Smt. Tanuja P Pategar vs The Director
2021 Latest Caselaw 5917 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 10TH DAY OF DECEMBER, 2021

                        BEFORE

         THE HON'BLE MR.JUSTICE S.G.PANDIT

        WRIT PETITION NO.32319/2017 (S-RES)

BETWEEN:

SMT. TANUJA P PATEGAR
AGED ABOUT 46 YEARS
W/O HARISH H M
LECTURER, DEPT. OF E & CE
DR. AMBEDKAR INSTITUTE OF
TECHNOLOGY MALLATHALLI
BENGALURU-560 056.

(PRESENTLY RESIDING AT NO.L-306
PREMIER GRUHALAKSHMI APARTMENTS
S.M.ROAD, JALAHALLI WEST
BANGALORE-560 015).
                                        ...PETITIONER
(BY SRI RAMA BHAT K., ADV.)

AND:

  1. THE DIRECTOR
     TECHNICAL EDUCATION IN KARNATAKA
     P.B.NO.5045, PALACE ROAD
     BENGALURU-560 001.

  2. THE SECRETARY
     PANCHAJANYA VIDYAPEETA
     WELFARE TRUST (REGD.)
     BRANCH OFFICE AT
     DR.A.I.T. CAMPUS
                                 2

      MALLATHALLI
      BENGALURU-560 056.
                                                ...RESPONDENTS
(BY SRI HARISH H.V., ADV. FOR R2
 R1-SERVED & UNREPRESENTED)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
PORTION OF THE IMPUGNED ORDER DATED 06.01.2017 IN
M.A.(EAT) NO.2/2011 ON THE FILE OF THE EDUCATION
APPELLATE TRIBUNAL AND THE III ADDL.CIVIL AND SESSIONS
JUDGE, BENGALURU CITY WHEREIN THE TRIBUNAL HAS
REFUSED TO GRANT BACK WAGES, FINANCIAL AND SERVICE
BENEFITS TO THE PETITIONER AT ANNEX-A AND ETC.

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-

                          ORDER

The petitioner, a lecturer of the second respondent/

Institute is before this Court under Article 226 of the

Constitution of India, questioning the correctness and legality

of a portion of the judgment dated 06.01.2017 in MA (EAT)

No.2/2011 by which, the petitioner is denied financial and

service benefits.

2. Heard learned counsel Sri.K.Rama Bhat for petitioner,

Sri.Harish H.V., learned counsel for respondent No.2.

Perused the writ petition papers.

3. Learned counsel for the petitioner Sri.K.Rama Bhat

would submit that the petitioner initially joined the services

as lecturer of Malnad College of Engineering, Hassan on

11.04.1997. One of the conditions of appointment was that

the petitioner should acquire Master Degree qualification

within five years from the date of her reporting to duty. The

petitioner failed to acquire Master degree within the

prescribed period of 5 years. In the meanwhile, the petitioner

requested for transfer from Malnad College of Engineering,

Hassan to the Engineering College run by the second

respondent. With the prior approval of the Government, it is

stated that the petitioner was transferred to second

respondent/Institute on 12.08.2006 on which date, the

petitioner reported to duty at the second

respondent/Institute. Learned counsel for the petitioner

states that on 14.07.2007, the petitioner represented to the

second respondent for grant of study leave for pursuing her

higher studies. Request of the petitioner was rejected, but

the petitioner joined the course at University of Visveswaraya

College of Engineering at Bangalore to pursue Master Degree

from 02.06.2008 till 19.07.2010. It is stated that the

petitioner completed her Master Degree and she reported to

duty on 19.07.2010 to the second respondent/college. In the

meanwhile, the second respondent had initiated enquiry

against the petitioner alleging unauthorized absence by

issuing charge memo dated 08.05.2009 (Annexure-C).

Learned counsel Sri.Rama Bhat submits that the second

respondent/Institution instead of accepting the duty report

submitted by the petitioner on 19.07.2010, proceeded with

the enquiry. The Enquiry Officer appointed to enquire into

the allegations of unauthorized absence as well as two other

charges, held two charges as proved. Based on the said

finding of the Enquiry Officer, the second respondent imposed

punishment of dismissal from service of the second

respondent/Institute. Aggrieved by the same, the petitioner

approached the Tribunal in MA (EAT) No.2/2011. The

Tribunal, by its judgment dated 06.01.2017 partly allowed

the appeal of the petitioner and directed the second

respondent to reinstate the petitioner. Further, it is clarified

that the appellant is not entitled for financial and service

benefits. Aggrieved by that portion of the order by which, the

financial and service benefits are denied, the petitioner is

before this Court.

4. Learned counsel for the petitioner Sri.Rama Bhat

submits that the Tribunal came to the conclusion that the

order of dismissal is opposed to Rule 32 of the Karnataka

Educational Institutions (Collegiate Education) Rules, 2003

(for short "2003 Rules") holding that no prior approval was

obtained before issuing suspension order or before issuing

charge memo to the petitioner. Learned counsel would point

out that the Tribunal has also arrived at a finding that there

is no charge of misappropriation against the petitioner. As

such, the Tribunal has come to the conclusion that the

punishment of dismissal would be disproportionate to the

proved misconduct. When once the Tribunal comes to such a

finding, it is his submission that the petitioner would be

entitled for back wages as well as for counting her services for

all other purposes. Thus, learned counsel prays for allowing

the writ petition and to treat the period between 02.06.2008

till reinstatement for the purpose of service benefits.

5. Per contra, learned counsel Sri.Harish submits that the

petitioner had not completed her Master degree within 5 years

in terms of the order of appointment. Learned counsel

further submits that, request of the petitioner for grant of

study leave was rejected. In that circumstance, the petitioner

could not have remained absent, even though it was for

higher studies. Learned counsel Sri.Harish also submits that

even though the petitioner was transferred and joined duty on

12.08.2006, subsequently, she remained absent after working

for 3 years, it became difficult for the respondents to carryout

day to day work. Learned counsel Sri.Harish further submits

that in pursuance of the judgment of the Tribunal, the

petitioner was reinstated into service on 06.01.2017. In that

circumstance, learned counsel for the respondent/Institute

prays for dismissal of the writ petition.

6. A portion of the order is under challenge by which, the

petitioner is denied financial and service benefits.

Admittedly, the petitioner was dismissed from service of the

second respondent/Institute as Lecturer by order dated

12.01.2011. The said order of dismissal was the subject

matter of appeal in MA(EAT) No.2/2011. The Tribunal, on the

basis of material and evidence on record, recorded a finding

that the second respondent/Management failed to take prior

permission before keeping the petitioner under suspension

and before initiating an enquiry against the petitioner. The

Tribunal also recorded a finding that the impugned order of

dismissal is disproportionate to the proved misconduct of the

appellant.

7. The petitioner was pursuing her Master Degree from

02.06.2008 to 19.07.2010 on which date the petitioner

represented the second respondent/College seeking

permission to joint duty. At the earliest point of time, the

petitioner submitted a representation on 27.08.2008 to the

second respondent/Institute requesting to grant study leave

for pursuing her Post Graduation. The said request was

rejected by the second respondent. The second respondent

could not have rejected permission sought for by the

petitioner to pursue her higher studies, for the reason that

the petitioner was appointed with a condition that she should

acquire Master degree within 5 years from the date of joining

duty. Even though the petitioner failed to pass Master degree

within the time prescribed i.e., 5 years, the petitioner was

required to acquire Master Degree to qualify for teaching

Engineering Students. Therefore, the desire of the petitioner

to acquire higher qualification cannot be found fault with.

The petitioner after informing the second respondent that she

needs study leave, proceeded to pursue her higher studies for

acquiring Master degree in the University of Visveswaraya

College of Engineering, Bangalore. The petitioner has not

mis-utilized her absence, but she has utilized the same for

her education purpose of acquiring Master degree. The

beneficiaries would be the students of the second

respondent/College. Acquisition of Master Degree by the

petitioner would also benefit the second respondent/college.

In that, the petitioner would be able to teach Engineering

students. Thus, when the petitioner has utilized her absence

for acquiring Master Degree, I am of the view that the

petitioner would be entitled for counting her services during

which she was out of employment for the purpose of

continuity and other benefits, but not for back wages. The

petitioner would not be entitled for back wages since she had

not worked. Since, the petitioner was pursuing her Master

Degree, the question of loss of wages would not arise. In the

instant case, the petitioner was pursuing her studies and she

could not have attended to duty, while pursuing her Master

Degree. In the peculiar facts of the case it cannot be exactly

called petitioner's absence as unauthorized absence, since

she had sought leave for pursuing her higher studies, but

leave was not sanctioned. During the alleged period of

unauthorized absence, the petitioner pursued her higher

studies and immediately thereafter sought permission to join

duty. As noted by the Tribunal, there is no charge of

misappropriation or charge of moral turpitude, so as to

attract major punishment of dismissal. Moreover, the

respondent-College failed to take prior permission of the

competent authority before initiating the enquiry as required

under Rule-32 of KEI (Collegiate Education) Rules, 2003.

Thus, I am of the view that the petitioner would be entitled for

continuity of service and not back wages.

8. Accordingly, the writ petition is partly allowed. The

petitioner would be entitled to count her service from

02.06.2008 till her reinstatement for continuity of service and

not for back wages.

Sd/-

JUDGE

mpk/-* CT:bms