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Ram Mohan Reddy, J.—These intra Court Appeals by the petitioners in W.P. Nos. 82360-82362/2011 is filed, challenging the order dated 28.08.2013 dismissing the petitions. The first appellant Trust manages the second appellant educational institution being an Arts, Commerce and Science college, while the third appellant is the Principal of the said college. First respondent when employed as a First Division Clerk in the second appellant educational institution, a Typist by name S.M. Banoshi complained that on 17.09.2002 at about 10.30 A.M. the first respondent assaulted the complainant. The management placed the first respondent under suspension which when called in question in an appeal before the Joint Director of Collegiate Education on 22 03.2003 invoking Section 94(5) of the Karnataka Education Act, 1983 (for short the ''Act''), the appeal was rejected by order dated 19 12.2003, as premature. That order when subject matter of a further appeal under sub-section (7) of Section 94 of the Act registered as EAT No. 1/2004 before the Education Appellate Tribunal, Raichur (for short the ''EAT''), was disposed of on 15.02.2005 observing that an employee cannot be placed under suspension beyond six months. The domestic enquiry held into the allegations of misconduct lead to a report recording a finding that the misconduct was proved. The Disciplinary Authority on an independent assessment of the facts, circumstances and evidence on record held the first respondent guilty of the charges and accordingly by order dated 21.10.2005 imposed the punishment of compulsory retirement. That order was called in question in an appeal invoking Section 94(7) of the Act before the EAT, registered as EAT No. 2/2005. In that proceeding the appellants arraigned as respondents having filed I.A. No. 2 asserting that the EAT had no jurisdiction to entertain the appeal in the absence of the Government being arraigned a party respondent, was rejected by order dated 06.07.2009. The EAT having framed a preliminary issue over the validity of the domestic enquiry, answered the issue in the negative by order dated 29.06.2010 holding that the enquiry was not fair and proper and permitted the parties to lead evidence in proof of the charges.
First respondent was examined as PW-1 and introduced 10 documents, marked as Exs. P1 to P10, while the appellants recalled R.W.-2 (examined over the preliminary issue) and further examined him and introduced in evidence, documents marked as Exs. R14 to R22.
The EAT having regard to the material on record and the evidence, both oral and documentary, framed points for consideration, the first of which was over the jurisdiction of the EAT to entertain an appeal u/s 94(1) of the Act. By order dated 13.06.2011 Annexure-''H'', the EAT allowed Appeal No. 2/2005, set aside the order dated 21.10.2005 of compulsory retirement and directed reinstatement with 50% back wages subject to the result of the pending W.P. Nos. 82195-97/2010. It is useful to notice that in W.P. Nos. 82195-97/2010 the order dated 29.06.2010 on the preliminary issue over validity of the domestic enquiry was called in question. Those writ petitions were disposed of by order dated 15.09.2011 recording the submission of the learned counsel for the first respondent that EAT Appeal No. 2/2005 was disposed of by the EAT on 13.06.2011 and therefore the writ petitions were rendered infructuous.
Appellants filed W.P. Nos. 82360-82362/2011 calling in question the order of the EAT while first respondent filed W.P. No. 100014/2013 calling in question the very same order of the EAT in so far as it relates to denial of 50% of back wages. The learned Single Judge clubbed the writ petitions and by common order dated 28.08.2013 dismissed the writ petitions.
Heard Sri Harshavardhan R. Malipatil, learned counsel for the appellants and Sri P. Vilas Kumar, learned counsel for the first respondent, perused the pleadings and examined the orders of the EAT as well as of the learned Single Judge.
Learned counsel for the appellants, at the threshold, submits that the appeal filed by the first respondent invoking sub-section (7) of Section 94 of the Act was not maintainable before the EAT. According to the learned counsel, the punishment of compulsory retirement is one of the penalties envisaged in clause (viii) of Rule 14 under Chapter III of the Karnataka Educational Institutions (Recruitment and Terms and Conditions of Service of Employees in Aided Colleges of Education and Teachers'' Training Institutes) Rules, 2001 and clause (viii) of Rule 32 of the Karnataka Educational Institutions (Collegiate Education) Rules, 2003. Learned counsel points to sub-section (2) of Section 92 of the Act which provides for imposing any penalty other than those referred to in sub-section (1) i.e. dismissal, removal or reduction in rank after following the necessary procedure laid out therein. Learned counsel further points to sub-section (5) of Section 94 of the Act relating to appeals against orders imposing a penalty other than those specified under sub-section (1) of Section 92 i.e. dismissal, removal and reduction in rank, on any teacher or other employee to be filed before the competent authority within three months from the date of communication of the order imposing such penalty. Sub-section (6), it is submitted, empowers the competent authority to dispose of the appeal preferred under sub-section (5), after giving opportunity of being heard to the parties, while sub-section (7) provides for an appeal against the order of the competent authority under sub-section (6) within the prescribed period to the EAT whose decision shall be final. Learned counsel hastens to add that the appeal preferred under sub-section (7) of Section 94 of the Act is one without jurisdiction since the first respondent did not file an appeal before the competent authority under sub-section (5) nor there was an order of the competent authority under sub-section (6), which could be challenged under sub-section(7). It is the further submission of the learned counsel that the penalty of compulsory retirement not being dismissal, removal or reduction in rank, the first respondent could not have maintained an appeal under sub-section (1) of Section 94 of the Act to the EAT.
Per contra, learned counsel for the first respondent submits that though the penalty imposed is one of compulsory retirement, nevertheless, the order when questioned, in an appeal u/s 94(1) of the Act, the EAT has jurisdiction to lift the veil and find out whether the order of compulsory retirement is in fact dismissal or removal from service. It is the further submission that the EAT did have the jurisdiction under sub-section (1) of Section 94 of the Act to entertain the appeal, though the provision of law mentioned in the appeal memorandum as sub-section (7) of Section 94 of the Act is due to inadvertence. Learned counsel places reliance upon the following decisions in support of his submission:
i. Harpal Singh v. State of U.P. and Another LLJ 1 329
ii. Parshotam Lal Dhingra Vs. Union of India (UOI),
iii. Jagdish Mitter Vs. The Union of India (UOI),
iv. Sgt. Jeevan Kumar Vs. Union of India (UOI),
v. Management of M.S. Ramaiah Medical College and Hospital Vs. Dr. M. Somashekar,
vi. P.E. Manjunath Vs. Chitradurga District Ambedkar Education Society,
In the facts and circumstances, the point for consideration is:
Whether the EAT is invested with the jurisdiction to entertain an appeal under sub-section (1) of Section 94 of the Act against the order dated 21.10.2005 of compulsory retirement of the first respondent?
In order to appreciate the submissions of the learned counsel for the parties, it is useful to extract Sections 92 and 94 of the Act, which reads thus:
Dismissal, removal, etc.--(1) Subject to such rules as may be made in this behalf, no teacher or other employee of a private educational institution shall be dismissed, removed or reduced in rank except.
a) in accordance with the conditions of service governing him;
b) after an inquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the said charges, and where it is proposed after such inquiry to impose on him such penalty, it may impose such penalty, on the basis of the evidence adduced during such inquiry:
Provided that this sub-section shall not apply to temporary employees or to the dismissal, removal or reduction in rank of a teacher or other employees on the ground of misconduct which has led to his conviction on a criminal charge involving moral turpitude.
(2) No order imposing any penalty other than those referred to in sub-section (1) shall be passed except after:--
a) the teacher or employee is informed in writing of the proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation which he may wish to make and
b) such representation, if any, is taken into consideration.
(3) a) A teacher or other employee may be placed under suspension by the managing committee:--
i) where disciplinary proceedings against him is contemplated or is pending; or
ii) where a case against him in respect of any criminal offence is under investigation or trail;
b) No such suspension shall remain in force more than six months:
Provided that if the enquiry is not completed within the period of six months, the secretary shall report the matter to the Competent Authority, who may permit extension of the period of suspension beyond six months, if he is satisfied that the enquiry could not be so completed due to circumstances beyond the control of the Governing Council;
c) The Managing Committee placing an employee under suspension shall forthwith report to the Competent Authority the circumstances which the order was made;
d) Subject to such rules as may be prescribed, every employee placed under suspension under this section shall be entitled to such subsistence allowance as may be prescribed.
Appeals.--(1) 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.
(2) The provisions of Sections 4 and 5 of the Limitation Act, 1963, shall be applicable to such an appeal.
(3) If, before the date of commencement of this Act, any teacher or other employee has been dismissed, or removed or reduced in rank or his appointment has been otherwise terminated and any appeal preferred before that date:--
a) by him against such dismissal or removal or reduction in rank or termination; or
b) by him or by the Governing Council against any order made in any appeal referred to in clause (a) is pending before any officer, such appeal shall, notwithstanding anything in sub-section (1), stand transferred to the Tribunal, if he makes an application in that behalf to such officer.
(4) The Tribunal shall dispose of the appeal filed under sub-section (1) or transferred under sub-section (3) after giving the parties the opportunity of being heard.
(5) In respect of an order imposing a penalty other than those specified in sub-section (1) of Section 92, on any teacher or other employee, an appeal shall lie to the Competent Authority within three months from the date of communication of the order imposing such penalty.
(6) The Competent Authority shall dispose of an. appeal preferred under sub-section (5) after giving the parties the opportunity of being heard.
(7) An appeal against an order of the Competent Authority under sub-section (6) shall lie within the prescribed period to the Tribunal, whose decision shall be final.
The Karnataka Educational Institutions (Collegiate Education) Rules, 2003 (for short the ''Rules'') is framed by the State in exercise of its power under sub-section (1) of Section 145 of the Act, which is the rule making power. The said Rules are made applicable to all Government, local authority, private aided affiliated colleges under the control of the Department of Collegiate Education in Karnataka. There is no dispute that the second appellant educational institution is a private aided affiliated college under the control of the department of Collegiate Education in Karnataka. Rule 32 under Chapter VII with the nomenclature "Discipline" provides for nature of penalties, one of which is compulsory retirement under clause (viii). Rule 33 makes reference to the Disciplinary Authorities who may impose the penalties specified in Rule 32. There is no dispute that the Disciplinary Authority who issued the order dated 21.10.2005 imposing the penalty of compulsory retirement had the competence to do so.
The Act does not define the terms dismissal, removal or reduction in rank, while the expression "removal" is capable of more than one meaning and the law also does not recognize manifest situations in which the Court is required not to go by the wording of title of the order or the language used, but the Court will have to examine the true nature and contents of that order, the effect of that order and purpose of legal categorization would have to afford to it its real colour. It is elsewhere stated that a termination or a removal tantamounts to a dismissal, at the very threshold, if found to be unjustified and the EAT, in an appeal u/s 94(1) of the Act, could answer that the impugned order would fall under any one of the aforesaid three penalties. If sub-section (1) of Section 94 of the Act alone is considered, de-horse sub-section (2) of Section 94 then the jurisdiction of the EAT cannot be said to be confined or circumscribed to those orders which have labels'' of the three categories of cases as indicated in sub-section (1) of Section 92. This would therefore enable the EAT to examine as to whether the consequences are penal and whether the true nature and colour of the order is said that it would clearly fit into the aforesaid three categories in sub-section (1) of Section 92 of the Act.
Apparently sub-section (2)''of Section 92 of the Act. supra, provides for imposing a penalty other than those referred to in sub-section (1) of Section 92 of the Act i.e. dismissal, removal or reduction in rank. The categories of cases that fall under sub-section (2) of Section 92 of the Act are enumerated in Rule 32 of the Rules, one of which, at clause (viii), is compulsory retirement. If that is so, then in terms of Section 92(2) of the Act, the penalty of compulsory retirement would fall under any penalty other than those referred to in sub-section (1).
The redressal of the grievance over an order of compulsory retirement is by way of a statutory appeal under sub-section (5) of Section 94 of the Act since sub-section (1) of Section 94 of the Act deals with appeals against orders imposing punishment of removal dismissal or reduction in rank referable to penalties u/s 92(1) of the Act. Therefore, sub-section (5) invests jurisdiction in the competent authority to entertain an appeal against the order imposing any other penalty other than that of dismissal, removal or reduction in rank. Sub-section (6) empowers the competent authority to hear and dispose of the said appeal. The statute provides for a second appeal against the order of the competent authority by investing a jurisdiction in the EAT under sub-section (7) of Section 94 of the Act.
Thus, if penalty of compulsory retirement is imposed, an employee would have the right of two statutory appeals, one before the competent authority under sub-section (5) and yet another against the order of the competent authority before the EAT under sub-section (7), in contrast to a challenge to an order imposing the penalty of dismissal, removal or reduction in rank, by way of a single appeal under sub-section (1) of Section 94 of the Act to the EAT.
In Management of M.S. Ramaiah Medical College and Hospital Vs. Dr. M. Somashekar, a coordinate Division Bench of this Court considering Section 94(1) of the Act observed thus:
A reading of sub-section (1) of Section 94 with Section 92(1) in the light of the decision in Principal''s case ( The Principal and Others Vs. The Presiding Officer and Others, ) would make it clear that an appeal would lie u/s 94(1) where the order appealed against is dismissal, removal or reduction, by way of or in the nature of penalty or punishment. This apart, the wording of Section 94(5) also makes it clear that an appeal would lie either under Sub-section (1) or under Sub-section (5) only where order is only imposing a punishment or penalty.
The Division Bench further observed thus:
Termination of services if broadly classified into those imposed by way of punishment and those which are not ''Dismissal'' and ''removal'' are terminations by way of punishment. The word ''dismissal'' refers to a punishment, which debars an employee from seeking further employment with his employer in future. The word ''removal'' refers to a punishment which however, may enable the employee concerned to seek re-employment with the employer even after such removal. The words ''dismissal'', ''removal'' or ''reduction in rank'' unless otherwise defined, always refer to imposition of punishment or penalty, by way of disciplinary action or by way of victimisation. The terms ''Dismissal'' or ''removal'' are not used to refer to terminations other than by way of punishment/penalty. On the other hand, a Retrenchment refers to a termination otherwise than as a punishment, either as an economy measure or on account of the services of the employee becoming surplus. ''Termination Simpliciter'' refers to a termination in terms of the contract, otherwise than by way of punishment/penalty or retrenchment. Section 94(1) makes it clear that an appeal to the Educational Appellate Tribunal would lie only where the punishment or penalty of dismissal, removal or reduction in rank is imposed on the employee. If a termination is a mere retrenchment or termination simpliciter, the remedy will not be by way of an appeal to the Tribunal u/s 94(1) nor by way of an appeal to the competent authority u/s 94(5).
Further it was held thus:
The remedy against an order imposing any other penalty is by way of an appeal to the competent authority u/s 94(5) with a further appeal to the Educational Appellate Tribunal u/s 94(7). The remedy against any order of management which is not punitive in nature is by way of revision to the State Government u/s 131. Where an employee contends and establishes that the order of termination simpliciter or retrenchment, as the case may be, passed by the Management is really an order imposing punishment/penalty of dismissal or removal, and files an appeal u/s 94(1), the Tribunal can go behind the form of the order and decide upon the true nature of the order, that is whether the order is merely what it purports to be, or whether it is a cloak for punishment/penalty, either as a disciplinary measure or as victimisation. If it concludes that the order is a cloak for dismissal or removal, the appeal will be maintainable and it can proceed to hear and dispose of the appeal on merits.
Regard being had to the penalty imposed on the first respondent is compulsory retirement and not dismissal, removal or reduction in rank and applying the observations of the coordinate Division Bench supra, it is needless to state that the first respondent could not have maintained an appeal under sub-section (1) of Section 94 of the Act and the EAT had no jurisdiction to entertain the said appeal calling in question the order dated 21.10.2005 imposing the penalty of compulsory retirement. Since the order of compulsory retirement is not either an order of termination simpliciter or retrenchment, therefore the first respondent could not have maintained an appeal under sub-section (1) of Section 94 of the Act by contending and establishing that the order was really an order imposing the punishment/penalty of dismissal or removal from service.
Except for the decision in M.S. Ramaiah''s case supra, none of the other reported opinions are applicable: to the facts and circumstances of the case on hand, and therefore it is unnecessary to dwell into the said opinions. The facts obtaining in those judgments relate to orders of termination simpliciter and in which principle laid down is that the adjudicating Court can lift the veil to ascertain as to whether the termination simpliciter or retrenchment was really an order imposing the punishment/penalty of dismissal or removal from service.
An examination of the order of the EAT, makes no reference to either Rule 32 of the Rules or sub-section (2) of Section 92 of the Act and therefore unsustainable. Although the EAT extracted a portion of the decision in M.S. Ramaiah''s case, nevertheless failed to understand the import of the observations in their entirety. In our opinion the EAT having fallen in error in recording a finding on the first point for consideration that it had jurisdiction under sub-section (1) of Section 94 of the Act to entertain the appeal, is unsustainable.
The learned Single Judge too, in our considered opinion, having not examined Rule 32 of the Rules and sub-section (2) of Section 92 of the Act as well as the observations in M.S. Ramaiah''s case of the coordinate Division Bench, the order calls for interference. In the result, these appeals are allowed. The common order dated 28.08.2013 in W.P. Nos. 82360-82362/2011 is set aside. W.P. Nos. 82360-82362/2011 are allowed, the order dated 13.06.2011 Annexure-''H'' in EAT Appeal No. 2/2005 of the Educational Appellate Tribunal and Principal District Judge, Bijapur 13 quashed. EAT Appeal No. 2/2005 is dismissed as not maintainable.