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2015 DIGILAW 1247 (KAR)

Maratha Mandal v. Chandrakant Baburao Kadam

2015-11-17

R.S.CHAUHAN

body2015
ORDER : The petitioner, Maratha Mandal, Belgaum has challenged the legal validity of the order dated 26.06.2010 passed by the Educational Appellate Tribunal and Principal District Judge, Belgaum, whereby the learned Tribunal has concluded that the domestic enquiry held by the petitioner’s Management was unfair and improper. The petitioner is also aggrieved by the order dated 28.07.2010 passed by the learned Tribunal, whereby the learned Tribunal has set aside the dismissal order dated 21.04.2001 passed by the petitioner Management, and has directed the petitioner Management to pay arrears of salary to respondent No.1 for the period from April, 1999 upto the date on which the respondent attained the age of superannuation. It further directed the petitioner Management to pay his retirement benefits as per law within a period of one month from the date of the order, failing which the petitioner Management shall be liable to pay interest at 9% per annum from the date of default till payment. 2. Briefly the facts of the case are that, the respondent No.1, Chandrakant Baburao Kadam, joined the service of the petitioner Management as Principal of Maratha Mandal’s Arts and Commerce College, Khanapur in the year 1985. During the year 1998-99, supplementary examinations of the Karnataka University were held in the months of October and November 1998. Although the respondent was not incharge of the supplementary examinations work during the said period, on 17.12.1998 a news item appeared in the local daily “Kannadamma” regarding malpractice in the supplementary examinations held at the college where the respondent was the Principal. On the basis of the said news item, on 03.05.1999, the Management served a charge sheet on the respondent No.1. According to the chargesheet, there were five charges framed against the respondent No.1 as under:- (1) Being a Principal, directly responsible and accountable for conducting of examination as per the procedure laid down in guidelines for conduct of examination prescribed by Karnataka University, Dharwad, appellant failed to adhere to the procedure laid down. (2) Appellant was directly or indirectly responsible for supply Of blank supplements to outsiders in unauthorised manner. (3) Appellant failed to maintain proper working culture in the College and he is directly involved in groupism, rivalry, between the staff members, resulting in lowering the standard of education and also causing loss and damage to the image of the College. (2) Appellant was directly or indirectly responsible for supply Of blank supplements to outsiders in unauthorised manner. (3) Appellant failed to maintain proper working culture in the College and he is directly involved in groupism, rivalry, between the staff members, resulting in lowering the standard of education and also causing loss and damage to the image of the College. (4) Appellant’s inapt handling and inefficient administrative control of the College ultimately resulted in loss of examination centre to the College. Vide Karnatak University’s order No.KUD/Exam/Confidential/1036, dated 8.1.1999 (5) Loss of examination centre to the College would create untold hardship and sufferings, and inconvenience to the students of the college, and also the students of the other colleges for whose benefit the examination centre was established. 3. The petitioner refuted the allegations made in the chargesheet. However, as the Management did not accept his explanation, by order dated 25.03.1999, the Management appointed an Enquiry Officer. After holding a thorough enquiry, the Enquiry Officer submitted his report on 25.07.2000. According to the Enquiry Officer, while charge Nos.1 and 2 were proved, charge No.3 was not proved, and charge No.4 was only partly proved against the respondent. During the course of enquiry, by resolution dated 22.04.1999, the Management suspended the respondent from his service. After giving a second show-cause notice to the respondent, by order dated 21.04.2001, the Management dismissed the respondent from service. 4. Since the respondent No.1 was aggrieved by the order of punishment dated 21.04.2001, he filed an appeal before the learned Tribunal under Section 94 of the Karnataka Education Act, 1993. According to respondent No.1, an unfair and improper domestic enquiry had been held against him. The said plea raised by the respondent No.1 was denied by the Management before the learned Tribunal. Therefore, the learned Tribunal framed a single issue namely, “Whether the first respondent Management has proved that the domestic enquiry preceding the order of dismissal dated 21.04.2001, was conducted in a fair and proper manner ?” 5. After going through the oral and documentary evidence, by order dated 26.06.2010, the learned Tribunal held that, in fact, the domestic enquiry was vitiated on the ground that the respondent No.1 has not been paid the subsistence allowance. Therefore, it directed the petitioner management to adduce its evidence and in the meantime to pay subsistence allowance equal to the full amount of the last salary drawn by the appellant. Therefore, it directed the petitioner management to adduce its evidence and in the meantime to pay subsistence allowance equal to the full amount of the last salary drawn by the appellant. Subsequently, by order dated 28.07.2010, the learned Tribunal set aside the dismissal order dated 21.04.2001 and passed the direction as mentioned above. Hence, this petition before this court. 6. Mr. C.K. Subramanyam, the learned counsel appearing for the petitioner Management, has raised the following contentions before this court:- Firstly, according to the respondent, he was paid subsistence allowance till 01.04.2000. The departmental enquiry was concluded on 17.06.2000. Therefore, the issue before the Tribunal was whether nonpayment of subsistence allowance for a period of two months and seventeen days would vitiate the departmental enquiry or not? Secondly, relying on the case of Indra Bhanu Gaur v. Committee, Management of M.M. Degree College and Others [ AIR 2004 SC 248 ] and on the case of U.P. State Textile Corporation Ltd. v. P.C. Chaturvedi and Others [ (2005) 8 SCC 211 ], the learned counsel has pleaded that mere nonpayment of subsistence allowance would not ipsofacto vitiate the departmental enquiry. In fact, the delinquent officer is expected to establish that due to nonpayment of subsistence allowance, prejudice was caused to him/her. However, in the present case, the respondent No.1 has neither pleaded, nor proved that any prejudice was caused to him due to nonpayment of subsistence allowance. In fact, the respondent No.1 had consistently participated in the departmental enquiry from 01.04.2000 till 17.06.2000. Thus, no prejudice was caused to the respondent due to nonpayment of subsistence allowance. Thirdly, the learned Tribunal has erred in relying upon the judgment of Ghanshyam Das Shrivastava v. State of Madhya Pradesh [1973 (1) ISCWR 392] and on the judgment of M. Paul Anthony v. Bharat Gold Mines Ltd., [ AIR 1999 SC 1416 ]. According to the learned counsel, although the earlier judicial thinking was that nonpayment of subsistence allowance would automatically vitiate the departmental enquiry, but the said judicial thinking has undergone a sea change as is clearly reflected in the subsequent judgments of the Hon’ble Supreme Court in the case of Indra Banu Gaur (supra) and in the case of U.P. State Electricity Corporation (supra). Fourthly, even other two judgments relied upon by the learned Tribunal, namely T. Sundara v. The Management, Sericulture-cum-Farmers Coop Society Ltd., [ILR 1999 KAR 3779] and in the case of Rameshwar Education Society, Hassan v. Directorate of Employment and Training, Bangalore [2009 (3) Kar. L.J. 271] do not substantiate the case of the respondent. Therefore, according to the learned counsel, the learned Tribunal has misapplied the case law and has reached a wrong conclusion. Hence, the impugned orders deserve to be interfered with. 7. On the other hand, Mr. N.K. Maruthi, the learned counsel for respondent No.1, has vehemently contended that in the case of M. Paul Anthony (supra) the Hon’ble Supreme Court had clearly laid down that nonpayment of subsistence allowance would vitiate the domestic enquiry. Similar findings were also given by this court in the case of T. Sundara (supra). Thus, the learned Tribunal was certainly justified in relying upon such case law in order to substantiate its reasoning. Secondly, according to the learned Tribunal, even the order of suspension was an illegal one. Therefore, according to the learned counsel, the impugned orders are legally valid and they should not be interfered with by this court. 8. Mr. M. Kumar, the learned counsel for the State, has merely pleaded that the suspension order, was in fact, explained by the Commissioner of Collegiate Education by letter dated 18.01.2001. Therefore, according to him, the suspension order was a valid one. 9. The learned Tribunal was seized of a single issue as mentioned above. Although, the learned Tribunal has relied on the case of Ghanshyam Das (supra) and M. Paul Anthony (supra), but it has failed to notice the change in the judicial thinking from the case of Ghanshyam Das (supra) to the case of Indra Banu Gaur (supra) and U.P. State Electricity Corporation (supra). 10. In the case of Indra Banu Gaur (supra) the Hon’ble Supreme Court has observed as under:- So far as the effect of nonpaying the subsistence allowance is concerned, before authorities no stand was taken that because of nonpayment of subsistence allowance, he was not in a position to participate in the proceedings, or that any other prejudice in effectively defending the proceeding was caused to him. The appellant could not plead or substantiate also that nonpayment was either deliberate or to spite him and not due to his own fault. The appellant could not plead or substantiate also that nonpayment was either deliberate or to spite him and not due to his own fault. It is ultimately a question of prejudice. Unless prejudice is shown and established, mere non payment of subsistence allowance cannot ipsofactor be a ground to vitiate the proceedings in every case. It has to be specifically pleaded and established as to in what way the affected employee is handicapped because of non receipt of subsistence allowance. Unless that is done, it cannot be held as absolute proposal in law that non payment of subsistence allowance amounts to denial of opportunity and vitiates departmental proceedings. [Emphasis added] 11. Similar view was also held by the Hon’ble Supreme Court in the case of U.P. State Textile Corporation Ltd., (supra) wherein, the Hon’ble Supreme Court in fact, has relied upon its previous judgment in the case of Indra Bhanu Gaur (supra). 12. Although it is true that in the case of the case of Ghanshyam Das (supra) and in the case of M. Paul Anthony (supra) the Supreme Court had opined that nonpayment of subsistence allowance during the pendency of departmental enquiry would vitiate the departmental enquiry, but there has been a subsequent change in the judicial thinking as reflected in the case of Indra Bhanu (supra) and U.P. State Textile Corporation Ltd. (supra). 13. It is pertinent to note that the case of M.Paul Anthony (supra) was decided by a Bench of two Hon’ble Judges of the Hon’ble Supreme Court. Similarly, the case of Indra Bhanu Gaur (supra) and U.P. State Textile Corporation (supra) were also decided by a Bench of equal strength. According to the Rules of Precedent, the latest judgment pronounced by a Bench of equally strength would be binding and not the previous judgment. After all, the latest view would reflect the present judicial thinking on an issue. Thus, according to the decision in the case of Indra Bhanu Gaur (supra) and U.P. State Textile Corporation (supra), it was for the respondent No.1 to plead and prove that, in fact, prejudice has been caused to him due to nonpayment of subsistence allowance. It was for him to canvass and establish that due to nonpayment of subsistence allowance, he could not attend the departmental enquiry from 01.04.2000 till 17.06.2000. However, such pleas were never raised by the respondent before the learned Tribunal. It was for him to canvass and establish that due to nonpayment of subsistence allowance, he could not attend the departmental enquiry from 01.04.2000 till 17.06.2000. However, such pleas were never raised by the respondent before the learned Tribunal. Therefore, the learned Tribunal was not justified in relying upon certain judgments which were pronounced in 1973 and 1999 while ignoring the subsequent judgments of the Hon’ble Supreme Court on the same issue. However, in the present case, prejudice has not even been pleaded by the respondent. 14. The learned counsel for the respondent has also relied on the case of T. Sundara (supra). However, it is pertinent to point out that the case of T. Sundara (supra) was pronounced in 1999 when the judicial thinking as contained in the case of M. Paul Anthony (supra) held the field. However, the subsequent judgments of the Hon’ble Supreme Court have deviated from the thinking as expressed in M. Paul Anthony (supra). Therefore, the case of T. Sundara (supra) does not come to the rescue of the respondent No.1. 15. As far as the case of Rameshwar Education Society (supra) is concerned, the issue with regard to the effect of nonpayment of subsistence allowance was not even raised in the said case. The question in that case was as to who would be responsible for payment of subsistence allowance, whether the Management or the Government? Thus, the said case does not deal even with the issue involved in the present case. 16. For the reasons stated above, this petition is hereby allowed. The impugned orders dated 26.06.2010 and 28.07.2010 are set aside. The case is remanded back to the learned Tribunal for its fresh decision on the entire controversy with regard to punishment order dated 21.04.2001.