Karnataka High Court
Nelson D Mello vs The Chairman on 25 November, 2020
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION NO.44595 OF 2017 (S-DIS)
C/W
WRIT PETITION NO.41278 OF 2017
IN W.P.NO.44595/2017
BETWEEN:
NELSON D'MELLO
S/O IGNATIUS D'MELLO
AGED ABOUT 55 YEARS
R/AT 403, RATNA APARTMENTS
KADRI, MANGALORE- 575 002.
D.K. DISTRICT.
...PETITIONER
(BY SRI.SACHIN.B.S, ADVIOCATE)
AND:
1. THE CHAIRMAN
RAJALAKSHMI EDUCATION TRUST,
SOUZA ARCADE
1ST FLOOR, BALMATTA ROAD
MANGALORE - 575 001
D.K. DISTRICT.
2. THE PRINCIPAL
MITE
BADAGA MIJAR
MOODABIDRI- 574 225
3. NARENDRA U.P
DEAN (PLACEMENT & TRAINING)
2
ASSOCIATE PROFESSOR,
DEPARTMENT OF INFORMATION
SC & ENG
MITE, BADAGA MIJAR
MOODABIDRI - 574 225.
... RESPONDENTS
(BY SRI.B.V.ACHARYA, SENIOR COUNSEL FOR
SRI. ISMAIL.M .MUSBA, ADVOCATE FOR R-1 TO R-3.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 08.07.2017 PASSED IN EAT NO.3 OF
2016 ON THE FILE OF EDUCATIONAL APPELLATE TRIBUNAL
AND PRINCIPAL DISTRICT JUDGE, DK MANGALORE VIDE
ANNEXURE-A TO THE EXTENT OF DISALLOWING THE CLAIM OF
THE PETITIONER TO PAY FULL SALARY FROM THE DATE OF
TERMINATION TILL THE DATE OF RESTATEMENT, WITH
CONTINUITY OF SERVICE AND OTHER CONSEQUENTIAL
BENEFITS AS PRAYED IN THE APPEAL MEMORANDUM AND
CONSEQUENTLY ALLOW APPEAL IN EAI NO.3 OF 2016 AS
PRAYED FOR, IN THE INTEREST OF JUSTICE AND EQUITY AND
ETC.
IN W.P.NO.41278/2017
BETWEEN:
1. THE CHAIRMAN
RAJALAKSHMI EDUCATIONAL TRUST
SOUZA ARCADE
I FLOOR, BALMATTA ROAD
MANGALURU - 575 001.
2. THE PRINCIPAL
MITE
BADAGA MIJAR
MOODABIDRI - 574 225.
3
3. SRI. NARENDRA U.P
DEAN (PLACEMENT AND TRAINING)
ASSOCIATE PROFESSOR
DEPARTMENT OF INFORMATION
SC & ENG
MITE, BADAGA MIJAR
MOODABIDRI - 574 225.
...PETITIONERS
(BY SRI.B.V. ACHARYA, SENIOR COUNSEL FOR
SRI. ISMAIL.M.MUSBA, ADVOCATE)
AND:
NELSON D'MELLO
S/O NOT KNOWN
AGED MAJOR
R/A 403, RATNA APARTMENTS
KADRI, MANGALURU - 575 002.
...RESPONDENT
(BY SRI.SACHIN.B.S, ADVOCATE FOR R-1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN E.A.T NO.3/2016 ON THE FILE OF THE HON'BLE
EDUCATION APPELLATE TRIBUNAL & PRINCIPAL DISTRICT
JUDGE, D.K. BENGALURU AND ETC,.
THESE PETITIONS ARE COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THROUGH VIDEO CONFERENCE THIS
DAY, THE COURT MADE THE FOLLOWING:-
4
ORDER
Since in both the writ petitions challenge is to the order dated 08.07.2017 passed in EAT.No.3/2016 on the file of the Principal District Judge & Education Appellate Tribunal, D.K., Mangaluru, both the writ petitions are heard together and disposed of by this common order.
2. In W.P.No.44595/2017, the petitioner is before this Court challenging the order dated 08.07.2017 passed in EAT.No.3/2016 to the extent the Tribunal denied backwages to the petitioner. Whereas, in W.P.No.41278/2017 the respondent-Management is before this Court assailing the correctness of order dated 08.07.2017 in EAT.No.3/2016.
3. The parties in this proceedings would be referred to as they stand before the Tribunal. Before the Tribunal, the petitioner in W.P.No.44595/2017 was appellant and petitioners in W.P.No.41278/2017 were the respondents. 5
4. The brief facts of the case are that the appellant was appointed by the respondents under appointment letter dated 10.08.2012 as Placement and Training Officer in the 2nd respondent-Institution on probation for a period of one year. It is stated that on completion of probationary period of one year, no separate order of confirmation or order continuing the period of probation was issued. The respondents under order dated 22.04.2016 terminated the services of the petitioner. The respondent-Institution is a private un-aided Institution and they have their own Rules and Regulations. Further, it is stated that without following the Rules, the appellant was terminated from service. Challenging the said order of termination, the appellant filed an appeal under Section 94(1) of the Karnataka Education Act, 1983 (for short 'the Act') before the Educational Appellate Tribunal, Mangaluru in EAT.No.3/2016.
5. On issuance of notice, the respondents appeared before the Tribunal and filed their objections. In the objections, it is 6 admitted that the appellant was appointed under order dated 10.08.2012. Further, it is also stated that no separate order of confirmation was issued to the appellant, but he continued to be on probation till he was terminated. It is stated that respondent-Institution is a private un-aided Institution which has its own Rules and Regulations. The Karnataka Education Act, 1983 and Rules made therein are not applicable to the respondents. The respondents denied that the order of termination is illegal and as the appellant was found to be involved in the activities against the interest and development of the respondent-Institution, the appellant was terminated. It is the case of the respondents that the order of termination is simplicitor and it would not attach any stigma. Thus, they prayed for dismissal of the appeal.
6. The appellant to prove his case examined himself as PW.1 and marked Exs.P1 to P13. The respondents examined RW.1 and marked Exs.R1 to R9. The Tribunal on examination of the material, allowed the appeal and set aside the order of 7 termination dated 22.04.2016, directing the respondents to reinstate the appellant but denied the backwages. Aggrieved by the said order, the respondents are before this Court in W.P.No.41278/2017, whereas the appellant is also before this Court aggrieved by non-grant of backwages in W.P.No.44595/2017.
7. Heard Sri. B.V.Acharya, learned Senior Counsel for the respondents and Sri. B.S.Sachin, learned counsel for the appellant. Perused the entire writ petition papers.
8. Learned Senior Counsel Sri. B.V.Acharya submits that the impugned Judgment is wholly erroneous, perverse and illegal. Learned Senior Counsel taking this Court through the order of termination-Ex.P3 which is produced as Annexure-L to the writ petition, submits that it is not a stigmatic order and if it is not a stigmatic order, the Tribunal committed an error in setting aside the same. Since the appellant was found to be involved in the activities against the interest and development of the respondent-Institution, the appellant was 8 terminated from the services of the respondent-Institution. Learned Senior Counsel further draws attention of this Court to Rule 20(C) of the Service Rules of the respondents to contend that the employee who is appointed temporarily or on probation shall continue to be on probation till he is confirmed and the services of such an employee could be terminated at any time. In the case of the appellant, no confirmation order was issued and as such he was terminated in accordance with Rule 20(C) of the Service Rules of the respondents. It is further submission of the learned Senior Counsel that meeting of the Disciplinary Action Committee was called on 22.04.2016, wherein the appellant was given an opportunity. In the said meeting, the appellant admitted his misconduct and requested for continuation of his job. Thus, the learned Senior Counsel prays for allowing the writ petition filed by the respondents.
9. Further, in respect of the writ petition filed by the appellant praying for backwages, the learned Senior Counsel 9 would submit that the appellant would not be entitled for backwages since he has not worked in the respondent- Institution. Further, he submits that the appellant has alternate source for his livelihood. As such, the Tribunal has rightly rejected the request of the appellant for backwages.
10. Per contra, Sri. B.S.Sachin, learned counsel for the appellant would submit that the Tribunal has rightly come to the conclusion that the termination of the appellant is a stigmatic termination. He also invites attention of this Court to the order of termination to submit that the serious allegation is imputed against the appellant which would come in the way of the appellant securing any other employment. If such an allegation is the basis of termination of the appellant, enquiry was necessary. The appellant ought to have been provided with an opportunity. It is his submission that a probationer could be terminated by an order of termination simplicitor. If the order of termination is stigmatic, then enquiry would be necessary. No charge memo was issued to 10 the appellant or any opportunity was afforded to the appellant before terminating his services. According to the learned counsel for the appellant, the termination is wholly illegal. As such, the Tribunal rightly set aside the order of termination. With regard to the backwages, the learned counsel for the appellant submits that the Tribunal having come to the conclusion that there is nothing on record to show that the appellant has been working in some other Company after termination of his services from the respondent-Institution, the Tribunal is not justified in denying the backwages. Moreover, he submits that the appellant in his evidence has categorically stated that he is unemployed since from the date of termination and he is facing untold miseries and hardships. In that circumstance, he prays for backwages.
11. Having heard the learned counsels for the parties and having perused the writ petition papers, the following points would arise for consideration.
1) Whether the Tribunal is justified in setting aside the order of termination?11
2) Whether the Tribunal is justified in denying the backwages to the appellant?
The answer to the above points would be in affirmative and negative respectively.
12. Undisputed facts are that the appellant was appointed as Placement and Training Officer under order of appointment dated 10.08.2012 in the respondent-Institution. It is also not in dispute that the appellant was appointed on probation for a period of one year. The period of probation was neither declared nor the service of the petitioner was confirmed. It is settled position of law that when a person is appointed on probation, unless there is an order of confirmation, the said person would continue on probation. In the instant case also, as there was no order of confirmation, the appellant continued on probation. Rule- 20(b) of the Service Rules (Ex.P10) of the respondent provides for appointment of teaching staff on probation. Rule-20(c) of the Rules which is extracted in the order of the Tribunal 12 provides for confirmation of service. It also provides for determination of services of an employee appointed on probation, at any time either before or after completion of the period of temporary appointment or on probation, if the same is found to be not satisfactory. No doubt, according to the said Rule the services of an employee could be terminated for unsatisfactory service or work or on the ground of unsuitability to the post. Under order dated 22.04.2016, the appellant's service was terminated. The order of termination reads as follows:
"As per the discussion held in the presence of Honorable Chairman Sri Rajesh Chowta, Vice Principal Dr. C R Rajashekar and HOD's it is observed that Mr. Nelson D' Mello was found to be involved in the activities against the interest and development of our institution. In view of this it has been decided to terminate Mr. Nelson D' Mello from the position of Placement Officer with immediate effect."
A reading of the order of termination indicates that the appellant's services were terminated as he was found to be 13 involved in the activities against the interest and development of the respondent-Institution. The allegation against the appellant is very serious. An employee of an Institution is expected to work for the progress and in the best interest of the Institution. No employee is expected to involve himself in the activities against the interest and development of the Institution. Such an allegation if proved, definitely would invite major penalty. When such serious allegations are made against a person, such person ought to be given an opportunity. No opportunity whatsoever is afforded to the appellant. In the instant case, it is an admitted fact that no charge memo was issued framing definite charge on the allegations made against the appellant. Service Rules of the respondents permits holding of disciplinary proceedings against an employee alleged to have committed serious misconduct. The basis on which the appellant was terminated requires holding of an enquiry. Definitely order of termination dated 22.04.2016 is a stigmatic order of termination. If the petitioner was terminated or discharged for unsatisfactory 14 work or unsuitability, then it would not amount to stigmatic termination. Whether the order of termination is simpliciter, punitive or stigmatic would depend on the facts and circumstances of each case. In the case on hand, the basis for termination was misconduct i.e., activities against the interest and development of the respondent-Institution. The said allegation or basis for termination would definitely amount to stigmatic termination.
13. The contention of the learned Senior Counsel that the appellant was given an opportunity before the enquiry committee (Disciplinary Action Committee) on 22.04.2016, where he admitted his misconduct, is to be noticed only for the purpose of rejecting the same. No material whatsoever is placed either before the Tribunal or before this Court to demonstrate that the appellant was issued with any notice to appear before the enquiry committee nor to demonstrate issuance of charge memo against the appellant. Learned Senior Counsel during the course of argument fairly 15 submitted that no charge memo was issued to the appellant. Annexure-K produced along with writ petition, said to be the proceedings of the meeting held on 22.04.2016 contains only the signature of the Principal, which would not indicate the participation of the appellant. Moreover, order of termination would not remotely suggest issuance of any notice before passing the order of termination. An employee whether he is temporary or on probation is entitled to a notice.
14. In order to amount to a stigma, the order must be in a language which imputes something over and above mere suitability for the job. The order of termination is not on the ground of unsuitability or deficiency in the work of the appellant. The word used in the order of termination is "found to be involved in the activities against the interest and development of our institution". The use of the above words in the order of termination certainly constitutes misconduct. The decision to terminate the service of the appellant was taken solely on the ground that the 16 appellant involved in the activities against the interest and development of the respondent-Institution. Therefore, the Tribunal rightly came to the conclusion that termination is by making stigmatic observation which is punitive in nature. Further, the Tribunal has also noted that no notice was issued in terms of the order of appointment. Thus, I find no reason to differ with the finding of the Tribunal.
15. Insofar as the denial of backwages to the appellant, the Judgment requires interference. The appellant in his evidence has deposed that he is unemployed since the date of termination of his employment and he is facing untold miseries and hardships. The burden is on the respondent- Institution to prove that the appellant was gainfully employed. Except suggesting in the cross-examination that the appellant is gainfully employed on higher salary, no effort has been made to place on any record nor to suggest the employer of the appellant. The Tribunal having come to the conclusion that there is nothing on record to show that the 17 appellant has been working in some other company at higher pay scale after termination, the Tribunal is not justified in denying backwages to the appellant. However, the grant of backwages depends on different consideration. While considering the grant of backwages, the Court will have to take into account the entire facts and circumstances of the case. Further, it is to be noted that subsequent to termination, the appellant has not worked in the respondent- Institution. It is his evidence that he was unemployed. Even though the termination was illegal and the order of termination is set aside, the appellant would not be entitled for full backwages since he has not worked, but the appellant would be entitled for some backwages. The Hon'ble Apex Court in P.G.I. of Medical Education & Research v. Raj Kumar (2001) 2 SCC 54 has held that, payment of backwages having a discretionary element involved in it, has to be dealt with, in the facts and circumstances of each case. In the instant case, both the appellant and respondents have not placed any material to prove that neither the appellant 18 was not gainfully employed or that he was gainfully employed. In that circumstance, I deem it appropriate to grant 25% backwages to the appellant. Thus, the respondents are directed to reinstate the appellant as ordered by the Tribunal with 25% backwages from the date of termination till reinstatement.
16. However, it is made clear that this order or the judgment under challenge would not preclude the respondent-Institution from taking fresh action against the appellant in accordance with law.
Accordingly, writ petitions are disposed off.
Sd/-
JUDGE SMJ