Allowed

B.v.Peethas Sri Jeenasenacharayya Vidyamandal Terdal v. Sri Bharatesh S/O Mallappa Biradar Patil

Karnataka HC3 Jun 2024WA/100046/2024

Case brief

AI extract

What is this about?

Management appealed against reinstatement of a Drawing Teacher ordered by the EAT and confirmed by the Single Judge. The Division Bench held that acceptance of resignation is not dismissal, removal or reduction in rank, so Section 94 appeal was outside EAT jurisdiction, and set aside both orders.

What did the court decide?

EAT judgment dated 29.08.2023 in EAT No.2/2014 and Single Judge order dated 17.01.2024 in WP No.106046/2023 set aside; liberty reserved to respondent No.1 to avail alternate remedies.

B.v.Peethas Sri Jeenasenacharayya Vidyamandal… — Education and Admissions | Karnataka HC (2024)

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NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3^RD DAY OF JUNE, 2024 PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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WRIT APPEAL NO.100046 OF 2024 (EDN-RES)

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BETWEEN:

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B.V. PEETHA’S

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SRI JEENASENACHARAYYA VIDYAMANDAL TERDAL, REPRESENTED BY ITS PRESIDENT, TQ. JAMKHANDI, DISTRICT. BAGALKOT-587315.

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THE SECRETARY, B.V. PEETHA’S

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SRI JEENASENACHARAYYA VIDYAMANDAL TERDAL, TQ. JAMKHANDI, DISTRICT. BAGALKOT-587315.

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THE HEAD MASTER, B.V. PEETHA’S

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SRI JEENASENACHARAYYA GIRLS HIGH SCHOOL, TERDAL, TQ. JAMKHANDI, DIST. BAGALKOT-587315.

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…APPELLANTS

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(BY SRI. RAGHAVENDRA G. GAYATRI AND SRI. GIRISH A. YADAWAD, ADVOCATE)

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K M SOMASHEKAR Digitally signed by K M SOMASHEKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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AND:

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SRI. BHARATESH S/O. MALLAPPA BIRADAR PATIL AGE. 41 YEARS, OCC. UNEMPLOYED, R/O. HALAPETAGALLI, C/O. SANJEEV TUKARAM KADAHATTI, A/P. TERDAL, TQ. JAMKHANDI, DISTRICT. BAGALKOT-587135.

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THE BLOCK EDUCATION OFFICER, JAMAKHANDI, TQ. JAMKHANDI, DISTRICT. BAGALKOT.

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THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS, ADMINISTRATIVE BUILDING, NAVANAGAR, BAGALKOT, DIST. BAGALKOT-587103.

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…RESPONDENTS

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NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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(BY SRI. HARISH S. MAIGUR, ADVOCATE FOR R1, SRI. G.K. HIREGOUDAR, GOVT. ADVOCATE FOR R2 & R3)

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THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO, ALLOW THIS WRIT APPEAL AND SET ASIDE THE ORDER DATED 17.01.2024 PASSED IN WRIT PETITION NO.106046/2023 BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT AND ALLOW THE SAID WRIT PETITION AS PRAYED FOR, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL COMING ON FOR PRELIMINARY HEARING, THIS DAY, S G PANDIT, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The Management is in appeal under Section 4 of the Karnataka High Court Act, 1961, questioning the correctness and legality of the learned Single Judge’s order dated 17.01.2024 passed WP No.106046/2023, by which, the appellants’ writ petition challenging the judgment dated 29.08.2023 in EAT No.2/2014 on the file of learned Principal District and Sessions Judge and Education Appellate Tribunal, Bagalkot¹ , is dismissed, confirming the judgment of the EAT. Challenging both the judgment of the EAT as well as order passed by the learned Single Judge, respondents No.1 to 3 are before this Court in this intra-Court appeal.

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2. Respondent No.1 herein had approached the EAT in EAT No.2/2014, challenging the resolution dated 28.03.2013,

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1 ‘EAT’ for short

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NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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under which the appellants/Management accepted the resignation of the respondent No.1 dated 22.06.2011.

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3. Parties to the present appeal would be referred to as they stand before the EAT for the sake of convenience. Appellants herein were the respondents and respondent No.1 herein was the appellant before the EAT.

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4. Brief facts of the case are that, the appellant was appointed as Drawing Teacher on 24.04.2009 in the 2^nd respondent/Institution. It is stated that the appellant is said to have submitted resignation to the post of Drawing Teacher on 22.06.2011. The said letter of resignation was accepted by the respondent No.1/Management by resolution dated 28.03.2013. Challenging the said resolution accepting the resignation submitted by the appellant was the subject matter of EAT No.2/2014 before the EAT. The EAT by judgment dated 29.08.2023 allowed the appeal filed under Section 94 of the Karnataka Education Act, 1983² , directing the respondents No.1 to 3 to reinstate the appellant in the original rank as Drawing Teacher in the pay-scale as was admissible, with all

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2 ‘The Act, 1983’, for short

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NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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consequential benefits, with an observation that the appellant is entitled to 50% of backwages.

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5. Challenging the said judgment of EAT in EAT No.2/2014, the respondents No.1 to 3 approached this Court in WP No.106046/2023. The learned Single Judge on the ground that the resignation is not in accordance with sub-section 2 of Section 97 of the Act, 1983, dismissed the writ petition confirming the judgment of the EAT. Challenging both the judgment of EAT as well as order passed by learned Single Judge, respondents No.1 to 3 are before this Court in this intraCourt appeal.

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6. Heard the learned counsel Sri. Raghavendra G Gayatri for Sri. Girish A Yadawad, learned counsel for appellants/respondents No.1 to 3 and learned counsel Sri. Harish S Maigur, for appellant and perused the writ appeal papers.

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7. At the outset, learned counsel Sri. Raghavendra G Gayatri for the appellants urges only one ground that the EAT had no jurisdiction to entertain the appeal filed by the appellant. Learned counsel would submit that any teacher or

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NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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employee of a Private Educational Institution could approach the EAT under Section 94 of the Act, 1983 against removal, dismissal or reduction in rank. He further submits that submitting and acceptance of resignation would not amount to removal or resignation. Therefore, he submits that the EAT could not have entertained the appeal under Section 94 of Act, 1983. In support of his submission, learned counsel places reliance on a decision of a co-ordinate Bench of this Court in the case of Management of M.S. Ramaiah Medical College & Hospital Vs. Dr. M. Somashekar³ . Thus, learned counsel would pray for allowing the appeal by setting aside the orders passed by the learned Single Judge as well as EAT.

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8. In reply, Sri. Harish S Maigur, learned counsel for respondent No.1/appellant before the EAT, tried his best to sustain the orders passed by the learned Single Judge as well as EAT. He submits that acceptance of resignation would amount to removal. He further submits that the appellant submitted his resignation on 22.06.2011, which was kept pending for almost two years and it was approved on 28.03.2013. In that circumstance, he would submit that

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3 ILR 2004 KAR 37

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NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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respondents No.1 to 3 could not have accepted such resignation belatedly, where circumstances had changed. Thus, learned counsel prays for dismissal of writ appeal.

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9. Having heard the learned counsel for both the parties and on perusal of the writ appeal papers, the only point that would fall for consideration in this appeal is as to, whether the EAT had jurisdiction to entertain the appeal under Section 94 of the Act, 1983, in the facts and circumstances of the case?

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10. Answer to the above point would be in the ‘negative’ for the following reasons:

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11. There is no dispute with regard to the appellant/respondent No.1 herein, working as Drawing Teacher from 2009 to till date of acceptance of resignation i.e., 28.03.2013 by the respondents No.1 to 3, appellants herein. It is also not in dispute that against acceptance of the resignation, the appellant preferred an appeal before the EAT in EAT No.2/2014 under Section 94 of the Act, 1983. Section 94 of the Act, 1983 provides for filing of an appeal by any employee or teacher of a Private Educational Institution, relevant portion reads as under:

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7 - NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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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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12. A careful reading of the above provision makes it abundantly clear that any teacher or employee of a Private Educational Institute could approach the EAT under Section 94 of the Act, 1983 against dismissal, removal or reduction in rank.

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13. In the case on hand, the order which was the subject matter of appeal before the EAT was neither order of dismissal, nor removal nor reduction in rank of the appellant/respondent No.1 herein. The appellant was before the EAT challenging the resolution accepting his resignation. Acceptance of resignation would not amount to removal, dismissal or reduction in rank. Moreover, acceptance of resignation cannot be considered as punitive or acceptance of

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NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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resignation is not by way of punitive action. Section 97 of the Act, 1983 provides for submission of resignation and consequential acceptance or otherwise of the resignation by the Management. As the resolution/order of acceptance of the resignation by the Management would not amount to dismissal or removal or reduction in rank of the appellant, the EAT could not have entertained the appeal filed by the appellant under Section 94 of the Act, 1983. The appellant has an alternate remedy under the provisions of Act, 1983 and he ought to have invoked the alternate remedy available under the Act, 1983.

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14. A co-ordinate Bench of this Court in the case of Management of M.S. Ramaiah Medical College & Hospital supra, while interpreting and explaining Section 94(1) of the Act, 1983, at paragraphs-10 and 11 has observed as under:

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“10. An imposition of punishment, by way of dismissal/removal/ reduction in the rank, to be valid, has to be preceded by a disciplinary enquiry, as required under Section 92(1)(b). But all terminations, not preceded by a disciplinary enquiry, are not necessarily terminations simplicitor. Any termination on the ground 'services no longer required', if on examination by the Tribunal is found to be punitive in nature, passed either to victimise the employee or as a disciplinary measure, will be a 'dismissal or removal'. If the order of dismissal, removal or reduction in rank is passed as a punishment, after a fair and proper domestic enquiry, it will be valid, subject however to principle of proportionality (of punishment). On the other hand, if the order, though termed as termination or

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NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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retrenchment is really intended to be punitive, either without holding any enquiry or to victimise the employee, then it will be illegal and liable for interference. If the employee is not able to satisfy the Tribunal that the order appealed against is by way of penalty and the Tribunal is satisfied that the order is a termination simpliciter or is a retrenchment, the appeal will have to be rejected.

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11. We may sum up the position regarding remedies available to an employee (including a teacher) of Private Educational Institution thus:

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(i) The remedy against an order imposing the penalty of dismissal, removal or reduction in rank, is by way of appeal to the Educational Appellate Tribunal under Section 94(1).

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(ii) The remedy against an order imposing any other penalty, is by way of an appeal to the competent Authority under Section 94(5) with a further appeal to the Educational Appellate Tribunal under Section 94(7).

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(iii) The remedy against any order of management which is not punitive in nature, is by way of revision to the State Government under Section 131.

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(iv) Where an employee contends and establishes that the order of termination simplicitor or retrenchment, as the case may be, passed by the Management is really an order imposing punishment/penalty of dismissal or removal, and files an appeal under Section 94(1), the Tribunal can go behind the form of the order and decide upon the true nature of the order, that is whether the order is merely what it purports to be, or whether it is cloak for punishment/penalty, either as a disciplinary measure or as victimisation. If it concludes that the order is a cloak for dismissal or removal, the appeal will be maintainable and it can proceed to hear and dispose of the appeal on merits. ”

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15. For the reasons recorded above, we proceed to pass the following:

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10 -

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NC: 2024:KHC-D:7287-DB WA No.100046 of 2024

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ORDER

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a) Writ Appeal stands allowed .

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b) The judgment dated 29.08.2023 passed in EAT No.2/2014 by the EAT, Bagalkot as well as order dated 17.01.2024 passed by the learned Single Judge in WP No.106046/2023 are set-aside.

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c) Liberty is reserved in favour of the appellant/respondent No.1 herein to avail alternate remedy available under the Act, 1983 or any other remedy available in accordance with law.

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Pending applications, if any, are disposed off as not surviving for consideration.

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Sd/JUDGE

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Sd/JUDGE

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JTR CT:VP LIST NO.: 1 SL NO.: 9

B.v.Peethas Sri Jeenasenacharayya Vidyamandal Terdal v. Sri Bharatesh S/O Mallappa Biradar Patil

Case brief

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B.v.Peethas Sri Jeenasenacharayya Vidyamandal Terdal v. Sri Bharatesh S/O Mallappa Biradar Patil

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