August 5, 1989 respondents terminated the services of the petitioners even without serving a notice. The said order of termination is extracted above. Aggrieved by the said termination the petitioners contended that the said termination is quite arbitrary, illegal and punitive in nature. The termination order is not only arbitrary but it is discriminatory in nature in that during the same period respondent appointed others to the similar post, thus it is violative of Article 14 of the Constitution. According to the petitioners the termination orders are resultant of mala fides. The same is passed with a view to oblige the threat given by the Karnataka Food and Civil Supplies Corporation Union (Regd.), Bangalore, in their letter dated July 24, 1989 addressed to the 1st respondent which is at Annexure-D to the Writ Petition which was followed by an order of termination dated August 5, 1989. When the posts of Junior Assistants and Class IV employees are not abolished it is improper on the part of the respondent to say "that the management has decided that the services of the petitioners are no longer required."
The petitioners further contended that the order of termination is in direct contravention of Articles 14 & 16 of the Constitution of India. It is punitive in nature and amounts to retrenchment. Thus it is in violation of Section 25(F) and 25(oo) of the I.D. Act. Since nothing more deserves to be considered except to consider whether termination is illegal or otherwise, there is no need to direct the petitioners to agitate their grievances by seeking reference under the I.D. Act. On the other hand their complaint can be enquired into by this Court and necessary relief can be granted under Article 226 of the Constitution. Thus the petitioners requested for reliefs of reinstatement with continuity of service and salary. Learned Counsel for the petitioners placed reliance on the following Authorities :-
1. 1984 (1) K.L.J. 552
2. 1967 (1) Mys. L.J. 612
3.
4. 1987 - I - LLJ - 545
5.
6. (AIR) 1958 SC 38
7. 1974 - I - LLJ - 172
8. AIR 1980 SC 42
9. .
10.
11. 1981 - II - LLJ - 386
12. .
13. 1986 - II - LLJ - 351
14.
15. .
16. .
17.
18.
19. (AIR) 1958 SC 86
20.
21. 1970 - I - LLJ - 649
22.
23. .
24.
25.
8. Sri. Upadhyaya, learned Counsel for Respondents, while denying the contentions of the petitioners, supported the termination thus :
(i) The termination of petitioners is not in any way arbitrary or illegal as their initial appointments were purely on temporary basis and liable to be terminated whenever their services were not required.
(ii) In order to see vacancies of different categories are filled up by the 1st respondent, applications were called for and thousands of applications were received. Before the same being scrutinized, yielding to the influence brought by these petitioners from the then Secretaries etc., Respondent No. 1 appointed the petitioners to different posts. Later it was brought to the notice of the Department, the irregularity in appointing these petitioners. Hence decision was taken to terminate the service of these petitioners and then to make appointments as per service conditions, that too complying the roaster system regarding appointment.
(iii) Respondents' further case is that concerned Minister and some M.L. As also brought to the notice of the Government that persons belonging to their caste are not properly represented and the candidates from their constituencies are not given preference and roaster system not properly followed.
(iv) According to the respondents it is incorrect to state that the orders of termination in any way offends Articles 14 or 16(1) of the Constitution as it is not shown as to how the terminations are illegal or against the principles of natural justice which resulted indiscrimination. According to them the terminations of the petitioners is purely termination simpliciter and not 'retrenchment'. Hence section 25(F) or 25(oo) of the I.D Act, has no application to the case of the petitioners. On the other hand it is only Section 2(oo) bringing an amendment to the definition of 'retrenchment' by introducing an exception under (bb) of Industrial Disputes (Amendment) Act, 49/1984 that is applicable.
(v) According to the respondents the terminations are in no way resultant of mala fides and they are not made with a view to oblige the threat given by the Employees' Union of the 1st respondent.
(vi) Shri Upadhyaya, learned Counsel for the Respondents, further contended that initial appointments of the petitioners were in violation of the Rules of the Corporation, namely, Karnataka Food and Civil Supplies Corporation Ltd., Service Rules, 7 to 9 and Rule 15(a) and (b) of the Rules.
(vii) There is nothing to show that the termination is in any way against the principles of natural justice as compliance of audi alteram partem rule not required when appointments were purely temporary in nature.
(viii) Mere allowing the petitioners to work in different capacities for a period of more than 240 days and giving them increments etc, is itself not a qualification so as to assert that the petitioners are entitled to continue in service.
(ix) When the petitioner have an alternative remedy to seek reliefs this Court shall not grant relief under Article 226 of the Constitution.
For the above reasons, respondent's Counsel contended that the Writ Petitions be dismissed.
9. Subsequent improvement of the case of the Respondents is that subsequent to the order passed by the Division Bench respondents filed additional statement of objections contending that the advertisement was issued in June 1987 for various posts including 104 posts of Junior Assistants/Sales Assistants, and 50 posts of Class IV staff. Pursuant to the same 57, 725 applications in respect of Junior Assistants/Sales Assistant and 14,670 applications seeking appointment of 50 posts of Class-IV employees were received. Before the scrutiny, officials of the 1st respondent had gone ahead in appointing these petitioners for extraneous considerations. The petitioners obtained their appointment in a dubious method and not in any straight-forward way. Thus they are not entitled to take advantage as according to respondents petitioners by playing fraud obtained appointments. Respondents also produced a report on the appointments made, along with the additional statement of objections. The said report is at Annexure-A dated March 19, 1989 submitted to the Corporation regarding employment position etc. An extract of the proceedings of the 114th Board Meeting held on May 19, 1989 and the decision taken on subject No. 23 relating to appointments made in early 1988, dated August 5, 1989 are produced at Annexures-B and C respectively. Annexure-C reads thus :-
"EXTRACT OF PROCEEDINGS OF THE 116TH BOARD MEETING HELD ON AUGUST 5, 1989.
Subject No. 23 :-
Appointments made in early 1988. ........... ........... ..........
The Board perused the note as well as the opinion given by M/s. Sundaraswamy, Ramdas and Anand, Advocates in this regard. The Board was further informed that the subject matter has been referred by the Government to C.O.D. The Board also noted that the legal advisor has also prima facie expressed that these appointments are bad in law and patently invalid. However, he has opined that these appointees having worked for more than 240 days, gets an inherent right notwithstanding the fact the appointments made were irregular. He has also given a solution to say that we might give them show-cause notices before termination. However, the Board felt that the show cause notices were not necessary. It was also felt that the show cause notices might be challenged in the Court of law. Moreover, the show cause notice should indicate the prima facie grounds for termination which are not available on records. Considering all the aspects in this case, particularly in view of the fact that the Appointment Orders inter alia stated that their services are liable to be terminated without any notice at any time in case their services are not found satisfactory or in case their services are not required, the Board decided that their services should be terminated forth-with and that the Orders in this regard should be issued immediately."
Thus for the reasons stated above, respondents' Counsel contends that there is no merit in any one of the contentions raised by the petitioners and hence the same is liable to be rejected.
10. In support of his contentions Sri. V. H. Upadhyaya, learned Counsel for the respondents, relies upon the following authorities for the proposition :-
(i) That when an alternative remedy is available it is not proper for this Court to interfere under Article 226 of the Constitution;
(ii) When the initial appointments were purely on temporary basis, question of hearing before termination does not arise and the petitioners by playing fraud secured appointments and such persons do not deserve to continue in service :
(iii) When appointments were made ignoring the provisions of law which governs the matter of recruitment and promotion, such appointments cannot be said to be regular, hence the termination is not bad.
(iv) Orders of termination are simpliciter in nature. They are not tainted with any mala fides and if petitioners really have submitted their applications the same be considered along with other applications when the respondents are going to make recruitment. In other words, terminations are purely innocuous in nature.
Reliance is placed on the following Authorities :
1. 1989 75 FJR 17;
2 (1991) 78 FJR 250;
3 (1990) 76 FJR 271;
4. ;
5, ;
6. 1990(2) Karnataka L.J. 168;
7. 1986 - II - LLJ - 351
8. .
From the pleadings and the contentions raised on both sides, the points that arise for consideration are :-
1. Whether the termination of the petitioners is arbitrary and against the principles of natural justice;
2. Whether alternative remedy available to the petitioners is a bar to seek for reliefs under Article 226.
3. Whether petitioners played any fraud in obtaining appointments.
4. Whether there is any non-observance of recruitments Rules by the 1st respondent while appointing the petitioners;
5. Whether the petitioners are entitled to continue in service.
1. Whether the termination order is arbitrary and against the principles of natural justice ?
In order to decide the above point it is now proper to know whether the Authorities relied upon by both sides are in any way helpful to them.
In the case of Commissioner of Police v. Gowardhan Das Bhanji , the Supreme Court while dealing about the duty of the public authorities while passing orders held at paras-9 and 10 as follows :-
"9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
10. Turning now to the language used we are clear that by no stretch of imagination can this be construed to be an order which in effect says "I, so and so, by virtue of the authority vested in me, do hereby order and direct this and that." If the Commissioner of Police had the power to cancel the license already granted and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms. Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order."
In the case of Mohinder Singh Gill & Another v. Chief Election Commissioner, New Delhi & Others , the Supreme Court while dealing about the power of statutory authority, duty of statutory authority - while passing orders - validly etc., it observed as follows :-
"When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may, by the time it comes to Court on account of challenge, get validated by additional grounds later brought out. "
It is also said that such orders shall be in consonance of principles of natural justice because Their Lordships observed that philosophy behind natural justice is in one sense participating justice in the process of democratic rule of law.
11. In the case of Manager, Government Branch Press & another v. D. B. Belliappa 1979 - I - LLJ - 156 while dealing about the effect of termination of temporary servant without assigning any reason and retaining juniors and terminating the services of seniors held the same amounts to hostile discrimination. At paras-18 and 24, Their Lordships held as follows (pp.159-160, 161) :
"18. Mr. Veerappa's first contention is that Articles 14 and 16(1) of the Constitution have no application, whatever, to the case of a temporary employee whose service is terminated in accordance with the terms of conditions of his service because the tenure or the duration of the employment of such an employee is extremely precarious being dependent upon the pleasure and discretion of the employer State. In our opinion, no such generalisation can be made. The protection of Articles 14 and 16(1) will be available even to such a temporary Government servant if he has been arbitrarily discriminated against and singled out for harsh treatment in preference to his juniors, similarly circumstances. It is true that the competent authority had a discretion under the conditions of service governing the employee concerned to terminate the latter's employment without notice. But such discretion has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic polity is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and 16(1). Article 16(1) guarantees "equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State". Moreover, according to the principles underlying Section 16 of the General Clauses Act, the expression 'appointment' used in Article 16(1) will include termination of or removal from service also."
"24. Conversely, if the services of a temporary Government servant are terminated, arbitrarily, and not on the ground of his unsuitability, unsatisfactory conduct or the like which would put him in a class apart from his juniors in the same service, a question of unfair discrimination may arise, notwithstanding the fact that in terminating his service, the appointing authority was purporting to act in accordance with the terms of the employment. Where a charge of unfair discrimination is levelled with specificity, or improper motives are imputed to the authority making the impugned order of termination of the service, it is the duty of the authority to dispel that charge by disclosing to the Court the reason or motive which impelled it to take the impugned action. Excepting, perhaps, in cases analogous to those covered by Article 311(2) proviso (c), the authority cannot withhold such information from the Court on the lame excuse, that the impugned order is purely administrative and not judicial, having been passed in exercise of its administrative discretion under the rules governing the conditions of the service "The giving of reasons" as Lord Denning put it in Breen v. Amalgamated Engineering Union (1971) 1 All ER 1148 "is one of the fundamentals of good administration" and, to recall the words of this Court in Shadi Ram v. State of West Bengal in a Government of laws "there is nothing like unfettered discretion immune from judicial reviewability." The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomised in Art. 14 and 16(1)".
12. In the case of Indrapaul v. Managing Committee , the Supreme Court took a view that termination of a Principal who was on probation and was dismissed based on a stigma, in the absence of any enquiry was illegal.
13. In the case of Central Inland Water Transport Corporation Ltd & another v. Brojonath Ganguly & another 1986 - II - LLJ - 171 the Supreme Court observed that termination without giving any reason and without giving any notice is void and opposed to public policy.
14. In the case of P. Nagaraj v. Joint Registrar of Cooperative Societies this Court observed that while exercising administrative powers the discretion shall be exercised properly and it shall be reasonable.
15. In the case of Delhi Transport Corporation v. D. T. C. Mazdoor Congress & Others 1991 - I - LLJ - 395, it is held that the removal of a permanent employee without assigning any reasons, the Regulation is arbitrary, unfair, unjust, unreasonable and opposed to public policy.
16. Regarding the principles of natural justice and its non-compliance, learned Counsel placed reliance in the case of Union of India v. E. G. Namboodri 1991 - II - LLJ - 594, wherein it is held that the order is not invalid merely because reasons are not given.
17. In the case of S. L. Kapoor v. Jagmohan & Others , it is observed that the person proceeded against must know that he is required to meet the allegations which might lead to a certain action being taken against him. If this is made known the requirements are met. It is further observed that merely because facts are admitted it does not follow that natural justice need not be observed.
18. From the above it is clear that while passing even an executive order, whether it is termination or otherwise, not only serving a notice is necessary, but also such an order shall be fair, and spell out reasons and to be heard in the matter. Otherwise it amounts to non-compliance of principles of natural justice.
19. In the case of S. Govindaraju v. K.S.R.T.C. 1986 - II - LLJ - 351 the Supreme Court held that termination of temporary or badli employee without considering the case of such an employee for appointment though vacancy had arisen is quite illegal. When a candidate is selected he gets a right to appointment to be considered. The observations are at para-6 and the relevant portion at para-6 reads thus (p. 353) :
XXXXXXX XXXXXXXXXXXX XXXXXXXXX There is no dispute that the appellant was allowed to be in continuous service for a period of more than one year and while he was in continuous service the impugned order of termination was issued in accordance with Regulation 10(5). xxxx Before the services of an employee are terminated, resulting into forfeiture of his right to be considered for employment, opportunity of explanation must be afforded to the employee concerned. The appellant was not afforded any opportunity of explanation before the issue of the impugned order. Consequently the order is rendered null and void being inconsistent with the principles of natural justice. We accordingly allow the appeal and set aside the order of the High Court and also the order of termination and direct that the appellant shall be treated as in service and be paid his backwages and other benefits. The appeal is allowed with costs."
20. In the case of Union of India v. N. Hargopal & others 1987 - I - LLJ - 545 the Court had to consider whether appointments made where the Employment Exchange failed to forward the names of the aggrieved persons seeking employment and making appointments in the absence of names being sponsored by the Employment Exchange as illegal or otherwise, the Court observed that appointments are irregular in the sense Employment Exchange failed in forwarding the list of candidates eligible to seek appointment. However, such appointments shall not be terminated for the fault of Employment Exchange.
Point No.2. Whether alternative remedy is a bar to exercise powers under Article 226 of the Constitution :
21. For this proposition the petitioners relied upon some of the Authorities. In the case of State of U.P. v. Mohammed Nooh (AIR) 1958 SC 86 it is observed thus :-
"There is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. Provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior Court in arriving at a conclusion as to whether it should, in exercise of discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior Courts subordinate to it and ordinarily the superior Court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law. The superior Court will readily issue a certiorari in a case where there has been a denial of natural justice before a Court of summary jurisdiction."
22. In the case of Municipal Council, Khurai & Another v. Kamal Kumar & Another , it is observed thus in para-7 :-
"Before us it is contended by Mr. Setalvad on behalf of the Council that an appeal had already been preferred by respondents against the assessment list and, therefore, they were not entitled to any relief under Article 226 of the Constitution. It is true that the High Court would not ordinarily entertain a petition under Article 226 of the Constitution where an alternative remedy is open to the aggrieved party. Though that is so, the High Court has jurisdiction to grant relief to such a party if it thinks proper to do so in the circumstances of the case. In the present case the High Court has chosen to exercise discretion in favour of the respondents and it would not be right for us to interfere with the exercise of that discretion unless we are satisfied that the action of the High Court was arbitrary or unreasonable. Nothing has been brought to our notice from which it could be inferred that the High Court acted arbitrarily in granting the writ prayed for to the respondents."
23. In the case of First Income Tax Officer, Salem v. Short Brothers (P) Ltd. it is observed thus in para-3 :-
"It is true that normally the High Court will not entertain the petition in exercise of its jurisdiction under Article 226 of the Constitution when the party claiming relief has an alternative remedy which is adequate and efficacious. The question, however, is one of discretion of the High Court and not of its jurisdiction, and if the High Court in exercise of their discretion thought that the case was one in which their jurisdiction may be permitted to be invoked, this Court would normally not interfere with the exercise of that discretion."
24. In the case of M/s. Baburam Prakash Chandra Maheswari v. Antarim Zilla Parishad, it is observed thus in para-3 :-
"It is a well established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs" and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a Writ Petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy and discretion rather than a rule of law and the Court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted."
25. In the case of The Karnataka State Tourism Development Corporation v. T. Narayana Bhat & Others 1987 (1) KLJ 437 wherein the Court held that the whole of the rigour of Section 25-F may be overcome by every employer providing in any service regulations or standing orders, a provision for a long period of probation, during which such probationary employee may be removed from service by discharge simpliciter notwithstanding the fact that there is Section 25-F operating in favour of the employees who have put in more than one year continuous service.
26. In the case of Karnataka State Road Transport Corporation & Others v. Karnataka State Transport Authority & Another. 1984 - I - KLJ - 552, it is observed thus in para-9 :
"xxxxxxxxxxxxxxxxxxxxx In regard to the effect of the existence of an alternative remedy in the context of certiorari, Halsbury (IV Edn) Volume 11 para 1528 states :-
"There is no rule in regard to certiorari, as there is with mandamus, that it will lie only where there is no other equally effective remedy; and provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by Statute."
27. In the case of VISL Contract Workers Association (R) & Another v. Visveswaraya Iron & Steel Ltd 1990 (2) KLJ 168, it is observed that the petitioners should exhaust alternative remedy available to them.
28. This Court in Writ Petition Nos. 11642, 11664 and connected matters of 1989, disposed of on October 6, 1989 (T. Raju v. K.S. Construction Corporation) it is observed thus :
"From the explanation in the statement of objection and other circumstances of the case, it is clear that the Corporation did not appoint these petitioners just to satisfy a temporary need. It has also brought to my notice the proceedings of the Government of Karnataka dated January 12, 1989 directing the entrustment of the construction of certain medium projects to the Corporation. The said order approved the entrustment of two works to the Corporation immediately. The petitioners also assert that the Corporation is preferred by the P.W.D. in entrusting the departmental work. There is also no dispute that the Corporation may take up other works. Judicial notice can be taken about the vast expanding activities of the State in the sphere of construction, road making etc., and there is no reason as to why the Corporation should not benefit from these activities.
Therefore, it is not possible for me to accept the contention of the learned Counsel for the respondent that the Corporation is not in a position to make permanent appointments as such, without any other material before the Court.
It is also clear that several officials working at present with the respondent Corporation are on deputation from other departments and these deputationists are paid deputation allowance, apart from their usual salaries. It is a matter for the Corporation to consider, whether such deputationists should be continued or they can be sent back without jeopardising the efficiency of the working of the Corporation. This observation is made in the context of the plea put forward by the Corporation that it is not in a position to make fresh appointments due to economic constraints. The economy in the total expenditure of an organisation like the Corporation is not dependent solely on the termination of the services of few members of the staff. Economy could be achieved by resort to so many other rationalisation programmes and a sense of dedication in the discharge of their respective duties by all concerned and even a small measure of control over the travelling expenses by the men in charge of the affairs also may held reduction of wasteful expenditure.
It is necessary to direct the Corporation not to terminate the services of the petitioners immediately, but to consider the case of filling up of the posts permanently in the light of the observations made above and in such a scheme of making the appointments permanently, preference shall be given to the petitioners.
In the result for the reasons stated above, I make the following :-
ORDER These petitions are allowed; the terminations of the services of the petitioners are set aside and the respondent Corporation is directed to continue the services of the petitioners in their respective posts till it examines the question of filling up of the posts regularly on a permanent basis. As and when regular and permanent appointments are to be made, provision shall be made to give preference to the respective petitioners in the selection."
29. In the case of Achutha H.S. v. Chief Engineer (Chakra) & Others 1985 (2) KLJ 44, it is held that it is not an inflexible rule that before Court's jurisdiction under Article 226 of the Constitution, to drive the party always to exhaust the alternative remedy under the statute.
30. In the case of Hariba v. K.S.R.T.C. 1983 - II - LLJ - 76 (Karn), the Court observed thus in para-16 (p.84) :
"Similarly the submission that existence of an alternative remedy which is treated as a bar has reference only to an appeal provided for in Regulations is without substance. The decisions of the Supreme Court (4-6) on which the learned Counsel for the Corporation relied, clearly indicate that in cases where the alternative remedy available by way of civil suit or before a tribunal constituted under a special enactment is considered appropriate, a petition under Article 226 should not be entertained which might result in depriving the opposite party of a valid defence before the court or Tribunal as the case may be."
31. Regarding the second proposition that whether alternative remedy is a bar to exercise powers under Article 226 of the Constitution of India, in view of the peculiar circumstances of the case explained above, that too when complicated questions are not involved to decide, it has to be said that existence of alternative remedy is not a bar, because it is clear from the decisions referred to above that Rule of exhaustion of statutory remedy before seeking relief under Article 226 of the Constitution of India is a self-imposed limitation on the court, it is a rule of policy, convenience and discretion rather than rule of law. When there is a violation of any of the fundamental rights as enshrined in Part III of the Constitution, or order is resultant of infraction of any of the statutory provisions or an act or order in violation of principles of natural justice this Court under Article 226 of the Constitution can definitely exercise powers to issue writ. Thus exercising powers under Article 226 is one of discretion and not of its jurisdiction.
Regarding the 3rd proposition - whether the petitioners obtained appointments by playing fraud ?
32. It is not in dispute that as on the date of appointments all the petitioners were duly qualified. There is no direct evidence that at the time of appointment these petitioners brought any pressure on the appointing authorities. It is also not established that these petitioners while seeking appointment suppressed any information if disclosed they would not have been entitled for appointment. On the other hand after appointment all these petitioners were allowed to continue in service for more than one year. They were even given increments. Whereas the case of the petitioners is that their termination due to pressure brought by the Respondents' Union on the respondents to terminate the petitioners which fact is clear from Annexure-D, dated August, 1989 in Writ Petitions 14292 to 14307 of 1989 which reads thus :-
33. Hence it can be said that termination of the petitioners was not because of any fraud played by them at the time of securing appointments, but due to the pressure brought by the Union both on the Government and the Corporation to terminate the petitioners and in their place to appoint members of the said Union. As such the act of termination by the Corporations is a clear case of mala fides. From the circumstances explained earlier the petitioners have discharged the burden establishing mala fides as prescribed in the case of E. P. Royappa v. State of Tamil Nadu & Another 1974 - I - LLJ - 172, wherein it is held as follows (p.204) :
"The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility."
Point No. 4 - Whether is there any non-observance of appointment rules while appointing, if so its effect ?
34. According to Sri. Upadhyaya, the appointments are not in conformity with the Recruitment Rules of the Corporation. Learned Counsel relies upon Rules 7, 8 and 9 and 15-A and 15-B of the Karnataka Food and Civil Supplies Corporation Limited Service Rules (for short "the Rules") which read thus :-
"7(a) Regular appointments in the service of the Corporation shall be made against the posts sanctioned by the Board from time to time. The recruitment to the various categories of posts shall be made as specified against each of the posts in the Appendix in column No.5 b. Notwithstanding anything contained in theses regulations, appointments may be made to the post of Assistant Managers and above (i) by deputation of suitable officers from Central or State Government.
(ii) On contract basis subject to the terms and conditions as may be decided by the Board.
8(a) The Board of Directors shall from time to determine the number of posts of each description on the service of the Corporation.
(b) The Managing Director may create posts temporarily for a period not exceeding one year in respect of posts below the rank of Assistant Managers.
9. The following procedure shall be followed in the case of direct recruitment to posts sanctioned by the Board :
(a) All appointments to posts below the rank of District Managers will be made by the Managing Director. The Managing Director may appoint Selection Committees to advice him in drawing up panels.
(b) In respect of posts of the rank of District Managers and above the appointments will be made by a Committee consisting of the Chairman, Managing Director and one other Director to be nominated by the Board. The Committee may co-opt members of faculties of Organisations like the Indian Institute of Management to assist in the selections.
15. (a) The service of any employee who has been appointed to any post in the Corporation and who has satisfactorily completed his period of probation may be terminated by the appointing authority on giving such employee notice or pay in lieu thereof and after following the procedure laid down under the provisions of the Industrial Disputes Act, of 1947.
(b) The service of any employee appointed under these Rules may be terminated by the appointing authority on giving him :-
(i) 3 months notice or pay in lieu thereof in the case of an employee of the rank of Assistant Manager and above.
(ii) 30 days notice or pay in lieu thereof in the case of an employee below the rank of Assistant Manager".
35. Sri. Upadhyaya, learned Counsel for the respondent, brought to my notice the following Authorities for the proposition that appointments are contrary to Rule in question and if appointments are contrary to Rules the same deserve to be terminated. In the case of Mangalore University Non-teaching Employees Association v. Mangalore University , the Court observed thus in para 9 :-
"9. xxxxxxxxxxxx In the case of every permanent post and vacancy in the services of the University arising for being filled up, the University is under an obligation to give equal opportunity to all the citizens who have acquired prescribed eligibility and who are desirous of competing in the selection for appointment. The recruitment therefore has to be made by inviting applications by open and wide advertisement and by selection by the selecting authority.
XXXXXXXXXX XXXXXXXXXXXXX Further, I fail to see as to how just because a temporary appointment, which could be made and made for a period not exceeding six months under Section 51B of the Act is continued even after six months in violation of Section 51B of the Act, confers a right or basis to defeat the provisions of Articles 14 and 16 of the Constitution and Section 50 of the Act. Therefore, the contention of the petitioners has to be rejected."
36. In the case of Calcutta State Transport Corporation & Others v. G. K. Bhattacharya & Others 1989 (75) FJR 17 the Calcutta High Court observed thus at the Headnote :-
"Probationer-termination of service-probation extended-termination of service before expiry of probation period-justified-mere expiry of period of probation-grant of one increment during probation-do not give any permanent status to employee."
37. Sri. Upadhyaya placed reliance on the decision in the case of G. S. Ramaswamy & Ors v. The Inspector General of Police, Mysore State, Bangalore 1970 - I - LLJ - 649 which on fact has no application.
38. There cannot be any different opinion as far as the proposition put forth and the reliance placed on authorities by Sri. Upadhyaya. But on facts the said proposition has no basis and the Authorities relied upon by him have application to the facts of the case. Because of the same rule particularly Rule 15-B of the Rules had come up for consideration before this Court in the case of D. Jayadevaraj Urs v. The Karnataka Food and Civil Supplies Corporation Ltd. & Ors. W.Ps. Nos. 27675 of 1982 & 2482 of 1983 DD 27-11-1990, this Court while striking down Rule 15-B has observed thus in para-8 :-
"8. In view of the above discussion made and the principles laid down by the Supreme Court and this Court, the only conclusion which can be drawn is that Rule 15-B of the Rules in question has violated Article 14 of the Constitution of India, as the same is quite arbitrary and has given unguided, uncontrolled power to Management. It is oppressive in nature and against principles of natural justice. Hence, the said rule is struck down as invalid and unconstitutional."
Hence, it cannot be said that Rules in question in any way rendered appointments of petitioners as illegal.
Point No. 5 : Whether the petitioners are entitled to continue in service :
39. In order to give a finding on the above proposition, apart from keeping in mind the peculiarity of the facts involved and the legal position applicable to the contentions of the petitioners and incorrect stand of the respondents, it shall be borne in mind the recent trend, namely, that approach of the concerned shall be that when once appointments are made, it shall be 'one of the continuation and not termination'. Law on this point has been clearly laid down in the following decisions :
In the case of Bhagwati Prasad v. Delhi State Mineral Development Corporation 1990 - I - LLJ - 320 (SC) the Court observed thus (p-322) :
"Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments of petitioners were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view three years' experience, ignoring artificial break in service for short period/periods created by the management, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period .... all the petitioners are entitled to equal pay at par with the persons appointed on regular basis to the similar post or discharge similar duties, and are entitled to the scale of pay and all allowances revised from time to time for the said posts."
40. In the case of Surendra Kumar Verma etc, v. The Central Government Industrial Tribunal-cum-Labour Court, New Delhi & Anothers 1981 - I - LLJ - 386 (SC), it is observed that a workman who has actually worked for not less than 240 days during a period of 12 months shall be deemed to have been in continuous service for a period of 1 year whether or not he has in fact been in such continuous service for a period of 1 year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he was worked for 240 days in a period of 12 months, it is not necessary that he should have been in the service of the employer for one whole year.
41. Apart from the above contentions, Advocates for the petitioners pleaded equity in that they submitted that the petitioner would be contented if there is a mere reinstatement and continuity of service without backwages upto the date of reinstatement. After consulting their clients they even gave an undertaking to the Court to this effect.
42. From the consideration of rival contentions and scrutiny of the various Authorities cited above, the conclusion is that :-
(i) Orders of termination of the petitioners are arbitrary and against principles of natural justice as the same are not preceded by service of notice and spelling out reasons;
(ii) Alternative remedy is not an universal rule but it is a matter of convenience. In appropriate cases, where issues involved are not complicated in nature, and interference under Article 226 of the Constitution avoids unnecessary delay, this Court can grant relief under Art. 226 of the Constitution of India;
(iii) Mere irregularity in appointments shall not render termination in the absence of securing appointments by playing fraud or be terminated for the fault of the appointing agency;
(iv) Present philosophy behind recruitment is one of appointment and absorption and not of termination;
(v) Orders of termination cannot be said as innocuous. The terminations are not merely resultants of pressure brought by the Employees' Union on the Departments but are just camouflage in nature. Hence, they deserve to be quashed.
43. In view of the above discussion, I am of the opinion, these Petitions are to be allowed. Hence, these Petitions are allowed, orders under challenge are quashed, and the respondents are directed to reinstate the petitioners to their respective posts and to give them continuity of service including other consequential benefits. However, in view of the undertaking given by the petitioners, they are not entitled to backwages. One month's time for compliance. No costs.