Karnataka High Court
Ashraf Ali I Bhadganvi vs The State Of Karnataka on 10 August, 2021
Author: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30TH DAY OF JULY, 2021
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
WRIT PETITION NO. 107563/2014 (S-DIS)
BETWEEN:
ASHRAF ALI I BHADGANVI
S/O. ISMAIL SAHEB BHADGANVI
AGE: 51 YEARS,
R/AT: KHANJADEGALLI,
POST and AT: HUKKERI,
BELGAUM DIST.
...PETITIONER
(BY SRI.B. CHIDANANDA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPARTMENT OF COLLEGIATE EDUCATION,
M S BUILDING, BANGALORE 560 001.
2. THE DIRECTOR OF PRE-UNIVERSITY EDUCATION
PALACE ROAD, BANGALORE 560 012.
3. THE DEPUTY DIRECTOR
OF PRE UNIVERSITY AND
JOB ORIENTATION DEPARTMENT
BELGAUM DISTRICT, BELGAUM.
2 W.P.No.107563/2014
4. THE COMMISSIONER
OF PRE-UNIVERSITY EDUCATION
18TH CROSS, MALLESWARAM,
BANGALORE 560 012.
5. THE DISTRICT MUSLIM WELFARE AND
EDUCATION SOCIETY HUKKERI
H NO.267, MUJAWAR STREET,
BELGAUM, REP.BY ITS PRESIDENT
6. THE PRINCIPAL
TIPPU SULTAN COMPOSITE
PRE-UNIVERSITY COLLEGE,
HUKKERI 591 309
DIST: BELGAUM
...RESPONDENTS
(BY SRI. VINAYAK S. KULKARNI, AGA FOR R1 TO R4;
R5 AND R6 - SERVED & UNREPRESENTED)*
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO:
I) QUASH THE ORDER DATED 20.02.2007, PASSED
BY THE PRESIDENT, THE DISTRICT MUSLIM
WELFARE & EDUCATION SOCIETY, HUKKERI,
DIST: BELGAUM (RESPONDENT NO.5 HEREIN)
(VIDE ANNEXURE-M) AND ALSO QUASH ORDER
DATED 21.06.2014, MADE IN E.A.T.NO.2/2011,
PASSED BY THE LEARNED MEMBER, E.A.T. &
PRINCIPAL DISTRICT JUDGE, BELGAUM (VIDE
ANNEXURE-R).
II) II) DIRECT THE RESPONDENT NO.5 -
MANAGEMENT TO REINSTATE THE PETITIONER TO
THE POST IN WHICH THE PETITIONER WAS
WORKING (SDA) IN THE INSTITUTION, WITH
FULL BACK WAGES & ALL CONSEQUENTIAL
BENEFITS.
---
* Corrected vide Court order dated
10.08.2021
Sd/-
Judge
3 W.P.No.107563/2014
THIS PETITION COMING ON FOR ORDERS THIS DAY, THIS
COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and
the learned AGA for respondents No.1 to 4.
2. The petitioner has approached this Court
seeking for the following reliefs:
i) To issue a writ of certiorari quashing the
order dated 20. 02. 2007, passe d by the
President, the D istrict Muslim Welfare &
Education Socie ty, Hukke ri, Dist: Belgaum
(respondent no.5 herein) (vide Annexure-M)
and also quash order dated 21.06.2014,
made in E.A.T.No.2/2011, passe d by the
learned member, E.A.T. & Principal District
Judge, Belgaum (vide Anne xure-R).
ii) To issue a directio n to the respo nde nt no. 5 -
Management to reinstate the pe titioner to
the post in which the petitione r was working
(SDA) in the institutio n, with full back wages
& all consequential benefits.
iii) To issue any othe r writ or o rder or directio n
which this Hon'ble Court deems fit under the
circumstances of the case, in the interest of
justice and equity.
3. It is the case of the petitioner that, he was
appointed as a Second Division Assistant in the 6 t h
respondent Institution on 01.08.1988 and his
appointment was approved without aid by the 2nd
respondent on 24.04.1995. ON 17.07.2006, the 6 t h
respondent had issued a memo calling explanation from
the petitioner for his unauthorized absence for the
period from 24.10.2005 to 17.07.2006. It was followed
with another show cause notice alleging that the
petitioner had indulged in misappropriation of funds of
the Institution. The petitioner had replied to the said
notices denying the allegations made against him.
Subsequently, vide order dated 20.02.2007, 5th
respondent had dismissed the petitioner from the
services. Petitioner thereafterwards submitted a
detailed representation on 31.03.2008 requesting
respondents No.5 and 6 to continue his services in the
Institution and permit him to work in the college.
Challenging the order of dismissal, the petitioner had
filed a statutory appeal before the Education Appellate
Tribunal, Belagavi ('E.A.T', for short) and during the
pendancy of the appeal, there was an interim order
operating as against the Management, directing them
not to fill up the post of the petitioner. The said appeal
was disposed of by the E.A.T setting aside the order of
dismissal dated 20.02.2007, passed against the
petitioner on the ground that the same was unfair and
against the law.
4. Being aggrieved by the same, the
Management had filed W.P.No.84198/2003, before this
Court and this Court had remitted back the matter to
the E.A.T, to a limited extent with certain observations.
The E.A.T thereafterwards has reconsidered the appeal
as directed by this Court and has dismissed the appeal
vide order dated 21.06.2014. Being aggrieved by the
same, the present writ petition is filed.
5. Learned counsel for the petitioner submits
that the 5 t h respondent prior to passing the order of
dismissal dated 20.02.2007, has not obtained the prior
approval of the competent authority, as required under
law. The petitioner's appointment was approved by the
Director of Pre-University Education and therefore, the
Management ought to have obtained prior approval
from the said authority before passing the order of
dismissal against the petitioner. In support of his
contention, learned counsel for the petitioner has relied
upon the judgment of this Court reported in ILR 2009
KAR 3409 in the case of Sri. B. K. Gopal Krishna Vs.
The Managing Committee, Bharathiya Samshkrithi
Vidyapeetha & Ors. He submits that, the said judgment
has been upheld by the Division Bench of this Court.
6. Learned AGA opposes the prayer made by the
petitioner and submits that an enquiry has been held
following all the procedural aspects of the matter and
having found that the petitioner was unauthorizedly
absent, the order of dismissal has been rightly passed
by the Management and the same has been upheld by
the Appellate Authority. However, he does not dispute
that the prior approval of competent authority has not
been obtained in the case on hand before the
Management has passed the impugned order of
dismissal as against the petitioner.
7. I have considered the rival arguments and
also perused the material on record.
8. The Coordinate Bench of this Court in the
case of Sri. B. K. Gopal Krishna Vs. The Managing
Committee, Bharathiya Samshkrithi Vidyapeetha &
Ors. Reported in 2009 KAR 3409, n para 10 has
observed as under:
"10. As noticed above, the appointment of the
petitio ner has bee n admittedly approved by the
competent autho rity. The disciplinary authority
has passe d an order as pe r Annexure "U ' date d
8.7.2004 imposing penalty of compulsory
retirement from se rvice. It is not the case of the
first responde nt-management that it has
obtaine d appro val of the competent autho rity
before passing the said order. Learned Counsel
for the first responde nt wo uld contend that
having regard to Ru l e * 33, the management nee d
not take prior approval of the competent
authority before issuing the o rde r of punishment.
There is no merit in the said submission. As
state d abo ve, Rule 33 states that the Board of
Management may impose any of the penalties
specifie d in Rule 32 o n any emplo yee. Sub-rule
(2) of Rule 33 states that witho ut prejudice to
the provisio ns of sub-rule ( 1) but subject to the
provisions of sub-rule(3), the head of the
institution may impose any penaltie s specified in
clause ( i) and (ii) of Rule 32; the Board of
management may impose any penalties
prescribe d in clauses(iii) to ( v) of Rule 32.
Sub-rule ( 3) of Rule 33 states that the Board of
management shall be compete nt to impose
penalties (i) to (x). Sub-rule (4) states that no
penalty specifie d in clauses (vi) to (x) shall be
imposed by any autho rity lower than appointing
authority. The second pro viso to Rule 32 states
that eve ry order of private management
regarding suspension, dismissal or removal from
service etc., shall be issued after prior approval
by the competent autho rity which approve d the
appo intment. Thus, the power grante d to the
* Corrected vide Court order dated
10.08.2021
Sd/-
Judge
management to suspend, dismiss or removal
from service is no t absolute. A conjoint re ading
of Rules 32 and 33 makes it cle ar that before
imposing penalty of suspension, dismissal or
removal, etc., fro m service, the management has
to take approval of the compete nt autho rity
which had appro ved the appointment. It is
settle d that when the statute requires an actio n
to be taken in a particular manner, the same has
to be taken in the same manner. Since the
management has not taken prio r approval of the
competent authority before passing the order,
the order of punishment at A nnexure 'U ' is
invalid."
9. The said judgment has been confirmed by the
Division Bench of this Court. It is not in dispute even
in the present case the petitioner's appointment as a
Second Division Assistant in the 5th respondent
Institution was duly approved by the 2 n d respondent
herein on 24.04.1995 vide Annexure-B. There is
absolutely no material on record to show that the 5 t h
respondent has obtained the prior approval of the
competent authority, before passing the dismissal order
against the petitioner.
10. Under these circumstances, the order of
dismissal dated 20.02.2007 at Annexure-M issued by
the 5 t h respondent is unsustainable. Though a specific
ground was raised in this regard by the petitioner
before the E.A.T, even the E.A.T has failed to consider
this aspect of the matter and has not given any finding
with regard to the plea raised by the petitioner and
therefore, even the order passed by the E.A.T in E.A.T.
No.2/2011 dated 21.06.2014 vide Annexure-R is liable
to be set aside. Accordingly, I pass the following:
ORDER
The writ petition is allowed. The order dated
20.02.2007 passed by the 5 t h respondent - The District
Muslim Welfare & Education Society, Hukkeri, Dist.
Belagavi, vide Annexures 'M' and the order dated
21.06.2014 passed by the Learned Member, E.A.T &
Principal District Judge, Belagavi in E.A.T.No.2/2011,
vide Annexure 'R', are quashed.
Respondent No.5 - Management is directed to
reinstate the petitioner to the post in which he was
working in the Institution within a period of eight weeks
from the date of receipt of this order.
The petitioner is entitled for all consequential
benefits. It is directed that the respondent No.5 shall
pay 50% of the back wages to the petitioner from
20.02.2007 till the date of his reinstatement within a
period of three months from the date of receipt of
certified copy of this order.
Sd/-
JUDGE
g ab
WP.No.107563/2014
SVSJ:
10.8.2021
ORDER
Learned counsel for the petitioners submits that
respondent Nos. 5 and 6 are served and unrepresented and
in the cause title of the order passed by this Court on
30/7/2021 the same is not reflected. He also submits that in
page No.8 of the judgment, spelling of word 'Rul' to be
corrected as Rule.
Having regard to the said mistake pointed out by the
learned counsel for the petitioners, the prayer made in
I.A.No.1/2021 is allowed. Further in view of disposal of the
writ petition all pending IAs do not survive for consideration.
Registry is directed to carry out necessary corrections
and issue fresh certified copy of the order to the learned
counsel for the petitioner.
Sd/-
JUDGE
Vb/-
