Rfa2298 07 23 09 2023

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RFA No. 2298 of 2007
C/W RFA.CROB No. 20 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 2298 OF 2007 (DEC)
C/W
RFA CROSS OBJECTION NO. 20 OF 2008
IN RFA NO.2298/2007
BETWEEN:
P. JAYAKIRAN,
S/O LATE SRI K.NARAYAN,
AGED ABOUT 58 YEARS,
EARLIER WORKING AS SECRETARY,
AT THE ASSOCIATION OF
PHYSICALLY HANDICAPPED,
R/AT.NO.662, 1ST CROSS, 7TH MAIN,
VIJAYA BANK LAYOUT, BILEKAHALLI,
BANNERGHATTA ROAD,
Digitally signed BANGALORE - 560 076.
by R
MANJUNATHA …APPELLANT
Location: HIGH
COURT OF (BY SRI. JAYANTH DEVAKUMAR, ADVOCATE FOR
KARNATAKA SRI. PUTTE GOWDA K., ADVOCATE)
AND:
1. THE ASSOCIATION OF PHYSICALLY

HANDICAPPED (APC) NOW KNOWN
AS ASSOCIATION OF PHYSICALLY
DISABLED (APC), HENNUR ROAD
LINGARAJAPURAM, P.O.FRAZER TOWN,
BANGALORE - 560 084.
REP.BY ITS GENERAL SECRETARY.
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RFA No. 2298 of 2007
2. MR. K.V. ARAVAMUDAN,

HON.PRESIDENT, APC,
'SRI SAILAM', 59TH 4TH MAIN,
GAVIPURAM EXTENSION,
3. MR. M.HARIDAS,
HON. VICE-PRESIDENT/TREASURER,
#601,57TH 'A' CROSS,
6TH BLOCK, RAJAJINAGAR,
4. MR. M.N.V.URS,
HON.GENERAL SECRETARY,
#286/B, 9TH MAIN ROAD,
5TH BLOCK, JAYANAGAR,
5. MR. B.R.SHIVASHANKAR,
TRUSTEE, TOOL CRAFT,4(B),
PEENYA INDUSTRIAL AREA,
PHASE-1, 2ND CROSS,
6. MS. N.S.HEMA,
TRUSTEE, #93, 17TH CROSS,
MALLESHWARAM,
7. MR.V.P.MAHENDRA,
TRUSTEE, #5, SANKEY ROAD,
8. MR. N. REGURAJ,
TRUSTEE, NTTF, 23/24, 2ND PHASE,
PEENYA INDUSTRIAL AREA,
9. MG. CDR. THOMAS VERGHESE,

TRUSTEE, #529/D, AFNAHB,
JALVAYA VIHAR, ST.THOMAS TOWN,
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RFA No. 2298 of 2007
10. MS.KAVERY NADAMANGALAM,

TRUSTEE, 17/1, VITTAL MALLYA ROAD,
BANGALORE- 560 001.
11. MS. C.K. SOMALATHA

MEMBER, #15/24,
RAMAKRISHNAPPA ROAD,
COX TOWN, BANGALORE - 560 005.
12. MR.A.P.GOKUL,
MEMBER, #63/63,
VEERAPILLAI STREET,
13. MR.S.P..MURTHY
MEMBER, #A54/1,
JEEVAN BHEEMANAGAR,
14. MR. R.M. REDDY

MEMBER, 'RAMRAJ',
#7/9, 3RD CROSS,
JAIBHARAT NAGAR,
…RESPONDENTS
(BY SRI. N.S. NARASIMHA SWAMY, ADVOCATE FOR
C/R1, R3 TO R7, R9, R11, R13 AND R14;
R2, R8, R10, R12 - NOTICE SERVED)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE

JUDGMENT AND DECREE DATED:18.06.2007 PASSED IN
O.S.NO.7145/1994 ON THE FILE OF THE III ADDL. CITY
CIVIL JUDGE, BANGALORE (CCH-25), PARTLY
DECREEING THE SUIT FOR DECLARATION AND
DIRECTION.
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RFA No. 2298 of 2007
IN RFA CROB NO.20/2008
BETWEEN:
THE ASSOCIATION OF
PHYSICALLY HANDICAPPED(APH),
HENNUR ROAD,
LINGARAJAPURAM POST,
FRAZER TOWN,
REPRESENTED BY ITS SECRETARY.
…CROSS OBJECTOR
(BY SRI. N.S. NARASIMHA SWAMY, ADVOCATE FOR
CROSS OBJECTOR)
AND:
MR.P.JAYAKIRAN,
S/O LATE K. NARAYAN,
AGED ABOUT 58 YEARS,
NO.115, ST. MICHAEL SCHOOL ROAD,
2ND CROSS, SHANTHINAGAR,
…RESPONDENT
(BY SRI. JAYANTH DEVAKUMAR, ADVOCATE FOR
SRI. PUTTE GOWDA, ADVOCATE)
THIS RFA.CROB IS FILED (IN RFA.2298/07) U/S.96

R/W U/O XLI RULE 22 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED:18.6.2007 PASSED IN
O.S.NO.7145/1994 ON THE FILE OF THE III ADDL. CITY
CIVIL JUDGE, CCH.NO.25, BANGALORE CITY, PARTLY
DECREEING THE SUIT FOR DECLARATION AND
DIRECTION.
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RFA No. 2298 of 2007
THIS APPEAL A/W RFA.CROB, COMING ON FOR HEARING,

THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These matters namely, RFA No.2298/2007 and RFA
Crob No.20/2008 are filed questioning the validity of
judgment and decree passed in O.S.No.7145/1994 dated
18.06.2007 on the file of III Addl. City Civil and Sessions
Judge, (CCH No.25) Bengaluru City.
2. Parties are referred to as plaintiff and
defendants for the sake of convenience as per their
original ranking before the Trial Court.
3. Brief facts of the case are as under:
A suit came to be filed by the plaintiff against the
defendants seeking declaration that the order bearing
No.APH/G, SEC/102, dated 26.07.1994 and
APH/G/SEC/104 dated 26.07.1994 both signed by
defendant No.4 on behalf of first defendant, are arbitrary,
illegal and without authority of law and therefore, void-ab-
initio and nonest and direct the defendants to pay

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RFA No. 2298 of 2007
compensation at the rate of Rs.7,000/- per month with
effect from 26.07.1994 including 10% enhancement on
the salary on expiry of each year and to award
consequential benefits.
4. Plaintiff claiming to be the employee of first
defendant-association by virtue of appointment letter
marked at Ex.P.11 dated 18.04.1994, joined the first
defendant-association as an Executive Secretary. He was
appointed as a Probationary Secretary by virtue of Ex.P.11
for a period of six months till 18.11.1994.
5. However, after he started discharging his
functions as an Executive Secretary, a meeting said to
have taken place in the first defendant-association and in
the meeting, it is noticed that post of Executive Secretary
is a non-sanctioned post and therefore, his appointment
needs to be cancelled forthwith. Pursuant to the same,
the appointment of the plaintiff was cancelled by recalling
Exs.P.34 and P.35 and same was communicated to the
plaintiff. Plaintiff resigned and ultimately handed over the

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charge and he was discontinued from the service on and
from 03.09.1994 as per Ex.P.35.
6. Being aggrieved with the action taken by the first
defendant-association, a legal notice was issued by the
plaintiff through his Advocate - Sri.T.S.Rajagopal vide
Ex.P.36 on 26.07.1994, which was duly replied by the first
defendant-association on 05.09.1994 vide Ex.P.67. Being,
not satisfied with the reply issued by the first defendant-
association, plaintiff has filed a suit.
7. Upon the service of suit summons, defendants
entered appearance and filed detailed written statements
denying the plaint averments in toto and sought for
dismissal of the suit.
8. Based on the rival contentions of the parties,
Trial Court raised the following issues and one additional
issue:
"1) Whether the plaintiff proves that

he has been retired from the services
of defendant no.1 by defendant no.4
illegally as contended?
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2) Whether the plaintiff proves that

the orders dated 26.7.94 issued on
behalf of defendant OS NO.
7145/199421 no.1 by defendant no.4
is without authority and bad in law
and void?
3) Whether the defendants prove the

order challenged is only a recalling
order of the earlier illegal orders as
contended?
4) Whether the plaintiff proves that he

has been removed with ulterior motive
as contended?
5) Whether the plaintiff is entitled for

the relief sought for?
6) Whether the suit as brought

without consequential relief is
maintainable in view of Sec.34 of
Specific Relief Act?
7) What order or decree?
Additional Issue
“Whether the plaintiff proves that he

is entitled for compensation at the
rate of Rs.7,000/- per month from
26.07.1994 including 10%
enhancement on the salary?"
9. In order to prove the case of plaintiff, plaintiff-
Sri.P.Jayakiran got examined himself as P.W.1 and relied

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on as many as 70 documents, which are exhibited and
marked as Exs.P.1 to Ex.P.70.
10. On behalf of defendants, Sri.M.N.V.Urs, is
examined as D.W.1, who is defendant No.4 and relied on
two documents, which are exhibited and marked as Ex.D.1
and Ex.D.2 namely, Memorandum of Association and
certified copy of the proceedings of meeting dated
01.08.1994.
11. On conclusion of recording of evidence, the
learned Trial Judge heard the parties in detail and after
considering the oral and documentary evidence placed on
record by the plaintiff and defendants in a cumulative
manner, decreed the suit of the plaintiff in part as under:
“(1) It is declared that the Order of

termination bearing No. APH/G, SEC/102
dated 26.07.1994 and APH/G/SEC/104
dated 26.07.1994 issued by the 1st
defendant–Association are illegal,
arbitrary, without authority of law, void
abinitio and nonest.
(2) The plaintiff is also entitled to

compensation at the rate of Rs.7,000/-
per month with effect from 27.06.1994 to
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till completion of probation period i.e.,

upto October 1994 with all service
benefits for which the plaintiff is entitled
during the said period.
(3) The defendant No.1-Assocaiton is

directed to pay said compensation as per
Clause-2 within six months from the date
of this order and on failure to do so, the
plaintiff is entitled to recover entire
decretal amount from the defendant
No.1-Assocaition under due process and
machinery of law.
(4) The plaintiff is also entitled for cost of

this proceedings.
(5) Draw decree accordingly.”
12. Being aggrieved by the same, plaintiff has
preferred the appeal in RFA No.2298/2007 on the
following:
GROUNDS
 That the Trial Court having come to the

conclusion that the order of termination
of the services of the appellant is illegal,
arbitrary, without authority of law, void
ab intio and non est and in the light of
the evidence that has come on record
grossly erred in restricting the
compensation to three months salary. It
is no doubt true that as per the terms of
employment the services of an employee
could be put an end to by 3 months
notice, but that would be case of non
punitive, non-stigmatic termination
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simpliciter. When the appellant was

punitively dealt with and he was thereby
stigmatized he could not get alternative
employment thereby he was condonmned
to loss of salary and emoluments which
he would have earned till the date on
which he would have retired on reaching
the age of 60 years which is the age of
superannuation.
 In Sant Raj Vs. O.P.Singla reported in

(1985) 2 SCC 349 the Hon’ble Supreme
Court held that compensation should be
equal to back wages in full for the period
of employment due to wrongful order of
termination. The wrong committed by
the employer in the present case has
resulted in unemployment of the
appellant from 26 July 1994. Under the
th
circumstances the trial court acted

contrary to law in restricting the
compensation for a period of three
months. In Chandu Lal Vs. Pan American
World Airways reported in (1985) 2 SCC
727 the Hon’ble Supreme Court held that
while determing the quantum of
compensation the Court should have
regard to the relevant factors such as
that ordinarily the employee would have
gone back into service with full back
wages and that if he was restored to
service he would have been assured of
employment for a further term till
attaining the age of superannuation. The
denial of compensation to the extent
prayed for in the plaint is contrary to this
well settled position of law and works
inequiry and injustice to the appellant.
 The Trial Court proceeded on no basis in

restricting the compensation. The denial
of full compensation is contrary to law,
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contrary to weight of evidence, contrary

to probabilities of the case and suffers
from non-application of mind and cannot
be sustained in law.”
13. The defendants have also preferred a cross
objection in respect of decreeing the suit in part on the
following grounds:
 "It is submitted that based on the

pleadings the Trial Court as framed 7
issues and one additional issue. The
issue no.1,2&4 are as follows.
 Whether the plaintiff proves that he has

been retired from the services of the
defendant no.1 by the defendant no.4
illegally as contended.
 Whether the plaintiff proves that the

orders dated 26.07.1994 issued on
behalf of defendant no.1 by the
defendant no.4 is without authority and
bad in law and void.
 Whether the plaintiff proves that he has

been removed with ulterior motive as
contended.
 It is submitted that the burden of

proving the above said issued lies upon
Appellant and the same was not proved
and on the other hand to disprove the
said issue, the cross objector takes the
shelter that the appellant was appointed
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as probationary and since there exist no

post of executive Secretary, the
withdrawal of the appointment cannot be
construed as illegal as alleged by the
appellant. It is submitted that Trial
Court has come to the conclusion that
the appellant was reporting to the
Secretary then to Board of trustees.
Since there is an admission by Dw-1 that
there was an approval from the board of
trustees to report and further there was
a termination letter and the president
has written to withdraw the said
termination letter. It is further
submitted that since as per Ex.P 44 the
trustees have approved the proposal of
Executive secretary. At this juncture it
is pertinent to note that as per the
Memorandum of association the
appointment and termination powers are
vest with the committee of management
and not with board of trustees. In the
case on hand the appointment is made
on approval of board of trustees. Hence
the appointment is bad in law. On this
ground also the appeal is liable to be
rejected.
 It is submitted that the Trial Court has

come to conclusion that the three
months notice was not issued to
appellant. In this aspect it is submitted
that when the appointment itself is void
ab-initio, the question of giving three
months notice does not arise. This
aspect of matter was not properly
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analyzed by the Trial Court. On this

ground also the appeal is liable to be
rejected. It is submitted that when the
appellant had received the cheque as full
and final settlement, the question any
act as illegal does not arise. On this
ground also the appeal is liable to
rejected.

come to wrong conclusion that the
termination is wrong on the ground that
no notice was issued and no records to
show that the act was blemishing and no
explanation called for from the appellant
to terminate even though a letter like
memo or explanation to terminate the
services hence the termination is illegal.
It is submitted that as already stated
that the appointment itself is bad
because the appointment was not made
in accordance with the by law of
constitution of association by the
committee of management and the
same is made by the board of trustee
hence the appointment is a mistake and
not proper. It is submitted that when
the appointment itself is void ab-initio,
the question of issuance of notice does
not arises. It is further submitted that
the cancellation was made in view of no
such post exists and further the cross
objector has not casted any stigma
against the appellant or no allegation is
made against him and the cancellation is
not made by casting any stigma. It is
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submitted that when the appointment is

void ab-initio, the question of calling for
explanation issuance of memo or show
cause notice does not arise. The Trial
Court has failed to appreciate all the
above facts and wrongly granted the
relief. On this ground also the appeal is
liable to be rejected and cross objection
is liable to allowed.
 It is submitted that the Trial Court in its

judgment in para 17 has discussed that
the appointment and termination powers
are vest with committee of management
and inspite of that it has come to wrong
conclusion that the termination was not
made on the approval of committee of
management. It is pertinent to note
that the appointment was also not made
by the committee of management. It is
submitted that after termination, the
same was ratified by the committee of
management. Hence the observation
made by the court below is wrong and
the appeal is liable to be rejected.

erroneously come to the conclusion that
referring to Ex.P11 and Ex-44 on the
ground that there was ample power to
appoint appellant and hence it is proper.
It is submitted that the learned judge
failed to appreciate the fact that there
was no justification indicated in that
letter and further it clearly; establishes
the earlier contention that appointment
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was made by board of trustees and not

committee of management as per the by
law. On this ground also the appeal is
liable to be rejected.

wrongly come to the conclusion that the
Ex-D2 i.e. Minutes of meeting conducted
by the committee of management does
not disclose that it was approved by
majority of people and further president
even though he was present he did not
indicate his view. It is submitted that
out 13 members present, 9 members
supported the action of the secretary ad
three of them opposed. When the
majority of people accepted that the
termination is proper, the Trial Court has
come to wrong conclusion. It is
submitted that the non expression
president does not vitiate the meeting
action hence the findings of trial court is
not correct. On this ground also the
appeal is liable to rejected.
 Issue No.3 is casted upon defendant as

Whether the defendants prove the order
challenged is only a recalling order of the
earlier order as contended? It is
submitted that the Trial Court has
wrongly come to the conclusion that the
said issue was not proved on the ground
that Defendant no.4 who terminated the
appellant was the party to appointment
and Ex-D2 which is a copy of minutes of
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meeting is not free from the doubt by

considering the act of Defendant no.4
and further when the president has
issued letter to take back the appellant
based on the above contension the Trial
Court answered the said issued against
to the cross objector. It is submitted
that Ex-D2 was the ratification made in
minutes of meeting by the committee of
management and further in the absence
of dispute about that document by the
appellant, the Court below only on
assumption and presumption gave a
wrong finding. On this ground also the
appeal is liable to be rejected.
 Issue No.6: Whether the suit as brought

without consequential relief is
maintainable in view of section 34 of
specific Relief Act? It is submitted that
the learned judge has wrongly come to
the conclusion that the suit is
maintainable and judgments referred by
the cross objection is not applicable. It
is submitted that the learned judge has
wrongly misconstrued the said
judgments and wrongly given the
findings. On this ground also the appeal
is liable to be rejected.
 Issue No.5 and additional issue Whether

plaintiff is entitle for relief sought for?
And whether the plaintiff proves that he
is entitle for compensation at the rate of
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Rs.7,000/- pm from 26.7.1994 including

10% enhancement on the salary?

wrongly come to the conclusion that
since the termination is illegal and hence
the appellant is entitle for the salary up
to completion of period of probationary.
It is submitted that as already stated the
Trial Court failed to appreciate the
grounds urged before the Trial Court
that the cancellation is correct and
justified and inspite of the court below
declared the said act is illegal and void.
It is submitted that the cross objector
has relied upon no. of judgments to
substantiate that the cancellation is
correct and appellant was on probation
and hence he is not entitle for any relief.
But unfortunately the court below
misread the judgment and gave
erroneous finding. On this ground also
the appeal is liable to be rejected and
cross objection is liable to allowed.
 16. 17. The cross objection is in time."
14. Sri.Jayanth Devkumar, learned counsel for the
appellant representing Sri.Putte Gowda K. vehemently
contended that the dismissal of the plaintiff from the first
defendant-association is totally illegal and he was entitled

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to the compensation at the rate of Rs.7,000/- per month
till he got a gainful employment in the year 2010 and
therefore, sought for allowing the appeal.
15. He also argued that Trial Court not granting the
wages till the plaintiff got gainfully employed, is thus acted
as illegal and sought for allowing the appeal.
16. In support of his arguments, he has relied on
following judgments wherein it is held as under:
(i) In AIR 1964 SC 449: Jagdish Mitter Vs.

Union of Indian,
9. It is also now settled that the

protection of Art. 311 can be invoked not
only by permanent public servants, but
also by public servants who are employed
as temporary servants or probationers,
(vide Parshotam Lal Dhingra’s case, 1958
SCR 828: (AIR 1958 SC 36) (p. 858 of
SCR): (at p. 48 of AIR) and so, there can
be no difficulty in holding that if a
temporary public servant or a probationer
is served with an order by which his
services are terminated, and the order
unambiguously indicates that the said
termination is the result of punishment
sought to be imposed on him, he can
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legitimately invoke the protection of Art.

311 and challenge the validity of the said
termination on the ground that the
mandatory provisions of Art. 311(2) have
not been complied with. In other words, a
temporary public servant or a probationer
cannot be dismissed or removed from
service without affording him the
protection guaranteed by Art. 311(2).
13. But since considerations of
motive operating in the mind of the
authority have to be eliminated in
determining the character of the
termination of services of a temporary
servant, it must be emphasized that the
form in which the order terminating his
services is expressed will not be decisive.
If a formal departmental enquiry has been
held in which findings have been recorded
against the temporary servant and, as a
result of the said findings, his services are
terminated, the fact that the order by
which his services are terminated,
ostensibly purports, to be a mere order of
discharge would not disguise the fact that
in substance and in law the discharge in
question amounts to the dismissal of the
temporary servant. That is why the form
of the order is inconclusive; it is the
substance of the matter which determines
the character of the termination of
services. In dealing with this aspect of the
matter, we must bear in mind that the
real character of the termination of
services must be determined by reference
to the material facts that existed prior to
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the order. Take a case where a temporary

servant attacks the validity of his
discharge on the ground of mala fides on
the part of the authority. If in resisting the
plea of mala fides the authority refers to
certain facts justifying the order of
discharge and these facts relate to the
misconduct, negligence or inefficiency of
the said servant, it cannot logically be said
that in view of the plea thus made by the
authority long after the order of discharge,
it should be held that the order of
discharge was the result of the
consideration set out in the said plea.
What the Court will have to examine in
each case would be, having regard to the
material facts existing up to the time of
discharge, is the order of discharge in
substance one of dismissal? If the answer
is that notwithstanding the form which the
order took, the appointing authority, in
substance, really dismissed the temporary
public servant, Art.311 would be
attracted.
(ii) In (2000) 5 SCC 152: Chandra Prakash
Shahi Vs. State of U.P. and Others.
12. Now, it is well-settled that the

temporary Government servants or
probationers are as much entitled to the
protection of Article 311(2) of the
Constitution as the permanent employees
despite the fact that temporary
government servants have no right to hold
the post and their services are liable to be
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terminated at any time by giving them a

month's notice without assigning any
reason either in terms of the contract of
service or under the relevant statutory
rules regulating the terms and conditions
of such service. The courts can, therefore,
lift the veil of an innocuously-worded
order to look at the real face of the order
and to find out whether it is as innocent as
worded. (See: Parshotam Lal Dhingra vs.
Union of India). It was explained in this
decision that inefficiency, negligence or
misconduct may have been the factors for
inducing the Government to terminate the
services of a temporary employee under
the terms of the contract or under the
statutory Service Rules regulating the
terms and conditions of service which, to
put it differently, may have been the
motive for terminating the services but
the motive by itself does not make the
order punitive unless the order was
"founded" on those factors or other
disqualifications.
28. The important principles which
are deducible on the concept of "motive"
and "foundation", concerning a
probationer, are that a probationer has no
right to hold the post and his services can
be terminated at any time during or at the
end of the period of probation on account
of general unsuitability for the post in
question. If for the determination of
suitability of the probationer for the post
in question or for his further retention in
service or for confirmation, an inquiry is
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held and it is on the basis of that inquiry

that a decision is taken to terminate his
service, the order will not be punitive in
nature. But, if there are allegations of
misconduct and an enquiry is held to find
out the truth of that misconduct and an
order terminating the service is passed on
the basis of that enquiry, the order would
be punitive in nature as the enquiry was
held not for assessing the general
suitability of the employee for the post in
question, but to find out the truth of
allegations of misconduct against that
employee. In this situation, the order
would be founded on misconduct and it
will not be a mere matter of "motive".
29. "Motive" is the moving power
which impels action for a definite result, or
to put it differently, "motive" is that which
incites or stimulates a person to do an act.
An order terminating the services of an
employee is an act done by the employer.
What is that factor which impelled the
employer to take this action? If it was the
factor of general unsuitability of the
employee for the post held by him, the
action would be upheld in law. If,
however, there were allegations of serious
misconduct against the employee and a
preliminary enquiry is held behind his back
to ascertain the truth of those allegations
and a termination order is passed
thereafter, the order, having regard to
other circumstances, would be founded on
the allegations of misconduct which were
found to be true in the preliminary inquiry.
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(iii) In (2012) 13 SCC 182: Pradip Kumar Vs.
Union of Indian and Other,
19. This now brings us to the appeal

arising out of Special Leave Petition
No.27821 of 2012 filed by Pradip Kumar
claiming the relief of reinstatement and for
the grant of consequential benefits
including full back wages. Although, the
High Court had allowed the writ petition of
the respondent only on the ground that
there had been a violation of Rule 9(2), we
have come to a conclusion that the order of
discharge was vitiated being colourable
exercise of power, stigmatic and punitive in
nature and such order cannot be sustained
in law. In our opinion, the order of
discharge is arbitrary and therefore violates
Article 14 of the Constitution.
Consequently, we hold that the appellant
Pradip Kumar is entitled to be reinstated in
service. He shall be entitled to full back
wages during the period he has been
compelled to remain out of service. The
union of Indian is directed to release all
consequential benefits to the said Pradip
Kumar within a period of two months of the
receipt of a certified copy of this order.
(iv) In AIR 1966 SC 1051: The management of
Utkal Machinery Ltd. Vs. Workman

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5. We shall, however, assume in

favour of the appellant that the respondent
was appointed on December 9, 1961, on
probation for a period of 6 months and it
was stipulated in the contract that during
the probationary period the services of the
respondent could be terminated without
notice and without assigning any reason. In
other words, the management had the
contractual right to terminate the services
of the respondent without assigning any
reason therefor. But if the validity of the
termination is challenged in an industrial
adjudication, it would be competent to the
Industrial Tribunal to enquire whether the
order of termination has been effected in
the bona fide exercise of its power
conferred by the contract. If the discharge
of the employee, has been ordered by the
management in bona fide exercise of its
power, the Industrial Tribunal will not
interfere with it, but it is open to the
Industrial Tribunal to consider whether the
order of termination is mala fide or
whether it amounts to victimisation of the
employee or an unfair labour practice or is
so capricious or unreasonable as would
lead to the inference that it has been
passed for ulterior motives and not in bona
fide exercise of the power arising out of the
contract. In such a case it is open to the
Industrial Tribunal to interfere with the
order of the management and to afford
proper relief to the employee. This view is
borne out by the decision of this Court in
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Assam Oil Co. Ltd. v. Its workmen, (1960)

1 Lab LJ 587; (AIR 1960 SC 1264).
7. It was next submitted on behalf of
the appellant that the amount of
compensation awarded to the respondent
was exorbitant. It was pointed out that the
respondent had worked for an actual period
of less than 5 months but she had been
awarded compensation of two years'
salary. We think there is some substance
in this criticism The Labour Court has relied
upon the decision of this Court in Assam Oil
Co, Ltd. v. Its workmen(1960) 1 Lab LJ
587; (AIR 1960 SC 1264), but the material
facts of that case were different from those
in the present case. In that case the
aggrieved employee, Miss Scott was in the
employment of the Assam Oil Co. Ltd. for
about two years before the termination of
her services. It also appears that Miss
Scott was in the service of Burmah-Shell as
a lady Secretary before she entered the
service of Assam Oil Co. in October, 1954.
It is also important to notice that the
amount of compensation in that case was
fixed on a concession of the Solicitor-
General who appeared on behalf of the
Assam Oil Co. In the present Case, the
respondent did not give up any previous
job in order to take service under the
appellant. She had worked for a period of
about 5 months with the appellant. Her
appointment with the appellant was
somewhat unusual because it was made on
the recommendation of Sri B. Patnaik, the
then Chief Minister of Orissa. There are no
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special circumstances for awarding

compensation equal to two years' salary.
Having regard to these considerations we
are of opinion that the amount of
compensation awarded by the Labour Court
to the respondent should be reduced and
the respondent should be granted a sum of
Rs. 4,800 as compensation. She should
also be paid 6 percent interest from the
date of order of the Labour Court till the
date of payment.
(v) In 1973 3 SCC 597: State of Mysore Vs. P.R.
Kulkarni and Others.
"6. The High Court had also held that

proved facts supported the assertions
made on behalf of the respondents that the
real object of the reversion was to make
available vacancies thus caused in the
posts of officiating Wireless Operators in
the Bombay cadre to other employees who
subsequently, secured these posts
although they had obtained lower marks
than the petitioners and were junior to the
petitioners as Wireless Operators. Even if
this was not the real object, but, as the
Mysore High Court also concluded from the
assertions made in the affidavit before it,
the reversion orders against the
respondents were based merely on a
misapprehension of the purposes and the
effect of the Act, such a misapprehension
could not provide a reasonable or valid
ground for the reversion. The High Court
could and did hold that the power of
reversion was not utilised for a purpose for
which it could properly be said to have
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been meant. The exercise of every power,

whatever its nature, lodged in Government
authorities, is controlled by the need to
confine it to the ambit within which it could
justly and reasonably be expected to take
place. A power used under the mis-
apprehension that it was needed for
effectuating a purpose, which was really
outside the law or the proper scope of the
power, could be said to be an exercise for
an extraneous or collateral purpose.
7. It was objected that the High

Court of Mysore had erroneously
characterised such a use of the power of
reversion as a "misuse of power" which
"invited the criticism" that it was an
"artifice" to eliminate the respondents from
the field of officiating operators in order
that others left in the State of Bombay
might get their places. In other words, the
reversion orders may have sprung from an
oblique motive in addition to having
resulted from the misapprehension that
officers on the constabulary of certain
District had necessarily to be allocated to
Mysore and that officials of the Bombay
State could gauge the needs of the Mysore
State. Learned Counsel for the State of
Mysore has not been able to show us that
the findings of the Mysore High Court,
which meant that the power of reversion
had been used for a purpose for which it
could not have been intended, were
erroneous. "Misuse of Power" or mis-
application of power or a "Detournement
de Puvoir" (as it is called in Branch
Administrative Law), are terms correctly
employed to describe the use of a power in
this illegal fashion. It was not necessary for
the respondents to go so far as to establish
that such misuse took place with the
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deliberate object of benefiting others at the

expense of the respondents, although
learned judges of the High Court were
inclined to hold, not without good reasons,
that such an object may also be there. It
was enough to prove, as the respondents
succeeded in doing, that the power or
reversion was used for a collateral or
legally extraneous purpose.
(vi) In (1980) 2 SCC 471: State of Punjab and
Another Vs. Gurdial Singh and Others.
"9. The question, then, is what is

mala fides in the jurisprudence of power?
Legal malice is gibberish unless juristic
clarity keeps it separate from the popular
concept of personal vice. Pithily put, bad
faith which invalidates the exercise of
power-sometimes called colourable
exercise or fraud on power and oftentimes
overlaps motives, passions and
satisfactions-is the attainment of ends
beyond the sanctioned purposes of power
by simulation or pretension of gaining a
legitimate goal. If the use of the power is
for the fulfilment of a legitimate object the
actuation or catalysation by malice is not
legicidal. The action is bad where the true
object is to reach an end different from the
one for which the power is entrusted,
goaded by extraneous considerations, good
or bad, but irrelevant to the entrustment.
When the custodian of power is influenced
in its exercise by considerations outside
those for promotion of which the power is
vested the court calls it a colourable
exercise and is undeceived by illusion. In a
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broad, blurred sense, Benjamin Disraeli

was not off the mark even in Law when he
stated: "I repeat...that all power is a trust-
that we are accountable for its exercise-
that, from the people, and for the people,
all springs, and all must exist". Fraud on
power voids the order if it is not exercised
bona fide for the end designed. Fraud in
this context is not equal to moral turpitude
and embraces all cases in which the action
impugned is to effect some object which is
beyond the purpose and intent of the
power, whether this be malice-laden or
even benign. If the purpose is corrupt the
resultant act is bad. If considerations,
foreign to the scope of the power or
extraneous to the statute, enter the verdict
or impel the action, mala fides or fraud on
power, vitiates the acquisition or other
official act."
(vii) In (1984) 4 SCC 635: Rajinder Kumar
Kindra Vs. Delhi Administration and Others.
"21. It was next contended on behalf

of the appellant that reinstatement with full
back-wages be awarded to him. Mr. P.K.
Jain, learned counsel for the employer
countered urging that there is evidence to
show that the appellant was gainfully
employed since the termination of service
and therefore he was not entitled to back
wages. In support of this submission Mr.
Jain pointed out that the appellant in his
cross-examination has admitted that
during his forced absence from
employment since the date of termination
of his service, he was maintaining his
family by helping his father-in-law Tara
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Chand who owns a coal depot, and that he

and the members of his family lived with
his father-in-law and that he had no
alternative source of maintenance. If this is
gainful employment, the employer can
contend that the dismissed employee in
order to keep his body and soul, together
had taken to begging and that would as
well be a gainful employment. The gross
perversity with which the employer had
approached this case has left us stunned. If
the employer after an utterly unsustainable
termination order of service wants to deny
back-wages on the ground that the
appellant and the members of his family
were staying with the father-in-law of the
appellant as there was no alternative
source of maintenance and during this
period appellant was helping his father-in-
law Tara Chand who had a coal-depot, it
cannot be said that the appellant was
gainfully employed. This was the only
evidence in support of the submission that
during his forced absence from service he
was gainfully employed. This cannot be
said to be gainful employment so as to
reject the claim for back wages. There is
no evidence on the record to show that the
appellant was gainfully employed during
the period of his absence from service.
Therefore, the appellant would be entitled
to full back wages and all consequential
benefits."
(viii) In (2007) 11 SCC 447: Kusheshwar
Prasad Singh Vs. State of Bihar and Others.
"14. In this connection, our attention

has been invited by the learned counsel for
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the appellant to a decision of this Court in

Mrutunjay Pani v. Narmada Bala Sasmal
wherein it was held by this Court that
where an obligation is cast on a party and
he commits a breach of such obligation, he
cannot be permitted to take advantage of
such situation. This is based on the Latin
maxim Commodum ex injuria sua nemo
habere debet (no party can take undue
advantage of his own wrong).
15. In Union of India & Ors. v.

Major General Madan Lal Yadav the
accused army personnel himself was
responsible for delay as he escaped from
detention. Then he raised an objection
against initiation of proceedings on the
ground that such proceedings ought to
have been initiated within six months
under the Army Act, 1950. Referring to the
above maxim, this Court held that the
accused could not take undue advantage of
his own wrong. Considering the relevant
provisions of the Act, the Court held that
presence of the accused was an essential
condition for the commencement of trial
and when the accused did not make
himself available, he could not be allowed
to raise a contention that proceedings were
time-barred. This Court referred to Broom's
Legal Maxims (10th Edn.) p. 191 wherein it
was stated;
" It is a maxim of law, recognised

and established, that no man shall take
advantage of his own wrong; and this
maxim, which is based on elementary
principles, is fully recognised in Courts of
law and of equity, and, indeed, admits of
illustration from every branch of legal
procedure".
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(ix) In (1991) 4 SCC 109: Union of India and
Others Vs. K. V. Jankiraman and Others.
"24. It was further contended on

their behalf that the normal rule is "no
work no pay". Hence a person cannot be
allowed to draw the benefits of a post the
duties of which he has not discharged. To
allow him to do so is against the
elementary rule that a person is to be paid
only for the work he bas done and not for
the work he has not done. As against this,
it was pointed out on behalf of the
concerned employees, that on many
occasions even frivolous proceedings are
instituted at the instance of interested
persons, sometimes with a specific object
of denying the promotion due, and the
employee concerned is made to suffer
both mental agony and privations which
are multiplied when he is also placed
Under suspension. When, therefore, at the
end of such sufferings, he comes out with
a clean bill, he has to be restored to all
the benefits from which he was kept away
unjustly.
25. We are not much impressed by

the contentions advanced on behalf of the
authorities. The normal rule of "no work
no pay" is not applicable to cases such as
the present one where the employee
although he is willing to work is kept away
from work by the authorities for no fault of
his. This is not a case where the employee
remains away from work for his own
reasons, although the work is offered to
him. It is for this reason that F.R. 17(1)
will also be inapplicable to such cases.
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26. We are, therefore, broadly in

agreement with the finding of the Tribunal
that when an employee is completely
exonerated meaning thereby that he is not
found blameworthy in the least and is not
visited with the penalty even of censure,
he has to be given the benefit of the
salary of the higher post along with the
other benefits from the date on which he
would have normally been promoted but
for the disciplinary/ criminal proceedings.
However, there may be cases where the
proceedings, whether disciplinary or
criminal, are, for example, delayd at the
instance of the employee or the clearance
in the disciplinary proceedings or acquittal
in the criminal proceedings is with benefit
of doubt or on account of non-availability
of evidence due to the acts attributable to
the employee etc. In such circumstances,
the concerned authorities must be vested
with the power to decide whether the
employee at all deserves any salary for
the intervening period and if he does, the
extent to which he deserves it. Life being
complex, it is not possible to anticipate
and enumerate exhaustively all the
circumstances under which such
consideration may become necessary. To
ignore, however, such circumstances
when they exist and lay down' an
inflexible rule that in every case when an
employee is exonerated in disciplinary/
criminal proceedings he should be entitled
to all salary for the intervening period is to
undermine discipline in the administration
and jeopardise public interests. We are,
therefore, unable to agree with the
Tribunal that to deny the salary to an
employee would in all circumstances be
illegal. While, therefore, we do not ap-
prove of the said last sentence in the first
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sub-paragraph after clause (iii) of

paragraph 3 of the said Memorandum,
viz.. "but no arrears of pay shall be
payable to him for the period of notional
promotion preceding the date of actual
promotion", we direct that in place of the
said sentence the following sentence be
read in the Memorandum:
"However, whether the officer

concerned will be entitled to any arrears of
pay for the period of notional promotion
preceding the date of actual promotion,
and if so to what extent, will be decided
by the concerned authority by taking into
consideration all the facts and
circumstances of the disciplinary
proceeding/criminal prosecution. Where
the authority denies arrears of salary or
part of it, it will record its reasons for
doing so."
17. Per contra, while opposing the grounds of the
appeal, Sri.N.S.Narasimha Swamy, learned counsel for the
respondent Nos.3 to 7 contended that the plaintiff was not
dismissed from the service and he was discharged from
the service as he was a probationer.
18. He also pointed out that discharge letter marked
at Ex.P.33 dated 26.07.1994 on bare perusal would go to
show that it is a discharge simpliciter on account of

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technical reasons that were discussed in the meeting and
in pursuance of the resolution marked at Ex.D.2.
19. He further argued that since the plaintiff was
only a probationary employee, no rights whatsoever has
accrued to him so as to lay a claim as is claimed by him in
the plaint. Ex.P.33 being non stigmatic in nature, did not
affect the career of the plaintiff to any extent so as to
make a ground for seeking damages in the form of
monthly salary till plaintiff got a gainful employment
elsewhere and therefore, claim of plaintiff needs to
rejected in toto by allowing cross objections.
20. He also pointed out that while handing over the
charge of the post of Executive Secretary by the plaintiff
to the first defendant-association, plaintiff has
acknowledged that all the dues payable by the first
defendant-association has been received by him vide
Ex.P.35. Therefore, claims of plaintiff are illusionary and
moon shine in nature and therefore, sought for dismissal
of the appeal and allow the cross objections.

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21. In support of his arguments, he has relied on
following judgments, wherein it is held as under:
(i) Reported in MANU/SC/0974/2023: The
state of Punjab and Others Vs. Jaswant Singh.
" 18. In view of the principles as

reiterated in various judgments by this
Court, if we examine the facts of the case in
hand leading to the order of discharge, then
it is crystal clear that respondent-plaintiff
was appointed as a constable and joined the
duties on 12.11.1989 on probation. During
probation, while he was on training, he
along with other trainee constables was
deputed for law and order duty in Amritsar
District on 24.11.1990. Respondent-plaintiff
and other recruits were relieved from the
said duty and reported back at the Training
Centre, except respondent-plaintiff, who
remained on prolonged absence without any
intimation to the Training Centre. The S.P.,
Training Centre, vide memorandum dated
21.02.1991, made a recommendation to
S.S.P. that the respondent-plaintiff had not
shown any interest in the training and lacks
sense of responsibility, further
recommending that he is unlikely to prove
himself as a good and efficient police officer,
hence, he may be discharged under Rule
12.21 of PPR. From perusal of the said Rule,
it is apparent that in case a probationary
constable is found unlikely to prove an
efficient police officer, he may be
discharged by the Senior Superintendent of
Police at any time within three years from
the date of enrolment. The S.S.P. relying
upon the recommendation of the
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supervising officer (S.P., Training Centre)

formed an opinion that the probationary
constable is found unlikely to prove an
efficient police officer owing to his
demeanour as reported and discussed
herein above.
20. Similarly, in the case of Amar Kumar

(supra), wherein the Court found that the
appellant therein had instigated to do
commotion/agitation/protest and also raised
slogans by spreading false rumours in
connection with the death of one of the
trainees, which was the foundation to pass
the order for termination. Thus, in the said
case, the Court was of the opinion that the
order of termination cannot be simpliciter.
In both the cases as referred above, the
allegation of serious misconduct is common,
unlike in the instant case, wherein, the
foundation of discharge is not on any
serious allegation or act of misconduct. The
discharge order was passed on the
recommendation of the concerned
supervisory authority of the Training Centre
due to prolonged absence from training
without any intimation. The authority found
that the probationer constable has no
interest in training, and no sense of
responsibility, hence, he cannot prove
himself a good, efficient police officer. In
view of above discussion, both the referred
cases are distinguishable on facts.
21. For the reasons discussed above, we

are of the considered opinion that the view
taken by the High Court and also by the two
18 courts below is completely erroneous in
law and must be set-aside. The appeals are
accordingly allowed. The judgments and
decree passed by the High Court and also
by the first appellate Court and Civil Judge
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(Jr. Division) are set-aside, and the suit

filed by the respondent-plaintiff shall stand
dismissed. No order as to costs."
(ii) Reported in MANU/SC/1341/1997: Life
Insurance Corporation of Indian and Others Vs.
Raghavendra Seshagiri Rao Kulkarni.
“The period of probation is a period

of test during which the work and conduct
of an employee is under scrutiny. If on an
assessment of his work and conduct during
this period it is found that he was not
suitable for the post it would be open to the
employer to terminate his services. His
services can not be equated with that of a
permanent employee who, on account of his
status, is entitled to be retained in service
and his services cannot be terminated
abruptly without any notice or plausible
cause. This is based on the principle that a
substantive appointment to a permanent
post in a public service confers substantive
right to the post and the person appointed
on that post becomes entitled to hold a lien
on the post. He gets the right to continue
on the post till he attains the age of
superannuation or is dismissed or removed
from service for misconduct etc. after
disciplinary proceedings in accordance with
the Rules at which he is given a fair and
reasonable opportunity of being heard. He
may also come to lose the post on
compulsory retirement."
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(iii) Reported in MANU/SC/0470/2010: Khazia
Mohammed Muzammil Vs. The State of Karnataka
and Others.
"26. A large number of authorities

were cited before us by both the parties.
However, it is not necessary to go into the
details of all those cases for the simple
reason that sub-rule (4) of Rule 5 of the
Rules is in pari materia with the Rule which
was under consideration in the case of
State of Maharashtra v. Veerappa R Saboji
(1979) 4 SCC 466 and we find that even if
the period of two years expires and the
probationer is allowed to continue after a
period of two years, automatic
confirmation cannot be claimed as a matter
of right because in terms of the Rules,
work has to be satisfactory which is a
prerequisite or precondition for
confirmation and, therefore, even if the
probationer is allowed to continue beyond
the period of two years as mentioned in
the Rule, there is no question of deemed
confirmation. The language of the Rule
itself excludes any chance of giving
deemed or automatic confirmation because
the confirmation is to be ordered if there is
a vacancy and if the work is found to be
satisfactory. There is no question of
confirmation and, therefore, deemed
confirmation, in the light of the language of
this Rule, is ruled out. We are, therefore,
of the opinion that the argument advanced
by learned counsel for the respondent on
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this aspect has no merits and no leg to

stand. The learned Single Judge and the
learned Judges of the Division Bench have
rightly come to the conclusion that there is
no automatic confirmation on the expiry of
the period of two years and on the expiry
of the said period of two years, the
confirmation order can be passed only if
there is vacancy and the work is found to
be satisfactory. The Rule also does not say
that the two years' period of probation, as
mentioned in the Rule, is the maximum
period of probation and the probation
cannot be extended beyond the period of
two years. We are, therefore, of the
opinion that there is no question of
automatic or deemed confirmation, as
contended by the learned counsel for the
respondent. We, therefore, answer this
issue in the negative and against the
respondent.
19. Reverting back to the Rules of the

present case it is clear that Rule 3, unlike
other Rules which have been referred in
different cases, contains negative command
that the period of probation shall not be less
than two years. This period could be
extended by the competent authority for
half of the period of probation by a specific
order. But on satisfactory completion of the
probation period, the authorities shall have
to consider suitability of the probationer to
hold the post to which he was appointed. If
he is found to be suitable then as soon as
possible order is to be issued in terms of
Rule 5(1)(a). On the other hand, if he is
found to be unsuitable or has not passed
the requisite examination and unless an
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order of extension of probation period is

passed by the competent authority in
exercise of its power under Rule 4, then it
shall discharge the probationer from service
in terms of Rule 5 (1)(b). At this juncture
Entry 2 of schedule under Rule 2 of 1983
Rules would come into play as it is a
mandatory requirement that the probationer
should complete his judicial training. Unless
such training was completed no certificate
of satisfactory completion of probation
period could be issued. Obviously, power is
vested with the appropriate authority to
extend the probation period and in
alternative to discharge him from service.
The option is to be exercised by the
authorities but emphasis has been applied
by the framers on the expression às soon
as possible' they should pass the order and
not keep the matters in abeyance for
indefinite period or for years together. The
language of Rule 5(2) is a clear indication of
the intent of the framers that the concept of
deeming confirmation could not be attracted
in the present case. This Rule is preceded
by the powers vested with the authorities
under Rules 4 and 5(1) respectively. This
Rule mandates that a probationer shall not
be deemed to have satisfactorily completed
the probation unless a specific order to that
effect is passed. The Rule does not stop at
that but further more specifically states that
any delay in issuance of order shall not
entitle the probationer to be deemed to
have satisfactorily completed his probation.
Thus, use of unambiguous language clearly
demonstrates that the fiction of deeming
confirmation, if permitted to operate, it
would entirely frustrate the very purpose of
these Rules. On the ground of unsuitability,
despite what is contained in Rule 5, the
competent authority is empowered to
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discharge the probationer at any time on

account of his unsuitability for the service
post. That discharge has to be simplicitor
without causing a stigma upon the
concerned probationer. In our view, it is
difficult for the Court to bring the present
case within the class of cases, where
`deemed confirmation' or principle of
àutomatic confirmation' can be judiciously
applied. The 1977 Rules are quite different
to the Rules in some of the other mentioned
cases. The 1977 Rules do not contain any
provision which places a ceiling to the
maximum period of probation, for example,
the probation period shall not be extended
beyond a period of two years. On the
contrary, a clear distinction is visible in
these Rules as it is stated that probation
period shall not be less than two years and
can be extended by the authority by such
period not exceeding half the period. The
negative expression is for half the period
and not the maximum period totally to be
put together by adding to the initial period
of probation and to extended period. Even
if, for the sake of argument, we assume
that this period is of three years, then in
view of the language of Rules 5 (1) and 5(2)
there cannot be automatic confirmation, a
definite act on the part of the authority is
contemplated. The act is not a mere
formality but a mandatory requirement
which has to be completed by due
application of mind. The suitability or
unsuitability, as the case may be, has to be
recorded by the authority after due
application of mind and once it comes to
such a decision the other requirement is
that a specific order in that behalf has to be
issued and unless such an order is issued it
will be presumed that there shall not be
satisfactorily completion of probation
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RFA No. 2298 of 2007
period. The Rules, being specific and

admitting no ambiguity , must be construed
on their plain language to mean that the
concept of `deemed confirmation' or
àutomatic confirmation' cannot be applied
in the present case.
22. As an alternate submission, learned counsel for
respondent/cross objector contended that the Trial Court
by directing three months salary to be paid at the rate of
Rs.11,000/- per month with interest, is thus illegal.
Nevertheless, in order to show the prudence and bonafide
nature of first defendant-association, without prejudice to
the rights to be canvassed in the present cross objection,
first defendant-association has deposited a sum of
Rs.29,516/- denoting three months salary with accrued
interest till 18.12.2007 before the Trial Court and
therefore, this Court may take note of the same and allow
the cross objection and direct the deposited amount to be
returned to the first defendant-association.
23. In reply, Sri.Jayanth Devkumar, learned counsel
for the appellant contended that even though, on bare
reading of Ex.P.33 would depict that it is non stigmatic in

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RFA No. 2298 of 2007
nature, but same needs to be viewed from the background
of what transpired in the first defendant-association till
plaintiff handed over the charge to first defendant-
association. He further contended that plaintiff exposed
the illegalities committed by the first defendant-
association and therefore, as a vindictive attitude, Ex.P.33
came to be issued and therefore, the appeal has to be
allowed.
24. In view of the rival contentions of the parties,
this Court perused the material on record meticulously.
On such perusal of the material on record, following points
arise for consideration:
1. Whether plaintiff made out a case that his

discharge by the first defendant-association
is illegal and he is entitled for the damages
at the rate of Rs.7,000/- per month from
the date of his discharge till he got gainfully
employed in the year 2010?
2. Whether the plaintiff makes out a case that

in addition to direction by the learned Trial
Judge (to pay three months salary at the
rate of Rs.7,000/- per month with interest
at the rate of 10%p.a.) plaintiff is also
entitled for the compensation with effect
from 27.06.1994 till 2010?
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RFA No. 2298 of 2007
3. Whether the cross objector makes out a

case that impugned judgment in declaring
the letter dated 26.07.1994 is illegal and
directing the payment of Rs.7,000/- per
month with interest from 27.06.1994 till
October is incorrect?
4. Whether the impugned judgment is

suffering from any legal perversity or thus
calls for interference?
5. What order?
RE. POINT NOS.1 TO 4:
25. In the case on hand, on perusal of the material
on record both oral and documentary evidence placed by
the parties, the following admitted points would emerge:
 First defendant-association sent a

communication to the plaintiff for the
post of executive secretary.
 After completing the formalities, plaintiff

was appointed as Executive Secretary
on and from 18.04.1994 for a period of
six months as a probationer.
 By dated 26.07.1994 (Ex.P.33) plaintiff

was informed that his appointment
stands cancelled with immediate effect.
 Plaintiff handed over the charge of

Executive Secretary in pursuance of
Ex.P.33 vide Ex.P.35 dated 03.09.1994
and he was paid a sum of Rs.6,095/- as
the full and final settlement. However,
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RFA No. 2298 of 2007
the plaintiff did not accept sum of

Rs.6,095/-.
 Exchange of legal notices.
26. From the material on record, following disputed
facts are noted:
 Plaintiff claiming that his removal

from the post of Executive Secretary
is whimsical, vindictive and without
there being any basis.
 Plaintiff being the probationer was

entitled to be discharged by the first
defendant- association without
holding any enquiry.
 Plaintiff claiming damages at the

rate of Rs.7,000/- per month from
03.09.1994 till August 2007.
27. With the aforesaid admitted and disputed facts,
the points referred to above are considered, in the case on
hand, appointment of the plaintiff on 18.04.1994 for the
post of Executive Secretary is a voluntary act of the first
defendant-association is established. According to the
plaintiff, when he started working as an Executive
Secretary, he has noticed several illegalities being
committed by the office bearers of the first defendant-

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RFA No. 2298 of 2007
association, which was exposed by him by questioning the
office bearers and discussing with other employees of first
defendant-association resulting in removing him from the
post of Executive Secretary by virtue of Ex.P.33.
28. Even though learned Trial Judge has discussed
in detail on the said aspect of the matter, fact remained
that plaintiff being the probationer as per his appointment
letter dated 18.04.1994, first defendant-association was
entitled to discharge him from his post within the
probationary period of six months from the date of his
appointment without holding any enquiry and without
assigning any reasons.
29. Therefore, the claim made by the plaintiff that
he is entitled for the back wages and consequential
benefits are all illusionary in nature as is rightly contended
on behalf of the cross objector/respondent.
30. It is settled principles of law and requires no
emphasis that a probationer would not get any right to

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RFA No. 2298 of 2007
enforce against his own employer till he satisfactorily
completes the period of probation.
31. In this regard, the judgment relied on by the
learned counsel for the cross objector in the case of Life
Insurance Corporation of Indian and Others Vs.
Raghavendra Seshagiri Rao Kulkarni reported in
MANU/SC/1341/1997 is referred to supra
would squarely be applicable to the facts and
circumstances of the present case.
32. The learned Trial Judge however, failed to note
the said aspect of the matter by holding that the
communication made to the plaintiff is illegal. Be it what it
may. Facts remains that plaintiff has handed over the
charge of his post on 03.09.1994, but failed to receive the
sum of Rs.6,095/-.
33. In the reply notice issued by the
respondent/cross objector marked at Ex.P.67, the first
defendant-association has clearly spelt out the said aspect

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RFA No. 2298 of 2007
of the matter and there is no dispute that the plaintiff was
a probationer.
34. Since, the plaintiff is only a probationer, he
cannot, as of a right, claim the damages as is claimed by
the plaintiff till his fresh appointment in the year 2010.
35. There cannot be any dispute as to the principles
of law enunciated in the judgments relied on by the
learned counsel for the appellant. But those principles are
not applicable to the case on hand in view of the fact that
plaintiff was only a probationer.
36. Therefore, the contentions urged by the
appellant before this Court that plaintiff is entitled for the
damages from 27.06.1994 till the year 2010 cannot be
countenanced in law.
37. Since, the plaintiff is discharged from the service
vide Ex.P.33, the first defendant-association has exercised
its right as an employer within a period of probation and
therefore, Ex.P.33 cannot be faulted with.

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RFA No. 2298 of 2007
38. In order to appreciate the arguments of the
counsel for the plaintiff that Ex.P.33 has acted as a stigma
so as to prevent him from obtaining a better employment,
it is just and necessary for this Court to cull out Ex.P.33,
which reads as under:
"Ref:APH/G SEC/102 26th July 1994
Mr.P.Jayakiran
115, St.Michael's School Road
2nd Cross, Shantinagar,
Bangalore 560 027.
Dear Mr. Jayakiran,
This has reference to my letter dated 18th

April 1994 regarding appointment as
Executive Secreyary of the Association of the
Physically Handicapped.
In the said context, I am constrained to

inform you that the aforesaid letter dated
18th April 1994 is void being ultra vires of
the Constitution of The Association of The
Physically Handicapped.
Accordingly please therefore be informed

that the appointment vide letter dated 18th
April 1994, stands cancelled with immediate
effect, pending a decision of the Committee
of Management.
Yours faithfully,
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RFA No. 2298 of 2007
[M N V Urs]
Hon. Gen. Secretary
Note: Copies of this letter apart from being

served on you personally are being sent to
you separately by Registered Post A/D and
also under Certificate of Posting as a
measure of abundant of precaution."
39. On bare perusal of Ex.P.33, one can safely
conclude that the contents of Ex.P.33 is not stigmatic in
nature so as to prevent the plaintiff from procuring a job in
the open market. Therefore, Ex.P.33 is to be construed as
discharge simpliciter.
40. In view of the fact that Ex.P.33 is discharge
simpliciter no other rights would accrue to the plaintiff.
However, learned Trial Judge without noticing the said
aspect of the matter, recorded a finding that
communication is illegal. But, held that plaintiff is entitled
to sum of Rs.7,000/- per month from 26.07.1994 till
October 1994. In other words, the learned Trial Judge
while granting second relief to the plaintiff as per the
impugned judgment and decree, has also indirectly noticed

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RFA No. 2298 of 2007
that first defendant-association had right to discharge the
plaintiff in the month of October 1994, which is the six
months period as per the letter dated 18.04.1994 marked
at Ex.P.11. The reasoning assigned by the learned Trial
Judge while granting second relief in allowing to the
plaintiff to receive a sum of Rs.7000/- per month from
26.04.1994 till October 1994, would be sufficient enough
to hold that indirectly the Trial Court has accepted the
contentions urged on behalf of the first defendant that first
defendant had right to discharge the plaintiff from the
service as he is only a probationer.
41. Further, on record the material is available to
hold that the first defendant-association has deposited a
sum of Rs.29,516/- on 18.12.2007 in pursuance of the
impugned judgment and decree before the Trial Court.
42. Grounds of the cross objections, however, would
not depict that the said deposit is without prejudice to the
rights of the cross objector to be adjudicated in the cross

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RFA No. 2298 of 2007
objections. In other words, the cross objector has
complied with the impugned judgment.
43. Having complied with the impugned judgment
without reserving the right to prosecute the cross
objections on the merits, now cross objector cannot turn
around and contend that cross objector is entitled to even
question the impugned judgment.
44. Be it what it may, the fact remains that on
03.09.1994, plaintiff has handed over the charge of
executive secretary to the first defendant-association.
Since, already a sum of Rs.29,516/- is deposited by the
first defendant-association, plaintiff is entitled to withdraw
the same from the Trial Court.
45. Taking note of the fact that plaintiff was only a
probationer; no other rights could be exercised by him as
is canvassed on behalf of the appellant in the present
appeal. In view of the aforesaid discussions, point Nos.1
to 4 are answered in the negative.

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RFA No. 2298 of 2007
REG. POINT NO.5:
46. In view of the findings on point Nos.1 to 4 are
answered in the negative, the following:
ORDER
i. Appeal is dismissed.
ii. Cross objection is also dismissed.
iii. No order as to costs.
Sd/-
JUDGE
KAV
List No.: 1 Sl No.: 44

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-1-

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 23RD DAY OF SEPTEMBER, 2023

THE HON'BLE MR JUSTICE V SRISHANANDA

REGULAR FIRST APPEAL NO. 2298 OF 2007 (DEC)

RFA CROSS OBJECTION NO. 20 OF 2008

1. THE ASSOCIATION OF PHYSICALLY

2. MR. K.V. ARAVAMUDAN,

9. MG. CDR. THOMAS VERGHESE,

10. MS.KAVERY NADAMANGALAM,

11. MS. C.K. SOMALATHA

14. MR. R.M. REDDY

THIS RFA IS FILED U/S.96 OF CPC AGAINST THE

IN RFA CROB NO.20/2008

THIS RFA.CROB IS FILED (IN RFA.2298/07) U/S.96

THIS APPEAL A/W RFA.CROB, COMING ON FOR HEARING,

These matters namely, RFA No.2298/2007 and RFA

Crob No.20/2008 are filed questioning the validity of

judgment and decree passed in O.S.No.7145/1994 dated

18.06.2007 on the file of III Addl. City Civil and Sessions

Judge, (CCH No.25) Bengaluru City.

2. Parties are referred to as plaintiff and

defendants for the sake of convenience as per their

original ranking before the Trial Court.

3. Brief facts of the case are as under:

A suit came to be filed by the plaintiff against the

defendants seeking declaration that the order bearing

No.APH/G, SEC/102, dated 26.07.1994 and

APH/G/SEC/104 dated 26.07.1994 both signed by

defendant No.4 on behalf of first defendant, are arbitrary,

illegal and without authority of law and therefore, void-ab-

initio and nonest and direct the defendants to pay

compensation at the rate of Rs.7,000/- per month with

effect from 26.07.1994 including 10% enhancement on

the salary on expiry of each year and to award

4. Plaintiff claiming to be the employee of first

defendant-association by virtue of appointment letter

marked at Ex.P.11 dated 18.04.1994, joined the first

defendant-association as an Executive Secretary. He was

appointed as a Probationary Secretary by virtue of Ex.P.11

for a period of six months till 18.11.1994.

5. However, after he started discharging his

functions as an Executive Secretary, a meeting said to

have taken place in the first defendant-association and in

the meeting, it is noticed that post of Executive Secretary

is a non-sanctioned post and therefore, his appointment

needs to be cancelled forthwith. Pursuant to the same,

the appointment of the plaintiff was cancelled by recalling

Exs.P.34 and P.35 and same was communicated to the

plaintiff. Plaintiff resigned and ultimately handed over the

charge and he was discontinued from the service on and

from 03.09.1994 as per Ex.P.35.

6. Being aggrieved with the action taken by the first

defendant-association, a legal notice was issued by the

plaintiff through his Advocate - Sri.T.S.Rajagopal vide

Ex.P.36 on 26.07.1994, which was duly replied by the first

defendant-association on 05.09.1994 vide Ex.P.67. Being,

not satisfied with the reply issued by the first defendant-

association, plaintiff has filed a suit.