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Judgment
A.S. Bopanna, J.—The Petitioner is calling in question the order dated 02.02.2002, which is impugned at Annexure-D to the writ petition. By the said memorandum, the services of the Petitioner had been discharged. The Petitioner claiming to be aggrieved by the same had initially approached the Education Appellate Tribunal, Bangalore (for short the ''EAT'') under the wrong assumption that he could file such an appeal under the Education Act. Since the school in question is not subjected to the provisions of the Karnataka Education Act, the Petitioner has withdrawn the said appeal and thereafter presented the instant writ petition.
Heard the learned Counsel for the parties and perused the petition papers.
The brief facts are that the Petitioner was initially appointed as a Score Keeper in the Army Public School and thereafter absorbed into service by a letter of appointment dated 10.02.1985. Subsequently, he was working as the Lower Division Clerk (LDC) and it is at that point, the Petitioner has been discharged from service by the impugned order. The said discharge was stated to be after an inquiry with regard to certain allegations of irregularities committed by the Petitioner. The Petitioner has however assailed the said order by contending that, no such inquiry has been held by the Respondents and in any event, no opportunity of knowing the charges and putting forth his defence before the alleged inquiry has been granted to the Petitioner. It is therefore contended that the very order of discharge is not only opposed to the principles of natural justice, but even the minimum opportunity of defending himself has not been granted to the Petitioner. To substantiate that the Petitioner had not indulged in such acts of misconduct as alleged, the Petitioner also relied on the certificate said to have been issued as at Annexure-B to point out that the Respondents themselves had certified the conduct of the Petitioner with reference to his integrity and the manner in which service was being rendered by him in the best interest of the institution.
The Respondents while opposing the contention put forth by the Petitioner, through the objection statement, have at the outset contended that the writ petition itself is not maintainable inasmuch as the Army School is being run by the Army Welfare Educational Society (for short the ''AWES''), which is a society registered under the Karnataka Societies Registration Act and therefore not amenable to writ jurisdiction. With regard to the discharge of the Petitioner from service, the Respondents contended that the Petitioner had indulged in the misconduct of selling certain articles belonging to the Army School and the amount of Rs. 1500/- realised therefrom had not been deposited by the Petitioner. Therefore, the Principal had instituted the proceedings and since the inquiry had found the Petitioner to be guilty of the charges, the Chairman of the School Managing Committee thereafter considered the inquiry report and has subsequently passed the discharge order, which is sustainable in law. It is further contended that as per the Rules governing the Society, the action has been initiated and therefore, the same does not call for interference.
Considering that the threshold contention urged on behalf of the Respondents is with regard to the maintainability of the present writ petition, the said aspect of the matter requires consideration. In this regard, it is no doubt true that the Petitioner is an employee of the Army Public School. It is also not in dispute that the said school is being run by the AWES, which is a society registered under the Societies Registration Act. Though the school is being run by the said society, in order to determine as to whether the same could be considered as an other authority as contemplated under Article 12 of the Constitution of India, the manner of working of the society and the schools being run thereunder is to be noticed more particularly, with regard to the funding of the said school and also the pervading control over the said school. In this regard, it is not in dispute that the Army Public School in question is situated in the HQ KK & G, sub-area of the armed forces. In this regard, the Rules and Regulations for the AWES institution would provide insight into the manner in which the present schools are being run.
Firstly, it is to be noticed that the organisation and functions of the AWES vests with the Board of Governors, which will lay down the policy guidelines and also would be responsible for the management of the functioning of the institutions. The governing body consists of a Chairman and its members. The Adjutant General will be the Chairman and the Chiefs of Staff from all Commands, Engineer in Chief and Director General, Discipline and Ceremonials Welfare would be the members of the Board of Governors. The said Rules also provides for the Executive Committee, which consists of President, Member Secretary and Members wherein also the Ex-officio members are indicated. Therefore at the outset, it is seen that neither the Board of Governors nor the Executive Committee, is elected from among the members of the society end also society does not indicate that the same is formed by its Members as done in a normal circumstance. Therefore, on the face of it, it is seen that the entire control of the society is by the Ex-officio Officers who are appointed by their rank they hold in the armed forces.
Further, the Rules also provides with regard to the Financial Management of the society, wherein it is indicated that the Corpus will be provided as decided by the Board of Governors from the Welfare Funds of the Adjutant General''s Branch, Army Headquarters. Hence, funds are not self generated funds of the society and it is in that context, the army headquarters has the control over the functioning of the school. In addition to the same, the Rules also provide for composition of the managing committee in the schools which has the Patron, Chairman and the Members. The Patron is to be nominated by the Headquarters Command concerned and the Chairman is to be nominated by the Patron or GOC Div or Area or Sub-Area Commander or Station Commander. Further, the members of the managing committee are the officials of the armed forces and also the parents and. the teachers from the school. Therefore, considering these aspects of the matter, the AWES cannot be considered as a society, which is independent. Hence, in such a situation, where both the management and the finance vest with the army headquarters, the same would answer requirement of Article 12 of the Constitution of India. Therefore, in such circumstance, I am of the view that the present writ petition is maintainable.
The said view is also buttressed by the judgment cited by the learned Counsel for the Petitioner in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, , wherein a similar set of circumstance relating to the status of a trust was considered by the Hon''ble Supreme Court.
Having come to the above conclusion, with regard to the maintainability of the writ petition, the case that would arise for consideration is with regard to the correctness or otherwise of the order/memorandum dated 02.02.2002 (Annexure-D), by which the services of the Petitioner was discharged.
A perusal of the said memorandum would indicate that the power of such discharge of an employee is claimed to have been exercised in view of the provisions contained in Rule 128(a) of AWES Rules. A perusal of the said Rule would indicate that an employee could be discharged on disciplinary grounds if the punishment is so awarded by the authorities concerned. The nature of the proceedings for exercising the power under the said Rules, is provided in Rule 123 of the said Rules, which provides that the cases of all employees of the school, whether under probation or not, other than Principal, suspected of corrupt practices or breach of discipline or inefficiency will be dealt in the manner indicated therein. The procedure contemplated is that Principal will carry out preliminary investigations and if prima facie case is established, the report of the Principal would be forwarded in writing to the Chairman of the School Managing Committee for detailment of the Inquiry Officer for further investigations. Thereafter, the Inquiry Officer so appointed will have to complete inquiry expeditiously and forward his report to the Chairman of the Managing Committee within 20 days of his appointment. In the background of the said procedure, what is to be considered is as to whether the said procedure as contemplated has been followed in the present case, so as to sustain the action of the Respondents.
The Petitioner while assailing the order has specifically contended in this petition that no inquiry as contemplated in law has been held. He has also contended that no charge sheet or show cause notice was issued to him and even if inquiry was held, the same is without, providing opportunity. It is no doubt true that the impugned order dated 02.02.2002 refers to the consideration of the inquiry report. Further, the objection statement filed on behalf of the Respondents also refers to the inquiry said to have been held by the Inquiry Committee based on the report in writing by the Principal to Chairman of the School Managing Committee.
In the instant case, the incident referred to is that the Petitioner had sold certain tiles while clearing out the materials which were stocked in a store room and the amount of Rs. 1500/- realised therefrom had not been immediately deposited. With regard to the said aspect of the matter, the Petitioner has contended that the same had not been deposited on the very same day since the amount was paid by MES Contractor i.e., the purchaser of tiles on 27.11.2001 around 4 p.m. and the same had been deposited immediately on the subsequent date on 28.11.2001. Though these are the rival contentions with regard to the charge alleged and the justification to state that no offence and misconduct had been committed, the whole issue could only be looked into with regard to the validity of the inquiry said to have been held since such justification can only be put forth before the inquiry. Therefore, the Respondents will have to establish that charge has been proved in the alleged inquiry as contemplated.
In this regard, except the statement made in the objection statement, the Respondents have not produced any material before this Court to indicate that the procedure as contemplated under Rule 123 of the AWES Rules had been followed in the instant case Further, it is also relevant to notice that when this petition was heard on earlier occasions, more particularly on 17.09.2009, this Court has recorded that in spite of time having been granted, the Respondent has failed to produce the records. However, one more opportunity was granted to produce the records by the next date of hearing and it was also made clear that if the documents are not produced, an adverse inference would be drawn. The petition was accordingly adjourned to 08.10.2009. Subsequently, the matter had been taken up before this Court on 01.07.2010 though it had been listed earlier and had not been reached. Even on the said date, the records were not produced and the matter was adjourned. When the matter is taken up today, the records have not been produced. Considering that this Court had already indicated that adverse inference would have to be drawn, the non-production of the records relating to the inquiry would have to be seriously viewed by this Court to indicate that the alleged inquiry said to have been conducted by the Respondents has not been established before this Court to come to the conclusion that the order impugned in this petition is justified, and has been passed in due compliance of the procedure.
While stating so, it is also to be noticed that as per Rule 123 of the AWES Rules, the procedure contemplated is no doubt that an inquiry by the inquiry officer without laying down any particular procedure. Though specific procedure has not been laid down, in any event, the compliance of principles of natural justice would have to be read into the Rules inasmuch even fn such an inquiry conducted as per the Rules, an appropriate show cause notice or charge sheet would have to be issued to the concerned employee, so that he should know the reason for which he is being subjected to the said inquiry and also he should be provided opportunity to defend himself based on such charges levelled against him.
In the instant case, since the documents relating to the inquiry have not been produced and in any event, there is no material on record to substantiate that an inquiry in accordance with law had been held, the memorandum dated 02.02.2002, on the face of it, cannot be sustained. Further, apart from a valid inquiry, the procedure followed for consideration of such inquiry report by the managing committee as contemplated also was to be established before this Court regarding which the Respondents have failed. Therefore, considering these aspects of the matter, the order/memorandum dated 02.02.2002 impugned at Annexure-D to the petition cannot be sustained. The same is accordingly quashed.
While considering the aspect with regard to the nature of relief to be granted, learned Counsel for the Respondents would contend that an order of reinstatement cannot be granted as held by the Hon''ble Supreme Court in the case of Smt. J. Tiwari Vs. Smt. Jwala Devi Vidya Mandir and Others, . With reference to the said judgment, it is contended that even if relief is to be granted, it is to be only for payment of damages and not one for reinstatement.
In this regard, a perusal of the judgment would indicate that the Hon''ble Supreme Court was considering a situation, where the employee had approached the Civil Court by filing a suit assailing the action initiated against the employee. It is in that context, the Hon''ble Supreme Court had considered the situation. As such with regard to the legal position that a Civil Court can not order reinstatement, the position of law is well established. Therefore, in the instant case, the said decision will not assist the Respondents to contend that the order of reinstatement cannot be granted.
Therefore, in the facts of the instant case, on quashing the order dated 02.02.2002, the Petitioner would have to be restored to the same post as he was working on the date of discharge. On being reinstated, the Petitioner will also be entitled to consequential benefits. However, with regard to the backwages, considering the fact that the Petitioner was working in the army school and the said school though being funded by the Army Headquarters, is being run byway of welfare measure and also considering the fact that the Petitioner in any event, would have been employed elsewhere during this period, I am of the view that the Petitioner will be entitled to only 25% of the backwages.
In terms of the above, the petition is allowed. Parties to bear their own costs.