Karnataka High Court
S.H. Mohan Kumar vs State Of Karnataka Rep. By Its Secretary on 5 October, 2005
Equivalent citations: ILR2005KAR5517, 2005(6)KARLJ390, 2005 LAB. I. C. 4152, 2005 AIR - KANT. H. C. R. 2910, (2006) 5 SERVLR 32, (2005) 6 KANT LJ 390, (2006) 1 KCCR 130
Author: B.S. Patil
Bench: B.S. Patil
ORDER B.S. Patil, J.
1. By a notification dated 12.08.2005 issued by the respondent-State, the petitioner herein is relieved of his duties as Government Pleader. Aggrieved by the same, petitioner is before this Court.
2. Brief facts mat are relevant for the disposal of this case and as borne out from the pleadings can be set out as under. Petitioner, a practicing advocate at Holenarasipura, came to be appointed as a Government Pleader on 16.10.2003. The terms of appointment as are clear from Annexure-B, show that the appointment was for a period of three years of until further orders whichever is earlier. The appointment of the petitioner was governed by the provisions of the Karnataka Law Officers (Appointment and Service Conditions) Rules, 1975 (for short "the Rules").
3. Smt. Thayamma, mother of one Sri. Suresh submitted a representation on 18.07.2005 addressed to the Chief Minister complaining about the alleged harassment by the petitioner, in that he helped Smt. Manjula, the daughter of his sister to get maintenance in a proceedings instituted before the J.M.F.C., Holenarasipura. A copy of the said representation dated 18.07.2005 is produced by the petitioner at Annexure-D. Petitioner contends that immediately on the receipt of the said representation, an order is made by the Chief Minister directing removal of the petitioner from the post of Government Pleader. He contends that based on the endorsement made by the Chief Minister on the representation submitted by Smt. Thayamma, a note is issued by the Principal Secretary to the Chief Minister on 25.07.2005. A persual of the Note, vide Annexure-E, discloses that a request is made to take action as per the order passed by the Chief Minister.
4. learned Counsel appearing for the petitioner contends that the impugned action is illegal, arbitrary and suffers from the vice of legal malice. He submits that conceding even the fact that the services of the petitioner as Government Pleader could be removed by the authorities at their discretion, the same cannot be done on the basis of allegations made with ulterior and mala fide intentions by a third party without verifying the truth or otherwise of the said allegations. He emphasizes the fact that the petitioner had appeared as an Advocate for a deserted wife who had sought for maintenance from her husband for herself and for her two minor daughters and that he has discharged his professional duties in securing an order from the Judicial Magistrate directing payment of maintenance to the said lady and her minor daughters. The complaint made by the mother of the husband, against whom the order of maintenance was passed, was activated by mala fide intention and could not have been entertained for the purpose of handing down a penal order of removing the petitioner from the post of Government Pleader. Such an action, apart from being contrary to law would totally demoralise the petitioner is what is contended by the Counsel for the petitioner.
5. He has next contended that the appointment of the Government Pleaders by the State Government is done in accordance with the provisions of the Karnataka Law Officers (Appointment and Service Conditions) Rules, 1975. The manner of exercise of the powers is spelt out in Rule 5 of the said Rules. The exercise of powers in the instant case, as can be seen from the impugned order, is resorted to by invoking Sub-rule (5) of Rule 5 which provides for removal of the Law Officer at any time if he is guilty of any act or conduct contrary to the said rules or if he is found guilty of conduct which is incompatible with his duties as a Law Officer. Though the complaint made against the petitioner contains several allegations, without applying the mind to the allegations made and without following the principles of natural justice, an order is passed invoking Rule 5 (5) which, in essence, would mean that the petitioner is removed on account of the guilty conduct as spelt out in Sub-rule (5) of Rule 5. Therefore, in the absence of recording any finding in terms of the said Sub-rule and in the absence of any material to show that any such guilty conduct is attributed to the petitioner, the action is illegal and vitiated. He has placed reliance on the decision of the Apex Court in the case of Kumari Shrilekha Vidhyarthi, Etc v. State of U.P. and Ors., , State of Punjab v. Gurdial Singh, , State of U.P. and Anr. v. Johrimal, .
6. Statement of objections are filed by the State. While admitting the fact that the services of the petitioner is removed in accordance with Sub-rule (5) and (6) of Rule 5 of the Rules, it is stated that the Government Pleader appointed holds office during the pleasure of the Government and the State Government may terminate the appointment of Law Officers without assigning any reason by giving one month's retainer fee instead of notice of one month as is provided under Sub-rule (6) of Rule 5 of the Rules. As regards the factual assertions made by the petitioner stating that the action is based on the complaint given by Smt. Thayamma and the order removing the petitioner is solely at the instance of and on the basis of the allegations made in the complaint of Smt. Thayamma, the statement of objections does not advert to the same and there is no specific denial of these allegations and assertions.
7. Additional Government Advocate Sri. Huleppa Heroor supporting the action of the State contends that though Sub-rule (5) of Rule 5 is invoked, the action of the Government squarely falls within Sub-rule (6) of Rule 5 and reference made to Sub-rule (5) would not perse vitiate the order if it can be otherwise justified by referring it to Sub-rule (6) of Rule 5. In this regard, he has relied on a judgment of the Supreme Court in the case of Municipal Corporation of The City of Ahmedabad v. Benhiraben Manual, .
8. Having heard the learned Counsel appearing for the parties and after perusal of the records including the original records made available before the Court, the question that arises for consideration is:
"Whether the impugned notification issued by the State Government removing the petitioner from the service as Government Pleader requires interference by this Court? "
9. The facts, as presented before the Court disclose that the order of removal of the petitioner is passed due to the allegations made by one Smt. Thayamma, mother of Sr. Suresh. It is evident from the records made available that the petitioner has appeared as a Counsel representing the case of Smt. Manjula wife of Sri. Suresh in a petition filed under Section 125 of the Criminal Procedure Code whereunder an order for maintenance is sought before the Court of the Judicial Magistrate First Class, Holenarasipura. The said Smt. Manjula is the niece (sister's daughter) of the petitioner and Smt. Thayamma is none other than the paternal aunt of the petitioner as is evident from the order passed by the magistrate. It is thus evident that there is a family dispute pertaining to the strained matrimonial relations of the niece of the petitioner, Smt. Manjula and her husband Sri. Suresh which has resulted in the complaint being filed by Smt. Thayamma, the mother-in-law of Smt. Manjula addressed to the Chief Minister. The allegations made against the petitioner therefore, have to be viewed in this background. Whether the allegations are the result of personal animosity and strained family relationship or whether it has anything to do with the discharge of the duties of the petitioner as a Government Pleader is a matter on which this Court cannot at this point of time pronounce anything, particularly because that is not examined by the authorities at all. Suffice it to say that a perusal of the allegations do not prima facie disclose that any allegations of misconduct against the petitioner in his discharge of duties as Government Pleader are made.
10. In the background of the aforementioned facts, the contention urged by the learned Counsel for petitioner that the order of removal is passed on account of the allegations made by Smt. Thyamma and is unrelated to the discharge of duties as Government Pleader and that the exercise of power is traceable to the provisions containes under Sub-rule (5) of Rule 5 is well founded. Sub-rule (5) of Rule 5 of the Rules reads as under:
"5. (5). A Law Officer shall be liable to be removed from office at any time if he is guilty of any act or conduct which, in the opinion of the Government is contrary to these rules or is incompatible with his duties as such Law Officer. Decision of the Government in such cases, shall be final."
11. It is thus clear that a Law Officer can be removed if he is found guilty of any conduct contrary to the rules (The Karnataka Law Officers (Appointment and Service Conditions) Rules, 1975) and if he is guilty of conduct incompatible with the duties as such as Law Officer. None of the twin requirements that attract the provisions of Sub-rule (5) of Rule 5 are present in the instant case. The impugned order does not refer to any such conduct on the part of the petitioner. At any rate, if Sub clause (5) of Rule 5 is invoked and the petitioner is to be removed on the basis of the misconduct spelt out therein, it is incumbent upon the authorities to follow the principles of natural justice and provide an opportunity to the affected person before any order holding him guilty of misconduct is passed, as otherwise it would result in a stigmatic order passed without hearing the affected parties. It is seen from the impugned order that Sub-rule (5) of Rule 5 is in fact invoked. The statement of objections filed further buttresses this fact. Viewed in the background of the allegations/complaint made and the order passed, there is no difficulty in holding that the notification issued removing the petitioner is in essence for the allegations and the misconduct alleged against the petitioner. Therefore, it was mandatory on the part of the respondent to hear the petitioner and record specific findings into the allegations made and in terms of Sub-rule (5) of Rule 5. The contention of the Learned Additional Government Advocate stating that the action is initiated by complying with the provisions of Sub-rule (6) of Rule 5 of the Rules by giving one month's retainer fee in lieu of one month's notice cannot be accepted in as much as if the case falls under Sub-rule (5) of Rule 5 and the action of removal is initiated based on the complaint, the question of invoking Sub-rule (6) simultaneously does not arise.
12. A reading of Sub-rule (6) of Rule 5 would show that it applies to cases not otherwise provided for under Sub-rule (5). The expression 'save as otherwise provided in sub-rule(5)' itself would disclose that for actions which are not otherwise provided under Sub-rule (5), the Government can take action to terminate the appointment of the Law Officer without assigning any reason by giving one month's notice in writing or by giving a month's retainer fee in lieu of such notice. The impugned notification which purports to invoke both Sub-clause (5) and (6) of Rule 5 cannot be termed as one passed in exercise of Sub-rule (6). The background of the facts, as adverted to above would unmistakably show that the power is exercised under Sub-rule (5) of Rule 5. In the absence of compliance of the requirements of rules of natural justice, the petitioner could not have been removed under Sub-rule (5) of Rule 5. The action would certainly demoralise a Law Officer. Counsel for the petitioner is right in contending that the duties of a Law Office cannot be equated with that of a professional who is engaged by a private client as the responsibilities entrusted to the Law Officer partake a public character and any order removing him from service from such post on the basis of allegations made by a third party would have a serious repercussion on him in his future professional career. The Apex Court in Shrilekha's Case has held that the Constitution of India does not envisage or permit unfairness or unreasonableness in State action in any sphere of its activities contrary to the professed ideals in the preamble. Exclusion of Article 14 in contractual matters is not permissible in constitutional scheme. Further in the decision reported in the case of Suman Gupta and Ors. v. State of J and K and Ors.,1983 (4) SCC 339 the Apex Court has held that Article 14 is violated by powers and proceedings which in themselves result in unfairness and arbitrariness.
13. Administrative powers should be exercised within defined limits in the reasonable discretion of the designated authority. Where the true object of an action is to reach an end different from the one for which the power is entrusted and the actions are guided by extraneous considerations, irrelevant to the entrustment of such power and when the custodian of such power is influenced in its exercise by considerations outside those for promotion of which the power is vested, the Court will step in as the power so exercised can be characterised as colourable exercise. This is what the Apex Court has categorically held in Gurdial Singh's case. The ratio laid down in the aforementioned decision is applicable to the exercise of powers by the respondent in this case. Hence, I have no hestitation to hold that the impugned notification issued removing the petitioner from the post as Government Pleader is illegal and unsustainable. Hence, I pass the following:
ORDER The impugned notification dated 12.08.2005 vide Annexure-A is set aside. The petitioner is held entitled to continue as Government Pleader in accordance with the terms of his appointment order dated 16.10.2003 as per Annexure-B. Ordered accordingly. No costs.