IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.3486 OF 2018 (S-RES) BETWEEN:
VIJAYA EDUCATION SOCIETY (REGD.) REPRESENTED BY ITS SECRETARY GRAMA PANCHAYAT ROAD, HINAKAL MYSORE DISTRICT-570 017 ... APPELLANT (BY SHRI M.S.BHAGWAT, ADVOCATE) AND:
SRI S.MARIMUTTU S/O. SRINIVASA C.
AGED ABOUT 60 YEARS R/AT DOOR NO.49 4TH CROSS, KURUBARAHALLI MYSURU DISTRICT-570 001 ... RESPONDENT (BY SHRI ASHOK B.PATIL, ADVOCATE) ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 19.09.2018 PASSED BY THE LEARNED SINGLE JUDGE IN WP.NO.14516/2010 AND ETC.
THIS APPEAL COMING ON FOR PRELIMINAY HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent.
2. By the impugned order, the learned Single Judge has dismissed the writ petition filed by the appellant under Articles 226 and 227 of the Constitution of India. The challenge in the writ petition was to the order dated 3rd March 2010 passed by the learned Principal District Judge and Educational Appellate Tribunal, Mysuru (for short ‘the said Tribunal’) by which an appeal preferred by the respondent was allowed by the said Tribunal.
3. Initially, the respondent was appointed as an Instructor in Mysuru Industrial Training Institute and later on, promoted to the post of the Principal. The respondent was placed under suspension and the disciplinary proceedings were initiated against him. The Enquiry Officer held that the charges against the respondent were proved. By accepting the report of the Enquiry Officer, the appellant passed an order of reverting the respondent from the post of the Principal to the post of Junior Training Officer. The said order was subjected to a challenge by the respondent before the said Tribunal.
4. The said Tribunal framed six issues including the issue as to whether the enquiry conducted was proper and valid. The parties were permitted to adduce evidence. The appellant examined 9 witnesses and produced documents. The respondent examined himself and produced documents. By the order impugned dated 3rd March 2010, the said Tribunal allowed the appeal by setting aside the order of reversion of the respondent. The learned Single Judge by the impugned order has dismissed the petition filed by the appellant.
5. The learned counsel appearing for the appellant submitted that even assuming that the preliminary issue about the validity of enquiry was framed, the same was not decided by holding that the enquiry was not fair and proper. He submitted that without recording a finding that the enquiry was not fair and proper, the said Tribunal ordered examination of witnesses and after considering their evidence, came to the conclusion that the charges against the respondent were not proved. He submitted that as the preliminary issue was not at all answered by holding that the enquiry was not fair and proper, the said Tribunal could not have gone into the merits and decided that the charges against the respondent were not established. He submitted that there is no power conferred on the said Tribunal under the Karnataka Education Act, 1983 (for short ‘the said Act of 1983) to allow the parties to adduce evidence and to record a finding on the question whether the charges were established or not based on the evidence adduced before the Tribunal. He submitted that even assuming that the appellant has adduced evidence, estoppel cannot come in the way of the appellant. He has relied upon a decision in the case of the President Golden Valley Education Trust Oorgaum Kolar Gold Field vs. the District Judge & Educational Appellate Tribunal, Kolar1.
6. The learned counsel appearing for the respondent supported the impugned judgment and order by relying upon a decision of the learned Single Judge of this Court in WP.No.15090/2007 dated 16th September 2009 between the Management of Gokula Education Foundation and another vs. Sri G.S.Srinivas Bhat.
7. We have given careful consideration to the submissions. Firstly, it must be noted here that before the said Tribunal, the appellant examined as many as 9 witnesses and 1 ILR 1978 KAR 526 produced large number of documents to establish charges against the respondent. The respondent also examined himself and produced documents. Obviously, the evidence was adduced by the appellant to prove the charges against the respondent. A perusal of the impugned order of the said Tribunal shows that there is in depth consideration and appreciation of oral and documentary evidence adduced before the said Tribunal and a finding has been recorded that the appellant has failed to establish the charges against the respondent. The argument before the learned Single Judge was not on the finding recorded by the said Tribunal but on the issue whether the said Tribunal had power to permit recording of evidence. No argument appears to have been canvassed on merits of the finding recorded by the said Tribunal based on evidence adduced before it.
8. We must note here that, what was invoked by the appellant before the learned Single Judge was a discretionary and equitable jurisdiction under Articles 226 and 227 of the Constitution of India. It is a settled law that in writ jurisdiction, the Court need not interfere with every illegal order. Moreover, the law is well settled that when by setting aside one illegality, another illegality is likely to be restored, the writ Court will be justified in refusing to exercise the discretionary jurisdiction. In the present case, the finding of the said Tribunal based on the appreciation of evidence adduced by the parties is that the charges against the respondent have not been proved, is not a subject matter of the challenge.
9. The learned counsel appearing for the appellant is right to an extent that estoppel cannot operate against the statute but in this case, we are concerned with exercise of discretionary jurisdiction by the learned Single Judge while exercising powers under Articles 226 and 227 of the Constitution of India. The fact that without any protest, the appellant adduced oral evidence by examining 9 witnesses and produced documents is certainly a relevant consideration for deciding whether interference of extraordinary jurisdiction under Article 226 of the Constitution of India is called for.
10. We have perused the decision of the learned Single Judge of this Court in the case of the President Golden Valley Educational Trust (supra) relied upon by the learned counsel appearing for the appellant. This decision was rendered while dealing with the provisions of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975. The learned Single Judge held that the Appellate Tribunal under the said Act, 1975 has a similar powers which are conferred on the Labour Court or Industrial Tribunal under Section 10 read with Sections 11 and 11-A of the Industrial Disputes Act, 1947. By the said Act of 1983, the aforesaid Act of 1975 was repealed. In the subsequent decision in the case of the Management of Gokula Education Foundation (supra), the learned Single Judge compared the provisions of the repealed Act and the said Act of 1983 and came to a conclusion that the powers conferred on the Appellate Tribunal under the said Act of 1975 and the powers conferred on the Educational Appellate Tribunal under the said Act of 1983 are no different and the scheme of both the acts is not different.
11. Thus, there cannot be any dispute about the power and jurisdiction of the said Tribunal. There is only dispute is whether the said Tribunal could allow the parties to adduce evidence without specifically deciding the preliminary issue on the legality and fairness of the enquiry.
12. In the facts of the case, it is not necessary for us to go into the said question. The reason being that, both the parties voluntarily adduced oral and documentary evidence and therefore, it is obvious that the appellant proceeded on the footing that after the preliminary issue was framed, it was called upon to prove the charges against the respondent before the said Tribunal by adducing evidence. As the appellant was permitted to adduce evidence, there was no prejudice to the appellant.
Taking overall view of the matter, we find no reason to interfere with the discretionary order passed by the learned Single Judge. Accordingly, the appeal is dismissed.
Sd/- CHIEF JUSTICE Sd/- JUDGE LB