IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 WP(C).No. 11109 of 2008(V) -------------------------------------- PETITIONER(S): --------------------- 1. RADHAKRISHNAN.B., OFFICE ASSISTANT, VFPCK, RESIDING AT THURTHIYIL THEKKATHIL, PULIMEL, PATTOOR P.O., NOORANADU. 2. RAJITHA KARAKKATT, OFFICE ASSISTANT, VFPCK, RESIDING AT KOYILERIAN HOUSE, IRINAVE P.O., KANNUR DISTRICT. 3. AJITH KUMAR, OFFICE ASSISTANT, VFPCK, RESIDING AT AMBIYIL KIZHAKATHIL, CHATHIYARA, THAMARAKULAM P.O., ALAPPUZHA DISTRICT. 4. JAYAN P.B., OFFICE ASSISTANT, VFPCK, RESIDING AT PILLAVEETTIL PUTHIYAVEEDU, THRIKKARUVA, VADAKKEKARA, ASHTAMUDI, KOLLAM. 5. REMYA MATHEW, OFFICE ASSISTANT, VFPCK TRAINING CENTRE, MEKKATTIL, ADIMALY IDUKKI, RESIDING AT VALARAYIL, VATTAPPARA P.O., SENAPATHY 685 619. 6. BIDHU ANIL, SERVICE ASSISTANT, VFPCK, RESIDING AT PUTHENVEETTIL KIZHAKKATHIL, POOTHANKARA, PATHANAMTHITTA. 7. R.RAJEEV, SERVICE ASSISTANT, VFPCK, RESIDING AT PAKKARAMPARBIL HOUSE, KARUVATTA NORTH P.O., ALAPPUZHA. 8. ALLIRANI.K., MANAGEMENT ASSISTANT, VFPCK, RESIDING AT KAYYAM, ARIYIL P.O., PATTUVAM VIA, KANNUR. 9. JASMIN.S, MANAGEMENT ASSISTANT, VFPCK, RESIDING AT PUTHENPURAYIL, VARANAD P.O., CHERTHALA. W.P.(C) NO.11109/2008 10. GOSH.G., MANAGEMENT ASSISTANT, VFPCK, RESIDING AT PRANAVAM, S V TEMPLE ROAD, W YAKKARA, PALAKKAD. BY ADV. MR.P.SREEKUMAR MR.K.S.MANU (PUNUKKONNOOR) RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, AGRICULTURE DEPARTMENT, THIRUVANANTHAPURAM. 2. VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, REPRESENTED BY ITS BOARD OF DIRECTORS, KAKKANAD, ERNAKULAM. 3. THE CHIEF EXECUTIVE OFFICER, VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, KAKKANAD, ERNAKULAM. 4. THE BOARD OF DIRECTORS REPRESENTED BY ITS CHAIRMAN, VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, KAKKANAD, ERNAKULAM. 5. CYRIL KURIAKOSE, DIRECTOR, VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, KAKKANAD, ERNAKULAM. 6. GEORGE THOMAS, DIRECTOR, VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, KAKKANAD, ERNAKULAM. 7. ALEYAMMA THOMAS, DIRECTOR, VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, KAKKANAD, ERNAKULAM. BY GOVERNMENT PLEADER MR.ANOTNY MUKKATH FOR R1 ADV. MR. N.SUGATHAN,SC,VEGE.& FRUITS PROMOTI FOR R2 , R3 & R4 MR.P.VINODKUMAR FOR R5 TO R7 MR.T.K.AJITH KUMAR FOR R5 TO R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2009, ALONG WITH WPC NO. 11132 OF 2008 WPC NO. 11393 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.11109/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE NOTIFICATION ISSUED IN DESHABHIMANI DAILY DT. 4.8.04. P2:- COPY OF THE JOINING REPORT SUBMITTED BY THE 6TH RESPONDENT ON 26.5.05. P3:- COPY OF THE RELIEVING ORDER DT. 24.6.06 IN RESPECT OF THE 6TH PETITIONER. P4:- COPY OF THE RESOLUTION DT. 25.1.06 OF THE 4TH RESPONDENT. P5:- COPIES OF THE APPOINTMENT ORDERS DT. 28.1.06 ISSUED TO THE PETITIONERS 1 TO 9. P6:- COPY OF THE APPOINTMENT ORDER DT. 28.1.06 ISSUED TO THE PETITIONER. P7:- COPY OF THE COMMUNICATION DT. 29.12.06 OF THE 2ND RESPONDENT. P7A:- COPY OF THE JUDGMENT DT. 23.7.07 IN W.P.(C) NO.11306/07. P8:- COPY OF THE SUBMISSION SUBMITTED BY THE 6TH PETITIONER. P9:- COPY OF THE ORDER DT. 15.1.08 IN IA. NO.7747/08 OS. NO.1538/07. P10:- COPY OF THE AGENDA ISSUED FOR THE 45TH MEETING HELD ON 28.3.08. P11:- COPY OF THE INTIMATION LETTER ISSUED BY THE POSTAL AUTHORITIES. P12 SERIES:- COLIES OF THE ORDER DT. 26.3.07 ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS R2(a):- RELEVANT PAGES OF MINUTES OF THE MEETING HELD ON 10.4.01. R2(b):- RELEVANT PAGES OF THE JOB DESCRIPTIONS FORMULATED BY VFPCK. R2(c):- RELEVANT PAGES OF MINUTES OF THE MEETING HELD ON 24.5.07. R2(d):- COPY OF THE SHEET CONTAINING BIO-DATA OF 10TH PETITIONER. R2(e):- COPY OF THE PETITION DT. 30.1.06 OF THE 10TH PETITIONER. W.P.(C) NO.11109/2008 R2(f):- RELEVANT PAGES OF MINUTES OF THE MEETING HELD ON 13.8.07. R2(g):- RELEVANT PAGES OF MINUTES OF THE MEETING HELD ON 2.1.08. R2(h):- RELEVANT PAGES OF MINUTES OF THE MEETING HELD ON 28.3.08. R5(a):- COPY OF THE RESOLUTION DT. 13.8.07. R5(b):- COPY OF THE PETITION FILED BY RESPONDENTS 5 TO 7 BEFORE THE HONOURABLE MINISTER OF AGRICULTURE. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, 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 Writ Petition No.11393/2008. 2. In Writ Petition No.11393/2008, 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 Companies Act under the control of the State of Kerala. 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& 11393/08 2 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 Chief Executive Officer. 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& 11393/08 3 1.1.2006. The same is issued by the Chief Executive Officer. 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 Writ Petition No.11174/2007 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& 11393/08 4 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 Chief Executive Officer 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 Chief Executive Officer, it is pointed out that the Board of Directors passed necessary resolution to delegate the power to the Chief Executive Officer and wpc 11109, 11132& 11393/08 5 subsequently the decisions have been ratified by the Board also. Further, the appointing authority is the Chief Executive Officer and the petitioners have been appointed by the orders of the Chief Executive Officer at that point of time. 7. Reliance is placed by learned counsel for the petitioners on Regulation 13 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 Rule 13 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 sub-regulations (a) and (b), 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& 11393/08 6 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 Chief Executive Officer, 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 Chief Executive Officer 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& 11393/08 7 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 s Ext.R2(g) and R2(h). Item 5 of the resolution dated 19.8.2001 concerns delegation of powers to the Chief Executive Officer. The resolution is to the effect that the draft of the delegation of powers to the Chief Executive Officer of the Council is approved. Ext.R2(h) is the consequential office order issued in accordance with the resolution. It carries the heading ‘delegation of powers to the Chief Executive Officer.’ Item I bears the heading ‘general’ and item II 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& 11393/08 8 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 Chief Executive Officer is the named person. In this case, the appointment orders have been issued by the Chief Executive Officer . 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 Chief Executive Officer 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 Chief Executive Officer 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 Chief Executive Officer, the Board was convinced that the appointments were in total violation of the staff regulations and the same wpc 11109, 11132& 11393/08 9 are vitiated by various illegalities. It is after entering such a conclusion that the Chief Executive Officer was authorized to pass orders in the matter. ` 11. Learned counsel for the petitioners, relying upon the principles stated in Barnard and others v. National Dock Labour Board and others (1953 (2) QB 18) and in H.L.(E) Vine v. National Dock Labour Board {(1957) AC 488}, 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 Vines’ case {(1957) A.C.488} 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& 11393/08 10 Sharma 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. Sharma was appointed as Chemical Engineer by the Board of Directors. The powers of the Board of Directors to appoint officers of Sharma'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 Article 311(1) of the Constitution of India 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 Article 311(1) of the Constitution of India. 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 Sharma's services the Managing Director had the powers of appointing authority, he was legally competent to terminate Sharma's services.” 13. Learned counsel for the respondents also invited my attention to the principles stated by the Apex Court in Maharashtra State Mining Corporation v. Sunil {(2006) 5 SCC 96.} There the decision of the Managing Director was ratified by the Board of Directors and in such wpc 11109, 11132& 11393/08 11 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 Chief Executive Officer 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 as Ext.R2(g), the minutes of the Board meeting dated wpc 11109, 11132& 11393/08 12 2.1.2008 have been confirmed. Resolution No.4 takes note of the action taken by the Chief Executive Officer 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 Chief Executive Officer 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 Chief Executive Officer 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 Chief Executive Officer. Therefore, the action will be saved. 15. In that view of the matter, the contention that it was only the wpc 11109, 11132& 11393/08 13 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 item 7 and the decision is to the following effect: wpc 11109, 11132& 11393/08 14 (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 Chief Executive Officer 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 Chief Executive Officer in appointing the petitioners, is rightly found wpc 11109, 11132& 11393/08 15 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: Municipal Corporation, Raipur v. Ashok Kumar Misra {(1991) 3 SCC 325}, Secretary, State of Karnataka and others v. Umadevi (3) and others {(2006) 4 SCC 1}, Maharashtra State Mining Corpn, v. Sunil, S/o. Pundikarao Pathak {(2006) 5 SCC 96}, State of Manipur and others v. Y. Token Singh and others {(2007) 5 wpc 11109, 11132& 11393/08 16 SCC 65} and Government of A.P. and others v. K. Brahmanandam and others {(2008) 5 SCC 241} and two decisions of this court in Dr. Ing. Pyarilal S.K. v. Cochin University of Science and Technology and others (ILR 2005 (3) Ker.8 and Usha K. v. State of Kerala and others (ILR 2007 (4) Ker.862) to contend that the regularization of provisional employees who have been appointed irregularly cannot be justified. 19. In Municipal Corporation, Raipur's case {(1991) 3 SCC 325), it was held that “the mere expiry of the initial period of probation does not automatically have the