Bangalore District Court
Smt.K.Renuka @ Renuka Prasad vs ) The Secretary on 19 November, 2018
BEFORE THE EDUCATIONAL APPELLATE TRIBUNAL
BENGALURU CITY
(CCH NO.11)
Dated this the 19th day of November, 2018
PRESENT: SRI.RAMA NAIK, B.Com., LL.B.,
Member & VI Addl. City Civil & Sessions Judge,
Bengaluru City.
M.A(EAT).NO: 11/2002
APPELLANT : Smt.K.Renuka @ Renuka Prasad
W/o.Dr.Jayaprasad.H.V
Aged about 40 years,
R/at No.27, 2nd Cross,
Govinayakanahalli,
Kumaraswamy Layout,
J.P.Nagar Post, Bengaluru-560 078.
[By PleaderSri.M.S.Parthsarathi]
/Vs/
RESPONDENTS : 1) The Secretary,
Sri Kumaran Children's Home
Educational Council,
Tata Silk Farm, Basavanagudi,
Bengaluru-560 004.
[By Pleader Sri.M.V.Subba Rao]
2) The Deputy Director of Public
Instruction
Bangalore South,
Kalasipalyam, Bengaluru-560 002.
3) The Block Educational Officer
South Region I, Southend Circle,
Jayanagar, Bengaluru-560 011.
[Exparte]
--
M.A(EAT): 11/2002
2
JUDGMENT
This appeal is filed by the Appellant under Section 94 of the Karnataka Education Act, 1983 for declaration declaring the Termination Order dated 06.03.2002 issued in respect of Appellant by the 1st Respondent as unjust and illegal and for quashing the said order and also for directing the 1st Respondent to continue the Appellant in service as Assistant Mistress of Kumaran Children's High School, Basavanagudi, Bengaluru and for such other orders.
2) The factual matrix of the Appellant's case is that, Sri Kumaran Children's Home Educational Council is a registered body and it is running 'Sri Kumaran Children's Home High School, Bengaluru.' The Institution is also registered in No.1994-SBNG- 01-SB-0234-HCU-GM dated 12.12.1995 by the Department of Public Instruction under the provisions of Karnataka Education Act. The Institution is enjoying the recognition granted by M.A(EAT): 11/2002 3 the Government and Department of Public Instruction without grant-in-aid on permanent basis. The Institution is also subjected to the inspection by the Officers of the Department of Public Instruction as per provisions of the Karnataka Education Act.
It is stated that the Appellant has acquired qualification of M.A. in Sanskrit, accordingly, she was appointed as High School Teacher in Sudarshan Vidya Mandir, Bengaluru and worked there for the period from 15.06.1992 to 30.04.1996. It is further stated that, the 1 st Respondent Management of Sri Kumaran Children's Home Educational Council advertised the post of Sanskrit Teacher in 'Deccan Herald' daily on 14.04.1996 and called for applications from the qualified teachers. Accordingly, the Appellant submitted application to the Respondent management, the same was considered and the Appellant was appointed as Sanskrit Teacher of Kumaran Children's Home High School, M.A(EAT): 11/2002 4 Basavanagudi, Bangalore, as per the Respondent Management letter dated 29.04.1996. It is also stated that though the Appellant was appointed on a regular basis as per Rule 6 of 1978 Rules, she was proposed to be relieved of her duties from 10.04.1997 as per Management's letter dated 10.03.1997 and directed to submit application for re-appointment on regular basis once again. Accordingly, the Appellant submitted representation on 24.03.1997, the same was considered and again she was re-appointed on regular basis as Sanskrit Teacher of Kumaran Children's Home High School, Bengaluru, as per Management letter dated 03.04.1997. It is stated that the Appellant was appointed in the 1st Respondent Institution from the year 1996 to 1997 and she has been allotted a full work load of 28 periods as per Teacher's time-table for the year 2001-02. It is further stated that, Kumaran Children's Home High School which is running under the management of the 1st Respondent has M.A(EAT): 11/2002 5 sufficient strength and it is maintaining 4 Sections in each standard of 8th, 9th and 10th standards of the High School classes. It is also stated that, since there are 12 Sections, 18 teachers excluding the Head Mistress are admissible as per staffing pattern contemplated under the provisions of Grant-in-Aid Code for Secondary Schools, which is also applicable to the unaided Institution. It is also stated that the Appellant being an employee of the recognized Private Educational Institution, is governed by the Karnataka Education Institutions (Discipline & Control) Rules 1978, saved under Section 146 of the Karnataka Education Act 1983, Grant-in-Aid Code of Secondary Schools and Karnataka Civil Service Rules 1958. It is stated that the Appellant has been removed from the service as per impugned order dated 06.03.2002 without assigning proper reason even after putting in an unblemished service for a period of six years. The removal/termination of the Appellant from the service without framing charges or conducting any M.A(EAT): 11/2002 6 inquiry, is unjust, illegal and contrary to the principles of natural justice. It is further stated that even if it is treated as retrenchment, the principle that would be followed for retrenchment with the prior approval of the competent authority of Department as per Section 98 of the Karnataka Education Act, 1983 on the condition of ' last come first go'. The Appellant has put in service of six years and there were six teachers who are juniors to the Appellant in the Institution. The Management cannot resort to removing a senior employee retaining juniors, if the management is resorting to retrenchment. Hence, prays for allowing the appeal as prayed.
3) The Respondent No.2 and 3 did not mark their appearance in this case despite service of notice, hence, they have been placed exparte.
4) The Respondent No.1 appeared through its Advocate and filed its statement of objection, wherein, it is contended that the Appellant is M.A(EAT): 11/2002 7 appointed as a temporary teacher for one year and she did not possess requisite qualification of bachelor of education. The Appellant was qualified only to teach Sanskrit subject and not any other subject. Whereas, the other teachers in the school were able to teach all subjects. It is further contended that the Education Department raised objections with regard to opening of new section and as such, the work-load of Sanskrit subject was reduced and it became necessary to retrench the Appellant as she was not capable of teaching other subjects other than Sanskrit. It is contended that the services of the Appellant was not terminated for misconduct, no inquiry was conducted. It is also contended that even though the Appellant has a postgraduate qualification in Sanskrit, she doesn't possesses the stipulated qualification of bachelor education, which is also required for being appointed as Teacher in School. According to Rules of the Institution, a Teacher is appointed on temporary basis in the first instance and after the M.A(EAT): 11/2002 8 end of the academic year, the teacher is given an opportunity to apply for re-appointment. If selected, the teacher will continue for another year on probation. It is contended that the rules of Grant-in-aid code do not have statutory force and cannot be enforced. The appointment of six more teachers since May, 1996 is not relevant, since their appointment is in different subjects. Article 311 of the Constitution of India has no relevance since the same is not applicable to a Private Educational Institution. Since inspection on the school is contemplated under the Karnataka Education Act, will not amount to control by the Government. In the case of the Appellant, the Managing Committee of the Council has taken a decision to retrench the Appellant and there has been no violation in this case. The contention of 'last come first go' as per Section 98 of the Karnataka Education Act, has been followed at the Managing Committee Meeting held to discuss the case of the Appellant. It is also contended that without prejudice to the contention M.A(EAT): 11/2002 9 of the Management that the termination of services of the Appellant does not amount to retrenchment, in any event, even a confirmed teacher can also be retrenched if found surplus. In the absence of Kannada Teacher, Mrs.Rashmi.G, the Appellant was asked to teach Kannada language and the Appellant regretted her inability. The Respondent School had therefore, to appoint a teacher to teach Kannada, who is also teaching social studies and Sanskrit. It is further contended that, the Appellant was retained in the year 2001 as a Sanskrit Teacher solely because Mrs.Mangalakumari, the senior most teacher had asked for long leave. The Appellant's husband is a well to do Doctor and the financial difficulty placed may not be real at all. Lastly it is contended that, no rules or provisions have been violated, hence, prays for dismissal of the appeal.
5) Heard. Perused the pleadings and records placed in this case.
M.A(EAT): 11/2002 10
6) The points that arise for my consideration are :-
(1) Whether the Appellant was appointed as a permanent teacher with artificial break?
(2) Whether the order of
termination is in
punitive in nature?
(3) Whether the termination order
is unjust and
illegal?
(4) Whether the Appellant is
entitled to the relief
as prayed for?
(5) What Order?
7) In this case, the Appellant has been examined as
P.W.1 and got marked Exs.P.1 to P.17 in support of her case. The Principal and Secretary of the 1 st Respondent i.e. Smt.Meenakshi Balakrishnan and Smt.Deepa Sridhar have been examined as R.W.1 and R.W.2 respectively and got marked Exs.R.1 to R.11.
8) My answer to the above points are :
Point No.1 - In the Affirmative;
M.A(EAT): 11/2002 11 Point No.2 - In the Affirmative;
Point No.3 - In the Affirmative;
Point No.4 - In the Affirmative;
Point No.5 - As per final order, for the following :
REASONS
9) Before adverting to points for consideration, it is relevant to mention the proceedings which were taken place in this case.
After institution of this appeal, the same was heard on maintainability and this Court was pleased to pass an order dated 29.07.2003 stating that the appeal filed by the Appellant is not maintainable. Against the said dismissal order, the Appellant preferred Writ Petition before the Hon'ble High Court of Karnataka in W.P.No.17330/2004 [S-DIS]. The Hon'ble High Court of Karnataka was pleased to allow the said Writ Petition on 05.01.2017, wherein, the Tribunal was directed to hold an inquiry after affording an opportunity to both the parties to lead their evidence and record findings M.A(EAT): 11/2002 12 bearing in mind the observation made in paragraph-10 of the decision of the Division Bench Judgment in the case of MANAGEMENT OF M.S.RAMAIAH MEDICAL COLLEGE AND HOSPITAL VS. DR.M.SOMASHEKAR [ILR 2004 Karnataka 37]. The Tribunal was also directed to record a finding as to whether the Appellant was a temporary teacher or a permanent teacher? With this observation, the matter was remanded.
After remanding the matter, the parties led their evidence, documents were marked and judgment was pronounced on 26.11.2009. Against the said judgment, a Writ Petition was preferred by the 1st Respondent before the Hon'ble High Court of Karnataka in W.P.No.6507/2010 [S.RES] and the same was allowed on 19.07.2018 by setting aside the order dated 26.11.2009 passed by this Court. The matter was remanded for fresh consideration in compliance with the orders dated 05.01.2007 passed in W.P.No.17330/2004. In the backdrop of the directions of the Hon'ble High Court of M.A(EAT): 11/2002 13 Karnataka in the above Writ Petitions, the present case is taken up for consideration.
10) It is relevant to mention the decision reported in ILR 2004 KAR 37 in the case of MANAGEMENT OF M.S.RAMAIAH MEDICAL COLLEGE VS. DR.M.SOMASHEKAR, wherein it has been held at para-10 that :
" An imposition of punishment, by way of dismissal/removal/reduction in the rank, to be valid, has to be preceded by a disciplinary enquiry, as required under Section 92(1)(b). But all terminations, not preceded by a disciplinary enquiry, are not necessarily terminations simplicitor. Any termination on the ground 'services no longer required', if on examination by the Tribunal is found to be punitive in nature, passed either to victimise the employee or as a disciplinary measure will be a 'dismissal or removal'. If the order of dismissal, removal or reduction in rank is passed as a punishment, after a fair and proper domestic enquiry, it will be valid, subject however to principle of proportionality (of punishment). On the other hand, if the order, though termed as termination or retrenchment is really intended to be punitive, either without holding any enquiry or to victimise the employee, then it will be illegal and liable for interference. If the employee is not able to satisfy the Tribunal that the order appealed against is by way of penalty and the Tribunal is satisfied that the order is a termination Simplicitor or is a retrenchment, the appeal will have to be rejected".
M.A(EAT): 11/2002 14 It is, therefore, necessary to decide two questions. First, whether the Appellant was working as a temporary teacher or permanent teacher? And secondly, whether the order of termination is punitive in nature or it is the case of service no longer required? These two questions are covered in Point No.1 and 2, which are being discussed herewith.
11) Point No.1 :
" Whether Appellant was working as a temporary teacher or permanent teacher?"
The Appellant states that she has acquired requisite qualification in Sanskrit to teach the students of High School and accordingly, she taught the students of Sudarshan Vidya Mandir, Bengaluru, for the period from 15.06.1992 to 30.04.1996. The Appellant further states that she submitted application to the 1st Respondent for appointing her as a Sanskrit teacher in view of advertisement in 'Deccan Herald' daily and the 1st Respondent appointed her as Sanskrit teacher as per M.A(EAT): 11/2002 15 Management's letter dated 29.04.1996 on regular basis as per Rule 6 of the Karnataka Private Educational Institutions (Discipline & Control) Rules 1978 and she was proposed to be relieved of her duties from 10.04.1997 as per Management's letter dated 10.03.1997 and she was directed to submit application for re-appointment on regular basis once again. Accordingly, the Appellant submitted representation on 24.03.1997 and she was re-
appointed on regular basis as Sanskrit teacher as per Management's letter dated 03.04.1997. The Appellant also states that she was allotted full work-
load of 28 periods as per Teacher's time-table.
12) The 1st Respondent states that the Appellant was appointed as a temporary teacher for a period of one year. According to the Rules of the 1 st Respondent, a teacher is appointed on temporary basis in the first instance and after the end of the academic year, the teacher is given an opportunity to apply for re-appointment; if selected, the teacher M.A(EAT): 11/2002 16 will continue for another year on probation. The 1 st Respondent further states that, the Appellant was retained in the year 2001-02 as a Sanskrit teacher solely because Mrs.Mangalakumari, a senior most teacher, Sanskrit Department had asked for long leave from June, 2001 to go to United States.
13) The 1st Respondent has produced in the evidence of RW.2, the bio-data and SSLC Certificate of the Appellant at Ex.R.9 and Ex.R.10, which were submitted by the Appellant to the 1st Respondent at the time of her appointment. In Ex.R.9, the Appellant has stated her qualification as B.Com., and M.A., in Sanskrit and her work experience is shown as worked as part-time Lecturer for about 3 years at Maharani's and N.S.V.K Junior College and working as Assistant Mistress since 1992 at Sudarshan Vidya Mandir High School Section. It is important to note that, these informations mentioned by the Appellant in Ex.R.9 were considered by the 1st Respondent and she was appointed as Sanskrit Teacher. The Appellant has M.A(EAT): 11/2002 17 produced Service Certificate dated 30.04.1996 at Ex.P.1 issued by Sudarshan Vidya Mandir to substantiate the fact that she had teaching experience. From Ex.P.1 and Ex.R.9, it is clear that the Appellant had requisite qualification in Sanskrit and she had teaching experience while appointing her as a Teacher to teach Sanskrit in the 1 st Respondent's School.
14) The next important document is, the Letter dated 29.04.1996, whereby, the Appellant was appointed for the post of Assistant Teacher. The said document has been marked as Ex.P.2 in the evidence of the Appellant. The same letter has also been produced and marked as Ex.R.2 in the evidence of RW.1. It is relevant to reproduce paragraphs-2, 3 and 5 of Ex.P.2 (Ex.R.2) which reads as follows :-
"2. Your appointment is subject to the following conditions :
(i) The appointment is purely on
temporary basis which ceases
automatically at the end of the academic year 1996-97 (the date on which the School is closed for summer vacation).
M.A(EAT): 11/2002 18
(ii) During the aforesaid period of your appointment, your services may be terminated at any time by the undersigned without assigning any reasons.
(iii) This appointment will not confer on you any right to claim for any future appointment in the Institution.
3. You are strictly governed by the terms and conditions of service in accordance with the Rules and Regulations (Sri Kumaran Children's Home Educational Council Conduct, Discipline, Control and Service Rules 1987) and the amendments made by the Management thereto from time to time.
5. You are required to report for duty on 22.05.1996 positively at 9 a.m."
15) The 1st Respondent has also produced Letter dated 16.08.2001 at Ex.R.5 in the evidence of R.W.1. Ex.P.2(Ex.R.2) issued on 29.04.1996 and Ex.R.5 issued on 16.08.2001 are on the same terms and conditions with changes in the date and pay scales and rest of the contents are one and the same. It is important to note that between the period of 29.04.1996 and 16.08.2001, no such letters have been issued to the Appellant to discontinue her services in the 1 st Respondent.
M.A(EAT): 11/2002 19 The Appellant had been working as an Assistant Teacher till her termination from the service without interruption. This fact has been established by the Contribution Cards for the currency period from 1 st April, 1996 to 31st March, 1997; 1st April, 1997 to 31st March, 1998 and 1st April, 1999 to 31st March, 2000. The said Contribution Cards have been marked in the evidence of the Appellant as Exs.P.12, P.13 and P.14 respectively. It is important to note that the Account No.KN8278/498 which was given in the year 1996-97, the same Account Number was continued thereafter. As per Ex.P.2, the Appellant was asked to report for duty on 22.05.1996. As per para-2(i) of Ex.P.2, the appointment was to be ceased at the end of the academic year 1996-97 (the date on which the School is closed for summer vacation). Ex.P.3 is the letter dated 10.03.1997 issued by the 1 st Respondent to the Appellant, wherein, it is stated that the Appellant is relieved from 10th April, 1997 and she will not be paid summer vacation salary. In M.A(EAT): 11/2002 20 the said letter, the Appellant was requested to submit the application for re-appointment before 10th April, 1997. Accordingly, the Appellant was re- appointed vide letter dated 03.04.1997. The re- appointment letter dated 03.04.1997 has been marked as Ex.P.4.
16) Now coming to Exs.P.12, P.13 and P.14, the Contribution Cards, if the Appellant was a temporary employee and if really she was re- appointed, she should not be paid salary for the month of summer vacation. However, she was paid up to date salary from June, 1996 and the same was paid in April, May and June, 1997 and so on under the same Account Number. This fact is established by Ex.P.12, Ex.P.13 and Ex.P.14. If really she was relieved by the 1st Respondent from 10th April, 1997 as per Ex.P.3, the question of payment of Provident Fund for the month of Summer Vacation did not arise at all. If she were not the permanent employee, the same Provident M.A(EAT): 11/2002 21 Fund Account could not be continued after her alleged re-appointment. Moreover, there are remark columns in Exs.P.12, P.13 and P.14. The said remark columns are (a) Date of leaving service; (b) Reason for leaving service; and (c) Certificate.
The said remark columns remained left blank. If the Appellant was relieved from the services, the same would be mentioned in the said remark columns.
17) The Appellant has produced Office Order dated 29.06.1998 and 22.06.1996 at Ex.P.6 and Ex.P.7, wherein, the Appellant was granted Basic Pay, Dearness Allowance and Increment as that of other teachers in the 1st Respondent School. For giving these benefits, the Appellant never be treated as temporary employee. In Ex.P.6 and Ex.P.7, her seniority is also mentioned. The Appellant has also produced documents relating to new scales of pay effective from 1st June, 1999, two Earnings Slips and Office Order dated 01.06.2001.
M.A(EAT): 11/2002 22 The said documents have been marked as Exs.P.8 to P.11. These documents establish the fact that the Appellant was given the benefit of new pay scale and other benefits at par with other teachers.
18) Ex.R.5 produced by the 1 st Respondent in the evidence of R.W.1 falsifies the version of the 1 st Respondent that the Appellant is a temporary employee. First of all, Ex.R.5 does not bear the signature and it is shown as O/c (office copy). The most important is that, Ex.R.5 is issued by the 1 st Respondent on 16.08.2001 to the Appellant and the Appellant was requested to report for duty on 16.08.2001 at 9.00 A.M i.e. on the same day. The Appellant has produced the Pass-book of State Bank of India, which is marked as Ex.P.17. On perusal of Ex.P.17, it is clear that, since the date of appointment till her termination, the entire salary during the period of service of the Appellant was credited to her account including the salary for the year 2001. Under such circumstances, it can be said that Ex.R.5 is nothing but staged document.
M.A(EAT): 11/2002 23 Ex.R.5 was constructed to show the appointment of the Appellant as temporary.
19) The 1st Respondent has produced the rules framed by the 1st Respondent in the evidence of R.W.1, which is marked as Ex.R.1. The 1st Respondent has much relied upon Ex.R.1. It is relevant to mention Rule No.4.3 of Ex.R.1, which reads as follows :
" 4.3 The candidates selected for any post in the Institution shall be appointed on temporary basis for one academic year and their appointments will automatically cease at the end of the academic year.
In the event of the said candidate/candidates being appointed in the next academic year, he/they shall be on probation for a period of one year subject to the same being extended at the discretion of the Management for any further period /periods.
During the period of probation, the Management reserves the right to terminate the services of the employees without assigning any reasons thereof. This appointment may be terminated by either side by giving 15 days' notice or 15 days' salary in lieu thereof.
M.A(EAT): 11/2002
24
Those employees who
successfully complete the period of probation, shall continue to be on temporary basis till such time they are confirmed."
Rule 4.3 makes it clear that, the candidates selected for the post shall be appointed on temporary basis for one academic year and their appointments will automatically ceases at the end of the academic year. Here, the Appellant was appointed in June,1996. As per rules, her appointment ceases to exist in April, 1997. She was re-appointed in the same year 1997. The rules are that, in the event of being appointed in the next academic year, they shall be on probation for a period of one year subject to being extended. Here, the Appellant after her re-appointment continued in service till 2002. After her re- appointment, it can be said that her probationary period was completed in the month of April, 1998. Moreover, during the continuance of her service, after completion of maximum period of probation of one year, no further period of probation was M.A(EAT): 11/2002 25 extended. As per Rules of the 1 st Respondent, the probation period is one year, it is the maximum probation period prescribed in the Rules.
20) At this juncture, it is relevant to mention Rule 7 of the Karnataka Private Educational Institution Rules, 1978, hereinafter called as 'Model Rules'. Rule 7 reads as follows :
" A person appointed under Rule 6(1) shall be on probation for a period of one year provided that the Board of Management may extend the period of probation by a further period of 6 months."
Rule 7 of the Model Rules provides that, the Board of Management may extend the period of probation by a further period of six months. Further extension of probationary period is not mandatory under the provision of Rule 7 of Model Rules, but the Board may exercise its rights. Assuming that in view of proviso to Rule 7, the probation period of Appellant was extended for six months, the same would be completed in October, 1998. Thereafter, her probationary period shall be M.A(EAT): 11/2002 26 treated as deemed confirmation. The 1st Respondent cannot say that it is not bound by Model Rules, because, Model Rules have been framed under the Karnataka Private Educational Act, 1975 to provide for better discipline and control over Private Educational Institution in the State, which are recognized by the State Government. The said Rules are still in force as the State has not framed any Rules under the Karnataka Education Act, 1983. Therefore, Rules of the 1st Respondent should be in conformity with the Model Rules. The Rules framed by the Private Educational Institutions should not be ultra virus. The 1st Respondent has relied upon Rule 29(1)(c)(ii) of the Model Rules. It deals that the employee shall abide by the Rules and Regulations of the Institution and also show due respect to the constituted body. The Rules and Regulations indicated in Rule 29 relate to Code of Conduct for employees. It does not give any power to frame Rules by Private Educational Institution. On the M.A(EAT): 11/2002 27 contrary, Section 3(2) of the Karnataka Private Educational Institutions Act, 1975 mandates that Model Rules made by the State Government shall be adopted by the Private Educational Institutions. It is relevant to mention Section 3(1) and (2) of the Karnataka Educational Institutions Act, 1975, which reads as under:
" 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."
The Model Rules came into effect from 31.01.1978. The 1st Respondent School came to be registered on 12.12.1995. The 1 st Respondent has M.A(EAT): 11/2002 28 framed its Rules in the year 1997. It should be in conformity with the Model Rules framed by the State Government. It cannot frame its own Rules regarding probation of the employee against the Model Rules. If it does so, the Model Rules will prevail over the Rules framed by the Private Educational Institutions. Hence, having regard to the Model Rules, the maximum probation period can be reckoned up to 1½ years. Thereafter, if the service of the employee is not regularized, it shall be treated as deemed confirmation.
21) In this regard, reliance may be placed on the decision reported in-
2002 (4) KCCR 2185 Karnataka High Court [ M/s.Poornaprajna Education Centre, Belur Vs. Pushpa] " A. KARNATAKA EDUCATION ACT, 1983 - Section 92 -
KARNATAKA PRIVATE
EDUCATIONAL INSTITUTIONS
(DISCIPLINE & CONTROL) RULES
1978- Rule 7 - Period of Probation -
If the probation rules are silent regarding the confirmation of period M.A(EAT): 11/2002 29 of probation of an employee in writing, after the expiry of the probationary period, the probationary period of such an employee is deemed to be confirmed.
B. KARNATAKA EDUCATION ACT, 1983 - Section 145 and 146(3) -
KARNATAKA PRIVATE EDUCATIONAL INSTITUTIONS (DISCIPLINE & CONTROL) RULES 1978- Rule 7 - The Act of 1983 came into effect from
20/1/1995 - In the absence of Rules required to be framed under Section 145 of the Act of 1983, the Rules of 1978 framed under the repealed Act of 1975 are applicable to the Private Education Institution with regard to the service conditions of the employees and for other purposes.
Rule 7 of 1978 Rules provides for probationary period of one year and the same can be extended by another six months in writing by the appointing authority. There is no provision under Rule 7 that the probationary period of an employee shall continue till the said probationary period is confirmed in writing."
AIR 1996 (SC) 1286 [Sri Rabinarayan Vs. State of Orissa and Others] " (A) Constitution of India, Pre.
And Art 14 - Appointment -
Teacher - Practice of adhocism
by giving appointment on 89
days basis with one day break, it
M.A(EAT): 11/2002
30
suffers from vice of
discrimination."
Teacher - Appointment -
Practice of giving appointment on 89 days basis with one day break -
Discriminatory.
(B) Orissa Aided Educational Institutions ( Appointment of Teachers Validation) Act (1989), S.3 - Appointment - Teacher -
Validation - Appointment between dates, appointment between which is made condition for validation of appointment - He, working for 4 years with approval of authorities - Managing Committee also utilising his services afterwards without approval - Teacher is ended regularization of appointment."
22) The Respondent No.1 has relied upon the decision of the Hon'ble Supreme Court of India reported in 1992 - IL.L.N 376 in Civil Appeal No.778/1975, dated 11.04.1990 in the case of K.A.Barot and State of Gujarat and Others, wherein it is held :
" 1. Probationer - Status of -
Probationer in absence of clear order of confirmation does not get confirmed status - However, it is open to appointing authority to confer a status other than that of confirmed status:"
M.A(EAT): 11/2002 31 Having regard to the facts and circumstances of this case, the ratio laid down in the above decision does not help to the case of the 1st Respondent. Therefore it can be said that the Appellant's re-appointment is nothing but artificial break. She was in continuous service since the date of appointment till her termination. Under such circumstances, this court comes to the conclusion that the Appellant was a permanent employee of the 1st Respondent, accordingly, I answer Point No.1 in the affirmative.
23) Point No.2 :
Whether the order of termination is punitive in nature or it is the case of service no longer required?
The 1st Respondent has taken the contention that "in August 2000, the Education Department raised objections to the school opening 5th section and a show cause notice was served on the School. The workload of Sanskrit is 7 periods per class per week. At present the school has 4 sections in High School. In the academic year 2002-2003 since the department raised M.A(EAT): 11/2002 32 objections the sections were reduced from 5 to 4 and the number of Sanskrit class to be taken for standards 8th to 10th will only be 63 periods per week and this amount of work can be managed by 2 teachers only. If the School has only 2 sections in 8th Standard with Sanskrit, it will be only 56 periods. In case the Institution is forced to have a third section in 8 th Standard with Sanskrit, the existing teachers can take care of extra workload by giving extra work to the 2 teachers by allotting 28-30 periods a week for a teacher. Hence, there is no need for taking additional teachers."
24) The Appellant has contended that "the Appellant has put in six years of service without any blemish and she is handling 28 periods per week. The High School is having strength of 573 for the year 2000-
01 and there are 18 teachers, excluding the Head Mistress. There were five sections in each standard in the school at the time of appointment of the Appellant and this continued up to the academic year 1998-99. From the academic year 1999-2000, the no. of sections in each standard was reduced to four. From 1999-2000 M.A(EAT): 11/2002 33 to 2001-02 the Appellant has been continued in the service even after reducing the no. of sections in each standard. And the Appellant is within the admissible staffing pattern as per G.A.Code. The contention of the Respondent management that the services of the Appellant are not required due to reduction in work load after reducing the no. of sections is untenable, as the Appellant is handling 28 periods per week even in 2001- 02 when there were only four sections in each standard, whereas the work load prescribed for each staff is only 26 periods."
25) At this stage it is relevant to mention Ex.P.5- Time-Table provided to the Appellant by the 1 st Respondent, wherein, she was allotted 28 periods per week to teach 8th 'A', 'D'; and 9th 'A' and 'C' standards. As per time-table she was to teach five periods on Monday, Tuesday, Thursday; six periods on Wednesday; four periods on Friday and three periods on Saturday. In all, she had to teach 28 periods per week. The appellant has specially stated that she was handling 28 periods per week.
M.A(EAT): 11/2002 34 Moreover, R.W.1 in her cross-examination has categorically admitted as follows:
".... At the time of removal from service appellant was taking 24 to 30 periods per week in our school. I can only say that teacher at Sl.No.19 Sriharsha was even capable of teaching other subjects also, but he was not teaching Sanskrit. I have not stated in my affidavit evidence that he was teaching Sanskrit. At the time of this appointment Sriharsha was doing B.Ed but he had not completed, subsequently he completed it."
Hence, it is clear that in the year 2001-02 at the time of termination from the service of the Appellant, the Appellant was teaching 28 periods per week and there were four divisions in 8th Standard. It is also important to note that the Appellant was appointed on 24.05.1996 as Sanskrit Teacher. At the time of her appointment, two senior most Sanskrit Teachers i.e. Smt.Mangalakumari and Sri. Anandatirtha, who were appointed in the year 1988 and 1992 respectively were teaching Sanskrit subject. If the contentions of the 1st Respondent that, the existing M.A(EAT): 11/2002 35 teachers can take care of extra work load by giving extra work to two teachers, were accepted, the question of appointment of Appellant as Sanskrit teacher did not arise at all. The 1 st Respondent has contended that the department raised objections to the school opening 5th Section and a show-cause notice was served on the School. It is noticed that, before intending to open 5th Section, the two senior most Sanskrit Teachers and the Appellant were teaching the Sanskrit subject. It indicates that there were sufficient strength of students in the school. The 1st Respondent has not produced any documents to show that it was intended to open 5 th Division and objections raised by the Department. Respondent No.1 put a suggestion to the Appellant that the 8th standard had only two sections. This contention of the Respondent is against Ex.P.5, wherein, the Appellant was allotted to teach 8 th 'D' standard also. Further, it is the contention of the Respondent No.1 that, the senior most Sanskrit teacher was going on long leave to go to USA in the M.A(EAT): 11/2002 36 year 2001. When matter stood thus, the only teachers to teach Sanskrit were Mr.Anandatirtha and the Appellant herein. Under such circumstances, the contention of the 1st Respondent that the Appellant was a surplus teacher to teach Sanskrit cannot be accepted. The 1st Respondent was trying to project that one Sri. Sriharsha was teaching Sanskrit subject. This version of the Respondent No.1 has been falsified in the evidence of R.W.1. R.W.1 in her cross- examination has deposed as follows :
"--------- I can only say that teacher at Sl.No.19 Sriharsha was even capable of teaching other subjects also, but he was not teaching Sanskrit. "
One more contention raised by 1 st Respondent is that, it is an unaided school. The requirements of grant-in-aid code are not applicable to the school. Having regard to the work allotted to the Appellant at Ex.P.5, it can be said that the 1 st Respondent has adopted the grant-in-aid code. R.W.1 in her cross- examination has specifically deposed that :
M.A(EAT): 11/2002 37 " ..... Though ours is not aided school and grant-in-aid code is not applicable to our school, for allotment of work load, we follow the guidance provided in Grant- in-aid code. .........."
For all these reasons, it can be said that the Appellant was provided with full workload to teach Sanskrit subject throughout her service. When fact stood thus, she cannot be treated as surplus teacher. When it is established that she is not a surplus teacher, under such circumstances, she cannot be retrenched.
26) At the same time, the 1st Respondent has also contended that "the Appellant could only teach Sanskrit and no other subjects as compared to others who are capable of teaching other languages and other subjects also, and therefore the School require their services more than the Appellant".
This contention is wholly contrary to the contention that the Appellant was a surplus teacher. Here, the reason to terminate the Appellant has M.A(EAT): 11/2002 38 been unfolded. It is important to note that the Appellant was appointed to teach language subject i.e. Sanskrit subject, as she had acquired qualification of Master Degree in Sanskrit, besides the past experience of teaching. Accordingly, her service was utilized by the 1 st Respondent. When the 1st Respondent appointed the Appellant for teaching Sanskrit after considering her qualification and her service was utilized by the 1st Respondent till her termination, under such circumstances, the 1st Respondent cannot say that she is not competent to teach any other subjects. The 1 st Respondent's contention is that, since the Appellant is unable to teach other subjects, it had to appoint a teacher to teach Kannada, who is also teaching Social studies and Sanskrit. The 1 st Respondent has produced a letter of acceptance dated 16.08.2001, request letter dated 04.06.2001 and Bio-data dated 04.06.2001. These three documents were produced by Sri.U.Sriharsha to the 1st Respondent. The said documents have been marked as Exs.R.6, R.7 and M.A(EAT): 11/2002 39 R.8 in the evidence of R.W.1. Ex.P.8, Bio-data wherein the said Mr.U.Sriharsha has mentioned in qualification column that "will be doing B.Ed., soon". It indicates that the Management appointed said Mr.U.Sriharsha even though he did not possess qualification of B.Ed. When matter being thus, the contention of the 1st Respondent that, B.Ed. graduates are taught teaching method, does not have any force. The said Mr.U.Sriharsha did possess qualification in Master Degree in Sanskrit, which is mentioned in Ex.P.8. It appears that having taken Master Degree qualification of Mr.U.Sriharsha in Sanskirt, the 1st Respondent had received the acceptance letter on 16.07.2001 at Ex.P.6, wherein, it is stated that he will be joining duty on 16.08.2001. It is most relevant to mention that on the same date i.e. 16.08.2001, the 1 st Respondent had created a artificial break in the service of the Appellant at Ex.R.5, where under, the Appellant was required to report for duty on 16.08.2001 even though she was in continuous service since the date M.A(EAT): 11/2002 40 of her appointment. It is crystal clear that, Ex.R.5 is nothing but fabricated document which was created to give opportunity to Mr.U.Sriharsha in the 1st Respondent school and thereby, the appellant was made a scapegoat. Under such circumstances, it can be said that termination of the Appellant is not due to surplus of the teacher in Sanskrit subject, it is only to retain the teacher Mr.U.Sriharsha. Hence, it is made clear that termination is not due to retrenchment, but it is purely punitive in nature. Under such circumstances, the discussion in respect of 'last come first go' will be futile exercise.
27) The 1st Respondent has relied upon the decision of the Hon'ble Supreme Court of India in [S.L.P. (C) No.1079/1998 dated February 6, 1998] in the case of Uptron India Ltd., and Shammi Bhan & Another, wherein it is held that, "Industrial Disputes Act, 1947- Secs.2(oo) and 24-F - 'Retrenchment' - In absence of fixed term in contract, question of termination in pursuance of stipulation therein does M.A(EAT): 11/2002 41 not arise - Present case was held to be one of retrenchment." When the retrenchment is held as punitive in nature, this decision does not come to the aid of the 1st Respondent.
28) The 1st Respondent also relies upon the decision reported in (2001) 7 Supreme Court Cases 161 in the case of High Court of M.P. through Registrar and others Vs. Satya Narayan Jhavar, wherein it has been held that:
" There are three lines of cases decided by Supreme Court on the question of deemed confirmation. One line of cases is where in the service rules or in the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of Probation.
The other line of cases is where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The M.A(EAT): 11/2002 42 inference in such cases is that the officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case, before its expiry, the order of termination has not been passed.
The last line of cases is where, though under the rules a maximum period of probation is prescribed, but the same requires a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor has the person concerned passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired."
The Appellant's case comes under the ratio laid down in second line (other line) of cases. Hence, having regard to the facts and circumstances of the case, the said decision is not applicable to the facts of the 1st Respondent's case.
For the foregoing discussions, I am of the opinion that termination of the Appellant by the 1st Respondent is not retrenchment, it is nothing but punitive in nature. Accordingly, I answer Point No.2 in the affirmative.
M.A(EAT): 11/2002 43
29) Point No.3 : The 1st Respondent has contended that since the services of the Appellant were not terminated for any misconduct, the question of conducting inquiry will not arise. However, it has been established as stated in Point No.2 that, the termination of the Appellant is nothing but punitive in nature. The Relieving letter at Ex.P.17 issued by the 1st Respondent, wherein, it is simply stated that the work load is reduced, the Appellant is relieved. The reason, which the 1st Respondent mentioned in Ex.P.17 has also not been established as held in Point No.1 that the termination of the Appellant is not due to surplus of the teacher in Sanskrit subject, it is only to retain the teacher, Mr.U.Sriharsha and the said termination is purely punitive in nature. Once termination is not found to be as retrenchment, the burden lies upon the 1st Respondent to prove that termination is in accordance with law.
M.A(EAT): 11/2002 44
30) It is relevant to mention Section 92 of the Karnataka Education Act, 1983.
" 92. Dismissal, removal etc.- (1) Subject to such rules as may be made in this behalf, no teacher or other employee of a private educational institution shall be dismissed, removed or reduced in rank except,-
(a) in accordance with the conditions of service governing him;
(b) 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 the said charges, and where it is proposed after such inquiry to impose on him such penalty, it may impose such penalty, on the basis of the evidence adduced during such inquiry:
Provided that this sub-section shall not apply to temporary employees or to the dismissal, removal or reduction in rank of a teacher or other employee on the ground of misconduct which has led to his conviction on a criminal charge involving moral turpitude."
31) It is crystal clear that, the 1st Respondent has not followed any of the procedures as laid down in Section 94 of the Act. Simply, it says that termination is not in the nature of punishment, it is purely retrenchment due to surplus of teacher. The said contention is nothing but evasive and no M.A(EAT): 11/2002 45 justification can be offered in view of the established fact that termination is nothing but punitive in nature. Hence, in view of the discussions made in Point No.2, it can be said that the termination order is unjust and illegal and the same requires to be set aside, accordingly, I answer the Point No.3 in the affirmative.
32) Point No.4 : At the time of filing this appeal, the Appellant was aged about 40 years.
She has stated that she is being put to lot of hardship by this termination, as her career itself is in jeopardy and she cannot take up the job with other Institutions due to age factor. The 1st Respondent states that the Appellant's husband is well to do Doctor and the financial difficulty placed may not be real at all. This contention of the 1 st Respondent is not tenable and it should not be a ground to the 1st Respondent. If the 1st Respondent proved that the Appellant worked for gain in other Institution or she was in employment after M.A(EAT): 11/2002 46 termination, then, it could be considered. However, the Respondent has not made out any such ground. Since the Appellant did not work for gain after her termination, she shall be reinstated to her post in the 1st Respondent's School. The 1st Respondent has produced the list of employees who retired from service for the last 10 years, which is marked as Ex.P.11, wherein, the employees are shown to have retired at the age of 55 years. Ex.P.11 shows that the age of superannuation is 55 years. The 1 st Respondent has also led evidence in this regard. The Appellant's date of birth as per Ex.R.10-SSLC Certificate is 04.01.1963. She has completed her 55 years on 04.01.2018. Under such circumstances, she cannot be reinstated. However, she can be suitably compensated by granting her back-wages and other benefits, accordingly, I answer Point No.4 in the Affirmative.
M.A(EAT): 11/2002 47
33) Point No.5: In view of the foregoing discussions and answers to Point No.1 to 4, I proceed to pass the following :
ORDER (1) The Appeal filed by the Appellant under Section 94 of the Karnataka Education Act, 1983; is hereby allowed.
(2) The Termination Order
dated 06.03.2002 issued by 1st
Respondent Management is
hereby set aside.
(3) The 1st Respondent is
hereby directed to pay the
Appellant her back-wages and
other benefits from the date of her termination from service till the date of she attaining the age of superannuation i.e. 04.01.2018 (4) No order as to costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open Court, dated this the 19th day of November, 2018.) (RAMA NAIK) Member & VI Addl.City Civil & Sessions Judge Bengaluru City.
M.A(EAT): 11/2002 48 ANNEXURE I. List of witnesses examined on behalf of :
(a) Appellant's side :
P.W.1 - Smt.K.Renuka @ Renuka Prasad, dtd.15.03.2008
(b) Respondents side :
R.W.1 - Mrs.Meenakshi Balakrishnan, dtd.20.12.2008 R.W.2 - Smt.Deepa Sridha, dtd.27.08.2018 II. List of documents exhibited on behalf of :
(a) Appellant's side :
Ex.P.1 - Service Certificate dtd.30.04.1996 issued by Principal of The Sudharshan Vidya Mandir Ex.P.2 - Appointment letter dtd.29.04.1996 issued by Respondent No.1 Ex.P.3 - Letter dtd.10.03.1997 Issued by Respondent No.1 Ex.P.4 - Re-appointment letter dtd.03.04.1997 issued by Respondent No.1 Ex.P.5 - Time-table of Respondent No.1 school, concerning to the classes to be taken by P.W.1 Ex.P.6 - The Office Order dtd.29.06.1998 of Respondent No.1 School Ex.P.7 - Office order dtd.22.06.1999 of Respondent No.1 School M.A(EAT): 11/2002 49 Ex.P.8 - New Scales of Scale of Pay of members of Teaching Staff/other Staff effective from 01.06.1999 Ex.P.9 and P.10 - Pay Slips of P.W.1 Ex.P.11 - Office Order dtd.01.06.2001 issued by Respondent No.1 Ex.P.12 to 14 - Form-3A issued by Respondent No.1 School relating to Provident Fund Scheme Ex.P.15 - Office Order dtd. 31.07.1998 issued by Respondent No.1 Ex. P.16 - Office Order dtd.01.06.2000 issued by Respondent No.1 Ex.P.17 - Bank Pass-book of P.W.1 Ex.P.17 - Relieving Letter dtd.06.03.2002 issued by Respondent No.1
(b) Respondent's side :
Ex.R.1 - Conduct and Discipline Rules of Respondent No.1 Institution. Ex.R.2 - Appointment Order dtd.29.04.1996 issued to Appellant Ex.R.3 - Letter dtd.27.07.2002 along with cheque for Rs.20,699/- to the Secretary of Respondent No.1 Institution Ex.R.4 - Details of staff members of Respondent Institution Ex.R.5 - Appointment Letter dtd.16.08.2001 50 issued to Sri.Sriharsha for the post of Assistant Teacher M.A(EAT): 11/2002 50 Ex.R.6 - Acceptance letter of Sri.Sriharsha, dtd.16.08.2001 Ex.R.7 - Application dtd.04.06.2001 of Mr.U.Sriharsha Ex.R.8 - Bio-data of Sri.Sriharsha Ex.R.9 - Copy of Bio-date of Appellant-
Smt.K.Renuka Ex.R.10 - Copy of SSLC marks card of the Appellant Ex.R.11 - True copy of list of employees who retired from services during last 10 years.
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Member & VI Addl.City Civil & Sessions Judge, Bengaluru City.