Karnataka High Court
The President/Disciplinary Authority ... vs Arunkumar H.S. And Ors on 23 May, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23rd DAY OF MAY 2023
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO.225598 OF 2020 (S-DIS)
C/W
WRIT PETITION NO.200136 OF 2022 (S-RES)
IN WP NO.225598/2020:
BETWEEN:
1. THE PRESIDENT/DISCIPLINARY AUTHORITY,
ADARSH EDUCATIONAL TRUST, SBH COLONY,
NEHRU GUNJ, KALABURAGI.
(ADARSH EDUCATIONAL TRUST, SBH COLONY,
NEHRU GUNJ, KALABURAGI,
THROUGH ITS PRESIDENT AND DISCIPLINARY
AUTHORITY, DR.VIJAYAKUMAR KALMANKAR,
NEHRU GUNJ, KALABURAGI - 585104.
2. THE INCHARGE PRINCIPAL,
PROF: P.S.CHOUDARY ITI COLLEGE,
VIVEKANAND NAGAR, ALAND ROAD,
KALABURAGI - 585103. ...PETITIONERS
(BY SRI SUBRAMANYA JOIS, SR.COUNSEL, ADVOCATE FOR
SRI VINAYAK APTE, ADVOCATE )
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AND:
1. ARUNKUMAR H.S,
AGE:47 YEARS, OCC:EX.PRINCIPAL,
PROF:P.S.CHOUDARY INDUSTRIAL
TRAINING INSTITUTE,
R/O H.NO:7119/39A,
NEAR ESHWAR TEMPLE,
NEHRU GUNJ,
KALABURAGI-585104.
2. THE JOINT DIRECTOR (TRAINING)
DEPARTMENT OF EMPLOYEMENT
AND TRAINING, DIVISION OFFICE,
MSK MILL ROAD,
KALABURAGI - 585102.
3. THE COMMISSIONER,
EMPLOYMENT AND TRAINING,
KAUSHALYA BHAVAN, DAIRY CIRCLE,
BANNERGHATTA ROAD,
BENGALURU - 560 029. ... RESPONDENTS
(BY SRI K.M.GHATE, ADVOCATE FOR R1,
SRI VIRANGOUDU M BIRADAR, AGA FOR R2 AND R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO (i) ISSUE A WRIT OF CERTIORARI FOR SETTING ASIDE
THE ORDER PASSED BY PRL. DIST. AND SESSIONS JUDGE
AND EDUCATIONAL APPELLATE TRIBUNAL, KALABURAGI
IN EAT NO.02/2013, DATED: 27.01.2020 WHICH IS AT
ANNEXURE-A IN THE INTEREST OF JUSTICE.
IN WP NO.200136/2022:
BETWEEN:
ARUNKUMAR H.S.,
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AGE: 48 YEARS, OCC: EX-PRINCIPAL,
PROF: P.S.CHOUDARY INDUSTRIAL
TRAINING INSTITUTE,
R/O: H.NO.7-110/30A,
NEAR ESHWAR TEMPLE,
NEHRU GUNJ, KALABURAGI - 585104. ...PETITIONER
(BY SRI K.M.GHATE, ADVOCATE)
AND:
1. THE PRESIDENT/DISCIPLINARY
AUTHORITY,
ADARSH EDUCATIONAL TRUST,
SBH COLONY,
NEHRU GUNJ, KALABURAGI - 585104.
2. THE INCHARGE PRINCIPAL,
PROF: CHOUDARY I.T.I., COLLEGE,
VIVEKANANDA NAGAR,
ALAND ROAD, KALABURAGI - 585104.
3. THE JOINT DIRECTOR (TRAINING),
DEPARTMENT OF EMPLOYMENT AND
TRAINING DIVISION OFFICE,
M.S.K., MILL ROAD, KALABURAGI - 585102.
4. THE COMMISSIONER,
EMPLOYMENT AND TRAINING,
KAUSHALYA BHAVAN,
DAIRY CIRCLE, BANNERGHATTA ROAD,
BENGALURU-560020. ...RESPONDENTS
(BY SRI VINAYAK APTE, ADVOCATE FOR R1 AND R2,
SRI VIRANGOUDA M BIRADAR, AGA FOR R3 AND R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO A) ISSUE WRIT OF CERTIORARI/DIRECTION,
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QUASHING THE OBSERVATION MADE BY THE
HONOURABLE EDUCATIONAL APPELLATE TRIBUNAL,
KALABURAGI EAT NO.02/2013 ON THE FILE OF PRL. DIST.
JUDGE AND EDUCATIONAL APPELLATE TRIBUNAL,
KALABURAGI VIDE JUDGMENT DATED 27.01.2020 ON
ISSUE NO.3, THE OBSERVATION THAT THE PETITIONER IS
NOT ENTITLED FOR BACK WAGES AND ACCORDINGLY
DIRECT THE RESPONDENTS TO PAY THE BACK WAGES
(ARREARS OF SALARY) PAYABLE TO THE PETITIONER AS
PER LAW AS PER ANNEXURE-A AND ETC.,
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 20TH APRIL, 2023 AND
COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
These two writ petitions are arising from the judgment of the Educational Appellate Tribunal, Kalburgi (Tribunal for short) in EAT no. 2/2013. Writ petition No.225598/2020 is filed by the management and the Writ petition No.200136/2022 is filed by the delinquent employee.
2. The Tribunal in terms of the impugned judgment allowed the appeal filed by the employee in part and set aside the penalty of dismissal from service, imposed by the disciplinary authority and did not grant 5 back wages. The Tribunal reserved the liberty to initiate fresh action if the management desired to do so.
3. The management is aggrieved by the judgment setting aside the penalty imposed by the disciplinary authority and the employee is aggrieved by the order refusing back wages. Thus, the above said two writ petitions.
4. For the sake of convenience, in these petitions, the appellant (Employee) before the Tribunal is referred to as the appellant and the management is referred to as the respondent.
5. Certain facts necessary for adjudication can be summarised as under:
- The appellant joined service under the respondent as the principal on 23.07.2003 in Industrial Training Institute run by the respondent. The institution is admitted to grant-in-aid. The records would reveal that the appellant is a graduate of Engineering. Nine years after he 6 joined the service, a show-cause notice was issued doubting his eligibility to be employed as the principal. The respondent/management initiated a disciplinary proceeding on the premise that the appellant did not have the requisite experience (Three years of working experience) to be appointed as a principal. It is the contention of the management that the appellant produced fake documents relating to his alleged three years of working experience.
6. The charge memo was issued on 27.07.2012. The appellant was suspended pending enquiry vide order dated 16.04.2012. Admittedly, the appellant was not paid a subsistence allowance during the period of suspension. After holding an enquiry the management found the appellant guilty and dismissed him from service vide order dated 28.02.2013.
7. The appellant assailed the said order of dismissal before the Tribunal. In terms of the impugned order, the Tribunal allowed the appeal in part as mentioned above.
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8. Before the Tribunal the appellant as well as the management led the evidence. The Tribunal is of the view that necessary sanction is not obtained before suspending the appellant and subsistence allowance was not paid to the appellant. The Tribunal held that non-payment of subsistence allowance amounts to a violation of principles of natural justice. Tribunal also took the view that the order of dismissal is also not preceded by prior approval by the competent authority and as such order is invalid.
9. On appreciation of the evidence the Tribunal also concluded that enquiry was initiated 9 years after the appointment and the objection relating to the experience certificate cannot be raised after 9 years.
10. Heard Sri.Subramanya Jois, the learned Senior counsel appearing for the management, and Sri.K.M.Ghate, the learned advocate appearing for the delinquent employee.
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11. Sri. Subramanya Jois, the learned Senior counsel would raise the following contentions:
(a) As per Section 100 of the Karnataka Education Act, 1983 ('Act of 1983' for short) the provisions of Chapter XIV are having overriding effect. Section 146 (1) of the Act of 1983 has repealed the Karnataka Private Educational Institutions (Discipline and Control) Act, 1976.
Thus the Rules framed there the said Act of 1976 have no effect. Thus there is no mandate to pay the subsistence allowance to the suspended employee. Under Rule 98(2) of Karnataka Civil Service Rules ( KCSR for short) unless the delinquent employee furnishes the certificate that he is not gainfully employed he is not entitled to subsistence allowance. The delinquent employee failed to furnish such a certificate. Hence the Tribunal could not have held that the non payment of subsistence allowance amounts to violation of principles of natural justice.
(b) No provision mandates the prior approval of the competent authority before passing the order of dismissal of an employee. Tribunal 9 erred in holding that prior approval of competent authority is necessary before dismissing the employee.
(c) Tribunal ought to have noted that the appellant did not possess the requisite three years experience at the time of appointment. The appellant produced a fake experience certificate and that would render the appellant unfit for the post.
(d) The Tribunal ought to have framed points for consideration relating to fake experience certificates produced by the appellant. Having omitted to frame points for consideration in this regard, the Tribunal did not dwell on the core issue involved in the case.
12. Learned counsel Sri.K.M.Ghate, appearing for the appellant would raise the following contentions:
(a) The appellant was not provided with subsistence allowance during the enquiry as required under the Karnataka Private Educational Institutions (Discipline and 10 Control) Rules, 1978; as such the entire proceeding is vitiated.
(b) The appellant was not provided sufficient
opportunity to defend himself by the
management.
(c) The order of suspension and order of dismissal was not preceded by the approval of the competent authority.
(d) The Tribunal erred in not awarding back wages after having held that the initiation of disciplinary enquiry after 9 years is bad in law.
(e) The management could not have initiated the enquiry 9 years after the appointment of the appellant as the Principal. There were no allegations of any kind of misconduct against the appellant in those 9 years. On account of rivalry among certain members of the managing committee, the enquiry is initiated without there being any material against the appellant.11
13. This Court has considered the contentions raised at the bar.
14. From the impugned judgment it is apparent that the Tribunal has taken a view that the principles of natural justice were violated. Though the Tribunal has concluded that the management has failed to prove the fraud alleged to have been committed by the appellant, (para no. 31 of the judgment), the dismissal order is set aside and liberty is reserved to the management to initiate fresh enquiry if desired. Tribunal has also taken a view that there is no approval before the order of dismissal of the appellant from service. Accordingly, the impugned order of dismissal of the appellant from the service is set aside by the Tribunal.
15. Act of 1983 repealed earlier enactments governing the educational institutions in Karnataka. The respondent institution is governed by the Act of 1983. It is relevant to note that the Act of 1983 provides for framing 12 the rules to implement the objectives of the Act of 1983. Accordingly, various Rules have been framed under the Act. When the enquiry was initiated against the appellant, by the management in the year 2012, no Rules were framed under the Act of 1983, governing the disciplinary proceedings of the employees of the Industrial Training Institute. Section 146 of the Act of 1983, deals with repeal and savings. Said provision reads as under.
146. Repeal and Savings.- (1) The Karnataka Compulsory Primary Education Act, 1961 (Karnataka Act 9 of 1961) and the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 (Karnataka Act 10 of 1975) are hereby repealed. (2) Notwithstanding such repeal, any act or thing done under the said Act shall be deemed to have been done under this Act and may be continued and completed under the corresponding provisions of this Act.
(3) Notwithstanding anything contained in this Act, all rules, orders, notifications, Grant-in-aid Codes, appointments, schemes, bye-laws, regulations, 13 official memoranda-circulars or any other orders made or issued before the commencement of this Act and in force on the date of such commencement providing for or relating to any of the matters for the furtherance of which this Act is enacted shall continue to be in force and effective as if they are made under the corresponding provisions of this Act unless and until superseded by anything done or any action taken or any notification, Grant-in-aid code, rule, order, appointment. scheme, bye-law, regulation, official memorandum, circular or any other order made or issued under this Act (Emphasis supplied)
16. As can be readily noticed from Section 145 (3), among other things specified in the said provision, the rules in force before the commencement of the Act of 1983, shall continue to be in force as if they are provided under the provisions of the Act of 1983, if the rules are not framed under the provisions of the Act of 1983. Though quite a few Rules governing various aspects and various educational institutions have been framed under the Act of 1983, it is nobody's case that the Rules are framed under 14 the Act of 1983 which apply to a disciplinary enquiry by an Industrial Training Institution. Thus the contention of Sri. Rama Jois, that in view of the repeal of the Act of 1976 the Rules, 1978 framed under the Act of 1976 should also be deemed to have been repealed cannot be accepted. Since the Rules are not framed governing the disciplinary enquiry of an employee of an Industrial Training Institute, in view of Section 146(3) of the Act of 1983, the Rules 1978 continue to be in force governing the disciplinary enquiry of an employee of an Industrial Training Institute governed by the Act of 1983.
17. Section 100 of the Act of 1983 providing for the overriding effect also does not come to the aid of the management. Section 92 (3) (d) of the Act of 1983, which is falling under the same chapter, provides for payment of subsistence allowance when an employee is suspended. However same is made subject to the rules to be prescribed. Since the rules are not yet prescribed under the Act of 1983, the Rules 1979 continue to occupy the 15 field by operation of Section 146(3) of the Act of 1983. In other words Section 146(3) of the Act of 1983, saves the Rules made under the repealed enactments in certain circumstances and such a circumstance is made out in this case as the Rules are not framed governing disciplinary proceedings of the Industrial Training Institute.
18. This being the position, the court has to test the validity of the disciplinary enquiry with reference to the provisions of the Rules applicable to the respondent institution which were prevailing at the time of commencement of the Act of 1983.
19. There is no dispute that the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 ( 'Act 1975' for short) governed the respondent institution before the Act of 1983. Under the provisions of the Act, 1975, the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978 ('Rules 1978' for short) were framed. The definition of Private Educational Institution in Section 2(d) of the Act 1976, is wide enough 16 to cover the respondent institution. Rules, 1978 are framed under S.15 of the Act, 1976. Rule 10 to Rule 18 of Rules, 1978, falling under Chapter III of the said Rules deal with disciplinary proceedings and Rule 13 provides for payment of subsistence allowance in case an employee is suspended pending disciplinary enquiry. Admittedly the subsistence allowance is not paid to the appellant as required to be paid under Rule 13 Rules, 1978.
20. The learned Senior counsel for the management contended that under Rule 98 of KCSR rules, there is no obligation to pay subsistence allowance unless the delinquent employee can establish that he has no means to effectively defend himself and he has to apply for subsistence allowance citing his inability to defend the proceedings. Sri. Jois also contended that evidence on record would reveal that the appellant is a man of sufficient means and he is not at all prejudiced by nonpayment of subsistence allowance. Since the appellant is not a government servant, the provisions of 17 the KCSR Rules are not applicable. For the same reasons the provisions of Karnataka Civil Service (Classification, Control and Appeals Rules 1957 (For short, 'Rules,1957') are also not applicable to him. Merely because the respondent management has passed a resolution to follow the Rules, 1957, it cannot be said that the respondent management is enabled to proceed under the said Rules. The Rules, 1978 referred to above continue to be in force in view of Section 146(3) of the Act of 1983, and are binding on the institution and the employee. No provision is pointed out to show how the option to choose the Rules governing the disciplinary proceeding is conferred on the management.
21. It is also relevant to note that on perusal of the minutes of the proceeding dated 07.09.2012, marked at Annexure R-8, the appellant/employee has raised that the objection is to the applicability of the 1957 Rules. Since the Rules, 1957 are not adopted in a manner known to the law, said Rules cannot govern the disciplinary proceeding 18 initiated by the respondent. The disciplinary proceeding of the respondent institution has to be under the Rules, 1978 referred to above and not under the Rules 1957.
22. For the aforesaid reasons, this court is of the view that the proceeding initiated under the Rules, 1957 is vitiated as the Rules 1957 do not apply to the parties to the proceeding.
23. It is also forthcoming from Ex R-8 referred to above, that justification is sought to be made in applying Rules 1957 on the premise that the requirements under Rules 1957 and Rules 1978 are similar. This court does not agree with the said finding. The disciplinary authorities under these two Rules are different. Moreover there is no provision in Rules 1957 to pay subsistence allowance to a suspended employee. However, Rule 13 of the Rules 1978, mandates payment of subsistence allowance to the suspended employee. Under Rule 98 (2) of the KCSR Rules, the subsistence allowance is payable subject to delinquent employees fulfilling certain criteria. However, 19 Rule 13 of Rules, 1978 mandates payment of substance allowance in the event of suspension of an employee is not conditional as it is in Rule 98(2) of the KCS Rules.
24. It is also relevant to note that a charge memo is issued to the appellant for violation of Rule 20 of Karnataka Civil Services General Recruitment Rules 1977 and Rule 3 (i) of Karnataka Civil Services Conduct Rules 1966. These provisions apply to the government servant and the appellant being the employee of an aided institution cannot be considered as a government servant. It may be true that the alleged act/omission of the appellant may warrant disciplinary action against the appellant, however same has to be proceeded in a manner mandated under law. Unfortunately, binding procedures/Rules are not followed.
25. Learned Counsel for the appellant Sri. Ghate contends that the appellant being the head of the institution, the management has no authority to initiate disciplinary action against the appellant in view of the bar 20 contained in Section 46(1 (c) of the Act, 1983. Relevant portion Section 46 of the Act reads as under:
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) xxxxxx
(b) xxxxxx;
(c) to take disciplinary action against the teachers and other employees except for the head of the institution;
(d)xxxxx (Emphasis supplied)
26. Section 46(1)(c) of the Act of 1983 stipulates that the management has the authority to take disciplinary action against the teachers and other employees except for the head of the institution. What is required to be noticed is the power is qualified by the expression 'Subject to the provisions of this Act and the rules made there under'. In other words, the power to take disciplinary action against the head of the institution can be found in the rules if such 21 rules are made under the Act of 1983. As already noticed, no such rules governing disciplinary proceedings are framed under the Act which applies to the Industrial Training Institutions. At the same time, in the absence of such rules framed under the Act of 1983, in view of Section 146 (3) of the Act, the Rules, of 1978 have to be considered as the Rules framed under the Act, of 1983. Rules 1978 do not restrict the Board of Management from taking up disciplinary proceedings, without prior approval of the competent authority. Thus, the contention of Sri. Ghate that the respondent has no authority to take up disciplinary proceedings has to be rejected and accordingly rejected.
27. Sri.H.Subramanya Jois, learned Senior counsel appearing for the petitioners in support of his contention has relied on the following judgments:
1. K.S.Adam v/s The Director of Public Instructions and others reported 1966(1) M.L.J.405.22
2. Sri.S.S.Sharma and others v/s Union of India and others reported in A.I.R. 1981 SC 588
3. Punjab National Bank v/s R.L.Vaid and others reported in 2004(7) S.C.C. 698
4. Novartis India Ltd. v/s State of West Bengal and reported in 2009(3) S.C.C. 124
5. Meghmala and others v/s G.Narasimha Reddy and others reported in 2010 (8) S.C.C. 383
6. Padma Sundara Rao and others v/s State of T.N. and others reported in (2002)3 SCC 533
28. Sri.K.M.Ghate, learned counsel appearing for respondent No.1 has relied on the following judgments:
1. Captain Paul Anthony v/s Bharat Gold Wines Limited and Another reported in 1999(2) SCC 456
2. The Managing Committee Bharatiya Sanskruti Vidyapeetha v/s B.K. Gopal Krishna and others in W.P. No.3569/2009.23
29. This Court has perused the aforementioned citations. The judgments referred to above cited at bar do not deal with the question relating to implication of Section 146(3) of Act of 1983 which is discussed in the judgment. Hence, the judgments cited above are not applicable to the case on hand in so far as the reasons assigned by this Court to set aside the proceedings initiated by the management. To sum up, the Managing Board/Council of the respondent institution has the authority to initiate disciplinary proceedings against the respondent. However, the proceedings are initiated under the Rules, 1957 which are not validly adopted and as such same is impermissible The Rules, 1978, applicable to the institution are bypassed. Under the circumstances the disciplinary proceeding is set aside; Consequently, the order of dismissal of the appellant is also set aside and the appellant is ordered to be reinstated as the head of the institution as ordered by the Tribunal. Though the Tribunal has also set aside the order of dismissal of the appellant before it, the reasons assigned by the Tribunal are substituted by this order. 24
30. The judgments relied upon by the both the parties relating to the backwages will have a bearing on the matter this Court has considered the principles laid down in the said judgments. It is well settled proposition of law that there cannot be any straight jacket formula for payment of backwages. The claim has to be considered on the basis of materials on record. Since this Court has set aside the disciplinary proceeding with the liberty to initiate fresh disciplinary proceeding if desired by the respondent/management. This being the position, this Court has to observe that the claim relating to backwages shall be considered in case fresh disciplinary proceedings are initiated.
31. The liberty is reserved to the respondent management to initiate disciplinary action against the appellant.
32. The appellant has not worked since the order of suspension. He was suspended on 16.04.2012 and was 25 dismissed on 28.02.2013. Hence he is entitled to subsistence allowance in accordance with law during the said period.
33. Whether the appellant is entitled to back wages or not depends on the conclusion of fresh disciplinary enquiry if initiated. If the appellant is exonerated in the de novo inquiry, then there shall be an order relating to back wages/or denial of back wages in accordance with law, having regard to the evidence and all factors governing the entitlement or non-entitlement of back wages of an employee. Needless to say the appellant will not be entitled to backwages if he is removed/dismissed from service.
34. However, if the proceedings are not initiated against the appellant/employee within two months from this date, then having regard to the fact that the appellant was not working in the institution from the date of suspension till today and also considering the evidence led 26 before the Tribunal where the appellant before the Tribunal has not given any positive evidence relating to his unemployment and also considering his admission in the cross-examination where he states that he is working but without salary this Court is of the view that the appellant is entitled to 50% back wages. This Court has taken this view that it is difficult to accept the version of the appellant who states in the cross-examination that he is working without salary. The Court would infer that he was working on salary. Hence, the appellant is entitled to only 50% of the backwages.
35. Hence the following.
ORDER
(i) The disciplinary proceeding initiated by respondents 1 and 2 in W.P. no. 200136/2022 is set aside.
(ii) Respondents 1 and 2 in W.P. no. 200136/2022 shall reinstate the petitioner to his post immediately before the date of his suspension.
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(iii) The liberty is reserved to respondents 1 and 2 in W.P. no. 200136/2022 and the petitioners in W.P. no. 225598/2020 to initiate fresh disciplinary action against the appellant.
(iv) The petitioner in W.P. no. 200136/2022 is entitled to suspension allowance from 16.04.2012 to 28.02.2013, in accordance with the law.
(v) In the event of disciplinary proceeding being not initiated against the appellant/employee, 50% back wages referred to above becomes payable to the appellant/employee after the expiry of two months from this day.
(vi) The W.P. no. 225598/2020 and W.P. no. 200136/2022 are disposed of on the above-said terms.
(vii) Costs made easy.
Sd/-
JUDGE GVP