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IN THE HIGH COURT OF KARNATAKACIRCUIT BENCH, AT DHARWAD

DATED THIS THE 12TH DAY OF MARCH 2013

PRESENT

THE HON’BLE MR.JUSTICE DILIP B. BHOSALE

AND

THE HON’BLE MR.JUSTICE K.N. KESHAVANARAYANA

W.A. No. 30934/2012 (S-RES)

BETWEEN:

DAKSHIN BHARATH HINDIPRACHAR SABHA (KARNATAKA)REP. BY ITS SECRETARY,P.A. RADHAKRISHNAN,S/O. P.P. APPU, AGE. 57 YEARS,OCC. SECRETARY,D.C. COMPOUND, DHARWAD.

... APPELLANT

(BY SRI F.V. PATIL, ADVOCATE)

AND :

Dr. A.S. GADAGAGE. MAJOR,OCC. HOMEOPATHIC PHYSICIANR/O. MAHAVEER PLAZAGROUND FLOOR, SHOP NO.6 & 7,TIKARE ROAD, TQ. & DIST.DHARWAD.

... RESPONDENT

(BY SRI. R.M. KULKARNI, ADVOCATE)

R

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THIS W.A. IS FILED UNDER UNDER SECTION 4 OF THEKARNATAKA HIGH COURT ACT, R/W. ARTICLES 226 AND 227OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDETHE ORDER DATED 23.08.2012 PASSED BY LEARNEDSINGLE JUDGE IN W.P. NO. 64298/2012 BY ALLOWING THEAPPEAL.

THIS W.A. COMING ON FOR PRELIMINARY HEARINGTHIS DAY, DILIP B. BHOSALE J. DELIVERED THE

FOLLOWING:

PC :

This writ appeal is directed against the order dated

23.08.2012 passed by learned Single Judge in a writ petition

filed by the appellant, questioning maintainability of the

proceedings, before the Karnataka Educational Appellate

Tribunal, instituted by the respondent challenging his

termination as a Lecturer in the college run by them.

1.1. The contention that was urged on behalf of the

appellant – educational institution before the learned Single

Judge was that the appellant is an institution recognised by

the Indian Medical Council (I.M.C.) and amenable to the

provisions of the Indian Medical Council Act, 1956, (for short

“I.M.C. Act”), and therefore, is excluded from the purview of

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Karnataka Education Act, 1983 (for short “K.E. Act”). The

learned Judge disposed of the writ petition by recording the

following reasons –

“Since, admittedly, the proceedings are

pending before the Tribunal, the matter may be

allowed to run its course and notwithstanding the

finding of the Tribunal, that even though the

institution may be amenable to the provisions of the

Indian Medical Council Act, since the Act does not

provide for discipline and control of employees of the

institution, it is still open for an aggrieved employee

to invoke the provisions of the Karnataka Education

Act, 1983, as the petitioner institution is an

Educational Institution, is a question that shall be

left open for consideration by this Court if and when

the proceedings before the Tribunal attain finality

and are subjected to challenge before this Court

subsequently. With that observation, the petition

stands disposed of.”

2. Mr. F.V. Patil, learned counsel appearing for the

appellant assailed the order passed by the learned Single Judge

on two grounds. Firstly, after inviting our attention to Section

2(27) and Section 2(14) of K.E. Act, he submitted that it is only

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schools and junior colleges are covered by the K.E. Act, and

therefore, the appeal filed by respondent under Section 94 of

the K.E. Act before the Karnataka Educational Appellate

Tribunal is not maintainable. In other words, he submitted,

the K.E. Act would not apply to the educational institutions

which run colleges imparting professional education such as

medical education, technical education etc. Secondly, he

submitted that under clause (iv) of sub-section (3) of Section 1

the colleges and institutions which are dealt within the I.M.C.

Act are excluded from the purview of K.E. Act. He submitted

that admittedly the appellant - college is recognised by Indian

Medical Council and is affiliated to Rajiv Gandhi University of

Health Sciences Act, 1994 (for short “the University”), and

hence the proceedings under the provisions of the K.E. Act

against them are not maintainable.

3. The appellant is a Society registered under the

Karnataka Societies Registration Act, 1960. They have a

medical college and hospital in homeopathy at Dharwad, established

in 1996-97. The college is recognised by the Central Council of

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Homeopathy. It is also recognised under the I.M.C. Act. The

respondent was working as a Professor in the college run by

the appellant - institution. His services were terminated with

effect from 28.04.2011. The respondent questioned his

termination by filing an appeal under Section 94 of the K.E. Act

before the Karnataka Educational Appellate Tribunal,

constituted under Section 96 of the said Act. Before the

Tribunal, the appellant raised a preliminary objection as to its

jurisdiction to hear and decide an appeal under Section 94 of

the K.E. Act against the institution recognised and / or dealt

within the I.M.C. Act. The Tribunal after considering the

relevant provisions of K.E. Act and I.M.C. Act and so also the

judgment of this Court in B.N. VADIRAJA vs. MUMTAZ

AHMED, ILR 2000 KAR 3425 held that the appeal filed by the

respondent under Section 94 of the K.E. Act challenging his

termination is maintainable. Against the order of Tribunal the

appellant – institution filed the writ petition, which came to be

disposed of with the observations quoted in paragraph No. 1.1

of this judgment.

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4. At the outset, we would like to deal with the first

submission advanced by Mr. Patil, learned counsel for the

appellant that the provisions of K.E. Act would not apply to the

medical college run by the appellant – institution. In support

of this contention, our attention was invited to clause (b) of

Section 2(27) and Section 2(14) of the K.E. Act, which read

thus-

2(27). “Private Educational Institution”

means any educational institution imparting

education referred to in Section 3, established and

administered or maintained by any person or body

of persons, but does not include an educational

institution –

(a) ………………..

(b) established and administered by any

University established by law;

(c) ………………..

(d) ………………..

2(14) “Educational Institution” means any

institution imparting education referred to in Section

3 and includes a private educational institution but

does not include an institution under the direct

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management of the University or of the Central

Government or a tutorial institution;

5. The definition of “private educational institution”

means any educational institution imparting education referred

to in Section 3, “established” and “administered” or

“maintained” by any person or body of persons, but shall not

include an educational institution – “established” and

“administered” by any University established by law. The

dictionary meaning of the word “administer” is “to attend to the

running of affairs” or to “manage”, and of the word “establish”

is “to set-up on a system on permanent basis” (see DK

illustrated Oxford Dictionary; reprinted 2008).

5.1. In Shiromani Gurdwara Prabandhak Committee,

Amritsar v. Mihan Singh (Dead) Rep. by Baba Banta Singh,

(1993) 3 Supreme Court Cases 650, the Supreme Court while

considering the meaning of the word “establish” in paragraph

10 observed thus -

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10. …………………………… The meaning of the

word ‘establish’ as given in the New Collins Concise

Dictionary, 1983 edn., is : “1. to make secure or

permanent in a certain place, condition, job etc. 2. to

create or et up (an organisation etc.) as on a

permanent basis.” According to Webster’s

Comprehensive Dictionary (International edn.), the

word ‘establish’ means: “1. to settle or fix firmly;

make stable or permanent. 2. to set up; found, as an

institution or business. 3. to set up, install (oneself or

someone else) in business, a position, etc.”

5.2. The Supreme Court further observed that the words

“establish and administer” must be read conjunctively, and so

read, it gives the right to the educational institution to

administer the College established and run by them. Having

regard to the observations made by the Supreme Court, it

appears to us that the word “establish” means to bring into

existence and administer it. If the College is established by the

educational institution it cannot, either be administered or

managed by any other authority, such as the University or for

that matter, the Indian Medical Council. In other words,

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unless a College or an institution is established by the

University or the Indian Medical Council, the question of

“administering” or “managing” the affairs of such College or

such institution by them would not arise.

6. Mr. Patil vehemently contended that the appellant’s

college is covered by clause (b) of Section 2(27) which excludes

application of the K.E. Act to the colleges like the one run by

the appellant - institution and affiliated to the University. In

short, it was submitted that the appellant -educational

institution, since is “affiliated and recognised” by the University

and the I.M.C., the provisions of K.E. Act would not apply.

Similar contention was raised after inviting our attention to the

definition of “Educational institution” as defined by sub-section

(14) of Section 2 of the K.E. Act. The definition of expression

“educational institution”, would show that it means any

institution imparting education referred to in Section 3 and

includes a private educational institution but does not include

an institution under the direct management of the University

or of the Central Government or a tutorial institution. Mr. Patil

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on the basis of this provision submitted that in view of the

expression “direct management of the University”, the appellant

- educational institution is not covered by K.E. Act.

7. We are unable to agree with the contentions urged on

behalf of the appellant for more than one reasons. Clause (b) of

sub-section (27) of Section 2 of K.E. Act clearly states that

private educational institution does not include an educational

institution “established and administered by any University

established by law”. The appellant - educational institution is

neither established nor administered by the University. It is

only affiliated to the University. Similarly it is not under direct

management of the university. The appellant, therefore, is a

private educational institution imparting education referred to

in Section 3, not established and administered by any

University or I.M.C. As a matter of fact it is not in dispute that

the University does not have any control over the management

of the appellant – institution nor is it established or

administered or maintained by the University and that it is

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only affiliated to the University. In the circumstances, the first

submission must be rejected.

8. Further, we would like to consider the submission of

Mr. Patil that the K.E. Act covers only schools or at the most

junior colleges and not the colleges which impart professional

education such as medical education, technical education,

commerce education etc. The provisions contained in Section

2(27) and Section 2(14) make reference to imparting of

education referred to in Section 3. This Section states that the

State Government may, subject to sub-section (3) of Section 1,

regulate general education, professional education, medical

education, technical education, commerce education and

special education at all levels in accordance with the provisions

of this Act. In view of the provisions contained in sub - section

(1) of Section 3 of the Act, by no stretch of imagination it could

be said that the Act would not apply to the educational

institutions, like the petitioner – institution. There are several

other provisions including sections 1(3), 2(16), 2(20) in the K.E.

Act, which indicate that it would cover / apply to all

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educational institutions, such as the petitioner - institution.

Hence, this ground of challenge also must be rejected.

9. That takes us to consider the next submission based

on sub-section (3) of Section 1 of the K.E. Act. It would be

relevant to reproduce the said provision for better appreciation

of the submission advanced on behalf of the appellant-

“Section 1(3) - It applies to all educationalinstitutions and tutorial institutions in theState except-

(i) institutions for scientific or technicaleducation financed by the CentralGovernment, and declared byParliament by law to be institutions ofnational importance;

(ii) institutions of higher education whichshall be deemed to be University asdeclared by the Central Government bya notification, under section 3 of theUniversity Grants Commission Act, 1956(Central Act III of 1956);

(iii) institutions established or maintainedand administered by or affiliated to orrecognised by the University ofAgricultural Sciences insofar as thematter pertaining to them are dealtwithin the University of AgriculturalSciences Act, 1963 (Karnataka Act 22 of1963);

[(iiia) Educational Institutions affiliated to orrecognised by the Council of Indian School

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Certificate Examination or Central Board ofSecondary Education respectively;]

(iv) in so far as the matters pertainingto colleges and institutions aredealt within,-

(a) the Indian Medical Council Act, 1956(Central Act, CII of 1956);

(b) the Dentists Act, 1948 (Central Act XVI of1948);

(c) the Pharmacy Act, 1948 (Central Act VIIIof 1948);

(d) the Karnataka State Universities Act,1976 (Karnataka Act 28 of 1976);

[(d-a) the All India Council for Technical

Education Act, 1987 (Central Act 52

of 1987);

(d-b) the Indira Gandhi National Open

University Act, 1985 (Central Act 50

of 1985);

(d-c) the National Council for Teacher

Education Act, 1993 (Central Act 73

of 1993);]

(e) the Karnataka Ayurvedic and UnaniPractitioners' Registration and MedicalPractitioners’ Miscellaneous ProvisionsAct, 1961 (Karnataka Act 9 of 1962) ; and

(f) the Karnataka Homoeopathic PractitionersAct, 1961 (Karnataka Act 35 of 1961);

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(v) such other class or classes of institutions,

subject to such conditions and to such extent as theState Government may, by notification, specify:

Provided that nothing in Chapter III, section 35

of Chapter V, Chapter VII and Chapters IX to XV

(both inclusive) except sections 57 and 58 of Chapter

X shall be applicable to commerce institutions.

10. Sub-section (3) of Section 1 of K.E. Act, states that

‘it’ applies to all educational institutions and tutorial

institutions in the State except the institutions mentioned in

clauses (i) to (v). Insofar as clause (iv) is concerned, that

excludes, from application of the K.E. Act, the colleges and

institutions which are “dealt within” the provisions of the Acts

mentioned therein. Having regard to this provision, insofar as

the appellant is concerned, the K.E. Act would not apply to it in

respect of the matters “dealt within” the Indian Medical Council

Act, 1956 (Central Act C11 of 1956). In other words, the K.E.

Act would not apply to the colleges and institutions insofar as

matters “dealt within” the Acts referred to in clause (iv) (a) to (f)

of Section 1(3). That would, in our opinion, also mean that the

matters which are “not dealt within” the Acts referred to in

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clause (iv) (a) – (f) of Section 1(3) are covered by the K.E. Act.

We have carefully seen the provisions contained in the Indian

Medical Council Act. It does not provide for discipline and

control of employees of the institutions. It provides for

reconstitution of Medical Council of India, the maintenance of a

medical register for India and for matters connected therewith.

We did not find a single provision in this Act which provides for

discipline and control of the employees of any institution or

dealing with service conditions of the employees in such

institution which is approved / recognised by the Indian

Medical Council. The I.M.C. Act provides for constitution and

composition of Council, mode of its election, election of the

President, office of President and members of the Council, its

functioning, recognition of the medical qualifications,

permission to establish medical colleges, new course studies,

recognition of medical qualifications granted by medical

institutions in countries etc. In other words, the I.M.C. Act

does not contain a single provision, which directly or indirectly

deals with the service conditions of employees or provide

remedies, if a disciplinary action is taken against them by the

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institutions / private educational institutions, recognised

under the same Act. Since there is no specific provision under

the I.M.C. Act providing a remedy for an employee of the

private educational institutions such as the appellant against

whom the action of termination is taken by the Management, in

our opinion, the provisions of K.E. Act are applicable. The

Tribunal has rightly observed in the order to hold that it has a

jurisdiction to entertain the appeal filed by the appellant

challenging his termination.

11. At this stage we would like to make reference to the

judgments of this Court relied upon by learned counsel for the

parties. Mr. Patil, learned counsel appearing for the appellant

placed heavy reliance upon the judgment of learned Single

Judge in A.M. Shivalinge Gowda v. Shri Adhichunchanagiri

Shikshana Trust (R), Shri Adhichunchanagiri Kshetra,

Nagamangala Taluk, Mandya District and Another,

2010(2) Kar. L.J. 374. In this case, he submitted, a similar

issue was raised. We have carefully perused the judgment. It

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appears that a disciplinary action was initiated against the

petitioner and on examination of records and after affording an

opportunity of hearing he was terminated from service. The

order of termination was challenged by the petitioner by way of

an appeal before the Educational Appellate Tribunal

constituted under the provisions of K.E. Act. The Tribunal,

dismissed the appeal as not maintainable. That order was

challenged in writ petition. In the petition, on behalf of the

employer it was contended that respondent – hospital run by

them is not an educational institution and hence the Tribunal

had no jurisdiction to entertain and adjudicate the appeal filed

by the petitioner, who was appointed as Pharmacist in the

second respondent – hospital. It was also contended that the

second respondent is recognised by Medical Council of India

and that being so, the respondent institution stood excluded

from the Karnataka Education Act. There the learned Judge in

paragraph 9 while dealing with the question whether the writ

petition was maintainable against the respondent, relied upon

the other judgments of this Court in Vidyavardhaka Sangha,

Bijapur and Another v. S.K. Joshi and Others, 2005(5)

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Kar.L.J. 402 and in Tejaswini Patil v. Bangalore University

and Others, 1991(1) Kar. L.J. 556, held that the writ was

maintainable against an institution such as the respondent

and then the learned Judge observed that having due regard to

the law laid down by this Court as well as in case of

Vidyavardhaka Sangha, and the case law cited therein, the

fact remains that the respondent – institution in which the

petitioner was working was a hospital and he was working as a

Pharmacist and hence the question of Education Act applying

insofar as above decision cited by the petitioner is concerned, is

not acceptable. In paragraph 12 and 13 it is held thus-

“12. The argument of the Counsel for the

petitioner is that the petitioner was a Diploma holder

from a Medical College, which was recognised by the

Medical Council of India and the very establishment

of the hospital as a part of the college was for the

purpose of imparting medical knowledge and

therefore to construe the hospital as distinguished

from Medical College would be a travesty of justice,

since it is clearly part and parcel of the Medical

College. It is contended that therefore the Education

Act was clearly applicable.

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13. This argument which is submitted in an

unusually raised tone by the Counsel does not

appeal to this Court and the case law and the

judgment cited would be applicable in respect of an

educational institution and it cannot be said that the

same would apply to the respondent herein. Hence,

the order dated 10.09.2009 is recalled.

12. Learned counsel for the respondents relied upon the

judgment of this Court in B.N. Vadiraja v. Mumtaz Ahmed,

2000 – ILR (Kar) – 0 – 3425. In that case the petitioner, who

was appointed as a Senior Tutor in the Department of

Pharmacology, A1 Ameen Medical College, Bijapur was

terminated and the order of termination was challenged before

the Educational Appellate Tribunal constituted under the

provisions of the K.E. Act. It was contended on behalf of the

educational institution that the A1 Ameen Medical College,

Bijapur is affiliated to Karnataka University, Dharwad and the

one under the provisions of Karnataka State Universities Act,

1976, the Appellate Authority has no jurisdiction to entertain

the appeal in view of Section 1(3) (iv) (d) of the K.E. Act. The

Appellate Tribunal dismissed the appeal holding that the

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appeal was not maintainable, as the College is affiliated to

Karnataka University governed under the provisions of

Karnataka State Universities Act, 1976, as such the provisions of

K.E. Act are not applicable. This Court in a writ petition filed

by the petitioner – employee challenging the order of Appellate

Tribunal, held that the provisions of the K.E. Act are applicable

in respect of the employees of Private Medical College affiliated

to Rajiv Gandhi University. It was further observed that since,

there is no specific provision either under the I.M.C. Act or

under the Karnataka State Universities Act, 1976 providing a

remedy for an employee, against whom disciplinary action is

taken by the Management, the provisions of K.E. Act are

applicable to the employees of A1 Ameen Private Medical

College being a private educational institution defined by

Section 2(d) of the K.E. Act.

12. Having regard to the judgments of this Court and

the provisions of K.E. Act and I.M.C. Act, we have no hesitation

in holding that the appellant – educational institution is

amenable to the provisions of K.E. Act and that the appeal filed

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by the respondent before the Karnataka Educational Appellate

Tribunal is maintainable.

13. In the result, the appeal is dismissed. No costs.

Sd/

JUDGE

Sd/

JUDGE

hnm/-