Karnataka High Court
Ramesh S. Lamani vs The Life Insurance Corporation Of India on 1 January, 2003
Equivalent citations: 2003(4)KARLJ510, 2003 LAB. I. C. 2108, 2003 AIR - KANT. H. C. R. 1628, (2003) 2 KCCR 1180, (2003) 4 KANT LJ 510
Author: P. Vishwanatha Shetty
Bench: P. Vishwanatha Shetty
JUDGMENT P. Vishwanatha Shetty, J.
1. The petitioner in this petition who was employed as a Peon in the Life Insurance Corporation of India (hereinafter referred to as 'the Corporation'), in this petition has called in question the correctness of the order dated 18th September, 1997, a copy of which has been produced as Annexure-B to this petition terminating his services from the employment of the Corporation.
2. The facts in brief which may be relevant for the disposal of this petition may be stated as hereunder:
In response to the application invited by the Corporation for appointment to the post of Peon, the petitioner made an application. On the basis of the performance of the petitioner, both in the written examination and in the interview conducted by the Corporation, the petitioner having been found suitable to the post, he was selected; and an appointment order dated 20th March, 1997 was issued to the petitioner, a copy of which has been produced as Annexure-A to the petition. It is the case of the petitioner that from the date of his appointment he had discharged his duties as Peon to the entire satisfaction of his superiors and there has not been any occasion where any Memo or Notice of warning issued to the petitioner informing the petitioner that the discharge of his duties was not satisfactory. As per the terms of the appointment, the petitioner was to be on probation for a period of six months from the date of his appointment; and when the probation period was about to be declared as satisfactory, the Order (Annexure-B) dated 19th September, 1997 terminating the services of the petitioner, came to be passed.
3. Sri Syed Basheer, learned Counsel appearing for the petitioner challenging the correctness of the Order (Annexure-B) made two submissions. Firstly, he submitted that since the impugned order came to be passed on the ground that the petitioner has suppressed his educational qualification in the application filed by him seeking appointment as a Peon in the Corporation, the said order is liable to be quashed on the ground that the same came to be passed in disregard of the principles of natural justice and by way of penalty. Elaborating this submission, the learned Counsel pointed out that though the impugned order purports to be an order made under Regulation 14(4) of the Life Insurance Corporation of India Regulations (hereinafter referred to as 'the regulations') and in terms of Clause 5 of the appointment order issued to the petitioner, as a matter of fact it is an order made by way of penalty imposed on the petitioner on the ground that he had suppressed his educational qualification while submitting his application for appointment. It is also his submission, that since the service of the petitioner was not terminated on the ground that his services ere not satisfactory during the period of probation; and it was terminal a only on the ground that he had suppressed his qualification in the application filed by him, the provisions contained in Regulation 14(4) of the Regulations and Clause 5 of the appointment order relied upon b the respondents to terminate the services of the petitioner has no bearing. Secondly, the learned Counsel submitted that the assertion made in the statement of objections that the petitioner had secured higher qualification and therefore he was not qualified either to apply to the post of Peon or to be appointed as a Peon is totally incorrect. In this connection, he drew my attention to the qualification prescribed in the notification issued inviting applications. It is his submission that the petitioner has not secured more than 50 per cent marks in S.S.L.C. and he is not a graduate or a post-graduate; and therefore mainly because he had obtained admission for study of graduation or had secured a certificate in Job Oriented Course cannot be considered as a disqualification to be appointed as a Peon. In support of his contention that even if the services of the petitioner was required to be dispensed with, the principles of natural justice are required to be complied with and his services could not have been terminated in an arbitrary manner, the learned Counsel relied upon a decision of the Supreme Court in the case of V.P. Ahuja v. State of Punjab and Ors., and drew my attention to paragraph 7 of the said judgment. He also drew my attention to the judgment of this Court in the case of Smt. Parimala v. Banking Service Recruitment Board, Bangalore and Ors., 2002(4) Kar. L.J. 257 : ILR 2001 Kar. 2997. Counsel for the petitioner further submitted that the petitioner belongs to a Scheduled Caste and is a very poor person and if the impugned order is not quashed, his right to livelihood guaranteed under Article 21 of the Constitution of India will be seriously affected.
4. However, Sri V.C. Brahmarayappa, learned Counsel appearing for the respondent while strongly supporting the impugned order pointed out that since the petitioner was a probationer and his services came to be terminated in terms of Regulation 14(4) of the Regulations and Clause 5 of the appointment order which empowers the Corporation to terminate the services of the petitioner without notice to the petitioner, the order impugned does not suffer from any error. He further pointed out that since the materials on record clearly shows that the petitioner sought admission for III year B.A. and also had obtained a certificate in Job Oriented Course, the petitioner had higher qualification than the one prescribed and as such the petitioner being disqualified to be appointed to the post of a Peon, this Court in exercise of its power under Articles 226 and 227 of the Constitution of India should not interfere against the impugned order. In support of this submission, he relied upon the decision of the Supreme Court in the case of Life Insurance Corporation of India and Anr. v. Raghavendra Seshagiri Rao Kulkarni, and also of the Supreme Court in the case of Kerala Solvent Extractions Limited v. A. Unnikrishnan and Anr., C.A. Nos. 7604 and 7605 of 1993, DD: 30-11-1993 (SC) and drew my attention to paragraph 7 of the judgment and also the judgment of the Supreme Court in the case of Pavanendra Narayan Verma v. Sanjay Gandhi P.G.I. of Medical Sciences and Anr, .
5. In the light of the rival submissions made by learned Counsels appearing for the parties, the only question that would arise for my consideration in this petition is as to whether the impugned order is liable to be quashed?
6. It is not in dispute that the services of the petitioner came to be terminated when he was on probation. The order impugned does not state that his service came to be terminated on the ground that during the period of probation his services were not satisfactory. Further, it is the case of the Corporation in the statement of objections that the service of the petitioner came to be terminated on the ground that the petitioner has made an inaccurate statement with regard to his educational qualification in the application filed seeking for appointment as a Peon in the Corporation and therefore, the respondent passed the impugned order terminating his services. In this connection, it is useful to refer to the statement made in the statement of objections at paragraph 5 which reads as hereunder:
"5. Later on, the respondent came to know that the petitioner had given false answers in the application for recruitment regarding his educational qualification and further he had given false declaration about the matter while actually he had completed two years Job Oriented PUC Diploma equivalent to 12th Standard of the State Council for Vocational Education in First Class, securing 66 per cent of marks and further at that time of submitting his application, he was a regular student of BMS Arts and Science College, Jamkhandi studying in B.A. III Class under Roll No. 42. It was, therefore, obvious that in order to secure an employment the petitioner had deliberately suppressed the real position regarding his educational qualifications. Further, by giving a false sworn declaration that he had studied only upto S.S.L.C., the petitioner led the respondent to believe that statement was true but for which the respondent would not have entertained the petitioner's application for employment and the subsequent events would also not have taken place. Moreover, being a candidate with much higher educational qualifications than the one prescribed for recruitment to the post the petitioner had an unfair advantage over the other candidates in the process of selection".
7. In the rejoinder filed to the statement of objections, it is asserted by the petitioner that the petitioner did not possess any higher qualification. The petitioner has produced the S.S.L.C. marks card which shows that the petitioner has passed S.S.L.C. by securing 288 marks out of 600 marks. Therefore, the marks secured by the petitioner in S.S.L.C. is less than 50 per cent. Annexure-1 produced along with the statement of objections sets out the qualification prescribed for the post of a Peon. The same reads as hereunder:
"Peons A pass in Standard IX.
However candidates who have passed XII Standard and have secured 50% or more marks.
Graduates and Post-graduates will not be considered eligible.
The minimum educational qualification of an ex-serviceman who had put in at least 3 years service before his release from Armed Forces of the Union, is a pass in 7th Standard in School".
8. From the qualification prescribed to the post of Peon in the notification issued calling for applications, it is clear that a candidate who had passed XII Standard and who has secured 50 per cent or more marks, graduates and post-graduates are not eligible to be considered for appointment to the post of a Peon. It is not in dispute that the petitioner in his application has stated that he has studied upto S.S.L.C. It is not disputed that the petitioner has secured less than 50 per cent marks in his S.S.L.C. It is not the case of the respondent that the petitioner is either a graduate or a post-graduate. The only case made out by the respondent against the petitioner is that he has sought admission in B.M.S. Arts and Science College in III year B.A. and also completed two years Job Oriented Diploma which is equivalent to the 12th Standard. Therefore, from the stand taken by the respondent, it is clear that the services of the petitioner came to be terminated on the assumption that the petitioner suppressed the higher qualification obtained by him in the application filed by him and also on the ground that the qualification possessed by him does not entitle him to continue in service. In the light of the definite case set out by the respondents in the statement of objections, I am of the view the order impugned is liable to be quashed on two grounds. Firstly, on the ground that the impugned order came to be passed by way of penalty on the ground that the petitioner possessed higher qualification than the one prescribed for the post of Peon and the petitioner had suppressed the higher qualification in the application filed by him seeking for appointment. This is also clear from the copy of the office note dated 16th September, 1997 which shows that the impugned order terminating the services of the petitioner came to be passed only on the ground that the petitioner had suppressed the higher qualification possessed by him and in the light of the fax message received from the Vigilance Department of the Zonal Office, advising to take action under Regulation 14(4) of the said Regulations. It is useful to extract the relevant portion of the said office note which reads as hereunder:
"Regulation 14(4) of the (Staff) Regulations, 1960 reads as follows:
'And during the period of probation an employee shall be liable to be discharged from service without any notice'.
The employee will be completing probationary period on 21-9-1997.
As the employee has entered into service of LIC by wilfully suppressing his real qualification, understating it for the purpose of securing appointment by making false declaration in this regard and thereby his integrity, honesty are proved to be one of doubtful nature. At the time of recruitment, as per our recruitment rules, he was ineligible for appointment on account of his over-qualification for Peon's post. Under the circumstances, whether we may discharge him from our services with immediate effect and in any case before 21-9-1997 i.e., before the end of his probationary period.
For instructions.
(A) (1) He was over-qualified (ineligible) for the post and we have conclusive proof of it.
(2) He has suppressed the material fact and made wilful false representation.
(3) It may set a bad precedence and other such aspirants for Peon's post may be emboldened to do such thing.
(B) Hence we may discharge with his services with immediate effect".
From what is stated above, it is clear that though the impugned order reads as an order of termination simplicitor, in fact and substance, the said order came to be made by way of penalty for the alleged suppression of the educational qualification by the petitioner. Therefore, in my view, it was incumbent on the part of the respondents to have conducted an enquiry and given an opportunity to the petitioner. Admittedly, the same has not been done. Under these circumstances, I am of the view that it is not permissible for the respondent to rely upon Regulation 14(4) of the Regulations and Clause 5 of the appointment order. Therefore, the principle enunciated by the Hon'ble Supreme Court in the case of Raghavendra Seshagiri Rao Kulkarni, supra, relied upon by Sri Brahmarayappa has no application to the facts of the present case.
Secondly, the qualification stated to have been secured by the petitioner, in my considered view, cannot be treated as a disqualification for his appointment to the post of a Peon. As noticed by me earlier, the petitioner has not secured 50 per cent marks in S.S.L.C. He is also not a graduate or a post-graduate. Merely because the petitioner was studying in III year B.A. is not a ground to disqualify him to consider his claim for appointment to the post of Peon. So long as the educational qualification possessed by the petitioner cannot be treated as a disqualification to the post, non-disclosure of the said qualification in his application cannot be treated as a disqualification for appointment to the post. Therefore, on this ground also, the impugned order is liable to be quashed. Further, if only the petitioner was to be heard and given an opportunity, the misapprehension in the mind of the respondents about the qualification possessed by the petitioner could have been clarified by the petitioner. The principles of natural justice in the facts and circumstances of the case demanded that the petitioner should be heard and given an opportunity. Admittedly, that has not been done. Under these circumstances the action of the respondent has to be treated as arbitrary, unreasonable and violative of the right guaranteed to the petitioner under Article 14 of the Constitution of India. It is necessary to point out that any arbitrary or illegal termination of the services of an employee though he is a probationer would seriously affect his right to livelihood. One has to notice the distinction for termination of service of the petitioner for not discharging his duty satisfactorily during the probationary period; and termination of his services on account of any misconduct committed by him to secure the employment. They stand on a different footing and the approach to be made by the Appointing Authority, would be different. In the case of termination of service of a probationer on the ground of misconduct committed by him to secure the employment requires an enquiry being held with regard to the alleged misconduct committed by him and an opportunity should be given to him to have his say in the matter. The constitutional system to which we have wedded ourselves and the rule of law, an authority is required to adhere, and more particularly when such an authority is an instrumentality of the State, it does not permit such an authority to arbitrarily terminate the services of an employee even if such an employee is a probationer. Article 14 of the Constitution of India, it is well-settled, abhors discrimination, arbitrary and unreasonable action. In the present case, the post to which the petitioner was appointed is the post of a Peon. It is not in dispute that the petitioner is a Scheduled Caste. The constitutional provisions recognises that the Scheduled Castes on account of historical, cultural and social reasons are generally less blessed than the other sections of the society. Therefore, even while considering whether a probationer's service should be terminated or not, the respondent which is an instrumentality of the State cannot be oblivious to these fact situations and apply the rule of thumb and terminate the services of the petitioner in an arbitrary manner. The judgment of the Supreme Court in the case of V.P. Ahuja, supra, in my view fully supports the case of the petitioner. At paragraph 7 of the judgment the Hon'ble Supreme Court has stated as follows:
"7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice".
The said judgment was followed by me in the case of Smt. Parimala, supra. Further, the records made available to me shows that a preliminary enquiry was conducted by the Enquiry Officer with regard to the qualification of the petitioner. In the enquiry report dated 17th April, 1997, the Enquiry Officer has stated as follows:
"7. During the course of enquiry, I was told that Shri Ramesh S. Lamani belongs to very poor Scheduled Caste community and staying in slum area near to Jamkhandi Branch. In spite of sincere efforts he could not get required job".
9. Therefore, in the light of the discussion made above, the impugned order is liable to be quashed. Accordingly, it is quashed. The respondent is directed to reinstate the petitioner to duty with continuity of service and back wages. However, the back wages and other emoluments payable to the petitioner is fixed at 75 per cent of the amount payable to him from the date of his termination till the date of his reinstatement. The respondent is given four weeks' time from the date of receipt of a copy of this order to reinstate the petitioner to duty and six weeks' time to the respondent to settle his monetary benefits as directed above.
10. In terms stated above, this petition is allowed and disposed of. Rule is issued and made absolute. However, no order is made as to costs.