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Management of M.S. Ramaiah Medical College and Hospital Vs. Dr. M. Somashekar - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtKarnataka High Court
Decided On
Case NumberWrit Appeal No. 7182 of 2003
Judge
Reported inILR2004KAR37; 2004(1)KarLJ532
ActsKarnataka Education Act, 1983 - Sections 92(1), 94 and 94(1)
AppellantManagement of M.S. Ramaiah Medical College and Hospital
RespondentDr. M. Somashekar
Advocates:N.B. Bhat, Adv.
DispositionAppeal dismissed
Excerpt:
.....an appeal to the educational appellate tribunal would lie only where the punishment or penalty of dismissal, removal or reduction in rank is imposed on the employee. if a termination is a mere retrenchment or termination simplicitor, the remedy will not be by way of an appeal to the tribunal under section 94(1) nor by way of an appeal to the competent authority under section 94(5). ; (ii) a reading of sub-section (1) of section 94 with section 92(1) in the light of the decision in principal's case (a.i.r. 1978 s.c. 344) would make it clear that an appeal would lie under section 94(1) where the order appealed against is a dismissal, removal or reduction, by way of or in the nature of penalty or punishment. this apart, the wording of section 94(5) also makes it clear, that an appeal would..........therefore, adding the requirement, for filing an appeal under section 94(1), that the order of dismissal/removal 'should have been passed in disciplinary proceedings', is unwarranted. when the words of the statute are clear and unambiguous, courts cannot add words, particularly a requirement not intended by the legislature. we are of the view that the learned judge might have, by oversight stated 'passed in disciplinary proceedings' instead of stating 'passed as a disciplinary measure'. be that as it may. the decision in shankarappa sharanappa gaure's case in holding that an appeal under section 94 would lie only against an order of punishment (of dismissal, removal or reduction in rank) 'passed in a disciplinary proceedings' is not good law and is overruled. it is sufficient if the.....
Judgment:

R.V. Raveendran, J.

1. The respondent was earlier working as a Professor and Head of the Department of Forensic Medicine in M.S. Ramaiah Medical College - the appellant herein. The appellant issued the following order dated 12-10-2002 to the respondent.--

'On a review of the organisation structure of the Department of Forensic Medicine of M.S. Ramaiah Medical College, it has been decided that the service of Dr. Somashekar, Professor and Head of the Department of Forensic Medicine of M.S. Ramaiah Medical College, are no longer required by the institution.

In terms of the letter of appointment dated 28th November, 1984, a crossed cheque bearing No. 777794, dated 12th October, 2002 for Rs. 84,922.50 drawn on Vijaya Bank, Yeshwanthpur Branch, Bangalore-560022 being the salary for three months in lieu of 3 month's notice, is enclosed.

The Management expresses its gratitude for the services rendered to the institution'.

2. Feeling aggrieved, the respondent approached the Educational Appellate Tribunal, Bangalore, by filing an appeal (MA [EAT] No. 31 of 2002) under Section 94 of the Karnataka Education Act, 1983 ('Act' for short). In the memorandum of appeal, the respondent contended inter alia that the order of termination was illegal and was a cloak to hide the mala fides of the Principal of the college and the college management against him. He alleged that the said order was issued as he did not agree to issue certain post-mortem reports and information on medico-legal cases in the manner required by the management.

3. In the said appeal, the appellant-management filed a detailed statement of objections denying the allegation of mala fides and contending that the order dated 12-10-2002 was an order of termination simpliciter. The appellant also filed an application under Order 7, Rule 11 of the Code of Civil Procedure for dismissal of the appeal as not maintainable on the ground that an appeal under Section 94 of the Act would lie only when a teacher or employee is dismissed or removed or reduced in rank by way of penalty in a disciplinary proceedings.

4. The Tribunal after hearing the parties, passed an order dated 20-1-2003, allowing the said application filed under Order 7, Rule 11 of the Code of Civil Procedure and dismissing the appeal as not maintainable. The said order was challenged by the respondent in Civil Revision Petition No. 1681 of 2003, later renumbered as Writ Petition No. 42023 of 2003. A learned Single Judge of this Court by an order dated 17-9-2003 (Dr.M. Somashekar v. Management of M.S. Ramaiah Medical College and Hospital, Bangalore 2004(1) Kar. L.J. 509), allowed the said petition holding that the Tribunal committed an error in having invoked the threshold bar and dismissing the appeal as not maintainable. He observed:

'To summarise, the jurisdiction of the Educational Appellate Tribunal is not confined only to penal orders under Section 94 nor is it circumscribed to those of the orders which have 'labels' of the three categories of cases as indicated in Section 94(1), but it will be necessary for the Tribunal to examine as to whether the consequences are penal and consequently, whether the true nature and colour of the order is such that it could clearly fit into the categories as amplified in Section 94 and if that is the position, then the Tribunal will have to exercise jurisdiction and decide the case'.

He therefore remanded the matter to the Educational Appellate Tribunal with a direction to take up the matter from the stage at which it was dismissed and decide the matter in accordance with law.

5. The management being aggrieved by the said order of the learned Single Judge, has filed this appeal. The appellant contends that having regard to the scheme of Sections 92,94 and 131 of the Act, an appeal is maintainable only when a teacher or an employee of a private educational institution is dismissed, removed or reduced in rank by way of penalty. It is also contended that a teacher or an employee of a private educational institution who is aggrieved by any other order of the management has to file a revision before the State Government under Section 131 of the Act.

6. We may refer to the relevant provisions of the Act, before considering the contentions urged by the appellant.

6.1 Section 92 deals with dismissals, removals, etc. The relevant portion of such-section (1) of Section 92 reads thus:

'Section 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.--

(a) in accordance with the conditions of service governing him;

(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 him such penalty, it may impose such penalty, on the basis of the evidence adduced during such inquiry'.

Section 93 requires that 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.

6.2 Section 94 provides for appeals. Sub-sections (I) and (5) of Section 94, which are relevant, are extracted below:

'Section 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.

xxx xxx xxx(5) In respect of an order imposing a penalty other than those specified in Sub-section (1) of Section 92, on any teacher or other employee, an appeal shall lie to the Competent Authority within three months from the date of communication of the order imposing such

penalty.

xxx xxx xxx(7) An appeal against an order of the Competent Authority under Sub-section (6) shall lie within the prescribed period to the Tribunal, whose decision shall be final'.

6.3 Section 96 deals with constitution of Educational Appellate Tribunal. Section 96(3)(a) provides that an Educational Appellate Tribunal may, if satisfied from the material on record that the order is arbitrary, perverse, mala fide, violative of the rules of natural justice or not sustainable on any other ground, pass such orders including one for the reinstatement of the employee, as it deems fit on such terms and conditions, if any, including payment of salary, allowances and costs. Sub-section (5) of Section 96 provides that no Civil Court shall have jurisdiction in respect of matters over which the Tribunal exercises any power under the Karnataka Education Act.

6.4 Section 98 deals with retrenchment of employees and Section 99 deals with termination of service. Section 98 provides that 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, Section 99 provides that 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 15 days salary for every completed year of service, subject to a minimum of three months salary and maximum of 15 months salary.

7. Termination of services is broadly classified into those imposed by way of punishment and those which are not. 'Dismissal' and 'removal' are terminations by way of punishment. The word 'dismissal' refers to a punishment, which debars an employee from seeking further employment with his employer in future. The word 'removal' refers to a punishment which, however, may enable the employee concerned to seek re-employment with the employer even after such removal. The words 'dismissal', 'removal' or 'reduction in rank' unless otherwise defined, always refer to imposition of punishment or penalty, by way disciplinary action or by way of victimisation. The terms 'dismissal' or 'removal' are not used to refer to terminations other than by way of punishment/penalty. On the other hand, a retrenchment refers to a termination otherwise than as a punishment, either as an economy measure or on account of the services of the employee becoming surplus. 'Termination simpliciter' refers to a termination in terms of the contract, otherwise than by way of punishment/penalty or retrenchment. Section 94(1) makes it clear that an appeal to the Educational Appellate Tribunal would lie only where the punishment or penalty of dismissal, removal or reduction in rank, is imposed on the employee. If a termination is a mere retrenchment or termination simpliciter, the remedy will not be by way of an appeal to the Tribunal under Section 94(1), nor by way of an appeal to the Competent Authority under Section 94(5).

8. In this context we may refer to the decision of the Supreme Court in The Principal, M.C. Jindal Public School and Ors. v. The Presiding Officer, Delhi School Tribunal and Ors. : [1978]2SCR507 , wherein, Section 8(3) of the Delhi School Education Act, 1973 was considered. The said section provided that an employee of a recognised private school against whom an order of dismissal, removal or reduction in rank is passed, is entitled to file an appeal against such order to the Tribunal. Interpreting the said section, the Supreme Court, held that two conditions must co-exist for applicability of the said section: (i) the appellant should be an employee of a recognised private school; and (ii) such employee should be visited with either of the three major penalties of dismissal, removal or reduction in rank. The Supreme Court further held that where the impugned order is not one of dismissal, removal or reduction in rank, but an order simpliciter of termination of service, appeal will be incompetent. The said principle would apply in interpreting Section 94(1) of the Act, as the said section is in pan materia with Section 8(3) of the Delhi School Education Act, 1973. A reading of Sub-section (1) of Section 94 with Section 92(1) in the light of the decision in The Principal's case, supra, would make it clear that an appeal would lie under Section 94(1) where the order appealed against is a dismissal, removal or reduction, by way of or in the nature of penalty or punishment. This apart, the wording of Section 94(5) also makes it clear, that an appeal would lie either under Sub-section (1) or (5), only where order is only imposing a punishment or penalty.

8.1 In Anoop Jaiswal v. Government of India and Anr. : (1984)ILLJ337SC , the Supreme Court held:

'It is, therefore, now well-settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct, it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee'.

The Supreme Court observed that though the order of discharge may be non-committal, it cannot stand alone; that the cause for the order will have to be taken into account; and if the Court, by reading the order of termination and the reason for termination together, reaches the conclusion that any act of misconduct alleged against the employee is the cause of the order and that but for that it would not have been passed, then it is inevitable that the order of discharge should fall to the ground as the employee has not been afforded a reasonable opportunity to defend himself.

8.2 In Ram Ekbal Sharma v. State of Bihar and Anr. : (1990)IILLJ601SC , the Supreme Court reiterated the principle thus, while dealing with the case of a compulsory retirement:

'... that even though the order is couched in innocuous language without making any imputations against the Government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged .....'.

8.3 The above principle was followed in High Court of Punjab and Haryana v. Ishwar Chand Jain : [1999]2SCR834 , holding that what is material is the true character of the order and the circumstances in which it was passed and not the manner in which the order is disguised; and that if an order, innocuously worded, is in fact an order of removal from service, it cannot be sustained as it is not preceded by an enquiry. In Anand Cinema v. Mohan Tiwari 1993-I-LLJ-1105 (MP): 1993 Lab. I.C. 651 (MP), the Madhya Pradesh High Court held that an innocuous order of termination of service, in fact founded on misconduct, without holding domestic enquiry, cannot be termed as retrenchment or termination simpliciter.

9. The learned Counsel for the appellant however submitted that to be called as 'dismissal or removal' referred in Section 94(1), a termination should be (a) punitive; and (b) made in a disciplinary proceedings, relying on the decision of Bharuka, J. in Shankarappa Sharanappa Gaure v. The Deputy Director of Public Instructions, Bidar and Ors. 1999(1) Kar. L.J. 438, In that case, an employee of an education institution filed an appeal before the Educational Appellate Tribunal against an order of the management placing him under suspension pending disciplinary enquiry. In the said appeal, he filed an application seeking a direction to the management to pay subsistence allowance. The Tribunal dismissed the said appeal on the ground of limitation. The application for subsistence allowance was also dismissed on the ground that the employee ought to have filed a separate appeal. Feeling aggrieved, the employee approached this Court. Learned Single Judge after referring to the relevant provisions rightly observed thus:

'Therefore, a bare reading of the above provisions clearly shows that any teacher or other employee of a private educational institution can prefer an appeal to the Tribunal only when dismissed, removed or reduced in rank, within the prescribed time and no appeal can be entertained by the Tribunal against an order of any other nature even if it pertains to the service conditions'.

After referring to the decision of the Supreme Court in The Principal's case, supra, the learned Single Judge observed thus:

'Keeping in view the above noticed statutory provisions and the legal principles, it is hereby held that, now after enforcement of the Education Act, the Tribunal constituted thereunder could entertain the appeal of an employee of the private educational institution, only against the orders of punishments passed in disciplinary proceedings awarding major penalties of dismissal, removal or reduction in rank...'.

(emphasis supplied)

We have carefully examined the above observations of the learned Single Judge with reference to provisions of Section 94 of the Act and the legal principles, in particular the decision in The Principal's case relied on by the learned Single Judge. Section 94(1) of the Act gives a clear right of appeal to an employee of a private educational institution against his dismissal or removal (or reduction in rank). Section 94(1) does not refer to 'disciplinary proceedings'. In The Principal's case, supra, the Supreme Court held than an appeal will lie if the employee has been visited with either of three major penalties of dismissal, removal or reduction in rank. The Supreme Court did not state that such penalty of dismissal or removal should be passed in a 'disciplinary proceedings'. Therefore, adding the requirement, for filing an appeal under Section 94(1), that the order of dismissal/removal 'should have been passed in disciplinary proceedings', is unwarranted. When the words of the statute are clear and unambiguous, Courts cannot add words, particularly a requirement not intended by the Legislature. We are of the view that the learned Judge might have, by oversight stated 'passed in disciplinary proceedings' instead of stating 'passed as a disciplinary measure'. Be that as it may. The decision in Shankarappa Sharanappa Gaure's case in holding that an appeal under Section 94 would lie only against an order of punishment (of dismissal, removal or reduction in rank) 'passed in a disciplinary proceedings' is not good law and is overruled. It is sufficient if the order of termination is punitive or is intended to be punitive.

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 simpliciter. 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 '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 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.

11. We may sum up the position regarding remedies available to an employee (including a teacher) of a private educational institution thus:

(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).

(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).

(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.

(iv) Where an employee contends and establishes that the order of termination simpliciter 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 a 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.

12. In this case, if the respondent is able to demonstrate that the order, though described as a termination simpliciter, is really a punitive termination, he would be entitled to maintain the appeal. Such an appeal obviously, cannot be dismissed at the threshold on the ground that the order is styled as termination simpliciter. When the appellant contended that such an order is really an dismissal or removal by way of penalty/punishment, the Educational Appellate Tribunal will have to necessarily examine the said contention, and if it was found that the order is in fact a dismissal/removal, though termed as an order of termination simpliciler, lift the veil and grant appropriate relief. In this case, the appeal has been rejected at the threshold without examining whether the order is punitive or not. The learned Single Judge was therefore justified in allowing the writ petition. We, find no reason to interfere with the order of the learned Single Judge allowing the writ petition and remitting the matter to the Tribunal. The appeal is therefore rejected.


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