Karnataka High Court
Ganganarasaiah vs State Of Karnataka on 2 July, 1992
Equivalent citations: ILR1992KAR2629, 1993(2)KARLJ385
ORDER Hanumanthappa, J.
1. The petitioner who was appointed as Hamali on 2-7-1984 by the Department of Commercial Taxes on daily wage basis was terminated on the report submitted by the Lokayuktha without even serving a notice on the petitioner. Aggrieved by the said order of termination, the petitioner approached the Karnataka Administrative Tribunal with an application bearing No. 212/92. The Tribunal, by its order dated 27-3-1992 dismissed the said application on the ground that Hamali as not a holder of civil post, as such, the Tribunal has no jurisdiction. Hence, the petitioner has approached this Court under Article 226 seeking the relief namely, to quash the order at Annexure A dated 3-3-1992 by which the petitioner was terminated from service on the ground that the same as illegal, arbitrary and opposed to principles of natural justice. He has also sought for an interim order.
2. Notice was ordered to the learned High Court Government Pleader on behalf of the respondents. The matter is listed for hearing today.
3. Smt. Bhoopathy, learned Government Pleader, contended that the Writ Petition is not maintainable as the post of Hamali whether appointed on temporary basis, daily wages or otherwise comes within the definition of 'Civil Servant'. The nature of work the petitioner was carrying on and the authority who made the appointment are the factors to be considered to decide whether this Court has jurisdiction or not.
4. Sri. Sreedhar, petitioner's Counsel, submitted that the petitioner's post did not come under the definition of 'Civil Servant'. Further, under similar circumstances, the Supreme Court of India in Writ Petition No. 393 of 1990 on 16-4-1990 has held:
"It is open to the petitioner to either move the State Administrative Tribunal or the High Court for relief and reliance may be placed on the judgment of this Court in Dharwad Distt. P.W.D. Literate Daily Wages Employees Association's (Judgments Today 1990(1) SC 343). The High Court would do well to go into the merits of the matter and dispose of after hearing parties. The Writ Petition is disposed of accordingly."
The Supreme Court said that High Court would do well to go into the merits of the matter and dispose of after hearing the parties. According to Sri, Sreedhar, the said observation is binding on this Court. As such, it has to hold the petition as maintainable and hear the parties on merits.
5. Sri. Sreedhar next contended that the Administrative Tribunal had rejected the petitioner's application for similar relief holding the same as not maintainable. Now, if this Court also says that it has no jurisdiction to entertain the petition, the petitioner will be left with no remedy. For these reasons, he submitted that the petition be accepted as maintainable and the petitioner be heard on merits.
6. Smt. Bhoopathy, learned Government Pleader, to support her contention that this Writ Petition is not maintainable as petitioner is a Civil Servant, placed reliance on a Division Bench Decision of this Court in M.P. SIDDANANJAPPA v. STATE OF KARNATAKA wherein while interpreting the scope of Sections 15 and 28 of the Administrative Tribunals Act, 1985, and Article 323-A of the Constitution of India, it has been held thus:
"A person appointed against a civil post on daily wages is a civil servant and a dispute relating to termination of his service is a service matter of a civil servant over which the Tribunal has exclusive jurisdiction.
In view of Article 323A of the Constitution of India and Section 15 of the Administrative Tribunals Act, 1985, the jurisdiction to deal with every service matter of a person appointed to a civil service or a civil post of this State irrespective of the nature of employment is vested in the Tribunal and the jurisdiction in respect of service matters of such persons of all other Courts including that of the High Court, but excluding that of the Supreme Court and of an Industrial Court or Tribunal is barred."
For these reasons, Smt. Bhoopathy, learned Government Pleader, submits that the Petition deserves to be dismissed in limine.
7. A perusal of the facts discloses that the relationship between the petitioner and the Department was one of master and servant. The respondent is a Department of the State. Petitioner was required to discharge the services of a Hamali at toll-gate, His wages were paid by the State and leave, etc., granted by the Department. Thus, though appointed on temporary basis, he came within the definition of Civil Servant. As such, Article 323A(2)(d) of the Constitution of India bars the jurisdiction of this Court to entertain any application filed by a civil servant in connection with the service conditions. The said Article reads as under:
"323A(1): Parliament may, by law, provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in Connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.
(2) A law made under Clause (1) may -
(a) (b) (c) ... ...
(d) exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in Clause (1)."
In addition to this, Section 15 and 28 of the Act in respect of any matter relating to recruitment and other conditions of civil servants, attract the jurisdiction of the Administrative Tribunal and exclude the jurisdiction of all Courts except the Supreme Court, Industrial Tribunal and Labour Court. Section 15 of the Act reads thus:
"15. Jurisdiction, powers and authority of State Administrative Tribunals. -
(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal 1or a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court) in relation to -
(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil service of the State or to any civil post under the State;
(b) ail service matters concerning a person not being a person referred to in Clause (c) of this sub-section or a member, person or civilian referred to in Clause (b) of Sub-section (1) of Section 14 appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation or society owned or controlled by the State Government.
(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in Clause (b), being a person whose services have been placed by any such local or other authority or corporation or society or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.
(2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of Sub-section (3) to local or other authorities and corporations or societies controlled or owned by the State Government:
Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations or societies.
(3) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall also exercise, on and from the date with effect from which the provisions of this subsection apply to any local or other authority or corporation or society alt the jurisdiction, powers and authority exercisable immediately before that date by all Courts (except the Supreme Court) in relation to -
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation or society; and
(b) all service matters concerning a person other than a person referred to in Clause (b) of Sub-section (1) of Section 14 appointed to any service or post in connection with the affairs of such local or other authority or corporation or society and pertaining to the service of such person in connection with such affairs.
(4) For the removal of doubts, it is hereby declared that the jurisdiction, powers and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matters in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable."
Section 28 of the Act reads thus:
"28. Exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution. - On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post no Court except (a) the Supreme Court; or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters."
8. In the case of SAMPATH KUMAR v. UNION OF INDIA AND ORS. similar question had arisen before the Supreme Court for consideration. On the question that in view of Article 323A of the Constitution of India whether the Tribunal has excluded the jurisdiction of the High Court to entertain any matter pertaining to service conditions of civil servants the Supreme Court while explaining the need of establishing Administrative Tribunals and the circumstances under which Administrative Tribunals (Central or State) came to be constituted, observed that creation of Administrative Tribunals are mainly with a view to reduce the work-load of the High Courts which are over-burdened with service matters and held that the Tribunals so contemplated and subsequently constituted are purely as substitute and not as a supplemental to the High Court in the scheme of administration of justice. Further, in view of Section 15 of the Act, powers of all the Courts except of the Supreme Court, Industrial Tribunal and Labour Court, in regard to the matters referred to therein vest in the Tribunal (either Central or State). Thus, the Administrative Tribunal is a substitute of the High Court and is entitled to exercise the powers thereto. While dealing with the contentions regarding the jurisdiction of the Tribunal and the constitutional validity of certain service regulations touching Articles 14 and 16 of the Constitution of India, the Supreme Court in J.B. CHOPRA AND ORS. v. UNION OF INDIA AND ORS. held that establishment of Administrative Tribunal under the Act takes away the jurisdiction and power of the High Court to interfere, but that does not mean that it takes away the jurisdiction of judicial review by the Supreme Court. Because, Section 28 of the Act which bars the jurisdiction of the High Court under Articles 226 and 227 of the Constitution preserves the jurisdiction and power of the Supreme Court under Articles 32 and 136 of the Constitution. The Supreme Court also observed that Administrative Tribunal being a substitute of the High Court has the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to service matters including the power to deal with all questions pertaining to the constitutional validity or otherwise of such laws as offending Articles 14 and 16(1) of the Constitution. On this point, similar view has been taken by the Division Bench of this Court in G.M. KUMAR v. KARNATAKA PUBLIC SERVICE COMMISSION thus:
"Having regard to the comprehensive language employed in Section 15 of the Act, there is no jurisdiction to entertain the Writ Petition muchless the Writ Appeal. There is a Constitutional bar. Power cannot be exercised under Article 226 of the Constitution in the teeth of the bar."
9. In view of the interpretation given to the scope of Sections 15 and 18 of the 1985 Act read with Article 323A of the Constitution of India, the jurisdiction to deal with service conditions of a civil servant appointed to a civil post of the State irrespective of the nature of employment is vested in the Tribunal and all other Courts including the High Court, except the Supreme Court, the industrial Tribunals and the Labour Courts, are divested from exercising such powers which they enjoyed for a considerable period. From the above discussion and in view of the observations made by the Supreme Court and this Court, when the power of this Court to deal with an issue relating to the service conditions of civil servants has been taken away, it is not proper to exercise such power without legal sanction.
10. Regarding the second contention that observations made by the Supreme Court in Writ Petition No. 393 of 1990 dated 16-4-1990 which is extracted above will bind this Court, the answer is, if the said observations is read properly, the only conclusion is that the Supreme Court did not say that in matters pertaining to service conditions of civil servants, inspite of existence of Sections 15 and 28 of the Administrative Tribunals Act and Article 323A of the Constitution of India, this Court under Article 226 of the Constitution of India shall entertain such petitions. In the beginning itself, the Supreme Court observed that it is open for the petitioner either to approach the Administrative Tribunal or the High Court for necessary relief. Apart from this, the observation made therein is purely in the form of concession and leaving open as far as the forum is concerned for the choice of the petitioner, of course, subject to maintainability etc. This view of mine is supported by the Decision of the Supreme Court in the case of MUNICIPAL COMMITTEE, AMRITSAR v. HAZARA SINGH wherein it has been held thus:
"Even obiter dictum of the Supreme Court should be accepted as binding. But statements on matters other than law have no binding force. Since, on facts no two cases are similar, Supreme Courts' Decisions which fact cannot be relied upon as precedents for Decision of other cases."
As such, reference made by Sri. Sreedhar, petitioner's Counsel, to the order made by the Supreme Court in W.P.No. 393 of 1990 dated 16-4-1990 on facts, is not applicable.
11. Regarding the last contention that in view of the order passed by the Administrative Tribunal in F.R.No. 212 of 1992 dated 27-3-1992 whereby petitioner's application was rejected on the ground that petitioner was not a civil servant, if this Court also takes a similar view that this Court has no jurisdiction, then the petitioner will be left with no remedy, as such, this petition has to be entertained under Article 226 of the Constitution, I am of the view that such a contention cannot be accepted for the simple reason that merely because a forum which has been created by the statute to deal with certain issues has failed to exercise the jurisdiction, that does not mean failure on the part of such an authority to exercise jurisdiction will automatically enable this Court to exercise jurisdiction under Article 226 of the Constitution that too, when under Article 323A of the Constitution, jurisdiction of this Court in matters relating to recruitment and other service conditions of a civil servant are excluded. Hence, if the petitioner is aggrieved by the order of the Tribunal, It is for him to agitate the same before the appropriate Court.
12. Smt. Bhoopathy, learned Government Pleader, brought to my notice that pursuant to the order passed by the Supreme Court in THE DHARWAD DIST. PWD LITERATE DAILY WAGES EMPLOYEES ASSOCIATION AND ORS. v. STATE OF KARNATAKA AND ORS., Government prepared a scheme whereby its order dated 6-8-1990 proposing to appoint all those who were working on daily wages on the cut off date, 1-7-1984, and if they fulfill other conditions as laid down by the Supreme Court in the above Decision. When that is the position, if the daily wages employee feels that inspite of such a scheme his request for recruitment, regularisation or reinstatement is not considered, the proper forum for such a person to agitate the matter is definitely not before this Court under Article 226 of the Constitution as such matters are outside the purview of this Court in view of Sections 15 and 28 of the Act and Article 323A of the Constitution of India.
13. For the reasons stated hereinabove, I am of the opinion that this Writ Petition is not maintainable as the petitioner fulfils all the conditions relating to a civil servant as laid down by the Supreme Court in STATE OF UTTAR PRADESH v. A.N.SINGH and also in ASSAM v. KANAKACHANDRA which Decisions are in fact referred to by this Court in Siddananjappa's case. Hence, Petition is dismissed.