ORDER
M.F. Saldanha, J.
1. The petitioner before me who is a senior Doctor, was at the relevant time holding the post of Professor and Head of the Department of Forensic Medicine, M.S. Ramaiah Medical College, Bangalore has assailed the validity of an order dated 20-1-2003 passed by the Educational Appellate Tribunal, Bangalore in M.A. (EAT) No. 31 of 2002. The respondent-M.S. Ramaiah Medical College and Hospital, Bangalore (hereinafter referred to as the ‘College’), passed an order dated 12-10-2002 whereby the services of the petitioner were terminated with immediate effect. Technically speaking, the order stated that the petitioner was given three months notice but in actual fact, the order took effect forthwith. The petitioner challenged the order through an appeal filed under Section 94 of the Karnataka Education Act, 1983. On notice being issued to the College, a preliminary objection was raised with regard to the maintainability of the proceeding, the contention being that an appeal is permissible only in such cases wherein the employee has been visited with the penalty of dismissal, removal or reduction in rank and that an order of termination simpliciter would be outside the ambit and scope of Section 94. After hearing the parties, the Tribunal upheld the objection which was effectively that the appeal was not maintainable and that if at all the petitioner was aggrieved and desired to present a challenge to the order that the only option available to him was to approach the State Government through a revision petition under Section 131 of the Act. It is against this order that the petitioner preferred C.R.P. No. 1681 of 2003. On notice being issued to the respondent-College, their learned Counsel appeared and stoutly defended the Tribunal’s order principally contending that this was a case of termination simpliciter, that no interference was wan-anted insofar as the Tribunal had correctly held that the petitioner’s appeal under Section 94 was not maintainable and that the only remedy permissible was by way of a revision petition under Section 131 of the Act. The learned Counsels were heard extensively and when the arguments were virtually at the fag end, the Full Bench of this Court in M.F.A. No. 1896 of 1997, dated 29-8-2003 (Union of India and Ors. v. Mysore Paper Mills Limited, Bhadravathi and Ors. ) along with a group of petitions held that a revision against an order of the Educational Appellate Tribunal was not maintainable insofar as the Tribunal was a statutory Tribunal but could not be treated as a Court subordinate to the High Court. Respondent’s learned Counsel was quick to submit that by virtue of the law that now holds the field that the civil revision petition should be dismissed outright as it could no longer survive. This brings me to the interesting procedural aspect of the law as to what is the correct course to follow in such cases because a sudden change of situation could virtually leave a party marooned in thin air or to use a more proper expression, a party should not suddenly get hijacked because of some such change that is sudden and unexpected.
2. The petitioner’s learned Counsel, with a degree of anguish, pointed out to me that the CRP petition was perfectly maintainable when it was filed, that it was maintainable when notice was issued to the other side, that the same position in law continued when the parties produced their documents and even when the arguments were advanced and merely because, the judgment remained to be pronounced that the litigant cannot be made to suffer for no fault of his. I cannot lose sight of the fact that the petitioner is a senior Professor, a Doctor who is the Head of the Department and his learned Counsel perhaps is more than justified when, with a degree of anguish he submitted that the maintainability point has derailed the proceeding once earlier, before the E.A.T. and that his client appears to be jinxed insofar as the maintainability point continues to haunt him here also. The argument was that the litigant has come to a judicial forum seeking for relief and would be seriously prejudiced if he is made to run from pillar to post on technicalities and on procedural objections without the case being decided on merits,
3. This creates a bit of a paradox. Once the Full Bench judgment holds the field, technically, the C.R.P. can no longer survive. In previous times it was customary for the Courts to dismiss the proceeding on the ground of maintainability, at the highest granting liberty to the aggrieved party to approach the proper forum through a fresh proceeding if so advised. What was overlooked was that the time and the resources spent are not something which the Courts can shut their eyes to and more importantly, the period that has elapsed which includes the judicial time in hearings that the proceeding has consumed are crucial factors, and if the party has to recommence the proceeding from square 1, everything would be wrong with that procedure. It is therefore very necessary to provide that whenever situations of this type arise that the first principle which the Courts must work on is to save as much of the earlier proceeding as is humanly possible and legally permissible through a grafting on process, if necessary innovating or modifying, and proceed from that stage onwards, the principle being to conserve time as timely justice is the need of the hour. Bearing these factors in mind, I have refused to dismiss the C.R.P. on the ground of maintainability but on the other hand, I have acceded to the application made by the petitioner’s learned Advocate that the conversion to a writ petition would really be only procedural or cosmetic, that the parties are the same and the arguments have been concluded and that therefore, the proceeding be converted to a writ petition and that a decision should follow on the same basis as though this Court had heard the writ petition. I accordingly passed an order to that effect whereby the C.R.P. was technically permitted to be withdrawn with liberty to re-present the petition as a writ petition saving the annexures. The petitioner has been directed to pay the differential Court fees and the office has been directed to renumber the writ petition and amend the cause title and provide the fresh number to the judgment writer for being incorporated in this judgment.
4. The controversy before me is within a narrow ambit but the issues involved require to be carefully analysed principally because of an earlier judgment of this Court wherein the learned Single Judge in the decision in Shankarappa Sharanappa Gaure v. The Deputy Director of Public Instructions, Bidar and Ors., 1999(1) Kar. L.J. 438 while interpreting Sections 94 and 131 of the Act has narrowed down the scope of the Tribunal’s jurisdiction to those appeals directed against orders of punishments passed in disciplinary proceedings awarding major penalties of dismissal, removal or reduction in rank. A blanket embargo has been placed in respect of entertainment of appeals in all other cases by observing that a party aggrieved by any other action of the management will have to approach the Government through a revision under Section 131 of the Act. The learned Single Judge had distinguished the decision in St. Joseph’s Higher Primary School, Bangalore and Anr. v. Smt. J. Rose Mary and Ors., and had followed the decision of the Supreme Court in The Principal, M.C. Jindal Public School and Ors. v. The Presiding Officer, Delhi School Tribunal and Ors.. What I need to amplify here is that it is a very short judgment wherein the same learned Counsel who represents the petitioner had appeared and he brought it to my notice that the appeal in that case concerned a dispute relating to suspension and non-payment of subsistence allowance and that it had nothing to do with cessation of service. I refer to this aspect of the case because the learned Counsel is right when he points out that the decision is distinguishable more so because the law requires to be thoroughly examined and the true nature, ambit and scope of Section 94 requires to be re-stated. The respondent’s learned Counsel, as indicated by me earlier, submitted that this decision puts an end to the controversy and that there is really no need for this Court to even re-examine the facts or the law and that the petitioner will have to be directed to avail of the revisional remedy under Section 131 of the Act, if he so desires. While the ratio of the decision referred to supra cannot be faulted insofar as an appeal preferred against an order of punishment of the three types as indicated therein would certainly lie to the Tribunal, but a careful examination of the law would require that the jurisdiction of the Tribunal cannot be limited to those three contingencies alone and that consequently, the principle will have to be expanded. This Court is not dissenting from the decision but is really amplifying the principle laid down therein.
5. The petitioner’s learned Counsel submitted before me that the Act does not define the terms dismissal, removal or reduction in rank and even though their plain meaning is quite clear, for anyone who is well-familiar with service law, it will be unambiguous that the expression ‘removal’ is capable of more than one meaning and the law does not recognize manifest situations in which the Court is required not to go by the wording or title of the order or the language used but the Court will have to examine the true nature and content of that order, the effect of the order and for purposes of legal categorisation would have to afford to it its real colour. It is a long time since the Supreme Court laid down the proposition in corporate law that it is essential for the Courts to lift the corporate veil and these were cases in which the Supreme Court was concerned with the exact nature of the action and not the cosmetic terminology employed. What is more important in this field of law is for the Court to do a degree of dissection for purposes of holding as to what precisely the action amounts to. In given situations particularly where the action is abrupt and immediate the Courts have held that a termination or a removal is tantamount to a dismissal and it is consequently, that Mr. Rajagopal, learned Counsel who represents the petitioner submitted that it was totally unjustified on the part of the Tribunal to have dismissed the appeal at the very threshold on the ground of maintainability when, as he puts it, without applying its mind to see whether the impugned order answers to anyone of the three definitions. His argument proceeded on the footing that where a senior Doctor of the teaching profession and that too, a doctor who heads the department is served with a letter virtually throwing him out of the office that very minute, that the tender of three months salary was only a facade or a cover up action for what according to him constituted a summary dismissal. The learned Counsel who represents the College has taken serious exception to this argument because he read and reread the order and he submitted that where reorganisation takes place and the services of an employee howsoever highly placed become redundant that there is no option except to terminate the services and that is all that has been done. He even drew my attention to the compliments in the last line of the letter in support of his contention that a termination simpliciter which is a concept known to service law even if it takes effect immediately can never be construed as an order of dismissal. To my persistent query as to why it should not be construed as an order of removal, the contention was that the expression ‘removal’ in Section 94 contemplates a situation wherein the services are terminated through a removal from the post as a penalty for misconduct and that this is not one such case. I refrain from recording any finding to this issue only for one reason namely, that both the learned Counsels have alluded to several facts and to my mind, it will be necessary to examine the documents and possibly any other evidence which the parties desire to lead before recording a finding as to what is the true nature and effect of the order in question. At this stage, this Court needs to hold that the case is not free from doubt and if this was the position, the Tribunal ought to not to have jumped to the conclusion that it has no jurisdiction but it ought to have afforded the parties an opportunity of producing whatever material they desired in support of their contentions after which the jurisdiction question could have been decided even as a preliminary issue.
6, Section 94 of the Karnataka Education Act, 1983 reads as follows.–
“Section 94, Appeals.–(1) Any teacher or other employee of a private educational institution who is dismissed, removed or reduced in rank may within three months from the date of communication of the order prefer an appeal to the Tribunal.
(2) The provisions of Sections 4 and 5 of the Limitation Act, 1963, shall be applicable to such an appeal.
(3) If, before the date of commencement of this Act, any teacher or other employee has been dismissed, or removed or reduced in rank or his appointment has been otherwise terminated and any appeal preferred before the date.–
(a) by him against such dismissal or removal or reduction in rank or termination; or
(b) by him or by the Governing Council against any order made in any appeal referred to in Clause (a) is pending before any officer, such appeal shall, notwithstanding anything in Sub-section (1), stand transferred to the Tribunal, if he makes an application in that behalf to such officer.
(4) The Tribunal shall dispose of the appeal filed under Sub-section (1) or transferred under Sub-section (3) after giving the parties the opportunity of being heard.
(5) In respect of an order imposing a penalty other than those specified in Sub-section (1) of Section 92, on any teacher or other employee, an appeal shall lie to the Competent Authority within three months from the date of communication of the order imposing such penalty.
(6) The Competent Authority shall dispose of an appeal preferred under Sub-section (5) after giving the parties the opportunity of being heard.
(7) An appeal against an order of the Competent Authority under Sub-section (6) shall lie within the prescribed period to the Tribunal, whose decision shall be final”.
In passing, I need to point out that the plain reading of the section makes it abundantly clear that even the three categories of actions referred to do not necessarily have to be the culmination of disciplinary proceedings and a penalty order because service law is replete with manifold instances wherein the authority is misused and unjustified and illegal orders are passed de hors following the procedure prescribed by law or for that matter the institution of disciplinary proceedings. This is the principal reason why the ratio laid down in Shankarappa Sharanappa Gaure’s case referred to by me supra requires amplification. Undoubtedly, the learned Single Judge had followed the decision of the Supreme Court in The Presiding Officer’s case, supra, but that was a case under the Delhi School Education Act, 1973 and dealt with the definition of the tenns ‘recognition’ and ‘affiliation’ in relation to a private educational institution. The case really concerned the aspect of prior approval of the Director of Education before termination of services and to my mind, is distinguishable on facts.
7. Mr. Rajagopal, learned Counsel who represents the petitioner relied on an earlier decision of the Supreme Court in The Workers employed in Hirakud Dam v. State of Orissa and Anr., wherein the Supreme Court had occasion to examine in depth a situation wherein an employee’s services are abruptly terminated and the management contends that it is not a penal order but constitutes only a termination of services and the Supreme Court laid down the important proposition of law that the term ‘dismissal’ or ‘dismissed’ denotes termination of services of that employee by way of punishment but it also covers cases of termination even before normal completion of the work span. Once again, in the decision in Anoop Jaiswal v. Government of India and Anr., the Supreme Court laid down an even stronger proposition wherein it was dealing with an order of discharge and the Court held that it was merely a camouflage for an order of dismissal. At a slightly later point of time, the Supreme in Ram Ekbal Sharma v. State of Bihar and Anr., further reiterated the proposition that it is the true nature and effect of the order that the Court has to go-by. The observations of the Apex Court in that regard read as follows.–
“Even if an order of compulsory retirement is couched in innocuous language without making any imputations against the Government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bonafide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned Government servant”.
8. Once again, in a later decision in High Court of Punjab and Haryana through R. G. v. Ishwar Chand Jain and Anr., the Court had occasion to once again lay down that it is the true character of the order and the circumstances under which it was passed that is material and not the manner in which the offending party may attempt to disguise its sting that counts.
9. To my mind, the issue involved is a serious one insofar as it is very wrong on the part of any Tribunal or judicial authority to mechanically or without due application of mind redirect a litigant to another forum without taking cognizance of the trauma and the loss that results thereby. It is only in those of the instances where after a thorough examination, the authority or Court finds that it lacks the jurisdiction that the litigation would then have to be sent to what is the correct forum. Even in such instances the law provides for minimising the damage by saving limitation etc., in order to reduce hardship to the maximum.
10. The respondent’s learned Advocate has vehemently submitted that the legislative intent was in order to circumscribe the ambit and scope of the Tribunal’s jurisdiction to those of the situations where the employee had been subjected to a penalty and that all other actions could only be a subject-matter of a revision under Section 131 of the Act. Section 131 reads as follows.–
“Section 131. Revision by the State Government. — (1) The State Government may, either suo motu or on an application from any person interested, call for and examine the record of an educational institution or of any authority, officer or person in respect of any administrative or quasi-judicial decision or order, not being a proceeding in respect of which a reference to an arbitrator or an appeal to the High Court is provided, to satisfy themselves as to the regularity, correctness, legality or propriety of any decision or order passed therein, and if, in any case it appears to the State Government that any such decision or order should be modified, annulled or reversed or remitted for reconsideration, they may pass orders accordingly:
Provided that the State Government shall not pass any order adversely affecting any party unless such party has had an opportunity of making a representation.
(2) The State Government may stay the execution of any such decision or order pending the exercise of powers under Sub-section (1) in respect thereof.
(3) Every application preferred under Sub-section (1) shall be made within such time and in such manner and accompanied by such fees as may be prescribed”.
It is very necessary for me to first of all record that it is well- settled law that the scope of a revision is necessarily limited to errors apparent on the face of the record or to points of law and this Court needs to first of all take cognizance of the fact that in serious issues concerning the career and livelihood and rather reputation of an employee where the consequences are extremely grave, it is not a question of an administrative review confined to errors of fact or law that need to be examined but more importantly, factual issues which may predominate. To quote an example, in the majority of instances where an action is challenged there are allegations of serious mala fides, the action is often times allegedly modified or vindictive and in such situations, it would create procedural hurdles if an aggrieved party is required to be confined to the constrictions of a revision petition. Obviously, evidence will have to be recorded or gone into on questions of fact and Section 131 hardly makes provision for it.
11. Petitioner’s learned Counsel has raised a slightly different aspect of the law insofar as he has contended that in the situation as it now obtains the revision under Section 131 is required to be filed before the Secretary to Government, Education Department who is an Administrative Officer. This Court cannot close its eyes to the fact that if the employee is out of employment and is entitled to a relief that expediency is of utmost consequence. The Courts are flooded with situations in which hearings before administrative authorities carry on endlessly because the authority is either overburdened with other functions and is not really interested in quasi-judicial duties which undoubtedly receive step-motherly treatment. To my mind, more important than this grievance is the deeper aspect which the Court has to take cognizance of namely, that where there is some level of ambiguity with regard to parallel jurisdiction that the Courts in such situations would still opt in favour of a judicial forum being the more appropriate forum for an adjudication of the dispute not only from the point of view of the time factor but more importantly qualitywise. It is equally necessary to amplify this point by recording that service law has developed a lot, that apart from the case-law, the principles are also rather intricate and therefore, in life and death situations such as loss of employment etc., there could be no two opinions about the fact that a judicial forum is better suited to adjudicate the dispute fairly and correctly. I would prefer not to say anything about the rather bold argument advanced by the petitioner’s learned Counsel who went to the extent of stating that having regard to other factors, that the parties would be far safer before a judicial authority.
12. The respondent’s learned Advocate has drawn my attention to the following three decisions of the Supreme Court in support of the proposition that a Court of co-ordinate jurisdiction is bound by a decision of a similarly situated Court rendered earlier.–
(1) Mahadeolal Kanodia v. The Administrator General at West Bengal, ;
(2) Ambika Prasad Mishra v. State of Uttar Pradesh and Ors., AIR 1980 SC 1762, ( 1980 ) 3 SCC 719;
(3) Dr. Vijay Laxmi Sadho v. Jagdish.,
There is no dispute about the proposition that was canvassed namely, that in the event of dissent, the correct procedure would be to refer the point to a larger Bench. I have already dealt with this aspect in pointing out that the decision in Shankarappa Sharanappa Gaure’s case referred to by me is first of all distinguishable on fact. Secondly, that Court had not gone into the larger implications of the law and thirdly, this Court has not dissented from that judgment but has only amplified it. Under these circumstances, to my mind, there was no need to refer the issue to a larger Bench.
13. Even though the case is at a preliminary stage since the issue involved is one of immense important to this and numerous other similar proceedings, it was necessary for this Court to examine the law and amplify it. To summarise, the jurisdiction of the E.A.T. is not confined only to penal orders under Section 94 nor is it circumscribed to those of the orders which have “labels” of the three categories of cases as indicated in Section 94(1) but it will be necessary for the Tribunal to examine as to whether the consequences are penal and consequently, whether the true nature and colour of the order is such that it could clearly fit into the categories as amplified in Section 94 and if that is the position, then the Tribunal will have to exercise jurisdiction and decide the case. Prima facie, on the facts of the present case the Tribunal was in error in having invoked the threshold bar and having dismissed the appeal. The impugned order is accordingly set aside. The case is remanded to the E.A.T. Parties are directed to appear before the Tribunal on 30-9-2003 and the Tribunal shall take up the proceeding from the stage at which it was dismissed and shall proceed according to law.
14. It has been the sad experience of this Court that appeals before the E.A.T. which qualify for the most expedient disposal unnecessarily drag on interminably. It may be that one party or the other is interested in such dilatory tactics but there is no reason why the Tribunal should go along with them. This is a case in which the impugned order was passed on 12-10-2002, almost a year has passed and the case has made next to no headway. The Tribunal is directed to dispose of the proceeding on a priority basis but in any event, within an outer limit of six months from 30-9-2003, The revision accordingly succeeds. No order as to costs.
