Basavaraj Patil Vs. Hyderabad Karnataka Education Society - Court Judgment

Excerpt:
karnataka private educational institutions (discipline & control) act, 1975 (karnataka act no. 10 of 1975) - section 6 : hyderabad karnataka education society's institutions service manual, 1978 - chapters ii, iii & xix - 'permanent' 'on probation' 'temporary': connotation - probation only for employee against permanent post : no probation for temporary employee appointed for fixed period - employee appointed against permanent post on satisfactory completion of probation & declaration thereof, entitled for absorption in permanent service & pending formal confirmation in regular service : termination from service amounts to dismissal - termination order not of termination simpliciter : falls within section 6 of act appealable under section 8;in chapter ii 'permanent' is defined to mean, the post is permanent, the term of probation has been satisfactorily completed and confirmation of the employee in the post has been communicated to him in writing. 'on probation,' which means the employee, while being appointed to a permanent post, or a temporary post is required to fulfil conditions of probation as prescribed in the probation rules before being confirmed in his appointment. 'temporary' means the employee is engaged specifically for fixed or limited period, on terms and conditions specified in his letter of appointment... if the employee is appointed against the permanent post on probation, and on his satisfactorily completing the probation, he would be confirmed in the post as a permanent employee. it is seen that under rule in chapter iii regarding probation rules, it envisages that the probation rules shall apply only to those employees appointed on probation viz., that the employee appointed against the permanent post will have to undergo probation period (as per the cadre and recruitment rules). the temporary employee engaged for fixed period is not required to undergo probation..... as such, when the employee has successfully completed the probationary period, and the appointing authority so declares, the employees awaiting for the confirmation order as required under rule 9 of the service manual. in that situation, the legal effect of that declaration is that they were entitled to be absorbed into permanent service, and pending formal confirmation their service is regular service... in the circumstances like this, the termination of the service, especially approved probationers awaiting confirmation, clearly amounted to dismissal. ;on facts: ;it is clear that the petitioners were selected and appointed by the respondent to the respective posts of f.d.c. and s.d.c. these were the permanent posts as per the cadre and recruitment rules of h.k.e. society's service manual. as per the appointment order, their service conditions are governed by the service manual 1978, on their joining service. they were to undergo probation as per the probationary rules contained in chapter iii of the service manual, and they had successfully completed the probationary period. an order to that effect was also issued on behalf of the respondent - management. therefore, both the petitioners were entitled to be confirmed and there is no discretion left with the appointing authority... the appointments of the petitioners were not for a fixed or limited period, as such it cannot be construed that their appointments were temporary, merely because the word 'temporary' is used in the appointment order... it cannot be said that the petitioners who have been selected and appointed as per cadre and recruitment rules of f.d.c. and s.d.c, who had undergone the probationary period, that appointment cannot be said as temporary appointment arid their service could be dispensed with, without notice as if it were termination simpliciter. ; (ii) orders of termination of service of the petitioners were not an order of termination simpliciter. they were orders of removal of petitioners from service, which squarely falls within the ambit of section 6 of the act, and as such the appeal under section 8 of the act is maintainable.... this is not a case of simple termination, but a case of dismissal, and therefore, the orders are liable to be set aside. - section 81: [k. sreedhar rao, j] election petition - objection by the registry that the election petition is not properly presented, as the petitioners were not present while presenting the election petition - maintainability of the petition - held, a plain reading of section 81 discloses that the law contemplates, presentation of petition by the candidate or the elector of the constituency. the endorsement of the registrar discloses that none of the petitioners were present when the petition was presented, and it was presented by the advocate for the petitioners. the affidavit filed to contend that the 2nd petitioner was present at the time of presentation cannot be accepted, in view of the authentic endorsement of registrar. the objection of the registry that there is no proper presentation of the petition is sound and proper. sections 81(1) & 86: [d.k. jain & p. sathasivam, jj] presentation of election petition held, election petition is to be presented by any candidate or elector relating to the election personally to the authorised officer of the high court and failure to adhere such course would be contrary to the said provision and in that event the election petition is liable to be dismissed on the ground of improper presentation. while interpreting special statute, which is a self-contained code the court must consider the intention of the legislature. the reason for this fidelity towards the legislative intent is that the statute has been enacted with a specific purpose which must be measured from the wording of the statute strictly construed. sub-section (1) of section 81 has five components. one of them is that the petition must be presented by the petitioner. all the five requirements are extremely specific and clear and must be interpreted strictly. this inference is further strengthened by section 86(1) which provides that the high court shall dismiss an election petition which does not comply with the provisions of section 81. one can discern the reason why the petition is required to be presented by the petitioner personally. an election petition is a serious matter with a variety of consequences. since such a petition may lead to the vitiation of a democratic process, any procedure provided by an election statute must be read strictly. therefore, the legislature has provided that the petition must be presented by the petitioner himself, so that at the time of presentation, the high court may make preliminary verification which ensure that the petition is neither frivolous nor vexatious. [air 1987 raj 63, overruled]. orderkedambady jagannatha shetty, j.1. these two revision petitions are directed against the common order passed on 15-1-1990 in m.a.nos.1 of 1988 and 2 of 1988 by the educational appellate tribunal and district judge, raichur, dismissing the appeals of the petitioners.2. since both the revision petitions are filed against a common order passed by the educational appellate tribunal and district judge, raichur, and common question of law and facts are involved, they are disposed of by a common order.3. the facts in brief are that the petitioner, basavaraj patil in c.r.p.no.2342 of 1990 is an appellant in m.a.no.1 of 1988 and the petitioner, sidramareddy in c.r.p. no.2341/1990 is an appellant in m,a.no.2 of 1988 before the educational appellate tribunal and district judge, raichur. respondent is common in both the revision petitions.4. the petitioner mr.basavaraj patil in c.r.p.no. 2342 of 1990 was appointed as f.d.c. in the engineering college at raichur run by the respondent, by its order no.hkes/a8/est/56/85-86, dated 14-11-1985 on the pay scale of rs.630/- to rs.1,200/-. the order of appointment contained the service conditions as per the respondent's service manual 1978. the petitioner joined service and has been rendering service in the institution.5. the petitioner mr.sidramareddy in c.r.p.no. 2341 of 1990 was appointed as s.d.c. in the aforesaid college by the abovesaid order on the pay scale of rs.490/- to rs.950/-. the appointment order contained the service conditions as per the respondent's service manual 1978. the petitioner joined service and has been rendering service in the institution.6. both the petitioners were required to undergo probationary period as per probationary rules in chapter iii of the service manual which are made applicable to the employees. by the order of the respondent-management, dated 18-5-1987 the services of the petitioners during the probationary period are declared as successfully completed, viz., basavaraj patit on 22-11-1986 and sidramareddy on 15-1-1987. thus, the respondent-institution declared the successful completion of probationary period of both the petitioners, by its order, dated 18-5-1987. as per rule 12 of the service manual when once the probation is declared as successfully completed, the respondent-management cannot dispense with the service. but, the respondent, all of a sudden dispensed with the service of the petitioners with immediate effect by its order, dated 20-4-1988. this order has been challenged by the petitioners by filing an appeal before the educational appellate tribunal. the case of the petitioners is that under rule 12 of the service manual, the respondent has no jurisdiction to dispense with the service after the probationary period being declared as successfully completed. the impugned order was not preceded by a notice as contemplated under rule 13 of the service manual. the order also cannot be construed as an order of retrenchment because of the reasons that according to the staff pattern of the engineering college, raichur, there are 15 s.d.c. posts and as per rule 18 an employee appointed, if for any reasons cannot be continued for want of vacancy to the category of the post to which he is appointed, the retrenchment shall be made taking the seniority into consideration in such category of posts shall be retrenched from service on the principle of 'last come first go'. it is the further case of the petitioners that no reasons are assigned in the impugned order. the petitioners were not given any opportunity and as such there is violation of principles of natural justice. when the petitioners have successfully completed the probationary period, the respondent-management has no authority nor justified in removing them from service. the impugned order, on the face of, awarding a major penalty and as per the procedure laid down under rule 14 no order imposing any major penalty shall be passed except in accordance with the essential elements of the procedure prescribed by the government of karnataka to regulate the adjudication of the major penalties, it is their further case, before the appellate authority, that the impugned orders are arbitrary and mala fide and it is not in accordance with section 6 of the act.7. the respondent has resisted the case of the petitioners and filed objection statement denying all the allegations contained in the appeals filed by the petitioners and submitted that the petitioners -b.p. basavaraju was appointed as f.d.c. and sidramareddy was appointed as s.d.c. temporarily. in the order of appointment, it has been stated that the services are on temporary basis and terminable at any time without any basis. the provisions of rule 9 of the service manual are not applicable to the petitioners. so, the question of declaration of successful completion of probation period in case of the petitioners does not arise at all. the order has been passed by the respondent stating that the petitioners have successfully completed the probationary period, due to the misrepresentation made by the petitioners, which is not in accordance with the service manual and is void ab initio. rule 12 of the service manual is also not applicable to the case of the petitioners. no appeal will lie. further, the impugned order does not come under the purview of section 6 of the act as it does not amount to passing of stigma on the petitioners nor it is a case of penalty. the order of dispensation of service is in accordance with the terms of the appointment order given to the petitioners.8. on the basis of the respective contentions of the parties, the appellate authority has formulated the following issues for consideration:-1. whether the impugned order falls under the purview of section 6 of the karnataka private educational institutions (discipline and control) act, 1975?2. whether the tribunal has jurisdiction to entertain the appeal?3. whether the impugned order of dismissal is illegal and contrary to the principles of natural justice?4. whether the appellant is entitled to the reliefs sought for?5. what order?9. after considering the respective contentions of the parties and the material on record, the appellate authority has held issues nos. 1 to 4 in the negative. it has held; 'that since the appointments of the appellants to the respective posts is temporary one as per the conditions mentioned in their letter of appointment, termination of their service is a termination simpliciter. the termination of the appellants thus does not fall under section 6 of the act... the termination of the service of the appellants thus being a termination simpliciter in accordance with the rights pf the respondents under the letter of appointment, no appeal is maintainable before this tribunal under section 8 of the act.... and it cannot be said that the impugned order is illegal and contrary to the principles of natural justice.' the appeals are dismissed. hence, the revision petitions by the petitioners.10. mr. basava prabhu patil, learned counsel for the petitioners urged that the tribunal has committed an error in acting with material irregularity in dismissing the appeals of the petitioners, on the mistaken notion that the order impugned does not fall within the purview of section 6 of the karnataka private educational institutions (discipline and control) act, 1975. since the petitioners are permanent employees the tribunal ought to have held, that the order of termination has been passed by way of punishment, which amounts to, in fact, dismissal which is in violation of principles of natural justice. the petitioners had, in fact, at the time of termination of their services became permanent employees in accordance with rule 12 of the service manual, and as such, the tribunal ought to have held that the order of termination of services of the petitioners, were passed as a measure of penalty.11. mr. raikote, learned counsel for the respondent, has controverted the submissions of the petitioner's counsel and argued that the appellate authority on proper consideration of the material on record has rightly come to the conclusion that the order of termination was in accordance with the terms and conditions of appointment given to the petitioners. the termination of services of the petitioners is termination simpliciter which is neither illegal nor it is in violation of principles of natural justice.12. let me consider the conflicting contentions of the parties.13. there is no dispute that the services of the petitioners is governed by the hyderabad karnataka education society's institutions' service manual (hereinafter referred to as the 'service manual'). the respondent-society after coming into existence framed rules and regulations. as per rule 17(11), the governing council of the society has been vested with the power to appoint and terminate and give promotions to its employees. the respondent-society framed h.k.e. society's institutions' service manual, 1978. chapter xix of the service manual deals with cadre and recruitment rules.14. it is an undisputed fact that the respondent-society by its order of appointment dated 14-11-1985, appointed petitioners basavaraj patil as first division clerk and sidramareddy as second division clerk, which reads as follows:-'proceedings of the president h.k.e. societygulbarga.sub, engineering college raichur - appointment of teaching and non-teaching staff.preamble;-the principal, engineering college, raichur, has submitted a list of the candidates (teaching and non-teaching) selected by the governing council of the h.k.e. society gulbarga, in its meeting held on 20th and 21st august 1985, held at the engineering college, raichur for the appointments in engineering college, raichur. it is considered acceptable. hence the following order is issued.

Judgment:
ORDER

Kedambady Jagannatha Shetty, J.

1. These two Revision Petitions are directed against the common order passed on 15-1-1990 in M.A.Nos.1 of 1988 and 2 of 1988 by the Educational Appellate Tribunal and District Judge, Raichur, dismissing the appeals of the petitioners.

2. Since both the Revision Petitions are filed against a common order passed by the Educational Appellate Tribunal and District Judge, Raichur, and common question of law and facts are involved, they are disposed of by a common order.

3. The facts in brief are that the petitioner, Basavaraj Patil in C.R.P.No.2342 of 1990 is an appellant in M.A.No.1 of 1988 and the petitioner, Sidramareddy in C.R.P. No.2341/1990 is an appellant in M,A.No.2 of 1988 before the Educational Appellate Tribunal and District Judge, Raichur. Respondent is common in both the Revision Petitions.

4. The petitioner Mr.Basavaraj Patil in C.R.P.No. 2342 of 1990 was appointed as F.D.C. in the Engineering College at Raichur run by the respondent, by its Order No.HKES/A8/EST/56/85-86, dated 14-11-1985 on the pay scale of Rs.630/- to Rs.1,200/-. The order of appointment contained the service conditions as per the respondent's Service Manual 1978. The petitioner joined service and has been rendering service in the institution.

5. The petitioner Mr.Sidramareddy in C.R.P.No. 2341 of 1990 was appointed as S.D.C. in the aforesaid College by the abovesaid order on the pay scale of Rs.490/- to Rs.950/-. The appointment order contained the service conditions as per the respondent's Service Manual 1978. The petitioner joined service and has been rendering service in the institution.

6. Both the petitioners were required to undergo probationary period as per Probationary Rules in Chapter III of the Service Manual which are made applicable to the employees. By the order of the respondent-Management, dated 18-5-1987 the services of the petitioners during the probationary period are declared as successfully completed, viz., Basavaraj Patit on 22-11-1986 and Sidramareddy on 15-1-1987. Thus, the respondent-Institution declared the successful completion of probationary period of both the petitioners, by its order, dated 18-5-1987. As per Rule 12 of the Service Manual when once the probation is declared as successfully completed, the respondent-Management cannot dispense with the service. But, the respondent, all of a sudden dispensed with the service of the petitioners with immediate effect by its order, dated 20-4-1988. This order has been challenged by the petitioners by filing an appeal before the Educational Appellate Tribunal. The case of the petitioners is that under Rule 12 of the Service Manual, the respondent has no jurisdiction to dispense with the service after the probationary period being declared as successfully completed. The impugned order was not preceded by a notice as contemplated under Rule 13 of the Service Manual. The order also cannot be construed as an order of retrenchment because of the reasons that according to the staff pattern of the Engineering College, Raichur, there are 15 S.D.C. posts and as per Rule 18 an employee appointed, if for any reasons cannot be continued for want of vacancy to the category of the post to which he is appointed, the retrenchment shall be made taking the seniority into consideration in such category of posts shall be retrenched from service on the principle of 'last come first go'. It is the further case of the petitioners that no reasons are assigned in the impugned order. The petitioners were not given any opportunity and as such there is violation of principles of natural justice. When the petitioners have successfully completed the probationary period, the respondent-Management has no authority nor justified in removing them from service. The impugned order, on the face of, awarding a major penalty and as per the procedure laid down under Rule 14 no order imposing any major penalty shall be passed except in accordance with the essential elements of the procedure prescribed by the Government of Karnataka to regulate the adjudication of the major penalties, it is their further case, before the Appellate Authority, that the impugned orders are arbitrary and mala fide and it is not in accordance with Section 6 of the Act.

7. The respondent has resisted the case of the petitioners and filed objection statement denying all the allegations contained in the appeals filed by the petitioners and submitted that the petitioners -B.P. Basavaraju was appointed as F.D.C. and Sidramareddy was appointed as S.D.C. temporarily. In the order of appointment, it has been stated that the services are on temporary basis and terminable at any time without any basis. The provisions of Rule 9 of the Service Manual are not applicable to the petitioners. So, the question of declaration of successful completion of probation period in case of the petitioners does not arise at all. The order has been passed by the respondent stating that the petitioners have successfully completed the probationary period, due to the misrepresentation made by the petitioners, which is not in accordance with the Service Manual and is void ab initio. Rule 12 of the Service Manual is also not applicable to the case of the petitioners. No appeal will lie. Further, the impugned order does not come under the purview of Section 6 of the Act as it does not amount to passing of stigma on the petitioners nor it is a case of penalty. The order of dispensation of service is in accordance with the terms of the appointment order given to the petitioners.

8. On the basis of the respective contentions of the parties, the Appellate Authority has formulated the following issues for consideration:-

1. Whether the impugned order falls under the purview of Section 6 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975?

2. Whether the Tribunal has jurisdiction to entertain the appeal?

3. Whether the impugned order of dismissal is illegal and contrary to the principles of natural justice?

4. Whether the appellant is entitled to the reliefs sought for?

5. What order?

9. After considering the respective contentions of the parties and the material on record, the Appellate Authority has held issues Nos. 1 to 4 in the negative. It has held; 'that since the appointments of the appellants to the respective posts is temporary one as per the conditions mentioned in their letter of appointment, termination of their service is a termination simpliciter. The termination of the appellants thus does not fall under Section 6 of the Act... The termination of the service of the appellants thus being a termination simpliciter in accordance with the rights pf the respondents under the letter of appointment, no appeal is maintainable before this Tribunal under Section 8 of the Act.... and it cannot be said that the impugned order is illegal and contrary to the principles of natural justice.' The appeals are dismissed. Hence, the Revision Petitions by the petitioners.

10. Mr. Basava Prabhu Patil, learned Counsel for the petitioners urged that the Tribunal has committed an error in acting with material irregularity in dismissing the appeals of the petitioners, on the mistaken notion that the order impugned does not fall within the purview of Section 6 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975. Since the petitioners are permanent employees the Tribunal ought to have held, that the order of termination has been passed by way of punishment, which amounts to, in fact, dismissal which is in violation of principles of natural justice. The petitioners had, in fact, at the time of termination of their services became permanent employees in accordance with Rule 12 of the Service Manual, and as such, the Tribunal ought to have held that the order of termination of services of the petitioners, were passed as a measure of penalty.

11. Mr. Raikote, learned Counsel for the respondent, has controverted the submissions of the petitioner's Counsel and argued that the Appellate Authority on proper consideration of the material on record has rightly come to the conclusion that the order of termination was in accordance with the terms and conditions of appointment given to the petitioners. The termination of services of the petitioners is termination simpliciter which is neither illegal nor it is in violation of principles of natural justice.

12. Let me consider the conflicting contentions of the parties.

13. There is no dispute that the services of the petitioners is governed by the Hyderabad Karnataka Education Society's Institutions' Service Manual (hereinafter referred to as the 'Service Manual'). The respondent-Society after coming into existence framed Rules and Regulations. As per Rule 17(11), the Governing Council of the Society has been vested with the power to appoint and terminate and give promotions to its employees. The respondent-Society framed H.K.E. Society's Institutions' Service Manual, 1978. Chapter XIX of the Service Manual deals with Cadre and Recruitment Rules.

14. It is an undisputed fact that the respondent-Society by its order of appointment dated 14-11-1985, appointed petitioners Basavaraj Patil as First Division Clerk and Sidramareddy as Second Division Clerk, which reads as follows:-

'PROCEEDINGS OF THE PRESIDENT H.K.E. SOCIETY

GULBARGA.

Sub, Engineering College Raichur - Appointment of Teaching and Non-Teaching staff.

PREAMBLE;-The Principal, Engineering College, Raichur, has submitted a list of the candidates (Teaching and Non-Teaching) selected by the Governing Council of the H.K.E. Society Gulbarga, in its meeting held on 20th and 21st August 1985, held at the Engineering College, Raichur for the appointments in Engineering College, Raichur. It is considered acceptable. Hence the following order is issued.