Karnataka High Court
The Association Of Physically ... vs Mr P Jayakiran on 23 September, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:34697
RFA No. 2298 of 2007
C/W RFA.CROB No. 20 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 2298 OF 2007 (DEC)
C/W
RFA CROSS OBJECTION NO. 20 OF 2008
IN RFA NO.2298/2007
BETWEEN:
P. JAYAKIRAN,
S/O LATE SRI K.NARAYAN,
AGED ABOUT 58 YEARS,
EARLIER WORKING AS SECRETARY,
AT THE ASSOCIATION OF
PHYSICALLY HANDICAPPED,
R/AT.NO.662, 1ST CROSS, 7TH MAIN,
VIJAYA BANK LAYOUT, BILEKAHALLI,
BANNERGHATTA ROAD,
Digitally signed BANGALORE - 560 076.
by R
MANJUNATHA ...APPELLANT
Location: HIGH
COURT OF (BY SRI. JAYANTH DEVAKUMAR, ADVOCATE FOR
KARNATAKA SRI. PUTTE GOWDA K., ADVOCATE)
AND:
1. THE ASSOCIATION OF PHYSICALLY
HANDICAPPED (APC) NOW KNOWN
AS ASSOCIATION OF PHYSICALLY
DISABLED (APC), HENNUR ROAD
LINGARAJAPURAM, P.O.FRAZER TOWN,
BANGALORE - 560 084.
REP.BY ITS GENERAL SECRETARY.
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NC: 2023:KHC:34697
RFA No. 2298 of 2007
C/W RFA.CROB No. 20 of 2008
2. MR. K.V. ARAVAMUDAN,
HON.PRESIDENT, APC,
'SRI SAILAM', 59TH 4TH MAIN,
GAVIPURAM EXTENSION,
BANGALORE - 560 019.
3. MR. M.HARIDAS,
HON. VICE-PRESIDENT/TREASURER,
#601,57TH 'A' CROSS,
6TH BLOCK, RAJAJINAGAR,
BANGALORE - 560 010.
4. MR. M.N.V.URS,
HON.GENERAL SECRETARY,
#286/B, 9TH MAIN ROAD,
5TH BLOCK, JAYANAGAR,
BANGALORE - 560 041.
5. MR. B.R.SHIVASHANKAR,
TRUSTEE, TOOL CRAFT,4(B),
PEENYA INDUSTRIAL AREA,
PHASE-1, 2ND CROSS,
BANGALORE - 560 058.
6. MS. N.S.HEMA,
TRUSTEE, #93, 17TH CROSS,
MALLESHWARAM,
BANGALORE - 560 055.
7. MR.V.P.MAHENDRA,
TRUSTEE, #5, SANKEY ROAD,
BANGALORE - 560 055.
8. MR. N. REGURAJ,
TRUSTEE, NTTF, 23/24, 2ND PHASE,
PEENYA INDUSTRIAL AREA,
BANGALORE - 560 058.
9. MG. CDR. THOMAS VERGHESE,
TRUSTEE, #529/D, AFNAHB,
JALVAYA VIHAR, ST.THOMAS TOWN,
BANGALORE - 560 084.
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NC: 2023:KHC:34697
RFA No. 2298 of 2007
C/W RFA.CROB No. 20 of 2008
10. MS.KAVERY NADAMANGALAM,
TRUSTEE, 17/1, VITTAL MALLYA ROAD,
BANGALORE- 560 001.
11. MS. C.K. SOMALATHA
MEMBER, #15/24,
RAMAKRISHNAPPA ROAD,
COX TOWN, BANGALORE - 560 005.
12. MR.A.P.GOKUL,
MEMBER, #63/63,
VEERAPILLAI STREET,
BANGALORE - 560 042.
13. MR.S.P..MURTHY
MEMBER, #A54/1,
JEEVAN BHEEMANAGAR,
BANGALORE - 560 075.
14. MR. R.M. REDDY
MEMBER, 'RAMRAJ',
#7/9, 3RD CROSS,
JAIBHARAT NAGAR,
BANGALORE - 560 033.
...RESPONDENTS
(BY SRI. N.S. NARASIMHA SWAMY, ADVOCATE FOR
C/R1, R3 TO R7, R9, R11, R13 AND R14;
R2, R8, R10, R12 - NOTICE SERVED)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED:18.06.2007 PASSED IN
O.S.NO.7145/1994 ON THE FILE OF THE III ADDL. CITY
CIVIL JUDGE, BANGALORE (CCH-25), PARTLY
DECREEING THE SUIT FOR DECLARATION AND
DIRECTION.
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NC: 2023:KHC:34697
RFA No. 2298 of 2007
C/W RFA.CROB No. 20 of 2008
IN RFA CROB NO.20/2008
BETWEEN:
THE ASSOCIATION OF
PHYSICALLY HANDICAPPED(APH),
HENNUR ROAD,
LINGARAJAPURAM POST,
FRAZER TOWN,
BANGALORE - 560 084.
REPRESENTED BY ITS SECRETARY.
...CROSS OBJECTOR
(BY SRI. N.S. NARASIMHA SWAMY, ADVOCATE FOR
CROSS OBJECTOR)
AND:
MR.P.JAYAKIRAN,
S/O LATE K. NARAYAN,
AGED ABOUT 58 YEARS,
NO.115, ST. MICHAEL SCHOOL ROAD,
2ND CROSS, SHANTHINAGAR,
BANGALORE - 560 086.
...RESPONDENT
(BY SRI. JAYANTH DEVAKUMAR, ADVOCATE FOR
SRI. PUTTE GOWDA, ADVOCATE)
THIS RFA.CROB IS FILED (IN RFA.2298/07) U/S.96
R/W U/O XLI RULE 22 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED:18.6.2007 PASSED IN
O.S.NO.7145/1994 ON THE FILE OF THE III ADDL. CITY
CIVIL JUDGE, CCH.NO.25, BANGALORE CITY, PARTLY
DECREEING THE SUIT FOR DECLARATION AND
DIRECTION.
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NC: 2023:KHC:34697
RFA No. 2298 of 2007
C/W RFA.CROB No. 20 of 2008
THIS APPEAL A/W RFA.CROB, COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These matters namely, RFA No.2298/2007 and RFA Crob No.20/2008 are filed questioning the validity of judgment and decree passed in O.S.No.7145/1994 dated 18.06.2007 on the file of III Addl. City Civil and Sessions Judge, (CCH No.25) Bengaluru City.
2. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the Trial Court.
3. Brief facts of the case are as under:
A suit came to be filed by the plaintiff against the defendants seeking declaration that the order bearing No.APH/G, SEC/102, dated 26.07.1994 and APH/G/SEC/104 dated 26.07.1994 both signed by defendant No.4 on behalf of first defendant, are arbitrary, illegal and without authority of law and therefore, void-ab-
initio and nonest and direct the defendants to pay -6- NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 compensation at the rate of Rs.7,000/- per month with effect from 26.07.1994 including 10% enhancement on the salary on expiry of each year and to award consequential benefits.
4. Plaintiff claiming to be the employee of first defendant-association by virtue of appointment letter marked at Ex.P.11 dated 18.04.1994, joined the first defendant-association as an Executive Secretary. He was appointed as a Probationary Secretary by virtue of Ex.P.11 for a period of six months till 18.11.1994.
5. However, after he started discharging his functions as an Executive Secretary, a meeting said to have taken place in the first defendant-association and in the meeting, it is noticed that post of Executive Secretary is a non-sanctioned post and therefore, his appointment needs to be cancelled forthwith. Pursuant to the same, the appointment of the plaintiff was cancelled by recalling Exs.P.34 and P.35 and same was communicated to the plaintiff. Plaintiff resigned and ultimately handed over the -7- NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 charge and he was discontinued from the service on and from 03.09.1994 as per Ex.P.35.
6. Being aggrieved with the action taken by the first defendant-association, a legal notice was issued by the plaintiff through his Advocate - Sri.T.S.Rajagopal vide Ex.P.36 on 26.07.1994, which was duly replied by the first defendant-association on 05.09.1994 vide Ex.P.67. Being, not satisfied with the reply issued by the first defendant-
association, plaintiff has filed a suit.
7. Upon the service of suit summons, defendants entered appearance and filed detailed written statements denying the plaint averments in toto and sought for dismissal of the suit.
8. Based on the rival contentions of the parties, Trial Court raised the following issues and one additional issue:
"1) Whether the plaintiff proves that he has been retired from the services of defendant no.1 by defendant no.4 illegally as contended?-8-
NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008
2) Whether the plaintiff proves that the orders dated 26.7.94 issued on behalf of defendant OS NO.
7145/199421 no.1 by defendant no.4 is without authority and bad in law and void?
3) Whether the defendants prove the order challenged is only a recalling order of the earlier illegal orders as contended?
4) Whether the plaintiff proves that he has been removed with ulterior motive as contended?
5) Whether the plaintiff is entitled for the relief sought for?
6) Whether the suit as brought without consequential relief is maintainable in view of Sec.34 of Specific Relief Act?
7) What order or decree?
Additional Issue "Whether the plaintiff proves that he is entitled for compensation at the rate of Rs.7,000/- per month from 26.07.1994 including 10% enhancement on the salary?"
9. In order to prove the case of plaintiff, plaintiff-
Sri.P.Jayakiran got examined himself as P.W.1 and relied -9- NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 on as many as 70 documents, which are exhibited and marked as Exs.P.1 to Ex.P.70.
10. On behalf of defendants, Sri.M.N.V.Urs, is examined as D.W.1, who is defendant No.4 and relied on two documents, which are exhibited and marked as Ex.D.1 and Ex.D.2 namely, Memorandum of Association and certified copy of the proceedings of meeting dated 01.08.1994.
11. On conclusion of recording of evidence, the learned Trial Judge heard the parties in detail and after considering the oral and documentary evidence placed on record by the plaintiff and defendants in a cumulative manner, decreed the suit of the plaintiff in part as under:
"(1) It is declared that the Order of termination bearing No. APH/G, SEC/102 dated 26.07.1994 and APH/G/SEC/104 dated 26.07.1994 issued by the 1st defendant-Association are illegal, arbitrary, without authority of law, void abinitio and nonest.
(2) The plaintiff is also entitled to compensation at the rate of Rs.7,000/-
per month with effect from 27.06.1994 to
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 till completion of probation period i.e., upto October 1994 with all service benefits for which the plaintiff is entitled during the said period.
(3) The defendant No.1-Assocaiton is directed to pay said compensation as per Clause-2 within six months from the date of this order and on failure to do so, the plaintiff is entitled to recover entire decretal amount from the defendant No.1-Assocaition under due process and machinery of law.
(4) The plaintiff is also entitled for cost of this proceedings.
(5) Draw decree accordingly."
12. Being aggrieved by the same, plaintiff has preferred the appeal in RFA No.2298/2007 on the following:
GROUNDS That the Trial Court having come to the conclusion that the order of termination of the services of the appellant is illegal, arbitrary, without authority of law, void ab intio and non est and in the light of the evidence that has come on record grossly erred in restricting the compensation to three months salary. It is no doubt true that as per the terms of employment the services of an employee could be put an end to by 3 months notice, but that would be case of non punitive, non-stigmatic termination
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 simpliciter. When the appellant was punitively dealt with and he was thereby stigmatized he could not get alternative employment thereby he was condonmned to loss of salary and emoluments which he would have earned till the date on which he would have retired on reaching the age of 60 years which is the age of superannuation.
In Sant Raj Vs. O.P.Singla reported in (1985) 2 SCC 349 the Hon'ble Supreme Court held that compensation should be equal to back wages in full for the period of employment due to wrongful order of termination. The wrong committed by the employer in the present case has resulted in unemployment of the appellant from 26 July 1994. Under the th circumstances the trial court acted contrary to law in restricting the compensation for a period of three months. In Chandu Lal Vs. Pan American World Airways reported in (1985) 2 SCC 727 the Hon'ble Supreme Court held that while determing the quantum of compensation the Court should have regard to the relevant factors such as that ordinarily the employee would have gone back into service with full back wages and that if he was restored to service he would have been assured of employment for a further term till attaining the age of superannuation. The denial of compensation to the extent prayed for in the plaint is contrary to this well settled position of law and works inequiry and injustice to the appellant.
The Trial Court proceeded on no basis in restricting the compensation. The denial of full compensation is contrary to law,
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 contrary to weight of evidence, contrary to probabilities of the case and suffers from non-application of mind and cannot be sustained in law."
13. The defendants have also preferred a cross objection in respect of decreeing the suit in part on the following grounds:
"It is submitted that based on the pleadings the Trial Court as framed 7 issues and one additional issue. The issue no.1,2&4 are as follows.
Whether the plaintiff proves that he has been retired from the services of the defendant no.1 by the defendant no.4 illegally as contended.
Whether the plaintiff proves that the orders dated 26.07.1994 issued on behalf of defendant no.1 by the defendant no.4 is without authority and bad in law and void.
Whether the plaintiff proves that he has been removed with ulterior motive as contended.
It is submitted that the burden of proving the above said issued lies upon Appellant and the same was not proved and on the other hand to disprove the said issue, the cross objector takes the shelter that the appellant was appointed
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 as probationary and since there exist no post of executive Secretary, the withdrawal of the appointment cannot be construed as illegal as alleged by the appellant. It is submitted that Trial Court has come to the conclusion that the appellant was reporting to the Secretary then to Board of trustees. Since there is an admission by Dw-1 that there was an approval from the board of trustees to report and further there was a termination letter and the president has written to withdraw the said termination letter. It is further submitted that since as per Ex.P 44 the trustees have approved the proposal of Executive secretary. At this juncture it is pertinent to note that as per the Memorandum of association the appointment and termination powers are vest with the committee of management and not with board of trustees. In the case on hand the appointment is made on approval of board of trustees. Hence the appointment is bad in law. On this ground also the appeal is liable to be rejected.
It is submitted that the Trial Court has come to conclusion that the three months notice was not issued to appellant. In this aspect it is submitted that when the appointment itself is void ab-initio, the question of giving three months notice does not arise. This aspect of matter was not properly
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 analyzed by the Trial Court. On this ground also the appeal is liable to be rejected. It is submitted that when the appellant had received the cheque as full and final settlement, the question any act as illegal does not arise. On this ground also the appeal is liable to rejected.
It is submitted that the Trial Court has come to wrong conclusion that the termination is wrong on the ground that no notice was issued and no records to show that the act was blemishing and no explanation called for from the appellant to terminate even though a letter like memo or explanation to terminate the services hence the termination is illegal. It is submitted that as already stated that the appointment itself is bad because the appointment was not made in accordance with the by law of constitution of association by the committee of management and the same is made by the board of trustee hence the appointment is a mistake and not proper. It is submitted that when the appointment itself is void ab-initio, the question of issuance of notice does not arises. It is further submitted that the cancellation was made in view of no such post exists and further the cross objector has not casted any stigma against the appellant or no allegation is made against him and the cancellation is not made by casting any stigma. It is
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 submitted that when the appointment is void ab-initio, the question of calling for explanation issuance of memo or show cause notice does not arise. The Trial Court has failed to appreciate all the above facts and wrongly granted the relief. On this ground also the appeal is liable to be rejected and cross objection is liable to allowed.
It is submitted that the Trial Court in its judgment in para 17 has discussed that the appointment and termination powers are vest with committee of management and inspite of that it has come to wrong conclusion that the termination was not made on the approval of committee of management. It is pertinent to note that the appointment was also not made by the committee of management. It is submitted that after termination, the same was ratified by the committee of management. Hence the observation made by the court below is wrong and the appeal is liable to be rejected.
It is submitted that the Trial Court has erroneously come to the conclusion that referring to Ex.P11 and Ex-44 on the ground that there was ample power to appoint appellant and hence it is proper. It is submitted that the learned judge failed to appreciate the fact that there was no justification indicated in that letter and further it clearly; establishes the earlier contention that appointment
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 was made by board of trustees and not committee of management as per the by law. On this ground also the appeal is liable to be rejected.
It is submitted that the Trial Court has wrongly come to the conclusion that the Ex-D2 i.e. Minutes of meeting conducted by the committee of management does not disclose that it was approved by majority of people and further president even though he was present he did not indicate his view. It is submitted that out 13 members present, 9 members supported the action of the secretary ad three of them opposed. When the majority of people accepted that the termination is proper, the Trial Court has come to wrong conclusion. It is submitted that the non expression president does not vitiate the meeting action hence the findings of trial court is not correct. On this ground also the appeal is liable to rejected.
Issue No.3 is casted upon defendant as Whether the defendants prove the order challenged is only a recalling order of the earlier order as contended? It is submitted that the Trial Court has wrongly come to the conclusion that the said issue was not proved on the ground that Defendant no.4 who terminated the appellant was the party to appointment and Ex-D2 which is a copy of minutes of
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 meeting is not free from the doubt by considering the act of Defendant no.4 and further when the president has issued letter to take back the appellant based on the above contension the Trial Court answered the said issued against to the cross objector. It is submitted that Ex-D2 was the ratification made in minutes of meeting by the committee of management and further in the absence of dispute about that document by the appellant, the Court below only on assumption and presumption gave a wrong finding. On this ground also the appeal is liable to be rejected.
Issue No.6: Whether the suit as brought without consequential relief is maintainable in view of section 34 of specific Relief Act? It is submitted that the learned judge has wrongly come to the conclusion that the suit is maintainable and judgments referred by the cross objection is not applicable. It is submitted that the learned judge has wrongly misconstrued the said judgments and wrongly given the findings. On this ground also the appeal is liable to be rejected.
Issue No.5 and additional issue Whether plaintiff is entitle for relief sought for? And whether the plaintiff proves that he is entitle for compensation at the rate of
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 Rs.7,000/- pm from 26.7.1994 including 10% enhancement on the salary?
It is submitted that the Trial Court has wrongly come to the conclusion that since the termination is illegal and hence the appellant is entitle for the salary up to completion of period of probationary. It is submitted that as already stated the Trial Court failed to appreciate the grounds urged before the Trial Court that the cancellation is correct and justified and inspite of the court below declared the said act is illegal and void. It is submitted that the cross objector has relied upon no. of judgments to substantiate that the cancellation is correct and appellant was on probation and hence he is not entitle for any relief. But unfortunately the court below misread the judgment and gave erroneous finding. On this ground also the appeal is liable to be rejected and cross objection is liable to allowed.
16. 17. The cross objection is in time."
14. Sri.Jayanth Devkumar, learned counsel for the appellant representing Sri.Putte Gowda K. vehemently contended that the dismissal of the plaintiff from the first defendant-association is totally illegal and he was entitled
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 to the compensation at the rate of Rs.7,000/- per month till he got a gainful employment in the year 2010 and therefore, sought for allowing the appeal.
15. He also argued that Trial Court not granting the wages till the plaintiff got gainfully employed, is thus acted as illegal and sought for allowing the appeal.
16. In support of his arguments, he has relied on following judgments wherein it is held as under:
(i) In AIR 1964 SC 449: Jagdish Mitter Vs. Union of Indian,
9. It is also now settled that the protection of Art. 311 can be invoked not only by permanent public servants, but also by public servants who are employed as temporary servants or probationers, (vide Parshotam Lal Dhingra's case, 1958 SCR 828: (AIR 1958 SC 36) (p. 858 of SCR): (at p. 48 of AIR) and so, there can be no difficulty in holding that if a temporary public servant or a probationer is served with an order by which his services are terminated, and the order unambiguously indicates that the said termination is the result of punishment sought to be imposed on him, he can
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 legitimately invoke the protection of Art. 311 and challenge the validity of the said termination on the ground that the mandatory provisions of Art. 311(2) have not been complied with. In other words, a temporary public servant or a probationer cannot be dismissed or removed from service without affording him the protection guaranteed by Art. 311(2).
13. But since considerations of motive operating in the mind of the authority have to be eliminated in determining the character of the termination of services of a temporary servant, it must be emphasized that the form in which the order terminating his services is expressed will not be decisive. If a formal departmental enquiry has been held in which findings have been recorded against the temporary servant and, as a result of the said findings, his services are terminated, the fact that the order by which his services are terminated, ostensibly purports, to be a mere order of discharge would not disguise the fact that in substance and in law the discharge in question amounts to the dismissal of the temporary servant. That is why the form of the order is inconclusive; it is the substance of the matter which determines the character of the termination of services. In dealing with this aspect of the matter, we must bear in mind that the real character of the termination of services must be determined by reference to the material facts that existed prior to
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 the order. Take a case where a temporary servant attacks the validity of his discharge on the ground of mala fides on the part of the authority. If in resisting the plea of mala fides the authority refers to certain facts justifying the order of discharge and these facts relate to the misconduct, negligence or inefficiency of the said servant, it cannot logically be said that in view of the plea thus made by the authority long after the order of discharge, it should be held that the order of discharge was the result of the consideration set out in the said plea. What the Court will have to examine in each case would be, having regard to the material facts existing up to the time of discharge, is the order of discharge in substance one of dismissal? If the answer is that notwithstanding the form which the order took, the appointing authority, in substance, really dismissed the temporary public servant, Art.311 would be attracted.
(ii) In (2000) 5 SCC 152: Chandra Prakash Shahi Vs. State of U.P. and Others.
12. Now, it is well-settled that the temporary Government servants or probationers are as much entitled to the protection of Article 311(2) of the Constitution as the permanent employees despite the fact that temporary government servants have no right to hold the post and their services are liable to be
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 terminated at any time by giving them a month's notice without assigning any reason either in terms of the contract of service or under the relevant statutory rules regulating the terms and conditions of such service. The courts can, therefore, lift the veil of an innocuously-worded order to look at the real face of the order and to find out whether it is as innocent as worded. (See: Parshotam Lal Dhingra vs. Union of India). It was explained in this decision that inefficiency, negligence or misconduct may have been the factors for inducing the Government to terminate the services of a temporary employee under the terms of the contract or under the statutory Service Rules regulating the terms and conditions of service which, to put it differently, may have been the motive for terminating the services but the motive by itself does not make the order punitive unless the order was "founded" on those factors or other disqualifications.
28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an enquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that enquiry, the order would be punitive in nature as the enquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
29. "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary enquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry.
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(iii) In (2012) 13 SCC 182: Pradip Kumar Vs. Union of Indian and Other,
19. This now brings us to the appeal arising out of Special Leave Petition No.27821 of 2012 filed by Pradip Kumar claiming the relief of reinstatement and for the grant of consequential benefits including full back wages. Although, the High Court had allowed the writ petition of the respondent only on the ground that there had been a violation of Rule 9(2), we have come to a conclusion that the order of discharge was vitiated being colourable exercise of power, stigmatic and punitive in nature and such order cannot be sustained in law. In our opinion, the order of discharge is arbitrary and therefore violates Article 14 of the Constitution.
Consequently, we hold that the appellant Pradip Kumar is entitled to be reinstated in service. He shall be entitled to full back wages during the period he has been compelled to remain out of service. The union of Indian is directed to release all consequential benefits to the said Pradip Kumar within a period of two months of the receipt of a certified copy of this order.
(iv) In AIR 1966 SC 1051: The management of Utkal Machinery Ltd. Vs. Workman
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5. We shall, however, assume in favour of the appellant that the respondent was appointed on December 9, 1961, on probation for a period of 6 months and it was stipulated in the contract that during the probationary period the services of the respondent could be terminated without notice and without assigning any reason. In other words, the management had the contractual right to terminate the services of the respondent without assigning any reason therefor. But if the validity of the termination is challenged in an industrial adjudication, it would be competent to the Industrial Tribunal to enquire whether the order of termination has been effected in the bona fide exercise of its power conferred by the contract. If the discharge of the employee, has been ordered by the management in bona fide exercise of its power, the Industrial Tribunal will not interfere with it, but it is open to the Industrial Tribunal to consider whether the order of termination is mala fide or whether it amounts to victimisation of the employee or an unfair labour practice or is so capricious or unreasonable as would lead to the inference that it has been passed for ulterior motives and not in bona fide exercise of the power arising out of the contract. In such a case it is open to the Industrial Tribunal to interfere with the order of the management and to afford proper relief to the employee. This view is borne out by the decision of this Court in
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 Assam Oil Co. Ltd. v. Its workmen, (1960) 1 Lab LJ 587; (AIR 1960 SC 1264).
7. It was next submitted on behalf of the appellant that the amount of compensation awarded to the respondent was exorbitant. It was pointed out that the respondent had worked for an actual period of less than 5 months but she had been awarded compensation of two years' salary. We think there is some substance in this criticism The Labour Court has relied upon the decision of this Court in Assam Oil Co, Ltd. v. Its workmen(1960) 1 Lab LJ 587; (AIR 1960 SC 1264), but the material facts of that case were different from those in the present case. In that case the aggrieved employee, Miss Scott was in the employment of the Assam Oil Co. Ltd. for about two years before the termination of her services. It also appears that Miss Scott was in the service of Burmah-Shell as a lady Secretary before she entered the service of Assam Oil Co. in October, 1954. It is also important to notice that the amount of compensation in that case was fixed on a concession of the Solicitor- General who appeared on behalf of the Assam Oil Co. In the present Case, the respondent did not give up any previous job in order to take service under the appellant. She had worked for a period of about 5 months with the appellant. Her appointment with the appellant was somewhat unusual because it was made on the recommendation of Sri B. Patnaik, the then Chief Minister of Orissa. There are no
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 special circumstances for awarding compensation equal to two years' salary. Having regard to these considerations we are of opinion that the amount of compensation awarded by the Labour Court to the respondent should be reduced and the respondent should be granted a sum of Rs. 4,800 as compensation. She should also be paid 6 percent interest from the date of order of the Labour Court till the date of payment.
(v) In 1973 3 SCC 597: State of Mysore Vs. P.R. Kulkarni and Others.
"6. The High Court had also held that proved facts supported the assertions made on behalf of the respondents that the real object of the reversion was to make available vacancies thus caused in the posts of officiating Wireless Operators in the Bombay cadre to other employees who subsequently, secured these posts although they had obtained lower marks than the petitioners and were junior to the petitioners as Wireless Operators. Even if this was not the real object, but, as the Mysore High Court also concluded from the assertions made in the affidavit before it, the reversion orders against the respondents were based merely on a misapprehension of the purposes and the effect of the Act, such a misapprehension could not provide a reasonable or valid ground for the reversion. The High Court could and did hold that the power of reversion was not utilised for a purpose for which it could properly be said to have
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 been meant. The exercise of every power, whatever its nature, lodged in Government authorities, is controlled by the need to confine it to the ambit within which it could justly and reasonably be expected to take place. A power used under the mis- apprehension that it was needed for effectuating a purpose, which was really outside the law or the proper scope of the power, could be said to be an exercise for an extraneous or collateral purpose.
7. It was objected that the High Court of Mysore had erroneously characterised such a use of the power of reversion as a "misuse of power" which "invited the criticism" that it was an "artifice" to eliminate the respondents from the field of officiating operators in order that others left in the State of Bombay might get their places. In other words, the reversion orders may have sprung from an oblique motive in addition to having resulted from the misapprehension that officers on the constabulary of certain District had necessarily to be allocated to Mysore and that officials of the Bombay State could gauge the needs of the Mysore State. Learned Counsel for the State of Mysore has not been able to show us that the findings of the Mysore High Court, which meant that the power of reversion had been used for a purpose for which it could not have been intended, were erroneous. "Misuse of Power" or mis- application of power or a "Detournement de Puvoir" (as it is called in Branch Administrative Law), are terms correctly employed to describe the use of a power in this illegal fashion. It was not necessary for the respondents to go so far as to establish that such misuse took place with the
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 deliberate object of benefiting others at the expense of the respondents, although learned judges of the High Court were inclined to hold, not without good reasons, that such an object may also be there. It was enough to prove, as the respondents succeeded in doing, that the power or reversion was used for a collateral or legally extraneous purpose.
(vi) In (1980) 2 SCC 471: State of Punjab and Another Vs. Gurdial Singh and Others.
"9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 broad, blurred sense, Benjamin Disraeli was not off the mark even in Law when he stated: "I repeat...that all power is a trust- that we are accountable for its exercise- that, from the people, and for the people, all springs, and all must exist". Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power, vitiates the acquisition or other official act."
(vii) In (1984) 4 SCC 635: Rajinder Kumar Kindra Vs. Delhi Administration and Others.
"21. It was next contended on behalf of the appellant that reinstatement with full back-wages be awarded to him. Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul, together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back-wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in- law Tara Chand who had a coal-depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back wages and all consequential benefits."
(viii) In (2007) 11 SCC 447: Kusheshwar Prasad Singh Vs. State of Bihar and Others.
"14. In this connection, our attention has been invited by the learned counsel for
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim Commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).
15. In Union of India & Ors. v.
Major General Madan Lal Yadav the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. This Court referred to Broom's Legal Maxims (10th Edn.) p. 191 wherein it was stated;
" It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure".
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008
(ix) In (1991) 4 SCC 109: Union of India and Others Vs. K. V. Jankiraman and Others.
"24. It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he bas done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed Under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008
26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayd at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down' an inflexible rule that in every case when an employee is exonerated in disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not ap- prove of the said last sentence in the first
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz.. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:
"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."
17. Per contra, while opposing the grounds of the appeal, Sri.N.S.Narasimha Swamy, learned counsel for the respondent Nos.3 to 7 contended that the plaintiff was not dismissed from the service and he was discharged from the service as he was a probationer.
18. He also pointed out that discharge letter marked at Ex.P.33 dated 26.07.1994 on bare perusal would go to show that it is a discharge simpliciter on account of
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 technical reasons that were discussed in the meeting and in pursuance of the resolution marked at Ex.D.2.
19. He further argued that since the plaintiff was only a probationary employee, no rights whatsoever has accrued to him so as to lay a claim as is claimed by him in the plaint. Ex.P.33 being non stigmatic in nature, did not affect the career of the plaintiff to any extent so as to make a ground for seeking damages in the form of monthly salary till plaintiff got a gainful employment elsewhere and therefore, claim of plaintiff needs to rejected in toto by allowing cross objections.
20. He also pointed out that while handing over the charge of the post of Executive Secretary by the plaintiff to the first defendant-association, plaintiff has acknowledged that all the dues payable by the first defendant-association has been received by him vide Ex.P.35. Therefore, claims of plaintiff are illusionary and moon shine in nature and therefore, sought for dismissal of the appeal and allow the cross objections.
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008
21. In support of his arguments, he has relied on following judgments, wherein it is held as under:
(i) Reported in MANU/SC/0974/2023: The state of Punjab and Others Vs. Jaswant Singh.
" 18. In view of the principles as reiterated in various judgments by this Court, if we examine the facts of the case in hand leading to the order of discharge, then it is crystal clear that respondent-plaintiff was appointed as a constable and joined the duties on 12.11.1989 on probation. During probation, while he was on training, he along with other trainee constables was deputed for law and order duty in Amritsar District on 24.11.1990. Respondent-plaintiff and other recruits were relieved from the said duty and reported back at the Training Centre, except respondent-plaintiff, who remained on prolonged absence without any intimation to the Training Centre. The S.P., Training Centre, vide memorandum dated 21.02.1991, made a recommendation to S.S.P. that the respondent-plaintiff had not shown any interest in the training and lacks sense of responsibility, further recommending that he is unlikely to prove himself as a good and efficient police officer, hence, he may be discharged under Rule 12.21 of PPR. From perusal of the said Rule, it is apparent that in case a probationary constable is found unlikely to prove an efficient police officer, he may be discharged by the Senior Superintendent of Police at any time within three years from the date of enrolment. The S.S.P. relying upon the recommendation of the
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 supervising officer (S.P., Training Centre) formed an opinion that the probationary constable is found unlikely to prove an efficient police officer owing to his demeanour as reported and discussed herein above.
20. Similarly, in the case of Amar Kumar (supra), wherein the Court found that the appellant therein had instigated to do commotion/agitation/protest and also raised slogans by spreading false rumours in connection with the death of one of the trainees, which was the foundation to pass the order for termination. Thus, in the said case, the Court was of the opinion that the order of termination cannot be simpliciter.
In both the cases as referred above, the allegation of serious misconduct is common, unlike in the instant case, wherein, the foundation of discharge is not on any serious allegation or act of misconduct. The discharge order was passed on the recommendation of the concerned supervisory authority of the Training Centre due to prolonged absence from training without any intimation. The authority found that the probationer constable has no interest in training, and no sense of responsibility, hence, he cannot prove himself a good, efficient police officer. In view of above discussion, both the referred cases are distinguishable on facts.
21. For the reasons discussed above, we are of the considered opinion that the view taken by the High Court and also by the two 18 courts below is completely erroneous in law and must be set-aside. The appeals are accordingly allowed. The judgments and decree passed by the High Court and also by the first appellate Court and Civil Judge
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 (Jr. Division) are set-aside, and the suit filed by the respondent-plaintiff shall stand dismissed. No order as to costs."
(ii) Reported in MANU/SC/1341/1997: Life Insurance Corporation of Indian and Others Vs. Raghavendra Seshagiri Rao Kulkarni.
"The period of probation is a period of test during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services can not be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post. He gets the right to continue on the post till he attains the age of superannuation or is dismissed or removed from service for misconduct etc. after disciplinary proceedings in accordance with the Rules at which he is given a fair and reasonable opportunity of being heard. He may also come to lose the post on compulsory retirement."
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008
(iii) Reported in MANU/SC/0470/2010: Khazia Mohammed Muzammil Vs. The State of Karnataka and Others.
"26. A large number of authorities were cited before us by both the parties. However, it is not necessary to go into the details of all those cases for the simple reason that sub-rule (4) of Rule 5 of the Rules is in pari materia with the Rule which was under consideration in the case of State of Maharashtra v. Veerappa R Saboji (1979) 4 SCC 466 and we find that even if the period of two years expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because in terms of the Rules, work has to be satisfactory which is a prerequisite or precondition for confirmation and, therefore, even if the probationer is allowed to continue beyond the period of two years as mentioned in the Rule, there is no question of deemed confirmation. The language of the Rule itself excludes any chance of giving deemed or automatic confirmation because the confirmation is to be ordered if there is a vacancy and if the work is found to be satisfactory. There is no question of confirmation and, therefore, deemed confirmation, in the light of the language of this Rule, is ruled out. We are, therefore, of the opinion that the argument advanced by learned counsel for the respondent on
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 this aspect has no merits and no leg to stand. The learned Single Judge and the learned Judges of the Division Bench have rightly come to the conclusion that there is no automatic confirmation on the expiry of the period of two years and on the expiry of the said period of two years, the confirmation order can be passed only if there is vacancy and the work is found to be satisfactory. The Rule also does not say that the two years' period of probation, as mentioned in the Rule, is the maximum period of probation and the probation cannot be extended beyond the period of two years. We are, therefore, of the opinion that there is no question of automatic or deemed confirmation, as contended by the learned counsel for the respondent. We, therefore, answer this issue in the negative and against the respondent.
19. Reverting back to the Rules of the present case it is clear that Rule 3, unlike other Rules which have been referred in different cases, contains negative command that the period of probation shall not be less than two years. This period could be extended by the competent authority for half of the period of probation by a specific order. But on satisfactory completion of the probation period, the authorities shall have to consider suitability of the probationer to hold the post to which he was appointed. If he is found to be suitable then as soon as possible order is to be issued in terms of Rule 5(1)(a). On the other hand, if he is found to be unsuitable or has not passed the requisite examination and unless an
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 order of extension of probation period is passed by the competent authority in exercise of its power under Rule 4, then it shall discharge the probationer from service in terms of Rule 5 (1)(b). At this juncture Entry 2 of schedule under Rule 2 of 1983 Rules would come into play as it is a mandatory requirement that the probationer should complete his judicial training. Unless such training was completed no certificate of satisfactory completion of probation period could be issued. Obviously, power is vested with the appropriate authority to extend the probation period and in alternative to discharge him from service. The option is to be exercised by the authorities but emphasis has been applied by the framers on the expression `as soon as possible' they should pass the order and not keep the matters in abeyance for indefinite period or for years together. The language of Rule 5(2) is a clear indication of the intent of the framers that the concept of deeming confirmation could not be attracted in the present case. This Rule is preceded by the powers vested with the authorities under Rules 4 and 5(1) respectively. This Rule mandates that a probationer shall not be deemed to have satisfactorily completed the probation unless a specific order to that effect is passed. The Rule does not stop at that but further more specifically states that any delay in issuance of order shall not entitle the probationer to be deemed to have satisfactorily completed his probation. Thus, use of unambiguous language clearly demonstrates that the fiction of deeming confirmation, if permitted to operate, it would entirely frustrate the very purpose of these Rules. On the ground of unsuitability, despite what is contained in Rule 5, the competent authority is empowered to
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 discharge the probationer at any time on account of his unsuitability for the service post. That discharge has to be simplicitor without causing a stigma upon the concerned probationer. In our view, it is difficult for the Court to bring the present case within the class of cases, where `deemed confirmation' or principle of `automatic confirmation' can be judiciously applied. The 1977 Rules are quite different to the Rules in some of the other mentioned cases. The 1977 Rules do not contain any provision which places a ceiling to the maximum period of probation, for example, the probation period shall not be extended beyond a period of two years. On the contrary, a clear distinction is visible in these Rules as it is stated that probation period shall not be less than two years and can be extended by the authority by such period not exceeding half the period. The negative expression is for half the period and not the maximum period totally to be put together by adding to the initial period of probation and to extended period. Even if, for the sake of argument, we assume that this period is of three years, then in view of the language of Rules 5 (1) and 5(2) there cannot be automatic confirmation, a definite act on the part of the authority is contemplated. The act is not a mere formality but a mandatory requirement which has to be completed by due application of mind. The suitability or unsuitability, as the case may be, has to be recorded by the authority after due application of mind and once it comes to such a decision the other requirement is that a specific order in that behalf has to be issued and unless such an order is issued it will be presumed that there shall not be satisfactorily completion of probation
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 period. The Rules, being specific and admitting no ambiguity , must be construed on their plain language to mean that the concept of `deemed confirmation' or `automatic confirmation' cannot be applied in the present case.
22. As an alternate submission, learned counsel for respondent/cross objector contended that the Trial Court by directing three months salary to be paid at the rate of Rs.11,000/- per month with interest, is thus illegal.
Nevertheless, in order to show the prudence and bonafide nature of first defendant-association, without prejudice to the rights to be canvassed in the present cross objection, first defendant-association has deposited a sum of Rs.29,516/- denoting three months salary with accrued interest till 18.12.2007 before the Trial Court and therefore, this Court may take note of the same and allow the cross objection and direct the deposited amount to be returned to the first defendant-association.
23. In reply, Sri.Jayanth Devkumar, learned counsel for the appellant contended that even though, on bare reading of Ex.P.33 would depict that it is non stigmatic in
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 nature, but same needs to be viewed from the background of what transpired in the first defendant-association till plaintiff handed over the charge to first defendant-
association. He further contended that plaintiff exposed the illegalities committed by the first defendant-
association and therefore, as a vindictive attitude, Ex.P.33 came to be issued and therefore, the appeal has to be allowed.
24. In view of the rival contentions of the parties, this Court perused the material on record meticulously.
On such perusal of the material on record, following points arise for consideration:
1. Whether plaintiff made out a case that his discharge by the first defendant-association is illegal and he is entitled for the damages at the rate of Rs.7,000/- per month from the date of his discharge till he got gainfully employed in the year 2010?
2. Whether the plaintiff makes out a case that in addition to direction by the learned Trial Judge (to pay three months salary at the rate of Rs.7,000/- per month with interest at the rate of 10%p.a.) plaintiff is also entitled for the compensation with effect from 27.06.1994 till 2010?
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3. Whether the cross objector makes out a case that impugned judgment in declaring the letter dated 26.07.1994 is illegal and directing the payment of Rs.7,000/- per month with interest from 27.06.1994 till October is incorrect?
4. Whether the impugned judgment is suffering from any legal perversity or thus calls for interference?
5. What order?
RE. POINT NOS.1 TO 4:
25. In the case on hand, on perusal of the material on record both oral and documentary evidence placed by the parties, the following admitted points would emerge:
First defendant-association sent a communication to the plaintiff for the post of executive secretary.
After completing the formalities, plaintiff was appointed as Executive Secretary on and from 18.04.1994 for a period of six months as a probationer.
By dated 26.07.1994 (Ex.P.33) plaintiff was informed that his appointment stands cancelled with immediate effect.
Plaintiff handed over the charge of Executive Secretary in pursuance of Ex.P.33 vide Ex.P.35 dated 03.09.1994 and he was paid a sum of Rs.6,095/- as the full and final settlement. However,
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 the plaintiff did not accept sum of Rs.6,095/-.
Exchange of legal notices.
26. From the material on record, following disputed facts are noted:
Plaintiff claiming that his removal from the post of Executive Secretary is whimsical, vindictive and without there being any basis.
Plaintiff being the probationer was entitled to be discharged by the first defendant- association without holding any enquiry.
Plaintiff claiming damages at the rate of Rs.7,000/- per month from 03.09.1994 till August 2007.
27. With the aforesaid admitted and disputed facts, the points referred to above are considered, in the case on hand, appointment of the plaintiff on 18.04.1994 for the post of Executive Secretary is a voluntary act of the first defendant-association is established. According to the plaintiff, when he started working as an Executive Secretary, he has noticed several illegalities being committed by the office bearers of the first defendant-
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 association, which was exposed by him by questioning the office bearers and discussing with other employees of first defendant-association resulting in removing him from the post of Executive Secretary by virtue of Ex.P.33.
28. Even though learned Trial Judge has discussed in detail on the said aspect of the matter, fact remained that plaintiff being the probationer as per his appointment letter dated 18.04.1994, first defendant-association was entitled to discharge him from his post within the probationary period of six months from the date of his appointment without holding any enquiry and without assigning any reasons.
29. Therefore, the claim made by the plaintiff that he is entitled for the back wages and consequential benefits are all illusionary in nature as is rightly contended on behalf of the cross objector/respondent.
30. It is settled principles of law and requires no emphasis that a probationer would not get any right to
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 enforce against his own employer till he satisfactorily completes the period of probation.
31. In this regard, the judgment relied on by the learned counsel for the cross objector in the case of Life Insurance Corporation of Indian and Others Vs. Raghavendra Seshagiri Rao Kulkarni reported in MANU/SC/1341/1997 is referred to supra would squarely be applicable to the facts and circumstances of the present case.
32. The learned Trial Judge however, failed to note the said aspect of the matter by holding that the communication made to the plaintiff is illegal. Be it what it may. Facts remains that plaintiff has handed over the charge of his post on 03.09.1994, but failed to receive the sum of Rs.6,095/-.
33. In the reply notice issued by the respondent/cross objector marked at Ex.P.67, the first defendant-association has clearly spelt out the said aspect
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 of the matter and there is no dispute that the plaintiff was a probationer.
34. Since, the plaintiff is only a probationer, he cannot, as of a right, claim the damages as is claimed by the plaintiff till his fresh appointment in the year 2010.
35. There cannot be any dispute as to the principles of law enunciated in the judgments relied on by the learned counsel for the appellant. But those principles are not applicable to the case on hand in view of the fact that plaintiff was only a probationer.
36. Therefore, the contentions urged by the appellant before this Court that plaintiff is entitled for the damages from 27.06.1994 till the year 2010 cannot be countenanced in law.
37. Since, the plaintiff is discharged from the service vide Ex.P.33, the first defendant-association has exercised its right as an employer within a period of probation and therefore, Ex.P.33 cannot be faulted with.
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008
38. In order to appreciate the arguments of the counsel for the plaintiff that Ex.P.33 has acted as a stigma so as to prevent him from obtaining a better employment, it is just and necessary for this Court to cull out Ex.P.33, which reads as under:
"Ref:APH/G SEC/102 26th July 1994 Mr.P.Jayakiran 115, St.Michael's School Road 2nd Cross, Shantinagar, Bangalore 560 027.
Dear Mr. Jayakiran, This has reference to my letter dated 18th April 1994 regarding appointment as Executive Secreyary of the Association of the Physically Handicapped.
In the said context, I am constrained to inform you that the aforesaid letter dated 18th April 1994 is void being ultra vires of the Constitution of The Association of The Physically Handicapped.
Accordingly please therefore be informed that the appointment vide letter dated 18th April 1994, stands cancelled with immediate effect, pending a decision of the Committee of Management.
Yours faithfully,
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 [M N V Urs] Hon. Gen. Secretary Note: Copies of this letter apart from being served on you personally are being sent to you separately by Registered Post A/D and also under Certificate of Posting as a measure of abundant of precaution."
39. On bare perusal of Ex.P.33, one can safely conclude that the contents of Ex.P.33 is not stigmatic in nature so as to prevent the plaintiff from procuring a job in the open market. Therefore, Ex.P.33 is to be construed as discharge simpliciter.
40. In view of the fact that Ex.P.33 is discharge simpliciter no other rights would accrue to the plaintiff.
However, learned Trial Judge without noticing the said aspect of the matter, recorded a finding that communication is illegal. But, held that plaintiff is entitled to sum of Rs.7,000/- per month from 26.07.1994 till October 1994. In other words, the learned Trial Judge while granting second relief to the plaintiff as per the impugned judgment and decree, has also indirectly noticed
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 that first defendant-association had right to discharge the plaintiff in the month of October 1994, which is the six months period as per the letter dated 18.04.1994 marked at Ex.P.11. The reasoning assigned by the learned Trial Judge while granting second relief in allowing to the plaintiff to receive a sum of Rs.7000/- per month from 26.04.1994 till October 1994, would be sufficient enough to hold that indirectly the Trial Court has accepted the contentions urged on behalf of the first defendant that first defendant had right to discharge the plaintiff from the service as he is only a probationer.
41. Further, on record the material is available to hold that the first defendant-association has deposited a sum of Rs.29,516/- on 18.12.2007 in pursuance of the impugned judgment and decree before the Trial Court.
42. Grounds of the cross objections, however, would not depict that the said deposit is without prejudice to the rights of the cross objector to be adjudicated in the cross
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 objections. In other words, the cross objector has complied with the impugned judgment.
43. Having complied with the impugned judgment without reserving the right to prosecute the cross objections on the merits, now cross objector cannot turn around and contend that cross objector is entitled to even question the impugned judgment.
44. Be it what it may, the fact remains that on 03.09.1994, plaintiff has handed over the charge of executive secretary to the first defendant-association.
Since, already a sum of Rs.29,516/- is deposited by the first defendant-association, plaintiff is entitled to withdraw the same from the Trial Court.
45. Taking note of the fact that plaintiff was only a probationer; no other rights could be exercised by him as is canvassed on behalf of the appellant in the present appeal. In view of the aforesaid discussions, point Nos.1 to 4 are answered in the negative.
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NC: 2023:KHC:34697 RFA No. 2298 of 2007 C/W RFA.CROB No. 20 of 2008 REG. POINT NO.5:
46. In view of the findings on point Nos.1 to 4 are answered in the negative, the following:
ORDER i. Appeal is dismissed.
ii. Cross objection is also dismissed. iii. No order as to costs.
Sd/-
JUDGE KAV List No.: 1 Sl No.: 44