Karnataka High Court
The Principal Secretary vs Sri Dr N Donappa on 1 October, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
WRIT APPEAL NO.357 OF 2023
AND
WRIT APPEAL NO.1277 OF 2023
IN WA. NO. 357 OF 2023
BETWEEN
THE PRINCIPAL SECRETARY
DEPT. OF EDUCATION,
HIGHER EDUCATION,
VIDHANA SOUDHA,
DR. AMBEDKAR ROAD,
BENGALURU-560 001.
...APPELLANT
(BY SRI. B.RAVINDRANATH, AGA)
AND
1. SRI. DR. N. DONAPPA
S/O NANJUNDAPPA
AGED ABOUT 71 YEARS,
ASSOCIATE PROFESSOR
DEPARTMENT OF CHEMISTRY,
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MAHARANI LAKSHMI AMMANI
COLLEGE FOR WOMEN,
KALABURAGI-560 012.
2. THE REGISTRAR (EVALUATION)
BENGALORE UNIVERSITY
BENGALURU-560 001.
3. THE SYNDICATE
BENGALURU UNIVERSITY
BENGALURU-560 001.
4. SRI. S. RAMAKRISHNA
ENQUIRY AND VIGILANCE OFFICER,
BENGALORE UNIVERSITY,
BENGALURU-560 001.
5. MAHARANI LAKSHMI AMMANNI
COLLEGE FOR WOMEN,
IISC POST, MALLESHWARAM,
BENGALURU-560 012.
REPTD. BY THE PRINCIPAL.
6. MAHARANI LAKSHMI AMMANNI COLLEGE
FOR WOMEN TRUST (REGD)
II SC POST, MALLESHWARAM
BENGALURU-560 012.
REPRESENTED BY THE CHAIRMAN
...RESPONDENTS
(BY SRI. SANKET M YENAGI, ADVOCATE FOR R1'
SRI. RANGA, SENIOR COUNSEL FOR
SMT. SUMANA NAGANAND, ADVOCATE FOR R5 & R6;
SRI. SIDDHARTHA P DESAI, ADVOCATE FOR R2;
R3 & R4 - SERVED AND UNREPRESENTED)
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IN WA.NO.1277 OF 2023
BETWEEN
1. STATE OF KARNATAKA
DEPARTMENT OF HIGHER EDUCATION,
VIDHANA SOUDHA,
DR.AMBEDKAR ROAD,
BENGALURU-560 001,
REPRESENTED BY ITS
PRINCIPAL SECRETARY
2. THE COMMISISONER,
DEPARTMENT OF COLLEGIATE EDUCATION,
GOVERNMENT OF KARNATAKA,
SESHADRI ROAD,
BENGALURU-560 001
3. THE DIRECTOR,
DEPARTMENT OF COLLEGIATE EDUCATION,
GOVERNMENT OF KARNATAKA,
SESHADRI ROAD, BENGALURU
4. THE JOINT DIRECTOR,
DEPARTMENT OF COLLEGIATE EDUCATION,
GOVERNMENT OF KARNATAKA,
SESHADRI ROAD,
BENGALURU-560 001.
...APPELLANTS
(BY SRI. B. RAVINDRANATH, AGA)
AND
1. MAHARANI LAKSHMI AMMANI,
COLLEGE TRUST (REGE)
SCINENCE P.O., MALLESWARAM,
BENGALURU-560 012,
REPRESENTED BY ITS DIRECTOR
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AND EX OFFICIO SECRETARY
DR.T.L.SHANTA.
2. MAHARANI LAKSHMI AMMANNI
COLLEGE FOR WOMEN,
SCIENCE P.O., MALLESHWARAM,
BENGALURU-560 012.
REPTD. BY ITS DIRECTOR AND
EX-OFFICIO SECRETARY,
DR. T.L.SHANTHA.
3. BANGALORE UNIVERSITY
JNANA BHARATHI,
BENGALURU - 560 056.
REPRESENTED BY ITS
VICE CHANCELLOR
4. DR. N. DONAPPA
S/O NANJUNDAPPA
AGED ABOUT 71 YEARS,
AGRAHARA DASARAHALLI
MAGADI ROAD
BENGALURU - 560 079.
.....RESPONDENTS
(BY SRI. SRI. SANKET M.YENAGI, ADVOCATE FOR R4;
SRI. RANGA, SENIOR COUNSEL FOR
SMT. SUMANA NAGANAND, ADVOCATE FOR R1 & R2;
R3 - SERVED AND UNREPRESENTED)
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 07/03/2022 IN WP NOS. 11913/2011 C/W
31891/2011 PASSED BY THE LEARNED SINGLE JUDGE.
THESE WRIT APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT
THIS DAY, RAJESH RAI.K, J., DELIVERED THE FOLLOWING:
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CORAM: HON'BLE MR JUSTICE V KAMESWAR RAO
and
HON'BLE MR JUSTICE RAJESH RAI K
CAV ORDER
(PER: HON'BLE MR JUSTICE RAJESH RAI K)
This intra Court appeal has been filed challenging the order
dated 07.03.2022 passed by the learned Single Judge in
W.P.Nos.11913-914/2011 c/w W.P.Nos.31891-892/2011,
whereby the learned Single Judge disposed of the
W.P.Nos.11913-914/2011 since the same become infructuous
and partly allowed the W.P.Nos.31891-892/2011, which reads as
under:
"ORDER
1. W.P.Nos.11913-11914/2011 stand disposed
of since the prayer made in the writ petition
has become infructuous.
2. W.P.Nos.31891-31892/2011 is partly
allowed.
3. The Department of Collegiate Education for
Department of Higher Education,
Government of Karnataka is hereby directed
to pay a sum of Rs.7,78,566/- (which is the
back wages/arrears of salary excluding
Rs.2,31,626/- which is already been paid by
the Management) to the respondent No.4 as
full and final settlement.
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4. The said sum shall be paid by the State
Government as expeditiously as possible
and at any rate within a period of two
months from the date of receipt of certified
copy of this order.
Ordered accordingly."
Though the State has preferred two appeals against the
order passed by the learned Single Judge as above, the appeal
preferred by State in W.A.No.357/2023 against the order passed
in W.P.Nos.11913-914/2011 does not arise for consideration
since the same has been disposed of as having become
infructuous. Hence, factually the State is aggrieved the order
passed in W.P.Nos.31891-892/2011 which challenged in
W.A.No.1277/2023. Hence, W.A.No.1277/2023 requires to be
considered and accordingly, the parties are referred as per their
ranking in W.A.No.1277/2023.
2. The facts apposite for consideration as borne out
from the pleading are as follows:
The first respondent is a public Charitable Trust and
engaged in the activity of imparting Collegiate Education to
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Women, and is one of the Institutions set up in North Bangalore
to cater exclusively for women's education. The Trust runs the
second respondent College. The College offers Pre-University,
Graduation and Post Graduation courses. It is duly affiliated to
the Bangalore University. The College receives aid from the
Government of Karnataka in regard to Teachers' remuneration.
The College also receives special grants from UGC.
3. The fourth respondent one Dr.Donappa was an
Associate Professor, Department of Chemistry in the second
respondent College. He was appointed as the Chief Custodian of
B.Sc. V Semester and Annual Scheme for Packeting & Tabulation
for November-December 2008, Examination of Bangalore
University. It appears that there were some complaints against
him in regard to the discharge of above mentioned duties,
resulting in an enquiry being conducted by the third respondent-
Bangalore University through Enquiry & Vigilance Officer. The
enquiry report dated 31.05.2010 was accepted at the Special
Syndicate Meeting of the third respondent held on 30.07.2010.
In pursuance of the same, the Registrar (Evaluation), Bangalore
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University, vide order dated 17.08.2010, was pleased to debar
fourth respondent for Custodian/Valuer and in any other
examination work for five years in Bangalore University.
4. Pursuant to the same, the Registrar (Evaluation),
Bangalore University addressed a letter to the first respondent
dated 25.08.2010 stating that, based on the recommendation of
the Enquiry and Vigilance Officer, action should be initiated
against the fourth respondent for the irregularities purported by
him and he should not be allowed to participate in any of the
examination work in the College. The Registrar (Evaluation)
requested the first respondent to take immediate disciplinary
action against the fourth respondent and report the matter to
the University.
5. Accordingly, based on the enquiry report dated
31.05.2010, the Board of Trustees of the first respondent
Boanimously resolved on 28.09.2010 to issue a show cause
notice to the fourth Respondent. Thereby, a show cause notice
was issued to him on 29.09.2010, and in turn, he submitted a
reply dated 06.10.2010. The Board of Trustees of the first
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respondent considered the matter on 12.10.2010 and took a
decision to suspend the fourth respondent and issued an order of
suspension on 12.10.2010. Subsequently, the management
decided to issue one more show cause notice to the fourth
respondent calling upon him to show cause as to why
appropriate punishment should not be imposed on him on the
basis of the enquiry report dated 31.05.2010. However, the
fourth respondent submitted a reply dated 03.11.2010 for the
said show cause notice. The Board of Trustees of the first
respondent, at their meeting held on 06.11.2010, considered the
entire matter in the light of the replies sent by the fourth
Respondent and confirmed the order of dismissal of the fourth
respondent.
6. Aggrieved by the same, the fourth respondent
challenged the resolution dated 30.07.2010 and the order dated
17.08.2010 passed by the third respondent before this Court by
filing W.P.No.34564/2010. The first and second respondents filed
their statement of objections to the said writ petition by brining
into the knowledge of the Court that the fourth respondent had
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been dismissed from service. Subsequently, an application to
amend the memorandum of writ petition in W.P.No.34564/2010
to incorporate a prayer challenging the order of dismissal came
to be allowed.
7. During the pendency of the said writ petition,
appellant No.2-The Commissioner for Collegiate Education, by
letter dated 17.01.2011, informed the first respondent that prior
approval as per proviso to Rule 32 of the Karnataka Educational
Institutions (Collegiate Education) Rules, 2003 (hereinafter
referred to as 'Rules 2003' for short) was not obtained before
dismissing the fourth Respondent from service. Accordingly, a
memo dated 01.03.2011 has been filed by the first and second
respondents before the learned Single Judge in
W.P.No.34564/2010 praying to permit the first respondent to
initiate fresh disciplinary proceedings against the fourth
Respondent in accordance with law. Accordingly, the said writ
petition came to be disposed of by granting such liberty.
Subsequently, the first and second respondents have initiated
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fresh disciplinary proceedings against the fourth respondent and
issued a charge sheet dated 26.04.2011.
8. Additionally, the first and second respondents made
representations dated 26.04.2011 and 28.05.2011 to the
Commissioner of Collegiate Education i.e., appellant No.2 herein
seeking approval to suspend the fourth respondent pending
disciplinary enquiry. In view of the inaction on the part of the
Department of Collegiate Education, the first and second
respondents have once again approached this Court by filing
W.P.No.21595/2011, seeking a direction against the appellants-
authorities to consider the above dated representations and
convey their decision expeditiously. The said writ petition was
allowed vide order dated 04.07.2011 and learned Single Judge
directed appellant No.2 to consider the representations within a
period of four weeks' from the date of receipt of certified copy of
the order. However, appellant Nos.2 and 3 have failed to comply
the order of the learned Single Judge till the superannuation of
the fourth respondent.
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9. In the meanwhile, the fourth respondent filed
W.P.No.11913-914/2011 before this Court seeking various
reliefs. He also filed an application bearing Misc.W.No.8281/2011
with a prayer to direct the first respondent to pay all the arrears
of salary and other consequential benefits arising thereon from
12.10.2010 till the date of realization. However, due to pendency
of the disciplinary proceedings against fourth respondent, the
second respondent had not raised a bill in relation to payment of
his salary for the period between 13.10.2010 and July 2011.
Hence, the first respondent addressed a letter dated 05.08.2011
to appellant Nos.2 and 3 in respect of payment of the fourth
respondent's salary and raised a bill for the same. However,
appellant No.3 communicated the first respondent vide letter
dated 11.08.2011 stating that the Department was not liable to
pay the arrears of salary of the fourth respondent as his
dismissal was without prior approval, as such the first and
second respondents are liable to pay the same.
10. Aggrieved by the said Communication, the first and
second respondents have filed W.P.Nos.31891-892/2011 before
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this Court to quash the said Communication dated 11.08.2011
and also to direct appellant Nos.2 and 3 to pay all the arrears of
salary of the fourth respondent. Hence, both the writ petitions
filed by the first and second respondents and the fourth
respondent as stated above are clubbed together and heard by
the learned Single Judge. However, by that time, the dismissal
of the fourth respondent was withdrawn on 01.03.2011 in
W.P.No.34564/2010. As such, the writ petition filed by him in
W.P.Nos.11913-914/2011 disposed of as having become
infructuous and the writ petition filed by the first and second
respondents in W.P.Nos.31891-892/2011 is partly allowed as
stated supra. The said order is challenged in this intra Court
appeal by the State.
11. We have heard Sri B. Ravindranath, learned AGA for
the appellant so also Sri Sanket M. Yenagi for respondent No.4
and Sri S.Sriranga, learned Senior counsel for respondent Nos.1
and 2. Though respondent No.3 served, remained
unrepresented.
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12. Learned AGA for the appellants primarily would
contend that the order under appeal directing the appellants to
pay a sum of Rs.7,78,566/- on the ground that the College
Management proceed to suspend respondent No.4 as per the
direction of Bangalore University and the management was
proceeded to follow the directions issued by the third respondent
is against proviso to Rule 32 and Rule 34 (1) of Rules, 2003,
especially when a specific provision is made under proviso of
Rule 32 to obtain prior approval for suspension and dismissal by
the appellant/Appellate authority. According to the learned AGA,
there is a clear violation of the said rules by the first and second
respondent and as such, as per Rule 39, the Government shall
not be liable to pay salary/pension and arrears and such arrears
of salary and pension shall be paid by Management only.
13. Learned AGA would further contend that the learned
Single Judge also broadly accepted the position of law,
nevertheless, allowed the writ petition in part observing that the
third respondent has placed in a peculiar situation wherein the
action was initiated by the first and second respondents on the
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behest of the third respondent, to which the institution was
affiliated. The said reasoning of the learned Single Judge does
not hold good either on law or on facts for the reason that there
can be no estoppels against law. If the law requires something
to be done in a particular manner, then it must be done in that
manner, and if it not done in that manner, then it would have no
existence in the eye of law. To substantiate his contention, he
relied on the judgment of Hon'ble Apex Court in the case of
Krishna Rai (Dead) through LRs and Others vs. Banaras
Hindu University through Registrar and Others in Civil
Appeals Nos.4578-4580/2022 (Arising out of S.L.P.(C)
Nos.31186-88/2016).
14. He would also contend that Rules, 2003 does not
provide for post facto permission to suspend any employee. By
placing reliance on the Communication from the second
respondent to the fourth appellant dated
14.01.2011/17.11.2011, learned AGA would contend that the
second respondent categorically stated in the said
Communication that the fourth respondent had been dismissed
16
from his service on the basis of enquiry report of the third
respondent for conducting irregularities in his duty relating to
examination conducted by the third respondent. However, the
management being the Disciplinary Authority without obtaining
prior permission from the Department have dismissed the fourth
respondent. Further, even after the above Communication, the
first and second respondents failed to reinstate the fourth
respondent till his superannuation. As such, the first and second
respondents are solely responsible to pay the pension and
arrears of the fourth respondent as per Rule 39 of Rules, 2003,
hence, the appellant-authority rightly issued the Endorsement
dated 11.08.2011 to the second respondent. However, the
learned Single Judge without properly appreciating those aspects
allowed the writ petition. Accordingly, he prays to allow the
appeal.
15. Per contra, learned Senior counsel appearing for the
first and second respondent submitted that, on allegation of
malpractice made against the fourth respondent, the third
respondent-University conducted an enquiry on 31.05.2010 as
17
requested by the first and second respondents to take action
against the fourth respondent. In the meanwhile, the third
respondent-University issued a letter dated 20.08.2010
intimating the findings of enquiry to appellant Nos.2 and 3 and
requested them to take disciplinary action against the fourth
respondent, in turn, appellant Nos.2 and 3 issued a
Communication dated 17.09.2010 to the first respondent
granting permission to the first and second respondents to take
action against the fourth respondent and thereafter, intimated
appellant Nos.2 and 3 as regards the action taken by the
College. Accordingly, the first and second respondents have
taken action against the fourth respondent and suspended him
on 12.10.2010. Thereafter, the fourth respondent was dismissed
from service on 06.11.2010.
16. By emphasising the Communication dated
20.08.2010 by the Bangalore University i.e., the third
respondent to appellant No.3, the learned Senior counsel would
contend that, in connection to the malpractice by the fourth
respondent, the above communication was sent to appellant
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No.3 as early on 20.08.2010. Further, for the same, the first
respondent received a reply from appellant No.3 on 17.09.2010
that the administrative Board is the Appointing and Disciplinary
Authority as per Rules 2003; the disciplinary action can be taken
against the fourth respondent by the first and second
respondents as per law and such action is to be reported to
appellant No.3 and the third respondent-University. Thereafter,
the action was taken by the first and second respondents which
was challenged in the writ petition by the fourth respondent and
based on the order of learned Single Judge, he was re-appointed
and to that effect, Communications dated 06.09.2011 and
09.09.2011 were sent to the appellants by the first and second
respondents. Such being the scenario, the first and second
respondents are complied the proviso to Rule 32 and Rule 34(1)
of Rules 2003. Accordingly, he prays to dismiss the appeal.
17. Learned counsel for the fourth respondent would
submit that, in the writ petition filed by the first and second
respondents in W.P.Nos.21595-21596/2011 against the
appellants herein, they have categorically admitted in paragraph
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No.2 of the order dated 04.07.2011 that they have filed the said
writ petition seeking sanction to place the fourth respondent
under suspension for which, prior permission is not accorded by
them from appellant Nos.2 and 3. It is further admitted in the
said order that, without obtaining prior sanction of the
appellants, they had suspended the fourth respondent and the
same was set-aside in W.P.No.34564/2010 and thereafter, to
rectify the said mistake, they sent a Communication to the
appellants herein and the same was not considered by the
appellants. Such being the position, it is clear that, the first and
second respondents have not obtained prior sanction from
appellant Nos.2 and 3 for dismissal of the fourth respondent.
Hence, they are responsible to pay the arrears/salary as
contemplated in Rule 39 of Rules, 2003. Accordingly, he prays to
allow the appeal.
18. Having heard the learned counsel for the parties, the
only point that would arise for our consideration is:
"Whether the order passed by the learned
Single Judge in W.P.Nos.31891-892/2011
requires any interference by this Court?"
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19. Before delving into the merits of the case, it would
be appropriate to refer proviso to Rule 32, Rule 34 (1) and Rule
39, which reads as under:
"32. Nature of Penalties: x x x x x x x
(i) XXXXXXX
(ii) XXXXXXX
(iii) XXXXXXX
(iv) XXXXXXX
(v) XXXXXXX
(vi) XXXXXXX
(vii) XXXXXXX
(viii) X X X X X X X
(ix) XXXXXXX
(x) XXXXXXX
Provided further that every order of
private management regarding suspension,
dismissal or removal from service, etc., shall be
issued after prior approval by the Competent
Authority which approved the appointment.
34. Suspension :(1) The Appointing
Authority may place an employee under
suspension under the following circumstances
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and conditions after obtaining the necessary
permission from the controlling authority failing
which the management shall be held responsible
for all the consequences which may arise in
future:-
39. Non-payment of salary arrears in
certain cases : If the orders of the Disciplinary
Authority imposing penalty of dismissal or
removal or compulsory retirement or reduction
in rank etc., is subsequently set aside by the
Court or Appellate Authority, the Government
shall not be liable to pay salary and pension
arrears and such arrears of salary and pension
shall be paid by the management only. In case
the management takes disciplinary action
against any employee without obtaining the
approval of the Controlling Authority of the
department of collegiate education or contrary
to these rules the management will be held
solely responsible for all the consequences that
may arise due to non-compliance of rules."
20. Admittedly, the second respondent was affiliated to
Bangalore University and is an Aided Institution, which managed
by the first respondent and affiliated to the third respondent and
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controlled by appellant Nos.2 to 4. As per proviso to Rule 32 as
above, any nature of penalties imposed on the employees as per
Rule 32, every order of private management regarding
suspension, dismissal or removal from service etc., shall be
issued after prior approval by the Competent Authority, which
approved the appointment. Further, Rule 34 depicts that, in case
of suspension of the employee, the appointing authority must
obtain necessary permission from the controlling authority failing
which, the management shall be held responsible for all the
consequence which may arise in future. As such, it is quite clear
that, as per proviso to Rule 32 and Rule 34, the first and second
respondents are duty bound to obtain prior sanction from the
appellants before taking any disciplinary action against its
employee. In the case on hand, admittedly, the first and second
respondents have failed to take any such permission/sanction
from the appellants before the dismissal of fourth respondent. As
rightly contended by the learned AGA and learned counsel for
the fourth respondent, the first and second respondents have
categorically admitted in W.P.Nos.21595-21596/2011 that they
have failed to obtain prior sanction from the appellants before
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dismissal of fourth respondent. Hence, it is their conceded case
that they have failed to comply the proviso to Rule 32 and 34(1)
of Rules, 2003.
21. Nevertheless, the Communication by the first and
second respondents dated 20.08.2010 to appellant No.3 seeking
sanction about the action taken against fourth respondent
clarifies that the same was sent post passing of the resolution
dated 30.07.2010. In the subsequent Communication dated
17.09.2010 sent by appellant No.3 to the first respondent, it is
stated that, the first and second respondents are at liberty to
take action against the fourth respondent as per rules, however,
before such communication, the dismissal order was already
passed by the first and second respondents on 30.07.2010.
Later, appellant No.2 also sent a Communication dated
14.01.2011/17.01.2011 to the Joint Director of Collegiate
Education and to the first respondent that the dismissal of the
fourth respondent from service based on enquiry report of the
third respondent without obtaining prior permission from the
Department and such action is not accordance with Rules and
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the Department is not inclined to grant permission in respect of
dismissal of service of the fourth respondent. Even after such
communication also, the first and second respondents failed to
reinstate the fourth respondent. Hence, it is abundantly clear
that the first and second respondents have failed to obtain
necessary prior sanction from the appellant-authority for the
dismissal of fourth respondent In that view of the matter, as
rightly contended by the learned Additional Government
Advocate, the Rule 39 of Rules 2003 makes it clear that, if the
management takes disciplinary action against any employee
without obtaining the approval of Controlling Authority of the
Department of Collegiate Education are contrary to the Rules
2003, the management will be held solely responsible for all the
consequence that may arise due to non-compliance of Rules.
Such being the position of law, we are afraid to accept the
contention of learned counsel for the first and second
respondents and we are of the view that the order passed by the
learned Single Judge challenged in this appeal requires to be
interfered by this Court.
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22. Accordingly, we answer the point raised above in the
affirmative and proceed to pass the following:
ORDER
i) Writ Appeal No.357/2023 filed by the
State against the order passed in
W.P.Nos.11913-914/2011 does not
survive for consideration since the said
writ petition has been disposed of as
having become infructuous.
ii) Writ Appeal No.1277/2023 filed by the
State is allowed.
iii) Consequently, the order dated 07.03.2022
passed by the learned Single Judge in
W.P.Nos.31891-892/2011 is set-aside.
iv) The first and second respondents
(in W.A.No.1277/2023) are directed to pay
a sum of Rs.7,78,566/- (which is the back
wages/arrears of salary excluding
Rs.2,31,626/- which is already been paid
by the Management) to the fourth
respondent as full and final settlement.
v) The said sum shall be paid by the first and
second respondents to the fourth
respondent within a period of two months
from the date of receipt of certified copy of
this order.
In view of disposal of the appeals, I.A.Nos.1 and 2 of 2023
stand disposed of.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV
