Nagappa Pradhani S/O Danappa P., Vs. the State of Karnataka, Department of Revenue (Land Reforms, Registration and Stamps) Rep. by Its Secretary, - Court Judgment

Excerpt:
service - termination - petitioners working as lecturers with respondent were terminated - contention of the petitioners that termination was without holding proper enquiry and without following proper procedure -hence, this writ petition - held, administrator has the power to pass an order of suspension but only after conducting proper enquiry - in present case, termination was done only on ground that explanation submitted by the petitioners was not acceptable - therefore, order of termination not a reasoned order - if explanation was not satisfactory, then there was a need of proper enquiry for the alleged misconduct of the employees - therefore, an enquiry to be conducted in the light of explanation given by the petitioners - writ petition disposed of accordinglyconstitution - maintainability of writ petition - definition of state - article 12 and 227 of constitution of india - order of termination passed by third respondent-society - whether respondent-society is state within the meaning of article 12 and whether petition under article 227 maintainable - held, even though third respondent-society does not stand the test for calling it as state, the administrator who has been appointed to perform the role of managing affairs of society under section 27a being statutory functionary could be reviewed by court under article 227 - petition maintainable - karnataka education act, 1993.[k.a. no. 1/1995]. sections 67 & 92: [ d.y. shylendra kumar, j] enquiry into alleged misconduct - challenged as to - petitioners working as lecturer in department of painting, college of fine arts administrator had been appointed to perform role of managing affairs of institution administrator is still being continued, to hold an enquiry into alleged misconduct in the light of explanation given by petitioners, such enquiry may be concluded as early as possible. in the event of petitioners not co-operating, it is open for managements to pass orders in accordance with law. -- sections 67 & 92: misconduct by employee powers of the administrator administrator appointed to manage affairs of society running institution held, administrator who has stepped into shoes of management undoubtedly, has power to pass an order of suspension. an order of suspension is only a step in aid of further proceedings to hold enquiry. high court will interfere with order of suspension only if there is allegation of misuse of power, mala fide or arbitrary exercise of power.-- constitution of india. articles 12, 227: [d.y. shylendra kumar, j] state held, karnataka chitrakala parishad, a registered society, may not readily answer the test for calling it state just because of some financial assistance from government. however, power exercised by administrator who has been appointed to perform the role of managing affairs of society being a statutory functionary, his action can be reviewed by high court even under article 227. - hence, your services at chitrakala parishath as lecturer in the department of painting, college of fine arts, is terminated immediately with effect from 6th october, 2006. annexure-h according to the report of the administrator dated 28.9.2006 on the assessment of the lecturers working in college of fine arts, chitrakala prishath, it is seen that you have faired vary badly having taken only 39.13% in the cumulative grading as shown below: insofar as the orders of termination in respect of petitioners 1 and 2 are concerned, as it clearly recites that the explanation is not acceptable and therefore the services are terminated, the orders are not reasoned orders. 13. as the orders in respect of petitioners 1 and 2 are not tenable on the face of it, they are quashed by way of issue of a writ of certiorari insofar as the order in respect of 3rd petitioner is concerned, as it is submitted at the bar that the period of appointment itself would have been over within a month thereafter and therefore at the best, for not continuing his employment, the 3rd respondent -society may have to pay damages which is quantified as the salary for that month.orderd.v. shylendra kumar, j.w.p. no.14149/20061. writ petitioners claim to have been working as lecturers in the 3rd respondent -karnataka chitrakala parishath, a society registered under the provisions of the karnataka societies registration act, 1960.2. the petitioners are aggrieved by the orders of termination produced as annexure- f, g and h dated 6.10.2006, 6.10.2006 and 29.9.2006 respectively issued by the administrator of the society, who is running the educational institution, which read as under:annexure-ethe explanation submitted by you on 5th october 2006 is not satisfactory.hence, your services at chitrakala parishath as lecturer in the department of sculpture, college of fine arts, is terminated immediately with effect from 6th october, 2006.annexure - gthe explanation submitted by you on 5th october 2006 is not satisfactory.hence, your services at chitrakala parishath as lecturer in the department of painting, college of fine arts, is terminated immediately with effect from 6th october, 2006.annexure-haccording to the report of the administrator dated 28.9.2006 on the assessment of the lecturers working in college of fine arts, chitrakala prishath, it is seen that you have faired vary badly having taken only 39.13% in the cumulative grading as shown below:qualification experience marks exhibition assessment (sic) totalpublication evoluationothers(10 marks) (10 marks) (10 marks) (10 marks) (40 marks) (20 marks) (100 marks)-------------------------------------------------------------------------------------7.5 5 0 3 20.30 2.83 39.13-------------------------------------------------------------------------------------hence your work as lecturer in college of fine arts, chitrakala parishath is terminated, immediately with effect from 30.09.2006.3. it is aggrieved by such orders of termination, the petitioners have approached this court seeking for a writ of certiorari to quash these orders on the premise that the institution where they are working and managed by the karnataka chitrakala paris hat is an institution which receives financial support from the state of karnataka and therefore, it is to be construed as 'state' within the meaning of the expression as it occurs in article 12 of the constitution of india.4. it is alleged interalia that the impugned orders or termination are not in accordance with law; that no enquiry had been conducted before the issue of the same; that they are not reasoned orders and assuming the orders are as a measure of discipline, proper procedure had not been followed by the management mere so, in the wake of the institution having been accorded autonomous status by the bangalore university to which the institution is affiliated.5. this court, while issuing notice to the respondents, the state figuring as 1st respondent, the administrator appointed to manage the affairs of the society figuring as 2nd respondent and the principal of the institution where the petitioners claim ware working figuring as 3rd respondent, as on 10.10.2006, also stayed the impugned orders of termination under annexures-f, g and h.6. respondents who were served by notice, entered appearance. state is represented by sri khrestii, learned government advocate and respondents 2 and 3 by sri kukkaje ramakrishna bhat, advocate. statement of objections have been filed on behalf of respondents 2 and 3. an application is also moved on behalf of respondents 2 and 3 seeking for vacating the interim order of stay contending inter alia that the writ petition itself is not tenable; that the respondent-society is not 'state' within the meaning of article 12; that the administrator, being a substitute for the management of a private society, while so functioning, cannot elevate the institution to the status of state and therefore, the writ petition is to be dismissed outright. it is also contended that assuming the society is state, even then, writ petitioners should have availed of the statutory remedies and for this reason also, writ petition should not be entertained and when there is no prima facie ground even to maintain the writ petition, the petitioners are not entitled for interim order and the interim order requires to be vacated and the writ petition dismissed.7. i have heard. sri rajendra kumar sungay, learned counsel for the petitioners, sri y.k. bhat, learned counsel for respondents 2 and 3 and sri khureshi, learned government advocate appearing for the 1st respondent -state.8. though the matter has come up for orders on the application for vacating stay, with the consent of the learned counsel appearing for the parties, it is taken up for disposal itself as i find that passing orders on the application at this stage may not be very productive having regard to the peculiar circumstances that prevail in this writ petition.9. submission of sri khurashi, learned government advocate is that the provisions of the karnataka education act governs the functioning of the 3rd respondent -institution and it is open to the petitioner to avail of the statutory remedies provided under this act and therefore, the writ petition should not be entertained.10. while this question as to whether the 3rd respondent -society is state or otherwise within the meaning of article 12 does pose some difficulty and prima facie it appears, the 3rd respondent -society may not readily answer the test for calling it state just because some financial assistance it had received from the state government, i find the power exercised by the administrator who has been appointed to perform the role of managing the affairs of a society under section 27a of the karnataka societies registration act, 1960 being by a statutory functionary whose actions can be reviewed by this court even under article 227 of the constitution of india, and for this reason, this writ petition is entertained and the matter is taken up for disposal.11. the impugned orders which are noticed in the earlier part of this order does indicate a patent lack of procedural irregularity in the sense that the orders are passed for the reason that the explanation offered by the petitioners in response to the show cause notices issued to them is not acceptable. though, it is contended by sri bhat, learned counsel for respondents 2 and 3 that the petitioners had virtually admitted the charges in the explanation submitted to the showcase notices and therefore, no enquiry was called for, unfortunately, the impugned orders do not recite that. insofar as the orders of termination in respect of petitioners 1 and 2 are concerned, as it clearly recites that the explanation is not acceptable and therefore the services are terminated, the orders are not reasoned orders. that apart, if the explanation is not acceptable, it will be necessary for the management to hold an enquiry and not simply pass orders of termination. the order a do not say that the charges are admitted and therefore, no need for enquiry and the orders of termination are issued. on the face of it, the orders are not tenable and this is the reason why the petitioners are not relegated to avail of the alternative remedies under the karnataka education act though, normally that would have been the course of action which the petitioners should have resorted to.12. insofar as the 3rd petitioner is concerned, it is submitted that the 3rd petitioner had been appointed only for a limited duration; that at the time of passing of the order, the remaining portion of the service of this petitioner was only about a month. though this aspect of the matter is disputed by sri rajendra kumar sunday, learned counsel for the petitioners who submits that the 3rd petitioner, though, was being continued from year to year, has been working since 1996 and therefore, just because the respondents have produced a copy of the last renewal order that too, in the form of same note as annexure-81, that could not be given much credence, it is not necessary for this court to go into this question as to whether 3rd petitioner was a regular employee or an employs a for a limited period for the reason that there is a dispute on this, but more importantly learned counsel for the petitioner does not dispute that the appointment of the 3rd writ petitioner was not on a regular basis but only on adhoc basis for limited period.13. as the orders in respect of petitioners 1 and 2 are not tenable on the face of it, they are quashed by way of issue of a writ of certiorari insofar as the order in respect of 3rd petitioner is concerned, as it is submitted at the bar that the period of appointment itself would have been over within a month thereafter and therefore at the best, for not continuing his employment, the 3rd respondent -society may have to pay damages which is quantified as the salary for that month. respondent -society will have to pay that amount to the 3rd petitioner and nothing more. with regard to continuation or otherwise of the 3rd petitioner it is left to the discretion of the management and if the 3rd petitioner still feels aggrieved about the game, it is open to the 3rd petitioner to avail of the other statutory remedies. insofar as 1st and 2nd petitioners are concerned, it is submitted by sri rajendra kumar sungay that pursuant to the interim order they are continued in the respondent -institution and they are also being paid their salary for the period during which they have worked. if that is so, it is left to the discretion of the management to either continue them or if they so feel, to pass any alternative order which they are entitled to do for the purpose of conducting an enquiry in respect of their conduct as the explanation offered by them to the show cause notice has been found not acceptable by the management.14. the management which is the administrator as of now, as the administrator is still being continued, to hold an enquiry into the alleged misconduct and in the light of the explanation given by petitioners 1 and 2, to pass orders in accordance with the relevant statutory provisions. such enquiry may be concluded as early as possible but within an outer limit of six months from today. petitioners 1 and 2 to co-operate in the enquiry and in the event of petitioners 1 and 2 not co-operating, it is open for the management to pass orders in accordance with law.15. writ petition disposed of accordingly. rule issued and made absolute to the limited extent indicated above.w.p.no. 14149/200616. this writ petition by another employee of the very institution referred to above who is questioning the order of suspension dated 5.10.2006 whereunder, the petitioner had been asked to show-cause in respect of certain acts of misconduct and pending further proceeding and particularly for protecting the interest of the collage of fine arts where the petitioner is working as a professor and to ensure that the documents relevant for the purpose of holding enquiry are not in any way meddled with, it is necessary to place the petitioner under suspension.17. notice has been issued and the respondents have entered appearance through their respective counsel.18. the matter has come up for orders on i.a. for vacating the interim order granted by this court on 10.10.2006 staying the operation of the impugned order at annexure -e.19. heard sri rajendra kumar sungay, learned counsel for the petitioner, sri kukkaje ramakrishan bhat, learned counsel appearing for respondents 2 and 3 and sri khureshi, learned government advocate appearing for the 1st respondent state.20. while the contentions regarding the tenability of the writ petition are the same as in the above writ petition, the limited question in this writ petition is as to whether the order of suspension passed by the administrator while managing the affairs of the society and being a statutory authority in terms of section 27a of the karnataka societies registration act, calls for any interference.21. sri rajendra kumar sungay, learned counsel for the petitioner vehemently submits that the administrator has no competence to pass the order of suspension; that all false and incorrect allegations are heaped against the petitioner and that the petitioner has been unnecessarily persecuted.22. it is not necessary to go into the merits of the order as prima facie, the administrator who has stepped into the shoes of the management of the affairs of the society, undoubtedly, has the power to pass an order of suspension, particularly, if an enquiry is contemplated in the wake of a misconduct on the part of art employee of the society. in respect of an order of suspension, this court normally does not interfere in writ jurisdiction as an order of suspension is only a step in aid of further proceedings to hold an enquiry. the order of suspension is examined only if grave allegation of misuse of power, gross arbitrary exercise of power or power being exorcised in a mala fide manner for victimising any person. such being not the case in the present writ petition, no need to examine the matter any further in writ jurisdiction. the interim order is vacated and the writ petition itself is rejected. it is open to the management to take such action as they deem fit but only in accordance with law. writ petition is dismissed.

Judgment:
ORDER

D.V. Shylendra Kumar, J.

W.P. No.14149/2006

1. Writ petitioners claim to have been working as Lecturers in the 3rd respondent -Karnataka Chitrakala Parishath, a society registered under the provisions of the Karnataka Societies Registration Act, 1960.

2. The petitioners are aggrieved by the orders of termination produced as Annexure- F, G and H dated 6.10.2006, 6.10.2006 and 29.9.2006 respectively issued by the Administrator of the society, who is running the educational institution, which read as under:

ANNEXURE-E

The explanation submitted by you on 5th October 2006 is not satisfactory.

Hence, your services at Chitrakala Parishath as Lecturer in the Department of Sculpture, College of Fine Arts, is terminated immediately with effect from 6th October, 2006.

ANNEXURE - G

The Explanation submitted by you on 5th October 2006 is not satisfactory.

Hence, your services at Chitrakala Parishath as Lecturer in the Department of Painting, College of Fine Arts, is terminated immediately with effect from 6th October, 2006.

ANNEXURE-H

According to the report of the Administrator dated 28.9.2006 on the Assessment of the Lecturers working in College of Fine Arts, Chitrakala Prishath, it is seen that you have faired vary badly having taken only 39.13% in the cumulative grading as shown below:

Qualification Experience Marks Exhibition Assessment (sic) TotalPublication Evoluationothers(10 marks) (10 marks) (10 marks) (10 marks) (40 marks) (20 marks) (100 marks)-------------------------------------------------------------------------------------7.5 5 0 3 20.30 2.83 39.13-------------------------------------------------------------------------------------Hence your work as Lecturer in College of Fine Arts, Chitrakala Parishath is terminated, immediately with effect from 30.09.2006.

3. It is aggrieved by such orders of termination, the petitioners have approached this Court seeking for a writ of certiorari to quash these orders on the premise that the institution where they are working and managed by the Karnataka Chitrakala Paris hat is an institution which receives financial support from the State of Karnataka and therefore, it is to be construed as 'state' within the meaning of the expression as it occurs in Article 12 of the Constitution of India.

4. It is alleged interalia that the impugned orders or termination are not in accordance with law; that no enquiry had been conducted before the issue of the same; that they are not reasoned orders and assuming the orders are as a measure of discipline, proper procedure had not been followed by the management mere so, in the wake of the institution having been accorded autonomous status by the Bangalore University to which the institution is affiliated.

5. This Court, while issuing notice to the respondents, the state figuring as 1st respondent, the administrator appointed to manage the affairs of the society figuring as 2nd respondent and the Principal of the institution where the petitioners claim ware working figuring as 3rd respondent, as on 10.10.2006, also stayed the impugned orders of termination under Annexures-F, G and H.

6. Respondents who were served by notice, entered appearance. State is represented by Sri Khrestii, learned Government Advocate and respondents 2 and 3 by Sri Kukkaje Ramakrishna Bhat, advocate. Statement of objections have been filed on behalf of respondents 2 and 3. An application is also moved on behalf of respondents 2 and 3 seeking for vacating the interim order of stay contending inter alia that the writ petition itself is not tenable; that the respondent-society is not 'state' within the meaning of Article 12; that the administrator, being a substitute for the management of a private society, while so functioning, cannot elevate the institution to the status of State and therefore, the writ petition is to be dismissed outright. It is also contended that assuming the society is state, even then, writ petitioners should have availed of the statutory remedies and for this reason also, writ petition should not be entertained and when there is no prima facie ground even to maintain the writ petition, the petitioners are not entitled for interim order and the interim order requires to be vacated and the writ petition dismissed.

7. I have heard. Sri Rajendra Kumar Sungay, learned Counsel for the petitioners, Sri Y.K. Bhat, learned Counsel for respondents 2 and 3 and Sri Khureshi, learned Government advocate appearing for the 1st respondent -State.

8. Though the matter has come up for orders on the application for vacating stay, with the consent of the learned Counsel appearing for the parties, it is taken up for disposal itself as I find that passing orders on the application at this stage may not be very productive having regard to the peculiar circumstances that prevail in this writ petition.

9. Submission of Sri Khurashi, learned Government Advocate is that the provisions of the Karnataka Education Act governs the functioning of the 3rd respondent -institution and it is open to the petitioner to avail of the statutory remedies provided under this Act and therefore, the writ petition should not be entertained.

10. While this question as to Whether the 3rd respondent -society is state or otherwise within the meaning of Article 12 does pose some difficulty and prima facie it appears, the 3rd respondent -society may not readily answer the test for calling it state just because some financial assistance it had received from the State Government, I find the power exercised by the administrator who has been appointed to perform the role of managing the affairs of a society under Section 27A of the Karnataka Societies Registration Act, 1960 being by a statutory functionary whose actions can be reviewed by this Court even under Article 227 of the Constitution of India, and for this reason, this writ petition is entertained and the matter is taken up for disposal.

11. The impugned orders which are noticed in the earlier part of this order does indicate a patent lack of procedural irregularity in the sense that the orders are passed for the reason that the explanation offered by the petitioners in response to the show cause notices issued to them is not acceptable. Though, it is contended by Sri Bhat, learned Counsel for respondents 2 and 3 that the petitioners had virtually admitted the charges in the explanation submitted to the showcase notices and therefore, no enquiry was called for, unfortunately, the impugned orders do not recite that. Insofar as the orders of termination in respect of petitioners 1 and 2 are concerned, as it clearly recites that the explanation is not acceptable and therefore the services are terminated, the orders are not reasoned orders. That apart, if the explanation is not acceptable, it will be necessary for the management to hold an enquiry and not simply pass orders of termination. The order a do not say that the charges are admitted and therefore, no need for enquiry and the orders of termination are issued. On the face of it, the orders are not tenable and this is the reason why the petitioners are not relegated to avail of the alternative remedies under the Karnataka Education Act though, normally that would have been the course of action which the petitioners should have resorted to.

12. Insofar as the 3rd petitioner is concerned, it is submitted that the 3rd petitioner had been appointed only for a limited duration; that at the time of passing of the order, the remaining portion of the service of this petitioner was only about a month. Though this aspect of the matter is disputed by Sri Rajendra Kumar Sunday, learned Counsel for the petitioners who submits that the 3rd petitioner, though, was being continued from year to year, has been working since 1996 and therefore, just because the respondents have produced a copy of the last renewal order that too, in the form of same note as Annexure-81, that could not be given much credence, it is not necessary for this Court to go into this question as to whether 3rd petitioner was a regular employee or an employs a for a limited period for the reason that there is a dispute on this, but more importantly learned Counsel for the petitioner does not dispute that the appointment of the 3rd writ petitioner was not on a regular basis but only on adhoc basis for limited period.

13. As the orders in respect of petitioners 1 and 2 are not tenable on the face of it, they are quashed by way of issue of a writ of certiorari insofar as the order in respect of 3rd petitioner is concerned, as it is submitted at the bar that the period of appointment itself would have been over within a month thereafter and therefore at the best, for not continuing his employment, the 3rd respondent -society may have to pay damages which is quantified as the salary for that month. Respondent -society will have to pay that amount to the 3rd petitioner and nothing more. With regard to continuation or otherwise of the 3rd petitioner it is left to the discretion of the management and if the 3rd petitioner still feels aggrieved about the game, it is open to the 3rd petitioner to avail of the other statutory remedies. Insofar as 1st and 2nd petitioners are concerned, it is submitted by Sri Rajendra Kumar Sungay that pursuant to the interim order they are continued in the respondent -institution and they are also being paid their salary for the period during which they have worked. If that is so, it is left to the discretion of the management to either continue them or if they so feel, to pass any alternative order which they are entitled to do for the purpose of conducting an enquiry in respect of their conduct as the explanation offered by them to the show cause notice has been found not acceptable by the management.

14. The management which is the administrator as of now, as the administrator is still being continued, to hold an enquiry into the alleged misconduct and in the light of the explanation given by petitioners 1 and 2, to pass orders in accordance with the relevant statutory provisions. Such enquiry may be concluded as early as possible but within an outer limit of six months from today. Petitioners 1 and 2 to co-operate in the enquiry and in the event of petitioners 1 and 2 not co-operating, it is open for the management to pass orders in accordance with law.

15. Writ petition disposed of accordingly. Rule issued and made absolute to the limited extent indicated above.

W.P.No. 14149/2006

16. This writ petition by another employee of the very institution referred to above who is questioning the order of suspension dated 5.10.2006 whereunder, the petitioner had been asked to show-cause in respect of certain acts of misconduct and pending further proceeding and particularly for protecting the interest of the collage of Fine Arts where the petitioner is working as a professor and to ensure that the documents relevant for the purpose of holding enquiry are not in any way meddled with, it is necessary to place the petitioner under suspension.

17. Notice has been issued and the respondents have entered appearance through their respective counsel.

18. The matter has come up for orders on I.A. for vacating the interim order granted by this Court on 10.10.2006 staying the operation of the impugned order at Annexure -E.

19. Heard Sri Rajendra Kumar Sungay, learned Counsel for the petitioner, Sri Kukkaje Ramakrishan Bhat, learned Counsel appearing for respondents 2 and 3 and Sri Khureshi, learned Government Advocate appearing for the 1st respondent State.

20. While the contentions regarding the tenability of the writ petition are the same as in the above writ petition, the limited question in this writ petition is as to whether the order of suspension passed by the administrator while managing the affairs of the society and being a statutory authority in terms of Section 27A of the Karnataka Societies Registration Act, calls for any interference.

21. Sri Rajendra Kumar Sungay, learned Counsel for the petitioner vehemently submits that the administrator has no competence to pass the order of suspension; that all false and incorrect allegations are heaped against the petitioner and that the petitioner has been unnecessarily persecuted.

22. It is not necessary to go into the merits of the order as prima facie, the administrator who has stepped into the shoes of the management of the affairs of the society, undoubtedly, has the power to pass an order of suspension, particularly, if an enquiry is contemplated in the wake of a misconduct on the part of art employee of the society. In respect of an order of suspension, this Court normally does not interfere in writ jurisdiction as an order of suspension is only a step in aid of further proceedings to hold an enquiry. The order of suspension is examined only if grave allegation of misuse of power, gross arbitrary exercise of power or power being exorcised in a mala fide manner for victimising any person. Such being not the case in the present writ petition, no need to examine the matter any further in writ jurisdiction. The interim order is vacated and the writ petition itself is rejected. It is open to the management to take such action as they deem fit but only in accordance with law. Writ petition is dismissed.