The Mahalaxmi High School and Others vs The Educational Commissioner Office of Deputy Director and Others

Anand Byrareddy, J—Heard the learned counsel for the petitioner.

The petitioner is said to be a School under the Management of a Society registered under the Bombay Public Trusts Act, 1950. The said School was said to have been established in the year 1986. It was recognized by the Government of Karnataka as a permanent unaided High School and it is running on the funds generated from the general public. It consists of a Board of Committee of Management headed by a President, assisted by a Vice-President, Secretary and other members. It is the case of the petitioner that Respondent No. 5, one Chandrakant was seeking appointment in the petitioner''s School on the basis of a purported Appointment Order said to have been issued on 9.6.1999. The said appointment order was claimed to have been issued by the Chairman of the Mahalaxmi School, when there was no such post of Chairman in the Society of the petitioner. And it was never represented by a Chairman at any point of time. Therefore, on the face of it, the document said to be relied upon by the Respondent No. 5 was a false and concocted document. The petitioner had taken exception to the Respondent No. 5 claiming an appointment under the said document and had even instituted criminal proceedings for offences punishable under Section 425, 565, 468 and 471 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC for brevity) before the Jurisdictional Magistrate in case No. S.C. 15/2009. In the said proceedings, the police are said to have filed a ''B'' summary report against the said case. However, the petitioner claims to have filed objections to the ''B'' summary report and the said case is pending for adjudication even as on date. It is admitted by the petitioner however that Respondent No. 5 was intermittently coming to the School of the petitioner with a request that he be permitted to teach the children to gain some experience and thereafter addressed the letter dated 10.04.2007 to the President of the petitioner - Society claiming he was working in the petitioner - Society voluntarily, which would fortify the case of the petitioner that any connection of Respondent No. 5 with the petitioner was only of a voluntary nature on the part of Respondent No. 5 and he was never employed on a regular basis. In this dispute where Respondent No. 5 sought to set up a claim that he was an employee of the petitioner, a civil suit was filed in O.S. No. 76/2007 on the file of the Civil Judge Khanapur for permanent injunction against the petitioner - Society, which was ultimately dismissed. Thereafter, the Respondent No. 5 had approached the Government of Karnataka by way of a revision petition under Section 131 of the Karnataka Education Act, 1983. The said revision petition No. 3/2009 was contested by the petitioner. During the pendency of the said proceedings, Respondent No. 6 and 7 had filed applications seeking to implead themselves in those proceedings, as the Secretary and President of the Society of the petitioner and sought to support the case of Respondent No. 5. It is in that background that the revision petition came to be allowed and the petitioner was directed to reinstate Respondent No. 5 into service. It is that which is sought to be challenged in the present petition.

The learned counsel for the petitioner would point out that there was no employer - employee relationship between the petitioner and the respondent. This was a disputed question of fact and the petitioner was an unaided institution and therefore seeks to question the very jurisdiction of the State Government to have entertained the revision petition and to have directed reinstatement of the petitioner and would point out that the appointment order relied upon by the Respondent No. 5 was a fake document and criminal case having been instituted in the first instance, is evidence of a strong denial of any such relationship. In the face of which, the revisional authority having exercised jurisdiction and having even allowed the revision petition, is opposed to law and requires to be set at naught.

While the learned counsel for Respondent No. 5 would vehemently seek to justify the impugned order and would submit that there is a finding of fact by the revisional authority that the document is in fact tampered with by the petitioner herein and not by Respondent No. 5 as alleged and therefore, the revisional order being considered order on a finding of fact, it cannot be said that it is bad in law. He would further point out that this Court has taken a view in the decision reported in Basavarajegowda Vs. Mahatma Gandhi Vidya Peeta Trust''s Dayananda Sagar Institutions and Others, (2003) 6 KarLJ 130 : (2004) 1 KCCR 167 and hence would seek to sustain the case. In that, it is laid down by a learned Single Judge of this Court that Section 131 which requires an adjudication of the dispute cannot be read to exclude a reception of oral and documentary evidence and consequently that apprehension on the part of the petitioner will have to be set at rest by clarifying, that the authority will have to entertain both oral and documentary evidence as produced by the parties. Therefore, the finding of fact rendered by the revisional authority cannot be brushed aside and there is no warrant for interference by this Court.

On the other hand, by way of reply, the learned counsel for the petitioner draws attention to a later decision of a Division Bench of this Court in the case of Sri Phalahara Shivayogishwara Shikshana Samithi Vs. State of Karnataka and Others, (2011) 2 KCCR 982 The Division Bench has laid down that, an order or a decision of the Management to constitute an Enquiry Committee to hold enquiry against an employee who has been issued with Articles of charge and with whose explanation the Management is not satisfied, cannot be characterized as an order or decision within the scope of sub-section (2) Section 131 which is an enabling statutory provision in favour of State Government to stay any decision or order pending the revision petition. The decision of the management to constitute enquiry is very much part of holding of an enquiry against the employee and cannot be construed to constitute a separate order or decision, so as to be made amenable to the revisional jurisdiction of the State Government under Section 131. The Scheme of the Act is not to cause interference by the State Government in certain areas of functioning of the private management and in respect of matters which is expressly made subject matter of appeal to the independent quasi-judicial Tribunal like the Educational Appellate Tribunal constituted under Section 96 of the Act and in an appeal under Section 94 of the Act, expressly providing for an avenue of remedy in favour of a dissatisfied employee of a private educational institution who is reduced in rank, it is clear that the Scheme of the Act is to confer appellate power to examine the validity of the order of penalty passed by the Management, etc.

Therefore, the learned counsel would submit that the remedy if any for the Respondent No. 5, was to prefer an appeal in terms of Section 94 of the Karnataka Education Act, 1983. It is found in the above circumstances that the exercise of jurisdiction by the revisional authority in the face of an alternative remedy available to the Respondent No. 5, was clearly without jurisdiction. Section 94 of the Education Act provides that any teacher or other employee of a private educational institution who is dismissed, removed or reduced in rank, may within three months from the date of communication of the order, prefer an appeal to the Tribunal.

Therefore, in the present case on hand, when the petitioner was denied employment on the ground that there was no appointment order in his favour as sought to be contended by him, if he is aggrieved, could have at best filed an appeal under Section 94 before the Karnataka Educational Appellate Tribunal and could not have approached the State Government by way of a revision. Since it involved questions of findings of fact, the appropriate remedy was to prefer an appeal and it would be setting a bad precedent if the order of the State Government is affirmed in dismissing the revision.

Therefore, the writ petition is allowed. The impugned order is set aside without prejudice to the right of appeal of Respondent No. 5. At this stage, the counsel for Respondent No. 5 would submit that liberty be granted to Respondent No. 5 to prefer an appeal. The question of granting liberty to Respondent No. 5 to file an appeal is not the domain of this Court. He would at best approach the Appellate Tribunal and invoke Section 14 of the Limitation Act in seeking condonation of delay in filing the appeal, which he would do appropriately. Granting leave in advance is granting a licence to Respondent No. 5 to go and file an appeal, which is not welcome. Accordingly, the petition stands allowed in terms as above.