The Management Vs Sri K Ganesh Murali

SRI K GANESH MURALI, SON OF LATE SUBRAMANIYAM, AGED ABOUT 39 YEARS, R/AT NO.2, "MYLARLINYA NILAYAM", 1^ST CROSS, SRI MUKTHAMBIKE LAYOUT, BEHIND RACE MILL, SHANTHI NAGAR, DODDABALLAPUR, BANGALORE RURAL DISTRICT-561 203.

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…RESPONDENT

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(SRI SYED MUNAVER S I, ADVOCATE (ABSENT))

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN E.A.T.

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NO.1/2012 ON THE FILE OF THE EDUCATION APPELLATE TRIBUNAL, BANGALORE RURAL DISTRICT, BANGALORE AND SET ASIDE THE ORDER DATED 04.02.2013 VIDE ANNEXURE-C BY ISSUE OF A WRIT OF CERTIORARI.

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IN WP NO. 12462/2013

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BETWEEN:

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THE MANAGEMENT, SRI DEVARAJ URS EDUCATIONAL TRUST, REPRESENTED BY THE SECRETARY, TAMAKA, KOLAR-563 101.

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THE DIRECTOR ADMINISTRATION R.L. JALAPPA INDUSTRIAL TRAINING INSTITUTE, KODIGEHALLI, DODDABALLAPUR-561 203, BANGALORE RURAL DISTRICT.

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...PETITIONERS

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(BY SRI A.N GANGADHARAIAH, ADVOCATE [PH])

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AND:

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SRI PRADEEP B.P, SON OF PANDURANGACHARY, AGED ABOUT 41 YEARS, R/AT NO 93, 13^TH CROSS, OPP. MARAMMA TEMPLE, VIRUPAKSHAPURAM, VIDHYARANYAPURA POST, BANGALORE-560 096.

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...RESPONDENT

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(BY SRI RASHEED KHAN, ADVOCATE (ABSENT))

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN M.A.[E.A.T] NO.2/2012 ON THE FILE OF THE EDUCATION APPELLATE TRIBUNAL, BANGALORE RURAL DISTRICT, BANGALORE AND SET

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ASIDE THE ORDER DATED 04.02.2013 VIDE ANNEXURE-E BY ISSUE OF A WRIT OF CERTIORARI.

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

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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IN W.P NO.12463/2013

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The petitioners have challenged an order dated 04.02.2013 passed by the Educational Appellate Tribunal (henceforth referred to as 'the Tribunal'), Bengaluru Rural District, Bengaluru, in E.A.T. No.1/2012.

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The respondent was appointed as a Junior Training Officer in terms of a letter of appointment dated 11.08.2004 issued by the petitioner No.1. The petitioners contend that the respondent failed to discharge his duties promptly and therefore, he was terminated from service with effect from 12.01.2010 by an office order dated 12.12.2009 issued by the petitioner No.2. The respondent sought time to rectify the mistakes pointed out by the petitioners, which was of no avail.

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The respondent then challenged the memo/order of termination dated 12.12.2009 issued/passed by the petitioner No.2 herein before the Tribunal in an appeal under Section 94(1) of the Karnataka Education Act, 1983 (henceforth referred to as 'the Act, 1983'). The Tribunal after noticing that the petitioners herein were bound to comply with the procedure provided under Section 92 of the Act, 1983 before terminating an employee held in terms of the impugned order that, the order of termination of the respondent herein was bad and accordingly, set aside the memo dated 12.12.2009 issued by the petitioner No.2 herein terminating the respondent herein from the post of Junior Training Officer with effect from 12.01.2010 and directed the petitioners herein to reinstate the services of the respondent herein to his original post with continuity of service. The petitioners herein were further directed to pay 50% of the back wages with effect from 12.01.2010 if the respondent herein were to file an affidavit to the effect that he was not working elsewhere for gain during the interregnum period.

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Being aggrieved by the said order, the petitioners

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are before this Court.

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Learned counsel for the petitioners contended that the respondent was in the habit of absenting from work which affected the functioning of the institution and therefore, it was necessary to take corrective measures against the respondent. He contends that several offers were made to the respondent for voluntary retirement, which were not accepted by him. Therefore, the petitioners were compelled to terminate the services of the respondent.

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Learned counsel for the respondent is not present and therefore, this Court did not have the benefit of his submissions. Be that as it may, Section 92 of the Karnataka Education Act, 1983 provides as follows:

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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

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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 employees 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 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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Apparently, there was no compliance of Section 92

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of the Act, 1983 by the petitioners inasmuch as no charges were framed against the respondent and no enquiry was conducted and the order/memo of termination dated 12.12.2009 was passed/issued by the petitioner No.2 without even hearing the respondent. Therefore, the order of termination of the services of the respondent was in complete violation of Section 92 of the Act, 1983 and the Tribunal was justified in setting aside the order/memo dated 12.12.2009

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passed/issued by the petitioner No.2. Hence, there is no merit in this petition warranting interference by this Court.

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The petition is, therefore, dismissed.

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IN W.P NO.12462/2013

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The petitioners have challenged an order dated 04.02.2013 passed by the Educational Appellate Tribunal (henceforth referred to as 'the Tribunal'), Bengaluru Rural District, Bengaluru, in M.A.[E.A.T] No.2/2012.

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The respondent was appointed as a Junior Training Officer in terms of a letter of appointment dated 18.07.2000 issued by the petitioner No.1. The petitioners contend that the respondent failed to discharge his duties promptly and therefore, he was terminated by an office order dated 19.08.2009 passed by the petitioner No.2. Following this, the respondent sought time to rectify the mistakes pointed out in the order of termination, which was of no avail.

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The respondent then challenged the order of termination dated 19.08.2009 passed by the petitioner No.2 herein before the Tribunal in an appeal under Section 94(1) of

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the Karnataka Education Act, 1983 (henceforth referred to as 'the Act, 1983'). The Tribunal after noticing that the petitioners herein were bound to comply with the procedure provided under Section 92 of the Act, 1983 before terminating an employee held in terms of the impugned order that, the order of termination was bad and accordingly, set aside the order dated 19.08.2009 (wrongly stated as 31.08.2009 in the operative portion of the impugned order passed by the Tribunal) passed by the petitioner No.2 herein terminating the respondent herein from the post of Junior Training Officer with effect from 31.08.2009 (wrongly stated as 19.08.2009 in the operative portion of the impugned order passed by the Tribunal) and directed the petitioners herein to reinstate the services of the respondent herein to his original post with continuity of service. The petitioners herein were further directed to pay 50% of the backwages with effect from 31.08.2009 (wrongly stated as 19.08.2009 in the operative portion of the impugned order passed by the Tribunal) if he were to file an affidavit to the effect that he was not working elsewhere for gain during the interregnum period.

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Being aggrieved by the said order, the petitioners are before this Court.

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Learned counsel for the petitioners contended that the respondent was in the habit of absenting from work which affected the functioning of the institution and therefore, it was necessary to take corrective measures against the respondent. He contends that several offers were made to the respondent for voluntary retirement, which were not accepted. Therefore, the petitioners were compelled to terminate the services of the respondent.

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Learned counsel for the respondent is not present and therefore, this Court did not have the benefit of his submissions. Be that as it may, Section 92 of the Karnataka Education Act, 1983 provides as follows:

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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

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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 employees 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 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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Apparently, there was no compliance of Section 92 of the Act, 1983 inasmuch as no charges were framed against the respondent and no enquiry was conducted and the order of termination dated 19.08.2009 was passed by the petitioner No.2 herein without even hearing the respondent. Therefore, the order of termination of the services of the respondent was in complete violation of Section 92 of the Act, 1983 and therefore, the Tribunal was justified in setting aside the order

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dated 19.08.2009 (wrongly stated as 31.08.2009 in the operative portion of the impugned order passed by the Tribunal) passed by the petitioner No.2. Hence, there is no

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merit in this petition warranting interference by this Court.

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The petition is, therefore, dismissed.

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Sd/(R. NATARAJ) JUDGE

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SMA

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List No.: 1 Sl No.: 37

The Management v. Sri K Ganesh Murali

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The Management v. Sri K Ganesh Murali

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