Skip to content


B. Basavannappa Vs. the State of Mysore Through the Chief Secretary to the Government of Mysore - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial;Service
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 154 of 1964
Judge
Reported inAIR1967Kant194; AIR1967Mys194; (1968)IILLJ316Kant; (1967)1MysLJ396
ActsMysore service Regulations - Rules 294; Constitution of India - Sections 309; Code of Civil Procedure (CPC), 1908 - Sections 80
AppellantB. Basavannappa
RespondentThe State of Mysore Through the Chief Secretary to the Government of Mysore
Appellant AdvocateR.B. Guttal, Adv.
Respondent AdvocateA. Venkatachala, Adv.
Excerpt:
.....that the plaintiff had a bad record of service and, therefore, the order made by the director of public instruction retiring him at the age of 55 was a valid order. he contends that the order does not disclose that the director of public instruction has retired the plaintiff on his attaining the age of 55 years on account of the had service record of the plaintiff, and if his services have been terminated for reasons other than what has been mentioned in para 3 of note 4 to article 294 of the mysore service regulations, then the termination of his services when he attained the age of 55 would be bad and since the plaintiff would be entitled to continue in service till he attains the age of 58 years he would be entitled to pay and other allowances from 6th august 1958 to 6th august..........34.50 p. plus allowance of rs. 25 and malnad allowance of rs. 20. he alleges that the director of public instruction, by his order, dated november 24, 1954, dismissed him from service. he preferred an appeal to the government against the said order, and the government made an order on june 20, 1956, by which though it allowed his appeal, yet directed that he be kept under suspension pending inquiry against him. the minister for education, on the recommendation made by the director of public instruction, made an order on 26-2-1967, which was communicated to the plaintiff by the secretary to the government, department of education, with his endorsement dated march 4, 1657, informing him that orders had been issued to the director of public instruction to retire him with full pension.4......
Judgment:

1. This appeal by the plaintiff is directed against the decree, dated November 10, 1963, made by the Principal District Judge, Shimoga, in Regular Appeal No. 18 of 1963. By that decree, be confirmed the decree made by the trial Court and dismissed the plaintiff's claim in so far as it related to the period from 6-8-1958 to 6-8-1961. In this appeal, the plaintiff is challenging the correctness of the decree made by the learned District Judge.

2. The few facts leading to this appeal may shortly be stated as follows:

3. The plaintiff claims to be a schoolmaster in the Education Department of the Government of Mysore. He was working as a school-master at Mallenahalli, Shikaripur Taluk. Shimoga District, on a monthly salary of Rs. 34.50 p. plus allowance of Rs. 25 and malnad allowance of Rs. 20. He alleges that the Director of Public Instruction, by his order, dated November 24, 1954, dismissed him from service. He preferred an appeal to the Government against the said order, and the Government made an order on June 20, 1956, by which though it allowed his appeal, yet directed that he be kept under suspension pending inquiry against him. The Minister for Education, on the recommendation made by the Director of Public Instruction, made an order on 26-2-1967, which was communicated to the plaintiff by the Secretary to the Government, Department of Education, with his endorsement dated March 4, 1657, informing him that orders had been issued to the Director of Public Instruction to retire him with full pension.

4. These orders were challenged by the plaintiff in a writ petition before this court in Writ Petition No. 222/57, and, during the course of the hearing, Government, by its memo dated 9th September 1958, withdrew the orders made against the plaintiff, with the result that the writ petition did not survive.

5. The Director of Public Instruction then made an order on January 6, 1959, retiring the plaintiff from service with effect from August 6, 1958, the date of his superannuation. Inter alia, the order also stated that the petitioner's request to continue him in service uptil his 58th year could not be considered. The plaintiff, therefore, filed the present suit on October 21, 1961, after giving notice under Section 80 of the Code of Civil Procedure.

6. The plaintiff alleges that when the Government withdrew the orders made against him, he must be deemed to he in service from the date when his services were first terminated with effect from 30th November 1954. Therefore he would be entitled to the pay and allowances due to him from September 9, 1953 to August 6, 1958. He further alleged that under Note 4 to Article 294 of the Mysore Service Regulations, he being a trained teacher, was entitled to continue in service till he attained the age of 58 years and that his services could not have been terminated when be attained the age of 55 years on the ground that he bad attained the age of superannuation. Therefore, he claimed two reliefs viz. Rs. 3,910-62 np. being the arrears of pay and allowances etc. from September 9, 1953 to August 6, 1958, and secondly a sum of Rs. 3,094-69 np. being the pay and allowances from August 6, 1958 to August 6, 1961

7. The defendant, so far as the first relief is concerned, contended that the claim made by the plaintiff is not correct and that he would be entitled only to a sum of Rs. 3,426-09 upto 6th August 1958. As to the second claim, it was contended, (denying the plaintiff's allegation that he was exonerated from all the charges and is deemed to be on duty from August 6, 1958, to August 6, 1961) that the order of the Director of Public Instruction is consistent with Note 4 to Article 294 of the Mysore Service Regulations, that he is not entitled to continue in service till he attained the age of 58, as a matter of right, and that the matter is entirely dependent upon the service condition of the plaintiff.

8. It is contended that the plaintiff was found inefficient and unfit by the department, that the plaintiff has a history of bad record to his credit, that the services of the plaintiff were dispensed with effect from November 4, 1931, though subsequently he was taken back on his undertaking that he would not misbehave in future. Therefore it is contended that the order made by the Director of Public Instruction is a valid order terminating the services of the plaintiff when he attained the age of 55 years.

9. Both the courts below have found that the plaintiff had a bad record of service and, therefore, the order made by the Director of Public instruction retiring him at the age of 55 was a valid order. They made an order in favour of the plaintiff in respect of his first claim i.e., upto 6th August 1958, and made a preliminary decree in his favour However, both the courts below dismissed the plaintiff's second claim i.e., for the period from 6th August 1958 to 6th August 1961, and it is the correctness of this order that is being challenged in this appeal by the plaintiff.

10. It is contended on behalf of (sic) plaintiff by Mr. Guthal, his learned counsel, that the Courts below were not justified in rejecting the plaintiff's claim for the period of three years from 1958 to 1961. He contends that by virtue of Note 4 to Article 294 of the Mysore Service Regulations, he will be entitled to continue in service till he attains the age of 58, and the order terminating his services at the age of 55, is not a valid order. He contends that the order does not disclose that the Director of Public Instruction has retired the plaintiff on his attaining the age of 55 years on account of the had service record of the plaintiff, and if his services have been terminated for reasons other than what has been mentioned in para 3 of Note 4 to Article 294 of the Mysore Service Regulations, then the termination of his services when he attained the age of 55 would be bad and since the plaintiff would be entitled to continue in service till he attains the age of 58 years he would be entitled to pay and other allowances from 6th August 1958 to 6th August 1961. He contends that both the courts below were not justified in holding that the order made by the Director of Public Instruction is on account of the bad record of service of the petitioner. He says that such a conclusion is not justified by the order made by the Director of Public Instruction, and the consideration of the other evidence by the courts below would not make the order made by the Director of Public Instruction as one made under para 3 of Note 4 to Article 294 of the Mysore Service Regulations. The order made by the Director of Public Instruction, which is exhibited in the case as Ex. D-30, is as follows:

'(1) Sri B. Basavannappa under reference is considered to have been retired from service with effect from 6-8-1958 the date of his superannuation:

(2) The period of suspension from 11-9-53 to 6-8-58 is treated as period spent on duty and the teacher is eligible for pay and allowance at the rate for that period. The District Education Officer is requested to arrange to draw the arrears of pay and allowances immediately.

(3) The District Educational Officer should take immediate action for settlement of pension and death-cum-retirement gratuity due to the teacher;

(4) The District Educational Officer should take immediate action for sanction of allocations in the revised scales of pay from 1-1-1957 and necessary allocation statements should he forwarded to this office for approval;

(5) The District Educational Officer should sanction the leave admissible from 4-1-1953 to the date 11-9-53

(6) The request of the Teacher continuing him upto 58 years of age cannot be considered.'

11. The two material points are points Nos. 1 and 6. Point No. 1 clearly states that the plaintiff has been retired from service as he attained the age of superannuation, and point No. 6 states that the plaintiff's request to continue him in service upto 58 years of age cannot be considered.

12. According to Mr. Guthal, it is quite clear that the Director of Public Instruction did not retire the plaintiff from service on account of the bad record of his service, but that he has been retired since he attained the age of superannuation He contends that unless the Director of Public Instruction or other authority, who is entitled to retire the plaintiff from service, comes to the conclusion that on account of the had service record of the plaintiff, he has been retired from service when he attained the age of 55 years --which the order does not show--it is clear that the conclusion arrived at by the Director of Public Instruction to retire the plaintiff from service is not on account of bad record of service, but as is clear from the order, on account of the plaintiff having attained the age of superannuation. If that is so, it is contended by Mr. Guthal that the order is clearly in violation of Note 4 to Article 294 of the Mysore Service Regulations which entitles the plaintiff to continue in service till he attains the age of 58 years.

13. In support of his contention, he has relied upon the decision of the Supreme Court in State of Mysore v. Padmanabhacharya, : (1966)IILLJ147SC . The facts of that case are similar.

14. Their Lordships were considering the effect of Note 4 to Article 294 of the Mysore Service Regulations. The 1st respondent before their Lordships was also a trained teacher who was retired on attaining the age of 55 years. In that case, it was nol disputed on behalf of the State that the sole reason for retiring the respondent, and others like him, was that they had attained the age of 55 years and that there was nothing against their fitness or efficiency to justify an order of retirement. During the course of their judgment their Lordships pointed out that, with respect to trained teachers, they were normally entitled to continue in service, till the age of 58 years unless the Director of Public Instruction was of the opinion that they had not a good record of service, and were not upto the mark.

Therefore the trained teachers could only be retired at the age of 56 years if the Director of Public Instruction came to the conclusion that they had not a good record of service. Hence before the plaintiff could be retired at the age of 56 years, the Director of Public Instruction had to come to the conclusion that he had not a good record of service and was not upto the mark. The opinion or conclusion for the purpose of retiring a trained teacher, such as the plaintiff, before he attains the age of 58 years, must be that of the Director of Public Instruction, or such other authority as the case may be, and if there is no such conclusion, then the plaintiff would be entitled under Note 4 to continue in service upto the age of 58 years.

15. Mr. Government Pleader, however, contends that there is ample material on record in this case to justify a finding that the plaintiff had a bad record of service and, in my opinion, he is right in his contention because the evidence on record discloses that the plaintiff sad a bad record of service.

16. But the question which is material for the determination in this appeal is whether it was the view of the Director of Public Instruction that the plaintiff's record of service was had or was not upto the mark, and, therefore, in exercise of his powers under para 3 of Note 4 to Article 294 of the Mysore Service Regulations, he made that order. We must, therefore, necessarily look to the order made by the Director of Public Instruction, and if his order does not disclose that he acted under para 3 of Note 4 to Article 204 of the Mysore Service Regulations, then the other evidence in the case could not justify a finding that the retirement of the plaintiff was in accordance with Note 4 to Article 294 of the Mysore Service Regulations. In my opinion, the order made by the Director of Public Instruction does not show ex facie that the plaintiff was retired on account of bad record of service. But it is clear from the order itself that he was retired from service on account of his attaining the age of superannuation. In that event, the order retiring the plaintiff is clearly bad in law and cannot be sustained.

17. The plaintiff has claimed in all Rs. 3,094-69 np as due to him on account of pay, allowances etc. from 6th August 1958 to 6th August 1961. All that the defendant did was to deny that the plaintiff was entitled to get that sum. But the correctness of the calculation made by the plaintiff in para 5(a) to (d) of his plaint has not been challenged. Since, in my opinion, the plaintiff is entitled to succeed, he would be entitled to have a decree for Rs. 3094-69 in his favour

18. In the result, I set aside the decree made by the lower appellate Court in so far as it relates to the plaintiff's claim for the period from 6th August 1958 to 6th August 1961, and direct that the defendant to pay to the plaintiff a sum of Rs. 3,094-69 as claimed by him.

19. For the reasons stated above, this appeal is allowed.

20. Though, normally costs must follow the event, in view of the fact of this case, I do not think that the plaintiff is entitled to the costs of this appeal. Consequently there will be no order as to costs of this appeal.

21. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //