The Management Committee And Ors vs Smt. Vijayakumar W/O ...
2021 Latest Caselaw 3757 Kant

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               IN THE HIGH COURT OF KARNATAKA

                      KALABURAGI BENCH


         DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            WRIT PETITION No.205439 OF 2014 (S-RES)

BETWEEN:

1.     THE MANAGEMENT COMMITTEE OF
       INFANT JESUS SCHOOL,
       VIDYA NAGAR,
       RAICHUR - 584 103
       REPRESENTED BY ITS MANAGER.

2.     THE CORRESPONDENT
       INFANT JESUS SCHOOL,
       VIDYA NAGAR, RAICHUR - 584 103.
                                               ... PETITIONERS

(BY SRI KRUPA SAGAR PATIL, ADVOCATE (VIDEO
    CONFERENCING ))

AND:

SMT.VIJAYAKUMARI
W/O PRABHAKARVARDHAN,
AGE 56 YEARS, OCC:NURSERY TEACHER
VIDYA NAGAR, RAICHUR - 584 103.

                                               ... RESPONDENT
(BY SRI K.M.PRABHAKAR VARDHAN AND
    SRI L.H.SHIVAREDDY, ADVOCATES FOR C/R1
    (VIDEO CONFERENCING))
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      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF CERTIORARI QUASHING THE IMPUGNED ORDERS DATED
28.01.2014 AND 07.07.2014 IN EAT NO.01/2013 PASSED BY THE
PRL. DISTRICT JUDGE & EDUCATIONAL APPELLATE TRIBUNAL,
RAICHUR AT ANNEXURE - 'E' AND ETC.,


     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 22.07.2021, COMING UP FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING :-
                             ORDER

Petitioners in this writ petition calls in question orders

dated 28.01.2014 and 07.07.2014 passed by the Educational

Appellate Tribunal in EAT No.1/2013 whereby the Tribunal

allowed the appeal filed by the respondent and directed

reinstatement and continuance of the respondent as an

Assistant Teacher in the petitioner-Institution and pay her

salary and allowances as admissible to a Teacher in a similarly

situated Government School with effect from 01.06.2005 till the

date of the order - 07.07.2014.

2. Brief facts leading to the filing of the present petition as

borne out from the pleadings are as follows:

The petitioner is a Minority Institution managed by a

Society in the name and style of 'Bellary Diocese Board of

Education'. The respondent was appointed as Assistant Nursery

Teacher in the petitioner-School in the year 1998 and it

transpires that her services were found to be satisfactory and

confirmed on 01.06.1999.

3. On 20.04.2005 the School issued a letter intending to

shift the respondent to an administrative section as a Librarian

with a condition that the petitioner should report to duties at the

place where she is posted within three days, failing which, it

would be construed that she has no intention to continue in the

employment.

4. The respondent though represented that she be

continued as a Nursery Teacher for which she was appointed,

failed to report to duties in terms of the order of the School as a

Librarian. Being aggrieved by the conduct of the petitioners in

not acceding to the request of continuing the respondent as a

Nursery Teacher and further contending that service conditions

of the respondent was violated by the petitioners by transferring

her to Library Section, filed an appeal before the Educational

Appellate Tribunal in EAT No.1/2005.

5. The Tribunal, by its order dated 30.07.2008, declined to

entertain the appeal following the Division Bench judgment of

this Court in the case of Management of M.S. Ramaiah Vs. Dr.

M. Somashekar1 and directed the respondent to approach the

State Government under Section 131 of the Karnataka

Education Act, 1983 (hereinafter referred to as 'the Act' for

short) as there was no order which can be called to be punitive

in nature which would enable entertaining an appeal under

Section 94 of the Act. This order passed by the EAT was left

unchallenged by the respondent.

6. After about four years of the dismissal of the appeal

before the Tribunal as aforesaid, the respondent preferred

ILR 2004 KAR 37

revision before the Government invoking Section 130 of the Act,

which also came to be dismissed by an order dated 15.01.2013

as not maintainable. After the aforesaid two proceedings, it

transpires that the respondent had given a representation to

rejoin the duties, which was not acceded to by the petitioners-

Institution. Contending that she has been terminated from

service, filed another appeal before the Tribunal notwithstanding

dismissal of an earlier appeal filed by the respondent on the

same cause of action.

7. The petitioners filed detailed objections wherein it was

also contended that the appeal was not maintainable in the light

of the earlier order passed by the very same Tribunal declining

to entertain. This preliminary objection was rejected by the

Tribunal and ultimately, appeal came to be allowed on

07.07.2014 directing reinstatement of the respondent. The

order of the Tribunal reads as follows:

"ORDER The appeal Under Section 94 of Karnataka Education Act filed by appellant is hereby allowed with costs.

(2) Respondent Nos.1 & 2 are directed to reinstate/continue the appellant as Assistant Teacher in their school forthwith. Further, respondent Nos.1 & 2 are directed to pay salary and allowance to the appellant as admissible to a teacher in similar government school with effect from 01.06.2005 till date.

(3) Draw up award accordingly."

It is this order of the Tribunal that is called in question.

8. Heard Sri.Krupa Sagar Patil, learned counsel appearing

for petitioners and Sri. K. M. Prabhakarvardhan and

Sri.L.H.Shivareddy, learned counsels appearing for the

respondent.

9. Learned counsel appearing for the petitioners Sri. Krupa

Sagar Patil submits that the present appeal filed before the

Tribunal in EAT No.1/2013 was not even maintainable as

identical appeal was filed on the same cause of action in the year

2005, which came to be dismissed as not maintainable following

the Division Bench judgment of this Court (supra). In an appeal

that was not even maintainable, an order is passed by the

Tribunal directing reinstatement and payment of wages on par

with the Government School Teachers.

9.1. The learned counsel would submit that the

respondent at every stage of proceedings has been indolent in

agitating her rights, as the proceedings filed at every point in

time are hit by delay. He would further contend that the

direction given by the Tribunal to pay salary on par with

Government employees runs counter to the judgment of the

Apex Court in the case of Mrs.Satimbla Sharma and others

Vs. St.Paul's Senior Secondary School and others reported

in (2011)13 SCC 760.

9.2. Above all, the learned counsel would contend that

there is no termination of service of the respondent. It is a case

of voluntary abandonment of service by the respondent.

10. On the other hand, the learned counsel appearing for

the respondent would submit that the petitioners cannot be left

without any remedy as the proceedings initiated at the outset

were held to be not maintainable by this Court and a

subsequent proceeding before the Government was also held to

be not maintainable. It is only in the impugned proceedings, the

grievance of the respondent has been adjudicated and would

submit that there is no delay on part of the respondent in

approaching any Court at any given point in time. He would

further contend that the order passed by the Tribunal directing

reinstatement into service and payment of allowances on par

with the Government Teachers is in consonance with law, as the

Tribunal has found on its merit that the respondent was asked

not to join duty.

11. I have given my anxious consideration to the

submissions made by the learned counsel for the respective

parties and perused the material on record.

12. The afore-narrated facts not being in dispute is not

iterated. The respondent was appointed as Assistant Nursery

Teacher in the year 1998 and was confirmed on 01.06.1999.

The confirmation of the respondent is not in dispute. On

20.04.2005, the school issued a letter intending to shift the

respondent to an administrative section - as a Librarian with a

condition that the respondent should report to duties at the

place where she is posted within three days, failing which, it

would be construed that she has no intention to continue in the

services.

13. The respondent did not disobey the orders, but

represented to the school that she be continued as a Nursery

Teacher for which she was appointed and till consideration of

such representation, she did not report to duties as a Librarian.

On a particular morning, the respondent noticed that her name

in the attendance register was wiped out as a Nursery Teacher

and her request was not acceded to for continuing as a Nursery

Teacher.

14. Contending that the petitioners have violated the

service conditions of the respondent by transferring her to the

Library Section, filed an appeal before the Tribunal in EAT

No.1/2005. This was declined to be entertained by rejecting the

appeal on 30.07.2008 following the judgment of the Division

Bench of this Court in the case of M.S.RAMAIAH (supra). The

respondent was directed to file an appeal before the Government

under Section 131 of the Act. The reason for rejecting the

appeal by the Appellate Tribunal was that there was no order of

dismissal, removal or reduction in rank that could be called in

question before the Tribunal. This order was not challenged by

the respondent, but chose to avail of the remedy of approaching

the Government.

15. The respondent approached the Government invoking

Section 130 of the Act. This came to be dismissed by an order

dated 15.01.2013 on the ground that it is not maintainable.

Therefore, both these remedies, that the respondent availed of,

were turned down on the ground of maintainability. There was

no adjudication of the merit of the claim of the respondent.

16. After the aforesaid two proceedings, it appears, the

respondent gave a representation to rejoin duties, which was not

acceded to by the petitioners. Contending that the respondent

had been terminated from service, filed another appeal before

the Tribunal, notwithstanding the dismissal of an earlier appeal,

but now contending that she had been terminated from service

without an order being passed of such termination. The

Tribunal considered the appeal on its merit and allowed the

same with the direction (supra). It is this order that the

petitioners - Institution is aggrieved of.

17. The submission of the learned counsel appearing for

the petitioners that the Tribunal could not have entertained the

appeal despite the dismissal of the earlier appeal on the same

cause of action is unacceptable. The earlier appeal was not a

decision rendered on its merit. It is dismissed on account of

maintainability. The appeal now filed by the respondent was

contending that she has been terminated without any notice or

order of termination. This is the first adjudication that has been

made before any judicial or quasi-judicial fora with regard to the

merit of the claim of the respondent. The respondent on both

the earlier occasions had suffered orders only with regard to

maintainability and not on its merit. The rejection on account of

maintainability was following the judgment of the Division

Bench of this Court in the case of M.S.RAMAIAH (supra).

18. The subsequent judgment of a later Division Bench in

the case of N.DASEGOWDA V. THE SECRETARY,

DR.AMBEDKAR EDUCATION SOCIETY(R), GUBBI TALUK,

TUMKUR DISTRICT reported in ILR 2010 KAR 19 is what

assumes significance and covers the issue on all its fours. The

Division Bench in identical set of facts, has held as follows:

"17. The Act was enacted to provide for the planned development of educational institutions, inculcation of healthy educational practice, maintenance and improvement in the standards of education and better organisation, discipline and control over educational institutions in the State with a view to fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education. Chapter XIV of the Act is a self contained code in so far as the terms and conditions of service of employees in private educational institutions are concerned. It sets out under what circumstances any punishment could be imposed on an employee or a servant of an educational institution and prescribes an elaborate procedure before any such penalty is imposed.

Section 93 of the Act mandates that every order imposing a penalty on a employee shall be communicated to the employee in the prescribed manner and until it is done it is not a valid order and it has no effect whatsoever. It is based on past experience, where the employee of an educational institution was left in the lurch, by termination of his employment, without a written order being communicated to him, so that he is prevented from having any legal remedy. Therefore, the legislature wanted to communicate a strong message to such educational institutions that such illegal acts would not put an end to a legal and valid relationship of master and servant. It has no legal effect and their obligations to the employee continues. It is to act as a deterrent and nip at the bud such mischievous

tendencies this provision is made. That does not mean that in law when there is no termination order, he cannot avail the remedy provided under the Act. Therefore, the legislature has consciously avoided the word "written" order in the entire scheme of the Act, and a remedy is provided against both written or oral orders, in Section 94 of the Act. Section 94 provides a remedy to such aggrieved persons. A separate forum by way of an Educational Appellate Tribunal is constituted under the Act in every District to adjudicate the disputes between an employee of an educational institution and its management. Thus, the Act provides a comprehensive machinery for adjudication of disputes to an aggrieved employee of an educational institution.

18. When the law mandates that, unless an order imposing penalty is communicated to the employee it has no legal effect, it means the management cannot prevent such employee from attending to normal work. Notwithstanding an order of penalty is imposed, unless it is communicated, it is not operative and the employee continues to be in employment. Again it is based on the fundamental principle of natural justice. When the statute has taken so much pains to protect the interest of an employee and thereafter has provided a right of appeal against such action, the remedy provided under the Act cannot be denied to an employee, if the management chooses not to pass a written order imposing the penalty. That is why the legislature in its wisdom has not used the words 'order in writing' both in Section 93 as well as in Section 94. The order imposing penalty may be in writing or may not be in writing. Further the said order is to be communicated. Again it is not stated

that the communication should be in writing. If the order is not communicated such an order would not have any legal effect. In either event, it prevents an employee from doing his duties. But, by such an order, if the employee is prevented from attending to work, certainly the employee is aggrieved, and he has a right to challenge such illegal act. A statutory right of appeal is conferred on such aggrieved employee, under the Act. Such a statutory right of appeal cannot be defeated by not passing an order of termination, not communicating the same, thus preventing the employee from getting the relief provided under the Act. Any other interpretation to these provisions would negate the object and intent of these provisions. By not passing an order, not communicating such an order, the management cannot be given better rights. If without passing orders, without communicating, if the management were to keep such employees outside the institutions and appoint person in his place and if the employee is denied the relief of appeal provided under the statute, it would be a travesty of justice and the very purpose of enacting the Act would be defeated. That is why in the aforesaid Manjunath's case, when it had an occasion to consider a similar provision in the previous Act, namely Sections 7 and 8, it was clearly held that an appeal lies even against an order which is not in writing. That would meet the ends of justice. Therefore, the judgment rendered by the Learned Single Judge in the case of M. Jayamma v. Commissioner for Public Instructions and others (Supra) do not lay down good law and we hereby overrule the same.

19. In the instant case it is not in dispute that the appellant was appointed as a Hindi Teacher by

the respondent after following the procedure prescribed under law. It is also not in dispute that, on the ground that the appellant was unauthorisedly absent, three notices came to be issued and according to the respondents all of them were duly served on the appellant which is denied by the appellants. Therefore, according to the respondents it is a case of voluntary abandonment. Even in a case of voluntary abandonment, before the management could terminate the services of an employee on that ground, law mandates that an enquiry is to be initiated. It is only after enquiry, if the misconduct alleged namely unauthorised absence is proved, the management gets the jurisdiction to terminate the services of such an employee either by way of dismissal or by way of removal. When once such an order is passed, Section 93 mandates that it is to be communicated to the employee to be effective. If it is not communicated in writing, in law, there is no order of termination at all and against such an order whether in writing or oral, a statutory appeal under Section 94 is provided. When the respondent asserts, the appellant voluntarily abandoned the services and in his place they have appointed one Rajanna as Hindi Teacher and he is working for two years, it is a clear case of termination of service of the appellant and, therefore, Section 94(1) is attracted. The Tribunal was justified in entertaining the appeal and granting the relief and setting aside the order of dismissal as admittedly it was not preceded by any enquiry as prescribed under law. Therefore, the Learned Single Judge was not right in setting aside the order of the Educational Appellate Tribunal, which has rightly entertained the appeal and granted the relief to the appellant. In that view of the matter, the appellant is entitled

to succeed in this appeal. Hence, we pass the following order:--

(a) Writ appeal is allowed.

(b) The order of the Learned Single Judge is hereby set aside.

(c) The order of the Tribunal is restored.

(d) Parties to bear their own costs."

The afore-extracted judgment is what is followed by the

Tribunal. Therefore, no fault can be found with the order of the

Tribunal, impugned, insofar as the issue regarding

maintainability of the appeal.

19. The Tribunal by the order impugned has granted

omnibus directions and certain other reliefs apart from

reinstatement. The direction to reinstate the respondent comes

about by the Tribunal on the ground that the petitioners prior to

stopping the respondent from coming to work did not hold any

enquiry or did not even pass an order of termination. The

finding of the Tribunal is that the respondent was prevented

from discharging her duties by the petitioners. The relevant

finding of the Tribunal is as follows:

"14. Appellant has to prove that respondents have illegally prevented her from discharging her duty as an Assistant Teacher. Therefore, she is entitled for the reliefs as sought for in the appeal. It was argued on behalf of the respondents that as there is no order of removal, dismissal or reducing in rank, the appeal itself is not maintainable. On that point, this court has recorded finding as already stated. Above referred decision has to be considered again at this stage in order to see whether appellant was illegally prevented by the respondents from discharging her duties and, therefore, she is entitled for the reliefs as sought for in the appeal. In the above case, appellant N.Dasegowda was also prevented by the respondents from working as Hindi teacher in their institution and in his place, one Mr.Rajan was appointed. The reason was that the appellant had remained unauthorizedly absent inspite of three notices. When the appellant filed appeal u/sec.94 of the Karnataka Education Act, tribunal allowed the appeal and permitted him to resume the work and also directed the respondents to pay his salary. Said order was challenged before the Hon'ble High Court of Karnataka. The Hon'ble High Court allowed the writ petition and set-aide the order passed by the tribunal. Against that order appellant preferred writ appeal before the Hon'ble High Court which came to be allowed and the order passed by the tribunal was restored. The Hon'ble High Court has clearly held that "... ... ...in such circumstances, the Tribunal could entertain an application, by the mere fact that no order had been

passed and / or communicated by the Government or the authority concerned, it could not be said that the Tribunal had no jurisdiction to entertain the application and to redress the grievance. The Tribunal has jurisdiction to entertain the application in respect of the grievances of civil servants in all service matters even in the absence of communication of an order." The Hon'lbe High Court has considered the earlier decision in the case of P.E.Manjunath and held that "Preventing from discharging the duties is illegal and it would not put an end to a legal and valid relationship of master and servant. It has no legal effect and their obligations to the employee continues. It is to act as a deterrent and nip at the bud such mischievous tendencies this provision is made. That does not mean that in law when there is no termination order, he cannot avail the remedy provided under the Act." It is further observed that "If without passing orders, without communicating, if the management were to keep such employees outside the institutions and appoint person in his place and if the employee is denied the relief of appeal provided under the statute, it would be travesty of justice and the very purpose of enacting the Act would be defeated." Actually, this has taken place in the present case. The respondents without passing any orders and without communicating orders have kept the appellant outside the institution and now at the stage of evidence RW-1 has deposed that in place of the appellant they have appointed some other person. Therefore, the appeal u/sec.94 of the Karnataka Education Act is perfectly maintainable and in case it is held that appeal is not maintainable it would amount to travesty of justice and the very purpose of enacting the act would be defeated as held by the Hon'ble

High Court in the above case. It is also held that "Tribunal has justified in entertaining the appeal and granting the relief and setting aside the order of dismissal as admittedly it was not preceded by any enquiry as prescribed under law." In the present case also, respondents have not held any enquiry against the appellant before preventing her from discharging her duties. Therefore, this decision is aptly applicable to the present case on hand in all its strength and only on the basis of principles laid down in this decision of the Division Bench of our Hon'ble High Court I hold that appeal deserves to be allowed. In the above-referred case, Tribunal has also granted arrears of salary to the appellant along with his reinstatement in the same post. Therefore, the same principle has to be applied in the present case."

Therefore, the direction of the Tribunal insofar as it

pertains to reinstatement also cannot be found fault with.

20. The question now remains to be considered is whether

the Tribunal could have directed payment of salary and

allowance as admissible to a Teacher in similar Government

School with effect from 01.06.2005. This direction, in my

considered view, is superfluous, as the issue before the Tribunal

was with regard to prevention of the respondent from

discharging her duty. Though the respondent had prayed that

the salary of a Teacher be paid on par with similar Government

School with effect from 01.06.2005, this could not have been a

consequential relief as this was a separate cause of action that

the respondent ought to have agitated by initiation of separate

proceedings in a manner known to law.

21. Therefore, the direction of the Tribunal directing

respondents 1 and 2 - the petitioners herein to pay salary and

allowance to the respondent as admissible to a Teacher in

similar Government schools that too with effect from 01.06.2005

requires to be obliterated.

22. What remains to be considered at this juncture is with

regard to the consequential benefits in the light of the order of

reinstatement. The respondent has admittedly not rendered any

service from 01.06.2005 till the date of the order of the Tribunal

or till this date. It is close to 16 years that the respondent has

been out of employment, though has been agitating her rights in

the aforesaid proceedings. There has been admittedly delay by

the respondent in approaching the Government or the Tribunal

whenever liberty was granted to her to avail of such remedies in

law. Therefore, in the peculiar facts of this case, it would be

inappropriate to mulct the petitioners with arrears of salary to

be paid to the respondent.

23. The respondent has now attained the age of

superannuation as she was 56 years on the date of presenting

the subject writ petition and therefore, with the passage of time

is now aged 63 years. Therefore, there can be no order directing

reinstatement of the respondent in terms of the order of the

Tribunal. But the respondent would be entitled to continuity of

service only for the purpose of determination of terminal

benefits, as available in law and certain amount of arrears of

salary.

24. For the afore-said reasons, the following:

ORDER

(i) The Writ Petition is allowed in part.

(ii) The respondent is entitled to continuity of service

from the date she was refused employment till the

date of attaining the age of superannuation for

determination of all service benefits.

(iii) The direction to grant the respondent salary on par

with the Government employees issued by the

Tribunal stands quashed.

(iv) The respondent is at liberty to submit a

representation or approach any competent fora for

claim of such parity.

(v) The petitioner shall settle the terminal benefits of the

respondent, in accordance with law, within twelve

weeks from the date of receipt of a copy of this order.

(vi) The respondent is also entitled to 20% of the arrears

of salary from the date she was kept out of

employment till the date of superannuation.

(vii) The order of the Tribunal is modified to the aforesaid

extent.

Sd/-

JUDGE

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