Nagesh D R Vs Shree Beeralingeshwara Education Society (R)

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE COURT OF THE HONBLE PRINCIPAL DISTRICT AND SESSIONS JUDGE AT HASSAN IN MA (EAT) NO.1/2019 DATED 11.02.2020 VIDE ANNEXURE-A AND ETC.,

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

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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This petition filed by the appellate in MA (EAT) No.1/2019, is directed against the impugned order dated 11.02.2020 passed on IA No.II by the Principal District and Session Judge, Hassan, whereby the said application filed by respondent No.2 / Institution under Section 151 CPC was allowed by the Tribunal, which dismissed the appeal filed by the petitioner as not maintainable.

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Heard learned counsel for the petitioner and perused the material on record. The respondents having been served with notice of this petition have chosen to remain unrepresented and have not contested the petition.

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A perusal of the material on record will indicate that the petitioner was the appellant before the Tribunal in MA(EAT)

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No.1/2019, which was filed by him under Section 94 of the Karnataka Education Act, 1983, (for short, 'the said Act of 1983'), aggrieved by his deemed termination/removal and for reinstatement to the same post held by him and for other reliefs.

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In the said appeal, the respondents herein were arrayed as respondents and apart from contesting the appeal on merits, the respondents also took up the contention that the appeal was not maintainable and filed the instant application IA No.II seeking dismissal of the appeal. The said application having been opposed by the petitioner, the Tribunal proceeded to pass the impugned order allowing the application IA No.II and consequently, dismissing the appeal as not maintainable on the ground that there was no express order in writing, removing, dismissing or reducing the rank of the petitioner, which was capable of being challenged by way of an appeal under Section 94 of the said Act of 1983. Aggrieved by the impugned order passed by the Tribunal, petitioner is before this court by way of the present petition.

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Learned counsel for the petitioner would reiterate the various contentions urged in the petition and submit that for the purpose of filing an appeal under Section 94 challenging the

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removal, dismissal or reduction in rank of an employee of a Private Educational Institution, it is not necessary that there has to be a Written/Express order in writing and as held by the Division Bench of this Court in the case of 'N. DASEGODA V. SECRETARY DR.AMBEDKAR EDUCATION SOCIETY'¹ , which has not been considered by the Tribunal while passing the impugned order, and as such, the same deserves to be set aside and the matter remitted back to the Tribunal for reconsideration afresh in accordance with

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law. In the said judgment, it is held as under:

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"JUDGMENT

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The appellant has preferred this appeal challenging the order passed by the learned Single Judge who has set aside the order of the Karnataka Educational Appellate Tribunal, Tumkur, which had directed the respondent to reinstate the appellant in service as a Hindi Teacher forthwith and to pay consequential monetary benefits.

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2. For the purpose of convenience, the parties are referred to as they are referred to before the Educational Appellate Tribunal.

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3. Respondent is an educational society registered under the provisions of the Karnataka

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1 ILR 2010 KAR 19

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Societies Registration Act which is running Dr. Ambedkar Education Society at Yenjalagere, Sira Taluk, Tumkur District. The appellant was appointed as a Hindi Teacher against a clear and permanent vacancy as per the order dated 19.1.1989. The appellant had the requisite qualification of Hindi Ratna for being appointed to the said post. However, the appellant was not paid salary on the ground that the Government has not granted approval for such payment and grant-in-aid is not extended. The appellant was paid salary in installments. On the ground that the appellant had unauthorisedly remained absent in spite of three notices issued and served on the appellant, the respondent prevented the appellant from working as a Hindi Teacher in the said institution. On the contrary in his place they appointed one Mr. Rajanna. Therefore, aggrieved by the said action, the appellant preferred an appeal before the Educational Appellate Tribunal invoking Section 94(1) of the Karnataka Education Act (hereinafter for short referred to as ‘the Act’).

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4. Respondent after service of notice entered appearance and filed a detailed statement of objections. Their specific case was that, the appellant in spite of three notices being served calling upon him to resume to work, he did not join duty. He remained absent. In his place they have appointed one Mr. Rajanna. Therefore, they set up a plea of voluntary abandonment of service. Further, they contended that,

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an appeal under Section 94(1) lies only when there is an order of termination of an employee from the service. In the instant case there is no order of termination. Therefore, the appeal filed by the appellant is not maintainable.

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5. The Tribunal on consideration of the rival contentions held that there is no order of termination, no order of termination is duly served on the appellant, even if the appellant were to remain unauthorisedly absent from service, the respondents were under an obligation to initiate disciplinary action for the said misconduct and in the said enquiry if he had been found guilty of misconduct, then only they could have terminated his services. But, instead of resorting to that legal procedure, the respondents have illegally prevented the appellant from resuming work. It amounts to removal from service and, therefore, an appeal lies against such termination. On merits it held that, admittedly when no enquiry was initiated, when the appellant was appointed after following due procedure prescribed under law, his services could not have been terminated. Therefore, it allowed the appeal and directed the respondent to reinstate the appellant into service as a Hindi Teacher forthwith. Further it also directed the respondent to pay salary which includes pay and allowances as is admissible to a Teacher in the similar Government institution, with effect from 20.1.1997. Aggrieved by the said judgment

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and order of the Tribunal, the respondent preferred a Writ Petition before this Court.

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6. The learned single Judge held that, in the instant case admittedly the appellant has not been served with any order of termination. No disciplinary proceedings are initiated. The appellant was a habitual absentee and he did not attend to his duties. Therefore, the respondent had no option but to appoint another person in his place. This cannot certainly be termed as an unwritten termination, which would warrant filing of an appeal. There is no order of termination, which could be appealed against. The Tribunal was not justified in accepting the appeal and directing reinstatement of the respondent. Therefore, it set aside the order of the Tribunal. Aggrieved by this order, the appellant is in appeal.

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7. The learned Counsel for the appellant assailing the impugned order of the learned Single Judge contended that, Section 94(1) of the Act do not refer to any written order of dismissal or removal. Any teacher or an employee of a private educational institution who is

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dismissed, removed or reduced in rank may within three months from the date of communication of the order prefer an appeal to the Tribunal. Therefore, on the ground that no written order of dismissal or removal is passed, it cannot be said that an aggrieved person cannot invoke Section 94 of the Act. In support

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of his contention he relied on a judgment of a Division Bench of this Court in the case of P.E. Manjunath v. Chitradurga District Ambedkar Education Society¹ where it was held that, even in the absence of a written order, an employee has a right to present an appeal under Section 8 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 and the Tribunal has the jurisdiction to decide and grant appropriate relief in the light of the findings and, therefore, he contended that the order of the learned Single Judge requires to be interfered with.

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8. Per contra, the learned Counsel for the respondent relying on a judgment of this Court in the case of M. Jayamma v. Commissioner for Public Instructions and others² where it has been held that, an employee who is prevented from attending to work by the Management has to seek his remedy elsewhere, and not by filing appeal before the Tribunal under Sections 7 and 8 of the Act of 1975, contended that, the order passed by the learned Single Judge is in accordance with law and do not call for any interference.

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9. Therefore, the question that arise for consideration in this appeal is,

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“Whether an appeal lies under Section 94 of the Act against an order of dismissal, removal or reduction in rank in the absence of a written order?”

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10. Chapter XIV of the Act deals with terms and conditions of services of employees in private educational institutions. Section 92 of the Act deals with dismissal, removal, etc., Section 93 deals with communication of order which reads as under:—

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93. Communication of order:—

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(1) Every order of the Managing Committee imposing any penalty or otherwise affecting the conditions of service of an employee to his prejudice, shall be communicated to the employee in the prescribed manner.

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(2) No order which has not been communicated in accordance with sub-Section (1) shall be valid or be of any effect whatsoever.

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The aforesaid provision makes it clear that, every order of the management imposing any penalty shall be communicated to the employee in the prescribed manner. Sub-Section (2) makes it clear that, no order which has not been communicated in accordance with sub-Section (1) shall be valid or be of any effect whatsoever. Therefore, any order of penalty to be effective it has to be communicated in the prescribed manner. But, the provision do not specify that the order of penalty should be in writing. It is submitted that the Rules prescribing the manner of communication is not yet framed.

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11. Similarly, Section 94 which provides for appeal reads as under:—

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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 Section 4 and 5 of the Limitation Act, 1963 shall be applicable to such an appeal.

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(3) …. (4) …. (5) …. (6) …. (7) ….

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12. This provision empowers an aggrieved employee of a private educational institution who has been imposed with the penalty under Section 92 to prefer an appeal within three months from the date of communication of the order. Here again the law do not mandate that the order imposing penalty should be in writing.

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13. While dealing with similar provisions under the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975 where Sections 7 and 8 which are in para materia with Sections 93 and 94 of the present Act, after reviewing the entire case

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law, this Court in Manjunath's case formulated the following point for consideration:—

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“Whether the Management of a private educational institution could prevent its employee from approaching the Educational Appellate Tribunal against an order terminating his service by not passing an order, in writing, and/or not communicating the order to its employee and thereby deprive him of the remedy available to him under Section 8 of the Act and deprive the Tribunal of its jurisdiction at least till he secures a writ of mandamus from this Court directing the management to communicate the order?

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14. While answering the said point, the Court noticed that a similar question arose in the case of Dr. Kshama v. State of Karnataka³ , where this Court held as under:

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“when the jurisdiction was conferred on the Tribunal to decide every dispute or complaint in service matters of the civil servants, and for that purpose the Tribunal could entertain an application, by the mere fact that no order had been passed and/or communicated by the Government or the authority concerned, it could not be said that the Tribunal had no jurisdiction to entertain the application and to redress the grievance”.

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Further it held,

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“the Tribunal had jurisdiction to entertain the application in respect of the grievances of civil servants in all service matters even in the absence of communication of an order”

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15. Applying the ratio of the said decision, in P.E. Manjunath's case it was held that,

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“the management of a private educational institution cannot be allowed to deprive its employee of the right of appeal under Section 8 of the Act by not incorporating its decision in writing and/or communicating the same to the employee concerned or to deprive the jurisdiction of the Tribunal to entertain an appeal and to give relief

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Further it held,

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Section 8 should be interpreted to as to advance the intent, object and purpose of the Section, which is to provide a speedier and cheaper remedy to the employees of private educational institutions.

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….. that if in a given case the allegations made by the appellant before the Educational Appellate Tribunal is that the Management has failed to pass and/or communicate the order of termination of his service or any order affecting his condition of service, in writing, but has terminated his service or has taken action affecting his condition of service on any date, the Tribunal has the jurisdiction to entertain the appeal and to decide as to whether the allegations made as

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to the action taken by the Management is true and, if it is found to be true, to adjudicate as to whether the action is justified, and if it is found that the action was not justified in law and to grant appropriate relief to the appellant.”

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Unfortunately, the learned Single Judge while dealing with a similar situation under the provisions of the Act of 1975, after noticing Section 93 in the present Act, in M. Jayamma's case did not notice the aforesaid binding decision and took a contrary view. It was held that,

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“Communication of order in writing is an essential ingredient for terminating the services or dismissing the employee or to make effective the penal order passed against the employee. An appeal can lie only within three months from the date of communication of the order. It is the communication in writing of the order passed by the Board of Management that can be said to give a cause of action to the aggrieved person to approach the Tribunal. Unless it is so communicated, no cause of action accrues to the aggrieved employee. An order becomes effective when it is communicated to the person when he/she is going to be adversely affected. An order passed and kept in the pocket and drawer of the Management's office not communicated does not become ordinarily an affective order. If no order has been communicated to the petitioner and the petitioner as such could not produce that order,

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definitely her appeal was not maintainable as no cause of action did accrue to her to file the appeal. As no effective order of termination or dismissal of petitioner's service had been passed and had been communicated, the claimant or the present revision petitioner had no right or cause of action to approach the Tribunal. If the petitioner had earlier been working in that Institution and is not terminated through properly communicated order of termination, her right to continue in services is not affected. This is a matter to be decided when proper appeal is filed before the Tribunal against such order as referred in Sections 7 and 8 of the Act when it is communicated to her as principle of law is that till order is not communicated in writing, it will not be effective and no cause of action is accrued to the revision petitioner to file the revision.”

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16. With great respect to the learned Judge, the said view runs counter to the view taken by the Division Bench in the aforesaid Manjunath's case.

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17. The Act was enacted to provide for the planned development of educational institutions, inculcation of healthy educational practice, maintenance and improvement in the standards of education and better organisation, discipline and control over educational institutions in the State with a view to fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education. Chapter XIV of the Act is a self contained

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code in so far as the terms and conditions of service of employees in private educational institutions are concerned. It sets out under what circumstances any punishment could be imposed on an employee or a servant of an educational institution and prescribes an elaborate procedure before any such penalty is imposed. Section 93 of the Act mandates that every order imposing a penalty on a employee shall be communicated to the employee in the prescribed manner and until it is done it is not a valid order and it has no effect whatsoever. It is based on past experience, where the employee of an educational institution was left in the lurch, by termination of his employment, without a written order being communicated to him, so that he is prevented from having any legal remedy. Therefore, the legislature wanted to communicate a strong message to such educational institutions that such illegal acts would not put an end to a legal and valid relationship of master and servant. It has no legal effect and their obligations to the employee continues. It is to act as a deterrent and nip at the bud such mischievous tendencies this provision is made. That does not mean that in law when there is no termination order, he cannot avail the remedy provided under the Act. Therefore, the legislature has consciously avoided the word “written” order in the entire scheme of the Act, and a remedy is provided against both written or oral orders, in Section 94 of the Act. Section 94 provides a remedy to such

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aggrieved persons. A separate forum by way of an Educational Appellate Tribunal is constituted under the Act in every District to adjudicate the disputes between an employee of an educational institution and its management. Thus, the Act provides a comprehensive machinery for adjudication of disputes to an aggrieved employee of an educational institution.

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18. When the law mandates that, unless an order imposing penalty is communicated to the employee it has no legal effect, it means the management cannot prevent such employee from attending to normal work. Notwithstanding an order of penalty is imposed, unless it is communicated, it is not operative and the employee continues to be in employment. Again it is based on the fundamental principle of natural justice. When the statute has taken so much pains to protect the interest of an employee and thereafter has provided a right of appeal against such action, the remedy provided under the Act cannot be denied to an employee, if the management chooses not to pass a written order imposing the penalty. That is why the legislature in its wisdom has not used the words ‘order in writing’ both in Section 93 as well as in Section 94. The order imposing penalty may be in writing or may not be in writing. Further the said order is to be communicated. Again it is not stated that the communication should be in writing. If the order is not communicated such an order would

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not have any legal effect. In either event, it prevents an employee from doing his duties. But, by such an order, if the employee is prevented from attending to work, certainly the employee is aggrieved, and he has a right to challenge such illegal act. A statutory right of appeal is conferred on such aggrieved employee, under the Act. Such a statutory right of appeal cannot be defeated by not passing an order of termination, not communicating the same, thus preventing the employee from getting the relief provided under the Act. Any other interpretation to these provisions would negate the object and intent of these provisions. By not passing an order, not communicating such an order, the management cannot be given better rights. If without passing orders, without communicating, if the management were to keep such employees outside the institutions and appoint person in his place and if the employee is denied the relief of appeal provided under the statute, it would be a travesty of justice and the very purpose of enacting the Act would be defeated. That is why in the aforesaid Manjunath's case, when it had an occasion to consider a similar provision in the previous

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Act, namely Sections 7 and 8, it was clearly held that an appeal lies even against an order which is not in writing. That would meet the ends of justice. Therefore, the judgment rendered by the Learned Single Judge in the case of M. Jayamma v. Commissioner for Public Instructions and

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others (Supra) do not lay down good law and we hereby overrule the same.

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19. In the instant case it is not in dispute that the appellant was appointed as a Hindi Teacher by the respondent after following the procedure prescribed under law. It is also not in dispute that, on the ground that the appellant was unauthorisedly absent, three notices came to be issued and according to the respondents all of them were duly served on the appellant which is denied by the appellants. Therefore, according to the respondents it is a case of voluntary abandonment. Even in a case of voluntary abandonment, before the management could terminate the services of an employee on that ground, law mandates that an enquiry is to be initiated. It is only after enquiry, if the misconduct alleged namely unauthorised absence is proved, the management gets the jurisdiction to terminate the services of such an employee either by way of dismissal or by way of removal. When once such an order is passed, Section 93 mandates that it is to be communicated to the employee to be effective. If it is not communicated in writing, in law, there is no order of termination at all and against such an order whether in writing or oral, a statutory appeal under Section 94 is provided. When the respondent asserts, the appellant voluntarily abandoned the services and in his place they have appointed one Rajanna as Hindi Teacher and he is working for two years, it is a clear case of termination

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of service of the appellant and, therefore, Section 94(1) is attracted. The Tribunal was justified in entertaining the appeal and granting the relief and setting aside the order of dismissal as admittedly it was not preceded by any enquiry as prescribed under law. Therefore, the Learned Single Judge was not right in setting aside the order of the Educational Appellate Tribunal, which has rightly entertained the appeal and granted the relief to the appellant. In that view of the matter, the appellant is entitled to succeed in this appeal. Hence, we pass the following order:—

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(a) Writ appeal is allowed.

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(b) The order of the Learned Single Judge is

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hereby set aside.

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(c) The order of the Tribunal is restored.

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(d) Parties to bear their own costs.

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In this context, a perusal of the impugned order will

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indicate that the principles laid down by the Division Bench in the aforesaid judgment have not been considered or appreciated by the Tribunal while passing the impugned order. Under these circumstances, though several contentions have been urged by both sides in support of their respective claims, without expressing any opinion on the merits/demerits of the rival contentions and in order to provide one more opportunity to both parties to put forth

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their respective claims on the main appeal as well as on IA No.II, I

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deem it just and appropriate to set aside the impugned order and remit the matter back to the Tribunal for reconsideration afresh and in accordance with law on all aspects of the matter including maintainability of the appeal and in accordance with law within a stipulated time frame.

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In the result, I pass the following:

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ORDER

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(i) Petition is hereby allowed .

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(ii) Impugned order passed by the Prl.District and Sessions Judge, Hassan in MA (EAT) No.1/2019 dated 11.02.2020 vide Annexure - A, is hereby set aside.

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(iii) Matter is remitted back to the Tribunal for reconsideration of the main appeal on merits and in accordance with law.

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(iv) IA No.II filed by the respondents is disposed of by leaving open all contentions to be decided by the Tribunal in accordance with law.

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(v) The appeal MA (EAT) No.1/2019 is restored to the file of the tribunal.

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(vi) The petitioner shall appear before the Tribunal on 15.04.2026 without awaiting further notice from the Tribunal. Upon the petitioner appearing before the Tribunal on 15.04.2026, the Tribunal shall issue notice to the respondents and secure their presence and dispose of the appeal on merits within a period of three months from the date of appearance of the respondents before the Tribunal.

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(vii) All rival contentions on all aspects of the matter including maintainability are kept open and no opinion is expressed on the merits/demerits of the rival contentions.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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BH

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List No.: 1 Sl No.: 3

Nagesh D R v. Shree Beeralingeshwara Education Society (R)

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Nagesh D R v. Shree Beeralingeshwara Education Society (R)

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