M.S Ramaiah Institute of Technology Vs Smt. S.K. Rekha

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS OF THE LEARNED III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY CCH-25 IN M.A.(EAT) NO.14/2014; QUASH OR SET ASIDE THE IMPUGNED ORDER DTD. 16.03.2022 IN M.A. (EAT) NO.14/2014 PASSED BY THE LEARNED III ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH NO.25) AT ANNX-A AND AS A CONSEQUENCE THEREOF, UPHOLD THE TERMINATION OF THE SERVICE OF THE RESPONDENT.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL ORDER

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The petitioners filed this writ petition challenging the judgment dated 16.03.2022 passed in M.A.(E.A.T.) No.14/2014 by the learned III Additional City Civil and Sessions Judge, Bengaluru City (CCH No.25).

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The brief facts leading rise to the filing of this writ petition are as follows:

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The respondent has completed the Bachelor of Engineering in Chemical Engineering from prestigious Karnataka Regional Engineering College. She was pursuing Ph.D on the subject “Analysis of Factors Influencing Entrepreneurship in Companies” in the Department of Management Studies., Anna University and she was appointed on 29.08.2002 as a Manager (Training). It is contended that she has made a scapegoat and false accusations were made against her and charge sheet was issued on 27.03.2012. The respondent replied that to the show-cause notice and denied the charges leveled against her. Subsequently, suspension order was revoked and she

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was permitted to work. It is contended that, suddenly she was asked to report simultaneously to the head of the departments of the department of Computer Science and the department of Electronics. The respondent when asked the Management to clarify to which department she would

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be attached, she was replied to report to the head of the department of Electronics. Pursuant to the direction issued by the Management, the petitioner reported to the head of the department of Electronics. It is contended that the petitioner was again shifted to Biotechnology Department. She is not a graduate in Biotechnology and she was asked to teach on that subject. Without any reasons, the principal issued Office Order dated 10.06.2013 making insubstantial allegations and terminated the petitioner from service with the effect from 31.07.2013. It is contended that, before passing an order of termination, no enquiry was held. Hence on these grounds, the respondent aggrieved by the order of termination, preferred an appeal before the Educational Appellate Tribunal.

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The petitioners filed the objections denying the

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averments made in the appeal memo filed before the Educational Appellate Tribunal and also contended that the appeal filed by the respondent herein was barred by limitation. It is contended that the order of termination is neither arbitrary, perverse nor malafide. It is in accordance with the principles of natural justice and it is contended that the petitioners have received a complaint from the students against the respondent. Based on the complaint submitted by the students, the petitioners have terminated the respondent from the service and the order of termination is valid. Hence on these grounds, prays to dismiss the appeal.

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The Tribunal, based on the rival pleadings of

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the parties, framed the following issues:

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“1. Whether the respondents prove that Domestic Enquiry conducted by them is fair and proper?

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2. Whether the respondents prove that appeal is barred by time?

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3. Whether the appellant proves that she is entitled for reinstatement with back wages?

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4. What order?”

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The respondent to substantiate her case,

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examined herself as PW1 and marked 91 documents as Ex.P1 to Ex.P91. Appellant No.1 examined the principal of the Institution as RW1 and marked 43 documents as Ex.R1 to Ex.R43 and also examined one witness as RW2.

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The Tribunal, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence, answered issue Nos.1 and 2 in the negative, issue No.3 in the affirmative and issue No.4 as per the final order. The Tribunal allowed the appeal with cost and the termination order dated 10.06.2013 was set aside and the petitioners were directed to reinstate the

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respondent with full back wages and continuity of service from the date of termination. The petitioners aggrieved by the judgment dated 16.03.2022 passed in M.A.(E.A.T.) No.14/2014, filed this petition.

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Heard the learned counsel for the petitioners

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and also the learned counsel for the respondent.

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Learned counsel for the petitioners submit that the respondent has not led any evidence to establish that

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she was gainfully employed. In the absence of material evidence on record, the tribunal committed an error in awarding the full back wages. He also submits that the petitioners have received several complaints against the respondent and her performance was not good. Taking into consideration the performance of the respondent, the petitioners have terminated the respondent from service and the order of termination is in accordance with law. Hence on these grounds, he prays to allow the writ petition.

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Per contra, the learned counsel for the

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respondent submits that the petitioner was working as Manager (Training) in the petitioners/Institution. The Management directed the respondent to join two departments i.e., Computer Science and Electronics and subsequently the petitioner approached the Management and sought for clarification regarding which department she should be attached, for which, the Management has directed her to go and report to the Head of the Department of Electronics. He also contended that the Management to take the vengeance against the respondent, she was again shifted to Biotechnology and he submitted that the respondent is a graduate in Chemical Engineering. The conduct of the Management discloses that, the petitioners are unnecessarily harassing the respondent by shifting her from Electronic Department to the department of Biotechnology, which is not part of her expertise. He also submits that, no enquiry was held by the petitioners before passing an order of termination. The

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order of termination is in utter violation of the principles of natural justice and to buttress his argument, he has placed a reliance on the judgment of the Hon'ble Apex Court in the case of MANEKA GANDHI V. UNION OF INDIA AND

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ANOTHER reported in 1978 (2) SCR 621 . He submits that the Tribunal, considering the entire material on record, was justified in passing the impugned judgment. He also submits that, the Tribunal has rightly passed an order for full back wages. He also submits that the petitioners have not raised the ground regarding back wages in the memorandum of writ petition. Hence, on these grounds, prays to dismiss the writ petition.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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It is undisputed that the respondent was working as a Manager (Training) in the petitioners/Institution. Some of the students of Biotechnology submitted a complaint to the Petitioners’

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management as per Ex.R19 and Ex.R20 in M.A.(E.A.T) No.14/2014, wherein they have stated that the students of 6^th Semester are unhappy with the teaching methodology employed by the current teacher Mrs.Rekha i.e., the respondent herein, who is handling the Bioreaction Engineering subject and requested to change the teacher. Though it is contend that they are not happy with the teaching of the respondent, there is no allegation made against the respondent in Ex.R19 and Ex.R20. Based on Ex.R19 and Ex.R20, the petitioners have issued a memo to the respondent on 01.04.2013, marked as Ex.R21 calling upon the explanation from the respondent regarding her poor performance, as reported by the students, within 3 days from the date of receipt of the letter. The respondent submitted a reply to Ex.R21 vide Ex.R22 on 03.04.2013, wherein she has given an explanation and agreed to have not had any prior experience in teaching on the said subject matter. The petitioners without considering the explanation offered by the respondent has issued an order

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of suspension vide Ex.R23 on 09.04.2013. The petitioners

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have terminated the respondent from service as per Ex.R34 vide order dated 10.06.2013. From the perusal of the order dated 10.06.2013, it does not disclose any enquiry was conducted before passing the said order of termination. Thus, the order of termination passed by the petitioners against the respondent is in utter violation of the principles of natural justice.

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The Hon'ble Apex Court in the case of MANEKA

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GANDHI (r eferred supra), has held that the substantive and procedural laws and action taken under them will have to pass under the test under Article 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of nation. The tests have to be pragmatic otherwise they would ceases to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision to be taken against an individual, which affects the right of that individual. The duty to give a reasonable opportunity to be

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heard will be implied from the nature of the function to be performed by the authority. It is thereby conclusively held by the Hon’ble Apex Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable. The power to terminate the service of the petitioner, involves civil consequence and therefore, the procedure contemplated ought to have been followed. The nature and extent of adhering to the principles of natural justice depends upon the facts and circumstances, but at the same time, it is also well accepted that the principles of law that principles of natural justice can be read into a provision, unless applicability of such principles of natural justice is expressly or impliedly excluded.

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Admittedly, in the instant case when the

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specific query was put to the learned counsel for the petitioners that whether before passing an order of termination, the petitioners have conducted any enquiry. He fairly concede that no enquiry was conducted before

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passing an order of termination. Thus, the order of termination passed by the petitioners is in violation of principles of natural justice and contrary to the exposition of law laid down by the Hon'ble Apex Court in the case of

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MANEKA GANDHI (r eferred supra).

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The Educational Appellate Tribunal considered the evidence on record and rightly held that the order of termination dated 10.06.2013, issued by the petitioners, is in violation of the principles of natural justice and also recorded a finding that no enquiry was conducted before passing the said order of termination. The Educational Appellate Tribunal was justified in setting aside the order of termination. I do not find any error in the order of the Educational Appellate Tribunal in setting aside the order of termination issued by the petitioners.

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Insofar as backwages are concerned, the learned counsel for the petitioners submits that the Tribunal without considering that the respondent does not

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filed any affidavit stating that she was not gainfully employed during the dismissal till reinstatement, awarded the full back wages. He submits that the said aspect was not properly considered by the Tribunal.

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Per contra, learned counsel for the respondent submits that the petitioners have not raised this ground in the writ petition and learned counsel for the petitioners cannot be permitted to urge this ground without raising the ground in the memorandum of writ petition.

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I have perused the records. The petitioners have contended in the appeal memo that the respondent was not gainfully employed from the date of dismissal till reinstatement. I have perused the examination-in-chief of PW1. In the examination-in-chief of the respondent, she has nowhere stated that she was not gainfully employed from the date of dismissal of service till the reinstatement. However, the respondent has taken a ground in the appeal memo before the Tribunal. The Tribunal has not properly

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appreciated the said fact and awarded the full back wages, considering the evidence of PW1, who has not deposed that she was not gainfully employed from the date of dismissal till the reinstatement. This Court considering the entire evidence on record is of the opinion that the respondent is entitled for only 50% back wages. To that extent, the judgment passed by the Tribunal needs to be modified.

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In view of the above discussion, I proceed to

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pass the following:

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ORDER

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a) Writ petition is allowed in part.

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b) The judgment passed in M.A.(E.A.T).No.14/2014 dated 16.03.2022 by the III Additional City Civil and Sessions Judge, Bengaluru City (CCH No.25), is hereby modified.

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