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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.