Dismissed

Bishop Cotton Boys School v. Dr (Mrs) Nanitha Rebecca Reuben

Karnataka HC14 Dec 2023WP/9106/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition filed by a school seeking to uphold its termination of a teacher. The Court held that Section 99 did not permit termination without reasons and affirmed the Tribunal's order directing reinstatement.

What did the court decide?

The petition was dismissed; the respondent was directed to reinstate the petitioner with continuity of service, backwages, and all consequential benefits.

Bishop Cotton Boys School Vs Dr (Mrs)… — Pension and Retirement Benefits | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^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.9106 OF 2023 (S)

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BETWEEN:

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BISHOP COTTON BOY’S SCHOOL, (MANAGED BY CHURCH OF SOUTH INDIA-KARNATAKA CENTRAL DIOCESE) RESIDENCY ROAD, BENGALURU-560 025. REPRESENTED BY ITS CHAIRMAN, BOARD OF MANAGEMENT, RT. REV PRASANNA KUMAR SAMUEL.

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…PETITIONER

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(BY SRI.B.M.ARUN., ADVOCATE)

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AND:

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

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DR (Mrs) NANITHA REBECCA REUBEN WIFE OF MR.RUBEN PRABHAKAR DOSS, AGED 58 YEARS, R/AT No.41, ‘ELSHADDAI’, 4^TH MAIN, CHINNAPPA GARDEN, BENSON TOWN, BENGALURU-560 046.

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…RESPONDENT

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(BY SRI. H.M.MURALIDHAR, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED:30.03.2023 PASSED IN MA(EAT)No.18/2021 BY THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,

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BENGALURU (CCH-15) HOLDING CONCURRENT CHARGE OF XXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-9) VIDE ANNEXURE-A, ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 03.11.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING

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ORDER

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On 05.06.1986, the respondent was appointed as a Teacher in the petitioner – Educational Institution. Her services were, thereafter, confirmed on 05.05.1987. It was stated that the respondent was, thereafter, appointed as Vice Principal in the year 2016.

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The respondent filed an appeal M.A.(EAT) No.21/2019 being aggrieved by an order dated 13.09.2019, by which she was dismissed from services. During the pendency of this appeal, a resolution was passed by the Management of the Institution on 28.09.2021. The first part of the resolution was to withdraw the enquiry that had been initiated against the

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respondent and to reinstate her into service along with payment of backwages, and the second part of the resolution was to terminate the services of the respondent by invoking Section 99 of the Karnataka Education Act (for brevity, referred to as “ the Act ”) and to pay her compensation at the rate of 15 days’ salary for every completed year of service, subject to a maximum of 15 months’ salary. On the basis of the said resolution, a memo was filed by the respondent in M.A.(EAT) No.21/2019 challenging her dismissal. On the basis of this resolution, a communication was addressed to the respondent on 29.10.2021 reinstating her into services and she was also paid a sum of Rs.20,10,951/- as arrears of salary. On the same day, another communication dated 29.10.2021 was addressed to the respondent stating that she was relieved from the services of the Institution with immediate effect, in terms of the decision of the Management and in light of Section 99 of the Act, and along with the communication, a demand draft of Rs.3,29,551/- towards 15 days’ salary for every completed

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year of service rendered by her, was also enclosed. Thereafter, a memo was filed in M.A.(EAT) No.21/2019, on

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the basis of which the appeal was dismissed as being unnecessary.

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The respondent, thereafter, submitted a

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representation stating that she should be permitted to continue to discharge her services as Vice Principal, pursuant to the decision of the Management, and that she also returned the demand draft of Rs.3,29,551/- to the Institution. This request of the respondent was, however, rejected and the demand draft that she had returned was sent back to her. The respondent, thereafter, preferred an appeal in M.A.(EAT) No.18/2021 on 09.12.2021, challenging the order of termination. This appeal was contested strenuously by the Management.

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The Tribunal, after examination of the matter, has come to the conclusion that the termination of the respondent by order dated 29.10.2021 was illegal and consequently, directed the Institution to reinstate the

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respondent to the post of Vice Principal, with continuity of service and to pay all consequential benefits including backwages. Aggrieved by the said order, the petitioner – Institution is before this court by way of the present petition.

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Sri. B.M.Arun, learned counsel for the Institution contended that the Management was entitled to terminate the respondent without assigning any reason, since Section 99 of the Act provided for such termination. He contended that the termination simpliciter under the provisions of Section 99 of the Act was permissible and in light of this legal position, the decision of the Tribunal that the termination was illegal and that the termination could only be made for valid reasons, was unsustainable.

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He also contended that the respondent had not even raised the ground that reasons were required for passing an order of termination and despite the fact that no such ground was raised, the Tribunal has come to the conclusion that the respondent had raised such ground

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and has passed an order on that ground itself. He, therefore, contended that the order of the Tribunal was wholly illegal and could not be sustained.

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Learned counsel for the respondent, on the other hand, contended that the Tribunal was perfectly justified in coming to the conclusion that the order of termination was illegal. He contended that the assertion that no reasons were necessary to termination the services of an employee of a private educational institution, is wholly without substance.

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He contended that the provisions of Section 99 of the Act are being deliberately misrepresented in order to justify an illegal order of termination. He also contended that the concept of retrenchment and termination are totally different, though both result in an end to the relationship between an employer and an employee. He submitted that in case of retrenchment, no wrong can be attributed to the employee, whereas in case of termination, the same could be attributed to the

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employee, such as misconduct. He contended that merely because the word “ termination simpliciter ” is used, it would not satisfy the requirement of the provisions of the Act.

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In light of the arguments advanced by both parties,

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the following questions arise for consideration in this petition:

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i) Whether the Management is justified in contending that Section 99 of the Act provides for termination of an employee without assigning any reasons?

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ii) Whether the Tribunal was justified in coming to the conclusion that the termination of the services of the respondent was illegal?

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Chapter – XIV of the Act provides for terms and conditions of services of employees in private educational institutions.

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Learned counsel for the Institution did not dispute

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the fact that the petitioner is a private educational

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institution as defined under the Act and that the provisions of the Act were applicable to the Institution.

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In Chapter – XIV, the provisions of Sections 92, 94, 97 and 98 would be relevant.

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Section 92 of the Act states that no employee of a private educational institution shall be dismissed, removed or reduced in rank except in accordance with the conditions of service governing him and after holding an inquiry, in which, he has been informed of the charges leveled against him and has been given a reasonable opportunity of being heard in respect of said charges. In the event of an enquiry being conducted, if it is decided

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that a penalty be imposed, such penalty would have to be imposed on the basis of evidence adduced during the course of an inquiry. Thus, the normal principle that an employee is required to be subjected to an inquiry and the charges against him should be made known to him and he should be permitted to defend himself, is incorporated in Section 92 of the Act. The provisions of the Act, in fact,

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injuncts the Institution from removing any employee in contravention of its requirement and it is also made clear that the dismissal or removal would be subject to such Rules as may be made in that behalf.

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In this case, admittedly, the respondent was terminated from service, but the Management itself had resolved to withdraw the enquiry that it had initiated against the respondent and also reinstated her back into service. Once such decision was taken and an order of reinstatement was passed, it is obvious that the respondent had automatically become an employee once again and if she is required to be removed again, the procedure contemplated under Section 92 of the Act would automatically stand attracted. In other words, on the decision being taken to withdraw the earlier proceedings initiated against the respondent and reinstated her, the Management could not dismiss or remove the respondent from service except in accordance with and in the manner specified in Section 92 of the Act.

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Section 94 of the Act provides for filing of an appeal against the employee who has been dismissed, removed or reduced in ranking.

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In this case, the Institution contended that the provisions of the Act permit the termination of an employee and this termination of an employee is different from dismissal or removal contemplated under Section 92 of the Act.

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In light of this argument advanced, it would be necessary to extract Sections 98 and 99 of the Act:

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“98. Retrenchment of employees.- (1) Where retrenchment of any employee is rendered necessary by the Governing Council or competent authority consequent on any change relating to education or course of instruction or due to any other reason, such retrenchment may be effected with the prior approval of the competent authority or the next higher authority, as the case may be.

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(2) Where any retrenchment of the member of the teaching staff in any aided Educational Institutions is effected, the State Government or the competent authority shall, subject to prescribed rules or orders governing the reservation in posts to Scheduled Castes and Scheduled Tribes and other Backward Classes, appoint such person to

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a similar post where available in any other aided educational institution.

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(3) If the management of an institution wants a transfer of an employee to some other institution, where there is a vacancy or if any employee of an institution, wants a transfer or if two employees apply for mutual transfer, the State Government may grant the request of the institution or of the employee as the case may be.

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99. Termination of service.- An employee of a private educational institution who has been confirmed and whose services are retrenched or terminated by the Governing Council for reasons other than as a measure of punishment shall be entitled to compensation at the rate of fifteen days salary for every completed year of service subject to minimum of three months salary and maximum of fifteen months salary.”

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As could be seen from the above, only in cases where there is a change relating to the education or course of instructions or any other reasons, retrenchment has become necessary by the Governing Council or the competent authority and the employee may be retrenched after obtaining prior approval from the competent authority. The retrenchment, as contemplated under

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Section 98 of the Act, can only be as a result of any

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change relating to education or course of instructions being imparted by the Institution. The term “ for reasons other than as a measure of punishment ” used in Section 99 cannot be read independently and would have to be read in conjunction with the earlier phrase i.e., change relating to education or course of instructions. It is to be noticed here that retrenchment can only be in cases where the continuance of an employee in an Institution has become unnecessary due to circumstances beyond the control of an employer. It is only in cases where the Institution cannot continue the employment for reasons beyond its control would the concept of retrenchment come into play. There is a mark difference between the terms “ termination ” and “ retrenchment ”. The termination could be for the reasons which are attributable to an employee, whereas retrenchment could be as a result of circumstances which are beyond the control of both employer and employee.

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In this regard, a reading of sub-section (2) of Section 98 would indicate that even if retrenchment of a member of the teaching staff of any aided education institution is effected, the State Government or the competent authority is obliged to appoint the retrenched employee to a similar post (if available) in any other aided institution, subject to, of course, complying with the reservation policy. If the concept of ‘ retrenchment ’ is to be equated with that of ‘ termination ’, the question of the State Government requiring the retrenched employee of an aided institution to be appointed in another aided institution would never arise.

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Section 99 of the Act does state that the Governing Council is required to compensate an employee whose services are retrenched or terminated (for reasons other than as a measure of punishment) at the rate of 15 days’ salary for every completed year of service. The Management of the Institution has taken inspiration from the words “ for reasons other than as a measure of

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punishment ” used in Section 99 of the Act to contend that it is entitled to terminate the services of an employee without assigning any reasons. This argument is completely flawed. The fact that the statutory provision states that the services of an employee can be terminated for reasons other than as a measure of punishment clearly indicates that reasons for termination are mandatory and the reasons for termination should, however, be for any reasons which cannot be construed as a measure of punishment. The concept of termination envisaged under Section 99 of the Act is relatable only to retrenchment or termination for similar cause. The fact that the provision emphasizes that the termination should be for reasons other than as a measure of punishment, indicates that the termination should be for reasons which are not attributable to the conduct of an employee and for reasons which are beyond the control of the Institution. If the argument of the Institution is accepted, it would virtually defeat the injunction to dismiss or remove an employee as envisaged under Section 92 of the Act. If this argument is

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to be accepted in its entirety, one provision of the same Chapter would defeat another provision of the same Chapter and this is unacceptable from any principle relating to the interpretation of statutes.

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It is settled law that each provision in a statute operates in a particular sphere, and choosing a few words in a particular sentence and reading them independently is not only impermissible, but it would also result in an absurd situation. In this view of the matter, it is clear that the words used in Section 99 of the Act that the services of an employee can be terminated ‘ for reasons other than as a measure of punishment’ presupposes that there must be valid and compelling reasons for terminating the services of an employee. An Educational Institution cannot contend on the basis of Section 99 of the Act that it has

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the power to terminate the services of an employee without assigning any reasons. Since the entire premise of

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the order terminating the services of the respondent emanates from the argument that the Institution is

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empowered under Section 99 of the Act to terminate the services of an employee without assigning any reason, the same is unacceptable. The order of termination would, therefore, be wholly illegal. The Tribunal was, therefore, justified in coming to the conclusion that the order of termination passed against the respondent was illegal.

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In this case, a reference was also made to the Rules that have been framed under the Education Act i.e., the Karnataka Educational Institutions (certain terms and conditions of service of employees in private unaided primary and secondary and pre-university educational institutions) Rules, 2005.

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In this regard, the ‘ Service Rules for Teaching, Administrative and Subordinate Staff of Bishop Cotton Boy’s School’ , which has been produced by the Educational institution (Annexure ‘D’), would also make for interesting reading.

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Rule 13 of the said Rules reads as follows:

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“13. The School may, however terminate the service of a permanent member of staff without any notice whatsoever and without any kind of compensation for proven charges of grave neglect of duties, insubordination or misconduct of moral turpitude. The services of such a Staff member can only be discontinued if he/she is found guilty by a properly constituted enquiry committee. ”

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As could be seen from Rule 13, the School is empowered to terminate the services of the permanent member of the staff only for proven charges of grave neglect of duties, insubordination or misconduct.

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It is, in fact, emphasized in the Rules that the services of a staff member can be discontinued only if he or she is found guilty by a properly constituted enquiry committee. Therefore, when the Service Rules of the School itself categorically states that the services of an employee of the School can be terminated only after an enquiry is conducted and the charges of grave misconduct are established in such enquiry, the school cannot terminate an employee without conducting an enquiry.

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Rule 14 of the said Rules could also be referred to, which reads as under:

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“14. Where it is found inevitable to reduce the number of staff employed, the Management may terminate the services of a permanent employee at any time by giving three month’s notice or paying three months’ salary (pay and allowances) in lieu of notice, and 15 days’ average salary for each year of completed service. ”

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As could be seen from Rule 14, the power to terminate an employee from service under the Rules is available to the School only if it is found inevitable to reduce the number of staff employed. The power conferred under Rule 14 cannot obviously be utilized to do away with the services of an employee merely because the Institution does not desire to have the services of such an employee.

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Though the statutory Rules would prevail over the Rules framed by the School, the Rules framed by the School are referred only to indicate that an employee of

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the petitioner-Educational Institution cannot be terminated without an enquiry.

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The petitioner’s school is, admittedly, affiliated to the

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Council for the Indian School Certificate Examinations (ICSE) Board. Rule 5(b) of the ICSE Affiliation Rules which deals with Teaching Staff, reads as follows:

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“5. Teaching Staff.—

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(b) The Governing Body / Managing Committee of the school shall issue a written appointment letter to every employee of the school. Unless otherwise stipulated by the State Government, the terms of service in the appointment letter shall incorporate the following aspects:

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(i) the terms and conditions of service of the employee including the designation, scale of pay and other allowances, to which he/she shall be entitled;

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(ii) the schools in India must appoint, and pay salaries and other admissible allowances to the staff at par with the corresponding categories of employees in the State Government schools or as per conditions prescribed by the Government of India or as per the

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conditions laid down by the State Government in the NOC;

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(iii) the schools outside India should pay salaries not lower than that of the teachers in government schools in that country;

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(iv) the different categories of leave of absence, age of retirement, provident fund, pension, gratuity, medical and other benefits to which the employee shall be entitled;

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(v) the penalties which could be imposed on the employee for the violation of any Code of Conduct or the Service Rules or the breach of any of the terms of the contract entered into by him/her;

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(vi) the manner in which an employee can be suspended and disciplinary proceedings, in relation to an employee, shall be pursued before he/ she can be dismissed, removed from service or reduced in rank;

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(vii) arbitration of any dispute arising out of any breach of service conditions between the employee and the Governing Body / Managing Committee, with regard to terms and conditions of appointment, scales of pay and other allowances, leave of absence, age of retirement, pension, gratuity, provident fund,

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medical and other benefits, any disciplinary action leading to the suspension, dismissal or removal from service or reduction in rank of the employee or any other matter must be specified in such contract.”

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As could be seen from the above, Rule 5(b) clearly states that “ unless otherwise stipulated by the State Government , the terms of service in the appointment letter shall incorporate the following aspects:… ”. This would indicate that notwithstanding anything contained in the appointment letter, the stipulations made by the State Government would be applicable. It, therefore, follows that the provisions of the Karnataka Education Act would automatically prevail over the terms of service which are prescribed under a Contract.

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As already noticed above, Section 92 of the Act categorically bars any Teachers to be dismissed from service or removed, except in accordance with the conditions of service governing them and after an enquiry, in which he has been given reasonable chance to defend himself.

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As noticed above, even the Service Rules framed by the School stipulated that an enquiry be conducted and the said Rules, essentially, are in line with the statutory requirement of conducting an enquiry before dismissing an employee. It is, therefore, clear that no employee of a School affiliated to the ICSE can be removed except in compliance with Section 92 of the Act.

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It may also be useful to refer to Clause (8) of the ICSE Affiliation Rules, which deals with the withdrawal of affiliation. Clause 8(2)(j) of the Rules reads as follows :

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“ VII. Withdrawal of Affiliation

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Power to Withdraw:

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The Chief Executive and Secretary shall initiate de-affiliation proceedings against a School for all or any of the following reasons:

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(j) Non-compliance of the applicable laws, Rules, Regulations, Byelaws, Directives and Guidelines of the State/Central Government and Courts in respect of all matters concerning the administration and running of the school. ”

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This makes it clear that a School affiliated to ICSE

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would have to necessarily comply with the applicable laws and Rules framed by the State Government in respect of all matters concerning Administration and running of the School.

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In view of the above discussion, this Court is of the view that the impugned order passed by the Tribunal is justified and the same is hereby affirmed.

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Resultantly, there is no merit in the present writ petition and the petition is, accordingly, dismissed .

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The petitioner-Institution is directed to reinstate the petitioner with continuity of service, backwages and all consequential benefits, forthwith.

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The amount in deposit shall be made over to the respondent forthwith.

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The petitioner-Institution is directed to pay the balance amount within a period of two months from the

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date of receipt of a copy of this order.

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An oral request for stay of this order is rejected.

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Sd/JUDGE

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PKS/RK

Bishop Cotton Boys School v. Dr (Mrs) Nanitha Rebecca Reuben

Case brief

What is this about?

What did the court decide?

Bishop Cotton Boys School v. Dr (Mrs) Nanitha Rebecca Reuben

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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