IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 2ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.5100 OF 2017 (S-RES) BETWEEN:
KARNATAKA STATE LEGAL SERVICES AUTHORITY NYAYADEGULA I FLOOR, H SIDDAIAH ROAD BENGALURU -560027 REPRESENTED BY ITS MEMBER SECRETARY (BY SRI. B V VIDYULATHA, ADVOCATE) AND:
SRI. SUBRAMANYA. A SON OF ASHWATHAIAH AGED ABOUT 44 YEARS RESIDING AT NO.590 4TH MAIN, 3RD CROSS KAMALANAGAR BENGALURU -560079.
(BY SRI. K S GANESHA, ADVOCATE) ... APPELLANT ... RESPONDENT THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 14/7/17 PASSED IN THE WRIT PETITION No.56287/2013.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 14.7.2017 passed by the learned Single Judge in W.P.No.56287 of 2013, by which the petition was allowed, directing the respondent to reinstate the petitioner into service, respondent is in appeal.
2. The petitioner filed writ petition under Articles 226 and 227 of the Constitution of India, praying to quash the communication dated 04.09.2013, endorsement by which he was intimated that order of discharge passed against him for non-suitability has become final by order dated 29.02.2012 passed in W.P.No.8956 of 2012. Further, the petitioner sought for a direction to take back the petitioner to the post of driver with consequential benefits.
3. The petitioner asserts that he holds a valid driving license and he was selected and appointed as driver in the respondent-authority by office order dated 25.05.2009. He was appointed on probation for a period of two years from 14.05.2009. By order dated 29.02.2012, the respondent discharged the petitioner and two others from service as they are not suitable to hold their respective posts. The order of discharge was challenged before this Court in W.P.No.8956 of 2012 and this Court, by order dated 22.06.2012 dismissed the writ petition holding that the order of discharge is discharge simplicitor.
4. The petitioner had filed a suit in O.S.No.7910 of 2009 seeking to correct his caste from Vokkaliga to Nayaka. The said suit came to be dismissed as not maintainable on 16.10.2010. Thereafter, the petitioner filed one more suit in O.S.No.8359 of 2011 seeking declaration of his caste as Nayaka and for correction in his academic records. The said suit came to be decreed on 31.07.2012. The CRE Cell by conducting detailed enquiry held that the petitioner belongs to Nayaka caste. Thereafter, the petitioner appears to have got corrected his academic records. The petitioner thereafter made a representation to recall the order dated 29.02.2012 by which he was discharged from service. The same was rejected by endorsement dated 04.09.2013 which is impugned in the instant writ petition.
5. The learned Single Judge allowed the writ petition, set aside the order of discharge, directing the respondents to reinstate the petitioner into service. The learned Single Judge was of the opinion that the termination of the petitioner is not a discharge simplicitor but it is on the basis of the allegation that the petitioner has furnished a false caste certificate which is apparent from the statement of objections filed by the respondents. The learned Single Judge also noted that the petitioner belongs to Nayaka community and the suit filed by the petitioner is decreed in his favour declaring his caste as Nayaka. Aggrieved by the said order the respondent is in appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent. Perused the appeal papers.
7. Learned counsel for the appellant would submit that the writ petition itself is not maintainable and the same is liable to be dismissed on the ground of res-judicata. The petitioner had approached this court in W.P.No.8956 of 2012 challenging the order of discharge dated 29.02.2012. This Court, by order dated 22.06.2012 rejected the writ petition holding that the order of discharge is a discharge simplicitor. The said order has become final. Hence, the present writ petition on the same cause of action is not maintainable. Alternatively, it is the submission of the learned counsel for the appellant that the order of discharge would indicate that it is an order of discharge simplicitor and the petitioner is discharged on the ground of non-suitability to hold the post of driver. It is submitted that the order passed by the learned Single Judge is wholly perverse and the learned Single Judge could not have interfered with the order of discharge simplicitor.
8. Per contra, learned counsel for the respondent would support the order of the learned Single Judge and submits that the order of discharge is not a discharge simplicitor, but the discharge is on the allegation of furnishing false caste certificate. The statement of objections filed by the authority makes it clear that the discharge is on the ground of allegations. Hence the learned Single Judge has rightly set aside the order of discharge.
9. Having heard the learned counsels for the parties and having gone through the writ appeal papers, we are of the view that the order of the learned Single Judge requires to be interfered with for more than one reasons.
10. Firstly, it is an admitted fact that the petitioner was before this Court in W.P.No.8956 of 2012 challenging the order of discharge dated 29.02.2012. This Court, by order dated 22.06.2012 dismissed the writ petition holding that the order of discharge is a discharge simplicitor. The said order has become final and the petitioner has not taken up the said order in appeal. When the validity of the order of discharge is tested before this Court and when it has become final, the petitioner could not have filed the instant writ petition on the very same cause of action. The prayer in the present writ petition is to set aside the endorsement wherein he was informed that his request for reconsideration of discharge order cannot be considered in view of the dismissal of the writ petition filed against the order of discharge. Further, in the instant writ petition the petitioner has sought for a direction to take back the petitioner to the post of driver with all consequential benefits. The issue involved in the instant writ petition and the issue involved in the earlier writ petition between the same parties is with regard to discharge of petitioner from service by the respondent-authority. Where an issue is decided in an earlier proceedings between the same parties, the same issue cannot be agitated in subsequent proceedings between the same parties. Hence, only on this ground the writ petition was liable to be rejected. The learned Single Judge committed an error in entertaining the writ petition when already the order of discharge dated 29.02.2012 had attained finality.
11. The second ground on which the writ petition is liable to be rejected is that the order of discharge is a discharge simplicitor. The order dated 29.02.2012 passed by the respondent-authority reads as follows:
(i)Sri.Subramanya A.M., Driver of Bus, working in Karnataka State Legal Services Authority, Bangalore, (ii)Smt.Ranjamma, Dalayath (peon) working in Permanent Lok Adalath, Bangalore and (iii) Sri.Ramesh Harijan, Dalayath (peon) working in Permanent Lok Adalath, Belgaum are on probation. They are found not suitable to hold their respective posts. As directed by Hon’ble Executive Chairman, Karnataka State Legal Services Authority, they are ordered to be discharged from services. As such, the following Office Order:
OFFICE ORDER NO.190/2012 DATED 29TH FEBRUARY 2012 In view of the above submission (i)Sri.Subramanya A.M., Driver of Bus, working in Karnataka State Legal Services Authority, Bangalore, (ii)Smt.Ranjamma, Dalayath (peon) working in Permanent Lok Adalath, Bangalore and (iii) Sri.Ramesh Harijan, Dalayath (peon) working in Permanent Lok Adalath, Belgaum are hereby discharged from their duties, with effect from the afternoon of 29th February 2012.”
12. The discharge of the petitioner is on the ground that he is not found suitable to hold the post of driver. The respondent has adopted the Karnataka Civil Services (Probation) Rules, 1977 (hereinafter referred to as ‘the Rules for short). Rule 6 permits discharge of probationers, which reads as follows:
6. Discharge of a probationer during the period of probation:- (1) Notwithstanding anything in Rule 5, the Appointing Authority may, at any time during the period of probation, discharge from service a probationer on grounds arising out of the conditions, if any, imposed by the rules or in the order of appointment, or on account of his unsuitability for the service or post; but the order of discharge except when passed by the Government shall not be given effect to, till it has been submitted to and confirmed by the next higher authority.
(2) An order discharging a probationer under this rule shall indicate the grounds for the discharge but no formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, shall be necessary.”
13. The Hon'ble Supreme Court while considering Rule 6 of the Rules in a decision reported in (2001) 3 SCC 117 in the case of H.F.SANGATI v/s REGISTRAR GENERAL, HIGH COURT OF KARNATAKA AND OTHERS, at paragraph 10 has held as follows:
“10. In our opinion the impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsifs. It is pertinent to note that Rule 6 contemplates a probationer being discharged from service on one or more of the following grounds: (i) in terms of a condition imposed by the Rules, (ii) in terms of the order of appointment, or (iii) on account of unsuitability of the appointee for the service or post. Sub- rule (2) of Rule 6 requires an order discharging the probationer to indicate the grounds for the discharge. It also provides that such indicating of the grounds for the discharge in the order would not require any formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 being held. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to be preceded by any formal proceedings of inquiry before making the order.”
14. A probationer could be discharged at any time, during the period of probation on account of his unsuitability for the service or post. The above order of discharge would indicate that the petitioner is discharged from service for unsuitability to the post. The learned Single Judge committed an error in coming to the conclusion that the order of discharge is not a discharge simplicitor but discharge on certain allegations. While joining the services of respondent-authority, the petitioner had given his caste as Nayaka. But when the same was sent for verification, it was stated that the petitioner belongs to Vokkaliga community. Thereafter the petitioner filed suit for declaration that he belongs to Nayaka community which was decreed. Based on the said decree, the petitioner got corrected his school records. But considering the same, it cannot be said that the order of discharge is not a simplicitor but on the basis of allegations. When the order only states that the petitioner is unsuitable for the post without there being any allegation on the face of the order, the learned Single Judge committed an error in setting aside the order of discharge. Therefore, we are of the view that the order of the learned Single Judge requires interference by this Court.
15. Accordingly, the writ appeal is allowed and the order dated 14.07.2017 passed in W.P.No.56287 of 2013 by learned Single Judge is set aside. The writ petition is dismissed.
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JUDGE JUDGE mpk/-* CT:bms