Noorjahan Abdul Shukur Shaik v. President, Nida-E-Tauheed Trust (Regd) Dandeli Township
2015-12-04
R.S.CHAUHAN
body2015
DigiLaw.ai
ORDER : Aggrieved by the order dated 21.12.2009 passed by the learned District Judge & Educational Appellate Tribunal, Uttara Kannada, Karwar, the petitioner has approached this Court. 2. The brief facts of the case are that the petitioner, Noorjahan Abdul Shukur Shaikh was appointed on 01.06.1995 by the Nida-E-Tauheed Trust as an Assistant Teacher. She continued to work for the said Trust till 10.04.2007. However, when she reported back to the Trust for continuing teaching in their school on 30.05.2008, she was not permitted to sign the attendance register. Therefore, according to her, she was verbally removed from her service without following due process of law. Aggrieved by the action of the Trust, she filed an appeal under Section 94 of the Karnataka Education Act, 1983, (‘the Act’ for short) before the learned Tribunal. However, by the impugned order, the learned Tribunal has dismissed her appeal. Hence, this petition before this Court. 3. Mr. Anant Savadi, the learned Counsel for the petitioner, has raised following contentions before this Court: firstly, the appointment of the petitioner was not a temporary one, as there is no letter to show that her appointment was on yearly basis. Secondly, even if her appointment were on a temporary basis, Section 92 of the Act deals with dismissal and removal of an employee of unaided school. According to the proviso attached to Section 92(1) of the Act, an employee can be removed or dismissed without following the procedure contemplated under Section 92 of the Act, in case if he or she commits a misconduct, involving moral turpitude, which has lead to her/his conviction by the criminal court. However, in the present case the petitioner was not convicted by the criminal court for any misconduct involving moral turpitude. Yet she has been removed from her service without following the procedure established by law. Thirdly, since Section 92 of the Act has been flouted, the petitioner was well justified in filing an appeal under Section 94 of the Act. Therefore, the conclusion drawn by the Tribunal that since the petitioner was merely a temporary employee, since her services came to naught due to flux of time, she has not been removed, is an incorrect finding.
Therefore, the conclusion drawn by the Tribunal that since the petitioner was merely a temporary employee, since her services came to naught due to flux of time, she has not been removed, is an incorrect finding. Moreover, the conclusion drawn by the learned Tribunal that the petitioner’s case does not fall under Section 94 of the Act, therefore, the Tribunal does not have the jurisdiction to hear the appeal, is an misplaced conclusion. Hence, the order deserves to be interfered with. 4. On the other hand, Mr. Javed, the learned Counsel for the respondent-Trust, has placed following contentions before this Court: firstly, the petitioner was temporarily appointed on 01.06.2003. Her services were continued on yearly basis. This fact would be clear from the certificate submitted by the petitioner, herself, before the learned Tribunal. She had submitted the certificate which clearly showed that her appointment was from 01.06.1995 till 07.07.2001, from 01.12.1996 till 10.04.1997, from 01.06.1997 till 10.04.1998, from 01.06.1998 till 10.04.1999, from 1.06.1999 till 10.04.2000, from 01.06.2000 till 10.04.2001, from 01.06.2001 till 10.04.2002, 01.06.2002 to 10.04.2003, 1.6.2003 to 10.4.2004, 1.6.2004 to 10.4.2005, 01.06.2005 to 10.04.2006 and 01.06.2006 till 10.04.2007. Since her appointment was a temporary one, she did not have a lien over the post of Assistant Teacher. Once her temporary appointment, for a limited period came, to an end, she was not permitted to rejoin the service. Secondly, the proviso to Section 92(1) of the Act clearly states that subsection (1) would not apply to a temporary employee. Therefore, the fact that the petitioner was not permitted to rejoin her service does not amount to a removal, or dismissal from service. Hence, the procedure established for inflicting the punishment of removal, or dismissal need not have been followed. Therefore, the learned Tribunal was justified in concluding that since neither she was removed, nor dismissed from service, the Tribunal does not have jurisdiction under Section 94 of the Act to hear the appeal. Thirdly, since the Trust had already applied for grantinaid, the Trust was duty bound to follow the rules regarding grantinaid. One of the conditions for grantinaid is that the Trust must have qualified teachers. In order to have qualified teachers, the Trust had advertised the vacancies in April/May 2007. Since the Trust was looking for qualified teachers, since it had advertised for the same, it was justified in ending the petitioner’s service on 10.04.2007.
One of the conditions for grantinaid is that the Trust must have qualified teachers. In order to have qualified teachers, the Trust had advertised the vacancies in April/May 2007. Since the Trust was looking for qualified teachers, since it had advertised for the same, it was justified in ending the petitioner’s service on 10.04.2007. Hence, the learned Counsel for the respondent has supported the impugned order. 5. Heard the learned Counsel for the parties and perused the impugned order. 6. The relevant portion of Section 92 of the Act is as under:- “92. 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) xx xx xx (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 subsection shall not apply to temporary employees or to the dismissal, removal or reduction in rank of a teacher or other employee on the ground of misconduct which has led to his conviction on a criminal charge involving moral turpitude.” A bare perusal of the proviso clearly reveals that the proviso deals with two contingencies: firstly, that subsection (1) would not apply to temporary employees; secondly to those cases of dismissal or removal or reduction of rank of employees where they have been convicted by a criminal court with regard to misconduct involving moral turpitude. Thus, obviously the first part of the proviso deals with temporary employee per se. Therefore, the contention raised by the learned Counsel for the petitioner that the proviso only deals with those employees who have been convicted by criminal court for a misconduct involving moral turpitude, is a misreading of the said proviso. It is, indeed, trite to state that the golden rule of interpretation requires the Court to go by the plain and grammatical meaning of provision of law. Needless to say, every word used in the proviso has to be interpreted meaningfully; no word is used in the proviso which is superfluous.
It is, indeed, trite to state that the golden rule of interpretation requires the Court to go by the plain and grammatical meaning of provision of law. Needless to say, every word used in the proviso has to be interpreted meaningfully; no word is used in the proviso which is superfluous. Therefore, the words “shall not apply to temporary employees” cannot be ignored. Hence, the interpretation given by the learned Counsel for the petitioner is clearly unacceptable. 7. According to the certificate submitted by the petitioner, herself she was temporarily employed from 01.06.1995 till 10.04.2007. Since the appointment was a temporary one, obviously she did not have lien over the post of Assistant Teacher. Once her temporary appointment for the year 01.06.2006 to 10.04.2007 came to an end, the respondents were justified in not permitting her to rejoin her service with them, as her service had come to an end by flux of time itself. Since a temporary appointment comes to an end by flux of time, it is precisely for this reason that the proviso to Sub-Section (1)(b) of Section 92 of the Act clearly states that Section 92 shall not apply to temporary employees. Thus the refusal of respondents to permit the petitioner to rejoin her service cannot be termed as dismissal, or removal, or termination of her service. Therefore, the conclusion drawn by the learned Tribunal that since it is not a case of dismissal, removal, termination, or reduction of rank and therefore, the Tribunal does not have jurisdiction under Section 94 of the Act, such a conclusion is legally valid. 8. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. This petition, being devoid of any merit, is hereby dismissed.