Karnataka High Court
Kittur Rani Chennamma Memorial ... vs Mallappa Tammappa Tubaki on 17 January, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
W.P. No.20411/2004 (S-DIS)
BETWEEN:
Kittur Rani Chennamma Memorial Committee,
Kittur,
(represented by its Member Secretary),
Kittur-591 115. ... Petitioner
(By Sri Hemant R.Chandangoudar, Adv.)
AND:
Mallappa Tammappa Tubaki,
Age: 42 years, Occ: Service.
Kittur Rani Chennamma Memorial Residential
School for Girls,
Kittur-591 115. ... Respondent
(By Sri.T.M. Nadaf, Adv. for
Sri.S.V. Desai, Adv.)
This writ petition is filed under articles 226 and 227
of Constitution of India, praying to quash the impugned
order vide Annexure-H dated 4.3.2004 passed by the
Educational Appellate Tribunal and Principal District Judge,
Belgaum, in EAT(KPEI) Appeal No.3/1994, and etc.
2
This writ petition coming on for hearing this day, the
court., made the following:
ORDER
The respondent was working as an Electrician-cum- Pump Attender from 1.8.1986 in Kittur Rani Channamma Residential School, Kittur, run by petitioner.
2. On 16.12.1992, petitioner-Management issued show-cause notice to respondent alleging certain acts of misconduct. Thereafter, Disciplinary enquiry was held and respondent was removed from service. Therefore, he was before the Education Appellate Tribunal.
3. The learned Judge of the Education Appellate Tribunal on consideration of records of Disciplinary enquiry held that Disciplinary Authority had not framed articles of charges and there was violation of Rule 17 of the Karnataka Private Educational Institutions (Discipline & Control) Rules, 1978 (for short "Rules"), which provides for 3 imposing major penalty which includes dismissal or removal from service.
The learned judge of Education Appellate Tribunal set aside order of dismissal from service and remanded the matter to hold fresh enquiry from the stage of obtaining explanation from respondent to the two show-cause notices dated 16.12.1992 and 11.01.1993 and also granted subsistence allowance to respondent from the date of dismissal i.e., 28.03.1994. Aggrieved by the same, the petitioner-management is before this court.
I have heard the learned counsel for parties. I have examined impugned order in the light of Rule 17, which reads thus:
"17. Procedure for imposing major penalties:
(1) No order imposing any of the penalties specified in clauses (viii) to (ix) of Rule 10 shall be made except after an enquiry is held, as far as may be in the manner proved in this rule.4
(2) Whenever the Management is of the opinion that there are grounds for enquiring into the truth of any imputation of misconduct or misbehaviour or breach of any provision of the code of conduct specified in Chapter V against an employee, it may appoint an Enquiry Committee consisting of one or more persons not having dealings of whatever nature with the Management or any member thereof or with any employee in the Institution or elsewhere. When an Enquiry Committee consists of two or more members, the quorum shall be two.
(3) Where an order of suspension has been made, the Enquiry Committee shall, before proceeding with the enquiry, record in writing, whether the said suspension is "prima facie" in accordance with sub-rule (1) of rule 12.
(4) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. Such charges, together with a statement of allegations on which they are based shall be communicated in writing to the employee and he shall be required to submit within such time as may be specified by the Enquiry Committee, a written statement of his defence and also to state whether he desires to be heard in person.
(5) The employee shall for the purpose of preparing defence be permitted to inspect and take extracts from such records as he may specify;
Provided that such permission may be refused if, for reasons to be recorded in writing in the opinion of the Enquiry Committee such records 5 are not relevant for the purpose and it is against the interest of the Institution to allow his access thereto.
(6) On receipt of the statement of defence in writing by the employee or if no such statement is received within the time specified, the Enquiry Committee shall proceed with the Enquiry." The disciplinary enquiry was held for imposing major penalty as is obvious from the order of Disciplinary Authority. The Enquiry Officer had neither framed articles of charges nor held enquiry in terms of Rule 17. Therefore, this finding of the Education Appellate Tribunal does not call for interference.
4. The learned Counsel for petitioner would submit that petitioner-Institution is not a private educational institution. Therefore, respondent had no right to maintain an appeal before the Education Appellate Tribunal.
This question had been raised before the Education Appellate Tribunal. The learned Judge of the Education 6 Appellate Tribunal referring to judgment of this Court reported in 1975 (1) Kar.L.J. Short Notes Item No.167 (in the case of Pushpa -vs- Kittur Rani Chennamma Memorial Committee-petitioner herein) has held that the petitioner institution is a private educational institution. The relevant portion of the order of Education Appellate Tribunal reads thus:
"20. In a ruling reported in 1975(1) Kar.L.J.Short Notes Item No.167 at page 58, the Hon'ble High Court of Karnataka has considered the scope of Section 2(a) of the Act and have laid down that the Committee (or institution) for running a school not brought into existence by or under a statute is not an authority sponsored by Government and hence, is a private educational institution within Sec.2(c) of the Act. This ruling is rendered by the Hon'ble High Court of Karnataka in which the respondent is a party."
In the decision reported in 1975(1) Kar.L.J. Short Notes Item No.167, this Court has held that, petitioner (Kittur Rani Chennamma Memorial Committee) is a private educational institution within Section 2(c) of Karnataka 7 Private Educational Institutions (Discipline and Control) Act, 1975. The Committee (Institution) for running School was not brought into existence by or under a statute, it is not an authority sponsored by Government.
5. The learned Counsel for petitioner has brought to my notice the Annexures-A to C to contend that, the Government has permitted the Committee to register itself as Society under the Karnataka Societies Registration Act and treating the institution on par with Sainik School at Bijapur.
The order made by Government of Mysore vide ED 100 SAR 65 dtd.19.01.1966 reads thus:
"At the instance of the Taluk Development Board, Bailhongal, the Hon'ble Minister for Education recently laid the foundation stone for the construction of a Pravasi Mandir at Kittur, as part of the Rani Channammaji Memorial. Kittur is situated on the Bangalore-Poona National High-Way No.4. The Taluk Board of Bailhongal Taluka, having agreed to bear the entire cost of construction estimated at Rs.50,000 for the proposed building and has already deposited the amount with the Public 8 Works Department, the construction work has been entrusted to Public Works Department and the same is expected to be completed in about eight months. The Kittur Panchayat has also offered to bear further expenditure of Rs.36,000 towards improvement of the area surrounding the memorial. An extent of 22 Acres of vacant land available inside the Fort Walls at Kittur has also been agreed to be released by the concerned owners. Similarly the Samadhi of Kittur Channamma Rani at Bailhongal has also to be renovated and a garden and other memorials will have to be developed. It is therefore, necessary to evolve a suitable Scheme in order to renovate and maintain the ancient monument properly both at Kittur and at Bailhongal and also to organise collections and contributions required for the purpose of perpetuating the memory of the Rani.
2. Government are accordingly pleased to direct that a High Level Committee consisting of the following members be constituted for the purpose for a period of one year in the first instance:-
1. Shri S. Nijalingappa, B.A.,LL.B., Chief Minister, Government of Mysore. ... Chairman.
2. Shri S.R.Kanthi, B.A., LL.B., Minister for Education. : Vice-Chairman (Working).
3. Shri R.M. Patil, B.A.,LL.B., Minister for Development, Government of Myusore: Vice Chairman.
4. Shri.Ramakrishna Hegde, M.A.,LL.B. Minister for Finance: Vice Chairman.9
5. Shri Veerendra Patil, B.A.,LL.B., Minister for Public Works: Vice Chairman.
6. Shri K. Puttaswamy, B.A.(Hons), LL.B., Minister for Co-operation : Vice Chairman.
7. Shri G.V.Hallikeri, Chairman, Mysore Legislative Council: Vice Chairman.
8. Shri B. Vaikunta Baliga, B.A., B.L. Speaker, Mysore Legislative Assembly: Vice Chairman.
9. Shri.C.M.Poonacha, Minister of State, Ministry of Finance, Union Government, New Delhi.: Vice Chairman.
10.The Divisional Commissioner, Belgaum.: Member.
11.The President, Mysore Pradesh Congress Committee, Bangalore. Member.
12.The Vice Chancellor, Karnataka University,
Dharwar. Member.
13.The Mayor, Corporation of the City of Bangalore: Member.
14. The Mayor, Hubli-Dharwar Corporation: Member.
15. The President, Karnataka Chamber of Commerce, Hubli. Member
16. Shri.Dharwadkar, Principal, Dharwar: Member.
17. Shri Dharam Rao, Vakil of Gulbarga: Member.
18. The President, Taluk Board, Bailhongal: Member.
19.The Chairman, Village Panchayat Committee, Kittur: Member
20.Shri Tallur Rayan Gowda of Tallur, Taluk Saundatti, District Belgaum: Member.
21. Shri M. Nanjappa, Raja Silk House, Bangalore:
Member.
22. Shri L.M. Siddiah, M.L.A. Bangalore. Member.
23. Shri Shankar Alva, M.P. Member.
24. Shri.H.V. Koujalgi, M.P. (Bailhongal). Member.
25. Government Architect or his nominee. Member.
26. Chief Engineer, Communications and Buildings, Bangalore. Member
27. The Director of Archmology, Mysore: Member 10
28. Shri T.N. Sanikop, District School Board, Belgaum.
Member.
29. The President, Bailhongal Municipalioty, Member.
30.Shri.Sadananda Rao, Proprietor, Evershine Pictures, Gandhinagar, Bangalore. Treasury
31. The Director of Publicity and Information, Bangalore. : Member-
3. The Committee is requested to make recommendations and advisement early.
4. The non-official members will be entitled to draw travelling .. allowances as per rates shown in List 'A' sanctioned in Government No.ED No.COI 1168-
57, dated the 23rd August 1957-Annexure 'A'- Mysore Civil Service Rules and the official members as per rules in the Mysore Civil Service Rules.
5. The expenditure on this account will be debited to the Budget under "27-Scientific Departments-c. Museums-I. Normal-3. Allowances Honoraria"
during the current year due provision being made therefor budget of next year.
6. The Director of Archaeology in Mysore, Mysore, will be the authorised countersign the Travelling and Daily Allowance claims of non-official ..of the Committee"
The object and intention of this Government Order was to construct a Pravasi Mandir at Kittur as part of the Rani Chennamma Memorial and develop the area surrounding memorial. This Government Order was not issued to run Kittur Rani Chennamma Memorial School.11
The Ad-hoc committee constituted under this Government Order had resolved to run a residential school for girls at Kittur. The Governmnet by order ED 29 TMU 75 dtd.
17.07.1975 (Annexure-'B') accorded permission to Ad-hoc committee to register Kittur Rani Chennamma Memorial Committee under Karnataka Societies Registration Act.
In terms of Government Order ED 20 MHS 76 dtd.
05.04.1977 (Annexure-'C') the Government has released grants. The relevant portion of order reads thus:
"Government are pleased to direct that the Kittur Rani Channamma Residential School for Girls, Kittur, Belgaum District, be treated as a Special Institution of an All India character on par with Sainik School, Bijapur.
2. Accordingly, the School is permitted to have Standards VI to XII on the pattern available in the Sainik School, Bijapur.
3. The School will continue to be assisted by the State Government by award of scholarship grants and uniform allowances on the same scale as .......heretofore.
4. The State Government will also continue to assist the School in its buildings programme in a phased 12 manner within the funds made available for the purpose under Plan each year.
5. The Management will take steps to obtain assistance for the development of the School from the Government of India and other State Governments.
6. The State share of expenditure will be debitable to the head "277 Education-B4. V-Grants to Kittur Rani Channamma Residential School for Girls" and may be met from the Plan and non-Plan provisions made thereunder each year.
7. This order issues with the concurrence of the Finance Department -vide their No.FD 1291/FC dated 28.3.1977."
Under Section 2 (27) of Karnataka Education Act, 1983 (for short 'Act') Private Education is defined as "2(27) "Private Educational Institution"
means any educational institution imparting education referred to in Section 3, established and administered or maintained by any person or body of persons, but does not include an educational institution.-
(a) established and administered or maintained by the Central Government or the State Government or any local authority or any other authority designated or sponsored by the Central Government or the State Government;13
(b) established and administered by any University established by law;
(c) giving, providing or imparting only religious instruction, but not any other instruction; or
(d) imparting instruction for which there is no approved syllabi or course of studies or Government or University Examination."
Under Section 2 (34) of the Karnataka Education Act 'Society' is defined as:
"Society" includes a society registered under the Karnataka Societies Registration Act, 1960 (Karnataka Act 17 of 1960) or Karnataka Co- operative Societies Act, 1959 or a trust registered under the Bombay Public Trust Act, 1950, or any association of individuals registered under any other law for the time being in force."
In view of definition of Private Educational Institution under Section 2 (27) of the Act and definition of 'society' under section 2(34) of the Act, the contention of learned counsel for petitioner that school run by petitioner is not a private educational institution cannot be accepted. 14
6. The petitioner had not placed these documents (Annexure-A to C) before Education Appellate Tribunal. If any changes had taken place after 2.9.1974 (date on which this Court rendered aforesaid decision reported in 1975(1) Short Notes Item No.167), the petitioner should have brought these changes to the notice of Education Appellate Tribunal to establish that petitioner institution ceased to be a private educational institution. The petitioner having not done so cannot find fault with the order passed by the Education Appellate Tribunal.
7. The learned counsel for petitioner relying on a judgment of the Supreme Court reported in 1988 SCALE (2) 868 (in the case of All India Sainik Schools Employees Association -vs- Defence Minister-cum- Chairman Board of Governors, Sainik School) would submit that employees of petitioner are a class by 15 themselves and they are not employees of Private Educational institution. In All India Sainik School case, the Supreme Court has held:
"(1) The entire funding of the Sainik Schools is by the State Governments and the Central Government. The overall control vests in the governmental authority. It cannot therefore be doubted that the Sainik School Society is 'State' within the meaning of Article 12. (2) Once it is held that the Sainik School Society is 'State', application of Article 14 is attracted. Similarly under the Directive Principles, the claim for equal pay for equal work becomes tenable."
"...The main object of the Society, as available from clause 3(a) of the Memorandum of Association is:
'to establish Sainik Schools in various parts of India, providing special school education of a high standard with the aim of preparing boys academically and physically for entry into National Defence Academy and other walks of life."
In the case on hand, the overall control of school run by petitioner has not vested with State Government or with authority constituted by the State Government under 16 a statute. Therefore, the submission of learned counsel for petitioner cannot be accepted.
8. The learned Judge of the Education Appellate Tribunal has held that respondent has been dismissed from service without holding proper enquiry. The petitioner management had not even framed articles of charges. The learned judge of the Education Appellate Tribunal has held that enquiry is vitiated. The learned Judge of the Education Appellate Tribunal by following the judgment of Supreme Court reported in 1997(4) Kar.L.J.533 (SC) (in the case of Board of Management of S.V.T. Educational Institution vs. Raghupathy Bhat and others) has remanded the matter to Disciplinary Authority to hold fresh enquiry from the stage of obtaining explanation from the respondent to the show cause notices dated 6.12.1992 and 11.01.1993 and then to proceed in accordance with the observations made above after framing articles of charge, 17 statement of imputations and furnishing the same to him along with list of witnesses and documents.
9. The learned Judge of the Tribunal has directed the petitioner to pay to respondent arrears of subsistence allowance right from the date of his dismissal i.e. 28.03.1994.
10. The learned Counsel for petitioner would submit that the Tribunal had no jurisdiction and therefore impugned order is vitiated. The petitioner should have filed a writ petition to challenge the order of Disciplinary Authority. The learned Counsel has relied upon the Rules resolved by the Kittur Rani Channamma Memorial Committee, Bangalore, in their meeting held on 27.11.1973.
11. At this juncture, it is relevant to state that this Court in the aforesaid decision rendered on 2.9.1974 has held that the Kittur Rani Channamma Memorial Committee 18 (petitioner herein) is a private education institution. Therefore, the Committee had no statutory power to frame Rules. The above rules do not indicate that they have any statutory force and they were brought into force at any point of time. Therefore, I am of the considered opinion that the Education Appellate Tribunal was justified in holding that petitioner is a private educational institution and respondent should not have been dismissed from service without following Rule 17 of the Karnataka Private Educational Institution (Discipline and Control) Rules, 1978.
12. There are no grounds to interfere with the impugned order.
Therefore, petition is dismissed.
Sd/-
JUDGE Sub/