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N. Rajamma Vs. Inspector General of Prisons, Trivandrum and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberO.P. No. 874 of 1965
Judge
Reported inAIR1968Ker72
ActsConstitution of India - Articles 310 and 311
AppellantN. Rajamma
Respondentinspector General of Prisons, Trivandrum and ors.
Appellant Advocate M.A. Joseph and; V.V. Narayanan, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition dismissed
Cases ReferredR. Tewari v. District Board
Excerpt:
- - p-2 and stated that if the same had been done, the charge would have been found to be baseless, and complained of sri vikraman nair having been examined behind her back without affording her an opportunity to question him. 4. on the materials placed before me, i am also satisfied that the relationship between the petitioner and the managing committee of the after-care hostel, was purely that of master and servant. noticing that the case was not one where there was failure to comply with any statutory provisions, the judicial committee held that the teacher was not shown to be anything other than a servant, and that a writ of certiorari was unavailable where a master summarily terminated the servant's employment......an enquiry. ext. p-3 is the further notice by the chairman of the managing committee of the after-care hostel for women, by which the petitioner was informed that her explanation was unsatisfactory, and that the committee had provisionally decided to dismiss her from service.she was asked to show cause against the same. ext. p-4 is a copy of the petitioner's explanation in answer to ext. p-3. she referred to her demand for an enquiry in ext. p-2 and stated that if the same had been done, the charge would have been found to be baseless, and complained of sri vikraman nair having been examined behind her back without affording her an opportunity to question him. by ext. p-5, the petitioner's services were dispensed with from the date of suspension i.e. 5-6-1964. the petitioner's appeal to.....
Judgment:
ORDER

V.P. Gopalan Nambiyar, J.

1. The petitioner was the Matron of the After-Care Hostel, Ernakulam from 26-3-1962, till 5-6-1964. A show cause notice (Ex. P 1) was issued to her by the Superintendent of the hostel (3rd Respondent) alleging that she was having illicit and unwholesome relations with certain males and had been repeatedly warned about it. It was stated that on 9-4-1964 when the Superintendent was not in the hostel, she invited one Vikraman Nair for tea and was warned by the Chairman of the Managing Committee (2nd respondent) for having done so.

It was also stated that on 2-6-1964, the petitioner lived with Sri Vikraman Nair in Room No. 36 of the Woodlands Annexe, and on enquiries made, this was found to be true, and was also admitted to the Superintendent, by Vikraman Nair himself. On these allegations, the petitioner was asked to submit her explanation for the incident on 2-6-1964. Ext. P-2 is the copy of the petitioner's explanation in which she denied the charge and demanded an enquiry. Ext. P-3 is the further notice by the Chairman of the Managing Committee of the After-Care Hostel for Women, by which the petitioner was informed that her explanation was unsatisfactory, and that the Committee had provisionally decided to dismiss her from service.

She was asked to show cause against the same. Ext. P-4 is a copy of the petitioner's explanation in answer to Ext. P-3. She referred to her demand for an enquiry in Ext. P-2 and stated that if the same had been done, the charge would have been found to be baseless, and complained of Sri Vikraman Nair having been examined behind her back without affording her an opportunity to question him. By Ext. P-5, the petitioner's services were dispensed with from the date of suspension i.e. 5-6-1964. The petitioner's appeal to the Inspector-General of Prisons (1st Respondent) was declined on the ground that the Inspector-General cannot interfere in the matter, (vide Exts. P-7 and P-8). This O. P. is to quash Exts. P-6, P-7 and P-8 orders.

2. In the counter-affidavit filed by the 1st and 3rd respondents, objection has been taken that the petitioner did not hold any 'civil Post' and cannot claim protection under Article 311 of the Constitution. It is further stated that the petitioner was holding a non-supervisory post to which appointment is made by the Managing Committee of the After-Care Hostel and that such non-supervisory personnel attached to the After-Care Hostel are not Government Servants. The appointment order itself is alleged to have stated that it was purely provisional and that the appointment was not entitled to any rights except the emoluments attached to the post. It is alleged that the relationship between the Managing Committee and the petitioner is purely that of master and servant, and that the enforcement of any obligation arising from such relationship cannot be sought in writ proceedings. On the merits, it is stated that there had been due enquiry and no violation of the principles of natural justice.

3. It was contended that the petitioner was a Government servant within the principle of the decision in the State of Uttar Pradesh v. Audh Narain Singh, AIR 1965 SC 360; but little has been made out to show that the Government had appointed the petitioner or had paid her remuneration or wages, or had control not only in the method of appointment, but also the mode and manner in which the work was to be done, or had the power to remove or suspend the petitioner from the employment. These were the indicia by which the Supreme Court concluded in AIR 1965 SC 360 that the Tahsil-dar was entitled to protection under Article 311 of the Constitution. None of these have either been pleaded or made out in the present case, in spite of the clear averments in the counter-affidavit. There is the additional fact stated in the counter-affidavit of the 1st respondent that the Government had clarified the position that non-supervisory personnel attached to the After-Care Hostel are not Government Servants, in Memorandum No. 36857/B2/64-2/Home dated 29-10-1964. I overrule the contention that the petitioner is either a Government Servant or the holder of a civil post.

4. On the materials placed before me, I am also satisfied that the relationship between the petitioner and the Managing Committee of the After-Care Hostel, was purely that of master and servant. The 3rd respondent's counter-affidavit has stated that the After-Care Hostel is an institution for the relief and rehabilitation of Women and Girls discharged from the correctional and non-correctional institutions. The inmates of the hostel are mostly those discharged from the Rescue Home which is a protective Home under the Suppression of Immoral Traffic in Women & Girls Act. My attention was not called to any statutory provisions or rules which regulated or governed the conditions of service of the petitioner or the disciplinary proceedings to be taken against her. I therefore hold that the relationship between Respondents 2 and 3 and the petitioner was purely that of master and servant.

5. Even so, the petitioner's counsel maintained that there was violation of the principles of natural justice, in the enquiry conducted into the charge, in so far as Vikra-man Nair mentioned in the charge was examined behind her back and she was not afforded an opportunity for cross-examining or questioning the said person. For the respondents, the position taken up was that there was no obligation to act judicially in the matter and that the procedure invoked by the petitioner, namely a writ of certiorari, was inappropriate in respect of the termination of the relationship of master and servant. Reliance was placed for this position on the decision of the House of Lords in Ridge v. Baldwin, 1963-2 All ER 66 = 1964 AC 40 and of the Privy Council in the Vidyodaya University of Ceylon v. Silva, 1964-3 All ER 865.

In the Vidyodaya University's case 1064-3 All ER, 865, the proceedings arose out of the termination of service of a teacher by the Council of the University and the sole question, as stated at page 872-873 of the report, was whether there was, as a matter of obligation, a duty on the council to give the respondent an opportunity to be heard and a duty to act judicially. Noticing that the case was not one where there was failure to comply with any statutory provisions, the Judicial Committee held that the teacher was not shown to be anything other than a servant, and that a writ of certiorari was unavailable where a master summarily terminated the servant's employment. In 1963-2 All ER 66 three classes of dismissal are noticed, namely: (1) Dismissal of servant by his master; (2) Dismissal from an office held during pleasure, and (3) Dismissal from an office where there must be something against the man to warrant his dismissal.

Nothing was shown how the petitioner's case was anything other than a plain and simple case, of dismissal of a servant by Iris master. But the petitioner's counsel made an attempt to bring the case within the ruling of the Supreme Court in S, R. Tewari v. District Board, Agra, AIR 1964 SC 1680.,The said decision only laid down that the powers of a statutory body must be exercised and confined within the provisions of the statute, and that courts have in appropriate cases, power to declare actions of such a body illegal even if the action relates to determination of employment. It is impossible to bring the petitioner's case within the ambit of the said decision, as the respondents have in no way been shown to be statutory bodies who have transgressed the limits of their power in passing the impugned orders,

It is significant to note that the Supreme Court approved the decision of the Allahabad High Court in Ram Babu Rathaur's case, AIR 1961 All 502 relating to the termination of employment of an employee under the Life Insurance Corporation, who claimed a writ of mandamus restoring him to service. It was ruled that the Corporation was an autonomous body and its relationship with its employees was governed by contract and not by any statutory obligation. The petitioner's position in the present case appears to be identical.

6. Counsel for the respondents also raised the objection that this writ petition is barred by delay and laches. Ext. P-6 order is dated 26-7-1964, and this writ petition has been filed on 31-3-1965 It is not shown that the 1st respondent was the authority to whom an appeal against Ext. P-6 was authorised under the provisions of any statute or rule. It was contended that the fact that an appeal was prosecuted before an authority not competent to entertain the same will not absolve the petitioner from her delay and laches. The appeal itself was disposed of on 9-11-1964, and, at the petitioner's request, a copy of the memo disposing of the appeal was again sent to her by Ext. P-7. (The date 2-12-1965 shown therein seems to be a mistake as it was filed along with the O. P. on 31-3-1965). In view of my finding that the relationship of respondents 1 and 2 and the petitioner was purely that of master and servant and that the termination of service is not justiciable in these proceedings, it is unnecessary to deal with the question of delay and laches.

7. It is unnecessary to pronounce again on the question as to whether the enquiry challenged violated the principles of natural justice and whether the petitioner was denied a reasonable opportunity of questioning or cross-examining Vikraman Nair. The termination spells purely in the region of contract, for which the remedy, if any is an action for damages.

8. In view of my conclusion that a writof certiorari is not available against the termination of the petitioner's employment, Idismiss this O. P. but make no order as tocosts.


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