Karnataka High Court
Smt. M. Jayamma vs The Commissioner For Public ... on 24 May, 1999
Equivalent citations: 1999(4)KARLJ657
ORDER
1. Heard Sri H.V. Ramaswamy, learned Counsel for the revision petitioner.
2. This petition has been filed as civil revision from the order of the Educational Appellate Tribunal, Bangalore dated 26-9-1995 in Miscellaneous Appeal (EAT) No. 65 of 1987. That appeal had been dismissed taking the view that there is no order of any authority which affects the services of the appellant and so appeal does not lie.
3. The learned Counsel for the petitioner challenged this order and submitted that even though the Tribunal is not a Civil Court and is a Tribunal, this Court may not dismiss the revision on this ground as it has got ample power under Article 227 to interfere where order suffers from jurisdictional error or like particularly when the matter relates to jurisdiction. The learned Counsel contended that the Tribunal failed to exercise its jurisdiction vested in it on the ground that appeal was not maintainable as no order had been passed by the authority which affects appellant's services after having misconstruing Annexure-A. The learned Counsel contended that the Tribunal has misconstrued the or-
der when it observes that Annexure-A does not show that the 4th respondent had intimated the appellant that her post will not be approved. The learned Counsel further contended that when in the opinion of the Tribunal the appeal was not maintainable, it acted in excess of its jurisdiction when it observed that appeal is dismissed on merits also. Learned Counsel further contended once the order at Annexure-A did not affect the services of the present revision petitioner, the claimant was entitled to up-to-date salary and emoluments. The learned Counsel submitted really Annexure-A was the order to the effect that services of the appellant i.e., the present revision petitioner were not required. But on the basis of misconstruction of the order, the Tribunal held that it did not affect the services.
4. Notice had been served on all the respondents, but none had put in appearance either on behalf of respondent 4 i.e., the main institution nor on behalf of the Head Mistress of the Institution. Respondents 1 to 3 and 5 appears to be formal parties being Governmental authorities. The learned Government Counsel, Sri V. Jayaram no doubt is present. The learned Government Counsel submitted that the Tribunal was justified in dismissing the appeal on the ground that no order affecting the services of appellant had been produced and in view of Sections 7 and 8 of the old Act appeal lies against the order communicated in writing and cause of action could accrue from the date of communication in writing. So there was no cause for filing the appeal. Secondly, the revision petitioner should have summoned that order from the Board of Management by giving a registered notice.
5. I have applied my mind to the contentions made by the learned Counsel for the parties.
No doubt Educational Appellate Tribunal, as held by this Court, is not a Civil Court and as opined by me in some cases that a civil revision is ordinarily maintainable against the order of Civil Court and not of Tribunal. But, this does not deprive this Court of its power under Article 227 of Constitution to examine whether the order passed is without jurisdiction or suffers from error of law of substantial nature that in effect causes injustice to the parties. Keeping that in view, I have examined the matter and heard the learned Counsels on merits.
6. As regards the present case no doubt once the Tribunal has found that appeal was not maintainable as there was no order in writing produced to the effect that appellant's services were terminated, the petitioner had no right to approach the Tribunal. I have examined the provisions of the Act. Section 7 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975, that was then operative, provides and reads as under:
"Section 7. Communication of orders.--Every order of the Board of Management terminating the services of an employee or imposing a penalty or otherwise affecting his conditions of service to his prejudice shall be communicated in writing to the employee".
The important requisite under this section is that whenever an order of termination or dismissal or any order of penalty adversely affecting the services of an employee is made, it has to be communicated in writing to the employee. This section (i.e., Section 7) read with Section 6 clearly reveals that communication of order in writing is an essential ingredient for terminating the services or dismissing the employee or to make effective the penal order passed against the employee or to make the order passed against the employee effective against him/her that it should be communicated in writing to him/her by the Board of Management to the employee. Unless this requirement is complied with, the order does not become effective and will not give the employee a cause of action to approach the Tribunal. It will also be appropriate to refer to Section 8 of Act of 1975.
"Section 8. Appeals.--(1) Any employee aggrieved by an order of the Board of Management may within three months from the date of communication of the order appeal against such order to the Educational Appellate Tribunal constituted under Section 10. The provisions of Sections 4 and 5 of the Limitation Act, 1963 shall be applicable to such an appeal".
Sub-section (2) of Section 8 is not very material for the purpose of this case.
A reading of this section per se reveals that an appeal can lie only within three months from the date of communication of the order. It is the communication in writing of the order passed by the Board of Management that can be said to give a cause of action to the aggrieved person, the person aggrieved from the order of the Board of Management to approach the Tribunal. Unless it is so communicated, no cause of action accrues to the aggrieved employee. Section 92 of the Karnataka Education Act, 1983 which received the assent of the President on 27-10-1993 and published in the Karnataka Gazette Extraordinary on 20-1-1995 provides for dismissal or removal etc., of a teacher and provides for the procedure to be followed while imposing the penalty. Section 93 of the Karnataka Education Act, 1983 reads as under:
"Section 93. Communication of order.--(1) Every order of the Managing Committee imposing any penalty or otherwise affecting the conditions of service of an employee to his prejudice, shall be communicated to the employee in the prescribed manner.
(2) No order which has not been communicated in accordance with sub-section (1) shall be valid or be of any effect whatsoever".
Section 94 also provides for appeals and sub-section (1) thereof is of same nature as that of Section 8 of old Act (i.e., Act of 1975) which provides that an appeal can be filed within three months from the date of communication of the order. Communication of order is a very important factor under the old Act as well as under the new Act. The Act very specifically says "to be communicated in writing". It is well-settled that an order becomes effective when it is communicated to the person when he/she is going to be adversely affected. An order passed and kept in the pocket and drawer of the Management's office not communicated does not become ordinarily an effective order. Section 93(2) very clearly adopts that principle and makes it expressly clear. When Section 7 requires that order to be given in writing, order should be communicated in writing. If no order has been communicated to the petitioner and the petitioner as such could not produce that order, definitely her appeal was not maintainable as no cause of action did accrue to her to file the appeal. An appeal could be filed within three months from the date of communication of order in writing to her, no doubt as contended by the learned Government Counsel, petitioner could have given a notice to the Board of Management to supply a copy of the order to her. She might not have given. What is material is that the Board of Management is required to communicate in writing to the employee by which her services were terminated or any order which adversely affects the services of the employee concerned. The fact remains that no copy of the order had been filed before the Tribunal and according to the revision petitioner was communicated to the petitioner through Annexure-A. Hence, the Tribunal was justified in opining that Annexure-A did not indicate anything or show that her post will not be approved its contents do not show anything adverse to appellant's (revisionist's) interest or his service. It only informs there is no vacancy in Boys High School section and it is not clear nor has indicated therein in what respect letter or endorsement Annexure-A has been issued. So no cause for appeal and dismissed her appeal. That order could not give any cause to the revision petitioner to approach the Tribunal as such under Section 8 of Act of 1975 referred to above.
7. In this view of the matter, as no effective order of termination or dismissal of petitioner's service had been passed and had been communicated, the claimant or the present revision petitioner had no right or cause of action to approach the Tribunal. Her appeal was rightly been held to be not maintainable because Annexure-A according to Tribunal did not result in termination or removal of services of the employee. If in spite of that the authority has not allowed her to work, she had other remedies with those allegations to the proper forum. If the petitioner had earlier been working in that Institution and is not terminated through properly communicated order of termination, her right to continue in services is not affected. This is a matter to be decided when proper appeal is filed before the Tribunal against such order as referred in Sections 7 and 8 of the Act when it is communicated to her as principle of law is that till order is not communicated in writing, it will not be effective and no cause of action is accrued to the revision petitioner to file the revision.
8. In this view of the matter, the Tribunal was justified in dismissing the revision petitioner's appeal on the ground that the appeal was misconceived and not maintainable. Any observation on merits made by the Tribunal will not affect the rights of the revision petitioner as appeal has not been maintainable as held by it. Revision is dismissed accordingly. No costs.