Karnataka High Court
Sree Ranganathaswamy Bhovi vs Smt.M.B.Sarvamangalamma on 14 June, 2022
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
WRIT PETITION NO.23913/2013 (S-RES)
WRIT PETITION NO.1844 OF 2022 (T - IT)
BETWEEN:
SREE RANGANATHASWAMY BHOVI
VIDYA SAMSTHE (REGD)
REPRESENTED BY ITS SECRETARY
SRI Y. RAMESH S/O LATE YELLAPPA
AGED ABOUT 38 YEARS
O/AT NERLIGE VILLAGE
DAVANAGERE TALUK & DISTRICT - 577 002.
... PETITIONER
(BY SRI M.S. HARISH KUMAR, ADVOCATE)
AND:
1. SMT. M.B. SARVAMANGALAMMA
D/O M. BASAPPA
AGED ABOUT 52 YEARS
ASSISTANT TEACHER
T.B. CIRCLE, SASALU VILLAGE
DAVANAGERE TALUK - 577 002.
2. THE JOINT DIRECTOR OF
PUBLIC INSTRUCTIONS,
NRUPATUNGA ROAD
BANGALORE - 560 001.
3. THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTIONS,
HADADI ROAD
DAVANAGERE DISTRICT
DAVANAGERE - 577 002.
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4. YOGENDRA NAIKA H.B.,
S/O HARJANAIKA
AGED ABOUT 42 YEARS
ASSISTANT TEACHER,
HALLI MALLAPURA VILLAGE,
KARIKATTE POST
CHANNAGIRI TALUK
DAVANAGERE DISTRICT - 577 213.
... RESPONDENTS
(BY SRI. T.I. ABDULLA, ADVOCATE FOR R1;
SRI D.C. PARAMESWARAIAH, HCGP FOR R2 & R3;
SRI M. NARAYANAPPA, ADVOCATE FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER DATED 25-04-2013 PASSED BY THE PRINCIPAL
DISTRICT & SESSIONS JUDGE AT DAVANAGERE IN M.A.(EAT)
11/2009 VIDE ANNEXURE-H AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT, MADE THE FOLLOWING:
ORDER
The petitioner is a Society registered under the provisions of the Karnataka Societies Registration Act and has been running a school in the name of Sri Jagadguru Renukacharya Residential High School at Dodda Abbigere, Channagiri Taluk.
2. It is further submitted that respondent no1 was appointed as Assistant Teacher on 14.03.1986 in the said school. It is stated that on 31.04.1994, sister-in-law of the 3 first respondent is alleged to have committed suicide and in that regard, the police authorities have registered FIR and filed charge-sheet against the accused including respondent no.1 as regards the offence under Section 302 r/w 34 of IPC.
3. It is further stated that after the trial, judgment came to be passed whereby the trial court had acquitted the accused as regards commission of the offence as per the judgment of the learned Sessions Judge in S.C.No.82/1994.
4. It is made out from the facts that as against the said judgment of acquittal, an appeal came to be filed before this court challenging the order of acquittal in Crl.A 713/1996. The appeal came to be allowed and the accused including the first respondent were convicted for an offence punishable under Section 302 r/w 34 of IPC, as per the order passed on 01.10.2001. It is relevant to state that the petitioner was then taken into custody on 19.11.2001 and was released on bail only on 03.05.2002. 4
5. It is stated by the learned counsel for respondents that the first respondent came to be released on bail and after which she sought for duty, which was not accepted by the petitioner Institution. It is stated that eventually, the respondent no.1 came to be dismissed as per the order passed by the petitioner dated 28.08.2002 pursuant to the enquiry, which order has been challenged in M.A.No.10/2002. The Miscellaneous Appeal was withdrawn on 11.08.2006 with liberty to file afresh after disposal of the appeal pending before the Apex Court in Crl.A 1/2002. It is further made out from the facts that the Apex Court allowed Crl.A 1/2002 and acquitted the first respondent as regards the offence by judgment dated 22.09.2008.
6. It is further made out from the facts that respondent no.1 after the judgment of acquittal has challenged the order of dismissal in M.A. (EAT) 11/2009 before the Principal District & Sessions Judge at Davangere. The said appeal came to be allowed by the Educational Appellate Tribunal on 01.06.2011 with necessary directions, 5 directing the petitioner to reinstate the first respondent to the post held by her without any back wages. The said order of the Appellate Authority came to be challenged by the petitioner by filing W.P.No.23594/2011 which came to be allowed on 13.07.2011 partly by remanding the matter back for consideration with a direction to implead respondent no.4 herein, while making certain other observations relating to the appointment of respondent no.4 vis-a-vis post of the petitioner herein. Upon remand, the proceedings were resumed before the EAT and the order came to be passed on 25.04.2013, whereby the appeal came to be allowed and the impugned order of petitioner dated 28.08.2002 dismissing the respondent no.1 from the post of Assistant Teacher came to be set aside with a further direction to pay back wages to the petitioner from 16.02.2012. The said order has been challenged in the present proceedings.
7. The learned counsel for petitioner has contended that the Appellate Authority's order is contrary to the facts 6 and the Appellate Authority has proceeded on the premise that the only imputation made out against the first respondent was the order of conviction by the court. It is submitted that the order of imputation made out also relates to unauthorised absence which had not been taken note of by the Appellate Authority and accordingly, the Appellate Authority has merely relied on the acquittal of the petitioner and such order cannot stand legal scrutiny.
8. It is further submitted by the learned counsel for petitioner that acquittal by virtue of order the Apex Court was only on 22.09.2008, while the order of termination was on 28.08.2002 as on which date, the petitioner was convicted for the offence and the said aspect has not been properly appreciated by the Appellate Tribunal.
9. Countering the contention made by the first respondent, it is contended that absence of proper representation in the appeal proceedings cannot in any way lessen the burden of respondent no.1 to establish that the order passed is legally sustainable.
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10. The learned counsel for respondent, Sri. T.I.Abdulla has submitted that scope of interference in writ proceedings as against the order of Appellate Tribunal is limited and findings of fact cannot be interfered with. It is further submitted that the order passed terminating the petitioner does not discuss evidence in coming to the conclusion that respondent no.1 had committed misconduct by unauthorised absence warranting termination. It is submitted that a perusal of the order of removal passed by the Committee constituted by the petitioner does not made out any detailed reasoning regarding the ground made out for removal except that the first respondent had suffered a judgment of conviction.
11. It is further contended that as regards the contention that proceedings were initiated against the petitioner also as regards unauthorised absence, no specific charge was made out. Even otherwise, the finding of the Committee regarding unauthorised absence as is noticed at Page 19 of the order of the Disciplinary Authority that the 8 petitioner was unauthorisedly absent from 08.11.2011, which in fact is to be appreciated keeping in mind that the petitioner was taken into custody after the judgment of conviction in Crl.A 713/1996 and remained in custody till getting bail from 19.11.2001 till 03.05.2002. Accordingly, it is submitted that in light of the petitioner being in custody during the relevant period of time, such absence cannot be stated to be willful warranting action to be taken and even if it is admitted for the sake of argument that the Appellate Tribunal did not consider the aspect of unauthorised absence, no ground is made for interference in this proceedings in light of the admitted fact that the first respondent was in custody between 19.11.2001 to 03.05.2002 and accordingly the question of unauthorised absence would not arise.
12. As regards the contention of the petitioner that the matter ought to be remanded for fresh consideration with liberty to initiate fresh enquiry, it is contended that the first respondent herein has attained the age of 9 superannuation on 24.06.2017 and any order passed at this stage would cause undue prejudice as the first respondent is suffering from bad health and will not be in a position to participate in any such enquiry. It is further submitted that the question of allowing the writ petition would arise only if grounds are made out for interference in the order of the Appellate Tribunal and no ground is made out by the petitioner warranting such interference in the order of the Appellate Authority and accordingly seeks for dismissal of the petition.
13. Though the learned counsel for respondent no.4 has advanced arguments for the limited purpose of present proceedings, the aspect of fourth respondent's employment need not be adverted to nor are any arguments advanced assailing the impugned orders findings as regards the fourth respondent.
14. What needs to be noted at the outset is that the inquiry that is held by the employer must be in terms of the Karnataka Civil Services (C.C.A.) Rules, 1957 ("KCS (CCA) 10 Rules" for short) and in specific with respect to procedure prescribed under Rule 11.
Rule 11 of the KCS (CCA) Rules provides that where the Disciplinary Authority is of the opinion that there are grounds to inquire into truth of any imputation of misconduct, such enquiry can be held by the Disciplinary Authority or by the Enquiring Authority that is set up. The procedure prescribed under Rule 11 (3) onwards is clear and Rule 11 (3) provides that the Disciplinary Authority shall draw up a statement of the imputations of misconduct in support of each article of charge. What should be the contents of Articles of Charges is further specified in Rule 11 (3) of the said Rules.
15. In the present case, a perusal of the order of the Committee of the Management at Annexure-'C' does not reveal framing of articles of charges as envisaged under Rule 11. Though the learned counsel for petitioner has drawn attention to the internal page 14 of the order of dismissal and points out to the imputations contained 11 therein, however it could be safely stated that the same is not in accordance with the requirement under Rule 11 (3). The clarity in the charges that is required is absent. The vague imputation made regarding unauthorised absence does not state till which date she was absent, as she was admittedly in custody from 19.11.2001 till 03.05.2002. Accordingly, though it is contended by the petitioner that the petitioner is required to explain absence after coming out on bail, imputation made throws no clarity as regards such aspect. Any finding as regards such charge is bound to prejudice the petitioner.
16. The Appellate Authority has taken note of the order of acquittal passed by the Apex Court and has proceeded to allow the appeal while referring to the order of acquittal. The Appellate Authority has also noticed the role of the petitioner in not placing before the authorities the details regarding appointment of the fourth respondent and has taken offence as regards such conduct while imposing cost.
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17. No doubt, the Appellate Authority has observed at Para 11 that apart from the conviction, there was no allegation of misconduct.
18. Even for a moment if the contention of the petitioner is accepted that the first respondent was absent from duty and such imputation has been spelt out in the order terminating the petitioner, it is clear that reference to unauthorised absence as regards the first respondent was from 19.10.2001.
The admitted facts being the first respondent was in custody from 19.10.2001 till 03.05.2002, when the first respondent was enlarged on bail. Such absence of first respondent cannot be termed to be unauthorised absence as unauthorised absence requires absence to be willful. Accordingly, even if the charge of unauthorised absence was made out in the enquiry proceedings, any conclusion of unauthorised absence would not have stood legal scrutiny. Accordingly, even on the ground of unauthorised absence as contended by the petitioner, no ground is made out for 13 interference with the order of the Appellate Authority as regards unauthorised absence.
19. Even otherwise, as pointed out, there is no specific article of charge in terms of Rule 11 (3) of the CCA Rules. The imputation made out at internal page 14 of the order of Committee are not with sufficient clarity as required under Rule 11 (3) (ii) of the CCA Rules. The petitioner's contention that after respondent no.1 was enlarged on bail, she ought to have been reported for duty and she has not participated in the enquiry proceedings subsequently, would not come to the aid of the petitioner insofar as the order of the Committee merely spells out of the punishment on the premise that first respondent was convicted.
20. In fact, the learned counsel for respondent has asserted that the first respondent had presented herself before the petitioner institution to report for duty on 13.05.2002 and the Head Master had refused to take her on duty. The substance of the charge as may be inferred is 14 only that the petitioner was convicted in the proceedings before the court. As noticed earlier, the charge itself is not framed as required and only has to be discerned. If there is no other imputation of misconduct of moral turpitude, then the judgment of acquittal in Criminal Appeal 1/2022 is by itself a ground to close the departmental enquiry initiated as regards conviction. In fact, the Apex Court has adverted to the defective framing of charge. A perusal of the judgment would also reveal that the imputations are essentially against accused nos.1 and 2 and the respondent has been lugged in by virtue of Section 34 of IPC. Accordingly, acquittal by the order of the Apex Court is sufficient to grant relief to respondent no.1. It was further argued by the learned counsel for respondent that permission was sought on 01.06.2002 from the authorities of the State having supervisory control over the aided institution to report for duty but in light of any positive direction, she was constrained to remain absent. Such assertion of fact not being disturbed in the appeal proceedings (Para 8 of the order in M.A. No.10/2002) no warrant is made out to take 15 any contrary view in the present proceedings. In fact, the petitioner institution has failed to effectively participate in the appeal proceedings as observed by the Appellate Authority at para 4 and 6 of the order passed in M.A.No.11/2009. Accordingly, no ground is made out for interference with the order of the Appellate Authority. There is no ground made out even to consider the petitioner's prayer for a remand for fresh enquiry as the petitioner is stated to have attained superannuation on 24.06.2017 and is stated to be keeping indifferent health, while it is reiterated that no grounds have been made out to interfere with the order of the Appellate Authority even for the limited purpose of a remand.
21. It is also necessary to note that the service conditions of the fourth respondent ought not to be the subject matter directly or indirectly in the present proceedings as the same is outside the purview of the order of the Appellate Authority which is being questioned in the present proceedings. Accordingly, the petition is dismissed. 16
22. In light of the first respondent having attained superannuation on 24.06.2017, direction for payment of back wages in terms of the order of the Appellate Authority, needless to state, is required to be complied with and any delay beyond the period of three months from today would result in the petitioner being liable to any interest on the arrears of back wages at 6% per annum till the date of payment. In light of the first respondent having attained superannuation on 24.06.2017, the first respondent is at liberty to move the authorities including the State for disbursal of the retirement benefits and the petitioner herein is directed to send necessary records to the State Authorities for appropriate order for disbursal of retirement benefits.
Sd/-
JUDGE Np/-