Karnataka High Court
Mahajana Education Society (R) vs Sri S Haridas Nekkar on 24 August, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2023:KHC:30415
WP No. 45813 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 45813 OF 2011 (S-RES)
BETWEEN:
1. MAHAJANA EDUCATION SOCIETY (R)
JAYALAKSHMIPURAM,
MYSORE-570 012.
REP BY ITS HON. SECRETARY
SRI G S SUBRAMANYAM
...PETITIONER
(BY SRI. SOMASHEKHAR., ADVOCATE (VC))
AND:
1. SRI S HARIDAS NEKKAR
S/O SRI SUBBANNA NEKKAR
AGED ABOUT 50 YEARS
NO.15, "SRI GURU SAMPREETHA"
VANIVILAS LAYOUT,
VIJAYANAGAR 2ND STAGE,
Digitally MYSORE-570 012.
signed by
PANKAJA S ...RESPONDENT
Location: (BY SRI. VIJAY KUMAR., ADVOCATE)
HIGH
COURT OF
KARNATAKA THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE IMPUGNED ORDER DATED:13.10.11 PASSED BY THE
EDUCATIONAL APPELLATE TRIBUNAL, MYSORE IN
EAT.NO.10/09 AT ANNEXURE-Q TO THIS PETITION & PASS
SUCH OTHER APPROPRIATE ORDER, ETC.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 45813 of 2011
ORDER
1. A charge-sheet was issued to the respondent alleging that at the time of admission of the students to the Institution, the respondent had unauthorisedly collected additional sums from the students and issued receipts only to the extent of fees fixed by the Institution with an intention to make wrongful gain for himself. It was also alleged that he had misappropriated additional sums collected for his personal gains and he had resorted to such illegal and unethical activities despite oral warnings issued to him on earlier occasions under the similar circumstances.
2. Thereafter, another charge-sheet was also issued to the respondent stating that while he was functioning as the Principal, the subject teachers had prepared and sent him the attendance records of the students of 1st and 2nd year Pre-University Course and based on the said record, he had prepared three lists of students. One of the lists was pertaining to the students who could pay the penalty -3- NC: 2023:KHC:30415 WP No. 45813 of 2011 and take-up the examinations and the other list depicting the students who were not eligible to take examinations.
3. It was alleged that after notifying the lists, he made use of this delicate situation by seeking illegal gratification and had permitted even ineligible students to take up the examinations without bringing it to the notice of the Management.
4. Pursuant to the enquiry conducted, a report was submitted that the charges leveled against the respondent were proved and on the basis of the said Report, the Governing Council passed a Resolution, dismissing the respondent from service with immediate effect.
5. It is also stated that during the pendency of the inquiry, the respondent was kept under suspension with the approval of the Department and he was also imposed with the penalty with the prior approval of the Department.
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6. Being aggrieved by the punishment imposed upon him, the respondent approached the Education Appellate Tribunal ("Tribunal" for short) and the Tribunal by the impugned order set aside the order of dismissal and has directed the petitioner to reinstate the respondent with full back-wages within two months.
7. In order to come to this conclusion, the Tribunal has basically relied upon Rule 28(2) of the Karnataka Pre- University Education (Academic, Registration, Administration & Grant-in-Aid etc.) Rules, 2006 (for short 'the Rules') stating that it was only the Director, who was competent to initiate the enquiry and since the Governing Council had initiated the proceedings, the entire proceedings were non est.
8. Being aggrieved by this order of the Tribunal, the Management has preferred this writ petition.
9. Sri.Somashekhar, learned counsel appearing for the petitioner-Institution, contends that the application of Rule -5- NC: 2023:KHC:30415 WP No. 45813 of 2011 28(2) of the Rules by the Tribunal was misconceived. He contends that under the provisions of Section 46 of the Education Act, 1983 (for short 'the Act'), it was the prerogative of the Managing Committee of a recognised educational Institution under Section 41(4) of the Act to take disciplinary action against an employee and therefore, the view taken by the Tribunal that it had no power in view of Rule 28(2) of the Rules, was incorrect.
10. Learned counsel submitted that under Rule 28(2) of the Rules, it was the Managing Committee which was competent to impose a penalty specified under Rule 27 thereof and even under Rule 28(2) of the Rules, it was the Managing Committee which was competent to initiate a disciplinary action. He contended that the second part of Rule 28(2) of the Rules reserved the power to the Director to initiate a disciplinary proceedings and impose punishment on initiation of disciplinary proceedings on an employee on the grounds of misappropriation or misutilisation of the Government funds or on the charge of -6- NC: 2023:KHC:30415 WP No. 45813 of 2011 examination malpractices and this power reserved to the Director did not amount to denuding the power of the Managing Committee to initiate disciplinary proceedings. He contended that this power was reserved in favour of the Director only to ensure that the Managing Committee is not remiss in not initiating any action against its employee when it came to the question of misappropriation or misutilisation of the Government funds or in the matter of examination malpractices.
11. The learned counsel for the employee, on the other hand, contended that Rule 28(2) of the Rules was clear that it was the Director alone who was competent to initiate a disciplinary enquiry in respect of any misappropriation or misutilisation of the Government funds and since the allegation made against the petitioner was misappropriation and misutilisation of Government funds, the Tribunal was justified in holding that it was only the Director who had the power to initiate disciplinary proceedings.
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12. He also submitted that an allegation of examination malpractice was made against the petitioner inasmuch as he had allowed 2nd year Pre-University Course students, who were ineligible to take up the examination, and this also indicated that it was only the Director who was competent to initiate disciplinary proceedings.
13. Sections 41(4) and 46(1)(c) of the Act reads as follows:
" 41. Management of recognised Educational Institutions.- (1) x x x (4) The Governing Council shall have the power to appoint the head of the institution and also to take disciplinary action against him according to the prescribed rule. "
xxx " 46. Powers and functions of the Managing Committee.- (1) Subject to the provisions of this Act and the rules prescribed thereunder, the Managing Committee shall have the following powers and functions, namely:-
(a) x x x -8- NC: 2023:KHC:30415 WP No. 45813 of 2011
(c) to take disciplinary action against the teachers and other employees except the head of the institution; "
14. As could be seen from this substantive provision, it is the Management of a recognized educational institution which would have the power to appoint or to take the disciplinary action against the Head of the Institution and also against the employees.
15. The expression "Governing Council" has been defined under Section 2(17) of the Act and the same reads as follows:
" 2. Definitions.- In this Act, unless the context otherwise requires,-
(17) "Governing Council" means any person or body of persons permitted or deemed to be permitted under this Act to establish or maintain a private educational Institution; or commence institution or tutorial institution and includes the governing body, by whatever name called, to which the affairs of the said educational institution are entrusted."-9-
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16. Admittedly, in this case, there is no Managing Committee managing the Institution and it is only the Governing Council which is administering the Institution. It is, therefore, clear that in respect of initiation of the disciplinary action against a Principal, i.e., the head of the Institution, it is the Governing Council which has been conferred with the power to initiate the disciplinary action.
17. It may also be pertinent to state here that it was not the defence of the respondent that the Governing Council had no power to initiate proceedings against the petitioner.
18. The Rules which are framed in exercise of the power conferred under Section 145 of the Act, in the matter of administration of Pre-University Education Institutions, are obviously meant to sub-serve the substantive provision.
19. Rule 28 of the Rules reads as follows:
"28. Procedure of conducting disciplinary enquiries.-
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NC: 2023:KHC:30415 WP No. 45813 of 2011 (1) The managing committee shall be competent to impose penalties specified in rule 27.
Provided that in case of employees working in aided posts, the managing committee shall obtain the prior approval of the Director, Pre-University Education for imposing any of the penalties on any employee.
(2) A managing committee shall be competent to initiate disciplinary proceedings against its employees in accordance with these rules. However, the Director shall be competent to initiate a disciplinary enquiry and impose punishment on any employee of a private aided Pre- University college whose salary grants are released by the Government, on the grounds of misappropriation or mis-utilisation of Government funds or on charges of examination malpractice. The Director is also competent to initiate domestic enquiry against employees whenever the managing committee gives up the right in favour of the Director in accordance with the Pre- University Course State Level Examination Rules, 1997.
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NC: 2023:KHC:30415 WP No. 45813 of 2011 (3) In all the disciplinary proceedings, the Director shall be competent to appoint the enquiry officer either suo-motu if the enquiry is ordered by him under sub-rule (2) or on a proposal by a managing committee if the charges are framed by the managing committee.
(4) Where the enquiry is ordered by the Director suo-motu, then the enquiry officer shall be a serving Government servant. If the enquiry is proposed by the managing committee then the enquiry officer may be a serving or retired Government servant or a legal practitioner. If a retired government servant or a legal practitioner is appointed as the enquiry officer, then the managing committee shall deposit an amount of Rs.2,000/- with the Director and the same shall be payable to the person appointed as enquiry officer upon completion of the enquiry and submission of the report to the Director.
(5) The Director shall take a decision on the report if the enquiry is ordered by him or send the report to the managing committee for a decision if the enquiry had been sought by the managing committee.
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NC: 2023:KHC:30415 WP No. 45813 of 2011 An appeal shall lie on the said decision to the Education Appellate Tribunal."
20. Rule 28 of the Rules prescribes the procedure for continuing the disciplinary enquiry. Sub-rule (1) of Rule 25 makes it clear that it is the Managing Committee which shall be competent to impose the penalty specified in Rule
27. This Rule is obviously in consonance with Section 41(4) and Section 46(1)(c) of the Act.
21. The proviso to Sub-rule (1) of Rule 28 makes it clear that in respect of the employees working in aided posts, the Managing Committee would have to necessarily obtain the prior approval of the Director before imposing any of the punishments on any employees. Thus, a check and balance is sought to be maintained by requiring the prior approval of the Director so that an employee of the Institution is not victimized by the Managing Committee.
22. Sub-rule (2) of Rule 28 reiterates that the Managing Committee shall be competent to initiate disciplinary proceedings against its employees in accordance with the
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NC: 2023:KHC:30415 WP No. 45813 of 2011 said Rules. This declaration is fundamentally to the effect that the Managing Committee has the power to initiate disciplinary proceedings against its employees.
23. The next part of sub-rule (2) of Rule 28 states that despite the power of the Managing Committee being competent to initiate disciplinary proceedings, the Director would also be competent to initiate disciplinary enquiry and impose punishment on any employee, if salary grants are released by the Government, in relation to cases of misappropriation or misutilisation of the Government funds or on charges of examination malpractice. The reason why the Director is also made competent to initiate a disciplinary enquiry in respect of either misappropriation or misutilisation of Government funds or examination malpractice is not far to see.
24. In the event the Managing Committee does not take any action, in relation to misappropriation or misutilisation of Government funds and thereby protect the employee to the detriment of the Government, a specific power is
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NC: 2023:KHC:30415 WP No. 45813 of 2011 reserved in favour of the Director to initiate disciplinary proceedings even if the Managing Committee does not take any action. This Rule cannot be interpreted to state that it is the Director alone who is competent to initiate disciplinary proceedings. If this interpretation is to be accepted, it would amount to amending the Rules and inserting the expression "the Director alone shall be competent", which is impermissible in law.
25. To reiterate, the power reserved to the Director is not to exclude the powers of the Managing Committee but only to enable the Director to initiate action if the Managing Committee is remiss in holding an enquiry when it comes to situations specified under sub-rule (2) of Rule
28.
26. Therefore, the findings of the Tribunal, that since the disciplinary proceedings are initiated by the Governing Council and not by the Director, the proceedings are non est, cannot be accepted.
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27. The impugned order is, therefore, quashed and the matter is remitted to the Tribunal, with a direction to the Tribunal to consider the enquiry report and the punishment that has been imposed by the Governing Council on the merits of the report and on the adequacy of punishment.
28. The Writ petition is accordingly allowed.
Sd/-
JUDGE RK CT: SN List No.: 1 Sl No.: 44