Karnataka High Court
K Premchandran vs The Chairman School Managing Committee on 21 October, 2010
Author: A.S.Bopanna
Bench: A.S.Bopanna
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DATED THIS THE 213'? DAY OF OCTOBER 2010
BEFORE
THE HONBLE MR. JUSTICE As. EOPA&'NAVv'L',1+LA-II_j7 .
WRIT PETITION No. 3913/2005 (S¥D"IS}'v V *
BETWEEN: V O' O V 1' O
K PREMOHANDRAN
AGED ABOUT 45 YEARS
S /O P K HARICHANDRAN
NAMBIAR. R/AT NO. 23/
MAHESHWARI NILAYA _ ._ .
1ST FLOOR, 2ND YELLAMMAKOLIF'
STREET, ULSOOR _ H 'V
BANGALORE ~_..5aO O08 V' PETITIONER
{BY M/S _ ._
SR1 TS v¢&E§VKUMAR;v[pL[)V';)
AND:
1 THE "
. S.cHOOL._MANAG1NG COMMITTEE
~ PUBLIC SCHOOL
A « HQ=KK..& G SUBAREA
_ C.UBBQN.ROAD
'EAN_GALOr_faE A 560 001
2 ' .._44"THE'Pi;:11§1c1PAL
" ARMY 'PUBLIC SCHOOL
H,Q':~KK & G SUB AREA
~ CUBBON ROAE
._ {BANGALORE ---- 560 001
3} ARMY PUBLIC SCHOOL
HQ KK 81 G SUB AREA
CUBBON ROAD
A
[N3
3
BANGALORE -- 560 O0}
REP. BY ITS PRINCIPAL RESPONDENTS
{BY SMT. G LAXMI. ADV. FOR SR1 Y HARIPRASAD. CGSC. FOR R1 TO 3] THIS WRIT PETITION IS FILED UNDER ARTICLES 226"-« a 227 OF THE CONSTITUTION OF IND§,A. PR.1?1IYING;-~--._TO.___ QUASH THE ORDER DATED 2N9 FEBRUARY 2002 PA.SSE:3__f BY THE R1 DISCHARGING THE PETI"RONEjR '~EROIvI__ it SERVICES OF THE R3 SCHOOL :AND',4.REINSTATE 'THE PETITIONER To THE ORIGINAL POSITION j%IEI,D ,B"3--5* H~Ii:vI._ AT, THE TIME OF DISCHARGE FROM. SERVICE ~.W,I'i'~H* CONTINUITY OF SERVICE AND BACK" wAoES;=DIRECTION TO THE RESPONDENTS TO RESTORE .__ALI, I-EAcII;ITI'ES. AMENITIES AND SENIORITY WHIiC}i_THE'-P«E'1'ITIONER IS ENTITLED To IF HE WERE CONTINUEDIAIN THEV SERVICE. This Writ Petitiontétcoming hearing, this day, the Court made the following :' ._ A ' """
in question the order dated impugned at Annexure--D to '"'«--.thepetition."" ---------- -*By the Said memorandum, the "petitioner had been discharged. The petitioneVr.--c:1€aiItning to be aggrieved by the same had t3"~<.___"initially,approached the Education Appellate Tribunal, pV"'i3an,c;Talore (for Short the EAT') under the wrong _assumption that he Could file Such an appeal under the it Education Act. Since the school in question is not i 'I:
subjected to the provisions of the Karnataka Education Act, the petitioner has withdrawn the said appeal___and thereafter presented the instant writ petition.
2. Heard the learned counsel for and perused the petition papers.
3. The brief facts are that initially appointed as a Store«.i{eeper'in__the " it School and thereafter absorbed "service by aletter of appointment dated 10.62 he was working as the-iiijower (LEG) and it is at that point,' has been discharged from service byll"'the The said discharge was stat»ed be a1'ter__an. inquiry with regard to certain allegations :of"'irregu1arities Committed by the petitioner. Tlie"petitiorier1'vhas however assailed the said order by lqconteiidingl that, no such inquiry has been held by the A freysplondents and in any event, no opportunity of knowing the Charges and putting forth his defence before the alleged inquiry has been granted to the petitioner. It is therefore contended that the very order ii «-
of discharge is not only opposed to the principles of natural justice. but 'even the minimum opportunitfof defending himself has not been petitioner. To substantiate that the notg"
indulged in such acts of miscoinduietl it petitioner also relied on the ce1'«ti.ficate,_'said issued as at Annexure--B that the respondents themselves-ihad conduct of the petitioner with reference"to--his the manner in which service_ him in the best interest ' "
4. _The ' while opposing the contention Z 'fo.i"th". the petitioner, through the dlvobjpectioiifstatementimhave at the outset contended that 1 is not maintainable inasmuch as _ the -fifchool is being run by the Army Welfare .VjEd.1Vg1ccational Society (for short the 'AWES'], which is a registered under the Karnataka Societies T 'Registration Act and therefore not amenable to writ it jurisdiction. With regard to the discharge of the i, fin petitioner from service, the respondents contended that the petitioner had indulged in the misconduct of selling certain articles belonging to the Army School amount of ? 1500/ « realised therefrom * deposited by the petitioner. The'refo're,p_ had instituted the proceedings since had found the petitioner to be"gu:i'ity of Chairman of the School;:Mana;g'ingn-fioniniittede"thereafter considered the inquiry 'subsequently passed the dis?cha;;ge or_der,"Which--:is.. sustainable in law. It is further .contend'ed 'the Rules governing the Soc_ietj,', beenlinitiated and therefore, the SELITIE does not ,_forV'iil'terference.
"Considering that the threshold contention the respondents is with regard to the of the present writ petition, the said aspect-"o'f the matter requires consideration. In this it is no doubt true that the petitioner is an
-~-einiployee of the Army Public School. It is also not in dispute that the said school is being run by the AWES, 4;
6 which is a society registered under the Societies Registration Act. Though the school is being run by'-the said society, in order to determine as to same could be considered as an other aut,ho1fity' contemplated under Article 12 India, the manner of working of"'the._ socigety, schools being run thereunderilpitis to be "more particularly, with the said school and also' the the said school. In" ii 'in-Vilidispute that the Army islsituated in the HQ KK & G, In this regard, the Rules AWES institution would provide insight. the manner in which the present A schools are. being run.
it is to be noticed that the ix".-v.___"organisation and functions of the AWES Vests with the of Governors, which will lay down the policy guidelines and also would be responsible for the it management of the functioning of the institutions. The i at governing body consists of a Chairman and its members. The Adjutant General will be the Chairman and the Chiefs of Staff from all Commands, Engineer--in--Chief and Director General, Disciplineiifandié Ceremonials Welfare would be the members V' Board of Governors. The said l§1iles«.also the Executive Committee, which consists o'f.,Presid-.ent,"' Member Secretary and 'Ex-
officio members are indicatecif' iat"th'eV§outset, it is seen that neither nor the Executive among the if society does not indicateilihat by its Members as done in a norma_l"circt;Lrnstance. Therefore, on the face of it that the entire control of the society is by it.he"lhh?}§wV'officvi_o'iV~l.§}fficers who are appointed by their rank
-V they4"'hoid.ii1"the armed forces. if ,7 Further, the Rules also provides with regard
-- the Financial Management of the society, wherein it if indicated that the Corpus will be provided as decided i 9:-
8
by the Board of Governors from the Welfare Funds of the Adjutant Generals Branch. Army Headquarters. Hence, funds are not self generated funds of the society and it is in that context, the army headquarters control over the functioning of the school. ' the same, the Rules also provide .fo1'~C.ompositioIn of V managing committee in the schools' -has"
Patron, Chairman and the V. T to 'V be nominated by the '..He'aCrqu'a.1ftersl"=Com:mand concerned and the Chailrlnfian to noni;'.nated by the Station} urther, the members of the managing.comInit,te'eq'are'«~t:he'l.officials of the armed forces and_alsoi..thelparents and the teachers from the school. considering these aspects of the matter, the AWIZES "cali_i.not,;"'be considered as a society, which is . indej)en'dent: Hence. in such a situation, where both if fatheramanlagernent and the finance vest with the army
- headquarters, the same would answer requirement of "Article 12 of the C011St\%'3.1ti011 of India. Therefore, in 40:
9
such circumstance, I am of the Vi€W that the present writ petition is maintajnable.
8. The said Vi€W is also buttressed by-"'~-the judgment cited by the learned counsel for the 3 in the case of Shri Anadi Mukta H Muktajee Vandasjiswami '1' Mahotsav Smarak Trust and otfiers»--vs--
and others reported in AIR SC wherein a similar set of circumstatace of a trust was considered Court.
9;;_ I7'IaVir1'g'=r;ome'-._to---__ the above conclusion, with regard to of the writ petition, the case«that~wou1d" arise for consideration is with regard to th:e--»r;o1'rect11e's--s__or otherwise of the order/memorandum (Annexure-D], by which the services [of the petitioner was discharged.
" 10;" A perusal of the said memorandum would
-' indicate that the power of such discharge of an Hernployee is ciaimed to have been exercised in View of t l{} the provisions contained in Rule l28(a) of AWES Rules. A perusal of the said Rule would indicate that an employee could be discharged on disciplinary grouiiidsgif the punishment is so awarded by the concerned. The nature of the proceedingsExercisirig' the power under the said Rules. is proyided of the said Rules. which provideslthvat of:
employees of the school, .'underliprohlagtion or not, other than Principgall' practices or breach of dealt in the manner contemplated is that i.;PrinciApalV p ca.rIyot1._t preliminary investigations and if faoie 'case'"i.s"'established, the report of the Princmalrgwouldyloeiorifiarded in Writing to the Chairman of S:'cl1ooi«..l\/ianagiiig Committee for detailment of the further investigations. Thereafter. it . the l.lnqt1:iry= 'Cfficer so appointed will have to complete Kl.'~44'giiiqttiiryVlexpeditiously and forward his report to the
--' Chairnian of the Managing Committee within 20 days of appointment. in the background of the said procedure, what is to be considered is as to whether the l.
said procedure as contemplated has been followed in the present case, so as to sustain the action of the respondents.
11. The petitioner while assailing the specifically contended in this petition that it contemplated in law has beeng'he'ld: p_ alVsol."'.
contended that no charge sheet or show cause was issued to him and even'*ve«r,i:lf"linquiryflwas the same is Without providing oplport-unilty_.' Itis no doubt true that the impugned order' refers to the {of "report. Further, the objection behalf of the respondents also refers'tothellinc1ui13:ll~*lsaid to have been held by the '~ Ciommitltleevvbased on the report in writing by the Chairman of the School Managing ll the instant case, the incident referred to A f_'i's:th'at the petitioner had sold certain tiles while clearing l out the materials which were stocked in a store room ll and the amount of 3 150 /* realised therefrom had not been immediately deposited. With regard to the said aspect of the matter, the petitioner has contended that the same had not been deposited on t.he Very sametjday. since the amount was paid by MES Contractor'*ite'..t._'__theVt' purchaser of tiles on 27.11.2001 around the" t sarne had been deposited subsequent date on 28.1 l.2£)O._l_. Though tliespetiare rival contentions with regard :alleged and the justification to state._..thatt.V:no_p misconduct had been committed, could only be looked into:§2s,rith the the inquiry said to have beent"l*:.eld justification can only be put forthtbefore Therefore, the respondents will to est»a.blish that charge has been proved in the 'alleged as contemplated.
._ regard, except the statement made in
--p the statement, the respondents have not it V' t:jprotd1,}ced any material before this Court to indicate that
-- thhetprocedure as contemplated under Rule 123 of the Rules had been tjéollowed in the instant case. as Further, it is also relevant to notice that when this petition was heard on earlier occasions, more particularly on 17.09.2009, this Court has recorded that in spite of time having been respondent has failed to produce the records}:_jlH.ovQeye1*,lA 0' one more opportunity was gra.nte'c"1* .tA_o'l._ records by the next date of hearing.V_and .»i_tA.AWa.s made clear that if the documents are an adverse inference wouild laetition was accordingly adjourned to fiubsequently, the matter hadll'joieen;3--_ta}{en before this Court on 01.07.2010,' been listed earlier and had not been reached: the said date, the records were ;notr.produs:ed'land the matter was adjourned. When the isrtaken up today, the records have not been Considering that this Court had already 0 . indic'atev:d. that adverse inference would have to be 0 the non~production of the records relating to the
--l would have to be seriously viewed by this Court "tot indicate that the alleged inquiry said to have been conducted by the respondents has not been established at 0W before this Court to come to the conclusion that the order impugned in this petition is justified, and has been passed in due compliance of the procedure.
14. While stating so, it is also to be H as per Rule 123 of the AWES:'Rui'e4s.g_ 'the;.llpro_cedurel.'*; contemplated is no doubt that an officer without laying down particularlprclcedure.
Though specific procegwyre in any event, the complilancell of natural justice would to inasmuch even in}: as per the Rules, an appropriateshow.llcaulsetnotice or charge sheet would have be issuedltlo the concerned employee, so that he reason for which he is being subjected At"o._ and also he should be provided it . oppo"rtun:ity"to defend himself based on such charges it l levelled against him.
it In the instant case, since the documents relating to the inquiry have not been produced and in i.
«It any event, there is no material on record to substantiate that an inquiry in accordance with law had been held, the memorandum dated 02.02.2002, on the face. cannot be sustained. Further, apart fron;1"""a..',V'v:;§lid2 inquiry, the procedure followed for 0' such inquiry report by the managing? it contemplated also was to Court regarding which the failed.
Therefore, considering matter, the order/memorandum impugned at Annexure--Q ibeflfisustained. The same is: accordin «qu'asl«1ed. _' 16.00 the aspect with regard to the nature of to be granted, learned counsel for would contend that an order of be granted as held by the Hon'ble V -- Supreme: 'Court in the case of Smt. J. Tiwari ----vs~ '0 it " '"V.'r.Sfrtt,,_.JcViivala Devi Vidya Mandir and others reported m-EAIR 1981 so 122. With reference to the said judgment, it is contended that even if relief is to be t as E6 granted, it is to be only for payment of damages and not one for reinstatement.
17. in this regard, a perusal of the judgment would indicate that the Hon'b1e Supreme considering a situation, where the ernpi'oVyeei."~ approached the Civil Court by action initiated against thegemployee; context, the Hon'ble Supre1nellCotIrt_ the situation. As such position that a Civil Court cannot position of law is we1lrvestablished';'--_"Therefore, in the instant case, the decision"wiitnot'_.assist the respondents to contend that theof reinstatement cannot be V ~. A' ..... .. V
-..18,V'V'~i'l*herefore, in the facts of the instant case. on quahshingl t7hj_e..a1'order dated 02.02.2002, the petitioner lgigvould .hai_reV to be restored to the same post as he was A on the date of discharge. On being reinstated. the petitioner will also be entitled to consequential uifbenefits. However. with regard to the baclmrages. ;:
iv .
Considering the fact that the petitioner was working in the army school and the said school though being funded by the Army Headquarters, is being run by.-wpay of welfare measure and aiso considering the' the petitioner in any event, would have M elsewhere during this period, I amfliiof"thei-.yvie'.yV:tha,t'their. petitioner will be entitled to only 2% of the i' In terms of the aboVe_,_v"'*~the petition?' j_aE1ov.red. Parties to bear their own cost$.....VV:'