Karnataka High Court
Sree Siddaganga Education Society ... vs The Principal Secretary on 20 October, 2020
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.8208/2016 (S-RES)
C/W
WRIT PETITION No.352/2017 (S-RES)
W.P.No.8208/2016:
BETWEEN:
1. SREE SIDDAGANGA EDUCATION
SOCIETY (REGD.)
SREE SIDDAGANGA MATH
TUMKUR-572 104
REP. BY ITS SECRETARY.
2. THE PRINCIPAL
SREE SIDDAGANGA COLLEGE OF ARTS
SCIENCE AND COMMERCE
B.H. ROAD
TUMKUR-572 102.
...PETITIONERS
(BY SRI.ANIL KUMAR S, ADV.)
AND:
1. THE PRINCIPAL SECRETARY
TO GOVERNMENT OF KARNATAKA,
EDUCATION DEPARTMENT,
(HIGHER EDUCATION),
BANGALORE-560 001.
2
2. THE COMMISSIONER FOR COLLEGIATE
EDUCATION
MAHARANI CIRCLE, PALACE ROAD
BANGALORE-560 001.
3. THE JOINT DIRECTOR OF COLLEGIATE
EDUCATION
REGIONAL OFFICE, MAHARANI CIRCLE
PALACE ROAD
BANGALORE-560 001.
4. DR. AMEER BASHA G
S/O. LATE G. HUSSAIN PEERA SAB
AGED ABOUT 55 YEARS
ASSOCIATE PROFESSOR OF
POLITICAL SCIENCE
SMT./SRI. Y.E.R. GOVERNMENT
FIRST GRADE COLLEGE, PAVAGADA
TUMKUR DISTRICT.
...RESPONDENTS
(BY SRI.C N MAHADESHWARAN, AGA. FOR R1 TO R3
SRI SUBRAMANYA BHAT M, A
DV. FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY R1 IN R.P.6/2015 DATED
16.06.2015 UNDER ANNEX-H AND THE ORDER PASSED BY
R2 DATED 18.04.2015 AT ANNEX-G AND ETC.
W.P.No.352/2017
BETWEEN:
DR. AMEER BASHA G
S/O LATE G HUSSAIN PEERA SAB
AGED ABOUT 55 YEARS
HEAD OF THE DEPARTMENT OF
3
POLITICAL SCIENCE
SRI SIDDHAGANGA COLLEGE OF ARTS,
SCIENCE AND COMMERCE, TUMKUR
AND NOW ON DEPUTATION TO
SMT. AND SRI Y E R GOVERNMENT
FIRST GRADE COLLEGE, PAVAGADA
TUMKUR DISTRICT AND RESIDING AT
C/O MUBARAK PHOTO STUDIO
OPP : SHANESHWARA TEMPLE
PAVAGADA, TUMKUR DISTRICT.
...PETITIONER
(BY SRI.SUBRAMANYA BHAT M, ADV.)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF EDUCATION
(HIGHER EDUCATION)
REP. BY THE SECRETARY
M S BUILDINGS
BANGALORE - 01.
2. THE COMMISSIONER OF COLLEGIATE
EDUCATION
MAHARANI CIRCLE
PALACE ROAD
BANGALORE - 560001.
3. THE PRESIDENT
SRI SIDDHAGANGA EDUCATION
SOCIETY (REGD.)
SIDDHAGANGA MUTT
TUMKUR - 572104.
...RESPONDENTS
(BY SRI.C.N.MAHADESHWARAN, AGA. FOR R1 & R2
SRI. S ANIL KUMAR, ADV. FOR R3)
4
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS PERTAINING TO THE CASE OF THE PETITIONER
AND DIRECT THE R3 TO PAY FULL PAY AND ALLOWANCES
TO THE PETITIONER FOR THE PERIOD BETWEEN AUGUST
2014 AND MAY 2015 BY DULY SANCTIONING THE ANNUAL
INCREMENTS FOR THE YEARS 2014 AND 2015 ALONG WITH
INTEREST AT THE RATE OF 18% PER ANNUM.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THROUGH VIDEO
CONFERENCE THIS DAY, THE COURT MADE THE
FOLLOWING:
COMMON ORDER
With the consent of learned counsel for both the parties, both the writ petitions are taken up together and disposed of by this common order since common facts are involved and parties are common.
2. In W.P.No.8208/2016 the petitioners - Sree Siddaganga Education Society (Regd.) and Principal of Sree Siddaganga College of Arts are before this Court under Articles 226 and 227 of the Constitution of India praying for a writ of certiorari to quash the order dated 16.06.2015 passed by the 1st respondent in Revision 5 Petition No.6/2015-ED113UPC2015 under Annexure H and the order dated 18.04.2015 bearing No.KA Shi E/382/Shi Kra/2014-15 Ta Vi vide Annexure-G whereby Management was directed to pay subsistence allowance and further for a direction to the respondents 2 and 3 to pay subsistence allowance for the deemed suspension of the 4th respondent for the period from 20.08.2014 to 12.05.2015 under the Grant-in-ad.
3. Dr. Ameer Basha G. is the petitioner in W.P.No.352/2017, who is the 4th respondent in W.P.No.8208/2016. He is before this Court under Article 226 of the Constitution of India, praying for a writ of mandamus directing the 3rd respondent i.e., Sree Siddaganga Education Society (Regd.) by duly sanctioning and to pay full pay and allowance to the petitioner for the period from August 2014 and May 2015 along with interest at the rate of 18% per annum.
6
4. The parties to the above writ petitions would be referred to as they stand in W.P.No.352/2017. In W.P.No.352/2017 Petitioner is Dr. Ameer Basha G., 1st respondent is the State of Karnataka, 2nd respondent is the Commissioner of Collegiate Education, and 3rd respondent is the President, Sri Siddhaganga Education Society (Regd.) for short (the Management).
5. The petitioner was working as Principal and Head of Department of Political Science at Siddaganga First Grade College, Tumkur, run by the 3rd respondent. One student Kum. Jyothi made a complaint dated 16.08.2014 to the Management of Sri Siddaganga College complaining sexual harassment by the petitioner. Based on the said complaint a criminal case was also registered. In the meanwhile the petitioner was taken to custody on 20.08.2014. The 3rd respondent under Rule 34(2) of Karnataka Educational Institution (Collegiate Education) Rules 2003, (for short 'the Rules') by order dated 7 26.08.2014 kept the petitioner under suspension w.e.f. 20.08.2014 i.e., the date of petitioner's detention. The petitioner was released from custody on bail on 01.09.2014. As the petitioner was not paid subsistence allowance during suspension period, he made representations to the 3rd respondent - Management and approached the 1st respondent in Revision Petition No.6/2015 under Section 131 of the Karnataka Education Act,1983 for a direction to the 3rd respondent to release the subsistence allowance payable to the petitioner.
6. The 3rd respondent - Management had written letter to the Joint Director of Collegiate Education on 04.02.2015 seeking approval of suspension and also to pay subsistence allowance to the petitioner. In reply, the Director of Collegiate Education by his letter dated 18.04.2015 granted post facto approval to the order of suspension with a condition that as the management had failed to take prior approval to the order of suspension as 8 required under Rule 32 of the Rules, the Management would be responsible for all the consequences for adverse order to be passed by the Court and management would be responsible for all financial burden. In the meanwhile, the petitioner was reinstated by 3rd respondent - Management by order dated 13.05.2015 by posting him as Associate Professor, Political Science Department at Y E R Government First Grade College, Pavagada, Tumkur District, on deputation. The 1st respondent by order dated 16.06.2015 allowed the Revision Petition filed by the petitioner directing the 3rd respondent - Management to pay subsistence allowance to the petitioner in accordance with law. Even thereafter, the petitioner was not paid subsistence allowance. Therefore, petitioner made representation to the 2nd respondent - the Commissioner. Thereafter the Director, Collegiate Education issued letter dated 13.10.2015 directing the 3rd respondent - Management to pay the subsistence allowance since the 9 Management had failed to take prior approval of suspension order.
7. Heard Sri M. Subramanya Bhat, learned counsel for the petitioner, Sri. S. Anil Kumar for Sri Shivappa Associates for respondent No.3 through video conference and Sri C.N. Mahadeshwaran, learned AGA for respondents 1 and 2. Perused the petition papers of both the writ petitions.
8. Sri. Subramanya Bhat, learned counsel for the petitioner would submit that petitioner was kept under suspension in exercise of power under Rule 34(2) of the Rules by order dated 26.08.2014 on his detention in C.R. No.117/2014. Thereafter, the petitioner was released on bail by order dated 01.09.2014 of the learned III Additional Session Judge, Tumkur. As the petitioner was not paid subsistence allowance as required under Rule 35 of the Rules, the petitioner made representation to the 2nd respondent. The Commissioner of Collegiate Education, 10 directed the 3rd respondent - Management to pay the subsistence allowance. But as the 3rd respondent - Management failed to pay the subsistence allowance, the petitioner had approached the 1st respondent in Revision Petition No.6/2015. The said revision petition was allowed by order dated 16.06.2015 with a direction to the 3rd respondent - Management to pay subsistence allowance. Further he submits that the petitioner was acquitted of the charges of sexual harassment leveled against him in Special Case No.530/2014 by judgment dated 30.01.2016. In view of acquittal in the criminal case the petitioner would be entitled for full pay and allowance as per Rule 35(5) of the Rules. The management would be responsible to pay the subsistence allowance and full pay and allowances for the period of suspension. The learned counsel would refer to Rule 39 of the Rules in support of his contention. Thus he prays for allowing the writ petition filed by the petitioner and to dismiss the writ petition filed by the Management.
11
9. Per contra Sri Anil Kumar, learned counsel appearing for the 3rd respondent - Management would submit that the order passed by the 1st respondent in Revision Petition is wholly erroneous and would submit that Management would not be responsible to pay either subsistence allowance or pay and allowances to the petitioner. He submits that as there was sexual harassment complaint against the petitioner, in C.R. No.117/2014 the petitioner was taken to custody. By operation of law i.e., Rule 34(2) of the Rules, the petitioner is deemed to have been placed under suspension w.e.f. 20.08.2014 i.e., the date of detention, as he is detained in custody for a period exceeding 48 hours. As the petitioner was detained in custody for more than 48 hours, the petitioner was kept under suspension by order dated 26.08.2014, for which the Management is not responsible. The suspension was deemed suspension because the petitioner was detained in custody for more 12 than 48 hours, as such, it is not the act of the management. Therefore, it is his submission that 3rd respondent - Management is neither responsible to pay subsistence allowance nor pay and allowances to the petitioner during the period of suspension. Thus he prays for dismissal of the petition filed by the petitioner and to allow the petition filed by the Management directing the 1st and 2nd respondents to pay the subsistence allowance to the petitioner.
10. Admitted facts are that one student by name Kum. Jyothi filed a complaint dated 16.08.2014 against the petitioner alleging sexual harassment to the 3rd respondent - Management as well as to the police. Police registered C.R. No.117/2014 against the petitioner and the petitioner was taken to custody on 20.08.2014. The petitioner was kept under suspension by order dated 26.08.2014 under Rule 34(2) of the Rules, wherein the employee is deemed to have been suspended if he is 13 detained in custody on criminal charge or otherwise for more than 48 hours. Rule 34 (2) reads as follows :-
"34 (2) : An employee shall be deemed to have been placed under suspension by an order of Appointing Authority after given the information of the order of the private management to the controlling authority.
a. with effect from the date of his detention, if he is detained in custody whether on criminal charge or otherwise for a period exceeding forty-eight hours; b. with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
Explanation - The period of forty-eight hours referred to in clause(b) of this sub-rule shall be computed from the commencement of the imprisonment, if any, shall be taken into account. A careful reading of the above Rule would mean that even though by operation of Rule the employee would be 14 deemed to have been placed under suspension, when he is detained in custody on criminal charge or otherwise for a period exceeding 48 hours, a formal order of suspension by the Appointing Authority would be necessary for the purpose of informing the order of the private management to the Controlling Authority. The Controlling Authority is defined under Rule 24 of the Rules to mean Commissioner for Collegiate Education and Director of Collegiate Education. The above Rule requires the private management to inform its order of suspension to the Controlling Authority. As such rightly the 3rd respondent
- Management passed the order of suspension dated 26.08.2014 keeping the petitioner under suspension from 20.08.2014, the date of the petitioner's detention in custody. The above Rule, unlike any other rule of deemed suspension, contemplates passing of an order of suspension by the private management for giving information of such order of the private management to the Controlling Authority. Even though the order of 15 suspension would be passed subsequent to the date of detention of the employee in custody, the effect of suspension would be from the date of employee's detention in custody in a criminal case exceeding 48 hours. Order of suspension passed under Rule 34(1) of the Rules would take effect from the date of order of suspension, but where suspension order is passed under Rule 34 (2) of the Rules, even though the order of suspension is passed subsequent to detention in custody, suspension is deemed to have come into effect from the date of detention in custody. In other words, the deemed suspension under Rule 34(2) of the Rules would mean that suspension would take effect from the date of detention even though order of suspension by the private management is passed subsequently. The word deemed used in the Rule is only to give effect to the order of suspension from the date of detention of employee in custody on criminal charges or otherwise. A formal order of suspension would be necessary to give effect to 16 statutory deemed suspension. In other words, the order of suspension recognizes the statutory deemed suspension.
11. Respondents 1 and 2 - the Secretary to Government Higher Education Department and the Commissioner of Collegiate Education in various correspondences have informed the college that even though the management is the Disciplinary Authority, under Rule 32 of the Rules, obtaining prior approval for keeping an employee under suspension would be necessary. Second proviso to Rule-32 reads as follows :-
"Rule 32 - 1) Provided that .......................
2) Provided further that every order of private management regarding suspension, dismissal or removal from service, etc., shall be issued after prior approval by the Competent Authority which approved the appointment."
The above proviso would mean that every order of the private management regarding suspension, dismissal or removal, prior approval of the competent authority or 17 approval by the appointing authority would be necessary. Suspension of employees of private management is dealt with under Rule 34(1) and 34(2) of the Rules. Rule 34(1) empowers the appointing authority to keep an employee under suspension, under the circumstances mentioned in the said rule. Whereas under Rule 34(2) of the Rules, it is deemed suspension. When an employee is detained in custody on criminal charge or otherwise for more than 48 hours, the said employee is deemed to be under suspension. The approval required before issuing an order of suspension in second proviso to Rule 32 would be applicable to order of suspension passed under Rule 34(1). Whereas under Rule 34(2) it is deemed suspension and the order is required to be passed by the management only to give information to the controlling authority. The approval required under second proviso of Rule 32 would not be applicable to deemed suspension under Rule 34(2) of the Rules. When an employee is in custody for more than 48 hours, the management would not be expected to 18 wait for approval of the competent authority for keeping an employee under suspension under Rule 34(2) of the Rules. Moreover, under Rule 34(2), by operation of Rule, an employee is deemed to have been under suspension from the date of his detention in custody for a period exceeding 48 hours, on criminal charge or otherwise Thus the contention of the respondents that the 3rd respondent
- management has not obtained prior approval before keeping the petitioner under suspension is untenable.
12. Rule 34 of the Rules empowers the appointing authority to keep an employee under suspension. Rule 35 of the Rules provides for payment of subsistence allowance. Rule 35(5)(i) of the Rules reads as follows :-
"35.(5), Where on the conclusion, of the inquiry against an employee placed under suspension, the authority competent to impose any punishment.-
(i) makes an order fully exonerating or acquitting him the period during which he was under suspension pending the enquiry shall be deemed to be the period of duty and the 19 employee to be entitled to full pay and allowance as if he had not been under suspension;"
The above Rule is clear as to what should happen to the period of suspension, when a person is exonerated or acquitted in the enquiry. If an employee is exonerated or acquitted, the period of suspension shall be deemed to be the period of duty and the employee would be entitled to full pay and allowances, as if he had not been under suspension. In the instant case, admittedly no disciplinary proceedings is initiated by the 3rd respondent
- Management on the complaint of the student with regard to the sexual harassment. C.R.No.117/2014 was registered against the petitioner for the offences punishable under Section 354 (A) (i and iv) of IPC r/w Section 12 of the POCSO Act, which was subsequent to filing of charge sheet was taken as Special Case No.530/2014 on the file of the III Additional Sessions Judge, Tumkur. After trial the petitioner was acquitted of 20 the above charges by judgment dated 30.01.2016. No appeal appears to have been filed against the said order. The said acquittal in favour of the petitioner has become final. When the petitioner is acquitted of the charges leveled against him, he would be entitled to the benefit of Rule 35(5) of the Rules. The 3rd respondent - Management is expected to pass orders in terms of Rule 35(5) of the Rules treating the period of suspension of the petitioner, as period on duty, since the petitioner is acquitted of the charges in the enquiry/trial, more particularly, when the management has not initiated any disciplinary proceedings against the petitioner.
13. The next question would be, who is responsible to pay the pay and allowance to the petitioner, whether it is the 3rd respondent - Management or respondents 1 and 2, the authority under the grant-in-aid. In Revision Petition No.6/2015 the 1st respondent has directed the 3rd respondent - Management to pay subsistence allowance to 21 the petitioner. It would be useful to refer to Rule 39 of the Rules which reads as follows :-
"39. Non-payment of salary arrears in certain cases.- If the orders of the Disciplinary Authority imposing penalty of dismissal or removal or compulsory retirement or reduction in rank etc., is subsequently set aside by the Court or Appellant Authority, the Government shall not be liable to pay salary and pension arrears and such arrears of salary and pension shall be paid by the management only. In case the management takes disciplinary action against any employee without obtaining the approval of the Controlling Authority of the department of collegiate education or contrary to these rules the management will be held solely responsible for all the consequences that may arise due to non-compliance of rules."
The above rule abundantly makes it clear that if an order of penalty, dismissal, removal or reduction in rank etc., imposed by the Disciplinary Authority is subsequently set aside by the Court or the Appellate Authority, the Government would not be liable to pay the salary and 22 arrears of pension and such arrears of salary and arrears of pension shall be paid by the Management only. In the case on hand, also petitioner was acquitted of sexual harassment charges leveled against him in special case No.530/2014 and admittedly no Disciplinary proceedings is initiated by the 3rd respondent - Management. As such the 3rd respondent - Management would be liable to pay subsistence allowance or the full pay and allowance, which the petitioner would be entitled to as per Rule 35(5) of the Rules. The object and purpose behind Rule 39 is to see that the management would take quick, appropriate and immediate action on the employees and conduct enquiry within the time frame whenever the employees misconduct themselves. If the Government is made to pay the pay and allowances for the period, where punishment order is set aside, the Management would take its own time to take action against its employee, and to hold enquiry. 23 Moreover, it is the responsibility of the management to maintain discipline and control over its employees, in its institution. The rigor of Rule 39 would also apply to the facts of the present case, since the petitioner is acquitted of the criminal charges in S.C.No.530/2014 on the file of the III Additional Sessions Judge at Tumkur and as admittedly no disciplinary proceedings is initiated against the petitioner on the allegation of sexual harassment. The 3rd respondent - Management would be liable to pay whatever pay and allowances, entitled to by the petitioner under Rule 35(5) of the Rules.
14. For the reasons stated above the writ petition filed by the petitioner in W.P.No.352/2017 is allowed in part and W.P.No.8208/2016 filed by the Management is dismissed. The 3rd respondent - Management shall pass orders in accordance with Rule 35(5) of the Rules, to treat the period of suspension of the petitioner as period on 24 duty and to pay full pay and allowances, as if he had not been under suspension. Time for compliance is three months from the date of receipt of certified copy of this order.
Sd/-
JUDGE NG* CT:bms