IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 11109 of 2008(V) 1. RADHAKRISHNAN.B., OFFICE ASSISTANT, Petitioner 2. RAJITHA KARAKKATT, OFFICE ASSISTANT, 3. AJITH KUMAR, OFFICE ASSISTANT, 4. JAYAN P.B., OFFICE ASSISTANT, 5. REMYA MATHEW, OFFICE ASSISTANT, 6. BIDHU ANIL, SERVICE ASSISTANT, 7. R.RAJEEV, SERVICE ASSISTANT, 8. ALLIRANI.K., MANAGEMENT ASSISTANT, 9. JASMIN.S, MANAGEMENT ASSISTANT, 10. GOSH.G., MANAGEMENT ASSISTANT, Vs 1. STATE OF KERALA REPRESENTED BY THE Respondent 2. VEGETABLE AND FRUIT PROMOTION COUNCIL 3. THE CHIEF EXECUTIVE OFFICER, 4. THE BOARD OF DIRECTORS REPRESENTED BY 5. CYRIL KURIAKOSE, DIRECTOR, 6. GEORGE THOMAS, DIRECTOR, 7. ALEYAMMA THOMAS, DIRECTOR, For Petitioner :SRI.P.SREEKUMAR For Respondent :SRI.N.SUGATHAN,SC,VEGE.& FRUITS PROMOTI The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR Dated :03/03/2009 O R D E R [ENTITY], J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 11109, 11132 & 11393 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2009. JUDGMENT
In these three writ petitions the challenge is against the orders passed by the respondents terminating the service of the petitioners. The facts are narrated and documents are referred to as contained in [CASE NUMBER].
2. In [CASE NUMBER], the petitioners have been appointed in the post of Office Assistant, Service Assistant and Management Assistant. In the other two writ petitions also the posts are designated respectively as Office Assistant, Service Assistant and Management Assistant. The pleas raised by the petitioners in a nutshell are the following:
3. The second respondent is a company registered under the [ACT] under the control of the [ENTITY]. It came into existence on 1.4.2001. The petitioners were appointed on a temporary basis on daily wages initially. The second respondent published a notification dated 4.8.2004 inviting applications to which the petitioners wpc 11109, 11132& responded. Meanwhile, by the notice of agenda produced as Ext.P1, a proposal was mooted to regularize the remaining staff who were working on consolidated pay structure or in daily wages structure. In the agenda, the item covered on the said point is item No.5 wherein it is stated that there are 23 numbers of casual employees who are in daily wages and engaged on regular basis. Subsequently, in the 23rd meeting of the Board this proposal was examined and a sub committee was constituted for finalizing the same. The said committee consisted of the then Minister for Agriculture as Chairperson, Agricultural Production Commissioner and [ENTITY]. Ext.P2 is the relevant extract of the minutes. It was resolved that the committee was constituted for the purpose of finalising the proposal and the committee will take appropriate decision after evaluating the proposal. The report of the committee is produced as Ext.P3. This was considered in the 25th Board Meeting dated 25.1.2006. It is stated that going by the decision taken, as evidenced by Ext.P4, the petitioners were entitled to be regularized. The Board conducted an interview and accordingly orders were issued as Exts.P5 (a) to (e) appointing them in service. In the appointment order it is further stated that the appointment will be provisional and they will be in probation for a period of one year from wpc 11109, 11132& 1.1.2006. The same is issued by the [ENTITY]. Just before the completion of one year, the period of probation was extended by a period of three months. But subsequently they were issued notice terminating their service with effect from 31.3.2007.
4. These termination orders were challenged in [CASE NUMBER] and connected cases. After hearing the respondents, the orders of termination were quashed for want of notice to the petitioners. The orders were directed to be treated as notices and they were directed to be given a hearing by the competent authority before passing appropriate orders. Accordingly, the petitioners submitted their individual representations. Again, rejecting their contentions, the orders of termination have been issued as Exts.P9 to P13 and similar orders in other writ petitions.
5. The above orders are under challenge on various grounds. Mainly, it is contended that there are no reasons for terminating their service. They have been appointed after a valid decision taken by the Board of Directors to regularize them. They have completed the period of probation also without any complaint. There is real need to continue them. The important contention raised is that only the Board is competent to terminate their service and herein the orders of termination are issued by the Chief wpc 11109, 11132& Executive Officer who is not the appointing authority at all.
6. The respondents have filed a detailed counter affidavit and an additional counter affidavit sustaining the orders of termination. The apparent contention raised is that there was no decision to regularize their service and the proposal was only in respect of contract employees and regarding others, further report was awaited and before consideration of the matter, the [ENTITY] appointed the petitioners. The further contentions raised are that the method of recruitment provided in the Regulations have not been followed and not even an open advertisement was issued and no selection process was undertaken. The petitioners were only daily waged employees and that the said appointment was also without following any procedure. Some of the petitioners have gained the appointment without having even the qualification for the respective post . There are lot of irregularities in the matter of appointment. Relying upon the provisions of the Regulations, learned counsel for the respondents disputed the contention that only the Board of Directors are competent to pass orders in the matter. Regarding the competency of the [ENTITY], it is pointed out that the Board of Directors passed necessary resolution to delegate the power to the [ENTITY] and wpc 11109, 11132& subsequently the decisions have been ratified by the Board also. Further, the appointing authority is the [ENTITY] and the petitioners have been appointed by the orders of the [ENTITY] at that point of time.
7. Reliance is placed by learned counsel for the petitioners on [SECTION] which is extracted below:
"13. Termination of Service: The service of an employee of the council may be terminated.
(a) as a result of disciplinary action taken against him in accordance with these rules.
(b) in the event of the employee being declared medically unfit for further continuance in the Council's service.
Notwithstanding anything contained in [SECTION] or any other rules contained herein, the Board may terminate the service of an employee, in the event it is proved that he/she has secured a job in the council by furnishing wrong or misleading information." It is contended that going by [SECTION], they govern cases of disciplinary action or action in the case of an employee being declared medically unfit. But, going by the non-obstante clause therein, the Board wpc 11109, 11132& alone can terminate the service of an employee in the event it is proved that he/she has secured a job in the council by furnishing wrong or misleading information. Learned counsel for the petitioners relied upon various decisions also in support of the plea. It is contended that the resolutions delegating the power to the [ENTITY], cannot be sustained, as the power conferred on the Board of Directors is a quasi-judicial power and not merely administrative.
8. The Regulations defining "appointing authority" under clause 2(1) is to the following effect:
"'APPOINTING AUTHORITY' means the Chief Executive or any other officer or agency to whom the board may delegate powers to make appointments to various posts in the council."
Sub-clause 9 mentions about disciplinary authority which is defined as follows:
"'DISCIPLINARY AUTHOIRTY' means an officer or authority competent to impose penalties as provided in these rules."
The main question raised is whether it is the [ENTITY] or the Board that is having the power to pass the order of termination. Of course, going by clause 13 of the non-obstante clause therein, the Board is wpc 11109, 11132& conferred with power in case of any irregular or illegal appointment.
9. In the additional counter affidavit, a resolution and an Office order have been produced [SECTION] and [SECTION]. Item 5 of the resolution dated 19.8.2001 concerns delegation of powers to the [ENTITY]. The resolution is to the effect that the draft of the delegation of powers to the [ENTITY] of the Council is approved. Ext.[SECTION] is the consequential office order issued in accordance with the resolution. It carries the heading `delegation of powers to the [ENTITY].' Item I bears the heading `general' and [SECTION] bears the heading 'personnel'. Item 2 is extracted below:
"II. PERSONNEL
i) xxxxxxxxx
ii) xxxxxxxxx
iii) To discharge, dismiss, remove or terminate from service, any employee of the Council based on good and sufficient reasons and subject to departmental proceedings, as per the staff regulations of the Council.
iv) xxxxxxx The powers to make appointments and the power to discharge, dismiss, remove or terminate from service subject to the departmental proceedings and as per the staff regulations of the council is delegated to the Chief wpc 11109, 11132& Executive Officer.
10. The question is whether the said delegation will satisfy the express clause contained in the regulation. It is true that going by Clause 13 of the non-obstante clause, orders of termination have to be passed by the Board of Directors. Going by the definition of `appointing authority', the [ENTITY] is the named person. In this case, the appointment orders have been issued by the [ENTITY] . Therefore, the question is whether he is deprived of the right to effect the order of termination as authorized by the Board of Directors. After the judgment of this court by Ext.R2(e) resolution the Board authorized the [ENTITY] to conduct personal hearing. Thereafter, he submitted a detailed report in the matter to the Board of Directors. This was considered by the Board in the meeting held on 2.1.2008 and the [ENTITY] was directed to examine the representations and submissions made by the employees and pass appropriate orders after considering the merits of each individual case as directed in the judgment. Ext.R2(f) is the said resolution. A reading of the resolution shows that after examining the detailed report of the [ENTITY], the Board was convinced that the appointments were in total violation of the staff regulations and the same wpc 11109, 11132& are vitiated by various illegalities. It is after entering such a conclusion that the [ENTITY] was authorized to pass orders in the matter. ` 11. Learned counsel for the petitioners, relying upon the principles stated in [PRECEDENT] and in [PRECEDENT], contended that the disciplinary powers cannot be delegated as being a quasi-judicial function and thus the orders of termination are illegal. In the first of those decisions, it was held as follows:
"The decision whether or not to impose penalties (amounting to serious cases to dismissal) for alleged offences if those offences are proved, is a judicial decision, or, at all events, a quasi-judicial decision, and cannot from any reasonable point of view be regarded as merely administrative; and as my Lords have pointed out, a judicial function is one which from its very nature is incapable of being delegated."
In the subsequent decision in [ENTITY]' case {[PRECEDENT] it was held that "the plaintiff's dismissal was invalid since the local Dock Labour Board had no power under the Scheme to delegate to a disciplinary committee their disciplinary powers given by clause 16 of the Order."
12. In answer to the said contentions, learned counsel for the respondents relied upon the decision of the Apex Curt in Pyare Lal wpc 11109, 11132& [ENTITY] v. Managing Director and others {(1989) 3 SCC 448.} A similar case was considered by the Apex Court therein. It was held in para 19 thus:
"We may now take up the third point. [ENTITY] was appointed as Chemical Engineer by the Board of Directors. The powers of the Board of Directors to appoint officers of [ENTITY]'s category were delegated to the Managing Director on September 12, 1974 and as such from that date the Managing Director became the appointing authority. Needless to say that employees of the company are not civil servants and as such they can neither claim the protection of [SECTION] of the [ACT] nor the extension of that guarantee on parity. There is no provision in the Articles of Association or the regulations of the company giving same protection to the employees of the company as is given to the civil servants under [SECTION] of the [ACT]. An employee of the company cannot, therefore, claim that he cannot be dismissed or removed by an authority subordinate to that by which he was appointed. Since on the date of termination of [ENTITY]'s services the Managing Director had the powers of appointing authority, he was legally competent to terminate [ENTITY]'s services."
13. Learned counsel for the respondents also invited my attention to the principles stated by the Apex Court in [PRECEDENT]} There the decision of the Managing Director was ratified by the Board of Directors and in such wpc 11109, 11132& circumstances, it was held that the ratification relates back to the date of dismissal order and validated the same. In para 7 their Lordships held thus:
"The High Court rightly held that an act by a legally incompetent authority is invalid. But it was entirely wrong in holding that such an invalid act could not be subsequently "rectified" by ratification of the competent authority. Ratification by definition means the making valid of an act already done. The principle is derived from the Latin maxim rathabitio mandato aequiparatur, namely, "a subsequent ratification of an act is equivalent to a prior authority to perform such act." Therefore, ratification assumes an invalid act which is retrospectively validated."
Therefore, going by the principles stated therein, a ratification will make the act valid. Going by the dictum laid down in the above two cases, as the Managing Director was the appointing authority who appointed the petitioners, it cannot be held that the orders of termination are invalid. Ext.R2(f) the report of the [ENTITY] was examined and it was resolved that the appointments made are illegal and without following any procedure. The same amounts to a decision taken by the Board of Directors in effect to terminate the service of the petitioners. In the subsequent meeting of the Board of Directors held on 28.3.2008, the minutes of which have been produced a[SECTION], the minutes of the Board meeting dated wpc 11109, 11132& 2.1.2008 have been confirmed. Resolution No.4 takes note of the action taken by the [ENTITY] based on a representation from the employees who have been issued termination orders. It was also resolved to verify whether any more appointments are there not in conformity to the Council's guidelines and if so appropriate action may be initiated. In that view of the matter, the action of the [ENTITY] stands ratified by the Board of Directors. Of course, learned counsel for the petitioners have got a contention, relying upon the affidavit filed by some of the Board members, that no such resolution was taken. But no materials have been produced to show that the meeting was not conducted and no such resolution was adopted.
14. Therefore, going by the principles stated by the Apex Court, two things are evident. The [ENTITY] being the appointing authority, the orders of termination issued by him cannot be said to be faulty. There was a valid delegation of power to him by the Bord of Directors, to take action, as noted already. Apart from that, the Board of Directors ratified the decision taken by the [ENTITY]. Therefore, the action will be saved.
15. In that view of the matter, the contention that it was only the wpc 11109, 11132& Board of Directors who could have pass orders of termination, cannot be upheld. Therefore, the main ground on the challenge against the orders of termination falls to ground.
16. The other contention raised by the petitioners is that going by the proposal as contained in Ext.P1 which culminated in the resolution Ext.P2, there is a valid appointment and therefore the reasons stated in the orders of termination that no proposal was there to appoint them, or to regularise them, cannot be accepted. Ext.P1 is the notice of agenda which contains a proposal to regularize the remaining staff. The details of 23 casual employees who are in daily wages, have been mentioned therein. Ext.P2 will show that a committee was formed for finalizing the proposal and the decision therein is to the effect that the committee will take appropriate decision after evaluating the proposal. Ext.P3 will show that the sub committee proposed that all staff with one year experience can be regularised subject to the performance to be decided on the basis of scrutiny. Ext.P4 is the minutes of the 25th meeting of the Board of Directors dated 25.1.2006, the full text of which is produced as Ext.R2(i). With regard to the regularization of the staff it is contained as [SECTION] and the decision is to the following effect:
wpc 11109, 11132&
(i) To regularise all contract staff who are completed 1 year of service.
(ii) In case of casual/daily wages employees, form a Screening Committee and evaluate them. Suitable candidates may be appointed on contract basis initially.
These decisions are relied upon in support of the orders of appointment. It is clear from the above decision also, that the only decision was to regularize all contract staff who have completed one year of service and regarding daily wages employees, the decision was only to form a Screening Committee and evaluate them. The appointment orders show that an interview was held on 24.1.2006, evidently prior to the said Board meeting. Nothing is stated in the appointment orders about any resolution taken by the Board on 25.1.2006 to appoint them. Therefore, the contention raised by the respondents that the then [ENTITY] passed the orders of appointment without being empowered by any decision of the Board or based on any follow up action taken on 25.1.2006, appears to be correct. Even if the procedure contemplated in Ext.P4 was taken, a scrutiny committee should have been formed to evaluate the case of casual/daily wages employees. That was not done. Therefore, the action of the [ENTITY] in appointing the petitioners, is rightly found wpc 11109, 11132& objectionable in the orders of termination.
17. It is clear from the proceedings that the initial engagement on daily wages and the provisional appointment thereafter was made without notifying the vacancies by inviting applications. This has resulted in denying an opportunity to similarly placed candidates. Therefore, the said finding in that regard is also correct. The detailed reasons have been stated in the orders of termination to the effect that the principles of reservation have not been followed and the appointment was in total violation of the recruitment rules. Going by the recruitment rules, open advertisement was necessary and in the absence of which, it should have been through Employment Exchanges or by campus recruitment. None of these methods were followed. It is also found that some of the petitioners are not even qualified in accordance with the qualifications prescribed for the post.
18. Learned counsel for the respondents relied upon the following decisions of the Apex Court: [PRECEDENT], [PRECEDENT], [PRECEDENT], State of Manipur and others v. Y. Token Singh and others {(2007) 5 wpc 11109, 11132& SCC 65} and [PRECEDENT] and two decisions of this court in Dr. [ENTITY] v. Cochin University of Science and Technology and others (ILR 2005 (3) Ker.8 and [ENTITY] v. [ENTITY] and others ([PRECEDENT]) to contend that the regularization of provisional employees who have been appointed irregularly cannot be justified.
19. In [PRECEDENT], it was held that "the mere expiry of the initial period of probation does not automatically have the effect of deemed confirmation and the status of a deemed confirmation of the probation. An express order in that regard only confers the status of an approved probationer". In [PRECEDENT], a Constitution Bench of the Apex Court held that in the matter of public employment, the authority is bound to follow a constitutional scheme. It was held that the absorption or regularisation of temporary, casual or daily wages employees dehors the constitutional scheme, cannot be accepted .The same principle was followed in [PRECEDENT] and in [PRECEDENT]. The consistent view taken therefore is that in the matter of public employment, any wpc 11109, 11132& backdoor appointment, dehors the procedure, cannot confer any right on the appointees for continuance. In that view of the matter, the adhoc appointment could not have been regularized at all. In this case, as found earlier, Exts.P1 to P4 will not show that there was any concrete decision on the part of the second respondent to regularize the daily wage employees. A similar question was considered by this court in Dr. [ENTITY]'s case ([PRECEDENT] and in [ENTITY]'s case ([PRECEDENT]) In the latter decision, after regularization of provisional hands, based on the dictum laid down in Secretary, State of Karnataka's case {[PRECEDENT], the Government reviewed its decision to regularize the provisional employees. The challenge against the same was repelled by this court and it was held that the Government is empowered to review wrong decisions conferring regularization of illegally appointed provisional employees.
20. Even going by the general principles contained in the [ACT] an appointing authority is entitled to dismiss or terminate or revoke the appointment. Herein, the appointments were made obviously by the [ENTITY]. The termination is not by way of any disciplinary action taken but in view of the illegality in the appointments itself. Going by the principles stated in [ENTITY]'s case (ILR 2007 (4) wpc 11109, 11132& Ker.862) the appointing authority is entitled even to revoke a decision to regularize the employees who were appointed illegally. In that view of the matter also, the orders of termination cannot be faulted.
Therefore, the writ petitions fail and the same are dismissed. As per the interim orders passed in all these cases, the petitioners were permitted to attend to their respective duties until further orders and further it is made clear that the continuance on the strength of the orders of this court shall not by itself confer any right on the petitioners and such continuance again will be subject to further orders to be passed by this court. Therefore, it is made clear that the petitioners will be entitled for the monetary benefits including salary and other benefits for the period during which they have worked during the pendency of these writ petitions. Before effecting termination, they will be paid off such amounts payable, if any, and any other statutory benefits.
([ENTITY], Judge.) kav/