Karnataka High Court
Sri Narasimhaswamy Vidya Samsthe (R) vs The Director Of Public Instructions on 28 March, 2013
Author: D.V.Shylendra Kumar
Bench: D.V. Shylendra Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH, 2013
BEFORE:
THE HON'BLE MR. JUSTICE D.V. SHYLENDRA KUMAR
Writ Petition No.19983 of 2011 (S-RES)
BETWEEN:
SRI NARASIMHASWAMY VIDYA SAMSTHE (R)
GODEKERE - 572 214
CHIKKANAYAKANAHALLY TALUK
TUMKUR DISTRICT
REP BY ITS SECRETARY
SMT G NAGARATHNA
AGED ABOUT 53 YEARS ... PETITIONER
[By Sri M S Anandaramu, Adv. for
M/s Anandaramu & Assts., Advs.]
AND:
1. THE DIRECTOR OF
PUBLIC INSTRUCTIONS
(SECONDARY EDUCATION)
NEW PUBLIC OFFICES
NRUPATHUNGA ROAD
BANGALORE - 560 001
2. SMT R SARVAMANGALAMMA
HEAD MISTRESS
(NOW DISMISSED FROM SERVICES),
SRI GURUBASAVESWARA RURAL
HIGH SCHOOL,
PONNASAMUDRA
ARASIKERE TALUK,
HASSAN DISTRICT,
R/A NO.230, SHIVAKRUPA,
NEAR BIPASS ROAD,
KANCHAGHATTA
2
NEW EXTENSION,
TIPTUR, TUMKUR DISTRICT
3. THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTIONS
TUMKUR DISTRICT
TUMKUR
4. THE DEPUTY DIRECTOR OF PUBLIC
INSTRUCTIONS
HASSAN DISTRICT
HASSAN
5. THE BLOCK EDUCATIONAL OFFICER
ARASIKERE
HASSAN DISTRICT
6. THE BLOCK EDUCATIONAL OFFICER
CHIKKANAIKANAHALLY
TUMKUR DISTRICT
7. THE HEAD MASTER
SRI BASAVESWARA RURAL HIGH SCHOOL
ANAKATTE, CHIKKANAIKANAHALLY
TUMKUR DISTRICT
8. THE HEAD MASTER
SRI GURUBASAVESWARA
RURAL HIGH SCHOOL
PONNASAMUDRA,
ARASIKERE TALUK
HASSAN DISTRICT ... RESPONDENTS
[By Sri Raghavendra G Gayatri, HCGP for R1, R3, R4-R6;
Sri. M P Srikanth, Adv., for R2;
Notice to R7 & R8 are served & unrepresented]
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE ENTIRE
RECORDS, PERTAINING TO THE CASE AND QUASH THE ORDER
DATED 1.3.2011 IN APPEAL NO.22/2010 MARKED AT ANNEXURE-
M, AND ALSO THE MEMO DATED 18.5.2011 MARKED AT
ANNEXURE-N, ISSUED BY THE 1ST RESPONDENT AS THE SAME
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ARE ILLEGAL, UNJUST, ARBITRARY, MALAFIDE AND ACCORDINGLY
LIABLE TO BE QUASHED AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This writ petition is by the Management of Narasimhaswamy Vidya Samsthe at Godekere, Chikkanayakanahally Taluk, who is running an Educational Institution by name Sri Guru Basaveshwara Rural High School.
2. The second respondent to this writ petition was working as a Head Mistress, having been appointed as Assistant Mistress initially and the appointment having been approved on 26.09.1986. She had been promoted as Head Mistress on 24.08.1994. She had been initially appointed at Sri Basaveswara Rural High School situated at Anakatte village of Chikkanaikanahally Taluk and later after promotion as Head Mistress, she had been transferred to Sri Basaveshwara Rural High School being run by the very petitioner - society located at Ponnasamudra Village of 4 Arasikere Taluk, Hassan District, and she had reported to duty at the place of her transfer on 1.7.2006.
3. It is the version of the petitioner - Management that the record of service was throughout blameworthy; that she had indulged in grave acts of misconduct and she had misappropriated huge sums of money belonging to poor students like scholarship, financial assistance etc.
4. It is also the version of the Management that though several warnings had been issued in this regard, she had not shown any improvement and in this regard the Management contemplated to hold inquiry and pending inquiry, she was placed under suspension as per order dated 4.6.2009.
5. It is the further case of the petitioner that it had been duly approved by the competent authority of the Department; that the competent authority had granted permission to the petitioner to initiate action in accordance 5 with the rules even as on 1.6.2009. It is also averred that later many letters had been addressed to the authority seeking for extension/continuation of the suspension order of the second respondent during the inquiry period and it had been granted and therefore the Management was paying subsistence allowance to the second respondent.
6. The follow up inquiry resulted in issue of charge memo dated 5.10.2009 listing nine grave charges and in the departmental inquiry, the second respondent had been allowed to engage services of a legal practitioner who had participated in the inquiry; that the Inquiry Officer had submitted a report dated 28.01.2011 [copy at Annexure-D] finding the second respondent guilty of all charges except charge Nos. 5 and 9 which was held not proved. The Inquiry Committee consisted of two officials, one a retired Joint Secretary and Joint Chief Electoral Officer and the other Member of the Inquiry Committee was Private Secretary of the Vice Chancellor of Tumkur University. 6
7. Petitioner had following an inquiry report, issued a show cause notice dated 4.2.2011 to the second respondent inviting her objections to the report and fifteen days' time was granted. The second respondent had given a reply dated 10.02.2011 [copy at Annexure-F] requesting for time up to 15.03.2011 for giving her reply. But, no such reply was given and therefore did not put up her objection or defence to the inquiry report; that the petitioner in the absence of objections by the second respondent and following the report of the Inquiry Committee, had addressed a letter to the Deputy Director of Public Instruction, Hassan District, Hassan, the decision of the petitioner to dismiss the second respondent from service on 21.03.2011. The order of dismissal on 21.03.2011 had been communicated to the second respondent [copy at Annexure-H] is the stand of the petitioner.
8. It is also the version of the writ petitioner - Institution that as per the Government Order dated 16.03.2006 [Copy 7 at Annexure-J], the Management of private institutions had been intimated that they had the power to inflict penalties on its employees and it was not necessary for the Management to obtain the approval of the Government and it is therefore contended that the order of dismissal dated 21.03.2011 is perfectly valid in law, being based on material and evidence on record.
9. It is also the stand of the Management that the second respondent in the guise of seeking time for filing objections, had not only made comments to the report of the Inquiry Officer, but on the other hand approached the first respondent - Director of Public Instructions by filing an appeal under section 130 of the Karnataka Education Act, 1983 [for short 'the Act'] read with Rule 23 of the Rules, in Appeal Nos.22 & 23 of 2010, seeking for the following reliefs.
1) Declare that the constitution of the Respondent Management is illegal as per Section 42(3)(b) Karnataka Education Act, 1983 and constitution of enquiry 8 Committee is in violation of Rule 21 of 1999 Rules. And further declare that the enquiry proceedings conducted against the Appellant becomes vitiated.
2) Direct the Respondents of the Departments not to approve any penalty that would be awarded by the Respondent Management as per G.A. code Amendment Rule 8 dtd.
8.8.85 and also not to confirm such penalty as required under Rule 14 of 1999 Rules.
3) Direct the Respondent Management to reinstate and continue the Appellant in the services with all consent financial and service benefits.
4) Pass such other order or orders as deem fit in the circumstances of the case to meet the ends of justice.
10. Petitioner has contended that it opposed the appeals preferred by the second respondent before the first respondent and had filed its statement of objections etc. But, the first respondent - authority without examining the matter in a proper perspective and even without any authority vested in law in him, in a mechanical manner, had passed order on 1.3.2011 [copy at Annexure-M] 9 directing the petitioner to reinstate the second respondent to her original post and passed yet another order on 18.05.2011 [copy at Annexure-N] setting aside the order of dismissal passed by the Management on the second respondent as defective, declaring the same as invalid and ordered for reinstatement to her original pots; that the first respondent - authority wanted to preempt the inquiry held by the Management and therefore had asked the Accounts Officer of the Office of the Commissioner of Public Instruction, Bangalore, to take up inspection of the High school run by the petitioner at Anakatte and Ponnasamudra villages for the period during which the second respondent had worked there contending that the orders are per se not tenable in law; that the first respondent has blatantly shown favoritism towards second respondent and urging many grounds, the present writ petition seeking for the following reliefs:
a) Issue a Writ of Certiorari or any other appropriate writ or order of direction quashing the order dated 01.03.2011 in 10 Appeal No.22/2010 marked at Annexure-
M and also the Memo bearing
No.C7/Appeal/22-23/2010 dated
18.05.2011 marked at Annexure-N issued by the 1st respondent, as the same are illegal, unjust, arbitrary, malafide and accordingly liable to be quashed;
b) Issue any such orders as this Hon'ble Court deems fit to grant in the facts and circumstances of the case, to meet the ends of justice.
11. It is also the version of the petitioner that the order dated 1.3.2011 passed by the first respondent has been rendered infructuous in view of the order of dismissal passed by the petitioner on 21.03.2011 dismissing the second respondent from service; that the order dated 18.05.2011 passed by the first respondent directing reinstatement is virtually an order contrary to the provisions of section 94 of the Act where under in respect of order of dismissal passed by the Management of a private educational institution, it is only the Karnataka Educational Appellate Tribunal which can exercise the powers of the appellate authority and not the first respondent.
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12. Though various contentions are urged, what is pressed into service by Sri. Anandaramu, learned counsel for petitioner is that the first respondent - Director is not the competent authority to pass orders; that he has no competence to set aide the order of dismissal and to pass any order having the same effect and therefore writ petition deserves to be allowed etc.
13. Notice had been issued. The statutory authorities are represented by Sri. Raghavendra G. Gayatri, learned Government Pleader. Second respondent is represented by Sri. M P Srikanth, learned counsel.
14. Submission of Sri. M P Srikanth, learned counsel for the second respondent is that the order is per se bad in law, being in violation of second proviso to rule 14 and rule 21 of the Karnataka Educational Institutions [Recruitment and terms and conditions of service of Employees of Private Aided Primary and Secondary Educational Institutions] 12 Rules, 1999, providing for procedure to be followed prior to imposition of major penalty.
15. Sri. M P Srikanth, learned counsel for the second respondent, placing reliance on these rules, submits that the first respondent has only made this legal position clear and it is not as though the first respondent has exercised any appellate power which is otherwise conferred on the Educational Appellate Tribunal under section 94 of the Act in respect of orders passed by the Management terminating service of an employee.
16. Mr. Raghavendra G Gayatri, learned Government Pleader submits that the first respondent is not the appellate authority for sitting in Judgment over the order of termination passed by the Management, but can only act within the scope of relevant rules but not to exercise powers of the Appellate Tribunal.
17. Section 94 of the Act is the provision reading a under: 13
94. Appeals:-
(1) Any teacher or other employee of a private educational institution who is dismissed, removed or reduced in rank may within three months from the date of communication of the order prefer an appeal to the Tribunal.
(2) The provisions of sections 4 and 5 of the Limitation Act, 1963, shall be applicable to such an appeal.
(3) If, before the date of commencement of this Act, any teacher or other employees has been dismissed, or removed or reduced in rank or his appointment has been otherwise terminated and any appeal preferred before that date -
(a) by him against such dismissal or removal or reduction in rank or termination; or
(b) by him or by the Governing Council against any order made in any appeal referred to in clause (a) is pending before any officer, such appeal shall, notwithstanding anything in sub-section (1), stand transferred to the Tribunal, if he makes an application in that behalf to such officer.
(4) The Tribunal shall dispose of the appeal filed under sub-section (1) or transferred 14 under sub-section (3) after giving the parties the opportunity of being heard.
(5) In respect of an order imposing a penalty other than those specified in sub-section (1) of section 92, on any teacher or other employee, an appeal shall lie to the Competent Authority within three months from the date of communication of the order imposing such penalty.
(6) The Competent Authority shall dispose of an appeal preferred under sub-section (5) after giving the parties the opportunity of being heard.
(7) An appeal against an order of the Competent Authority under sub-section (6) shall lie within the prescribed period to the Tribunal, whose decision shall be final.
which confers power on the authority to sit in Judgment as the appellate authority over the decisions of the private Management who have terminated the services of its employee.
18. In respect of an order of termination of a Teacher or other employees, while it is only the Educational Appellate Tribunal which has the power to entertain an appeal in 15 respect of other penalties other than the major penalty like termination/dismissal, it is the competent authority which can entertain the appeal.
19. While it is true that in respect of any order in the nature of penalty imposed on an employee, the competent authority can entertain an appeal but insofar as the order terminating the service or dismissing services of an employee, it is only the Tribunal which has the jurisdiction.
20. The Management has passed an order of dismissal from service on the second respondent on the ground that she had misappropriated the funds while she was the Head Mistress of the School which is a very serious and gross misconduct and therefore commensurate action was warranted.
21. On the other hand, submission of Sri. M P Srikanth, learned counsel for second respondent, is that no such misconduct was ever indulged in by the second respondent; 16 that the Management had grudge over her and it unnecessarily kept her under suspension beyond the permitted period and the first respondent acting as an appellate authority found that illegal order has come to be passed and if he says about the character of the order, there is nothing wrong with that order and therefore no interference is warranted; that the order of dismissal is further required to be confirmed by the authority and the first respondent - authority was the authority to confirm and is competent to declare that the order is bad in law etc.
22. While the first respondent no doubt can act within his domain and jurisdiction, at the same time, in the name of passing orders within the domain, cannot pass orders which are otherwise in the domain or jurisdiction of the other authorities. Insofar as the order of dismissal or termination is concerned, there is no ambiguity or doubt that it is only the Educational Appellate Tribunal which can entertain the proceedings or any proceedings that can 17 invalidate that order. The first respondent cannot usurp this power and in the guise of examining an order of suspension, if passes an order in respect of major penalty, it does amount to an instance of colorable exercise of power. In the instant case, under the impugned order, the first respondent has not only characterized the order of termination as bad, void etc., but also has issued consequential direction to the Management to reinstate the second respondent into service to her original post as Head Mistress.
23. In my considered view, passing such an order is exclusively within the domain of the Educational Appellate Tribunal. Therefore, exercise of such power by the first respondent is virtually without authority of law and lacking in jurisdiction. It is only for this reason, the impugned order is required to be quashed by issue of a writ of certiorari.
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24. However, it is made clear that there is no expression on the merits of the order of dismissal passed by the petitioner, by this court on this order, if at all is examined only for the limited purpose of finding out if the order passed by the first respondent is one with jurisdiction or without. All other contentions of both the parties are left out. It is open to the second respondent to avail of the appellate remedy in accordance with law.
25. Accordingly, writ petition is allowed. The impugned orders at Annexures 'M' dated 01.03.2011 and 'N' dated 18.05.2011 are both quashed by issue of a writ of certiorari. Rule issued and made absolute.
Sd/-
JUDGE AN/-