Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.1091 OF 2012 (S-DIS) BETWEEN:
THE BOARD OF MANAGEMENT SRI ADMAR MUTT EDUCATION COUNCIL UDUPI-576 101.
REPRESENTED BY ITS HONORARY SECRETARY DR. K SRIHARI SON OF K GOPALKRISHNA AGED 70 YEARS RESIDING AT “USHANIVAS”, No.35 2ND MAIN, CHOLANAGAR R T NAGAR POST BENGALURU.
…APPELLANT (BY SRI. MANMOHAN P N, ADVOCATE) AND:
SRI P R JANARDHAN SON OF P RAMAMURTHY AGED ABOUT 52 YEARS RESIDING AT NO.27 5TH MAIN, 2ND CROSS, MICO LAYOUT, BTM II STAGE BENGALURU-560 076.
…. RESPONDENT (BY SRI. S B MUKKANAPPA, ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No.10646 OF 2004 (S-DIS) DATED 25.01.2012.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15.10.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J, PRONOUNCED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 25.1.2012 passed by the learned Single Judge in W.P.No.10646 of 2004 directing the respondent No.1-Management to reinstate the petitioner with 25% backwages, continuity of service and consequential benefits, respondent No.1- Management has come up in appeal.
2. Parties are referred to as per their rankings in the writ petition.
3. The petitioner was appointed as a Physical Education Teacher in the school run by respondent No.1-Management. That on 26th, 27th and 28th of December, 1989, a sports meet was organized at Poornaprajna inter school games meet at Sangameshwarpet, Chickmagalur. During the said sports meet, the petitioner had shown utter disrespect to the higher authorities and had high handedly postponed the match. For the misconduct conducted by the petitioner, three articles of charges were framed against him. The petitioner gave an explanation to the charges leveled against him. Respondent No.1 being not satisfied with the reply given by the petitioner decided to hold an enquiry against him. An enquiry was held and the order of penalty came to be passed on 9.5.1991 dismissing the petitioner from service.
The petitioner being aggrieved by the order of dismissal dt.9.5.91 filed an appeal before the Educational Appellate Tribunal and District Judge, Chickmagaluru (hereinafter referred to as ‘the Tribunal) in Appeal No.1/1991. The Tribunal framed five points for consideration and recorded the evidence of the parties. The Tribunal on appreciation of the pleadings and oral and documentary evidence held that the charges leveled against the petitioner as proved and the order of penalty of dismissal does not call for interference and consequently dismissed the appeal filed by the petitioner.
The petitioner being aggrieved by the order of the Tribunal, preferred W.P.No.10646 of 2004. The learned Single Judge allowed the writ petition and set aside the order of dismissal dt.9.5.1991 and the order of Tribunal dated 11.5.2001 passed in Appeal No.1/1991 and directed respondent No.1 to reinstate the petitioner into service within four weeks from the date of passing the order with 25% back wages, continuity of service and consequential benefits.
Respondent No.1 being aggrieved by the order dt.25.1.2012 passed by the learned Single Judge in W.P.No.10646 of 2004, has filed the writ appeal.
4. It is the contention of the petitioner that no opportunity was given to him to represent his case before the enquiry officer. The case of the petitioner is that he was working as a Physical Education Teacher in respondent No.1- school and sports meet was organized on 26th 27th and 28th December 1989.
During the sports meet the petitioner committed certain misconduct and he was kept under suspension and charges were framed against him. The charges are as follows :-
1) Gross indiscipline, disobedience and high handedness was exhibited by Sri.P.R.Janardana the charge-sheeted employee on 28.12.1989 in the matter of carrying out his duties as P.E. Teacher of Poornaprajna High School, Sangameshwarapet during the Poornaprajna Spots Meet at Sangameshwarapet from 26.12.1989 amounting to gross misconduct, indiscipline and disobedience of orders.
2) Utter disrespect, misbehaviour and gross indiscipline and disobedience of orders were shown by Sri.P.R. Janardhana to the President of the Admar Mutt Education Council and his other superior at the Games Meet held on 28.12.1989.
3) Sri.P.R.Janardhana, Charge sheeted employee, exhibited gross misconduct in instigating hostel students of Sangameshwarapet High school and the public of Sangameshwarapet who had come to witness the games and attend the function arranged to distribute Trophies, to shout slogans against the Sangameshwarapet High School and demanding the holding of Volley Ball Match, thus creating utter indiscipline among the students of Sangameshwarapet High School.
5. A Committee was formed under the Chairmanship of one Dr.B.B.Shetty who is also a Governing body member along with two others i.e., Sri.K.P.Ishwara Bhat, Advocate Chickmagalur. Subsequently, Sri.Ishwara Bhat was deleted and in his place, one Y.Venkataraman Bhat was appointed as a member. The enquiry was held on 3.6.1990. On behalf of the Management, one Sri.Mahalinga Bhat who was the in-charge Head Master of P.P.High School was examined as PW1 and K.P.Ishwara Bhat, Advocate as PW2 and Stany Fernandes, who was Physical Education Teacher of P.P.High School, Sadashivanagar, Bengaluru were examined. The said case was adjourned to 17.6.1990. That the petitioner has signed in the order sheet and subsequently denied that he has not signed it and on 17.6.1990. One Laxminarayana Muchinthaya, H.P.Desai, S.V.Manjunath and one G.V.Chudanath Iyer were examined on that day. The petitioner remained absent on the said date and it was taken as not cross examined. The petitioner did not lead any rebuttal evidence in the enquiry proceedings and also did not cross examine the witnesses examined on behalf of the Management.
6. The enquiry officer submitted his report holding that the charges leveled against the petitioner i.e. charges 1 and 2 were proved and charge No.3 was not proved.
7. The petitioner was issued a notice and asked to say whether he has to say anything about the punishment. He submitted a reply dated 3.1.1991 contending that he has not intimated about the further date of enquiry and that the charges were unfounded and even if they are found to be proved, the extreme punishment from service or dismissal was not warranted. The Management was not satisfied with the reply given by the respondent on 3.1.1991 and passed the order of termination.
8. The said order of termination was challenged before the Education Appellate Tribunal and District Judge at Chickmagalur in Education Appeal No.1/1991. The Tribunal has framed six issues and granted an opportunity to the parties to lead evidence. Accordingly, the petitioner/appellant and respondent No.1 have led evidence and got marked documents. The Tribunal after appreciating the oral as well as documentary evidence and the report of the enquiry, has held that the charges leveled against the petitioner were proved and further observed that :
“As regards the 2nd charge, the witnesses PW1, PW4 and PW5 gave clear evidence that the appellant was talking with Swamiji in high voice and actually he was shouting. In fact PW4 even stated that the appellant accused Swamiji of showing favouritism. In fact, there was absolutely no interestedness in these witnesses to depose falsely against the appellant. The appellant in fact was not even present when the statements of Laxminarayana Muchinthaya, M.D. Desai and Choodanath Iyer were recorded. He has not shown as to why they should speak falsehood. There also seems to be no reason for the witnesses to speak falsehood against the appellant. The enquiry committee therefore, rightly relied upon the evidence of these witnesses and came to the right conclusion that charge 2 was also proved.”
and consequently dismissed the appeal.
9. The learned Single Judge was pleased to observe that charge Nos.1 and 2 manifestly makes it clear that it is vague and does not contain necessary details. The said observation is incorrect as the charges leveled against the petitioner-workman are clear that he was gross indisciplined, disobedient and exhibited high handedness while carrying out his duties and further the second charge leveled against him is utter disrespect, misbehavior and gross indiscipline and disobedience of order shown to the President of respondent No.1/appellant-Society and other superiors at the games meet held on 28.12.1989. The said charges are very clear and the petitioner having understood the charges leveled against him, has participated in the enquiry proceedings and the petitioner having been unsuccessful in the enquiry proceedings and further not chosen to participate in the enquiry proceedings. This goes to show that the petitioner was not diligent in discharging his duties and also in the enquiry proceedings. The charges leveled against the petitioner are grave in nature because the petitioner as a teacher should be a role model to the students. The petitioner disobeyed the orders of the Management and misbehaved with higher authorities. That the action of the petitioner is condemnable. The acts of the petitioner cannot be equated with that of a worker in the factory. Therefore, for maintaining discipline in the Institution in which thousands of students are studying, the decision of terminating the services of the petitioner cannot be said to be grossly disproportionate to the misconduct rule.
10. The learned Single Judge failed to consider the oral as well as the documentary evidence led by respondent No.1-Management before the enquiry officer as well as before the Tribunal and has committed an error in allowing the writ petition. Further, the learned Single Judge has not taken into consideration regarding the behaviour of the petitioner. The Petitioner did not place any material before the learned Single Judge to show that he was not gainfully employed during the period of dismissal. The learned Single Judge without considering the said aspect has granted 25% back wages to the petitioner. That the order of the learned Single Judge is erroneous and the same is liable to be set aside. The petitioner is aged about 59 years. At the fag end of service, he should not be sent out of the Institution with a stigma and if the order of dismissal is confirmed, he has to suffer throughout his life. If the order of dismissal is modified to compulsory retirement to enable the petitioner to be eligible for pension and other retirement benefits, it would meet the ends of justice.
11. Hence, we pass the following :
ORDER The writ appeal is allowed. The order dated 25.1.2012 passed by the learned Single Judge in Writ Petition No.10646 of 2004 and also the order dated 9.5.1991 of the respondent No.1-Institution imposing the penalty of dismissal of the petitioner- employee from service are modified.
Respondent No.1-Institution is directed to consider the case of the petitioner as that of compulsory retirement with consequential benefits and pass orders accordingly.
Next >