Karnataka High Court
Peoples Education Trust (R) vs The State Of Karnataka on 3 August, 2018
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.42513/2016 (S-RES)
C/W
WRIT PETITION No.42514/2016 (S-RES)
W.P.No.42513/2016
BETWEEN:
1. PEOPLE'S EDUCATION TRUST (R)
REP. BY SECRETARY OF THE
GOVERNING COUNCIL,
MANDYA-571 402.
2. THE PRINCIPAL
P.E.S. LAW COLLEGE,
MANDYA-571 402.
... PETITIONERS
(BY SRI S M CHANDRASHEKAR, SR. COUNSEL FOR
SRI H B CHANDRASHEKAR H B, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF LAW,
M.S. BUILDING,
BANGALORE-560 001.
2. THE PRINCIPAL SECRETARY
TO GOVERNMENT
LAW DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE-560 001.
2
3. SRI. SHANKARE GOWDA
S/O. BUDI GOWDA,
AGED ABOUT 52 YEARS,
R/O CHANDAGALU VILLAGE,
BASARALU HOBLI,
CHANDAGALU POST,
MANDYA TALUK,
MANDYA DISTRICT-571 401.
4. SRI. PRAPULLA CHANDRA H
C/O. DR. LOKESH BABU,
AGED ABOUT 56 YEARS,
2ND CROSS, SUBHASHNAGAR,
MANDYA CITY-571 401.
5. SRI. K.P. CHITRA BANASAWADI
S/O. JAYAPRAKASH BANASAWADI,
AGED ABOUT 38 YEARS,
R/O. DODDABANASAWADI VILLAGE,
KEREGODU VILLAGE,
MANDYA TALUK-571 401.
6. SRI. K.P. JAYACHANDRA
S/O. K. PUTTASWAMY,
AGED ABOUT 57 YEARS,
RESIDING AT NO.H-299,
GANGA MARGA,
KAVERI NAGAR,
MANDYA-571 401.
... RESPONDENTS
(BY SRI A C BALARAJ, HCGP. FOR R1 & 2
SRI SUBBA RAO, SR. COUNSEL FOR
SRI K N SATHEESHA, ADV. FOR C/R3 TO 6)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DATED 07.04.2016 IN REVISION PETITION 3/2012
PASSED BY THE R-2 VIDE ANNEX-A.
W.P.No.42514/2016
BETWEEN:
1. PEOPLE'S EDUCATION TRUST (R)
LAW COLLEGE
3
PES ENGINEERING COLLEGE ROAD
MANDYA - 571 402
REP. BY ITS JOINT SECRETARY
OF THE GOVERNING COUNCIL,
2. THE PRINCIPAL
P.E.S. LAW COLLEGE,
PES ENGINEERING COLLEGE ROAD
MANDYA-571 402.
... PETITIONERS
(BY SRI S M CHANDRASHEKAR, SR. COUNSEL FOR
SRI H B CHANDRASHEKAR H B, ADV.)
AND:
1. THE PRINCIPAL SECRETARY
TO GOVERNMENT OF KARNATAKA
LAW DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE-560 001.
2. THE DIRECTOR OF COLLEGIATE EDUCATION
SHESHADRI ROAD
BENGALURU-560 001
3. THE KARNATAKA LAW UNIVERSITY
NAVANAGARA
HUBBALLI - 580 025
4. SRI. SHANKARE GOWDA
S/O. BUDI GOWDA,
AGED ABOUT 51 YEARS,
R/O CHANDAGALU VILLAGE,
BASARALU HOBLI,
CHANDAGALU POST,
MANDYA TALUK,
MANDYA DISTRICT-571 401.
5. SRI. PRAPULLA CHANDRA H
C/O. DR. LOKESH BABU,
AGED ABOUT 55 YEARS,
2ND CROSS, SUBHASHNAGAR,
MANDYA CITY-571 401.
6. SRI. K.P. JAYACHANDRA
S/O. K. PUTTASWAMY,
AGED ABOUT 56 YEARS,
4
RESIDING AT NO.H-299,
GANGA MARGA, KAVERI NAGAR,
MANDYA-571 401.
... RESPONDENTS
(BY SRI A C BALARAJ, HCGP. FOR R1 & 2
SRI SUBBA RAO, SR. COUNSEL FOR
SRI K N SATHEESHA, ADV. FOR
M/S. SUBBA RAO & CO. FOR C/R3 TO 6)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DATED 07.04.2016 IN REVISION PETITION 5/2013
PASSED BY THE R-2.
THESE WRIT PETITIONS HAVING BEEN RESERVED FOR
ORDERS ON 13.07.2018, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :
ORDER
The parties in both these petitions are the same and the subject matter relating to employment and the benefits as sought by the respondents No.3 to 6 arise out of the same situation though the benefit granted under the two impugned orders are different. Hence the petitions are taken up together and disposed of by this order.
2. In W.P.No.42513/2016, the petitioners management are assailing the order dated 07.04.2016 passed in Revision Petition No.3/2012. By the said 5 order, the revisional authority has allowed the petition and directed the petitioners herein to pay the salaries to the private respondents herein equal to the salaries paid to the Government teachers as per Rule 5 of the Karnataka Private Educational Institutions(Discipline and Control) Rules, 1978 and pay the difference of the salaries.
3. In W.P.No.42514/2016 the petitioners management is assailing the order dated 07.04.2016 passed in Revision Petition No.5/2012 wherein the revisional authority has allowed the revision, set aside the order dated 25.05.2011 impugned therein and has directed the petitioners herein to reconsider the retrenchment of the private respondents herein and to accommodate them in any other college being run by the petitioner No.1 trust if the private respondents are qualified in that regard.
4. The brief facts on which these petitions have arisen is that the private respondents herein were 6 appointed as lecturers to teach the different subjects as mentioned in the petitions. They were appointed on 01.01.1991, 20.08.1986, 30.04.2001 and 10.11.1986 respectively. They were teaching in the petitioner No.2 law College. One aspect of the matter is that they were not being paid the same salary as was being paid to the Government teachers despite discharging similar functions. The other aspect of the matter is that the petitioner No.1 Trust on finding that the admissions to the petitioner No.2 - College was dwindling year after year and the same being unviable had decided to close down the petitioner No.2 - College. In that view the petitioners had taken a decision to retrench the private respondents. At the earlier stage, the private respondents were before this Court in W.P.Nos.19534- 36/2011. A learned Judge of this Court through the order dated 28.09.2012 had relegated the parties to file a revision petition under Section 131 of the Education Act, 1983 ('the Act, 1983' for short). The private respondents claiming to be aggrieved by the said order 7 were before the Division Bench in WA Nos.7009- 7011/2012. The Hon'ble Division Bench of this Court through the order dated 26.09.2013 having taken note of the rival contentions had also taken into consideration the liberty given by the learned single Judge to file the revision petition under Section 131 of the Act, 1983. It is in those circumstances the revision petitions were filed by the private respondents and the orders impugned have been passed by the revisional authority.
5. Heard Sri S.M.Chandrashekar, learned senior counsel for Sri H.B.Chandrashekar, learned counsel for the petitioner, Sri K. Subba Rao, learned senior counsel for Sri K.N.Sathisha, learned counsel for the respondents No.3 to 6 and Sri A.C.Balaraj, learned Government Advocate for respondents No.1 and 2. Perused the petition papers.
6. Learned senior counsel for the petitioner at the outset would contend that the orders impugned in these 8 petitions are passed by the revisional authority without jurisdiction and as such the same is liable to be set aside on that ground alone. It is contended that if the private respondents were aggrieved by their retrenchment, they ought to have filed an appeal as provided under Section 94 of the Act 1983 and not a revision petition under Section 131 of the said Act. Learned senior counsel for the respondents would however contend that the appeal provided under Section 94 of the Act, 1983 is only in the circumstance when there is a dismissal, removal or reduction in rank which essentially is in the nature of punishment, whereas in the instant case the contention of the private respondents is that the retrenchment is made without prior approval as contemplated in law which is a violation of the law and as such the revision is maintainable.
7. In that regard it is appropriate to take note of the decisions which are relied on by the learned senior 9 counsel for the private respondents to contend that the revision petition was the appropriate remedy. They are:
i) In the case of Shyamlal vs. State of U.P. and another (AIR 1954 SC 369), the consideration is made to hold that every termination in service does not amount to dismissal or removal though removal like dismissal no doubt brings about termination of service.
ii) In the case of Management of M.S.Ramaiah Medical College, Bengaluru vs Dr.M.Somashekar [2004)1 Kar.L.J.532 (DB)] wherein after referring to the provisions as contained in Section 94 and 131 of the Act, 1983 the Hon'ble Division Bench of this Court has summed up the situation and the remedy as follows:
"11. We may sum up the position regarding remedies available to an employee (including a teacher) of a private educational institution thus:
(i) The remedy against an order imposing the penalty of dismissal, removal or reduction in rank, is by way of appeal to the Educational Appellate Tribunal under Section 94(1).10
(ii) The remedy against an order imposing any other penalty, is by way of an appeal to the Competent Authority under Section 94(5) with a further appeal to the Educational Appellate Tribunal under Section 94(7).
(iii) The remedy against any order of management which is not punitive in nature, is by way of revision to the State Government under Section 131.
(iv) Where an employee contends and establishes that the order of termination simpliciter or retrenchment, as the case may be, passed by the management is really an order imposing punishment/ penalty of dismissal or removal, and files an appeal under Section 94(1), the Tribunal can go behind the form of the order and decide upon the true nature of the order, that is whether the order is merely what it purports to be, or whether it is a cloak for punishment/penalty, either as a disciplinary measure or as victimisation. If it concludes that the order is a cloak for dismissal or removal, the appeal will be maintainable and it can proceed to hear and dispose of the appeal on merits."11
iii) In the case of H.B.Kotresh vs. State of Karnataka and others [(1998)6 Kar.L.J. 306] wherein this Court has while considering the right for payment of salary has held that against violation of the management Section 131 and 132 of the Act, 1983 provide the remedies to the persons concerned to approach the Government.
8. If the position of law as enunciated are kept in view in the instant petitions, the consideration is with regard to the salaries as claimed by the private respondents and also a consideration that was to be made relating to the action of the management in retrenching private respondents, the procedure of law to be followed in that regard and also as to whether in that circumstance even if the law course was closed whether they were to be accommodated in any other institution run by the management. In that circumstance, the removal of the private respondents by resorting to retrenchment is not a termination as a punitive 12 measure but the contention is that the management has violated the law in doing so.
9. One other aspect also to be taken note is that the petitioner management themselves by keeping these aspects in view had contended in the earlier round of writ petitions that even the question as to whether the retrenchment is simpliciter or punitive or whether the prior permission is necessary or not is amenable to the jurisdiction of the Government by way of revision under Section 131 of the Act, 1983. It is in that circumstance the parties were relegated to the remedy under Section 131 of the Act, 1983. Therefore, for the reasons stated above the contention on behalf of the petitioner regarding maintainability of the proceedings before the Revisional Authority is liable to be rejected.
10. In that background, a perusal of the order dated 07.04.2016 impugned in W.P.No.42513/2016 would indicate that the consideration made therein is relating to the appropriate pay that was required to be 13 paid to the private respondents. The meager salary that was being paid is taken note and the nature of work performed by them in teaching the students of the LLB classes is taken into consideration. The petitioners herein as the respondent in the said proceedings had contended that they are an unaided private institution and the working hours of the private respondents herein was also minimal. The Revisional authority while taking note of such contentions has taken into account the direction that had been issued in W.P.Nos.74/2009, 230-232/2009 to consider the claim within the time frame. The subsequent direction issued in W.P.No.35754-757/2010 is also taken note. While doing so, the revisional authority has taken into consideration the document to indicate the report that had been sent to the Bar Council of India relating to the law course being conducted and the permanent teaching staff being appointed with scale of pay that is equal to the Government teachers. Hence it was 14 concluded that the private respondents herein are the full time lecturers.
11. In that background, Rule 5 of the Karnataka Private Education Institutions (Discipline and Control) Rules 1978 which provides that the scale of pay of an employee of an institution shall not be lower than the scale of pay of an employee of a corresponding post in the Government Educational Institutions was kept in perspective and the decision of this Court in the case of S.S.Anand and others vs. the management of Mahatma Gandhi Vidyapeetha (Regd), Bengaluru and another [(1998)3 Kar. L.J. 293] was applied. In the said decision this Court on taking into consideration Rule 5 had directed to place the petitioners therein in the pay scale admissible to them on the basis of the said Rule and pay the arrears.
12. In that view, keeping in perspective the position of law the Revisional authority had taken note of the lower salary paid, the signatures being obtained 15 from the private respondents and has arrived at the conclusion that they are entitled to the pay equal to the salary paid to the Government teachers for discharging similar duties.
13. Learned senior counsel for the petitioner trust would however contend that the said decision in the case of S.S.Anand (supra) ought not to have been applied to the present facts since in the said case the petitioners therein were in service and the benefits were extended. Learned senior counsel would also rely on the decision in the case of Lakshman Dundappa Dhamanekar and another vs. management of Vishwa Bharata Seva Samithi and another (AIR 2001 SC 2836) to the effect that the relief being sought is to be disallowed due to the delay and laches and no grievance had been made by the private respondents earlier.
14. In that background, having taken note of the consideration made by the revisional authority; the 16 position of law as enunciated in the case of S.S.Anand and also by the Hon'ble Division Bench of this Court in the case of Bharatiya Samskrithi Vidyapeeta represented by General Secretary, Bengaluru vs. Secretary to the Government of Karnataka, Education Department, Bengaluru and others (ILR 2005 Kar 1234) and in the case of Vidyavardhaka Sangha (R) vs. K.Meera Bai (W.P.No.54161-162/2016 disposed of on 14.11.2016) relied on by the learned senior counsel for the private respondents, the said decisions would indicate that even in the said case the decision in the case of S.S.Anand (supra) has been taken into consideration and the right available in view of Rule 5 of the Rules 1978 has been enunciated. If that be the position, insofar as the applicability of the Rule and the private respondents being entitled to similar salary cannot be disputed. Though the learned senior counsel for the petitioner has also contended with regard to the delay, it is to be noted that the private respondents have been agitating on this aspect 17 as far back as from the year 2009 when the writ petitions were filed for the first time in W.P.Nos.74/2009 and 230-232/2009 and orders were being issued by this Court with regard to a consideration to be made in that regard. Hence the petitioners cannot be denied the benefit based on the delay as contended. If in that light the order impugned dated 07.04.2016 is taken note, the same would not call interference.
15. The next aspect which arises for consideration is with regard to the validity of retrenchment of the private respondents as contended and the nature of directions issued by the revisional authority.
16. In the background of the contentions put forth by both the learned senior counsel, the issue hinges around the provision as contained in Sections 98 and 105 of the Act, 1983. The said provisions relate to retrenchment of employees and closure of the institution, for which the prior approval is required to 18 be obtained from the competent authority namely the State Government. The learned senior counsel for the private respondents would in that view contend that such prior approval has not been obtained and therefore the action of the petitioner management is illegal. The decision in the case of Raj Kumar -vs- Director of Education and others [(2016) 6 SCC 541] is relied upon. The decision no doubt refers to the situation where the prior approval that is mandated so as to avoid arbitrary or unreasonable termination. In the instant facts, it is not a case of one such termination but is in the circumstance of the closure of the five year law course and in that circumstance the retrenchment is made. Whether it is with prior approval and in that backdrop whether the direction of the revision authority is justified is the issue herein.
17. On that aspect the learned senior counsel for the petitioner would contend that the closure of BA.LLB course is made in accordance with law, which has already been approved by the Hon'ble Division Bench in 19 W.A.Nos.7009-7011/2012 and as such whether the private respondents should be transferred to another institution is only at the option of the management as per Section 98(3) of Act 1983. It is contended that when permission is given to close down, termination on retrenchment is a consequence of the same.
18. In the above background, it is seen that the Administrative Committee of the petitioner-trust through their resolution dated 20.01.2011 had resolved to close the 5 year B.A.LL.B., course of PES College, Mandya. Thereafter permission was sought in terms of the provision contained in Section 63 of Karnataka State Law University Act, 2009, which was granted through the notification dated 18.04.2011 (Annexure- H). In that situation when the issue was considered in W.A.Nos.7009-7011/2012, the Hon'ble Division in the background of the requirement under Section 63 of Act, 2009 had upheld the closure of the course. The observation therein was that merely on the ground that the teaching faculty was not heard the closure will not 20 be bad. Notwithstanding the same liberty was reserved to the private respondents to avail their remedy under Section 131 of the Act,1983. The same will indicate that the closure alone was considered and not termination of the faculty and what was emphasised is that for closure the teaching faculty need not be heard. This is what in my opinion is relevant to be taken note as the present consideration by the Revisional Authority is in the petition that was filed based on such leave granted and that too on the issue of retrenchment. In the said appeal it was also taken note that the trust is running more than ten educational institutions of which Law college was one.
19. Keeping in perspective all these aspects if the matter is considered, in so far as the procedure being followed to close down the Law course due to reduction in strength, there can be no quarrel. Despite the same, since the petitioner trust was not running only one course and further as noticed since the private respondents were not teaching purely Law subjects, a 21 consideration as to whether retrenching them was the only option or as to whether they could be accommodated in any other manner was also necessary to be taken note. Therefore in that circumstance if the procedure as required under Section 98 of Act, 1983 to seek prior approval was followed, the Competent Authority would have taken into consideration all these aspects, more so if an opportunity was also available to the private respondents to highlight these aspects. In that light if the matter is looked at, apart from the procedure not being followed, the right of the private respondents is also affected due to non compliance of the procedure. The impugned order passed by the Revisional Authority if noticed, it in fact seeks to rectify the situation by directing the petitioner trust to reconsider the retrenchment so as to provide an opportunity to accommodate in any other College in the manner as directed. The petitioner cannot make out any 22 grievance relating to such reconsideration. As such the order dated 07.04.2016 does not call for interference.
Hence, for all the aforestated reasons, both the above petitions being devoid of merit are dismissed, with no order as to costs.
Sd/-
JUDGE akc/bms