ORDER
N. Ananda, J.
1. This is a second round litigation. The facts in brief, the judicial proceedings and orders which have preceded the impugned order are as follows:
1. On 03.09.1981, petitioner was appointed as Assistant Professor of Mechanical Engineering in Siddhartha Institute of Technology, Tumkur. He was on probation for a period of one year in terms of the appointment order as per Annexure-A. On 11.09.1981 petitioner reported to duty. On 04.01.1984, petitioner submitted a leave letter, in response to the same, the 1st respondent terminated the services of petitioner on 06.01.1984 by issuing an order in terms of Annexure-D, inter alia stating that petitioner was going on leave as he liked without obtaining prior permission from the management; even though he had been instructed on previous occasions, the petitioner has not rectified himself. Therefore, 1st respondent issued termination order as per Annexure-D, heating the same as one month’s notice to relieve the petitioner.
2. The petitioner challenged the order dated 06.01.1984 in M.A. EAT. No. 1/1984 before the Educational Appellate Tribunal and Principal District Judge at Tumkur (hereinafter referred to as ‘Tribunal’). The Tribunal, by Judgment dated 04.01.1986 allowed the appeal and set aside the order dated 06.01.1984 and granted consequential benefits to petitioner; challenging the said judgment dated 04.01.1986, the 1st respondent-management preferred writ petition in W.P. No. 3216/1986 and this Court, by the order dated 06.01.1986 quashed the older of Tribunal and directed the Tribunal to dispose of the appeal according to principles enunciated by this Court in the case of The President, Golden Valley Education Trust, Oorgaum, Kolar Gold Fields v. The District Judge & Educational Appellate Tribunal, Kolar and Ors. reported in ILR 1979 Karnataka-526.
3. The Tribunal, in pursuance of the directions issued by this Court in W.P. No. 3216/1986, re-heard the parties on preliminary issue. The Tribunal passed older dated: 17.08.2001 and set aside the order dated 06.01.1984 as being violative of principles of natural justice, inasmuch as, no opportunity of being heard was afforded to the petitioner. The Tribunal, permitted both parties to lead evidence.
4. In support of his case, petitioner, apart from examining himself as P.W.1 got marked Ex. P.1 to P.6. On behalf of the respondent-management, no evidence was let in. The Tribunal, on appreciation of oral and documentary evidence on record and after hearing learned Counsel for parties dismissed the appeal by holding that order of termination dated 06.01.1984 is not violative of provisions of Section 6 and 7 of the Education Act (‘Act’ for short) and the management has established that conduct of petitioner was not satisfactory and management had justifiable cause to terminate the services of petitioner. Therefore, petitioner is before this Court.
5. I have heard Sri. B.T. Parthasarathi, learned Senior Counsel for petitioner and Sri. H.M. Muralidhar, learned Advocate for respondents and perused the records.
6. Sri. B.T. Parthasarathi, learned Senior Counsel appearing for petitioner has made the following submissions:
i) The order of termination dated 06.01.1984 is violative of principles of natural justice and it cannot withstand judicial scrutiny, as the same having not been preceded by any enquiry whatsoever;
ii) The findings of the Tribunal that petitioner was still a probationer, as on 06.01.1984 and therefore, termination of his service by order dated 06.01.1984 did not warrant any enquiry are erroneous.
iii) The findings of the Tribunal the first respondent-management has established that conduct of petitioner was not satisfactory and management had justifiable cause to terminate services of petitioner are erroneous both on facts and in law.
iv) The termination order dated 06.01.1984 being stigmatic should have been preceded by on enquiry as required under Section 6 of the Karnataka Private Educational Institutions (Discipline and Control) Act 1975.
7. Per contra, Sri. H.M. Muralidhar, learned Advocate appealing for respondents, relying on the decisions reported in (1) (2005) 7 Supreme Court Cases-447, (2) (2005) 7 Supreme Court Cases-524 & (3) 2006 (2) Karnataka Law Journal-143) has submitted that as the petitioner was a probationer as on the date of his termination, mere continuance of his services after completion of stipulated period of probation would not entitle the petitioner to claim continuance/permanency of his service; in the absence of specific order of confirmation after the expiry period of probation as stipulated in the appointment order, the period of probation shall be treated as extended.
8. The learned Counsel for respondents further contended, the order of termination dated 06.01.1984 is not stigmatic, it is an order of termination simplicitor, therefore, it did not warrant any enquiry; the Tribunal was justified in holding that 1st respondent has established that the conduct of petitioner was not satisfactory and 1strespondent had justifiable cause to terminate the services of petitioner, in terms of order dated 06.01.1984. Further, by placing reliance on the decision reported in (2006) 5 Supreme Court Cases-673 and 2003 AIR SCW-944, the learned Counsel has contended that this Court should not interfere with the decision making process of Disciplinary Authority or Appellate Authority, unless such decision is illogical or suffers from procedural impropriety or the same shocks the conscious of the Court being in defiance of logic or moral standards; the scope of judicial review is limited to the defiance in the decision making process and not the decision. The continuance of petitioner in service after 06.01.1984 till 02.10.2002 was by virtue of the interim orders of stay granted by the Tribunal and this Courts therefore, the petitioner cannot claim any equity on the basis of such litigious employment.
9. Having heard the learned Counsel for parties, after going through the records and having regard to the rival contentions raised by the parties throughout the proceedings, I frame the following points for consideration and decision.
i) Whether petitioner was still a probationer as on the date of termination order i.e., on 06.01.1984?
ii) Whether the order of termination dated 06.01.1984 is stigmatic or an order of termination simplicitor?
iii) Whether first respondent has established that conduct of petitioner was not satisfactory and first respondent had justifiable cause to terminate the services of petitioner in terms of order dated 06.01.1984?
iv) Whether the impugned order passed by the Tribunal dated 07.10.2002 calls for interference?
v) What order?
10. Re. Point No (i): It is not in dispute that petitioner was appointed as Assistant Professor of Mechanical Engineering by the 1st respondent in terms of order appointment dated 03.09.1981 and he reported to duty on 11.09.1981. Therefore, in terms of the appointment order Dt. 03.09.1981, petitioner was on probation for a period of one year from 11.09.1981. The service conditions of petitioner are governed by The Karnataka private Educational Institutions (Discipline & Control) Act 1975 and The Karnataka Private Educational Institutions (Discipline and Control) Rules 1978 (‘Rules’ for short).
It is seen from the Rule-7 that a person appointed under Rule-6 (I) shall be on probation for a period of one year, provided that the Board of Management may extend the period of probation for another period of six months. Therefore, it is crystal clear from Rule-7 that petitioner was on probation for a period of one year from 11.09.1981 in terms of the appointment order dated 03.09.1981 (Annexure-A). In terms of the proviso to Rule-7, the first respondent management could have extended the period of probation by further period of six months from 11.09.1982. A combined reading of Rule-7 and terms of appointment order dated: 03.09.1981 makes it amply clear that the 1strespondent did not have the power or authority to extend the period of probation beyond the period of six months from 11.09.1982. If the 1st respondent, had found that petitioner was not suitable to hold the post of Assistant Professor before the expiry of the aforesaid period, the 1st respondent should have discharged him on that ground. In this connection, it is necessary to refer to a decision of the Apex Court in the case of The State of Punjab v. Dharam Singh wherein it is held;
Where, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been continued in the post by implication.
Where the respondent, a probationer officiating in a permanent post, was allowed to continue in that post after 1-10-1960 i.e., beyond the maximum period of probation fixed by the proviso to Rule-6(3) of the Punjab Educational Service (Provincialised Cadre) Class II Rules (1961) without any express order of confirmation being passed but the appointing authority subsequently removed him from service by giving him one month’s notice without holding any sort of inquiry.
Held that in the circumstances the respondent must be deemed to have been confirmed in that post after 1.10.1960 and after such confirmation, the appointing authority had no power to dispense with his services under Rule-6(3) on the ground that his work or conduct during the period of probation was unsatisfactory. Since the respondent had a right to hold the post his removal from service amounted to removal from service by way of punishment and as the procedure laid down in the Punjab Civil Services (Punishment and Appeal) Rules 1952 was not followed and as the constitutional protection under Article 311 was violated, the order of removal was invalid.
In the case of Air India Statutory Corporation v. United Labour Union and Ors. it is held;
Though, right to employment cannot, as a right be claimed but after the appointment to a post or an office, be it under the State, its agency instrumentality, jurisdic person or private entrepreneur it is required to be dealt with as per public element and to act in public interest assuring equality, which is a genus of Article 14 and all other concomitent rights emanating therefrom are species to make their right to life and dignity of person real and meaningful. In a socialist democracy governed by the rule of law, private property, right of the citizen for development and his right to employment and his entitlement for employment to the labour, would all harmoniously be blended to serve larger social interest and public purpose.
11. From the above dictum of the Hon’ble Supreme Court it is clear that the judicial protection against arbitrariness of an employer be it a State or its instrumentality, jurisdic person or private entrepreneur is an attribute of Articles 14 and 21 of the Constitution and an order of termination or dismissal from appointment has to be dealt with as per public element and such action shall be in public interest assuring equality which is a genus of Article 14 of the Constitution.
In the instant case, the period of probation was not extended after 11.09.1982. In terms of the proviso to Rule-7 of the ‘Rules’ the maximum period by which, the probation period could have been extended by 1st respondent was for a period of six months from 11.09.1982. In view of the law laid down by the Apex Court in the decision reported in AIR 1968 Supreme Court-1210, the contention of 1st respondent that as on 06.01.1994 (the date of termination), the petitioner was still on probation cannot be accepted. The petitioner was allowed to continue in the post held by him even after completion of maximum period of probation in terms of appointment order and also in terms of Rule-7. Therefore, I hold that on completion of maximum period of probation, the petitioner was confirmed in the post by implication.
It is seen from the impugned order of the learned District Judge has held that the petitioner has admitted that he was still a probationer and therefore, the petitioner was a probationer as on the date of his removal i.e., on 06.01.1984. The relevant portion of the order at paragraph-36 reads thus:
Many more question were posed and answers have been elicited about his working habits in the college. One important admission made by him will be of assistance in adjudication of this appeal. It is as follows:
It is true as per the order of stay granted in my favour, I continued in service or the institution continued my service. I cannot say anything as to whether if stay order is not there I will be removed or terminated from service without assigning any reasons since I was still a probationer. It is incorrect to say Ex. P.2 is a false document concocted or created by me and obtained the signature of the Principal fraudulently. It is in correct to say that Ex.P.3 was prepared at my instance.
12. The reasons assigned by the learned District Judge to arrive at the above conclusion are erroneous, inasmuch as, the learned Judge to determine the status of petitioner has not even adverted to the appointment order dated: 03.09.1981 and provisions of Rule-7.
The learned district Judge, relying on a decision of the Apex Court in the case of The management of the Express News-Papers (Private) Ltd., Madurai v. The Presiding Officer, Labour Court, Madurai and Anr. has held that Petitioner cannot be deemed to have been confirmed in service in the absence of specific order of confirmation. After going through the decision of the Apex Court cited supra, I find that the employee in that case was appointed on the following terms:
our appointment will in the first instance be on probation for six months. During this period, we find you satisfactory and you find the job suitable, we will confirm you.
But, before the expiry of six months probation period, a termination letter was issued to the employee stating that “we regret to inform you that we have found your work unsatisfactory and that we are compelled to terminate your probation and your accounts will be settled forthwith.” In the circumstance, the Apex Court has held;
At the end of the six months period, the employer can either confirm him or terminate his services, because his service is found unsatisfactory. If no action is taken by the employer either by way of confirmation or way of termination, the employee continues to be in service as a probationer. There cannot be automatic termination of services of the employee after the expiry of the period of six months.
13. On perusal of the above decision, I find that facts of the instant case are totally distinguishable from facts of the decision of the Apex Court cited supra. Therefore, the learned district Judge committed an error in relying on the above decision to arrive at a conclusion that petitioner was still a probationer as on 06.01.1984.
14. It is also seen from the impugned order, the learned district Judge has held that petitioner herein was a temporary employee. This finding is contrary to the very appointment order dated 03.09.1981 issued by 1st respondent.
15. Now adverting to the decisions relied upon by the learned Counsel appealing for respondents I find that the facts narrated therein are distinguishable from the facts of the present case. The nature and tenure of appointment, the period of probation, the maximum period to which it could be extended, the confirmation of a probationer by a specific order of confirmation or deemed confirmation would depend upon the terms and conditions of the appointment order and the statute holding the field.
The case Kalpataru Vidya Samsthe (sic) and Anr. v. S.B. Gupta and Anr. , relates to an employee appointed for a period of one year. Before the completion of probation period, the employee was discharged and he was again appointed afresh on probation for further period of six months. Considering the facts and circumstances of the case, the Apex Court has held that employee having accepted the terms and conditions stipulated in the appointment order cannot be permitted to contend that his appointment was dehors the Rules or the terms and conditions stipulated in the appointment order are not legally valid. The case of Rajasthan State Road Transport Corporation and Ors. v. Zakir Hussain relates to removal of a conductor who was appointed on adhoc basis for a period of two years. The case of Karnataka Silk Industries Corporation limited, Bangalore v. Y.N. Krishna Murthy reported in 2006 (2) Kar. L.J. 143 (DB) relates to a removal of an employee from his service who had been appointed on contract basis for a period of three years with a specific condition that he would be on probation, which is liable to be extended at the discretion of the employer from time to time.
On careful consideration of the facts of the above decisions, I hold that what has been held in the above decisions is not applicable to the facts of the present case. The petitioner was appointed on 03.09.1981 and he was on probation for a period of one year. He reported to duty on 11.09.1981. After completion of one year, period of probation was neither extended nor he was discharged from service. The petitioner was continued in service till his removal on 06.01.1984 i.e., after a period of two years and two months from the date of his appointment.
In view of the discussion made supra, I hold that immediately after completion of maximum period of probation in terms of appointment order dated 03.09.1981 and Rule-7, petitioner had been confirmed in the post by implication. Therefore, I hold that petitioner was not on probation as on the date of his removal i.e., on 06.01.1984. Accordingly, I answer the point No. (i) in favour of the petitioner.
16. Re. Point No. (ii): In a decision reported in 2006 (2) Kar. L.J. 143 a Division Bench of this Court has held that “It is now well settled that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case.” In the instant case, the petitioner was working as Assistant Professor in the department of Mechanical Engineering from 11.09.1991. On 24.12.1983, a notice was issued to him calling upon him to show clause as to why disciplinary action shall not be initiated against, him for going on leave without prior permission from the 1st respondent-management. On the very day, the petitioner caused reply to show cause notice in terms of Annexure-C contending that; he has not at all utilised leave at his credit; he had availed casual leave with prior permission and approval of the Principal, in case of necessity; the petitioner is loyal to his duties and he is discharging his duties to the utmost satisfaction of all including the students of the college.
17. It appears from the records that 1st respondent-management did not initiate any Disciplinary action as contemplated in show cause notice dated 24.12.1983. On 06.09.1984, in response to the leave letter dated 04.01.1984, the 1st respondent terminated the services of petitioner with one month’s notice to relieve him of his post. The reasons assigned for such action are, the petitioner was going on leave, as he liked without prior permission from the management; the petitioner has failed to rectify himself even though he had been instructed on earlier occasions.
At this juncture, it is necessary to state that petitioner had obtained Bachelor Degree in Mechanical Engineering from Regional College, Suratkal in the year 1969 and he had obtained Master Degree in Technology from I.I.T, Bombay in the year 1975. The petitioner had worked as a Lecturer in B.M.S. College of Engineering from 1976, till he was appointed as Assistant Professor in the department of Mechanical Engineering by 1st respondent. The termination order dated 06.01.1984 characterises the petitioner as an irregular and indisciplined person. The 1st respondent has attributed lack of devotion to duty to petitioner. Therefore, I hold that older of termination dated 06.01.1984 is stigmatic. It is not an order of termination simpliciter and answer point No. (ii) in favour of petitioner.
18. Re. Point Nos. (iii) & (iv): On perusal of the impugned order I find the respondent did not lead any evidence before the Tribunal. The respondent should have produced relevant documents like attendance register, leave register and leave letters submitted by petitioner to establish that petitioner was going on leave as he liked without prior permission from 1st respondent. For the reasons best known to them, the respondents have withheld the documents, the production of which would have thrown light on the truth or otherwise of the allegations made against petitioner. These documents were essential to decide the fact in issue. Under the circumstances, the learned district Judge should have drawn an adverse inference against the respondents. On the other hand, the learned district Judge, relying on the evidence of the petitioner regarding availment of leave for attending other colleges as an external examiner as per the instructions given by the University has come to a wrong conclusion that the respondents have proved that the petitioner was irregular to duties. The learned district Judge has held that after making attendance, petitioner had attended the Tribunal in connection with the impugned proceedings. The learned district Judge, relying on a decision of this Court reported in ILR 2001 KAR 3316 has held that the petitioner has not mended his ways in spite of clear instructions from 1st respondent. At the risk of repetition it is necessary to state that the respondents had not produced the attendance register, leave register and leave applications of the petitioner to substantiate the allegations that he was going on leave without prior permission from the management before 06.01.1984. The petitioner being an Assistant Professor was expected to obey the instructions of University to attend the other colleges as an external examiner. This act by any stretch of imagination cannot be termed as an act of indiscipline. If petitioner had availed leave to attend the proceedings before the Tribunal, it cannot be said that petitioner was irregular to his duty. Therefore, I hold that respondents have failed to establish the allegations made against petitioner and answer point No. (iii) in the negative.
19. Regarding Point No. (iv): Now adverting to the decision of the Apex Court in the case of State of U.P. and Ors. v. Raj Kishore Yadav and Anr. relied upon by the learned Counsel for respondent relating to the scope and limitation of judicial review under Article 226 to interfere with the orders passed by the Disciplinary Authority or Appellate Authority, it is necessary to state that the order of termination dated 06.01.1984 is illegal and erroneous both in law and on facts and it has no legal sanction. Therefore, I hold that it is well within the jurisdiction of this Court to interfere with the impugned order.
For the reasons stated here before, I hold that the order of termination passed by the 1st respondent dated 06.01.1984 and the impugned order dated 07.10.2002 vide Annexure-H cannot be sustained. Point No. (iv) is answered accordingly.
20. As per the memo and relieving order filed by the learned Counsel for petitioner, petitioner was relieved on 12.10.2002 i.e., 5 days after the impugned order. On instructions, learned Senior Counsel appealing for petitioner has submitted that in the normal course, petitioner on attaining the age of superannuation, would have retired from his service with effect from 11.07.2004. Under these circumstances, question of directing respondents to reinstate the petitioner into service does not arise, inasmuch as, petitioner has already crossed the age of superannuation. The respondents have caused the termination of petitioner on 12.10.2002 i.e., within five days from the date of impugned order. The respondents have not placed any material to show that petitioner was pursuing any gainful avocation during the period between 12.10.2002 and 11.07.2004. Therefore, 1st respondent is liable to pay the petitioner salary for the period between 12.10.2002 and 11.07.2004 with consequential benefits.
In the result, I pass the following order.
(i) Writ petition is allowed.
(ii) The impugned order dated.07.10.2002 passed by the learned Principal District Judge and Educational Appellate Tribunal at Tumkur in M.A (E.A.T) No. 1/1984 vide Annexure-H is set aside. Consequently, the order of termination dated: 06.01.1984 bearing No. SSES/0817/83-84 passed by the 1st respondent is set aside.
(iii) The 1st respondent shall pay salary for the period from 12.10.2002 and 11.07.2004 with consequential benefits to the petitioner along with a sum of Rs. 5,000/- being the cost of this writ petition.
Ordered accordingly.