Allowed

Sri Prasanna Kumar K M v. M/S Vokkaligara Sangha

Karnataka HC20 Dec 2023WP/3551/2023

Case brief

AI extract

What is this about?

The High Court set aside the Tribunal's order dismissing a termination appeal and quashed the subsequent termination of a confirmed Assistant Professor. The Court held that confirmed employees cannot be summarily dismissed without an enquiry under Section 92 of the Karnataka Education Act, 1983, especially when termination was merely a retaliatory measure for filing an appeal. The petitioner was d

What did the court decide?

Impugned orders set aside; Respondents directed to reinstate Petitioner forthwith with continuity of service, back wages, and consequential benefits within two months.

Sri Prasanna Kumar K M Vs M/S Vokkaligara… — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - NC: 2023:KHC:46607 WP No. 3551 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA WRIT PETITION NO. 3551 OF 2023 (S-RES)

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BETWEEN:

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SRI.PRASANNA KUMAR.K.M., S/O MAHADEVA, AGED ABOUT 31 YEARS, R/AT No.422, NGEF LAYOUT, MALLATHALLI, BENGALURU-560 056.

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…PETITIONER

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(BY SRI. NITHIN GOWDA.K.C., FOR SRI.PRASANNA KUMAR.P., ADVOCATE)

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AND:

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M/s VOKKALIGARA SANGHA, (REGISTERED ON 5-1906-1907) REPRESENTED BY ITS GENERAL SECRETARY, No.148, NADAPRABHU KEMEGOWDA BHAVANA, K.R.ROAD, BENGALURU-560 004.

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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BANGALORE INSTITUTE OF TECHNOLOGY, REPRESENTED BY ITS PRINCIPAL, K.R.ROAD, V.V.PURAM, BANGALORE-560 004.

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…RESPONDENTS

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(BY SRI.KESHAVA MURTHY.C.N., ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED:27.09.2022 PASSED BY THE LEARNED XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-36) IN MA(EAT)No.7/2021 (PRODUCED VIDE ANNEXURE-AB), ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 24.11.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :

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ORDER

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This petition is filed challenging the order passed by the Education Appellate Tribunal (‘the Tribunal’, for short), whereby the Tribunal has dismissed the appeal of the petitioner.

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On 12.04.2016, the petitioner was appointed as an Assistant Professor in the Department of Mathematics of respondent No.2—Institution.

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On 15.06.2016, he entered into an employment Agreement with the respondent (Annexure ‘B’). The employment agreement which was entered into by the petitioner contained the following terms:

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“1. The employee shall-

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1.1 Serve the Institute for a minimum period of five years from the date of reporting from duty i.e., 12/04/2016 to 11/04/2021.

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3 - NC: 2023:KHC:46607 WP No. 3551 of 2023

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1.2 Pay three months salary in case he intends to leave the Institute before the expiry of the agreement period as per clause 1.1.”

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The order of appointment also contained a term that

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he would be under a probation for a period of two years and at the end of the period of probation or the extended period, the Management would consider his suitability and if found not suitable, his services would be terminated and if, however, the probationary period is extended beyond two years, he would not be entitled to draw increments. During the period of probation, his entitlement to draw the increments would only be upon a declaration that he has satisfactorily completed the probation.

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It also contained a term that he would serve the respondent No.2-Institution for a period of five years and if he intends to leave the Institution before the expiry of five years, he would have to pay three months’ salary as per the service Rules.

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NC: 2023:KHC:46607 WP No. 3551 of 2023

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On 07.02.2018, respondent No.1, which owned respondent No.2-Insitutiton, issued an office order stating that the service of the petitioner was being dispensed with immediately and the Principal was directed to relieve him from duty.

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It appears that prior to this, there were some issues related to the petitioner seeking leave on account of his ailments and also on account of the injuries sustained during an accident.

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Being aggrieved by the Office Order dated 07.02.2018 dispensing with his services, the petitioner filed an appeal before the Tribunal in MA(EAT) No.4 of 2018. In this appeal, he sought an interim stay of the order dated 07.02.2018 and the Tribunal granted him an ex parté interim order on 16.07.2018. Respondent No.1 accepted the interim order and directed the Head of the Department to reinstate the petitioner and incorporate the petitioner’s name in the Attendance Register and give him the necessary work-load.

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5 - NC: 2023:KHC:46607 WP No. 3551 of 2023

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However, it appears that the Head of the Department was reluctant to accept this report and ultimately, a Memo was issued by the Principal of respondent No.2-Institution calling upon the Head of the Department to ensure that the petitioner was bound to be reinstated and it was also informed that failure to reinstate him would lead to the Institution being in contempt of the Court’s order.

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After the petitioner was reinstated, an office order was issued by respondent No.1 on 04.12.2020, in which respondent No.1 declared the probationary period of 39 employees as having been successfully completed. The name of the petitioner was included at Sl.No.34 in the said order (Annexure ‘P’).

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A Corrigendum was also issued on 15.12.2020, in which the petitioner’s name was reiterated.

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Pursuant to the said officer order of respondent No.1, respondent No.2-Institution also issued an office order

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NC: 2023:KHC:46607 WP No. 3551 of 2023

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dated 23.12.2020, declaring that the petitioner had successfully completed his probationary period.

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This order declaring the probationary period of the petitioner as being successfully completed was taken note of the Tribunal in MA(EAT) No.4 of 2018 and the Tribunal proceeded to come to the conclusion that the question as to whether petitioner’s termination was illegal or not, does not arise, since the petitioner had been reinstated and his probation was also duly declared, it came to the conclusion that the appeal had been rendered infructuous .

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It may be pertinent to state here that the learned counsel for the petitioner, before the Tribunal, did make a submission that if the appeal was dismissed as infructuous , there was a possibility that the petitioner’s services may be terminated on that very ground again. However, the Tribunal did not agree with this conclusion and noticed that since the Court had only directed the petitioner to be reinstated, the Management had not only reinstated the petitioner but also declared his probationary

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period as being successfully completed and it was clear that the appeal would not survive for consideration. Consequently, on 23.04.2021, the appeal by the petitioner in MA (EAT) No.4 of 2018 was dismissed with costs.

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It may be pertinent to state here that a Corrigendum was stated to have been issued on 03.03.2021 to the office order, under which the probationary period of the petitioner was completed. In this order, it was stated that the name of the petitioner had been wrongly included and hence, the same was being deleted.

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This order was, however, not brought to the notice of the Tribunal when it disposed of the appeal on 23.04.2021.

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After the appeal was dismissed by the Tribunal, respondent No.1 has proceeded to pass the order dated 19.05.2021 and the same reads as under:

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“ gÁdå MPÀÌ°UÀgÀ ¸ÀAWÀ

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£ÀA.148, “£ÁqÀ¥Àæ¨sÀÄ PÉA¥ÉÃUËqÀ ¨sÀªÀ£À: PÀªÀÈµÀÚgÁeÉÃAzÀæ gÀ¸ÉÛ, «±ÉéÃ±ÀégÀ¥ÀÄgÀA, ¨ÉAUÀ¼ÀÆgÀÄ-560 004

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zÀÆ.26676818, 26507629, 26611029 ¥sÁåPïì:080-22423996

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8 - NC: 2023:KHC:46607 WP No. 3551 of 2023

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email:[email protected] GST In No.29AAATV3662K1ZZ

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¸ÀASÉå:gÁ.M.¸À/DqÀ½vÀ/255/2021-22. ¢£ÁAPÀ:19/5/21.

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DzsÉÃ±À

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²æÃ ¥Àæ¸À£ÀßPÀÄªÀiÁgï, PÉ.JA.C¹¸ÉÖAmï ¥ÉÆæ¥sÉ¸Àgï, UÀtÂvÀ±Á¸ÀÛç «¨sÁUÀ, ©.L.n. gÀªÀgÀ£ÀÄß vÀPÀët¢AzÀ eÁjUÉ §gÀÄªÀAvÉ PÀvÀðªÀå¢AzÀ ªÀeÁUÉÆ½¹, ¸ÉÃªÉ¬ÄAzÀ ©qÀÄUÀqÉ ªÀiÁr DzÉÃ±À ºÉÆgÀr¹zÉ.

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¸À»/-

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ªÀÄÄRå PÁAiÀÄð¤ªÁðºÀuÁ¢üPÁj gÁdå MPÀÌ°UÀgÀ ¸ÀAWÀ.”

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9 - NC: 2023:KHC:46607 WP No. 3551 of 2023

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As could be seen from the said order, the petitioner was essentially dismissed from service only because of the appeal that he filed in MA (EAT) No.4 of 2018 was dismissed and no other reason was stated in the order of termination.

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It is clear from the above that, the apprehension expressed by the learned counsel for the petitioner in MA(EAT) No.4 of 2018 that the services of the petitioner would be terminated if the appeal was dismissed as infructuous , came true.

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The petitioner, thereafter, challenged this order of termination dated 19.05.2021, by filing another appeal in MA(EAT) No.7 of 2021.

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The Tribunal entertained the appeal and also granted a stay of the order of termination by an interim order on 11.06.2021. It is the case of the petitioner that despite the said order, the petitioner had not been reinstated.

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NC: 2023:KHC:46607 WP No. 3551 of 2023

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The respondents thereafter contested the appeal and

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the Tribunal by the impugned order, has dismissed the appeal holding that the order of termination was justified. In support of its order, the Tribunal has placed reliance on the Bye-Law No.12, which was to the effect that the probationary period could have been declared only with the approval of the Executive Committee and since there was no approval, the order by which the petitioner’s probationary period was declared as successful was improper.

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The Tribunal has also taken the view that the Management was entitled to terminate the services of the petitioner under Section 92 of the Karnataka Education Act, 1983 (for short, “ the Act ”) provided for termination of the employee in terms of the conditions of the service prescribed.

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The Tribunal has also taken the view that the Management had the right to terminate a temporary employee after five years of service.

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NC: 2023:KHC:46607 WP No. 3551 of 2023

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As stated above, this petition has been filed challenging the order of termination and also the order of the Tribunal, which has confirmed the termination.

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At the outset, it has to be stated here that the order of termination passed against the petitioner on 07.02.2018 was itself illegal, since it was neither preceded by any enquiry nor were any reasons given for terminating the services of the petitioner.

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The Management, in fact, accepted the interim order granted against such termination and reinstated the petitioner. The interim order was granted on 16.07.2018 and the petitioner was discharging his duties for two years and not only respondent No.1 (which owned the Institution), but also respondent No.2-Institution has declared the successful completion of the petitioner’s probation during the pendency of the appeal in MA (EAT) No.4 of 2018. This leaves no room for doubt that the petitioner had discharged his services satisfactorily and

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therefore, the Management had decided to confirm his employment.

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The Tribunal took note of this particular fact and disposed of the appeal in MA(EAT) No.4 of 2018, though it was apprehended that the Institution would actually, upon the order of dismissal of appeal, once again terminate the services of the petitioner.

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It may also be pertinent to state here that no reliance could be placed on an order passed on 03.03.2021 deleting the name of the petitioner from the list of confirmed employees, in the guise of issuing a Corrigendum. It must be stated here that as the order declaring the employee’s probation as being successfully completed cannot be nullified by issuance of a Corrigendum.

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It may be pertinent to state here that respondent No.1-Management issued an office order on 04.12.2020, followed by a Corrigendum dated 15.12.2020 and in both

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13 - NC: 2023:KHC:46607 WP No. 3551 of 2023

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of these orders, the name of the petitioner was included. The College also subsequently issued an office order on 23.12.2020, declaring the successful completion of the petitioner’s probationary period.

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In light of this, it becomes absolutely clear that the petitioner’s services were confirmed by the Management only because his services were satisfactory. If the petitioner’s services were confirmed and he became a permanent employee under the provisions of the Act, his services can be terminated only if an enquiry, as contemplated under Section 92 of the Act, was conducted.

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Admittedly, no such enquiry has been conducted. In fact, as could be seen from the extracted portion of the order of termination, passed on 19.05.2021, the only reason for terminating the services of the petitioner was that the appeal filed by him in MA(EAT) No.14 of 2018 was dismissed.

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In my view, this approach of the management terminating the services of the petitioner on the basis of the dismissal of an appeal, that too, when, in fact, the appeal was dismissed as infructuous , is rather callous.

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In my view, since the petitioner’s services were confirmed by passing an order on 04.12.2020 and 23.12.2020, the respondent could not have, thereafter, terminated the services of the petitioner.

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The reasoning of the Tribunal that the confirmation of the petitioner’s services was illegal in view of Bye-law No.12 is improper. The Tribunal has failed to notice that the Management has passed an order declaring the services of 39 employees to have been successfully completed the period of probation. This was followed by a corrigendum dated 15.12.2020 and in both these orders, the name of the petitioner was found.

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Once an order of declaration of probationary period has been passed, it is obvious that the same cannot be undone by issuing another order a couple of months later.

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The further reasoning of the Tribunal that the petitioner was a temporary employee and his services could be terminated within a period of five years, is also incorrect. As already extracted above, the petitioner had undertaken to serve the Institution for a period of five years and by no stretch of imagination could this agreement be construed to mean that the petitioner was a temporary employee.

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The fact that the petitioner was appointed, put on probation and subsequently confirmed, by itself, proves that he had been recruited to a permanent post and he could not be summarily dismissed.

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In this view of the matter, it is clear that the impugned orders, including the order passed by the Tribunal, cannot be sustained and consequently, the same

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are set aside and the respondents are directed to

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reinstate the petitioner forthwith.

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The respondents shall also be liable to pay the petitioner the entire back-wages, with continuity of service along with all consequential benefits.

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The said benefits shall be made over to the petitioner

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within a period of two months from the date of receipt of a copy of this order.

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The writ petition is accordingly allowed .

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Sd/JUDGE

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RK/CT: SN

Sri Prasanna Kumar K M v. M/S Vokkaligara Sangha

Case brief

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Sri Prasanna Kumar K M v. M/S Vokkaligara Sangha

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