Karnataka High Court
Shadakshyaraiah R. Hiremath vs The State Of Karnataka on 22 March, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
ON THE 22 N D DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE K .N . PHA NEENDRA
WRIT PETITION N OS.104279-104280/2015 (S-RES)
C/W
WRIT PETITION N OS.71482- 71483/ 2012 (S-RES)
I N W R IT PE T IT IO N NO S .1 0 42 79 -1 0 42 80 / 20 15 (S -R E S )
BETWEEN :
KUSHTAGI TALUKA VEERASHIVA
GRAMEENA VIDYA VARDHAK SANGH ( R)
KUSHTAGI, DIST: KOPPAL,
REPRES ENTED BY ITS SECRETARY .
...PETITIONER
(BY SRI B.CHIDAN ANDA, ADV OCATE)
AND:
1) SHADAKSHARAYYA,
S/O RUDRAYYA HI REMATH,
AGED ABOUT : 46 YEARS,
R/O M.GUDAD OOR, POST : MADAPUR,
TQ: KUSHTA GI, DI ST: KOPPAL.
2) SIDDALINGESHA
S/O KALAKA PPA RADDER,
AGED ABOUT : 37 YEARS,
OCC: TEACHER, R/ O NAYAKWADI ONI ,
KUSHTAGI, TQ: KUSHTAGI, DIST: KOPPA L.
3) THE STATE OF KARNATAKA,
REP. BY ITS SECRETARY,
DEPARTMENT OF PRIMARY &
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SECONDARY EDUCATION,
M.S.BUILDING, BENGALURU-580 001.
4) THE COMMISSIONER OF PUBLIC
INSTRUCTIONS, I WAN A SHAHI EXT ENTION,
KALBURGI , DIST: KALBURGI .
5) THE DEPUTY DIRECTOR OF
PUBLIC INSTRUCTI ONS,
DEPARTMENT OF PUBLIC INSTRUCTI ONS,
KOPPAL, DIST: K OPPA L.
6) THE BLOCK EDUCA TIONAL OFFICER,
DEPARTMENT OF PUBLIC INSTRUCTI ONS,
KUSHTAGI, DIST: KOPPAL.
...RESPONDENTS
(BY SRI C.R.HIREMATH, ADVOCATE FOR
J.S.S HETTY, ADVOCATE F OR R1 & R2,
SRI A.R.RODRIGUES, AGA FOR R3 T O R6)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF CONSTI TUTION OF INDIA
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 28.07.2014, MADE IN M.A .EAT NO.1/ 2011 AN D
2/2011, PASS ED BY THE LEARNED DISTRICT JUDGE
AND EDUCATION AL APPELLAT E TRIBUNAL, KOPPA L
(VIDE ANNEXURE- N TO W.P.) & FURTHER TO DISMISS
THE APPEA LS M.A.EAT N O.1/ 2011 & 2/ 2011 (VID E
ANNEXURE-A & B) ALONG WITH COSTS, IN THE
INTEREST OF JUST ICE AND EQUITY A ND ETC.
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I N W R IT PE T IT IO N NO S .7 1 48 2- 71 4 83 / 20 12 (S -RE S )
BETWEEN :
1. SRI SHADAKSHYA RAIAH R. HIREMATH,
AGE : 44 YEARS, A T POST M.GUDADUR,
POST : MADAPUR, KUSTAGI TALUK,
DISTRICT : KOPPA L.
2. SRI SIDDALINGES H S/O KALAKAPPA
RADDER, AGE : 36 YEARS,
R/O NAIKWADI ON I,
KUSHTAGI, KUSHT AGI TALUK,
DISTRICT : KOPPA L.
...PETITIONERS
(BY SRI C.R.HIREMATH, ADVOCATE FOR
SRI J.S .SHETTY , A DVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY,
DEPARTMENT OF EDUCATION ( PRIMA RY
AND SECONDARY EDUCATION)
M.S.BUILDING, BA NGALORE.
2. COMMISSIONER OF THE PUBLIC INS TRUCTIONS ,
IWAN A SHAHI EXTENSION, GULBARGA,
DISTRICT: GULBA RGA.
3. DEPUTY DIRECTOR OF THE PUBLIC I NSTRUCTIONS,
DEPARTMENT OF PUBLIC INSTRUCI GONS,
KOPPAL, DISTRICT , K OPPAL.
4. SRI VEERASHAIVA GRAMMENA VIDYA VARDHAKA
SANGHA, KUSTAGI , TALUK: K USTAGI ,
DISTRICT: KOPPAL BY ITS S ECRETARY.
5. SRI BUTTI BASAV ESHWARA KANNADA
HIGHER PRIMARY SCHOOL, KUS HTAGI,
KUSHTAGI TALUK, DISTRICT : KOPPA L,
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BY ITS HEAD MASTER.
6. SRI GURULIN GAIAH
S/O SIDDAIAH HIREMATH,
ASSISTANT TEACHER,
SRI BUTTI BASAV ESHWARA KANNADA HIGHER
PRIMARY SCHOOL, KUSHTAGI ,
DISTRICT : KOPPA L.
7. SRI SURES H S/ O RAMAPPA K ORAWARA,
AGE : MAJOR, ASS ISTANT TEACHER,
SRI BUTTI BASAV ESHWARA KANNADA HIGHER
PRIMARY SCHOOL KUSHTAGI,
DISTRICT : KOPPA L.
8. SRI SHIVARAJ S/ O YAMUNAPPA ,
AGE : MAJOR, ASS ISTANT TEACHER,
SRI BUTTI BASAV ESHWARA KANNADA HIGHER
PRIMARY SCHOOL KUSHTAGI,
DISTRICT : KOPPA L.
9. SRI UMESHSWAMY S/O KARABASAIA H HIREMATH,
AGE : MAJOR, ASS ISTANT TEACHER,
SRI BUTTI BASAV ESHWARA KANNADA HIGHER
PRIMARY SCHOOL KUSHTAGI,
DISTRICT : KOPPA L.
10. SRI SANGAMESH S /O SRISAILA PPA I LACHI ,
AGE : MAJOR, ASS ISTANT TEACHER,
SRI BUTTI BASAV ESHWARA KANNADA HIGHER
PRIMARY SCHOOL KUSHTAGI,
DISTRICT : KOPPA L.
11. SRI NAGARAJ S/O RUDRAPPA S HETT AR,
AGE : MAJOR, ASS ISTANT TEACHER,
SRI BUTTI BASAV ESHWARA KANNADA HIGHER
PRIMARY SCHOOL KUSHTAGI,
DISTRICT : KOPPA L.
12. SRI RAJENDRA S/ O BASA PPA BYADA GI,
AGE : MAJOR, ASS ISTANT TEACHER,
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SRI BUTTI BASAV ESHWARA KANNADA HIGHER
PRIMARY SCHOOL KUSHTAGI,
DISTRICT : KOPPA L.
...RESPONDENTS
(BY SRI A .R.RODRIGUES , A GA F OR R1 TO R3,
SRI B.CHIDANAND A ADVOCAT E F OR R4,
SRI P.G.MOGA LI, ADVOCATE FOR R6 TO R12)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF THE CONST ITUTION OF INDIA
PRAYING TO WRIT OF CERTIORARI OR ANY OTHER
WRIT OR DIRECTION IN THE NATURE OF WRIT TO
QUASH THE RECOMMENDATION DATED 08.08.2011,
MADE BY THE S ECOND RESPOND ENT, AS PER HI S
ORDER NO.C 3( 4) KHA PRA SHA/ VE ANUDANA
28/ 2011, THE COPY OF WHICH HA S BEEN PRODUCED
HEREWITH AT AN NEXURE-A , THE REPORT NO.LE V.4:
BHU BA HI PRA S HA KU : NEMAKATI DOORU : 2010-
11/ 22 68, DATED 15.02.2011, S UBMITTING BY THE
THIRD RESPONDENT THE COPY OF WHICH HAS BEEN
PROD UCED HEREW ITH AT ANNEXURE-B AND ALSO THE
ORDER N O.ED 572 PMC 2011 BANGALORE DATED
04.10.2012, THE COPY OF WHICH HAS BEEN
PROD UCED HEREWITH AT ANNEXURE-C, IN SO F AR
APPROVAL OF THE A PPOINTMENTS OF THE
RESPOND ENTS NO.6 TO 12 IN THE FIFTH RESPOND ENT
PRIMARY SCHOOL AND FOR EXTENSION OF THE
BENEFIT OF GRA NT IN AID CODE ARE CONCERNED
AND ETC.
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THESE WRIT PETITIONS COMIN G ON FOR
PRELIMINARY HEARING 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned counsel for the respondents and perused the records.
2. The petitioners in W.P.No.104279- 104280/2015 have approached this court seeking for setting aside the judgment passed in EAT Nos.1 of 2011 and 2 of 2011 dated 28.07.2014 by the District Judge and Educational Appellate Tribunal, Koppal. Consequently, further sought for dismissal of the said appeals.
3. The petitioners in W.P. Nos. 71482- 71483/2012 have sought for the following reliefs.
a) A writ of certiorari or any other writ or direction in the nature of writ to quash the recommendation dated 08.08.2011, made by the second respondent, as per his order No. C :7: 3(4) Kha Pra Sha/ Ve Anudana 28/2011, as per Annexure A. The report No. Le V.4: Bhu Ba Hi Pra Sha Ku: Nemakati Dooru: 2010-
11/2268 dated 15.02.2011, submitted by the third respondent, as per Annexure B and also the order No. ED 572 PMC 2011 Bangalore dated 04.10.2012, as per Annexure-C, in so for as approval of the appointments of the respondents No.6 to 12 in the fifth respondent Primary School and for extension of the benefit of grant in aid code, are concerned;
b) A writ of mandamus or direction to the respondents 1 to 3 for the approval of the appointment of the petitioners to the post of Assistant Teacher, in the fifth respondent Higher Primary School run by the Fourth respondent Society, by considering the representations dated 26.07.2012, made by the petitioners, as per Annexure D and E respectively;
c) Any other writ or direction which this Hon'ble Court deems fit to grant in the facts and circumstances of the case may kindly be :8: granted in favour of the petitioners, by allowing this writ petition, with cost through out in the ends of justice and equity.
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First I will take up the cases in W.P. Nos.104279- 104280/2015 for discussion.
3. Respondents 1 and 2 Shadaksharaiah and Siddalingesh have filed the Education Appeals respectively in M.A.E.A.T. Nos. 1/2011 and 2/2011. It is their case that they were appointed as Teachers by the petitioners herein and they were put in unblemished service for more than 12 years.
4. It is further case of the petitioners that, the writ petitioners, with evil desire all of a sudden prevented the respondents 1 and 2 from attending the school and they told them not to come to their school from 09.01.2011. Inspite of their best efforts they could not able to persuade the :9: President and the Secretary of the petitioner management. Therefore, they approached the Tribunal for various reliefs directing the writ petitioner to reinstate the respondents 1 and 2 into service with all consequential benefits.
5. Writ petitioner is the respondent before the Tribunal, contested the said proceedings and denied the relationship of employer and employee between themselves and the appellants therein. They have also taken a specific contention that, there was no order of appointment given to the appellants therein and they never worked in the institution and the allegations made in the appeal were all denied as false. Further, they have taken up the contention that, the appellants therein were working in some other institution during the relevant point of time. Therefore, countering all the allegations made in the memorandum of appeal, the management has prayed for dismissal : 10 : of the appeals. The Tribunal has allowed the appeals and directed reinstatement of the appellants therein with all consequential benefits.
6. There is no need for this Court to give any details with regard to the merits or demerits of the claim made by the appellants and the respondents before the Tribunal. There are some technical grounds raised before this Court with regard to the conducting of the appeal by the Tribunal much against to the procedure and recognized principles of civil jurisprudence. Therefore, I would like to bestow my attention to the said irregularities or illegalities alleged to have been committed by the Tribunal to find out whether those irregularities have caused any prejudice to either of the parties and whether on that ground the order passed by the Tribunal is not sustainable in law.
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7. It is evident from the Tribunal's record that, after completion of the pleadings by the parties, it appears, the Tribunal came to the conclusion that, opportunity should be given to both the parties to lead evidence.
8. The order sheet of the Tribunal which is meticulously seen discloses that, on 03.01.2012 the appellants filed their affidavits by way of examination in chief and appellant No.1 was examined as PW1. The case was again posted for marking of documents and cross examination of PW1. Thereafter, on 23.01.2012 the case was again posted for cross-examination of PW1. On 16.02.2012 an application was filed numbered as IA No.2 under Order 16 Rule 6 by the appellants along with certain documents. Again the case posted for production and marking of some more documents by PW1 and for cross-examination of PW1. On 14.03.2012 again 10 days' time was : 12 : granted for the same purpose. On 29.03.2012 PW1 was called out and he was absent. The case was again posted for production of documents. On 22.05.2012 the District Government Pleader has filed a memo along with certain documents. Learned counsel for the appellants sought for time to verify those documents and have their say. On various occasions PW1 was absent and ultimately on 05.02.2013 PW1 was present and case again posted for cross-examination of PW1. Again on several occasions PW1 was present and cross examination was not done and on 29.05.2013 cross-examination was taken as nil and case posted for respondents evidence. When the case was set down for respondents' evidence, particularly on 14.08.2013 the appellants filed application seeking to recall PW1 and also filed application under Order 41 Rule 27 CPC along with four documents. The case was posted for : 13 : objections to the said IA's and for respondents' evidence. On 24.09.2013 the respondents filed objections to IA's and case was posted for hearing on IA's. On 21.10.2013 arguments were heard on IA's. On 19.11.2013 the Court directed both the parties to be present before the Court and thereafter it posted the case for arguments on several dates upto 16.04.2014 on which day the Court has heard the arguments of the learned counsel for the appellants who filed list of citations also and the case posted to 18.06.2014 to hear the respondents. Again on 19.06.2014 the learned counsel for the respondents filed 15 documents with IA and the case posted for objections to IA on 30.06.2014. Very peculiarly enough, on 30.06.2014 the appellants counsel filed objections to the appeal and the case was heard on merits and the case was posted for orders on IA's and as well as on merits. : 14 : Thereafter the impugned order was passed on merits on 28.07.2014 which order does not disclose any consideration of IA's filed by respective parties.
9. The above said proceedings taken place before the trial Court discloses that the District Judge was unmindful of the procedures and the Evidence Act and the provisions of CPC, he has floated the said provisions of law and directly passed orders on merits of the case without even providing opportunity to either of the parties to complete their evidence in accordance with law.
10. The Tribunal is also governed by the procedure as contemplated under the Karnataka Education Act. No separate and independent procedure though not contemplated but Sec. 96(iii)(b) clearly indicates that, for the purpose of conducting of the appeals referred under that Act, : 15 : the Tribunal has same power as are vested in a Court under the Code of Civil Procedure (C.P.C.). Therefore, if the parties want to produce any documents or adduce any evidence before the Tribunal they are bound to file application u/O 41 Rule 27 of CPC. Because the appellate Court can only receive the documents under Order 41 Rule 27 of CPC though the Education Appellate Tribunal has jurisdiction to record evidence as if it is having original jurisdiction. The above said proceedings before the Tribunal discloses that an opportunity was given to the appellants therein to lead evidence and some of the documents have already been produced by the appellants and he sought for time to mark the documents and to produce some more documents. It appears, the examination-in-chief was not completed and the documents referred to by the appellants were not marked. Likewise the respondent also filed IAs : 16 : under Order 41 Rule 27 of CPC on two occasions. On one occasion producing four documents and on another occasion producing 15 documents. These IAs were not considered and no orders have been passed. Therefore, principles of natural justice have not been adhered to by the Tribunal.
11. Whether it is a civil proceeding or criminal proceeding the following up of the principles of natural justice in accordance with the procedure established by law is the harbinger for the purpose of adjudication of the rights of the parties. If no opportunity is granted in accordance with law and opportunity was not provided to the parties to prove their case by means of pleading their case adducing evidence by oral and documentary and arguing the case, that itself amounts to prejudice to the parties to the proceedings.
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12. On the basis of the above said facts and circumstances, the prejudice to the parties is apparent on record. Therefore, the Tribunal has committed serious error in not following the procedure as contemplated which is not only an incurable irregularity but it virtually amounts to illegality. Therefore, on this ground itself the order passed by the Tribunal in EAT No. 1/2011 and 2/2011 are liable to be set aside and the matter has to be remitted to the Tribunal for fresh disposal in accordance with law.
Now I would take up the case in W.P. Nos. 71482- 71483/2012 for discussion:
13. The above said writ petitions are filed perhaps on the ground that after removal of the petitioners (appellants in EAT No. 1/2011 and 2/2011) the respondent management has recommended for appointment of some other : 18 : persons, i.e., respondents 6 to 12, in their institution. In that context, they have recommended for approval of posts and persons and in turn those posts and persons have been approved by the competent authority, i.e., the Government, and the said orders were challenged in the above said writ petitions.
14. It goes without saying unless the petitioners in these writ petitions succeed in the appeals filed by them in EAT Nos.1/2011 and 2/2011 before the Tribunal they have no locus standi to question the recommendation made by the respondent management and consequential approval by the Government in approving posts of respondents 6 to 12. However, they get opportunity to question the said appointment of respondents 6 to 12 after disposal of the appeals in M.A.E.A.T. Nos.1/2011 and 2/2011 before the Appellate Tribunal. Therefore, these writ petitions are also liable to be : 19 : dismissed with liberty to the petitioners to take appropriate measures after disposal of the appeals in M.A.E.A.T. Nos.1/2011 and 2/2011.
15. For the above said reasons, it is just and necessary to pass appropriate orders in the following manner.
ORDER Writ petition nos.104279-104280/2015 are hereby allowed. Consequently, the order passed by the District Judge and Appellate Tribunal, Koppal in M.A.E.A.T. Nos.1/2011 and 2/2011 dated 28.07.2014 are hereby set aside.
The matter stands remitted to the District Education Appellate Tribunal, Koppal, for to proceed with the matter in accordance with law and dispose of the appeals after providing opportunity to both the parties to produce : 20 : documents and adduce evidence and after passing appropriate orders on the IAs which are already filed by the parties and thereafter providing opportunity to lead evidence and to argue the matter, dispose off the appeals in accordance with law and as expeditiously as possible preferably within six months from the date of receipt of a copy of this order, if the parties effectively co- operate with the case.
W.P. Nos.71482-71483/2012 are hereby dismissed. However, petitioners are at liberty to challenge the appointment of respondents 6 to 12 in accordance with law subject to the result of the cases in M.A.E.A.T. Nos.1/2011 and 2/2011.
Registry is hereby directed to send back the records to the trial Court forthwith.
Sd/-
JUDGE EM/bvv