Bangalore District Court
Sri. R. Nagendra vs S/O N. Rame Gowda on 13 September, 2022
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 13 th day of September 2022
:PRESENT:
Sri.Sabappa, B.Com., LLB (Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
MA (EAT) No.13/2020
APPELLANT/ Sri. R. Nagendra,
ACCUSED : S/o N. Rame Gowda,
Aged about 43 years,
Working as Lift Operator,
KIMS Hospital, K.R.Road,
V.V.Puram, Bengaluru.
Residing at No.2, Beladinagala Nilaya,
9th Cross, Near Government School,
NGF Layout, Jnanabharathi,
Bengaluru.
(By Sri.Parthasarathy M.S., Advocate)
V/s
RESPONDENT/ 1. Rajya Vokkaligara Sangha
COMPLAINANT: K.R.Road, V.V.Puram,
Bengaluru - 560 004.
By its Administrator
2. The Principal and Medical
Superintendent
2 MA (EAT) No.13/2020
Kempegowda Institute of Medical
Sciences, K.R.Road,
V.V.Puram, Bengaluru - 560 004.
3. The Administrative Medical Officer
Kempegowda Institute of Medical
Sciences, K.R.Road,
V.V.Puram, Bengaluru - 560 004.
(By Sri.D.S.S., Advocate)
JUDGMENT
The appellant has preferred this appeal under Sec.94 of the Karnataka Education act, 1983.
2. The brief facts of the case of the appellant is that, the appellant being aggrieved by the order dated 16.10.2020 bearing No.Ra.Va.Sa./83/Aadalitha(1)/2020/925/2020-21 issued by 1st respondent and office order bearing No.KIMS/817/2020-21 dated 19.10.2020 issued by 3rd respondent compulsorily retiring him from service, has preferred this appeal.
3. The appellant being qualified with SSLC joined as Lift Operator at KIMS Hospital run by the 1st respondent. He was issued with an order dated 12.08.1997 appointing him as a Lift Operator. Thereafter, in pursuance of the Circular dated 06.04.1998, the 3 MA (EAT) No.13/2020 salary of the staff was enhanced by the 1 st respondent. The appellant was a regular employee in the Institution and he was issued with a 15 years Time Bond Advancement as per the office order dated 29.08.2013. He was paid increments as clear from the document dated 22.01.2013. Moreover, his pay was fixed in terms of the recommendation of the 6th pay commission as per the order dated 08.10.2013 of the 1st respondent. The 1st respondent issued 6 notices and 3 final warning notices to the appellant alleging that he was not regular to his duties and since 18.11.2017 he is unauthorizedly absent for more than 750 days. It is claimed that on 05.11.2016 and 03.03.2017, the appellant had executed an undertaking stating that if he is unauthorizedly absent in future, he can be removed from service. As such he is called upon to show cause finally and to report to the duty. It was further stated that from 05.03.2016 till 01.03.2017, the appellant was unauthorizedly absent for 302 days. It was further stated that if he fails to report to duty by providing proper explanation, he will be subjected to internal enquiry and will be relieved of his duties. Thereafter the appellant was issued with a notice to appear for an enquiry with regard to his so called unauthorized absent. The appellant entered appearance and proceedings were conducted. The appellant was directed to submit an undertaking, which was in a cyclostyled format and it was informed to him that unless he excuse such an undertaking, he will not be permitted to work in the institution. The appellant had 4 MA (EAT) No.13/2020 executed an affidavit, which was in cyclostyled format as on 03.02.2017.
It is further submitted that, though the appellant had applied for leave, it was not being sanctioned and it was being claimed that he was unauthorizedly absent for the period. Sri.K.S.Doreswamy who was working as Legal Advisor to 1st respondent was appointed as Enquiry Officer. The appellant submitted representation dated 09.04.2018 stating that he could not appear in view of ill-health of his wife and personal problems. On the basis of such representation obtained under coercion, the enquiry officer submitted a report dated 26.06.2018 holding that the charge against the appellant having been proved. The enquiry officer has authored a note and indicated that the appellant be issued with the notice and in the event of the failure to appear before the Enquiry committee, a decision for dismissal may be initiated by way of exparte order. After considering the above note of the legal advisor and also the enquiry office, the then Secretary had observed in the note sheet stating that the misconduct on the part of the appellant may be condoned and last opportunity be given. In pursuance of the same, an office order dated 07.08.2013 was issued permitting the appellant to report to duty with a condition that he would be relieved of his duties, if he is unauthorizedly absent and that he would give an undertaking on Rs.100/- stamp paper. The period of 5 MA (EAT) No.13/2020 unauthorizedly absence of the appellant was treated as leave without allowance.
It is further submitted that, the appellant was issued with another article of charge stating that he was unauthorizedly absent for 843 days after the Administrator took charge of the 1 st respondent. He was issued with a show-cause notice dated 29.05.2020 and the appellant tried to substantiate his stand by filing the objections and also producing the documents. Sri.C.Channegowda, the Enquiry Officer submitted a report claiming to have proved the charges against the appellant. Thereafter, the appellant was saddled with an order dated 16.10.2020 imposing penalty of compulsory retirement on the appellant claiming to be under the provisions of Rule 6(8) of Conduct, Discipline and Appeal Rules of the Rules, 2001. In pursuance of the said order, the appellant was issued with an order dated 19.10.2020 by the 3rd respondent. Hence, appellant preferred this appeal.
4. The grounds urged by the appellant are as under :
1) It is submitted that appellant in respect of his allegations has been issued with an order dated 07.08.2018 permitting him to report to duty. The said order clearly provides that so called period of unauthorized absence of the appellant as would be treated as leave without advance. As the order dated 07.08.2018 has been passed treating the earlier period as leave without allowance by the 6 MA (EAT) No.13/2020 Management. It is not permissible to hold an enquiry again in respect of the very same allegation and there will not be any further question of imposition of any penalty.
2) It is submitted that, when once the period is treated as leave, it is imperative that the period will be sanctioned leave and will no longer be treated as unauthorized absence. In such circumstances, it is highly illegal on the part of the 1 st respondent to claim that the appellant is unauthorizedly absence and to issue charge memo for the same period for which an order is already passed treating the period as leave without allowance.
3) It is submitted that, the entire proceedings was held in utter violation of the principles of natural justice and relevant provisions.
4) The appellant being an employee of a Medical College and assail his grievances under the provisions of the Karnataka Education Act, 1983 before this Court.
5) The appellant is an employee of 2nd respondent Institution, which is run by the 1st respondent management. The provisions of so called Conduct, Discipline and Appeal Rules, 2001 is invoked against the appellant. The said Rules have not been adopted or framed by the 1st respondent in accordance with law. The Rules till date have not been approved by the Executive Committee of the 1 st respondent Sangha.7 MA (EAT) No.13/2020
6) The 1st respondent since the same being run by the Administrator is carrying out all illegal activities, which cannot be sustainable. It is submitted that the issuance of an order imposing penalty on an employee of an Educational Institutions is a quasi judicial function and the administrator, who can go on with day to day administration of an institution is not allowed to pass any orders even in for initiating the disciplinary proceedings. The impugned order passed by the 1st respondent is also opposed to law in view of said reason.
7) It is further submitted that, what is necessary to state is that the respondent is having a unique practice as the legal advisor of the 1st respondent, who considers the files of the employees with regard to the disciplinary matters again resorts to occupy the posts of enquiry officer and designates as specially empowered authority.
The very same person holds an enquiry and submits the report. The said acts of the 1st respondent is nothing but mockery of the principles of natural justice.
8) It is submitted that the person who decides himself will be the enquiry officer and he himself recommends the penalty. Moreover, he himself records that if the person appear for enquiry then steps be taken to dismiss him from service. This is nothing, but an action which is purely illegal, perverse, capricious and wholly sustainable. The 1st respondent has failed to discharge his obligations.
8 MA (EAT) No.13/20209) The administrator of the respondent cannot override the decision of an elected body as evidently the earlier order dated 07.08.2018 is passed by the then General Secretary of the 1 st respondent Sangha. The decision which has been taken by an elected body and elected individual cannot be permitted to be over returned by an appointee of the Government appointed invoking Section 27A of the Karnataka Societies Registration Act, 1960.
10) It is also necessary to state that the 1 st respondent, who is appointed to hold the elections to the 1 st respondent society has failed to do so, but his proceedings against the employees of the institution under the deduction of some interested person in whose period the appellant and other similarly placed persons appointed.
11) The entire records in respect of the disciplinary proceedings against the appellant is in a cyclostyled format and along with the appellant, other nine persons were proceeded and in their instance also similar documents have been executed.
12) It is submitted that though the order of appointment has been issued, that the appellant appointed on temporary basis, fact remains that he was treated as regular employee all along and it is the practice of the 1st respondent to issue such orders in respect of the permanent employees as like the appellant.
13) It is necessary to state that the appellant was issued with orders some of which are also placed on record clearly goes to show that he was paid regular increments and also time bound 9 MA (EAT) No.13/2020 advancement. Also he was issued with fixation of pay in terms of the 6th pay Commission. In these circumstances, it does not lie in the mouth of the respondents at any point of time to contend that he is temporary employee. Even otherwise what needs to be stated is that the appellant even if for argument, it is taken that he is temporary employee, but the same is not conceded, it is necessary to state that there is nothing which does not state that a temporary employ should not be proceeded against by holding regular disciplinary proceedings. Even if an employee is a temporary employee and an order is being passed affecting his service conditions on the basis of some allegations, the employer is obligated to hold an enquiry.
14) In the instant case, there was no enquiry held against the appellant in the eyes of law. The appointment of the Enquiry Officer itself is not proper and no proceedings were held in consonance with the principles of natural justice.
Viewed from any angle, the impugned order imposing penalty of compulsory retirement passed against the appellant dated 16.10.2020 is wholly unsustainable, perverse, capricious and requires to be set-aside.
5. After presentation of this appeal, this Court has issued notice to the respondents. The respondents appeared through their respective counsels. The respondents filed objection statement 10 MA (EAT) No.13/2020 contending that the present appeal is not maintainable either in law or on facts. It is barred by law of limitation. The application filed by the appellant herein is replete with blatant falsities and gross suppression of facts. The appellant indulged in misleading the Hon'ble Tribunal with a view to snatch an order from this Tribunal.
It is submitted that, appellant was working as Lift Operator at KIMS Hospital. It was purely temporary appointment. The appellant was never declared as a permanent employee nor is there any averment made by the appellant anywhere in the appeal to that effect. As such, the appeal is not maintainable. Therefore, his case does not come under the purview of the Karnataka Education Act and hence the appeal is liable to be dismissed in limine. It is further submitted that, he was appointed by the 1st respondent to work as Lift Operator at the 3rd respondent Hospital. The 2nd respondent has no connection with the appointment and working of lift operator at the 3rd respondent Hospital. The appellant has falsely and deliberately arrayed the 2nd respondent in this appeal only so as to bring his case within the jurisdiction of this court.
It is further submitted that the 1st respondent owns and runs both the 2nd respondent Medical College and 3rd respondent Hospital. The 2nd respondent is an Educational Institution imparting medical education. It is located in Banashankari 2nd Stage. It is administered by the Principal. All the employees of the Medical College work under the supervision of the Principal and report to 11 MA (EAT) No.13/2020 him. The Principal is responsible for the affairs of the college and all the employees of the college are paid from the college accounts. On the other hand, the KIMS Hospital is a separate and distinct entity run by the 1st respondent, located at K.R.Road, V.V.Puram, Bengaluru, with its own separate identity and existence. It is administered by the Administrative Medical Officer who is responsible for its affairs and all the employees of the Hospital report to him. All the employees of the Hospital are paid from the separate account of the said hospital and not by the Medical College.
It is further submitted that, the appellant had no connection of whatsoever nature with the 2nd respondent College nor has he made any averment to that effect in this appeal. Yet, he has falsely arrayed it as a respondent. The appellant was appointed, admittedly for serving KIMS Hospital, i.e., 3rd respondent. The hospital do not come under the purview of the Karnataka Education Act and for that reason this Hon'ble Tribunal does not have the jurisdiction to try this appeal. The appellant has suppressed this vital information just to bring his case within the jurisdiction of this Court.
It is further submitted that, the appellant has always been in the habit of unauthorizedly absenting himself from duty. He was issued many number of notices. His increments were withheld on permanent basis many times. Mere granting of increments and other benefits does not make him a permanent employee.
12 MA (EAT) No.13/2020It is further submitted that the appellant had submitted leave letter seeking leave from 18.11.2017 to 25.11.2017 and from 04.07.2020 to 15.07.2020 is denied by the respondent. The averments made in paras 8, 10, 11 and 12 are denied as false.
It is further submitted that, the averments made in para 13 and 14 alleging that the then secretary had suggested to condone the misconduct of the appellant is a self serving statement. Even if it is true, it is admittedly as a last opportunity. The appellant was given that opportunity. Yet the appellant misused the opportunity once again by repeatedly absenting for duty and causing inconvenience. He is unauthorisedly absent for 41 days during 2019 alone i.e., after he was admittedly given the last chance. Thus, he has proved to be unreliable and unsuited to continue in the employment. Hence, the said observation of the then Secretary is of no use to the appellant.
The appellant was unauthorizedly absent for duty at his whims. Each time he came back, sought for forgiveness, gave solemn undertaking that he would not repeat. Yet continued his habit of unauthorized absence. The appellant gone unauthorized absence both at times when there was leave at his credit and also when there was no leave at his credit. Once the unauthorized absence is treated as leave without allowance it cannot be considered as unauthorized, is opposed to all canons of service jurisprudence. Leave without absence is a blemish on the record of 13 MA (EAT) No.13/2020 an employee. The absence period is counted for postponing increments, reducing quantum of leave and repeated unauthorized absence is a serious misconduct.
The entire principles suffer from utter violation of principles of Natual justice is false. Full and proper enquiry has been conducted before inflicting the compulsory retirement. Admittedly, the appellant was employee of the hospital. He has falsely claimed to be an employee of the medical college just to bring his case within the purview of Karnataka Education Act, thus bringing it within the jurisdiction of this Court.
It is submitted that KIMS Hospital caters to the poorer sections of society by providing subsidised medical services. Thousands of ailing and infirm patients and their attendents throng the hospital every day. Any lapse in the timely and efficient providing of service severely affects the reputation of the hospital. It may also subject the hospital to adverse litigation and claims for compensation if the hospital is not run efficiently.
It is submitted that the enquiry was conducted by one Sri.Channegowda. The 1st respondent, with the most noble object of ensuring honest and impartial enquiry, appointed a retired Joint Registrar of High Court for the purpose of conducting enquiries.
The appellant has participated in the enquiry, the enquiry report was served vide letter No.RVS/Admn/171/20-21 dated 29.05.2020. The appellant acknowledged it on 30.05.2020 and 14 MA (EAT) No.13/2020 submitted his reply vide his letter dated 17.06.2020. Hence, it does not lie in the mouth of the appellant to say that notice was not served upon him. Moreover, on a number of prior occasions the appellant was unauthorizedly absent causing lot of inconvenience to the hospital administration. He submitted frivolous explanations.
It is submitted that on many occasions the appellant had given undertaking on stamp paper assuring that henceforth he would not repeat such behaviour and that if at all he did so the management would be at liberty to terminate his services without notice to him. Yet, to be fair the 1 st respondent has, at considerable effort and expense, ordered for an independent enquiry by an impartial and competent person who acts cannot be faulted. Threafter, the enquiry report was served upon the appellant, the appellant's reply was considered, rejected and the order of compulsory retirement was passed since his reply was not found satisfactory.
It is submitted that the appellant has wrongly questioned the validity of the CDA Rules 2001 in para No.25, 26 and 27 of the appeal alleging that they are not approved by the Executive Committee. Since the Vokkaligara Sangha was not satisfied with the then existing state of affairs the Executive Committee constituted a Committee under the Chairmanship of late Shri.B.Gangadhar, the then Vice President of the Sangha to draft a separate set of Rules applicable to the servants of Sangha.
15 MA (EAT) No.13/2020It is further submitted that, in fact the said rules were adopted and affirmed by the Executive committee of the 1st respondent in the meeting held on 11.09.2001. It was circulated to all the subordinate institutions under the 1st respondent, including the 3rd respondent. In the same meeting 3 other matters were also approved i.e., V.S. Service Rules, V.S.Accounts Rules and V.S.Hand book of office procedures. It is very strange that the appellant has been taking benefit under the service rules which were approved on the same day and circulated in the same circular, yet denies the validity of the CDA rules, which is illogical and self defeating. Therefore, his contention deserves to be rejected. Moreover, the said rules have been in force for over 20 years. The other averments made by the appellant are denied in toto.
The averment made in para 17 of the appeal is far from truth. Sri.Channegowda is an independent person specially appointed for the purpose of conducting enquiries against employees facing allegations.
It is submitted that the appellant has been proceeded against as per V.S. conduct, discipline and appeal rules. The procedure prescribed under these rules are totally fair and are similar to the rules prescribed by the Government of Karnataka in relation to its employees. Hence, they cannot be assailed as unfair.
It is submitted that the proposal for initiating the disciplinary action was made by the AMO of 3rd respondent Hospital. The CEO 16 MA (EAT) No.13/2020 suggested to conduct enquiry, the office administration framed charges, show cause notice was issued to the appellant, reply was received from him. Then, the Administrator appointed Sri.Channegowda, a retired Joint Registrar of the High Court as the Enquiry Officer to conduct enquiry. He conducted the enquiry and submitted the report to CEO. The CEO reported the matter to the Administrator, the appellant was once again issued show cause notice serving the copy of the report and calling for explanation. Only upon receipt of the reply and its consideration the Compulsory retirement order was passed since the explanation was found to be unsatisfactory.
The averments made in paras 32 to 35, 37 to 40 are denied as false. It is submitted that several types of punishments are prescribed under the Rules which include warning, withholding of increment etc., The 1st respondent has not straight away proceeded to pass order of compulsory retirement. The appellant been warned many times before his increments have been stopped. Many opportunities have been afforded to mend his ways. Yet, the appellant continued his misconduct unabated. Only as a last resort the 1st respondent has been compelled to pass the impugned order.
Every time the appellant went absent unauthorizedly, accepted in writing that he was absent because of personal work. Before the enquiry officer also he has given in writing that he was 17 MA (EAT) No.13/2020 absent because of his personal problems. Yet makes allegations of harassment which is frivolous.
It is further submitted that, the appellant has pressed into service the decision of the High Court of Karnataka rendered in the case of K. Shantharaj V/s M.L. Nagaraj reported in ILR 1997 Kar 2797 in support of his claim that the Administrator does not have the authority to take disciplinary action against the employees of the society. The said decision is inapplicable to the case of the appellant for the following reasons that, firstly, the decision cited was rendered while adjudicating a matter under the Karnataka Co- operative Societies Act, and not under the Karnataka Societies Registration Act, as is the case herein and secondly, in that case the matter in issues was related to the power of the Administrator to enroll new members to the society in the absence of governing body. Disciplinary proceedings against employees was neither involved nor discussed in that case. Hence, the appeal may be dismissed in the interest of justice and equity.
6. At initial stage the appellant filed I.A.No.1 to 3 and sought for stay of the order passed by the 1st and 3rd respondents and sought for reinstatement to his said post pending disposal of this appeal. The respondents filed objections to I.A.Nos.1 to 3. later on, my Predecessor in the office after hearing both the sides passed order I.A.Nos.1 to 3 and I.A.Nos.1 to 3 filed by the appellant came to be dismissed. Thereafter, the appellant preferred Writ Petition 18 MA (EAT) No.13/2020 No.9343/2021 and 9349/2021. After hearing on both sides, the Hon'ble High Court of Karnataka passed the order. It is ordered that "all the three writ petitions are disposed off with a direction to the Tribunal to dispose of the appeal expeditiously, within a time frame of nine months from the date of receipt of a copy of this order." In view of the order of the Hon'ble High Court of Karnataka the appellant examined in this case as PW.1 and got marked Exs.P.1 to P.25. The respondent examined as RW.1 and got marked Exs.R.1 to R.21.
7. Both side counsels present. Heard arguments. Perused the available records.
8. The points that arise for my determination are as under:
1. Whether the appellant has made out sufficient grounds to maintain appeal U/Sec.94 of the Karnataka Education Act, 1983?
2. Whether the appellant has made out sufficient grounds that the order passed by the 1st respondent is perverse, capricious, illegal and it is not in accordance with law ?
3. Whether the appellant is entitled for the relief as sought in this appeal ?
4. What Order ?
9. My findings to the above said points are as follows:
Point No.1 : In the Negative,
19 MA (EAT) No.13/2020
Point No.2 : In the Negative,
Point No.3 : In the Negative,
Point No.4 : As per final order;
For the following;
REASONS
10. POINT NOS.1 TO 3 : Points Nos.1 to 3 are taken
up together, as they could be disposed of by common reasoning and also to avoid repetition of facts.
The learned counsel for the appellant vehemently argued and submitted the appellant is appointed as a Lift Operator in the respondent Hospital on 12.08.1997. At the initial stage the appellant is appointed as temporary basis. Later on the respondent have treated as regular appointee. The appellant served as per the requirement of the respondents. He has received benefits during his tenure as a Lift Operator. The respondents contended that the appellant has remained unauthorized absent for about 750 days. However, the respondents have not issued any notice at the relevant point of time and proceeded against the appellant. In the year 2020 the respondents have issued show-cause notice and conducted enquiry and dismissed the appellant. It is not in accordance with law. The appellant has relied documents at Exs.P.1 to P.25. These documents reveals that the appellant is able to made 20 MA (EAT) No.13/2020 out sufficient grounds that he is dismissed without conducting proper enquiry. The Enquiry officer has not conducted the enquiry in accordance with law. Moreover, the appellant has not received second show-cause notice issued by the respondents. Thereby, the question of reply and appearance before the enquiry officer and proceed with the proceedings does not arise at all. He has drawn the attention of the court towards Ex.P.23 i.e., Circular issued by National Medical Commission Medical Assessment and Rating Board (MARB). On perusal of the same, the National Medical Commission Medical Assessment and Rating Board issued this Circular on 13.12.2021. He further submits that the impugned order is passed after an enquiry and also victimizing an employee. Merely for the reasons that an order is passed imposing penalty of compulsory retirement, it cannot be argued that the appeal would not be maintainable under section 94(1) of the Karnataka Education Act as under Section 94(1), an order imposing penalty of dismissal, removal and reduction rank can be challenged before this Hon'ble Tribunal. He further submits that, an employee is already having the benefit of his absence being treated as leave without allowance. Hence, when the leave is sanctioned, it cannot be said that the employee is unauthorizedly absence as the leave is sanctioned, it cannot be authorized. It is submitted that, the legal advisor of the society himself proposes the disciplinary proceedings frames articles of charges, access enquiry officer, proposes punishment, which is absolutely illegal. He also has draw the attention of the 21 MA (EAT) No.13/2020 Court towards the evidence of the respondent. He has also relied upon some citations reported in the Karnataka Education Act, 1983, ILR 2007 Kar 4870, ILR 2004 Kar 37, (1985) 3 SCC 398, The Karnataka Societies Registration Act, 1960, The Karnataka Co- operative Societies Act, 1959, ILR 1997 Kar 2797 and ILR 1994 Kar 1588. Hence, the appeal may be allowed in the interest of justice and equity.
11. Per contra the learned counsel for the respondent vehemently argued and submitted that, the appeal preferred by the appellant is not maintainable under Sec.94 of Karnataka Education Act. The appellant is not working in Education Institution. The appellant is working as a temporary employee in KIMS Hospital. Thereby, Sec.94 of Karnataka Education Act is not applicable to the present case. He further submits that, the appeal is not maintainable in view of Sec.94 of Karnataka Education Act. He further submits that, appellant examined in this case as PW.1. During the course of cross-examination so many admissions are given by the appellant. It is sufficient to hold that he has not approached the Tribunal with clean hands. It is submitted that vide Ex.P.24 the appellant has produced a long list of staff members working at the medical college. However, the name of the appellant is not reflected anywhere in the list. He further submits that, the medical college and the hospital are not one and the same. Only 22 MA (EAT) No.13/2020 colleges fall within the jurisdiction of this tribunal and not hospitals. The appellant is not an employee of a college. He is an employee of a private hospital and his remedy lies elsewhere. Hence, this tribunal has no jurisdiction to adjudicate the appeal. At page 2 of the proforma provided in Ex.P.23, the college name is shown as Kempegowda Institute of Medical Sciences, situated at Banashankari 2nd stage whereas the Hospital is shown as located in V.V.Puram. It is pertinent to note that the hospital is registered separately by Karnataka Private Medical Establishment Authority under the Karnataka Medical Establishments Authority Act, from which it is very clear that the medical college and hospital are two independent and distinct institutions. It is further submitted that the appellant is appointed as a Lift Operator on temporary basis. Ex.P.6 appointment letter clearly declares that he was appointed on temporary basis. The appellant never declared as a permanent employee. He has not made any averment to the effect that he was declared as permanent employee nor has he produced any document to prove the same. It is further submitted that the appellant has always been in the habit of unauthorizedly absenting for duty. He was issued many notices. Every time he went away. On his return he would plead that he would not repeat such behaviour in future. As a mark of assurance he would give undertaking, some times on stamp paper, authorising the management to terminate him without notice if he repeated his behaviour. It is submitted that, 23 MA (EAT) No.13/2020 nowhere in the appeal, examination-in-chief or anywhere the appellant has denied that he was unauthorizedly absent.
12. The learned counsel for the respondent further submits that, as per a catena of decisions no second show cause notice is necessary. A constitution bench of Hon'ble Supreme Court of India has held that the law of land does not require an employer to issue such notice. Similar views have also been expressed by the Hon'ble High Court of Karnataka, such as Management, Shahdara (Delhi) Saharanpura Light Railway Co. V/s Railway Workers Union in Civil Appeal No.27/1968 and J.P.Sinha V/s Indian Telephone Industries reported in 1992 ILR (KAR) 538, respectively. He has also relied upon the decision of Hon'ble Supreme Court in Union of India V/s Md. Ramzan Khan as considered in the case of Managing Director, ECIL V/s B. Karunakar is not at all helpful to the appellant because in those cases the Hon'ble Apex Court was considering the notice in relation to government employees enjoying special protection under Article 311(2) of the Constitution of India. It is submitted that the appellant is not a government servant. Hence, the above decision is not applicable to the present case.
13. It is further submitted by the learned counsel for the respondent that, Karnataka Education Act, 1983 is a special act which has created a special forum in the form of Karnataka 24 MA (EAT) No.13/2020 Education Appellate Tribunal. The act itself laid down the procedure to be followed by the employer of an educational institution while removing the employee. Sec.92(1)(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. The procedure prescribed in the act does not require any such 2nd show-cause notice to be issued. In the case of appellant a full fledged enquiry has been conducted and punishment after serving enquiry report. Hence, the above judgments are not helpful to the appellant.
14. It is further submitted that, the documents relied by the respondent that marked at Exs.P11, P.15 and P.16 are undertakings given by the appellant clearly reveals that he has given apology letter many times. This is admitted by the appellant during the course of evidence. The enquiry officer has given sufficient time to the appellant to give explanation. Inspite of it, the appellant has not given any suitable reply nor made any grounds to pass any order by the enquiry officer. It is further submitted that, Vokkaligara Sangha Service Rules, Ex.R.10 were adopted and affirmed by the executive committee of the 1st respondent in the meeting held on 11.09.2001. It was circulated to all the subordinate institutions under 25 MA (EAT) No.13/2020 the 1st respondent, including the 3rd respondent. It is very relevant to mention that in the same meeting 3 other matters were also approved. Those are V.S.Service Rules, V.S Accounts Rules and V.S. hand book of the office procedures. It is very strange that the appellant has been taking benefit under the service rules which were approved on the same day and circulated in the same circular, yet denies the validity of the CDA rules, which is illogical and self defeating. Therefore, his contentions deserves to be rejected. Moreover, the said rules have been in force for over 20 years. Having acquiesced for two decades, the appellant cannot be allowed to question their validity at this belated stage.
15. It is further submitted that proviso to Sec.27A(1)(c) empowers the Admininstrators tenure, although limited to 6 months at a time, upto a period of 4 years. By no stretch of imagination it could be understood to mean that the law intends to let the employees of the society to go scot free for 4 years inspite of their gross misconduct and the Administrator would simply turn a blind eye to it. The learned counsel for the respondent relied another decision reported in ILR 1997 Kar 2797, in the case of K.Shantharaj V/s M.L. Nagaraj, wherein it is held that, "the Administrator does not have the authority to take disciplinary action against the employees of the society. The said decisions is inapplicable to the case of the appellant for the following reasons that, firstly, the decision cited was rendered while adjudicating a matter under the Karnataka Co-
26 MA (EAT) No.13/2020operative Societies Act, and not under the Karnataka Societies Registration Act. Secondly, in that case the matter in issues was related to the power of the Administrator to enroll new members to the society in the absence of governing body. Disciplinary proceedings against employees were neither involved nor discussed in that case. On these grounds the appeal may be dismissed in the interest of justice an equity.
16. Before discussing the merits of the case, this Court feels that it is better to refer Sec.94 of Karnataka Education Act, 1983, wherein it is clearly mentioned that :
"(1) Any teacher or other employee of a private educational institution who is dismissed, removed or reduced in rank may within 3 months from the date of communication of the order prefer an appeal to the Tribunal.
(2) The provisions of Section 4 and 5 of the Limitation Act, 1963, shall be applicable to such an appeal.
(3) If, before the date of commencement of this Act, any teacher or other employees has been dismissed, or removed or reduced in rank or his appointment has been otherwise terminated and any appeal preferred before that date,
a) by him against such dismissal or removal or reduction in rank or termination ; or 27 MA (EAT) No.13/2020
b) by him or by the Governing Council against any order made in any appeal referred to in clause(a) is pending before any officer, such appeal shall, notwithstanding anything in sub-section (1), stand transferred to the Tribunal, if he makes an application in that behalf to such officer.
(4) The Tribunal shall dispose of the appeal filed under sub-
section (1) or transferred under sub-section (3) after giving the parties the opportunity of being heard.
(5) In respect of an order imposing a penalty other than those specified in sub-section 91) of Section 92, on any teacher or other employee, an appeal shall lie to the Competent Authority within 3 months from the date of communication of the order imposing such penalty.
Here in this case, the provision is clearly speaks that any teacher or other employee of the private Educational Institution are dismissed, removed or terminated from service, they are having every right to approach this Tribunal. Here in this case, the present appellant is working as a Lift Operator in 3 rd respondent. The 3rd respondent is a KIMS Hospital. The appointment letter is issued by the first respondent by appointing the appellant that got marked as Ex.P.6. It reveals that, the appellant is appointed a Lift Operator on temporary basis in 1997. The order reveals that the appellant is appointment is purely on temporary and terminable at any time 28 MA (EAT) No.13/2020 without notice. This goes to show that initially the appellant is appointed on temporary basis. Except this document the appellant has not produced any documents to show that the first respondent has issued any regular appointment order to the appellant. Thereby, it is presumed that as on the date of termination from the service, the appellant is working as a temporary employee.
17. At the same time, on going through Sec.94 of Karnataka Education Act, 1983, it reveals that any teacher or other employee working in private educational institution who are dismissed or removed or reduced in rank etc., they have to approach the appellate Tribunal for their grievance. Here in this case, the present appellant is not working in any educational institution nor he is able to place any documentary evidence to show that he was working in 2nd respondent Medical College as an employee. Thereby, in my opinion the present appellant is not able to made out ground that he works under Medical College. Thereby, Sec.94 of Karnataka Education Act is not applicable to him to file the present appeal before this Tribunal. The entire appeal memo, evidence of the appellant clearly goes to show that the appellant is working in 3 rd respondent hospital as a Lift Operator.
18. It is the case of the appellant that, this appellant is appointed by the first respondent. Later on 2nd respondent Medical 29 MA (EAT) No.13/2020 College is established by the first respondent. Thereby, the present appellant comes under 2nd respondent institution. Thereby, he has filed the present appeal U/Sec.94 of Karnataka Education Act, 1983. On this point, I would like to mention that under Sec.94 of the Karnataka Education Act, it is clearly mentioned that, any teacher or other employee of a private educational institution who is dismissed, removed or reduced in rank the said person can approach this Tribunal by filing appeal U/Sec.94 of Karnataka Education Act, 1983.
19. At this stage, I would like to refer Sec.92(b) of Karnataka Education Act, 1983, wherein it is mentioned that "
"after an enquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being beard 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 employees on the ground of misconduct which has led on his conviction on a criminal charge involving moral turpitude."30 MA (EAT) No.13/2020
20. Here in this case, the document relied by the appellant at Ex.P.6, the appointment letter, it reveals that the appellant is appointed as Lift Operator on temporary basis in 1997. There are no materials to show that the appellant is regular employee of the first respondent Society. Thereby, the present appellant being the temporary employee has no right to challenge his compulsory retirement/ removal order before this Tribunal. Thereby, I am of the opinion that the present appellant is not working in a private educational institution as a Lift operator. He is working in 3 rd respondent Hospital as a Lift operator. Thereby, the appellant is not able to made out sufficient ground that Sec.94 of Karnataka Education Act is applicable to him.
21. At the same time, I would like to refer the documents relied by the appellant at Ex.P.23. It is the circular issued by National Medical Commission Medical Assessment & Rating Board on 13.12.2021. On this document the appellant contending that, he has right to prefer the appeal U/Sec.94 of the Karnataka Education Act, 1983. The entire pleadings and evidence of the appellant never discloses that he was working in KIMS Medical College as a Lift Operator. It is the specific case of the appellant that, he was appointed as a lift operator in 1997 in KIMS Hospital, Bangalore. The circular issued by National Medical Commission Medical Assessment & Rating Board is not applicable to the appellant. Any circular or 31 MA (EAT) No.13/2020 notification issued by the Government has to be applied prospectively. Thus circular and notification cannot be applied for retrospective. Thereby, the documents relied by the appellant at Exs.P.22 to P.24 are not possible to hold that the appellant is working under respondent No.2 at any point of time.
22. At the same time, I would like to refer the evidence of the appellant before this Court. The appellant has stated in the evidence that, he was appointed initially by appointment as Lift operator by an order dated 12.08.1997 at KIMS Hospital. Thereafter in pursuance of the circular dated 06.04.1998, the salary of the staff was enhanced by the 1st Respondent. It is also submitted that, at the this juncture he was a regular employee in the institution and he was issued with 15 years time bond advancement as per the office order dated 29.08.2013. He was paid increment as clear from the document dated 22.01.2013. Moreover his pay was fixed in terms of the recommendation of the 6th pay commission as per the order dated 08.10.2013 of the 1st respondent. It is submitted that, the respondent alleged that he was not regular to his duties and since 18.11.2017 he was unauthorizedly absent for more than 750 days. It was claimed by the 1 st respondent that, 6 notices and 3 final warning notices were issued. It is claimed that, on 05.11.2016 and 0303.2017 he had executed an undertaking stating that, if he is unauthorizedly absent in future he came be removed from service, 32 MA (EAT) No.13/2020 as such he was called upon to show cause finally and to report duty. It is submitted that, if he failed to report duty by providing proper explanation, he will be subjected to internal enquiry and will be relieved office duties. Thereby, he had executed an affidavit. It is pertinent to mention that, he had applied for leave, it was not been sanctioned and it was being claimed that he was unauthorizedly absent for the period. The enquiry proceeding strangely a person by name Doreswamy K.S who was also working as Legal Advisor of 1 st Respondent and was appearing in the cases filed by and against the Sangha as an advocate before various courts was appointed as a enquiry officer. On the basis of representation obtained under coercion the enquiry officer submitted a report dated 26.06.2018 holding that the charge against him have been proved. It is submitted by the appellant that, the very same enquiry officer Doreswamy K.S as Legal advisor as authored a note and indicated that, he be issued with the notice and in the event of the failure to appear before the enquiry committee, decision for dismissal may be initiated by way of exparte order. It is submitted that, after considering the above note of the legal advisor and also the enquiry officer, the then secretary had observed in the note sheet stating that the misconduct on his part may be condoned and last opportunity be given. In pursuance of the same, an office order dated 07.08.2018 was issued permitting him to report to duty with a condition that, he would be relieved of from his duties if he is unauthorizedly absent and that he would give an undertaking on a 33 MA (EAT) No.13/2020 Rs.100/- stamp paper. It is submitted that, he was issued with another article of charges stating that, he was unauthorizedly absent for 843 days after the administrator took charge of the 1 st respondent. It is submitted that, he was issued with a show cause notice dated 29.05.2020 and he tried to substantiate his stand by filing objections and also producing documents. The new enquiry officer by name Sri. C.Channegowda who is legal advisor and appearing for the cases filed by and against the 1 st respondent submitted a report claiming to have proved the charges against him. Thereafter, he was issued with an order dated 16.10.2020 imposing penalty of compulsory retirement and thereby he was removed from service. Therefore, the order passed by the respondent is not in accordance with law.
23. During the course of cross examination conducted by the respondent counsel he deposed that, he was temporarily appointed as left operator by consolidated payment. He is not having document to show that, he was appointed as a regular employee. There is no such document available in record. He was working as a left operator in KIMS Hospital. The Learned counsel for the respondent elicited that, he was not having any impediment to go to Labour court. The appellant replied that, he do not know. The appellant admitted that, there is no enmity between himself and Channegowda. He further admitted that, Channegowda the enquiry 34 MA (EAT) No.13/2020 officer has issued show cause notice to him. He has given reply to the said show cause notice voluntarily. The contents of the reply is true and correct. The learned counsel for the respondent elicited that, appellant is absent for more than 843 days. The appellant replied that, his parents and his wife were suffering from ill health he was absent for his duties. Even he has given leave application, but it is not sanctioned by the respondent. His leave was considered as LWP and salary was also not paid. It is further admitted that, there was an agreement between himself and respondent No.1 at the time of appointing him for a duty. The same is marked Ex.R1. The said document reveals that, the appellant had executed agreement on 06.09.1997 stating that he was appointed as a temporary lift operator. In case he is not obeyed the terms and conditions of the respondent, the respondent is having every right from terminating him from duty. It is signed by 3 witnesses. This goes to show that, the appellant has to obey the rules of respondent No.1. At the same time the appellant has admitted that, respondent had issued notice to the appellant which is marked as Ex.R2. He was issued another notice in the year 2006. It is marked as Ex.R3. He deposed that, he has given reply to the said notice. But he has not produced the said notice before the court. He further admitted that, another notice was issued by the respondent in the year 2004. The same is marked as Ex.R.4. He has given reply. But the has not produced the said notice before the court. In the year 2005, 2006, 2017 so many notices were issued by the respondent 35 MA (EAT) No.13/2020 to the appellant regarding unauthorized absent. These documents are marked as Exs.R.5, R.6 and R.7. These documents are not produced. It is further admitted that, in the year 2018 respondent has issued notice regarding 750 days absent by the appellant. The same is admitted by the appellant. The appellant was confronted with one order dated 07.08.2018 and appellant admitted the same, which is marked as Ex.P.8. After the said order he was attending his duty as lift operator by submitting undertaking letter. The entire evidence goes to show that the appellant has given so many undertaking letters and assured that he is not going to absent and attend the duties in accordance with law. Inspite of it, he remained absent. The learned counsel for the respondent elicited that, he remained absent nearly about 843 days. This aspect is admitted by the appellant during the course of evidence. At the same time, the document marked on behalf of the appellant at Ex.P.1 is the notice issued by the respondent. It is noticed that since 05.03.2016 to 01.03.2017 he was absent for about 302 days. The notice further reveals that, in case if he is not reported to the duty within 8 days, the respondent is going to take legal action against the appellant. Ex.P.2 is the Articles of charges framed by the respondent. It goes to show that, the appellant was absent for 843 days. Ex.P.3 is the show-cause notice, Ex.P.4 is the report, Exs.P.5 and P.6 are the office orders. It is better to discuss regarding Ex.P.6. The appellant is appointed as lift operator on the following conditions that :
36 MA (EAT) No.13/20201) The appointment is purely temporary and terminable at any time without notice.
2) He is required to perform such duties as are entrusted to him by the superiors.
3) He should abide by the rules and regulations of KIMS Hospital and Vokkaligara Sangha.
4) He shall produce the original certificates of educational qualifications, date of birth etc., at the time of reporting for duty.
He is directed to report for duty to the Medical Superintendent, KIMS Hospital/Estate Officer, Vokkaligara Sangha, Bangalore, within 30 days from the date of the said order. This goes to show that the appellant has to abide by the conditions imposed by the first respondent at the time of appointment. Inspite of it, he has not performed the duty as entrusted by the first respondent. Exs.P.7 to P.9 are the office orders. Exs.P.10 is the final notice. Ex.P.11 and P.15 are the undertakings executed by the appellant before the first respondent. Exs.P.12 and P.13 are the E.L forms. Ex.P.14 is the report. Ex.P.17 is the final report submitted by the Enquiry Officer. Ex.P.19 is the report, Exs.P.20 and P.21 are the office notes, Exs.P.22 to P.25 are List of staff of KIMS Hospital. In view of these documents and oral evidence of the appellant and admissions, it clearly goes to show that the respondent has given sufficient opportunities to the appellant to work in the 3rd respondent hospital. Inspite of it, the appellant is not diligent to work properly. Thereby, the respondent has conducted the enquiry and terminated 37 MA (EAT) No.13/2020 the appellant. The material document at Ex.P.4 report submitted by the Enquiry officer reveals that, the Enquiry officer has given opportunity to the appellant at the time of recording the plea of the appellant. Appellant pleaded guilty of the charges. On 01.02.2020 sworn statement of the appellant was recorded by the Enquiry officer. The appellant himself has admitted regarding plea and also recorded the confirmation of the plea.
24. The Enquiry officer has also relied upon the decision reported in (2006) 5 SCC 137, in the case of North Eastern Karnataka RT Corpn. V/s Ashappa, wherein it is held that :
"Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct."
Misconduct has been defined in Black's Law Dictionary, as under :
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."
Misconduct in office has been defined as :
"Any unlawful behavious by a public officer in relation to the duties in his office, willful in character, the term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of a affirmative duty to act."38 MA (EAT) No.13/2020
This goes to show that the Enquiry officer has properly conducted the enquiry and submitted the report. The appellant is having knowledge about the charges framed by the Enquiry officer. Inspite of it, he is not diligent to contest the same. He has categorically admitted the charges leveled against him. Thereby, the Enquiry officer has submitted the report. Thereby, there are no materials to show that the respondents have not given any opportunity to the appellant at the time of conducting enquiry. The enquiry report is clearly reveals that the Enquiry officer has conducted the fair trial. Thereby, the contention urged by the appellant does not holds good. There are no materials placed by the appellant to show that the Enquiry officer is not properly conducted the enquiry. Thereby, I come to the conclusion that the appellant is not able to made out any grounds. The order passed by the Enquiry office is in accordance with law.
25. Though he was appointed as Lift operator, he continued and in all manner treated as regular appointee. Initially he was issued show-cause notice alleging that he was unauthorizedly absent. An enquiry was conducted and forcibly he was made to execute cyclostyled affidavit as like similarly placed employees stating that he will not repeat the mistake in future and he was taken to duty. Appellant further stated that, he was called upon for the enquiry and again he was forced to give an undertaking and 39 MA (EAT) No.13/2020 what needs to be stated is that none of the principles of natural justice were followed and he was not even provided with copies of daily proceedings. However, the report came to be submitted by the so called specially empowered authority and the enquiring authority stating that his guilt having been admitted and hence proved. Though the appellant has made so many grounds in the appeal, however during the course of evidence he deposed regarding appointment, show-cause notice and termination by the first respondent etc., During the course of cross-examination conducted by the respondent's counsel, the appellant categorically admitted that, he was working in KIMS Hospital as a Lift operator. He further deposed KIMS hospital is situated at K.R.Market Road. Medical College is situated at Banashankari. He was working in the hospital. He does not have nay relationship with the enquiry officer. He further deposed that, so many employees are working in 3rd respondent hospital. He had given so many apology letter before the 3rd respondent. He further deposed that, 3rd respondent is a reputed hospital at Bangalore. So many patients are taking treatment in the said hospital. The entire cross-examination reveals that, the appellant never stated that he was working under 2 nd respondent as a Lift operator.
26. At the same time, the appellant contended in the appeal that he is a employee of Medical College. Unfortunately, the 40 MA (EAT) No.13/2020 appellant is not able to furnish any documents to show that he was working in Medical College. Thereby, the contention of the appellant is not supported any material documents and evidence.
27. It is further contended by the appellant that, the notice issued by the respondent is not served upon him. On perusal of the entire records, it is clearly evident on record that the respondent served the notice on the appellant. The appellant appeared before the Enquiry Officer. It goes to show that the appellant is having knowledge about the issuance of notice. The documents relied by the respondent at Exs.R.2 to R.7, R.11 and R.15 are clearly evident on record that the respondent has issued notice (ಸಸಚನ ಪತತ) and directed the appellant to submit his objection statement. Otherwise the respondent is going to take legal action against him. Inspite of it, the appellant is not diligent to appear before the respondent and submit objection statement. The documents marked through RW.1 are clearly reveals that the respondent had given sufficient opportunity to the appellant. Inspite of it, he is not diligent to appear and submit objection statement. This goes to show that the contention of the appellant that, notice issued by the respondent is not served upon him does not holds good. Moreover, the documents relied by the respondent at Ex.R.18 reveals that the Enquiry Officer has recorded the plea of the appellant, wherein appellant has clearly pleaded the guilt of the charge. It seems that 41 MA (EAT) No.13/2020 the appellant has admitted about the charge framed by the Enquiry Officer. Thereby, the Enquiry Officer has passed the necessary order and submitted to the competent authority. On the basis of the enquiry report, the 1st respondent passed the order on 15.10.2020 and the present appellant is dismissed from service for compulsory retirement. The entire records and admissions on the part of the appellant clearly goes to show that the appellant is not able to made out any grounds to show that respondent has not given any sufficient opportunity to contest the matter.
28. Moreover, the appellant contended that the Administrator is not empowerd to pass such order and remove the appellant from service. At the same time, the appellant contended that the order passed by the Enquiry Officer and order issued by the 1 st respondent is violated the principles of natural justice while conducting enquiry. The materials placed by the respondent clearly reveals that, the appellant has not made out any grounds to show that the respondent have violated the principles of natural justice. The entire evidence and documents are clearly reveals that the respondent had conducted proper enquiry by issuance of notice. Thereby, I am of the opinion that the stand taken by the appellant is not supported with any material documents or oral evidence. Hence, I come to the conclusion that the grounds urged by the 42 MA (EAT) No.13/2020 appellant is not possible to hold that the respondent have committed error while passing the order.
29. At the same time, I would like to refer the oral evidence of the respondent. The respondent have contended the same set of facts as stated in the objection statement. The learned counsel for the appellant testified the respondent by way of cross-examination. At that point of time, the RW.1 deposed that, he was appointed in the respondent Society in the year 2007. He was promoted as A.M.O in July 2021. He is an Orthopedic surgeon. He knows the appellant. He knows the facts of the case. He has stated in the evidence that Hospital and Medical College are different entity. He has not produced any documents. The Medical College comes under Counseling and Administration. He know the staff pattern of the Hospital and Medical college. The same is published in the website. The respondent admitted about one document which is sent by the respondent to N.M.C. He also admitted another document which is downloaded from the Hospital website which is marked as Ex.P.22. He further deposed that, one Deen Dr. Venkatesh looks after the administration of the hospital. Dr.Madhava Reddy is the Medical Superintendent. He further deposed that, para 3 of the evidence and Ex.P.7 information are different. But he has given explanation that, Deen and Principal is over all incharge of medical institution including hospital. He is 43 MA (EAT) No.13/2020 incharge of all non teaching staff. Over all incharge means he also work under Principal. Another document is confronted by the counsel for the appellant at Ex.P.8. it is pertaining to the Staff and Hospital records. But order passed against the appellant is one Administrator.
30. The learned counsel for the appellant elicited that one Chennegowda is the Enquiry Officer. He was the legal advisor of the respondent Society and he has verified the documents and recommended to take legal action against the appellant. Though it is admitted by the respondent, later on the respondent has deposed that, it has to enquired in legal cell. He came to know that the appellant is dismissed from the service. The entire evidence of the respondent reveals that, the respondent Society has given so may opportunities to the appellant by issuance of notice. The same is served on the appellant and he given apology letter. These documents are marked as 'R' series. In view of the oral and documentary evidence, I come to the conclusion that the appellant has not made out any grounds that the respondent have violated the principles of natural justice while conducting enquiry. At the same time, the order passed by the respondent reveals that, the respondent has given sufficient opportunity to the appellant and later on passed suitable order. Thereby, both the contention taken by the appellant is not supported any material documents and oral 44 MA (EAT) No.13/2020 evidence. On the other hand, the oral evidence of the respondent and material admissions on the part of the appellant clearly goes to show that the appellant has not made out any grounds to interfere in the order passed by the respondent Society.
31. At this stage, I would like to refer the citation relied by the appellant's counsel.
1) ILR 2007 KAR 4870, in the case of D.Jeevagan V/s The Principal, MEI Polytechnic & Others, wherein it is held that :
"(A) KARNATAKA EDUCATION ACT, 1983 -
SECTION 94 - Appeal under - Private Educational Institution - an order of dismissal, removal of a teacher or other employee - Whether an appeal lie under Section 130 of the Act - HELD, In view of the provisions contained in Section 94 of the Act, an order removing or dismissing a teacher or other employee from the service of private educational institution cannot be the subject matter of an appeal under Section 130 of the Act but it can only be the subject matter of an appeal under Section 94 of the Act."
2) ILR 2004 KAR 37, in the case of Management of M.S.Ramaiah Medical College and Hospital V/s Dr. M.Somashekar, wherein it is held that :
"(A) KARNATAKA EDUCATION ACT, 1983 (KARNATAKA ACT NO.1 OF 1995) - SECTION 94(1) -
Appeal to Educational Appellate Tribunal - conditions to be fulfilled - order of dismissal or removal need not be passed in a disciplinary proceedings - It is sufficient if the order is dismissal or removal is intended to be punitive -
45 MA (EAT) No.13/2020SHANKARAPPA SHARANAPPA GAURE V/s DIRECTOR OF PUBLIC INSTRUCTIONS [1991 (1) KAR L.J. 438] overruled."
3) ILR 1997 KAR 2797, in the case of K. Shantharaj V/s M.L.Nagaraj & Others, wherein it is held that :
"A. KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959 (KARNATAKA ACT II OF 1959) SECTION 30 Supercession of the Board of Directors - Appointing Joint Registrar of Co-operative Societies as an Administrator, Enrolling of 150 members by the Administrator just before the Elections and issuing of Calendar of Events to hold Elections were challenged by the Directors - Held, that the Administrator appointed under section 30 has no power to enroll new members and his function is only to manage the routine affairs, of the Society from day today. (Para 27)".
4) ILR 1994 KAR 1588, in the case of M.L.Nagaraj V/s State of Karnataka, wherein it is held that :
"KARNATAKA CO-OPERATIVE SOCIETIES ACT, 1959 (Karnataka Act No.11 of 1959) - Sections 26 & 30 - BYE LAW No.15 - Admission to Membership - General Body empowered to admit or decline membership considering relevant criteria in Bye-law - Enrolment of new members by Administrator, without authority of law ; no right to participate in election."
5) (2008) 8 Supreme Court Cases 469, in the case of State of Punjab V/s Dr. P.L. Singla, wherein it is held that :
46 MA (EAT) No.13/2020"A. Service Law - Leave - Grant of - Held, cannot be presumed or inferred - Onus is on the employee to prove that he had actually sent leave application - Misconduct - Unauthorised absence.
B. Service Law - Departmental enquiry -
Penalty/Punishment - Quantum of - Unauthorised abesnce
- Held, depends on nature of service, position held by employee, period of absence and reason for absence - Withholding of five increments with cumulative effect, on account of unauthorised absence of 5 years - Held, punishment was not disproportionate - Misconduct - Unauthorised absence.
C. Service Law - Misconduct - Unauthorised absence - Effect of grant of leave - Held, condones misconduct unless the authority concerned, while granting leave, reserves right to take disciplinary action - Grant of leave after imposition of penalty, as a consequential step to avoid break in service which in turn would affect employee's seniority, pension, pay, etc.., further held, does not wipe out effect of penalty - Such consequential order is necessary except in a case where punishment of dismissal or removal is imposed."
The facts and circumstances discussed in the above respected judgment and the facts and circumstances of the present case are not one and the same. Therefore, the above respected judgment is not applicable to the present case on hand.
32. At the same time, the learned counsel for the respondents has relied upon the citation reported in :
1) Writ Pet.No.14148/2006 C/w Writ Pet.No.14149/2006 (S-DIS), in the case of Nagappa Pradhani & Others V/s The State of Karnataka, Department of Revenue & Others, 47 MA (EAT) No.13/2020
2) Civil Appeal No.27/1968 in the case of Management, Shahdara (Delhi) Saharanpura Light Railway Co. V/s Railway Workers Union,
3) ILR 1992 KAR 538, in the case of J.P.Sinha V/s Indian Telephone Industries,
4) Civil Appeal No.3056/1991, in the case of Managing Director ECIL Hyderabad Etc, V/s B. Karunkara,
5) 1997 ILR (KAR) 2797, in the case of K.Shantharaj V/s M.L.Nagaraj.
6) Civil Appeal No.142/2021, State of Uttarkhand Vs/ Smt. Sureshwati.
7) Civil Appeal Nos.1930-36 of 1999, in the case of Joint Registrar of Cooperative Societies, Kerala V/s T.A.Kuttappan and Others.
The facts and circumstances discussed in the above respected judgment and the facts and circumstances of the present case are one and the same. Therefore, the above respected judgment is aptly applicable to the present case on hand. In view of the above discussions, I come to the conclusion that the appellant has not made out any grounds that the present appeal is maintainable before this Tribunal. At the same time, the oral evidence and documents relied by both the parties, I come to the conclusion that, the respondents have not violated the principles of 48 MA (EAT) No.13/2020 natural justice and the order passed by the respondent is in accordance with law. Hence, I answer point Nos.1 and 2 in the Negative.
33. POINT NO.3: In view of my findings on Point Nos.1 and 2, I proceed to pass the following:
ORDER The Appeal filed by the appellant under Sec.94 of Karnataka Education Act, 1983 is hereby dismissed.
The order dated 16.10.2020 bearing No.Ra.Va.Sa./83/Aadalitha(1)/2020/925/2020-21 passed by 1st respondent and the office order bearing No.KIMS/817/2020-21 dated 19.10.2020 issued by the 3rd respondent are hereby confirmed.
(Dictated to the Stenographer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 13 th day of September, 2022) (SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.49 MA (EAT) No.13/2020
ANNEXURE WITNESSES EXAMINED IN FAVOUR OF THE APPELLANT :
PW.1 R. Nagendra
DOCUMENTS MARKED IN FAVOUR OF THE APPELLANT :
Ex.P.1 : Final notice dated 27.03.2018,
Ex.P.2 : Article of charges,
Ex.P.3 : Notice of explanation,
Ex.P.4 : Report,
Ex.P.5 : Office order dated 19.10.2020,
Ex.P.6 : Appointment order,
Exs.P.7 & P.8 : Office orders,
Ex.P.9 : Modification Order (ತದದದಪಡ ಆದದದಶ),
Ex.P.10 : Final notice dated 27.03.2018,
Ex.P.11 : Undertaking,
Exs.P.12 & P.13 : E.L. forms,
Ex.P.14 : Letter,
Ex.P.15 : Undertaking,
Ex.P.16 : Reply to the notice,
Ex.P.17 : Statement of appellant,
Ex.P.18 : Statement,
50 MA (EAT) No.13/2020
Ex.P.19 : Report dated 26.06.2018,
Ex.P.20 : Office note,
Ex.P.21 : Office note,
Ex.P.22 : Journal publication website copy,
Ex.P.23 : Circular dated 13.12.2021,
Ex.P.24 : Journal publication website copy,
Ex.P.25 : Certified
copy of the Writ Pet.No.9343/2021 and
9349/2021,
WITNESSES EXAMINED IN FAVOUR OF THE RESPONDENT :
RW.1 - Dr. R. Yatish DOCUMENTS MARKED IN FAVOUR OF THE RESPONDENT :
Ex.R.1 : Agreement,
Ex.R.2 : Notice dated 25.04.1999
Ex.R.3 : Notice dated 16.08.2006,
Ex.R.4 : Notice dated 25.11.2014,
Ex.R.5 : Notice dated 25.08.2005,
Ex.R.6 : Notice dated 08.06.2007,
51 MA (EAT) No.13/2020
Ex.R.7 : Notice dated 14.12.2017,
Ex.R.8 : Office order,
Ex.R.9 : Service rules,
Ex.R.10 : Undertaking,
Ex.R.11 : Memorandum of Association,
Ex.R.12 : Bond,
Ex.P.13 : Final notice dated 11.11.2016,
Ex.P.14 : Notice dated 31.08.2018,
Ex.P.15 : Notice dated 12.10.2018,
Ex.R.16 : Disciplinary authority proceedings, Ex.R.17 : Authorization letter, Ex.R.18 : Report, Ex.R.19 : Plea in D.E.No.8(C)/2020, Ex.R.20 : Copy of the deposition in D.E.No.8(C)2020, Ex.R.21 : Acknowledgment.
(SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
52 MA (EAT) No.13/2020JUDGMENT PRONOUNCED IN THE OPEN COURT, VIDE SEPARATE ORDER The Appeal filed by the appellant under Sec.94 of Karnataka Education Act, 1983 is hereby dismissed.
The order dated 16.10.2020 bearing No.Ra.Va.Sa./83/Aadalitha(1)/2020/925/2020
-21 passed by 1st respondent and the office order bearing No.KIMS/817/2020-21 dated 19.10.2020 issued by the 3rd respondent are hereby confirmed.
LXVIII A.C.C & S.J, Bengaluru City.
53 MA (EAT) No.13/2020 54 MA (EAT) No.13/2020