S.R. Narayana Murthy vs Government of Karnataka

B.S. Patil, J.—In this writ petition, petitioner has sought the following reliefs:

(i) summon the entire records from the respondents right from the date of issue of order of transfer dated 27-4-1991, including the records like resolution book etc., and others pertaining to conduct of enquiry against the petitioner and his alleged dismissal to verify truthfulness, legality or otherwise of the acts of the respondents;

(ii) declare that the petitioner has never absented unauthorisedly for duty from 1-5-1991 to 15-1-2001 and that he is on duty during this period;

(iii) direct the respondents to allow the benefits of fixation of pay in UGC Scales of 1986 and 1992 and to draw arrears of salary;

(iv) direct the 3rd respondent to pay the salary for the period from 1-5-1991 to 15-1-2001 by releasing all the increments due to he petitioner and to draw arrears with interest at 18%;

(v) direct the respondents to submit the records to the concerned authority for sanction of pension and other retiral benefits with interest as admissible; and

(vi) pass such other order, writ or direction as is necessary'' in the circumstances of the case (including an order as to costs) by quashing the dismissal order, if any, passed by the 3rd respondent which has not been served/supplied to the petitioner in the interest of law, justice and equity.

The aforementioned reliefs are sought in the background of the following facts:

Petitioner was appointed as Lecturer in Commerce on 5-8-1974 in the 3rd respondent-Acharya Patashala Education Trust, N.R. Colony, Bengaluru (for short, ''APE Trust''). He was transferred to A.P.S. Evening College as per order dated 27-4-1991. Petitioner challenged this before the Educational Appellate Tribunal (for short, ''EAT''). EAT granted stay of the transfer order in M.A. No. 13 of 1991 on 30-4-1991. Despite the order of transfer being stayed, the Management of the 3rd respondent-APE Trust did not permit the petitioner to report for duties and to continue in the college. M.A. No. 13 of 1991 was dismissed by the EAT on 6-8-1994. This was challenged in C.R.P. No. 3185 of 1994 before this Court. The order of transfer was stayed by an interim order dated 6-10-1994 for a period of one month. The interim order was vacated on 31-10-1994. The revision petition was dismissed on 24-6-1998 holding that revision petition was not maintainable. This made the petitioner to file a writ petition in W.P. No. 35609 of 1998. The said writ petition was also dismissed on 8-1-1999.

It is the case of the petitioner that during the pendency of the writ petition before this Court, he reported for duty at his transferred place i.e., APS Evening College, Bengaluru, however, he was not assigned any duty by the 4th respondent-College at the instance of the 3rd respondent. When the official respondents 1 and 2 intervened in the matter, petitioner was assigned duty with effect from 15-1-2001. However, he was not paid salary for the period from 1-5-1991 to 15-1-2001. It is also urged by the petitioner that though official respondents 1 and 2 had instructed the 3rd respondent vide letter dated 8-12-2000 to take the petitioner for duty and to initiate disciplinary action in accordance with rules and thereafter submit compliance report, the said directions were not adhered to by the 3rd respondent. Petitioner urges that he was made to report for duty in Vijaya College on 16-1-2001 where he worked up to 31-3-2001.

Disciplinary inquiry was initiated against the petitioner by issuing charge memo dated 4-10-2002. It was alleged that petitioner was unauthorisedly absent from his duties from 1-5-1991 to 30-10-1998 and that he had obtained gainful employment in another institution during the period from 1991 till 17-12-1995. Petitioner appeared before the Inquiry Officer and sought for some documents. The documents were not furnished. Petitioner, therefore, did not further participate in the disciplinary proceedings. The Inquiry Officer submitted the report on 17-7-2003 recording findings against the petitioner and holding that both the charges were proved. Petitioner was served with a show-cause notice enclosing copies of the findings of the Inquiry Officer. Petitioner sought for time to submit reply. Eventually time was not granted. Thereafter, Disciplinary Authority passed the order dated 18-10-2003 dismissing the petitioner from service. Petitioner attained the age of superannuation on 31-10-2003.

It is the contention of the petitioner that he was not aware of the order of dismissal passed against him and that he was pursuing his remedy seeking redressal by approaching the authorities of the State Government and the State Government. According to him, he had made a representation on 22/25-1-2008 to the 3rd respondent under the Right to Information Act, 2005, seeking information as to whether petitioner had been dismissed and if so, to supply an authenticated copy of the order. By letter dated 31-1-2008, 3rd respondent intimated the petitioner that he had been dismissed from service and it was also stated therein that the said fact had been conveyed to the petitioner by publishing the same in the local newspaper.

As petitioner did not secure the authenticated copy of the dismissal order and as the report submitted seeking copy of the order went in vain, petitioner filed an appeal before the 2nd respondent under Section 130 of the Karnataka Education Act, 1983. 2nd respondent issued an endorsement dated 16-6-2010 informing the petitioner that the appeal was not maintainable as he had no jurisdiction to entertain the appeal against the order passed by a private educational institution. Thereafter, petitioner has filed this writ petition seeking the aforementioned reliefs.

Main contentions urged by the learned Counsel for the petitioner are:

(i) as the order of dismissal of the petitioner has not been communicated to the petitioner and as the authenticated copy of the order has not been issued to the petitioner despite repeated requests, the dismissal order does not come into effect. In this regard, reliance has been placed on the judgment of the Apex Court in the case of State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313.

(ii) as the order of dismissal has been passed without obtaining prior approval of the Competent Authority, the order has no legal sanctity in the light of the mandatory requirement spelt out in Rule 32 of the Karnataka Educational Institutions (Collegiate Education) Rules, 2003;

(iii) that petitioner was not unauthorisedly absent from 1-5-1991 to 31-10-1994, inasmuch as, during the said period the interim order granted at the first instance by the EAT and subsequently by this Court in CRP were in force and the transfer order had been stayed;

(iv) It is lastly contended that petitioner is not required to avail the alternative remedy of filing an appeal under Section 94 of the Karnataka Education Act, challenging the uncommunicated order of dismissal having regard to the facts and circumstances of the case and this Court has to interfere in the matter in view of the chequered history which this case has.

Learned Counsel for respondents 3 and 4, at the outset, submits that this writ petition is not maintainable as the petitioner is guilty of delay and latches and has filed this writ petition after a lapse of nearly eight years from the date of the order dismissing the petition. In support of this contention, he has placed reliance on the judgment of the Apex Court in the case of Karnataka Power Corporation Limited and Another v. K. Thangappan and Another, AIR 2006 SC 1581. It is his next contention that this Court cannot embark upon an inquire with regard to the entitlement of the petitioner regarding payment of salary for the period from 1991 till 1998 as the order of transfer passed by the management has been upheld by the EAT and confirmed by this Court and the interim order of stay stood vacated and got merged in the final order passed dismissing the challenge laid to the transfer order. In support of this contention, he has placed reliance on the judgment of the Apex Court in the case of N. Mohanan v. State of Kerala and Others, AIR 1997 SC 1896 (paragraph 3) and also the judgment in the case of Bileshwar Khand Udyog Khedut Shahakari Mandali Limited v. Union of India and Another, AIR 1999 SC 1198 (paragraph 5). He has further contended that in view of the alternative remedy available under Section 94 to challenge the order of dismissal, petitioner is not entitled to invoke the jurisdiction under Articles 226 and 227 of the Constitution of India. In support of this contention, he has placed reliance on the judgment in the case of Smt. N.S. Nagalakshmi v. Vidya Vardhaka Sangha, Bangalore and Another, 2005 (6) Kar. L.J. 106.

Upon hearing the learned Counsel for both parties, the point that arises for consideration is:

Whether the petitioner is entitled for relief in the writ petition for payment of salary and the benefit of UGC pay scale and also for a direction that the enquiry conducted against the petitioner and his alleged dismissal was illegal?

As is evident from the facts narrated above, petitioner was transferred from APS Day College to APS Evening College vide order dated 27-4-1991. Though this transfer was challenged before the Educational Appellate Tribunal in MA No. 13 of 1991, ultimately by order dated 6-8-1994, appeal was dismissed. During the interregnum, there was an interim order of stay of the order of transfer. According to the petitioner, he was not permitted to continue to work in the APS Day College, despite the said order. He has not taken any steps to enforce the interim order. After the appeal was dismissed on 6-8-1994, he filed a revision petition before this Court. The revision petition was also dismissed on 24-6-1998. Petitioner, filed W.P. No. 35609 of 1998, which was also dismissed on 8-1-1999. It is thus apparent that the challenge made to the transfer order by the petitioner came to be dismissed.

The other development that emerges from the facts pleaded and the findings recorded are that the disciplinary enquiry was initiated against the petitioner by issuing charge memo dated 4-10-2002 wherein it was alleged that petitioner was absent from his duty from 1-5-1991 till 30-10-1998 and that he was gainfully employed in another institution during the period from 1991 till 17-12-1995.

Petitioner did not participate in the enquiry. His contention is that though he appeared before the Enquiry Officer and sought for certain documents, he was not furnished with the same and therefore, he could not further participate in the disciplinary proceedings. Enquiry Officer has submitted his findings on 17-7-2003 holding that both the charges had been proved. Petitioner was served with show-cause notice enclosing the copies of findings of the Enquiry Officer. He had sought for time to submit reply. Time sought for was not granted and the Disciplinary Authority passed an order on 18-10-2003 dismissing the petitioner from service. Petitioner did not take any step to challenge the order of dismissal.

This writ petition is filed in the year 2011. First prayer sought is to call for the entire records pertaining to transfer order and the disciplinary enquiry resulting in his dismissal to find out the truthfulness or otherwise of the action of the respondents. Pleading in the writ petition discloses that petitioner was aware of the enquiry initiated inasmuch as he appeared and sought for time. He has not participated in the enquiry. Enquiry Officer has submitted the report regarding his findings. The same has been served on the petitioner. Petitioner does not file any reply. Therefore, this is a case where petitioner has not chosen to participate in the enquiry proceedings. Hence, his assertion that the order of dismissal was not notified to him and therefore, he could not challenge the said order appears to be very strange and unacceptable.

Despite dismissal of his appeal filed before the EAT challenging the transfer order and despite dismissal of revision petition and writ petition, petitioner has neither reported for duty to continue to discharge his function in the transferee college, nor has he chosen to assail the enquiry initiated against him with regard to alleged unauthorised absence. Having kept quiet for several years, in the year 2011, this writ petition has been filed that too seeking a relief of declaration that petitioner had never absented from duty and that he was entitled for fixation of pay scale and payment of salary. Such a relief cannot be granted at this belated stage, in the facts and circumstances of the case, when the petitioner has suffered an order of dismissal dismissing him from his services as far back as on 18-10-2003.

If the petitioner was aggrieved by his dismissal, he had the remedy of filing an appeal before the EAT. He has not chosen to do so. His contention that as the order of dismissal had not been communicated, dismissal order does not come into effect cannot be accepted in the facts of the present case. At any rate, this Court will not be justified in entering into the said controversy in this writ jurisdiction. If the petitioner was entitled to take up such a ground he ought to have approached the EAT and established the fact that order dismissing him from service was not communicated to him and therefore, it did not come into effect. Similarly contention that without obtaining prior approval of the Competent Authority, the Management could not have passed the order of dismissal cannot be entertained at such belated stage. The appropriate remedy for the petitioner was to approach the EAT.

Therefore, in my view, this writ petition deserves to be dismissed only on the ground of delay and latches and in addition on the ground that petitioner ought to have availed alternative remedy by filing an appeal before EAT. Hence, without going into any other contentions in detail, this writ petition is dismissed.