IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 12TH DAY OF APRIL, 2019 BEFORE:
THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.1987 OF 2016 [S-RES] BETWEEN:
1. SRI. SRINIVASA EDUCATION TRUST (R), RESIDING AT SRINIVASA NILAYA, 4TH MAIN, SIDDAGANGA EXTENSION, TUMKUR-572 102, REP. BY ITS MANAGING TRUSTEE, SRI. K.THIMMARAJU, AGED ABOUT 69 YEARS.
2. SRI. K.THIMMARAJU, SON OF LATE DASAPPA, AGED ABOUT 69 YEARS, MANAGING TRUSTEE, SRI. SRINIVASA EDUCATION TRUST (R), 4TH MAIN, SIDDAGANGA EXTENSION, TUMKUR-572 102. ... APPELLANTS [BY SRI. S.P.KULKARNI, ADVOCATE] AND 1. SRI. SIDDALINGAPPA, SON OF KALINGAPPA, AGED ABOUT 56 YEARS, GOPALPURA OUTPOST, GUBBI TALUK-572 117, TUMKUR DISTRICT.
2. THE BLOCK EDUCATION OFFICER, NEAR GOVERNMENT FIRST GRADE COLLEGE, GUBBI-572 117, TUMKUR-DISTRICT. ... RESPONDENTS [BY SRI. FAYAZ SAB B.G., ADVOCATE FOR R1.
SRI. VASANTH V FERNANDES, HCGP FOR R2] THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.34171 OF 2011 DATED 10.06.2016 DISMISSING THE WRIT PETITION.
* * * * * THIS WRIT APPEAL COMING ON FOR ORDER, THIS DAY MOHAMMAD NAWAZ, J., DELIVERED THE FOLLOWING:
JUDGMENT Assailing the Order dated 10.06.2016 passed by the learned Single Judge in W.P. No.34171/2011 [S-Res], thereby confirming the Judgment and Decree passed by the Principal District Judge and Education Appellate Tribunal, at Tumkur [hereinafter referred to as ‘the Tribunal’ for short] in M.A.[EAT] No.10/2005 dated 24.11.2019, the present writ appeal has been filed.
2. We have heard the learned counsel appearing for the appellants, learned counsel appearing for respondent No.1 and the learned HCGP appearing for respondent No.2.
3. The brief facts of the case are that;
The respondent No.1 was appointed as an assistant teacher in Hindi on 20.10.1987 at Sri Srinivasa Hiriya Prathamika Shale, Gubbi. He was promised salary from June 1986 after getting aid to the institution from the Education Department. On 15.03.1990, he was transferred to Hosapalya School run by the appellants, wherein he worked till June 2005. Thereafter the said school was closed and he was orally instructed to report at Gubbi School. Accordingly, respondent No.1 served there without any particular work. However, on 15.11.2005, he was orally instructed that his services have been terminated.
Thereafter, he filed an appeal under Section 94 of the Karnataka Education Act, 1983 before the Tribunal at Tumkur in M.A.[EAT] No.10/2005 against the oral termination order passed by the appellants herein on 15.11.2005 and for a direction to reinstate him as assistant teacher with all consequential benefits from June 1986.
The Tribunal by an Order dated 24.11.2009 was pleased to partly allow the appeal, thereby quashing the oral order of termination dated 15.11.2005. Further, directed the appellants herein to pay a sum of Rs.2,00,000/- in full and final settlement of all the claims of respondent No.1 herein within sixty days from the date of order. Further ordered that, failing which, respondent No.1 herein will be entitled to interest on the said amount at 10% p.a. from the date of default until payment.
Aggrieved by the aforesaid order, the appellants herein filed W.P. No.34171/2011 and the learned Single Judge by an Order dated 10.06.2016 disposed off the said writ petition holding that there is no illegality in the aforesaid order passed by the Tribunal, however, the direction issued by the Tribunal to pay interest at 10% was vacated and in modification of the same, it was ordered that interest at 10% shall be payable on the amount of Rs.2,00,000/- if there is failure to pay the amount within two weeks from the date of the said order. Aggrieved by the same, the present appeal has been preferred.
4. It is the contention of the learned counsel for the appellants that the finding of the Tribunal as well as the learned Single Judge – that respondent No.1 herein was working in the schools established by the appellants herein is not sustainable as he was not working as assistant teacher in the appellants’ institution. It is contended that no sufficient opportunity had been provided to the appellants before the Tribunal. When respondent No.1 was not attending the school, there is no question of payment of salary. No ‘suspension’ or ‘dismissal’ order had been issued against him as he was not working as a teacher in the appellants’ institution and therefore, the question of termination does not arise at all. Legal notice was not served on the appellants. Bare reading of the service certificate at Ex.P1 shows that respondent No.1 had worked in the school at Gubbi till March 1992, but never worked in the school at Hosapalya. The Appointment Letter dated 20.10.1987 at Ex.P2 is a false and concocted document. The joining report or approval order obtained from the Education Department has not been produced. It is also contended that even if the service certificate at Ex.P1 is accepted, then it would only mean that respondent No.1 might have employed from June 1986 to March 1992 in the school at Gubbi, however, it does not establish that he has not joined the school at Hosapalya as per the Appointment Letter dated 20.10.1987 at Ex.P2. Therefore, respondent No.1 was not employed at any time after March, 1992 either at the school at Gubbi or at the school at Hosapalya. Therefore, the findings recorded by the Tribunal as well as the learned Single Judge and also awarding consolidated sum of Rs.2,00,000/- are not sustainable in law. Accordingly, the learned counsel seeks to allow the writ appeal.
Per contra, learned counsel appearing for respondent No.1 supported the impugned orders and sought to dismiss the writ appeal contending that the same does not merit consideration.
5. It is the case of respondent No.1 that he was appointed as an Assistant Teacher in Hindi on 20.10.1987 at Sri Srinivasa Hiriya Prathamika Shale, Gubbi. He was promised that salary will be paid after getting aid to the institution from the Education Department. On 15.03.1990, he was transferred to Hosapalya School run by the appellants, wherein he worked till June 2005. Thereafter, the said school was closed and he was orally instructed to report at Gubbi School. Accordingly, he served there without any particular work. On 15.11.2005, his services were terminated. Despite legal notice, no particulars were furnished or clarification was issued and his arrears of salary was not paid. According to him, action of the appellants herein denying work amounts to termination and it is a major penalty and imposing it without holding any enquiry and giving any opportunity, was illegal.
6. In order to substantiate his plea, apart from his oral testimony, respondent No.1 herein placed on record the service certificate at Ex.P1 and the Appointment Order at Ex.P2. The same goes to show that between June 1986 and March 1992, respondent No.1 had been employed as a permanent Hindi Assistant Teacher by the appellants’ institution. The Tribunal has come to the conclusion that there is not even a suggestion made to P.W.1 in his cross-examination that the service certificate is a fabricated document. The Letter of Appointment dated 20.10.1987 was issued by the Secretary, Sri Srinivasa Vidya Samsthe, Gubbi. It is also noticed that the existence of the school in question was admitted. Ex.P1-letter issued by the Block Education Officer, Gubbi, shows that the school at Hosapalya was closed during 2005-06. The institution did not choose to adduce evidence in their defence and thus failed to substantiate their defence. Further, the Tribunal has also considered copy of the legal notice-Ex.P3, postal receipts-Exs.P5 to 7, certificate of posting issued by H.P.O., Tumkur-Ex.P10. The Tribunal considering the material on record held that respondent No.1 herein has proved to have been removed from service from 15.11.2005. The said finding of facts is based on the evidence and material placed on record. Considering the entire facts and circumstances, the Tribunal was of the view that respondent No.1 was not entitled for arrears of salary and other consequential benefits as claimed and in lieu of reinstatement and payment of arrears, awarded a consolidated sum as compensation.
7. The learned Single Judge has also observed that no evidence has been led in by the Management to substantiate its stand that the certificate issued under the seal and signature of the Head Master and the Secretary were created and concocted. Even there is no specific suggestion in the cross-examination of P.W.1 that these documents were created. Further, the Head Master or the Secretary of the institution were also not examined. Hence, the learned Single Judge has rightly held that there is no illegality in the order passed by the Tribunal. The learned Single Judge, however, modified the order with regard to payment of interest to the effect that interest at 10% shall be payable on the amount of Rs.2,00,000/- if there is failure of payment within two weeks from the date of the said order.
We find no illegality or infirmity in the aforesaid order passed by the learned Single Judge. There is no merit in the writ appeal and accordingly, the same is dismissed.
Sd/- Sd/-
JUDGE JUDGE Ksm*