Karnataka High Court

Vivekanad Education Society And ... vs Shivaji B And Ors on 11 January, 2022

Bench: R.Nataraj

                           1


           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 11TH DAY OF JANUARY, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

     WRIT PETITION NO.200952 OF 2021 (S-REG)

BETWEEN:

1.     VIVEKANAND EDUCATION SOCIETY
       (BENGALURU) CAMPUS J.N.
       POLYTECHNIC COLLEGE, THANA
       KUSHNOOR, TQ. KAMALNAGAR,
       DIST. BIDAR, THROUGH ITS
       GENERAL SECRETARY

2.     THE PRINCIPAL
       JAWAHARLAL NEHRU POLYTECHNIC
       THANA KUSHNOOR,
       TQ. KAMALNAGAR,
       DIST. BIDAR
                                          ...PETITIONERS
(BY SRI. R.V.NADAGOUDA, ADVOCATE)

AND:

1.     SHIVAJI B.,
       S/O KRISHNAJI,
       AGED ABOUT 55 YEARS,
       OCC: LECTURER IN SELECTION GRADE
       (NOW DISMISSED) IN JAWARHARLAL
       NEHRU POLYTECHNIC COLLEGE,
       THANAKUSHNOOR, TQ. KAMALNAGAR,
       DIST. BIDAR,
       NOW R/O H.NO.8-9-520
       OPP. GURUDWARA GATE,
       DEVI COLONY, BIDAR-585401.
                                 2


2.    THE STATE OF KARNATAKA
      THROUGH ITS PRINCIPAL SECRETARY
      DEPARTMENT OF HIGH EDUCATION
      M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,
      BENGALURU-560001.

3.    THE DIRECTOR
      TECHNICAL EDUCATION
      TANTRIKA SHIKSHANA BHAVANA
      PALACE ROAD, BENGALURU-560001.
                                                 ...RESPONDENTS

(BY SRI. P.VILASKUMAR, ADVOCATE FOR CAVEATOR
RESPONDENT NO.1;
SRI. SHIVAKUMAR R. TENGLI, ADVOCATE FOR RESPONDENT
NOs.2 AND 3)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ANNEXURE-D, VIZ, THE ORDER DATED 09.04.2021 PASSED BY
THE   PRINCIPAL   DISTRICT      AND    SESSIONS    JUDGE     AND
EDUCATION APPELLATE TRIBUNAL AT BIDAR, ALLOWING EAT
NO.01/2019 FILED BY THE RESPONDENT NO.1 HEREIN AND
SETTING   ASIDE     THE    ORDER      OF    DISMISSAL   OF   THE
RESPONDENT NO.1 IN ORDER DATED 19.03.2019 BEARING
NO.JNP/ENQUIRY/DISCIPLINARY/01/2019 VIDE ANNEXURE-A1
AND FOR ORDERING THE REINSTATEMENT WITH ALL BACK
WAGES,    CONTINUITY      OF   SERVICE     AND   CONSEQUENTIAL
BENEFITS AND ETC.


      THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR   ORDER   ON     05.10.2021       AND    COMING     ON   FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:
                                    3


                                ORDER

The petitioners have challenged the Order dated

09.04.2021 passed by the Principal District and Sessions

Judge, and Education Appellate Tribunal, Bidar in EAT

No.1/2019 by which an order of dismissal of the

respondent No.1 was set-aside and he was ordered to be

reinstated with back wages, continuity of service and

consequential benefits.

2. The respondent No.1 was appointed as a lecturer

at the petitioner No.2 on 28.05.1992. His appointment

was approved by the respondent Nos.2 and 3 herein. The

respondent No.1 was promoted as a Senior Grade Lecturer

on 27.5.2005 and as Selection Grade Lecturer on

30.10.2016. The respondent No.1 alleged that he was

instructed by the petitioners to obtain approval of

additional posts of lecturers. The respondent No.1 refused

the same as there was no supporting documents and he

was not willing to fabricate the documents at the behest of

the petitioner. Hence, he alleged that petitioners

developed vengeance against him which resulted in a

memo, charge sheet and a show-cause notice. He alleged

that though his salary from the year 2010-14 was

deposited in the account of the petitioner No.2 by the

respondent No.4, yet without any valid reason, the salary

was not released to the respondent No.1. When he

insisted to release the salary, the petitioner stepped up the

harassment by using other show-cause notices. He

alleged that the petitioners accused him of absenting from

duty and he alleged that the petitioners had deliberately

deleted his name from the biometric instrument. He

alleged that the petitioners relented to his notice and

called him to attend duties. He claimed that even after he

attending to duty, he was not allowed to discharge his

functions. Finally, on 14.12.2018 a charge memo was

issued accusing the respondent No.1 of un-authorizedly

absenting work for several days. Following this, the

respondent No.1 submitted a reply which was not

considered by the petitioner No.2 and therefore, a charge

memo was issued followed by an appointment of an

Enquiry Officer. The Enquiry Officer submitted his report

holding that the charges were proved. Based on the said

report, the respondent No.1 was dismissed from service in

terms of the order passed by the petitioner No.2 on

19.03.2019, apparently at the instructions of the petitioner

No.1.

3. The respondent No.1 challenged the order of

dismissal before the Educational Appeal Tribunal in EAT

No.1/2019. The Appellate Court framed the following

points for determination;

a) Whether the respondents 1 and 2 have established that the departmental enquiry conducted by them was in accordance with law ?

b) If so, whether the punishment in the form of dismissal of appellant from service is proportionate to the charge shown to have been proved ?

c) What order ?

4. The Appellate Court held that there is nothing on

record to indicate that the service rendered by the

respondent No.1 was not satisfactory. It held that the

voluminous documents produced by the petitioners did not

disclose that the conduct of the respondent No.1 till

December, 2017 was unbecoming of a teacher. It held

that the records disclosed that the respondent No.1 had

sought release of his salary in terms of the letter dated

04.03.2018 and the petitioner No.1 had endorsed on the

letter directing the petitioner No.2 to take a decision after

appropriate discussion with the management. The

Appellate Court held that from then on nothing was done,

which forced the respondent No.1 to submit another report

dated 09.08.2018. The Tribunal, after considering the

records, held that the respondent No.1 was targeted by

the petitioners for demanding them to release the salary

for the period 2012-14. It also held that there was

nothing to indicate that the respondent No.1 had absented

from work. It further held that the petitioners were bound

to obtain approval before passing any disciplinary order

under Rule 32 of the Karnataka Education Institutions

(Collegiate Education Rules), 2003 in view of the law laid

down by this Court in the case of Sri.B.K.Gopal Krishna

vs. The Managing Committee Samskrithi Vidyapeetha

and others [ILR 2009 KAR 3409]. Hence the Tribunal

by its Judgment dated 09.04.2021 held both the points

framed by it in the negative and consequently allowed the

appeal and set-aside the order of dismissal and directed

reinstatement of the respondent No.1 into service, pay

back all the back wages restore continuity of service and

consequential benefits.

5. Being aggrieved by the aforesaid order of the

Tribunal, the present writ petition is filed by the

petitioners.

6. The learned counsel for the petitioners contended

that the order of the Tribunal is opposed to the law laid

down by this Court in W.P.Nos.65494-65496/2009. He

contended that the respondent No.1 having made

unsubstantiated allegations against the petitioner No.2 was

bound to prove it in the manner known to law. However,

he failed to enter the witness box and establish the

allegations. However, the Tribunal without calling for

proof of such allegations, relied on the documents

furnished by the respondent No.1 and erroneously found

that the respondent No.1 was dismissed from service as a

retaliatory measure. He also contended that the Tribunal

had relied upon unmarked/un-exhibited documents while

allowing the appeal. Further he claimed that the Tribunal

ought to have drawn an adverse inference against

respondent No.1 for not entering into the witness box. He

contended that when once the Tribunal held that the

enquiry was not fair and proper, it should have called

upon it to prove the allegations. He contended that the

petitioner No.2 was a technical institute and therefore, was

not bound by Karnataka Education Act, 1983 and

therefore, the order of dismissal did not warrant any

approval from the Authorities of the State. The learned

counsel for the petitioners contended that the respondent

No.1 has leveled serious allegations against the petitioners

claiming that he was targeted by the petitioners. He also

contended that the Karnataka Education Act, 1983 is not

applicable to the petitioners as they are governed by the

All India Council for Technical Education Act, 1987. He

submitted the procedure prescribed for consideration of

the appeals under the Karnataka Education Act, 1983 was

not complied by the Tribunal.

7. Per contra, learned counsel for the respondent

No.1 submitted that there is no provision under the AICTE

Act for re-dressal of grievance against an order of

dismissal and that this Court had held when there is no

provision under any Act for re-dressal of grievance, then

an appeal under Section 94 of the Education Act, 1983 is

maintainable in the case of D. Jeevagan Vs. Principal

MEI Polytechnic and others [2006 (4) KCCR 2387].

He contended that this court in Dr.B.N.Vadiraja Vs.

Dr.Mumtaz Ahmed Khan [2000(6) KLJ 474] held that

Section 1(3)(iv)(a) and Section 2(27) includes medical

education also. He contended that Division Bench of this

court in Writ Appeal No.10230/2009 held that violation of a

Government Order would render a dismissal order void ab

initio. He submitted that when the Karnataka Education

Act, 1983 is applicable to Polytechnic Colleges, the

contention that the petitioner No.2 is governed by AICTE

Act is not justified. He justified the grant of full back

wages by relying upon the Judgment of the Hon'ble

Supreme Court in Deepali Gundu Surwase vs. Kranti

Junior Adhypak Mahavidyalaya (D.Ed.) and others in

Civil Appeal No.6767/2013. He further contended that

the petitioner No.2 was harassing him over the release of

salary and that respondent no.1 had not absented from

work. He also contended that the Departmental Enquiry

was initiated against him only after he issued legal notice

dated 13.12.2018 demanding the release of his salary. He

brought to the notice of the Court an interim order passed

by the Principal Secretary, Higher Education in a revision

petition filed under Section 113 of the Karnataka Education

Act, 1983 in Revision Petition No.16/2009, where the

Departmental Authority had directed the petitioner Nos.1

and 2 to release the salary and the arrears and permit him

to work. He contended that there was no reference about

his absenteeism from work. He finally contended that his

appointment was approved by the competent authority

and therefore, the petitioners were bound to take approval

for his dismissal as provided under Rule 32 of the

Karnataka Education Institutions (Collegiate Education)

Rules, 2003.

8. I have considered the submissions made by the

learned counsel for the parties.

9. Since the jurisdiction of the Tribunal to entertain

the appeal is questioned, it is necessary to consider

whether the provisions of the Karnataka Education Act,

1983 and the Rules framed there under are applicable to

the case or not. Section 1(3) of the Karnataka Education

Act, 1983 excludes the application of the Act to institutes

which are governed under the AICTE Act, 1987. Technical

Education is defined under Section 2(37) of the Karnataka

Education Act, 1983 which reads as follows;

"(37) "technical education" means any course of study in Engineering, Technology, Architecture, Ceramics, Industrial Training, Mining, or in any other subject, as the State Government may, by notification, specify"

10. Therefore, the Karnataka Education Act, 1983

applies to all institutions except those which are

specifically excluded and in the present case, the petitioner

No.2 is a polytechnic college, which is a private education

institute and was therefore governed by the Rules framed

under the Karnataka Private Educational Institutions

(Discipline and Control) Rules, 1978, which were saved by

Section 146 of the Karnataka Education Act, 1983. The

Karnataka Education Institutions (Collegiate Education

Rules), 2003 prescribe a procedure for imposing major

penalties in Rule 38, which reads as follows;

"38. Procedure for imposing major penalties:- (1) No order imposing any of the penalties specified in clauses (vi) to (x) of Rule 32 shall be made except after an inquiry is held, as far as may be in the manner provided in this rule.

(2) Wherever the management is of the opinion that where there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior or breach of any provision of the code of conduct specified in these rules against an employee, it may appoint an Enquiry Committee consisting of more than one or more persons not having any dealings of whatever nature with the management or any member thereof or with any employee in the institution or elsewhere. When an Enquiry Committee consists of two or more members, the quorum shall be two.

(3) Where an order of suspension has been made, the Enquiry Committee shall, before proceeding with the enquiry record in writing, whether the said suspension is "prima facie" in accordance with sub-rule(1) of Rule 34.

(4) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. Such charges, together with a statement of allegations on which they are based shall be communicated in writing to the employee and they shall be required to submit within such time as may be specified by the Enquiry Committee, a written statement of his defense and also to state whether he desires to be heard in person.

(5) The employee shall for the purpose of preparing defense be permitted to inspect and take extracts from such records as he may specify:

Provided that permission may be refused if, for reasons to be recorded in writing in the opinion of the Enquiry Committee such records are not relevant for the purpose and it is against the interests of the institution to allow his access thereto.

(6) On receipt of the statement of defense in writing by the employee or if no such statement is received within the time specified, the Enquiry Committee shall proceed with the enquiry.

(7) The Disciplinary Authority may nominate any person present in its case before the Enquiry Committee. The employee may present his case with the assistance of any other person approved by the Enquiry Committee, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority to present its case as a legal practitioner or the Enquiry Committee having regard to the circumstances of the case so permits.

(8) The Enquiry Committee shall, in the course of the enquiry consider such documentary evidence and take such other evidence as may be relevant or material in regard to the charges. The employee shall be entitled to cross-examine witnesses examined in support of the charge and to give evidence in person. The person presenting the case in support of the charges shall be entitled to cross-examine the employee if he opts to become a witness for himself in the enquiry and the witnesses examined in his defense. If the Enquiry Committee declines to examine any witness on the ground, that his evidence is not relevant of material, it shall record its reasons in writing.

(9) At the conclusion of the enquiry, the Enquiry Committee shall prepare a report of the enquiry, record its findings on each of the charges together with the reason therefor. If in the opinion of the Enquiry Committee, the proceedings of the enquiry establish charges different from those framed, it may record findings on such charges:

Provided that findings on such charges shall not be recorded unless the employee has had an opportunity of defending himself against them:-

(10) The record of enquiry shall include-

(i) the charges framed against the employee and the statement of allegations furnished to him;

(ii) his written statement of defense, if any;

(iii) the oral evidence taken in the course of the enquiry;

(iv) the documentary evidence considered in the course of the enquiry;

(v) the orders, if any, made by the Disciplinary Authority and the Enquiry Committee in regard to the enquiry;

(vi) a report setting out the finding on each charge and the reasons thereof; and

(vii) any suggestion of the Enquiry Committee, if it considers necessary for the imposition of any penalty.

(11) The Board of Management shall consider the report of enquiry and record its findings on each charges.

(12) If the Board of Management having regard to its findings on the charges is of the opinion that any of the penalties specified in clauses (vi) to (x) of Rule 31 should be imposed, it shall, furnish to the employee, a copy of the report of Enquiry Committee and a statement of its findings, if any.

(13) The Board of Management shall consider the representation, if any, made by the employee in response to the notice and determine what penalty, if any, should be imposed on the employee and pass appropriate orders in the case.

(14) If the Board of Management having regard to its findings is of the opinion that any of the penalties specified in clauses (i) to (v) shall be imposed, it shall pass appropriate orders in the case.

(15) Orders passed by the Board of Management under sub-rule (14) shall be communicated to the employee. Any appeal against any of the penalties imposed by the Disciplinary Authority shall lie to the Educational Appellate Tribunal."

11. The All India Council Technical Education Act,

1987 deals with Course of study in Engineering,

Technology, Architecture, Ceramics, Industrial Training,

Mining or any other subject as the State Government may

by notification specify and therefore, does not take into its

sweep a polytechnic institute. Therefore, the Karnataka

Education Act, 1983 is applicable to the facts of this case.

Therefore, the order passed by the respondent No.1

without obtaining approval from the Competent Authority

was bad in the eye of law.

12. Even, otherwise, the Tribunal has considered the

facts of the case in great detail and has held that the