Karnataka High Court
Mary Teresa Morris vs Management Of St. Anne'S Educational ... on 21 September, 1994
Equivalent citations: ILR1994KAR3152, 1995(1)KARLJ497
ORDER Mohan Kumar, J.
1. These four Revision Petitions raise a common question and hence were heard together and are being disposed of by a Common Order. The petitioners herein were appointed as probationary teachers under the 1st respondent. The period of probation as per the appointment orders is two years. The date of appointment are as follows:
i) Petitioner in CRP No. 2550/94 16-5-1992 (She commenced to work from 1-6-1992)
ii) Petitioner in CRP No. 2551/94 1-8-1992
iii) Petitioner in CRP No. 2552/94 25-6-1992 (It is her case that she commenced to work from 1-6-1991)
iv) Petitioner in CRP No. 2553/94 25-6-1992 (In her case the appointment order is dated 1-6-1992) By order dated 28-3-1994, i.e., before the completion of two years, their services were terminated with effect from 31-3-1994. This termination has been challenged by the petitioners by filing appeals before the Educational Appellate Tribunal. The appeals were presented on 7-4-1994 and the Tribunal passed an interim order in the following manner on 7-4-1994 itself:
"Heard I.A.No.I. The impugned order of termination dated 28-3-1994 is stayed pending disposal of the appeal and the appellant shall be allowed to discharge her duties in the institution until further orders.
Issue notice to the respondents with notice on I.A.No.I."
Subsequent thereto a Cheque for the amount representing pay for one month in lieu of notice was sent on 3-5-1994. (The Management has a case, stated for the first time in the course of arguments before this Court, that the amount was tendered along with the termination order but was declined to be received by the petitioners). The Management appeared before the Tribunal and opposed the interim applications. The Tribunal, following the Decision reported in 1981 Kar.LJ.240 Mysore Riyasat Hindi Prachar Samiti v. Thimmaiah and Ors., has vacated the interim order, inter alia, holding that since the termination took-place before the interim order was passed, the said order has become infructuous and that the Tribunal has no jurisdiction to order reinstatement by means of an interim order. It is this order that is challenged in the above Revision Petitions.
2. The appeals preferred before the Tribunal by the petitioners are pending. Sri V. Gopala Gowda, learned Counsel for the petitioners; and Sri S. Vasanth Kumar, learned Counsel for the Management, addressed me on the several questions arising in the appeals at length. In view of the pendency of the appeals, I do not intend to advert to these contentions lest it will embarrass the final disposal of the appeals. Therefore, the consideration of the questions in these Revision Petitions need be confined to the scope of the Tribunal to grant interim orders in cases of these nature and its propriety in having vacated the interim orders granted.
3. The power of the Tribunal in this behalf are traceable to Section 10(4)(a) and (b) of the Karnataka Private Educational Institutions (Discipline & Control) Act, 1975, (hereinafter referred to as 'the Act'). The said provisions read as follows:
"10.....................
(4) The Educational Appellate Tribunal shall-
(a) for the purpose of the disposal of the appeals referred under this Act have the same powers as are vested in a Court of appeal under Code of Civil Procedure, 1908 (Central Act 5 of 1908):
(b) have the power to stay the operation of the order appealed against on such terms as it may think fit."
Sub-section (4)(b) expressly confers the power of granting of stay, whereas Sub-section (4)(a) confers the general power on the appellate authority.
4. According to the Tribunal, on the date when the interim order was passed, i.e., on 7-4-1994, the order of termination had already been given effect to and the order of stay cannot thereafter operate. On this view, it held that the interim order has become infructuous. As regards the 2nd portion of the order, it held that under Section 10(4)(b) of the Act, the Tribunal is not competent to issue a positive direction regarding reinstatement by way of interim order. This view was taken following the Decision referred to supra.
5. The primary consideration of the Appellate Authority in all cases when it entertains for consideration any application for interim orders is to examine whether any order passed by it will be in furtherance of the cause of justice. It may, in such cases, examine whether the appellant seeking interim relief would be in a position to secure ultimately a favourable order in the appeal. This does not mean that it is necessary for the applicant to establish that he has an absolute chance of success in the appeal. It is enough if he is able to demonstrate before the Appellate Authority that he has a strong case to be urged and to be examined by the appellate forum. In such circumstances it is only fair and proper that the Appellate Authority invokes its power and see that during the period of pendency of the appeal the parties are not put to hardship and loss.
6. By constituting a Tribunal under Section 8 of the ACT, the State has conferred the jurisdiction to adjudicate the dispute between the employee and the Management coming within the purview of the Act on the designated Tribunal. This Tribunal also decides legal question as also factual and by virtue of Section 11 of the Act, it is conferred with the exclusive jurisdiction to decide the questions brought before it which jurisdiction was till then exercised by the Civil Court. Apparently the Tribunals are being constituted with the enactment of newer legislation which expanded the duties of Government consequently necessitating discharge of a variety of functions and duties. Thereby these legislations conferred new rights giving rise to corresponding duties which necessarily gave rise to fresh crop of disputes necessitating adjudication of these disputes. Perhaps to avoid the over-crowding of the regular Courts, the Tribunal was constituted so as to deal exclusively with these disputes. No doubt, the constitution of this parallel body to adjudicate the dispute was earlier frowned upon. (See: Johnson's English Dictionary, where the word 'Excise' has been defined to mean "A hateful tax levied upon commodities, and adjudged not by the common judge of property, but wretches hired by those to whom excise is paid". This reflects how the constitution of the Tribunal was viewed). But with the passage of time, the Tribunals have come to stay and have become part of the Judicial System, Justice M.P. Menon in CHERU OUSEPH v. KUNJIPATHUMMA , has sketched the evolution of the Tribunals in brief, and has stated thus:
"4. We are today familiar with different kinds of tribunals appointed for different purposes and exercising different shades of power. There are tribunals for enquiry which merely collect data, and there are others which determine legal rights. Some exercise original jurisdiction while others enjoy appellate or revisional powers. We hear of 'special tribunals', 'statutory tribunals', and 'administrative tribunals'; despite the difference in names many of them are adjudicatory bodies, pure and simple. They dispense 'administrative justice' doing exactly the same 2. kind of work, in a specialised field, as ordinary courts of law, with the same degree of freedom from political pressure or official influence, In regard to this category at least, the proposition that a tribunal can exercise only those powers conferred by the statute creating it, has to be understood with caution, and its application limited to exercise of substantive powers, as distinct from matters which are purely procedural. The tendency of the English lawyer to deny wider powers to special tribunals has its origin in history. Memories of the Star Chamber and the ecclesiastical courts excited resentment in him; and the rule of law, as expounded by Dicey, appeared to many as the central feature of the British Constitution. It was felt that the powers exercised by politicians and officials must have a legitimate foundation, based on authority conferred by law and that the law itself should conform to certain minimum standards of justice, both substantive and procedural. The regular courts alone could be trusted with the power to affect individual liberty and rights, and the development of parallel adjudicating bodies like committees and tribunals was anathema. Dicey denied the very existence of such bodies in the British constitutional system. Lord Hewart whose eyes were more open revolted against the "new despotism" which neither looked nor functioned like a court of common law. To people like them, the creation of tribunals which interfered with freedom of property and contract, following an informal method of adjudication, was subversive of the rule of law. Nevertheless, the Donoughmore Committee conceded in 1932 that in exceptional circumstances 'ministerial tribunals' could be preferred to ordinary courts on grounds of cheapness, accessibility to parties, freedom from technicality, speed and expert knowledge of the subject matter. The Franks Committee report of 1957 was also not all praise for some of the administrative methods till then employed, but the Committee had no doubt about the usefulness and necessity of special tribunals to cope with the increasing activities the State was undertaking from time to time. It suggested the acceptance of some general and systematic, yet reasonably elastic, principles in the branch of administrative law, in the place of the chaos and disorder which was inevitable in the court of its unplanned and spasmodic growth. The Committee expressed the firm view that statutory tribunals were essentially adjudicating bodies and not appendages to the executive and that as in the case of other instruments of adjudication, their proceedings should be open, fair and impartial. Thus, despite the misgivings rammed down the throat of generation after generation of English lawyers, special tribunals came to stay, and even proliferate, if only for the reason that the ordinary courts of the land, both in the matter of number and expertise; were unequal to the task of resolving the baffling variety of disputes thrown up by complex social problems and the need for social control. Such tribunals, it was realised in course of time, had to be tolerated at least as a necessary evil. Even Dicey was forced to reconcile with this position, after the decision of the House of Lords in Local Govt. Board v. Arlidge (1915 AC 120). (See "An introduction to the Study of the Law of Constitution", Tenth Edn., Appendix, 2) when he wrote:-
"The imposition upon the government of new duties inevitably necessitates the acquisition by the government of extended authority. But this extension of authority almost implies, and certainly has in fact promoted, the transference to the departments of the Central Government of judicial or quasi judicial functions....it is obvious enough that there is a great convenience in leaving to a Government Department, which deals with any business in which large numbers of persons are interested (such, for example, as the payment of old age pensions, national health insurance or unemployment insurance) power to decide questions which are more or less of a judicial character....But we must remember that when the State undertakes the management of business properly so called and business which hitherto has been carried on by each individual citizen simply with a view to his interests, the government, or in the language of English law, the servants of the Crown, will be found to need that freedom of action necessarily possessed by every private person in the management of his own personal concerns...The management of business, in short, is not the same thing as the conduct of a trial."
5. While Dicey was prepared to recognise the need for adjudicating bodies outside the ordinary courts only in regard to matters of business "properly so-called", the very flexibility of the procedure found useful by him led to the creation of such bodies or tribunals in other areas also, with the result that even in England where their creation was being objected to on constitutional principles, tribunals have now become more and more the order of the day...."
7. The question then arises what is the extent of the power that can be exercised by an Appellate Tribunal in general while dealing with an interim application pending consideration of an appeal. In this behalf, we may refer to the decision of the Supreme Court in INCOME TAX OFFICER, CANNANORE v. M.K. MOHAMMED KUNHI AIR 1969 SC 430. There the question that arose for consideration was, whether the Income Tax Appellate Tribunal has powers to grant stay of recovery of the penalty imposed by the order impugned pending consideration of the appeal before it. While considering this question, their Lordships considered the powers of an appellate authority and stated at para-6 as follows:
"6. It is well known that an Income-tax Appellate Tribunal is not a court but it exercises judicial powers. The Tribunal's powers in dealing with appeals are of the widest amplitude and have in some cases been held similar to and identical with the powers of an appellate court under the Civil Procedure Code. (See Commissioner of Income-tax, Bombay City v. Hazarimal Nagji and Co., 1962-46 ITR 1168 (Bom) and New India Assurance Co.Ltd v. Commissioner of Income-tax, Excess Profits, Bombay City, . In Polini v. Gray, (1879) 12 Ch D 438 (Sic), Appeal to grant stay at page 443:
"It appears to me on principle that the Court ought to possess that jurisdiction, because the principle which underlines all orders for the preservation of property pending litigation is this, that the successful party is to reap the fruits of that litigation, and not obtain merely a barren success. That principle, as it appears to me, applies as much to the Court of first instance before the first trial, and to the Court of Appeal before the second trial, as to the Court of last instance before the hearing of the final appeal."
After referring to the Decisions of the Andhra Pradesh High Court, their Lordships stated at para-8 as follows:
"8. Section 255(5) of the Act does empower the Appellate Tribunal to regulate its own procedure, but it is very doubtful if the power of stay can be spelt out from that provision, in our opinion the Appellate Tribunal must be held to have the power to grant stay as incidental or ancillary to its appellate jurisdiction. This is particularly so when Section 220(6) deals expressly with a situation when an appeal is pending before the Appellate Assistant Commissioner but the Act is silent in that behalf when an appeal is pending before the Appellate Tribunal. It could well be said that when Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution and that the statutory power carries with it the duty in proper cases to make such orders for staying proceeding as will prevent the appeal if successful from being rendered nugatory."
(underlining for emphasis) It may be noted that in the above Cases there was no express conferment of powers on the appellate authority to grant any interim relief. Nevertheless, the Supreme Court after adverting to the general aspects of the appellate jurisdiction, held as above.
8. These points were again subject matter of consideration by the Supreme Court in COMMISSIONER OF INCOME-TAX, DELHI v. BANSI DHAR AND SONS . In that case, their Lordships were called upon to answer the question whether the High Court had jurisdiction to stay or pass interim orders pending references under Section 66 of the I.T.Act, 1922 or under Section 256 of the I.T.Act, 1961 before it While dealing with the question, their Lordships adverted to the existence of the inherent power in every Court and at para-18 their Lordships adverting to the Decision of the Calcutta High Court, stated as follows:
"...The division bench of the Calcutta High Court consisting of Woodroffe and Mookerjee, JJ, held that under the principle indicated by Section 583 of the Code of Civil Procedure a decree for reversal necessarily carried with it the right to restitution of all that had taken under the erroneous decree and the Appellate Court having seisin of the appeal, had as ancillary to its duty to grant restitution, an inherent power in the exercise of which it could, notwithstanding that the decree appealed against had been executed, call upon the respondent to furnish security for the due performance of any decree which might be made on the appeal. After discussing the facts the Court held that the Code of Civil Procedure bound the Courts so far as it went. The Code, was not exhaustive and did not affect the previously existing powers unless it took these away; in matters with which it did not deal, the Court could exercise an inherent jurisdiction to do that justice between the parties which was warranted under the circumstances and which the necessities of the case required. There was difference of opinion between Woodroffe, J., and Mookerjee, J., on the scope of applicability of Section 546 of the Code of Civil Procedure. Justice Woodroffe at page 931 of the report observed:-
"The Court has, therefore, in many cases where the circumstances required it, acted upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration for which it alone exists."
19. Similarly Justice Mookerjee observed at page 941 of the report as follows:-
"It may be added that the exercise by Courts of what are called their "inherent powers" or "incidental powers" is familiar in other systems of law, and such exercise is justified on the ground that it is necessary to make its ordinary exercise of jurisdiction effectual, because, "when jurisdiction has once attached, it continues necessarily and all the powers requisite to give it full and complete effect can be exercised, until the end of law shall be attained". (See Works on Courts and their Jurisdiction Section 27 and Wells on Jurisdiction of Courts, Chapter XVII)."
20. These observations, however, will have to be understood in the context in which the same were made. If there were jurisdiction to do certain matter then all powers to make that jurisdiction effective must be implied to the authority unless expressly prohibited. But in the references under 1922 Act as well as 1961 Act the Courts merely exercise an advisory or consultative jurisdiction while the appeals are kept pending before the tribunal, therefore, nothing should be implied as detracting from the jurisdiction of the tribunals. Power to grant stay is incidental and ancillary to the appellate jurisdiction...."
(underlining for emphasis).
No doubt, in that case the Supreme Court held that the High Court, while exercising advisory jurisdiction, has no power to grant stay or pass any interim order. Nevertheless, their Lordships held that where the Courts are constituted to do Justice to the litigants approaching the same, then it should, have all powers that are inherent for the discharge of that function. When a power is conferred on an authority, then as a corollary, it should have all incidental powers to discharge that power effectively. It is not necessary that there should be express conferment of that inherent power that an adjudicating body possesses. It is inherent in the Court by virtue of its duty to do Justice between the parties before it; that is to act ex debitio justitiae to do real and substantial justice to the parties before it. To put it differently, this power is essential if the Court or the Tribunal, as the case may be, has to give effect to the principle "Actus curiae neminem gravabit an act of the Court shall prejudice no man. The following passage from Administrative Law, Fifth Edition, H.W.R.Wade, at page 622 makes this aspect further clear:
"...If the court had a general power to suspend the operation of an administrative order until its validity could be determined, this could be used in suitable cases to project persons affected who would otherwise have to obey the order in the meantime, thereby perhaps suffering irreparable loss."
9. Hence, in the instant case, when the statute conferred the appellate jurisdiction on the Tribunal under Section 8 of the present Act and Section 10(4)(a) provided that the Appellate Authority can exercise all the powers that are vested in a Court of Appeal under the Code of Civil Procedure, it reiterated the conferment of all the powers on the Appellate Authority for doing all acts or employing such means as are essentially necessary to its execution and the said statutory power carries with it the duty in proper cases to make such orders or passing appropriate interim orders as will prevent the appeal if successful from being rendered nugatory. Therefore, the Tribunal, like all other appellate authorities, has inherent powers and all others concomitant powers that are needed to secure justice and can pass such orders that are necessary to do substantial Justice to the parties before it.
10. At the same time, in this behalf, one may turn to the observations of the Supreme Court in regard to the manner of exercise of such powers by the Appellate Authority. Their Lordships have dealt with this aspect and have stated thus at para-9 in AIR 1969 SC 430 as follows:
"...It is needless to point out that the power of stay by the Tribunal is not likely to be exercised in a routine way or as a matter of course in view of the special nature of taxation and revenue laws. It will only be when a strong prima facie case is made out that the tribunal will consider whether to stay the recovery proceedings and on what conditions and the stay will be granted in most deserving and appropriate cases where the tribunal is satisfied that the entire purpose of the appeal will be frustrated or rendered nugatory by allowing the recovery proceedings to continue during the pendency of the appeal. "
Therefore, if after the Tribunal examines and finds that a strong prima facie case has been made out, then it can exercise its inherent powers by passing appropriate orders to meet the ends of Justice so that the ultimate success in the appeal may be effective as well. To reiterate again, it can pass all such orders to offset any loss that may be caused to the parties due to the delay in the disposal of the appeal, that is to say, the act of the Tribunal shall not prejudice the party before it.
11. In the instant case one may notice that the petitioners have a fairly good case to be urged in appeal. It may be noticed that it is their contention that the termination is illegal as the same is opposed to the statutory provisions. The Tribunal will have to examine whether Rule 7 of the Rules framed under the Act prescribing one year as the period of probation will prevail over the prescription of the period of two years in the order of appointment. If the Rules prevail, then the Tribunal will have to examine as to what would be the effect if the appointee completes the period of probation as also the extended period under the Rules. Alternatively, the Tribunal may have to examine as to what would be the effect of the termination of the services of the probationer within the period of probation. It has also to consider as to what is the effect of termination of service without tendering notice pay simultaneously. These and other matters have to be examined by the Tribunal. Therefore, if the petitioners show that they have a fairly good case on merits of the case, then it is only proper that the Tribunal directs the parties to maintain the status quo that existed prior to the issuance of the impugned order.
12. Hence, from what is stated in the preceding paragraph, it can be seen that the petitioners have made out a strong case to be urged before the Tribunal in appeal. If that be so, it is only fair and proper that the Tribunal exercises its powers under Section 10(4)(a) and (b) of the Act to do Justice to the parties.
The Tribunal has to exercise its discretion keeping in view the above facts as well. The following passage from Justice and Administrative Law, by William A.Robson, Third Edition, at pages 401 and 402, may be adverted to in this behalf:
"The first condition imposed on the exercise of discretion is that the possessor of it must put his mind to the case and really use judgment in coming to a decision. He must not, that is to say, approach the matter with his mind already made up. He must not share the outlook of a certain income tax commissioner, who, when an appellant came before him seeking relief from liability to tax, asked him whether he had already seen the local surveyor of taxes, adding 'If you have, and cannot convince him, I am afraid there is little likelihood of your convincing us'. It is a desire to avoid this sort of prejudice that underlies the principle that if the jury do not 'honestly and judicially' approach the question before them, a new trial may be ordered. The case in hand must be looked at on its merits and not be determined without investigation by the light of some preconceived opinion on the subject. Thus, it is not a 'judicial exercise of their discretion' for licensing justices to pass a general resolution to refuse licensing certificates; nor were the London County Council permitted to pass a resolution to effect that no more permits to sell literature in the London parks should be granted, and then refuse an application made by a particular person for a permit to sell pamphlets. The court held that it was an improper exercise of their discretion for the council to pass a general resolution not to grant permission and then to act automatically on that resolution. A judicial discretion requires that the question shall not be a 'chose jugee', but shall be approached with an open mind."
13. Unfortunately in this case, the Tribunal has not approached the questions in this manner at all. It merely stated that prior to the issuance of interim order, the order has been given effect to and that the Tribunal has no power to order reinstatement pending the appeal: It did not exercise its discretion Judicially. This is clearly an illegality and there is a total non-application of mind by the Tribunal while dealing with interim application.
14. May be, by the time the challenge was brought before the Tribunal and its aid was sought, the order has been implemented. But it is totally incorrect to hold that the Tribunal cannot mould and grant appropriate reliefs to meet the ends of Justice. The Tribunal can always put the parties to the same position that they were occupying had not the order impugned been passed. That according to me is the power that is conferred on it under Section 10(4) (a) and (b) of the Act. Hence, the Tribunal is clothed with all the powers to issue appropriate direction in that behalf which meet the ends of Justice.
15. In this case the Management has stated that after termination of the service of the petitioners they have employed others in their place. If that be so, it may not be possible for them to reinstate the petitioners. That apart, this Court in 1981 Kar.L.J. 240, has also indicated that pending appeal the Tribunal may not order interim reinstatement of an employee whose services have been terminated. As rightly submitted by Shri Vasanth Kumar, learned Counsel for Management, that this Court felt that it may not be a healthy practice to reinstate an employee already out of service without the dispute being adjudicated upon. But it does not mean that in a given case even if the petitioners make out a fairly strong case to be urged in the appeal, they should be left with no relief and they should be made to suffer till the appeal is disposed off. The delay in the disposal of the appeal should not prejudice the appellants. In such an event, this Court can always mould the relief that can be granted. Hence, in these cases, the appropriate relief that can be granted by way of interim relief is to direct the Management to pay the salary of the petitioners till the appeal is disposed off as if they are continuing in service. Section 10(4) (a) will save the powers of the Tribunal to issue such a direction.
16. In the result, I set aside the order of the Tribunal and direct that the petitioners be paid their monthly salary as if they are in service till the Appellate Authority disposes off the appeals filed by the petitioners. The Revision Petitions are disposed off as above. In view of the direction issued, both the parties will co-operate and see that the appeals are disposed off as expeditiously as possible.
ORDERS ON IA-III
1. These Civil Revision Petitions were disposed of by me and orders were pronounced on 21-9-1994. After pronouncement of the" order Sri Gopala Gowda, Petitioners' Counsel submitted that a time limit may be stipulated for compliance of the order. At this stage, Sri. Vasantha Kumar, learned Counsel for respondents sought permission to move the above interlocutory application for seeking modification of the order in so far as it related to the payment of backwages is concerned. Accordingly he has filed IA- III, and the same came up for hearing to-day.
2. I have heard the learned Counsel for petitioners as well as the respondents. It is a fact that the School closed on 31-3-1994 and reopened only on 8-6-1994. The interim order was passed on 7-4-1994 i.e., prior to the reopening of the School. The Management submits that they have employed other teachers in the place of the petitioners and they are paying salary to them. It is mainly on that ground, the modification is sought. It is to be noted that on the date of reopening of the school i.e., 8-6-1994, the interim order passed by the Tribunal was in force. Hence there was no need for the Management to employ new teachers in the teeth of the interim order. The interim order granted was vacated by the Tribunal only on 16-7-1994. As per the interim order of the Tribunal respondents ought to have reinstated the petitioners into service when the school reopened. They did not do so. If as a matter of fact any other teacher was appointed then really the Management was flouting the orders of the Tribunal. Such a person deserves no indulgence from this Court. Hence IA-III has to be rejected and the same is rejected. As far as the payment of arrears is concerned the Management shall disburse the arrears of salary accrued due till then by 31-10-1994 and thereafter it shall continue to pay the salary of the petitioners as and when it falls due. The Tribunal may take up the appeals after 31-10-1994 and dispose of the same within two months therefrom.