Disposed

The Management of T.B.S.F Pre University v. Shivaramu R

Karnataka HC27 Mar 2023WP/5966/2018

Case brief

AI extract

What is this about?

The High Court disposed of writ petitions challenging an order by the Educational Appellate Tribunal. The Court held that the Tribunal lacked jurisdiction because the employee's service was not regularized, making him a temporary employee. Consequently, the impugned order was declared void and of no legal effect.

What did the court decide?

The writ petitions were disposed of; the impugned order of the Educational Appellate Tribunal was declared void and of no legal effect due to lack of jurisdiction.

The Management of T.B.S.F Pre University Vs… — Service and Employment | Karnataka HC (2023)

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WP No. 5966 of 2018 C/W WP No. 59306 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE E.S.INDIRESH

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WRIT PETITION NO. 5966 OF 2018 (S-DIS)

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C/W

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WRIT PETITION NO. 59306 OF 2016

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IN WP NO.5966 OF 2018

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BETWEEN:

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THE MANAGEMENT OF T.B.S.F. PRE UNIVERSITY EDUCATION COLLEGE BAPAGRAM BENGALURU – 560091. BY ITS HON SECRETARY

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…PETITIONER

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(BY SRI. SUPREETH S., ADVOCATE)

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AND:

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Digitally signed by ARUN KUMAR M S Location: High Court of Karnataka

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SHIVARAMU R SON OF RAME GOWDA AGED ABOUT 46 YEARS MACHOHALLI COLONY BAPAGRAM POST BENGALURU – 560091.

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THE DIRECTOR PRE UNIVERSITY EDUCATION BOARD PALACE ROAD BENGALURU 560001.

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…RESPONDENTS

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(BY SRI. M S NAGARAJA, AGA FOR R2;

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WP No. 5966 of 2018 C/W WP No. 59306 of 2016

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SRI M. ASHWATHNARAYANA REDDY, ADVOCATE FOR R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 28.4.2016 PASSED BY THE EDUCATIONAL APPELLATE TRIBUNAL AND THE III ADDLTIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU PASSED IN M.A.[EAT] 2/2003 [ANNEXURE-H].

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IN WP NO.59306 OF 2016

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BETWEEN:

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SHIVARAMU R SON OF SRI RAME GOWDA AGED ABOUT 45 YEARS WORKING AS A PEON T B S F COMPOSITE PRE-UNIVERSITY COLLEGE BAPAGRAM POST BENGALURU – 560091.

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PRESENTLY RESIDING AT MACHOHALLI COLONY (KEBBA HALLA) BAPAGRAMA POST DASANAPURA HOBLI BANGALORE NORTH TALUK BENGALURU-560 091.

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…PETITIONER

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(BY SRI M. ASHWATHNARAYANA REDDY, ADVOCATE)

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AND:

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THE DIRECTOR PRE UNIVERSITY EDUCATION BOARD PALACE ROAD BENGALURU - 560001.

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3 - WP No. 5966 of 2018 C/W WP No. 59306 of 2016

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THE MANAGEMENT OF T.B.S.F. PRE UNIVERSITY EDUCATION COLLEGE BAPAGRAM BENGALURU – 560091.

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BY ITS HON SECRETARY.

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THE EDUCATIONAL APPELLATE TRIBUNAL AND THE III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU CITY BENGALURU-560 009.

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…RESPONDENTS

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(BY SRI M S NAGARAJA, AGA FOR R1 AND 3; SRI R SRINIVASAIAH, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE AN APPROPRIATE ORDER OR DIRECTION BY MODIFYING THE ORDER DATED 28.04.2016 PASSED IN M.A.(E.A.T.) NO.2/2003 BY THE 3^RD RESPONDENT BY GRANTING FULL BACK WAGES FROM JUNE, 1998, TILL HIS REINSTATEMENT AS CLAIMED IN HIS APPEAL BEFORE THE EDUCATIONAL APPELLATE TRIBUNAL/ THE 3^RD RESPONDENT HEREIN VIDE ANNEXURES C AND D.

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THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In these writ petitions, the petitioners have challenged order dated 28.04.2016 passed in MA (EAT) No.2 of 2003 passed by the Educational Appellate Tribunal and III Additional

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WP No. 5966 of 2018 C/W WP No. 59306 of 2016

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City Civil and Sessions Judge, Bangalore City( hereinafter referred to as ‘Tribunal’), allowing the appeal in part and directed the respondent No.2 (Institution) to reinstate the employee with continuity of service and to pay 25% of the back wages from June 1998 till his reinstatement.

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WP No.5966 of 2018 is filed by the Institution challenging the impugned order passed by the Tribunal. Writ Petition No.59306 of 2016 is filed by the employee challenged the portion of the order passed by the Tribunal declined to grant full back wages.

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Heard the learned counsel appearing for the parties.

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On careful examination of the writ papers would indicate that, the service of the employee of the respondentInstitution is neither regularized nor appointment has been approved by the respondent-authorities. In that view of the matter, on careful perusal of the Sections 92 and 94 of the Karnataka Education Act, 1983, I am of the view that, the Tribunal has no jurisdiction to entertain the petition under Section 94 of the said Act, in respect of the employee, whose service is not regularized and approved by the competent

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WP No. 5966 of 2018 C/W WP No. 59306 of 2016

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authority. In this regard, it is relevant to extract Sections 92 and 94 of the Act, which reads as under:

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92. Dismissal, removal etc.- (1) Subject to such rules as may be made in this behalf no teacher or other employee of a private educational institution shall be dismissed, removed or reduced in rank except,-

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(a) in accordance with the conditions of service governing him;

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(b) after an inquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the said charges, and where it is proposed after such inquiry to impose on him such penalty, it may impose such penalty, on the basis of the evidence adduced during such inquiry:

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Provided that this sub-section shall not apply to temporary employees or to the dismissal, removal or reduction in rank of a teacher or other employee on the ground of misconduct which has led to his conviction on a criminal charge involving moral turpitude.

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(2) No order imposing any penalty other than those referred to in sub- section (1) shall be passed except after,-

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(a) the teacher or employee is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation which he may wish to make; and

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(b) such representation, if any, is taken into consideration.

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(3) (a) A teacher or other employee may be placed under suspension by the managing committee,-

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(i) where disciplinary proceeding against him is contemplated or is pending; or

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(ii) where a case against him in respect of any criminal offence is under investigation or trial.

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(b) No such suspension shall remain in force for more than six months:

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Provided that if the enquiry is not completed within the period of six months, the secretary shall report the matter to the competent authority, who may permit extension of the period of suspension beyond six months, if he is satisfied that the enquiry could

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WP No. 5966 of 2018 C/W WP No. 59306 of 2016

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not be so completed due to circumstances beyond the control of the Governing Council.

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(c) the Managing Committee placing an employee under suspension shall forthwith report to the competent authority the circumstances in which the order was made.

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(d) Subject to such rules as may be prescribed, every employee placed under suspension under this section shall be entitled to such subsistence allowance as may be prescribed

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(Emphasis supplied)

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94. Appeals.- (1) Any teacher or other employee of a private educational institution who is dismissed, removed or reduced in rank may within three months from the date of communication of the order prefer an appeal to the Tribunal.

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(2) The provisions of sections 4 and 5 of the Limitation Act, 1963 shall be applicable to such an appeal.

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(3) If, before the date of commencement of this Act, any teacher or other employees has been dismissed, or removed or reduced in rank or his appointment has been otherwise terminated and any appeal preferred before that date:-

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WP No. 5966 of 2018 C/W WP No. 59306 of 2016

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(a) by him against such dismissal or removal or reduction in rank or termination; or

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(b) by him or by the Governing Council against any order made in any appeal referred to in clause (a); is pending before any officer, such appeal shall, notwithstanding anything in sub-section (1), stand transferred to the Tribunal, if he makes an application in that behalf to such officer

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(4) The Tribunal shall dispose of the appeal filed under sub-section (1) or transferred under subsection (3) after giving the parties the opportunity of being heard.

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(5) In respect of an order imposing a penalty other than those specified in sub-section (1) of section 92, on any teacher or other employee, an appeal shall lie to the competent authority within three months from the date of communication of the order imposing such penalty.

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(6) The competent authority shall dispose of an appeal preferred under sub-section (5) after giving the parties the opportunity of being heard.

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(7) An appeal against an order of the competent authority under sub- section (6) shall lie within the prescribed period to the Tribunal, whose decision shall be final.”

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WP No. 5966 of 2018 C/W WP No. 59306 of 2016

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On careful reading of proviso to Section 92(1) would indicate that, Section 92 is not applicable to temporary employees or to the dismissal/removal/or reduction in Rank of a Teacher or other employees on the ground of misconduct involving moral turpitude. In the present case, it is not in dispute that the employee of the respondent-Institution has been appointed on 13.10.1990 as Peon, however, the appointment of the employee is subject to the approval of the department and regulated as per grant in aid rules. Since the employee of the Institution, though appointed as per appointment letter dated 13.10.1990, however, his appointment is not yet approved by the respondent-authorities. In that view of the matter, it cannot be considered as regular appointment of the employee in question in terms of the Rules and the Act referred to above and for all other purpose, the employee shall be considered as a temporary employee and therefore, applying language contemplated under Sections 92 and 94 of the Act, the Tribunal has no jurisdiction to entertain the writ petition. Though the learned counsel appearing for the petitioner in W.P.No.59306 of 2016 argued that the employee has approached this Court in earlier round of litigation in W.P No.15006 of 2006 and has

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WP No. 5966 of 2018 C/W WP No. 59306 of 2016

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spent a considerable period before this court. However, the said submission cannot be accepted on the ground that jurisdictional issue is not raised and considered by this Court and further, as this Court has come to the conclusion that the Tribunal has no jurisdiction to entertain the petition and the impugned order itself is a void/nullity in law in view of the law declared by the Hon'ble Apex Court in the case of Kiran Singh and others vs.

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Chairman Paswan and others , reported in AIR 1954 SC 340. Accordingly, the writ petitions are disposed of in terms of the observation made hereinabove. However, it is open for the employee (petitioner in W.P.No.59306 of 2016) to approach the competent authority for redressal of his grievance. In such an event, the period spent by the employee (petitioner in W.P.No.59306 of 2016) shall be considered in tune of Section 14 of the Limitation Act.

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SB List No.: 1 Sl No.: 82

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SD/JUDGE

The Management of T.B.S.F Pre University v. Shivaramu R

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The Management of T.B.S.F Pre University v. Shivaramu R

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