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INSTITUTE OF HOTEL MANAGEMENT, CATERING TECHNOLOGY AND APPLIED NUTRITION (KARNATAKA) SOCIETY, BANGALORE VERSUS HEMALATHA V. REDDY

    W. P. 2559 Of 2002

    Decided On, 07 January 2005

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE S.R. NAYAK & THE HONOURABLE MRS. JUSTICE MANJULA CHELLUR

    For the Appearing Parties: Ashok Haranahafli, M.C.Narasimhan, Advocates.



Judgment Text

S.R. NAYAK, J.


( 1 ) THE institute of Hotel Management, Catering Technology and applied Nutrition (Karnataka) Society and its authorities have preferred this writ petition under Articles 226 and 227 of the constitution of India questioning the correctness of the order of the central Administrative Tribunal, Bangalore Bench, Bangalore (for short, 'the Tribunal') dated 19th October, 2001 passed in T. A. No. 104 of 2000 allowing the application filed by the respondent herein and quashing the impugned order dated 6-9-1989 and directing payment of salary to the respondent from 6-9-1989 till the date on which the applicant attained the age of superannuation.


( 2 ) THE 1st petitioner is a society registered under the Karnataka societies Registration Act, 1960 and came into existence with effect from 25-1-1984. Earlier, the 1st petitioner-society was known as Food Craft institute (Mysore) Society. The name of the society was subsequently changed as Institute of Hotel Management, Catering Technology and applied Nutrition (Karnataka) Society (for short, 'the Institute' ). Initially, the Institute was conducting classes only for Cookery, Bakery and Reception etc. After the upgradation of Food Craft Institute into hotel Management Institute, greater emphasis was laid on manpower requirement both at lower level and at the managerial level. During that time, the canning was also taken as an ancillary trade. Petitioners-Institute is only a teaching Institute and examinations are conducted by the National Council for Hotel Management ('nchm', for short ). The NCHM is also a registered autonomous society set up by the government of India. Both the 1st petitioner-Society and NCHM have been separately registered as Society under different State laws.


( 3 ) THE Government of India, Ministry of Tourism entered into collaboration with International Labour Organisation (ILO) and the ILO experts were invited to broaden and update the knowledge of teaching staff of the Institutes in the country. The ILO experts have effected sweeping changes in the syllabi, practical training and examination methods. The changes in syllabi etc. , are required to be introduced by the Institute following the norms laid down by the NCHM. As a result of this upgradation, only three Craft courses in Food Production, accommodation operation and F and B services were to be retained. In the circumstance, it was decided to abolish the course of Canning and food preservation.


( 4 ) THE NCHM in its meeting held on 25th May, 1989 resolved to phase out the courses of Canning and Food Preservation in all the institutes. The 1st petitioner is affiliated to NCHM and it can only conduct the courses which are recognised by NCHM. In view of the decision of the NCHM, the petitioners were required to abolish the courses in Canning and Food Preservation. According to the petitioners, even otherwise, there were no students for those courses. Petitioners have stated that they found that the courses of Canning and Food preservation are not directly related to Hotel and Catering Industry and, therefore, the students coming out of the courses were not readily absorbed in the industry. In view of the difficulty in employment opportunities, the students also did not get themselves admitted to these courses. It is in this background that a decision has been taken to abolish the Canning and Food Preservation Courses.


( 5 ) THE respondent was appointed as Assistant Instructor in Canning and Food Preservation on 5-3-1969 in Food Craft Institute (Mysore) society. Two teachers were working in the Department of Canning and food Preservation. The teaching staff should have minimum of 760 teaching hours in a year. During the years 1988-89 and 1989-90 there were no students for Canning and Food Preservation Courses with the result the two members of the teaching staff were idle without any teaching work. In view of this, by Memorandum dated 6-9-1989, the society resolved to abolish Canning and Food Preservation Courses and consequently the respondent who was holding the post and another teacher were relieved of their duties. Aggrieved by the said action of the society, the respondent herein filed Writ Petition No. 15991 of 1989 in this Court. That writ petition was initially dismissed on the ground that the 1st petitioner Society is not a 'state' within the meaning of Article 12 of the Constitution of India. Aggrieved by the same, Writ Appeal No. 8772 of 1996 was filed. That writ appeal was disposed of on 4-1-1999 holding that the 1st petitioner-Institute is a 'state' within the meaning of Article 12 of the Constitution of India. When the matter came up before a learned Single Judge of this Court, it was noticed that a notification had been issued under the Administrative Tribunals Act, 1985 and in that view of the matter, the writ petition was transferred to the Tribunal and was numbered as Transfer Application No. 104 of 2000.


( 6 ) THE Tribunal having opined that notwithstanding the abolition of the post held by the respondent, she should have been accommodated in any other Institute of teaching as similarly circumstanced persons had been accommodated in other places, allowed the application, quashed the impugned order dated 6-9-1989 and directed payment of salary to the respondent from 6-9-1989 till date of her retirement on attaining the age of superannuation, if she were to be in service. Hence, this writ petition by the aggrieved Management of the Institute.


( 7 ) WE have heard Sri Ashok Haranahalli, learned Counsel for the petitioners and Sri M. C. Narasimhan, learned Senior Advocate for the respondent.


( 8 ) SRI Ashok Haranahalli would, at the threshold, contend that the tribunal has exceeded its jurisdiction in interfering with the impugned order abolishing the post held by the respondent; the impugned decision is a policy decision taken by the Institute having regard to the exigencies of the administration and such a policy decision could not have been interfered with by the Tribunal; that the respondent has no vested right to hold the post or to continue in the post notwithstanding the abolition of the post; that the Tribunal is not justified in holding that the respondent ought to have been accommodated to teach in some other subjects, because, the respondent is not qualified to teach in other subjects; that the Tribunal has failed to appreciate the fact that once the post is abolished the right of the respondent to hold that post also comes to an end; that the Tribunal while reviewing the impugned order went beyond its legitimate power in considering the question whether the respondent could have been rehabilitated in another post.


( 9 ) SRI M. C. Narasimhan, learned Senior Counsel, per contra, would support the order of the Tribunal and submit that the abolition of the post held by the respondent by the impugned order is arbitrary, unreasonable as well as mala fide. Sri Narasimhan would also contend that the impugned order was issued in violation of principles of natural justice and fair-play in action inasmuch as she was not given any opportunity to have her say in the matter. Be that as it may, Sri narasimhan would submit that in fairness, the petitioners having utilised the services of the respondent for large number of years, ought to have accommodated her in some other Institute to teach the students. Abolition of the post and consequent termination of her services, learned counsel would submit, subjected her to hardship and inconvenience.


( 10 ) HAVING heard the learned Counsels for the parties, the following three questions arise for our decision: (i) Whether the impugned order passed by the petitioners dated 6-9-1989 abolishing the post held by the respondent is liable to be set at naught on any permissible legal ground? (ii) Whether giving of an opportunity of being heard to the respondent was necessary before the post was abolished by the management of the Institute? (iii) Whether the respondent is entitled to be accommodated in any other Institute as an alternative employment notwithstanding the abolition of the post held by her? point No. (i):


( 11 ) THE judgment of the Supreme Court in N. Ramanatha Pillai v state of Kerala and Another, AIR 1973 SO 2641 : (1973)2 SCO 650 : 1973-II-LLJ-409 (SC) is an authority to state that the power to create or abolish a post is a matter of policy. The power to create and abolish a post is invested in every employer whether the employer is a state employer or a private employer and such power should be conceded to an employer in the interest and necessity of internal administration. Creation or abolition of a post is dictated by policy decision, exigencies of circumstances and administrative necessity. The creation, continuance and abolition of posts are all decided by the employer in the interest of administration and general public if such employer happens to be a State employer and in the interest of exigencies of administration if such employer happens to be a private employer. Whether a post should be retained or abolished is essentially a matter for the Authority to decide. The abolition of a post is an executive policy decision. It is not open to the Court to go behind the wisdom of the decision and substitute its own opinion for that of the authority on the point as to whether a post should or should not be abolished. The only requirement is that the decision to abolish the post should be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post.


( 12 ) IN this case, there is no dispute between the parties that the course in Canning and Food Preservation came to be abolished in pursuance of the decision taken by the NCHM in its meeting held on 25th May, 1989. Admittedly, the respondent was appointed as Assistant instructor in Canning and Food Preservation on 5-3-1979 in Food Craft institute (Mysore) Society. Although Sri M. C. Narasimhan, in the course of arguments, would meekly contend that the action of the petitioners in abolishing the post of Assistant Instructor in Canning and Food preservation is tainted by mala fide, having gone through the pleadings of the respondent, we do not find any factual matrix in the pleadings to sustain that plea much less any proof in support of that plea. Although the power of an employer to abolish a post which might result in the holder thereof ceasing to be in service has got to be recognised, any such action, legislative or executive, taken pursuant to that power is always subject to judicial review. But the grounds of judicial review appear to have been somewhat limited and circumscribed to cases where the exercise of the power is not bona fide but is used only as a cloak or pretence to terminate the post. In N. Ramanatha Pillai's case, the hon'ble Chief Justice speaking for the Constitution Bench of the supreme Court, observed thus: ?a post may be abolished in good faith. The order abolishing the post may lose its effective character if it is established to have been made arbitrarily, mala fide or as a mask of some penal action within the meaning of Article 311 (2)". The Supreme Court in State of Haryana v Des Raj Sangar, AIR 1976 SC 1199 : (1976)2 SCC 844 : 1976-I-LLI-301 (SC) has, however, held that as long as the decision of abolishing a post is taken in good faith the same cannot be set aside by the Court and it is not open to the Court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. Furthermore, it needs to be emphasised that if an authority takes. into account relevancy and usefulness of different posts in deciding which one is to be abolished and which one is to be retained, the Court will not interfere with the decision of such authority. In taking this opinion, we are fortified by the judgment of the Supreme Court in S. S. Dhanoa v Union of India, AIR 1991 SC 1745 : (1991 )3 SCC 567 therefore, the impugned action of the petitioners in abolishing the post held by the respondent cannot be condemned as arbitrary or mala fide by applying any permissible rational test or principle. The abolition of the post was not only due to non-availability of required number of students but also due to the policy decision taken by NCHM. Therefore, we answer first point in the negative. Point No. (ii):


( 13 ) A public servant enters upon his appointment to a post on the understanding that he is entitled to hold it so long as the post is in existence and not abolished. His right, at the highest, is to continue in the post so long as the post continues but be cannot prevent a post being abolished so that he might continue in it. The severance from the post follows automatically upon the abolition of the post. Abolition of the post cannot be equated to termination of service. The supreme Court, in Parshotam Lal Dhingra v Union of India, AIR 1958 SC 36 : 1958-I-LLJ-544 (SC) speaking through S. R. Das, Chief Justice of India, indicated the proposition that abolition of post did not amount to dismissal or removal and observed thus: ?in the absence of any special contract the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him. . . . . ". (emphasis supplied) the position stated above was reiterated by the Supreme Court in Moti ram Deka v General Manager, North East Frontier Railway, AIR 1964 SC 600 : 1964-II-LLJ-467 (SC) and in Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854 : 1964-I-LLJ-752 (SC) the principle that abolition of a post does not amount to dismissal or removal has been reaffirmed by the Supreme Court and the High Courts in large number of cases including in K. Rajendran v State of Tamil Nadu, AIR 1982 SC 1107 : (1982)2 SCC 273 : 1982-II-LLJ-259 (SC) des Raj Sangar's case; Rabindra Nath Mukherjee v S. R. Das and Another, 1980-I-LLJ-315 (Cal.): 1979 (2) CLJ 333 (Cal.) and the Allahabad High Court in. P. Pandey v Kanpur University, 1996 (3) SLR 680 (All.) (DB) to cite a few.


( 14 ) THE abolition of post may have the consequence of termination of service of a public servant. Such termination is not dismissal or removal. Therefore, the opportunity of showing cause against the proposed penalty of dismissal or removal does not arise in the case of abolition of post. The abolition of post is not a personal penalty against the public servant. The right to hold a post automatically conies to an end on the abolition of the said post which a public servant holds. In that view of the matter, the respondent cannot complain of violation of principles of natural justice on the part of the appellants in abolishing the post of assistant Instructor in Canning and Food Preservation. It is well-settled that Article 311 (2) of the Constitution has no application where the post is abolished. No opportunity of hearing need be given to holder of a post which is abolished. Therefore, it logically follows that even in non-Governmental public service, there is no obligation to follow the principles of natural justice before abolishing a post. This position is also well-settled by the judgment of the Madras High Court in B. Krishnamurthy v Chairman, Madras Port Trust, 1990-II-LLJ-1245 (Mad.) and the judgment of the Bombay High Court in p. V. Naik v State of Maharashtra, 1967-II-LLJ-486 (Bom.) and the judgment of the Supreme Court in Sri Maheshwari Senior Higher secondary School v Bhika Ram Sharma, (1996)8 SCC 22 : 1996 (5) SLR 368 (SC) therefore, we answer Point no. (ii) also in the negative. Point No. (iii):


( 15 ) AT the threshold it needs to be noticed that the question whether a person who ceases to be a servant consequent upon abolition of a post should be rehabilitated by giving an alternate employment, it is trite, is a matter of policy on which the Court has no say. The Supreme Court in k. Rajendran's case, in para 34 held: ?it is no doubt true that Article 38 and Article 43 of the constitution insist that the State should endeavour to find sufficient work for the people so that they may put their capacity to work into economic use and earn a fairly good living. But these articles do not mean that everybody should be provided with a job in the civil service of the State and if a person is provided with one he should not be asked to leave it even for a just cause. If it were not so, there would be no justification for a small percentage of the population being in Government service and in receipt of regular income and a large maj

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ority of them remaining outside with no guaranteed means of living. It would certainly be an ideal state of affairs if work could be found to all the able bodied men and women and everybody is guaranteed the right to participate in the production of national wealth and to enjoy the fruits thereof. But we are today far away from that goal. The question whether a person who ceases to be a Government servant according to law should be rehabilitated by giving an alternative employment is, as the law stands today, a matter of policy on which the Court has no voice". ( 16 ) IT is the specific case of the petitioners that the respondent is not competent and does not possess the prescribed qualifications to teach the students in any other course conducted by them. Simply because the respondent does not have the same advantages in terms of pension or pensionary benefits on par with the Government employees consequent upon the abolition of the post held by her, that circumstance itself without anything further would not be a valid ground for the Court to direct rehabilitation of the respondent as a teacher in any other course irrespective of the fact whether she possesses the required educational and technical qualifications and experience to teach the students in such a course. A discretion vested in the employer to rehabilitate or accommodate the respondent in some other course cannot be converted into a duty or obligation by judicial intervention and such a power is not a part of the legitimate power of judicial review. In that view of the matter we answer Point No. (iii) also in the negative. ( 17 ) IN conclusion, with respect, we cannot sustain the impugned order of the Tribunal. Accordingly, we allow the writ petition, set aside the order of the Tribunal, dated 19th October, 2001 and dismiss T. A. No. 104 of 2000, however, with no order as to costs.
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