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S.R. Wilson v/s Bishop Cotton Girls High School, Represented by Its Principal

    Writ Petition No. 19435 of 2021 (S-RES)

    Decided On, 15 December 2021

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE S.G. PANDIT

    For the Petitioner: Abhinav Ramanand, Advocate. For the Respondent: D.M. Sainath, Advocate.



Judgment Text

(Prayer: This writ petition is filed under Article 227 of the Constitution of India praying to quash the order dated 19.08.2021 passed on i.a.no.1 by the LV additional City Civil Sessions Judge, Bengaluru 9CCH-56) in M.A(Eat) 8/2021 at annexure-l the present writ petition and consequently, allow i.a.no.1 filed by the petitioner/appellant in M.A.(Equivalent)8/2021.)

1. The petitioner is before this Court under Article 227 of the Constitution of India questioning the legality and correctness of the order (Annexure-L) dated 19.08.2021 passed on I.A.No.1 by the LV Addl. City Civil and Sessions Judge, Bangalore in M.A(EAT) No.8/2021 and consequently to allow I.A.No.1 filed by the petitioner.

2. Heard Sri Abhinav Ramanand, learned counsel for the petitioner and Sri Sainath D.M. learned counsel for the respondent. Perused the writ petition papers.

3. Learned counsel for the petitioner submits that initially petitioner was appointed as Driver on temporary basis and subsequently by order dated 20.08.1993, petitioner was confirmed as Driver in the respondent- Bishop Cotton Girls High School (for short ‘the School’. Pursuant to promotion order (Annexure-C) dated 14.03.2014 petitioner was promoted as Maintenance Supervisor.

4. Learned counsel for the petitioner submits that by order (Annexure-F) dated 24.03.2021, petitioner was kept under suspension alleging that due to petitioner’s negligence in monitoring the staff, petitioner was responsible for misappopriating 45 CPUs. It is the case of the petitioner that without conducting any enquiry or without providing any opportunity, notice of termination dated 24.06.2021 (Annexure-G) was issued terminating the services of the petitioner w.e.f. 28.06.2021. Aggrieved by the same, the petitioner approached the Educational Appellate Tribunal in M.A.(EAT) No.8/2021. Along with the appeal, petitioner also filed IA.No.1 under Section 96(3)(c) of the Karnataka Education Act, 1983 (for short ‘the Act’) praying for stay of operation of the notice of termination dated 24.06.2021. On filing of objection by the respondent, the Tribunal on consideration of I.A.No.1 by its order dated 19.08.2021 rejected petitioner’s application for stay of the impugned notice of termination.

5. Learned counsel for the petitioner submits that Section 96 (3) of the Act empowers the Tribunal to stay the operation of the order under appeal on such terms as it may think fit. Learned counsel contends that petitioner had made cut a strong and prima facie case for grant of interim order of stay. It is the case of the petitioner that no enquiry was conducted by issuing charge memo and providing an opportunity to have his say on the alleged charge. Learned counsel for the petitioner points out from the enquiry report filed by the learned counsel for the respondent along with memo dated 29.11.2021 that no witness was examined on behalf of the Management nor petitioner is provided with an opportunity to examine the witness. As the notice of termination is the result of total violation of principles of natural justice, learned counsel for the petitioner submits that the petitioner had made out prima facie case for grant of stay as prayed.

6. Learned counsel for the petitioner taking through the impugned order of the Tribunal submits that Tribunal rejected the application of the petitioner for stay on the ground that respondent conducted certain enquiry and granting of interim prayer would amount to granting final relief. Learned counsel would submit that granting of interim order of stay of termination notice would not amount to granting final relief, since stay would keep the order of termination in abeyance till the final order by the Tribunal Learned counsel for the petitioner in support of his contentions places reliance on the decisions of this Court in MARY THERESA MORRIS VS. MANAGEMENT OF ST.ANNE’S EDUCATIONAL SOCIETY reported in ILR 1994 KAR 3152, and in SHREE CHAMUNDI MOPEDS LTD Vs. CHURCH OF SOUTH INDIA TRUST ASSOCIATION CSI CINOD SECRETARIAT, MADRAS reported in (1992) 3 SCC 1.

7. Per contra, learned counsel for the respondent-School submits that respondent has placed on record enquiry report to prima facie establish that the respondent-School conducted enquiry. It is for the Tribunal after trial, to give finding with regard to the fairness of the enquiry and as to whether the enquiry is in accordance with the prescribed procedure. It is the submission of the learned counsel for the respondent that when the respondent has placed on record the report of the enquiry, it cannot be said that no enquiry is held against the petitioner. The only question to be decided in the trial is as to whether the enquiry conducted is fair and proper. Moreover, he submits that in the instant case, granting of interim order would amount to granting final relief. Thus he prays for dismissal of the writ petition.

8. On hearing the learned counsels for the parties and on perusal of the entire writ petition papers the only point which falls for consideration is as to ‘Whether the Tribunal is justified in rejecting I.A.No.1 for stay under impugned order dated 19.08.2021?’ Answer to the above point would be in the affirmative for the following reasons: -

It is not in dispute that petitioner was working as Maintenance Supervisor in the respondent-School and by termination notice dated 24.06.2021, the petitioner was terminated from services of the respondent-School w.e.f. 28.6.2021.

9. Section 94 of the Act provides for filing appeal by any Teacher or other employee of a private educational institution, who is dismissed, removed or reduced in rank to the Tribunal. Section 96 of the Act enumerates functions and powers of the Tribunal. Section 96(3)(c) of the Act empowers the Tribunal to stay the operation of the order under appeal on such terms as it thinks fit.

10. A Co-ordinate Bench of this Court in MARY THERESA MORRIS supra considering the power of the Tribunal to pass interim order under the Karnataka Private Educational Institutions (Discipline And Control) Act, 1975, observed that in a given case when the petitioners make out a fairly strong case they should be left with no relief, and the Court could mould the relief that can be granted. In other words, it is observed that where a strong case is made out, the tribunal could grant appropriate interim relief.

11. Keeping it mind the above principle, facts of the present case will have to be appreciated. A reading of the termination notice (Annexure-G) indicates appointment of an enquiry officer to conduct the enquiry and enquiry officer on enquiry submitted a report to the management. The proceedings sheet made available during the course of hearing indicates that enquiry was conducted on 26.03.2021 through video conference and on 27.03.2021 on- which day, it records that petitioner was physically present. The enquiry report placed on record along with memo dated 29.11.2021 holds the charge against the petitioner as proved. Therefore, it cannot be said that no enquiry is conducted at all. It is not a rare and exceptional case for grant of interim stay of termination. Whether the enquiry conducted by the respondent-School is fair and proper, is to be decided at the trial. The burden of proving the conduct of enquiry is proper and fair, is on the respondent-School. The reliance placed on the decision of this Court in MARY THERESA MORRIS supra by the learned counsel for the petitioner would in no way assist the petitioner in the facts of the present case.

12. Normallv enquiry is said to have been initiated on issuance of charge memo and enquiry culminates on passing of the final order. Between initiation of enquiry and passing of final order there are several stages such as issuance of charge memo, providing opportunity to submit reply appo

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intment of enquiry officer, opportunity to go through the records, summoning witnesses, providing opportunity to cross-examination, providing an opportunity to delinquent to lead his evidence, providing an opportunity to file written brief and thereafter to submit the report. It is for the respondent to establish the conduct of enquiry in the mariner stated above. 13. The Tribunal under impugned order is justified in observing that certain enquiry was made and burden cast upon the Management to prove that it has not violated the due procedure. 14. For the reasons stated above, I am not inclined to accept the contentions of the petitioner. Accordingly the writ petition stands rejected. However, the Tribunal is requested to expedite the trial and hearing of the appeal since as informed by the learned counsels, the appeal is already posted for evidence.
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