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Karnataka High Court

Sri Durga Parameshwari Temple vs Smt K Bharathi on 15 February, 2012

Author: K.Sreedhar Rao

Bench: K.Sreedhar Rao

                         1             W.A1915/2006




IN THE HIGh COURT OF KARNATAKA AT BANGALORE

   DATED THIS THE l5TFi DAY OF FEBRUARY 2012

                     PRESENT:

   THE HONBLE MR.JUSTICE K.SREEDHAR RAO

                        AND

       THE HON'BLE MR.JUSTICE V.SURI APPA RAO

          WRIT APPEAL No.1915/2006 (S-RES)

BETWEEN:

SRI DURGA PARAMESHWARI TEMPLE
FIRST GRADE COLLEGE,
KATEEL. (Sri DURGA CENTRE
FOR POST GRADUATE
STUDIES AND RESEARCH
IN SANSKRIT. KATEEL)
REPRESENTED BY THE
ADMINISTRATOR
(ASSISTANT COMMISSIONER)
MANGALORE, D.K.
                                       APPELLANT
(By Sri.RS.RAJAGOPAL. Sr.COUNSEL FOR
 Sri.NATARAJA BALLAL. Adv.)

AND:

SMT K BHARATHI
W/O ARAVINDA
AGED ABOUT 31 YEARS
KONDELA HOUSE
                             2                   W.A1915/2006




KONI)ELA VILLAGE
MANGALORE TALUK.
                                           RESPONDENT
(By SrLS V SHASTRI, Sr.Adv. FOR C/R)



    THIS WRiT APPEAL IS FILED U/S 4 OF TIlE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE
THE ORDER PASSED IN THE WRIT PETITION
18911/2006 DATED 18.9.2006.

    This appeal coming on for final hearing this day,
SREEDHAR RAO, J., delivered the following:

                   JUDGMENT

The respondent was appointed as a Lecturer in Veda Tanthra Agama Diploma Course in the Post Graduate Studies and Research Centre in Sanskrit, Kateel, in the College of the appellant. The terms and conditions of the order of appointment vide Annexure -- B is as follows:

fixed salary of Rs, 1,500/ is payable per month;

it) her appointment is only Jor the current academic year;

lit) the appointee should acquire and pass (NET / UGC) and after obtaining permission of the 3 W.A1915/2006 Deputy Commissioner her appointment shall be to the permcrnent post:

iv,1 the appointee shall perform all curricular, co curricular activities notUied by the director qf the Sanskrit Post Graduate Centre and principal of the College:

v) the management reserves its rights to terminate the services of the appointee without assigning any reasons:

vi) this letter of appointment shall come into force from the date of joining of the duty, i.e., 01.01.2000:

vii) the appointee should follow all the rules and regulations of the institute.

2. The respondent was relieved from service vide order at Annexure -- dated 28.05.2005, which is as follows:

Smt.Bharathi K working as temporary / fulltime lecturer in Diploma Course in the institute of SrLDurga Centre for Post Graduate Studies and Research in Sanskrit has been relieved from the service from the afternoon of 23.04.2005".

C

3. The respondent aggrieved by the said order filed an appeal before Education Appellate Tribunal (E.A.T), Mangalore. The Tribunal allowed the appeal and directed re-instatement of the respondent. At the time of filing writ petition, the respondent had not acquired the requisite qualification of Nrr-UGC, which was not stated in the discharge order.

4. The College Management aggrieved by the said order has field this appeal.

5. Srl.P.S.RaJagopal, Senior Counsel for the appellant relied upon a decision of the DMslon Bench of this Court reported in 2004(1) Kar.L.J. 532 (DIvision Bench) {Management of M.S.Ramalah Medical College and Hospital. Bangalore -vs- Dr.M.Somashekar}. In the said decision, in Pan - 7, the following observation are made:

"7. TermInation of senices is broadly classjiled into those Imposed by way of 4 5 W.A1915/2006 punishment and those which are not. Dismissal' and 'removal' are terminations by way of punishment. The word 'dismissal' refers to a punishment. which debars an employee from seeking further employment with his employer in future. The word 'removal' rejèrs to a punishment which, however, may enable the employee concerned to seek re-employment with the employer even after such removal. The words 'dismissal', 'removal', or 'reduction in rank' unless otherwise defined, always refer to imposition of punishment or penalty, by way disciplinary action or by way of vtctimisation. The terms 'dismissal' or 'removal' are not used to refer to terminations other than by way of punishment/penalty. On the other hand, a retrenchment refrrs to a termination otherwise than as a punishment. either as an economy measure or on account of the services of the employee becoming surplus. 'Termination simpliciter' refers to a termination in terms of the contract, otherwise than by way of punishment/ 6 W.A1915/2006 '3, penalty or retrenchment Section 94(1) makes It clear than an appeal to the Educational AppeUate Tribunal would be only where the punishment or penalty of dismissaL removal or reductinn In ranlc Is Imposed on the employee. f a termination is a mere retrenchment or termination simpliciter. the remedy will not be by way of an appeal to the TrIbunal under Section 94(1). nor by way of an appeal to the Competent Authority under Section 94(5).

6. In view of the above observations, It Is argued that the termination being simpliciter and not by way of penalty, the appeal under Section 94 Is not maintainable. The remedy at the most for the respondent would be to approach the Government and invoke revislonal powers under SectIon 131 of Karnataka EducatIon Act.

7. The counsel In the alternative submItted that the order of appointment stipulates that the appointment Is only temporary and that respondent should pass NET UGC and thereafter after obtaining permission from 7 W.A1915/2006 e Deputy Commissioner, appointment shall be made permanent. The appointment order also stipulates that the Management reserves right to terminate the appointee without assigning any reasons. In the Instant case, In Paragraph No.3 of the objection statement before the 'Tribunal, it Is clearly stated that the qualification of NET-UQC was necessary and the respondent did not pass the examination and therefore, she has been relieved of the service and the termination is simpliciter for want of requisite qualification.

8. The counsel in reply to the contention of the respondent contended that the question of jurisdiction can be urged at anytime in the collateral proceedings if the order Is nullity. The Thbunal has no jurisdiction to entertain the case. The objection regarding jurisdIction was very much taken up. The Thbunal has not answered the jurisdictional question, therefore, it cannot 8 W.A1915/2006 be contended that the objection regarding jurisdiction is taken for the first time in the appeal.

9. Sri.S.V.Shastri, learned counsel lbr the respondent relied upon the decision of the full Benc h decision of this Court in ILR 1998 KAR 2366 (St.Josep h's Higher Prtrnary School vs- Srnt.J.Rose Mary arid others) to contend that the Tribunal will have jurisdiction even in a case where the termination is simpliciter.

10. The counsel referred to the Karnataka Education Rules and submitted that the period of probation for a person appointed is two years and the Management can extend probation by further six months. The effect of the Rule is that, if the Management does not exercise the discretion to confirm the probation within the prescribed time. there would be a deemed declaration of probation in favour of the respondent. The counsel submitted that the order of the learned single 9 W.A1915/2006 .

Judge is sound and proper and prayed for dismissal of the appeal.

11. On thorough contentions of the learned counsel on record, it is evident that the order of termination is simpliciter. The appointment order makes it a condition precedent that the respondent should pass NWF-UGC and thereafter with the approval of the Deputy Commissioner, her appointment would be made permanent. The respondent Is also not appointed as a probationer. She has been appointed only as a temporary lecturer. The order of termination may not give reason for relieving the respondent from duties and also does not cause any stigma, infact before the Tribunal and before this Court, It was strenuously submitted that the respondent had to be relieved from service since she did not acquired the requisite qualification of NET-UGC even after five years. The respondent does not controvert this fact of not

4..

possessing NET-UGC qualification, which is a condition stipulated in the appointment order.

12. The contention that the objection with regard to jurisdiction is urged for the first time in the writ petition does not appear to be correct because in the objection statement before the Tribunal, the appellant has taken this objection. The decision of this Court in the case of M.S.Ramaiah Medical College and Hospital, referred supra, it is held that, if the termination is simpliciter and not punitive, an appeal will not lye under Section 94. The remedy shall have to be only by invoking the revisional powers under Section 131 of the Act.

13. With regard to declaration of probation, the Rules referred to by the counsel for the respondent has no application to the facts of the case because the said Rules pertain to the aided primary and higher secondary schools. The appellant is not an aided institution and the appellant is conducting courses in P.G. and diploma 11 W.A1915/2006 courses. Therefore, the contention that the respondent Is deemed to have been absorbed Into permanent service Is an untenable contention.

14. For the reasons discussed above, the appeal Is allowed. The respondent Is at liberty to Invoke the revlslonal powers of Government In accordance with law.

sai JUDGE sal JUDGE dh