Full Judgment Text
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PETITIONER:
DHARMARATHMAKARA R .A. RAMASWAMY MUDALIAR ED. INSTITUTION
Vs.
RESPONDENT:
THE EDUCATIONAL APPELLATE TRIBUNAL & ANR
DATE OF JUDGMENT: 20/08/1999
BENCH:
Sujata V. Manohar, A.P.Misra
JUDGMENT:
Misra, J.
This appeal is directed against revisional order
passed by the High Court of Karnataka on 25th September,
1989 confirming the order dated 13th February, 1980, passed
by the Educational Appellate Tribunal under Section 8 of the
Karnataka Private Educational Institutions (Discipline and
Control), Act of 1975 (hereinafter referred to as the 1975
Act) which allowed the appeal of the respondent by setting
aside the order dated 26th February, 1979 terminating her
services w.e.f. 28th February, 1979. The appellant
institution is a private educational institution conducting
a junior college. The second respondent was appointed as a
lecturer in Chemistry in the said institution on 5th June,
1973. She applied for grant of leave for proceeding her
higher studies which was granted subject to her giving a
declaration that after expiry of the leave if she fails to
resume her duties, the authorities shall be entitled to
terminate her services. The case of the appellant is that
though an extraordinary leave was granted for specified
course with certain conditions but respondent No.2 neither
went for the course for which she obtained the leave nor
joined back her duties in spite of the reminder and hence
after due notice to respondent No.2 and after receipt of her
reply and after giving due consideration to it not finding
it satisfactory, terminated her services on 26th February,
1979. It is this order which was challenged before the said
Tribunal in appeal in which her termination order was set
aside. Aggrieved by the same, the appellant filed Civil
Revision in the High Court. The High Court confirmed the
order of the Tribunal by holding neither any enquiry was
held nor any opportunity was provided to the second
respondent to establish that she had not stayed away
willfully. Aggrieved by this, the present appeal has been
filed.
The appellants case is that on 27th May, 1978
respondent No.2 wrote a letter to the Principal of the
college seeking leave to register her name for Ph.D course
and also for sanction of leave for three years from 17th
June, 1978. This application was examined by the Board of
management and after careful consideration rejected it.
Thereafter, another application dated 16th June, 1978 was
made by respondent No.2 for extraordinary leave for a period
of one year to enable her to do M.Phil for which the
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prescribed duration is one year. The Board of management
after considering her second application granted her the
extraordinary leave for one year, on two main conditions
that she makes a declaration on affidavit that she would
join her services at the end of the said leave period. It
was on submission of such an affidavit the aforesaid leave
was granted for one year w.e.f. 27th June, 1978. The
second condition was that she should register herself for
M.Phil course and confirm this registration by or before
31st July, 1978. As a fact she did not join M.Phil course
but contrary to the condition of leave, which was for M.Phil
course, she got herself registered for Ph.D course. As per
the undertaking, she was to get herself register with the
Calicut University for M.Phil course and send a copy of this
registration to the appellant institution, on or before 31st
July, 1978, failing which she was to return back and join
her services by 10 A.M. on 16th August, 1978. Admittedly,
this registration was not sent by the said date nor she
returned back to join her services in terms of the same.
Then on 8th August, 1978 the appellant wrote a registered
letter to respondent No.2 directing her to join her services
by 16th August, 1978. This letter though was acknowledged
by her, she did not join back. Rather she wrote on 12th
August, 1978 expressing her inability to join her duties.
Thereafter, the appellant sought confirmation from the
Registrar of the said University regarding the registration
of respondent No.2 for the said course. The Registrar
through his letter dated 24th August, 1978 informed the
appellant that the University was unable to start the course
of M.Phil in Chemistry and hence she was not registered for
the said course. On 15th September, 1978, the appellant
informed respondent No.2 about her non-registration in
M.Phil course in terms of her agreement, in spite of this,
an opportunity was given to her to come back and join her
duties on or before 30th September, 1978 through a show
cause notice dated 27th September, 1978. In it a direction
was given to respondent No.2 to join her duties before 4
P.M. by the 30th September, 1978, failing which her
services in the college would stand terminated without
further notice. Thereafter, the trust-Board in its meeting
held on 6th December, 1978 resolve to issue another show
cause notice which was issued to respondent No.2 on 20th
December, 1978, through which another opportunity was given
to the respondent to submit her written explanation, if any,
and in case no written and satisfactory explanation was
received within one calender month from the date of receipt
of this notice, ex parte action would be taken. The
explanation sought was on the following charges which is
quoted hereunder :
a) You applied for extra-ordinary leave of absence
for higher studies at the Calicut University and you were
granted one year extra ordinary leave of absence with effect
from 27.6.1978 for a specific purpose viz. for taking up
M.Phil course in Chemistry on giving an affidavit. b) you
failed to register yourself for the M.Phil course in
chemistry at the Calicut University. Thus the conditions
under which the said leave was granted were not fulfilled by
you. c) Neither did you report yourself to duty by
30.9.1978 nor did you send any reply to the registered
letter dated 27.9.1978 and thus stayed away willfully. I,
A.K. Madhava Narrain, Hony. Secretary & Correspondent of
RBANMs Educational Institutions, serve this notice on you
as to why your services in the Junior Day College should not
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be terminated in the light of the above.
A reply was sent by respondent No.2 to this notice.
In reply, she submitted that after letter dated 27.9.1978
which is really the termination order these charges are not
sustainable in the eye of law. This is also the submission
of her counsel before us with reference to the letter dated
27th September, 1978. She challenged this letter before the
Educational Appellate Tribunal on 1st January, 1978
believing the said letter to be an order of termination.
However, respondent No.2 later got her appeal, before the
said Tribunal, dismissed as not pressed.
This seems to be, in view of the fact that another
show cause notice was issued to her, as aforesaid.
Respondent No.2 filed reply to this 2nd show cause notice,
which the appellant after due consideration rejected and
passed termination order dated 26th February, 1979. This
order was again challenged by respondent No.2 before the
said Tribunal which allowed her appeal and set aside her
termination order. The High Court upheld this order of the
Tribunal holding that there was violation of principle of
natural justice as no opportunity was given to respondent
No.2 and no enquiry was held in terms of Section 6 of the
aforesaid 1975 Act. Challenging these findings, the
submission is made on behalf of the appellant that full
conceivable opportunity was given to respondent No.2 and in
fact she even sent a reply dated 3rd February, 1979 and it
is only after considering the said reply and other letters
sent by her and relevant record which is recorded in the
order of termination dated 26th February, 1979 itself, her
services were terminated w.e.f. 28th February, 1979. Thus
it cannot be urged no opportunity was given to her. Thus
there could possibly be no illegality in passing the
impugned termination order.
On these facts we proceed to examine the merit of
contentions. We find, it is not in dispute that she earlier
applied for leave for three years for doing Ph.D. course
which was rejected by the Board. She later applied for
extraordinary leave for a period of one year for doing
M.Phil course with an undertaking that she would be sending
the registration of her M.Phil. course by 31st July, 1978,
failing which she would return back and join her services at
10 A.M. on 16th August, 1978. It is also not disputed that
she did not get herself registered for M.Phil course. It is
only when enquiry was made by the appellant from the
Registrar of the Calicut University it was revealed that
M.Phil course did not even start in the said year in
question in the University and instead she got herself
registered for Ph.D. course. It is significant, as
aforesaid, that her earlier application for leave for doing
Ph.D. course stood rejected, hence she applied
subsequently, alternatively for M.Phil course. It is also
not in dispute in spite of the registered letter dated 8th
August, 1978 by the appellant directing her to join her
duties by 16th August, 1978, which was also acknowledged by
her on the 12th August, 1978, she did not join her duties.
The submission by the learned counsel for respondent No.2 is
since she could not get herself registered for M.Phil course
in the said University, having no alternative she got
herself registered for Ph.D. course. Her case is, as she
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had already obtained extraordinary leave for higher studies
for one year she joined this course. Later she sent a
request to the appellant to grant her permission for the
same. It is also not in dispute the said permission was not
granted by the appellant to respondent No.2.
The main submission on behalf of respondent No.2 is
that the appellant when sent the aforesaid letter/notice
dated 27th September, 1978 to respondent No.2, it directed
her to join back her duties by 4 P.M. on 30th September,
1978. Since she received the letter only on 29th September,
1978 and in view of the language of the said letter she
treated the said letter as termination letter and proceeded
to challenge the same before the said Tribunal. This letter
admittedly did not give any opportunity to respondent No.2
and this action was alleged to be illegal. Even in reply to
the second show cause notice, as aforesaid, on the 3rd
February, 1979 this point was reiterated and emphasised by
her. We fail to appreciate such submission before us in the
present proceeding as admittedly and as per records the
challenge to the said letter/order dated 27th September,
1978 before the Tribunal was dismissed as withdrawn. This
was clear in view of the receipt of the second show cause
notice dated 20th December, 1978 in which full opportunity
was given to respondent No.2 to explain. The second show
cause notice truly repelled earlier show cause letter dated
27.9.1978. To this an explanation was furnished by her and
the termination order dated 26th February, 1979 also clearly
reveals that not only her reply dated 3rd February, 1979 was
considered, but all her other letters and correspondence,
nine in numbers, were placed before the appellant which is
also referred in the termination order and thus after taking
them into account termination order was passed. In view of
this, it cannot be said on the facts and circumstances of
this case that there was any violation of any principle of
natural justice as sufficient opportunity was given to her.
The said matrix of facts reveal, on the contrary, which is
also not in dispute that respondent No.2 in spite of her
earlier application for leave for seeking permission for
doing Ph.D. course which is for three years being rejected,
she in spite of this under the garb of leave for doing
M.Phil course for one year and on such leave, without
seeking any fresh permission from the appellant got herself
registered for Ph.D. course. This apart, admittedly, she
even violated conditions of her leave for which she filed an
affidavit, i.e., if she does not get admission in M.Phil
course by 31st July, 1978, she would re-join the services
which she did not do. The facts speak for itself. It is
also clear from record the appellant gave opportunity to
her. On these facts, the order of termination passed by the
appellant cannot be said to be illegal. We find both
Tribunal and the High Court did not revert or scrutinize
these basic fact, which is so apparent and revealing that no
other inference is possible and that is why we do not find
on record even from her reply any sustainable defence been
taken by her.
The contention of learned counsel for the respondent
is confined that there was no enquiry in terms of Section 6
of the said Act. There is no submission of any defence on
merit. Even before us when we granted learned counsel an
opportunity to give any prima facie or plausible
explanations on record to defend her actions, nothing could
be placed before us. Giving of opportunity or an enquiry of
course is a check and balance concept that no ones right be
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taken away without giving him/her opportunity or without
enquiry in a given case or where statute require. But this
cannot be in a case where allegation and charges are
admitted and no possible defence is placed before the
authority concerned. What enquiry is to be made when one
admits violations? When she admitted she did not join
M.Phil course, she did not report back to her duty which is
against her condition of leave and contrary to her affidavit
which is the charge, what enquiry was to be made? In a case
where facts are almost admitted, the case reveals itself and
is apparent on the face of record, and in spite of
opportunity no worthwhile explanation is forthcoming as in
the present case, it would not be a fit case to interfere
with termination order.
Further the order of termination was passed in the
year 1978 which is more than 21 years back and on the facts
and circumstances of this case, as she is not working since
then in the said institution and we are also informed by her
learned counsel that she is already in some job and in view
of our findings above, we do not find this case to be such
as to confirm the impugned orders. On the contrary we feel
it was a fit case where her termination order should have
been upheld. This is a case where respondent No.2. acted
clearly in violation of her own undertaking against her
condition of leave and in spite of information to her by the
appellant to return to duty she did not which clearly
depicts a picture that termination order cannot be held to
be invalid. Thus both the courts, viz., Tribunal and the
High Court committed wrong in setting aside the order of
termination passed against her by the appellant.
Learned counsel for respondent No.2 lastly submitted
that her termination order puts stigma on her which would
effect her future and other employment. On the facts of
this case we have no hesitation to hold that this
termination order is an order of termination simpliciter and
it does not put any stigma on respondent No.2. Even if it
could be construed as such we protect her not to be read as
so by this order.
For all these reasons, the appeal filed by the
appellant succeeds and is allowed. The impugned order of
the High Court dated 25th September, 1989 confirming the
order of the Tribunal dated 13th February, 1980 is hereby
set aside and we uphold the order of termination dated 26th
February, 1979. Costs on the parties.