Karnataka High Court
Rama Murthy vs State Of Karnataka on 17 July, 1986
Equivalent citations: ILR1986KAR3037
ORDER K. A. Swami, J.
The petitioner is a Senior Lecturer in Physics in Vijaya College which is run by respondent-3. The Management, in the first instance, terminated the services of the petitioner on the grounds stated in the order dated 17-12-1981. That order was challenged by the petitioner before the Educational Appellate Tribunal, Bangalore (hereinafter referred to as "the Tribunal"). An interim older was sought for, and it was defused by the Tribunal. There was also another Order passed by the Tribunal with which the Management also was aggrieved. Therefore, the petitioner preferred Writ Petition 10571 of 1982 against the order refusing to grant an interim stay, and the Management preferred W. P. 14333 of 1982 against another order before this Court. Those Writ Petitions were disposed of by a common order dated 11-6-1982. The relevant portion of the order is as follows :
"6. When the two Petitions came up for hearing yesterday, in the course of the arguments advanced on both the sides, the 1st Respondent in W. P. No, 10571 of 1982 sought permission from this Court to consult the management as to the advisibility of conceding the appeal before the Tribunal, by recalling the order of termination with liberty to hold an enquiry and pass such orders as may become necessary. Today, the Counsel for respondent conveyed to the Court that the respondent is willing to recall the termination order issued to the petitioner and the petitioner shall be entitled to be treated as having been in the service from the date on which he was relieved.
7. In these circumstances, it is appropriate to dispose of these Writ Petitions by this common order, by setting aside both the orders challenged in these Writ Petitions, recording the memo of withdrawal of the termination order, with liberty reserved to the management to proceed against the petitioner in accordance with law by holding an enquiry and thereafter pass appropriate orders. This must bring to an end the litigation which is pending in this Court as well as the Tribunal. By the interim order made by the Tribunal the management has paid the salary of the petitioner. Therefore, what remains before this Court today is to dispose of these two petitions recording the memo of withdrawal of termination order. The Tribunal is directed to dispose of the appeal in the light of the undertaking given in this Court which has been recorded above as per memo. It is further made clear that the management is at liberty to commence the enquiry, treating the petitioner in W. P. No. 10571/82 as if in its service.
8. The rule be accordingly issued in both the Writ Petitions, setting aside the impugned orders therein. There will be no order as to costs."
2. Pursuant to the liberty reserved in the aforesaid order of this Court, the Management of the College has now initiated an enquiry against the petitioner by issuing the memo dated 20-10-1982. Thereafter, it is also not disputed that a retired District Judge has been appointed as Enquiry Officer who is stated to have held an enquiry; but he has not yet submitted his report to the Management.
3. In this petition, one of the reliefs sought for is to quash the notice-Annexure 'G' issued by the Enquiry Officer to the petitioner intimating him that the enquiry proceeding will be continued on 9-4-1983 at 3-00 p.m. in Room No. 45 of the College. The petitioner has also sought for issue of a direction to the Management to frame the rules relating to the Code of Conduct of its employees and for conducting a disciplinary proceeding. He has also sought for issue of a Writ in the nature of mandamus to the State Government to frame the Model rules as per Section 3 of the Karnataka Private Educational (institutions (Discipline and Control) Act, 1975 (hereinafter referred to as the 'Act'); and further to prohibit the management not to hold an enquiry against the petitioner until the Model rules are framed by the State Government.
4. Sri Venkataranga Iyengar, learned Counsel appearing for the petitioner, has advanced the following contentions:
That, on the coming into force of the Act, unless the Model rules are framed by the State Government as per Section 3 of the Act, Management of a Private Educational Institution has no power or jurisdiction or authority to hold a disciplinary proceeding against its employees on the alleged mis-conduct ; that it is obligatory on the part of the State Government as directed by the Act to frame model rules which are required to be adopted by Private Educational Institutions ; that as the Stale Government has failed to frame the model rules even though several years have elapsed after the coming into force of the Act, it is just and necessary to direct the State Government to frame the model rules ; that respondent-3 has not framed the rules prescribing Code of Conduct, and the manner of holding disciplinary proceeding on a breach thereof, therefore it is contended that unless the mis-conduct is defined, no enquiry can be permitted to be held. Hence, the contention of the Petitioner is that neither the Management has the power nor the Enquiry Officer appointed by the Management is entitled to hold as enquiry.
5. On the contrary, it is contended on behalf of the respondents including learned Government Pleader Sri Devadas that absence of the model rules as contemplated under Section 3 of the Act, does not take away the inherent power of the Management of a Private Educational Institution to hold a disciplinary proceeding against its employees on the ground of mis-conduct; that in order to obtain grant, the aided Institution is required to comply with the Government Order No. ED 141 UPC 76, dated 6-10-1977 ; that the Government Order dated 6-10-1977 itself prescribes under Schedule-II thereof, the Code of Conduct for (he employees of the private Educational Institutions to which the Management has to get the assent of the employees ; that in the instant case the Institution is an aided Institution ; that the Petitioner has executed the agreement containing the Code of conduct ; that the allegations in respect of which the enquiry is being held fall within the scope of the Code of Conduct. Alternatively, it is contended that even in the absence of the model rules framed by the State Government, the Management has to exercise its power reasonably and in conformity with the principles of natural justice and consistent with common sense. It is also further contended that Section 3 of the Act, is directory inasmuch as the violation of it is not made penal; that therefore, non-framing of the model rules does not have the effect of taking away the power of the Management of the Private Educational Institution ; that, having regard to Order passed in the Writ Petitions referred to earlier to which the Petitioner was a party, it is not now open to him to contend that Respondent-3 has no power to hold an enquiry against him.
6. Having regard to the aforesaid contentions, the following points arise for consideration :
(1) In the absence of the model rules framed by the State Government as per Section 3 of the Act, whether it is open to the management of the Private Educational Institution (Respondent-3) to hold a disciplinary proceeding for the mis conducts alleged against the petitioner ?
(2) Whether the provisions of Section 3(1) of the Act, are mandatory and, if so, on the failure of the State Government to frame the model rules, whether the management of the Private Educational Institution has power to hold a disciplinary proceeding against its employees ?
(3) Whether it is necessary to issue a direction to the State Government to make model rules in respect of matters relating to the Code of Conduct and the conditions of service of employees of private educational institution ?
(4) Whether, in the absence of the rules framed by the management of the Private Educational Institution for holding a disciplinary proceeding, is it open to it to hold a disciplinary proceeding ?
(5) Whether the Code of Conduct prescribed by the Government Order dated 6-10-1977 and accepted by the petitioner, in the absence of the model rules, hold good and can be made the basis for an enquiry ?
(6) Whether the misconducts alleged against the petitioner fall within the scope of Code of Conduct prescribed by the Government Order dated 6-10-1977 ?
(7) What Order ?
7.1) POINTS 1, 2 and 3 : These three points are closely connected ; therefore, it is just and necessary to consider these points together.
7.2) Section 3 of the Act, reads thus :
"3. Power of State Government to make model rules and adoption of such rules by a private educational institution.-- (1) Subject to the other provisions of this Act, the State Government shall, after previous publication of the draft for not less than one month, make, by notification, model rules in respect of matters relating to the Code of Conduct and the conditions of service of employees.
(2) Every private educational institution shall--
(a) if it has not before the date of commencement of this Act made rules on the subject, adopt the model rules ; and
(b) if it has made such rules, modify the rules to bring them in conformity with the model rules.
(3) Within three months from the date the model rules are notified by the State Government every private educational institution shall send intimation of having adopted the model rules or modified its rules to,--
(i) the Director of Technical Education, Bangalore, if the private educational institution, is an engineering or other technical institution ;
(ii) the Director of Pre-University Education, Bangalore, if such institution is an independent junior college ;
(iii) the Director of Collegiate Education, Bangalore, if such institution is a college other than an institution or college referred to in Clauses (i) and (ii) ;
(iv) the Director of Public Instruction, Bangalore or to an officer not below the rank of a District Deputy Director of Public Instruction as may be specified by the State Government, if such institution is a pre-primary, primary or secondary school or high school upgraded as a junior college or an institution for teachers' - training at all levels including collegiate education ; and
(v) the authority specified in this behalf by the State Government, if such institution is an institution or college other than those referred to in Clauses (i) to (iv).
(4) If a private educational institution fails to take action as required by Sub-section (2), the model rules shall be deemed to have been adopted by such institution and they shall be the rules governing its employees."
7.3) Section 3(1) of the Act, directs the State Government to frame model rules in respect of the matters relating to the Code of Conduct and the conditions of service of employees of a private educational institution. The model Rules to be framed by the State Government, shall have to be subject to any other provisions contained in the Act regarding Code of Conduct and the conditions of service of employees of a private educational institution ; because Section 3(1) of the Act opens with the words "subject to the other provisions of this Act." These words merely mean that if there are any provisions contained in the Act regulating the Code of Conduct and the conditions of service of employees of private educational institutions, the model rules framed by the State Government shall have to be in conformity with those provisions. Of course the expression ''conditions of service" includes -the manner and mode of holding a disciplinary enquiry and imposition of penalty and the mode of challenging the decision imposing penalty, Except the provisions contained in Sections 6 to 10, there is no other provision contained in the Act, which can be held to regulate either the Code of Conduct or conditions of service of employees of a private educational institution. Therefore the model rules framed by the Slate Government under Subsection (1) of Section 3 of the Act, shall have to be in conformity with the provisions contained in Sections 6 to 10 of the Act.
7.4) A reading of Section 3 of the Act, makes it abundantly clear that there is an inbuilt provision in the Section itself enabling the management of a private educational institution to frame the rule in respect of the matters relating to the Code of Conduct and the conditions of service of its employees. From the provisions contained in Sub-section(2) thereof, it is clear that if such rules are framed by the management of the private educatioanl institutions prior to coming into force of the Act, the management has to modify those rules so as to be in conformity with the model rules within a stated period. If there are no such rules framed prior to the coming into force of the Act, the model rules have to be adopted by the private educational institutions. From this, it also follows that even in the case of the rules framed by the management of a private educational institution after coming into force of the Act, the management of a private educational institution has to give up those rules and adopt the model rules, because such rules are framed by it after the coming into force of the Act, therefore such case falls under Clause(b) of Sub-section (2) of Section 2 of the Act. The question of modification of such rules does not arise because they are framed after the coming into force of the Act. Thus, it is not possible to hold, as contended by Sri Venkataranga Iyengar, Learned Counsel appearing for the petitioner, that it is not at, all open to the management of a private educational institution to hold a disciplinary proceeding against its employees on the alleged misconduct. In such an event, the wording of Section 3 of the Act, would not have been as it is. Such an interpretation also does not stand to reason because no management of a private educational institution is expected to put up with the misconduct of its employees merely because the model rules as per Section 3 of the Act, are not made.
7.5) Power to take action against an employee who has committed misconduct is inherent in the power of management; therefore, until the model rules are framed by the State Government, it is open to the management of a private educational institution to have its own Code of Conduct and mode of enquiry consistent with fair play and justice, under Section 6 of the Act and punish the employee who commits misconduct. In Agnani -v.- Badri Das & Ors. 1. 1963 (1) LLJ 648., the Supreme Court has considered the authority of an employer to punish his employee for misconduct in the absence of standing orders prescribing the misconduct. It has been held that even in the absence of the standing orders, it is open to the employer to consider reasonably what conduct can properly be treated as mis-conduct. The relevant portion of the judgment is as follows :
"...It is true that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct. It would be difficult to lay down any general rule in respect of this problem. Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute ' misconduct ; misbehaviour committed even outside working hours but within the precincts of the concern and direted towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the employee is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. When standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance with commonsense."
That being so, in the absence of model rules, it is open to a private educational institution either to have its own rules prescribing Code of Conduct or in the case of aided private educational institutions to adopt the Code of Conduct prescribed by the State Government to be followed by those institutions which receive aid from the Government. Even in case of those private educational institutions, which do not receive aid from the Government and have not framed their own rules prescribing the Code of Conduct, it would be open to them to consider reasonably and in accordance with commonsense what conduct can properly be treated as mis-conduct It all depends upon the nature of the employment and duties to be discharged by the employee and the discipline that is required to be maintained in the institution and among the employees. The conduct proved against an employee is of such a character that he would not be regarded as worthy of employment even in the absence of rules defining the misconduct, and such a conduct can properly be called a mis-conduct. In the instant case, the Code of Conduct prescribed by the State Government is adopted by the educational institution in question.
7.6) This question is also closely connected with the other contentions of the petitioner that Sub-section (1) of Section 3 of the Act, is mandatory and non-compliance with it disables the management of a private educational institution to exercise disciplinary power and control over its employees. In this regard, the stress is laid on the word "shall" found in Sub-section(1) of Section 3 of the Act. There is no doubt that the statute has used the word "shall" but that expression having regard to the context in which it appears, it is not possible to hold to mean that in the absence of making of the model rules, the management of a private educational institution is deprived of its inherent power to punish its guilty employees. The word "shall" is used in Sub-section (1) of Section 3 of the Act, only to impress upon the State Government that it is necessary to make the model rules covering the matters relating to the Code of Conduct and the conditions of service of employees. If the State Government fails to make the model rules within a reasonable time, it is, open to aggrieved persons to seek an appropriate direction to the State Government to compel it to frame the model rules. It is to this extent, the provision is mandatory. But, this does not mean that in the absence of model rules, the management of a private educational institution is rendered incompetent to hold an enquiry into the misconduct alleged against its employees and impose penalty. If the Legislature intended to deprive the management of its inherent power to hold disciplinary proceeding against its employees and impose penalty, until the model rules are made, it would have specifically provided that in the absence of such rules, the management is not entitled to hold an enquiry and punish its employees. Normally an interpretation to be placed on a statute must be such that it does not make the statute unworkable and does not lead either to invalidity or unworkability of a statute. Of course, if the wordings of a statute are such that it cannot be saved from being struck down, Court cannot help but to strike it down. If the interpretation which is tried to be placed by Learned Counsel for the Petitioner on Sub-section (1) of Section 3 of the Act, is accepted, until the model rules are made by the State Government covering the matters relating to the Code of Conduct and the conditions of service of the employees of a private educational Institutions, the employees of a private educational Institutions will be free to commit misconduct and at the same time it will not be possible to punish them. Such an interpretation cannot at all be accepted. It is a well known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly (See; M. Pentiah -v.- Veeramallappa)., This principle is also reiterated by the Supreme Court in American Home Products Corporation -v.- MAC Laboratories (Pvt.) Ltd. and anr., .
7.7) Sri S.K. Venkataranga Iyengar, Learned Counsel for the Petitioner, has however laid stress on a decision of the Supreme Court in Glaxo Laboratories (I) Ltd., v.- Presiding Officer, Meerut, That was a case in which Standing Orders were framed by the establishment under the Industrial Employment (Standing Orders) Act, 1946. It was obligatory on the part of the establishment to draw up with precision those acts of omissions and commissions which in the establishment would constitute mis-conduct. Accordingly, the the Standing Orders were framed enumerating the acts and omissions which would constitute misconduct when committed within the premises of the establishment or vicinity thereof. It was in that context, the Supreme Court held as follows :
" ...........In short it cannot be left to the vagaries of management to say ex-post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. Accordingly, the contention of Mr. Shanti Bhushan that some other act of misconduct which would per se be an act of misconduct though not enumerated in S.O. 22 can be punished under S.O. 23 must be rejected."
Thus, it is clear that the aforesaid decision of the Supreme Court turned upon the provisions contained in the Standing Orders of the establishment. In addition to this, the provisions contained in the Act are not pari materia to those contained in the Industrial Employment (Standing Orders) Act, 1946 inasmuch as under that Act, every industrial establishment to which the said Act applies is under a statutory obligation to draw up and submit to the Certifying Officer five copies of the draft-Standing Orders for adoption of the Industrial establishment. No such statutory obligation is imposed by the Act on the management of a private educational institution. Therefore, it is not possible to apply the aforesaid decision of the Supreme Court in Glaxo Laboratories (I) Ltd. case4, to the present case.
7.8 It is also contended on behalf of the petitioner that the draft-model rules are published by the State Government as long back as in the year 1976 even though the same are not made final, the management ought to have followed the same. It is not possible to accept the contention. The draft model rules as long as they are not made final and published, have no force of law as they remain as draft rules only. Therefore, neither the management of a private educational institution is bound to follow them nor it can be compelled to follow the draft model rules.
7.9 The next, question for consideration is as to whether it is necessary to direct the State Government to frame the model rules in respect of matters relating to the Code of Conduct and the conditions of service. It has already been held in the earlier portion of this order that it is necessary for the State Government to make model rules and in case it fails to make the model rules, within a reasonable time it can be compelled to frame the model rules. In this regard it is submitted by Sri Devadas, Learned Government Pleader appearing for the State, that even though the State Government has framed the draft model rules and published them as long back as in the year 1976, the same have not been finalised and published having regard to the fact that new Education Act has been passed and it is awaiting the assent of the President. Therefore, it is not necessary to finalise and publish the model rules. More than ten years have elapsed after the coming into force of the Act the legislative direction has been disobeyed by the Executive in not framing the model rules. There is no justification for the Court to turn down the prayer of the petitioner to direct the State Government to carry out the legislative direction. Therefore, it is not possible to accept the submission of the Learned Government Pleader that it is not necessary to make model rules.
7.10. For the reasons stated above, Points 1 to 3 are answered as follows :
POINT NO 1 : Even in the absence of the model rules made by the State Government as per Sub-section(1) of Section 3 of the Act, it is open to the management of a private educational Institution to have its own rules prescribing the Code of Conduct and hold a disciplinary proceeding against its employees for the alleged misconduct and impose penalty.
POINT NO. 2 : As per Sub-section (1) of Section 3 of the Act, it is necessary for the State Government to make model rules in respect of matters relating to the Code of Conduct and the conditions of service of employees of a Private educational Institution. But, in the absence of model rules made by the Government, the management of a Private educational Institution is not deprived of its right to hold a disciplinary proceeding against its employees for misconduct.
POINT No. 3 : Answered in the affirmative.
8. POINT No. 4: No doubt, the 3rd respondent has not framed the Rules for holding disciplinary proceeding. It is now well established that in the absence of the rules framed regarding holding of a disciplinary proceeding, it has to be conducted in accordance with the established principles of of fair-play and justice. The charges framed against the employee are to be made known to the employee and he has to be afforded an opportunity to put forth his say in the matter and then enquiry has to be held, in which both the management and the employee are entitled to adduce evidence; thereafter on hearing both the sides, the findings are to be arrived at on the basis of the evidence adduced during the enquiry. These principles are embodied in Section 6 of the Act which takes full care of this aspect of the matter. Section 6 of the Act, reads thus :
"6. Termination of service and procedure for imposing penalties:-- (1) No employee shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges and where it is proposed after such inquiry to impose on him such penalty, until he has been given a reasonable opportunity of making representations on the penalty proposed, but only on the basis of the evidence adduced during such inquiry ;
Provided that the provisions of this sub-section shall not apply where an employee is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.
(2) No order imposing any penalty other than those referred to in Sub-section (1) shall be imposed on an employee except after, --
(a) the employee is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation which he may wish to make ; and
(b) such representation if any, is taken into consideration."
Every private educational Institution, for the purpose of imposing penalty mentioned in Section 6 of the Act, will have to hold an enquiry in accordance with the provisions contained therein. The aforesaid provisions are so elaborate that they cover all the stages of enquiry and fully safeguard the interest of delinquent employee, Therefore, it is not possible to hold that in the absence of the rules or model rules framed regarding holding of disciplinary proceeding, the management which has inherent power to punish its employee is not entitled to hold a disciplinary proceeding. It is open to the management to hold a disciplinary proceeding either by itself or entrust it to an Enquiry Officer who has to hold an enquiry in accordance with the provisions contained in Section 6 of the Act and submit his report and findings to the Management which has to take a decision in accordance with Section 6 of the Act, to impose penalty. An appeal is provided against an order of the management falling under Section 6 of the Act, to the Educational Appellate Tribunal (hereinafter referred to as the Tribunal'). The Tribunal is presided over by an Officer of the rank of a District Judge. The Tribunal enjoys all the powers of a Court of Appeal under the Code of Civil Procedure, 1908. Thus, the Tribunal can examine the correctness, legality and propriety of the proceeding of the management. Accordingly, Point No. 4 is answered in the affirmative.
9. POINT No. 5 : It is not in dispute that the institution in question is an aided institution. Grant is made by the Government on the conditions enumerated in the Government Order dated 6-10-1977. At this stage, it may also be pointed out that the Government Order dated 6-10-1977 was a subject of litigation before this Court in B.N. Sreeraman v. State of Karnataka , . This Court has held that the aforesaid Government Order is valid. As per Part IV(2) of the aforesaid Government Order, the management is required to obtain from each employee an agreement in the form contained in Schedule-II to the Government Order that he will faithfully observe the Code of Conduct prescribed therein and recognise the management's right to exercise disciplinary control over him in accordance with law and the procedure, in the event of breach of such Code by him. Pursuant to this the petitioner has entered into an agreement with the 3rd Respondent while entering the service on 15th October, 1977 and has also signed the agreement, which includes the Code of Conduct enumerated in Schedule-Il to the agreement. Thus, it is clear that this is a case in which Code of Conduct is prescribed by the 3rd Respondent, and it is accepted by the petitioner while entering the service. According to the agreement which incorporates the Code of Conduct, the mangement has power to take disciplinary proceeding against the petitioner if he violates the Code of Conduct. Therefore, the Code of Conduct prescribed by the 3rd Respondent can very well be taken as the Rules framed by an aided private educational institution falling under Clause (b) of Sub-section(2) of Section 3 of the Act. That being so, it is a case in which a Code of Conduct is prescribed by the 3rd Respondent. Regarding the absence of the rules for holding a disciplinary proceeding, I have already held that even in the absence of such Rules, disciplinary proceeding can be held in conformity with the principles of Fair Play and Justice which are embodied in Section 6 of the Act. That being so, Point No. 5 is answered as follows :
"The Code of Conduct prescribed by the Government Order dated 6-10-1977 and accepted by the 3rd respondent and agreed to by the petitioner, bold good until the model rules are framed and an enquiry for breach of the same can be held in accordance with law as contained in Section 6 of the Act."
10. POINT No. 6: As the enquiry is going on before the Enquiry Officer, it is even now open to the petitioner to contend that the mis-conduct alleged against him do not fall within the Code of Conduct prescribed by the Government Order dated 6-10-1977 and agreed to by him. It is submitted that the enquiry has been completed and the report has to be submitted. Even then, before the report is submitted, it is open to the petitioner to make a representation before the Enquiry Officer contending that the misconduct alleged against him do not fall within the scope of the Code of Conduct. In that event, the Enquiry Officer will examine the same and record a finding the correctness of which will again be re-examined by the Tribunal, in the appeal. Therefore, it is neither necessary to examine this contention nor it is just and appropriate to decide it at this stage. Accordingly, I keep open the contention relating to Point No. 6.
11. For the reasons stated above, the Writ Petition is disposed in the following terms :
(1) "All the prayers except the prayer relating to issue of a direction to the State Government to frame the model rules under the Act, are rejected. The State Government is directed to frame model rules as required by Section 3 of the Act, in six months from the date of receipt of this order.
(2) It is open to the petitioner to file objections within 15 days from to-day and to raise the plea falling under Point No. 6. In that event, the 4th Respondent shall consider the same.