SCA/677/1997 1/81 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 677 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== SHUBHA SUDHIR THAKUR PRINCIPAL M.S.M. HIGH SCHOOL - Petitioner Versus PS SHINDE PRESIDENT & 4 - Respondents ====================================== Appearance : MR KM PATEL for Petitioner : 1, MR NIRJAR DESIA for Respondents : 1-2, 5, MR HEMANT MAKWANA AGP for Respondents : 3 - 4. ====================================== CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 02/11/2007 SCA/677/1997 2/81 JUDGMENT CAV JUDGMENT 1. The petitioner under Article 227 of the Constitution has mainly challenged the order of Gujarat Secondary Education Tribunal at Ahmedabad passed on 6.1.1997 on Application No. 251 of 1995, dismissing the said application of the petitioner and upholding the order of dismissal dated 2.6.1995 passed by the respondent School Management, on the ground that judgment and order of the Tribunal is erroneous, contrary to the facts on record and hence deserve to be quashed and set aside, the petitioner has also prayed for declaration, that the respondent No. 1a and 1b ceased to be the President and Secretary respectively of the Maharashtra Shikshan Mandal (herein after referred to as MSM for short), that the school run by MSM is not a minority institution, that provisions of sub-regulation 27–A of the Secondary Education Regulations 1974 ( herein after referred to as S.E.R. 1974 for short ) and its appendix do apply to the minority institutions, or in the alternative declare that Regulation 43 of the S.E.R. 1974 in so far it exempts the minority institutions from the applicability of Regulation 27 –A of the said Regulations ultra-vires Article 14 and 30 of the Constitution of India and by way of amendment sought direction to the Respondent no. 1 for reinstating the petitioner with continuity of service and all consequential benefits. 2. The facts in brief deserve to be set out as under. SCA/677/1997 3/81 JUDGMENT 3. The petitioner, a qualified teacher started her career as an Assistant Teacher in the year 1976. The petitioner came to be appointed in the respondents’ school in the year 1978. The respondent MSM runs a linguistic minority school. The petitioner came to be selected and appointed as Principal in the MSM School vides appointment order dated 28.5.1992 and the petitioner joined duties as Principal on 1.6.1992. The Respondent No. 1a and 1b, soon after the petitioner’s appointment as Principal, took charge of the posts of Mandal’s President and Secretary respectively. As per the say of the petitioner the Respondents No. 1a and 1b started making demand involving undue expenditure from the Government Grants. The petitioner has further alleged that the said respondents started interfering with the routine administration of the School and instigating other teachers for making complaints against the petitioner. The School Management vide its order-dated 27.4.1993 placed the petitioner under suspension. On 28.04.1993 the Petitioner preferred Application No. 198 of 1993 before the Gujarat Secondary Education Tribunal and obtained ex-parte interim order right on that day staying the suspension and restraining the respondents therein, from preventing the petitioner’s entry in the School, from compelling her for handing over the charge of the post of the principal to anyone else, from transferring money from the Bank Account of the School to any other account of the MSM, from nominating anyone in the place of the petitioner in the Staff Selection Committee for New Appointments. And on 30.04.1993 the Tribunal, after hearing the parties, modified the same as under (1) SCA/677/1997 4/81 JUDGMENT continuing the stay against the suspension on clarification that the petitioner of her own volition would not insist upon attending the School and discharging her duties but her full salary would be paid by the management on or before 7th, of every month. The burden of salary during the period of suspension was to be borne by the school management and in default in payment of salary the petitioner would be entitled to attend the duties in the school. (2) Appointing two employees of the Tribunal for preparing List of the Record of the School and during the preparation of list the petitioner was permitted to remain present and it was to be made in her presence, one copy of the List so prepared was to be supplied to the petitioner The record thereafter was not to be removed from the school premises. It was to be kept in the custody of the school supervisor having highest marks. The record was to be utilized for framing charge etc but was not to be removed from the school premises. (3)No new appointments were to be made in the school till further orders. (4) No money to be transferred from the account of the principal of the school. No payment of any kind was to be made from the said account and it was not to be operated in any manner. 4. The Management thereafter issued a show cause notice and charge sheet containing as many as 18 charges vide its communication dated 28.6.1993 calling upon the petitioner to submit her reply to the charge sheet. The charges were in respect of financial irregularities in having the school stationary printed, acting against the interest of school in making proposal for class reduction SCA/677/1997 5/81 JUDGMENT though not authorized or warranted, making proposal for class reduction against the interest of the minority school, making proposal for class reduction for victimizing two lady teachers and for bringing about their removal from the school and thus compelling them to rush to the tribunal and compelling the School management for incurring avoidable and unnecessary expenses.. Acting contrary to the interest of the minority school management especially in making unauthorized proposal for class reduction which was contrary to the prevailing Government Resolutions and Circular letters. The charges were also in respect of causing undue harassment to fellow teachers and staff members and complaints received from them. Non-complying with the directions and instructions issued by the school management for unreasonably long time. For not keeping and maintaining logbooks. Not taking any action against fellow teacher, supervisor for not keeping logbook. Not bothered to comply with the remarks and instruction contained in the Inspection Report made by the concerned Government officers of the District Education Officer etc. The petitioner was called upon to submit her reply to the charge sheet within fifteen days. As the petitioner failed in submitting her reply within the stipulated time the School management appointed an independent person, principal of Bhakt Vallabh Dhola School, as Inquiry Officer vide their resolution 29.08.1993 and appointed it’s Secretary as presenting officer. The inquiry began. 5. The petitioner has further stated in the memo of the petition, that the school management once again SCA/677/1997 6/81 JUDGMENT compelled the petitioner to move the Tribunal, with an Application No. 734 of 1993, as they did not supply copies of documents needed for her defense and did not grant her permission for taking friend’s help as defense assistant during inquiry. The Tribunal vide its order dated 15.12.1993 directed that the any order of punishment that may be passed against the petitioner may not be implemented for a period of fifteen days from the date of its service. 6. The I.O. in his report dated 10.9.1995 recorded that on suspension the petitioner was asked to hand over the charge of the post of the Principal to one fellow Teacher Shri O.D. Patel but she did not obey it and moved the Tribunal and ultimately the charge was required to be handed over to one Smt Mrudula Shevde under the interim orders of the Tribunal. The first sitting of inquiry was held on 23.10.1993 The I.O. also noted that inquiry lasted from 23.10.1993 to 8.04.1995 and total 104 (in fact 105 sittings as sitting no. 62 was numbered twice) were held. He found that charge No. 1A, 1C, 1D, 2,3,4,5 , 9,11,12, and 17 proved. The Charge No. 1-B, 8A, 8B,8C, 8D, 8E,8F,8H,8I, 8J,8L,8M,and 10 partly proved and the Charge No. 7,13,14,15 and 16 not proved. Charge no. 6,8G, 8K, and 18 were treated as revoked. This report was submitted on 10.09.1995. The petitioner received I.O.’s report dated 10.09.1995 on 12.05.1995 as per her averment in paragraph F in the memo of the application before the Tribunal. The School Management issued second show cause notice on 14.05.1995 to the petitioner calling upon her to show cause as to why she should not SCA/677/1997 7/81 JUDGMENT be dismissed from service. The petitioner submitted her reply on 23.05.1995. The School Management vide its order dated 2.06.1995 dismissed the petitioner from services. The said order was to be implemented only after office hours on 17.06.1995. 7. As per the say of the petitioner as the Tribunal was under vacation she had to approach High Court by preferring SPL.C.A No. 4504 of 1995. This Court (Coram: N.N.Mathur, J. as he then was) protected the petitioner up to 29.06.1995 so as to enable her to approach the concerned Tribunal. This protection was further extended up to 17.07.1995 vide orders dated 8.06.1995 and 29.06.1995. The petitioner preferred Application No. 251 of 1995 in the Tribunal. The Tribunal rejected the prayer for interim relief vides its order- dated 28.06.1995. The petitioner challenged the said order of the Tribunal in this High Court by preferring Spl.C.A 5686 of 1995 interalia praying for declaration that the provisions of 27A and its appendix of the Secondary Education Regulations 1974 do apply to the minority institution also and in the alternative for declaration that Regulation 43 of the S.E.R. 1974 in so far it exempts the minority institutions from the purview of sub-regulation 27-A, ultravires Article 14 and 30 of the Constitution of India. This Court (Coram M. S. Parikh J as he then was) disposed of the same on 13.7.1995 observing that impugned order of dismissal as had been stayed till 17.07.1995 was to remained stayed till a week after the decision of the Tribunal on the main application and Tribunal was directed to hear the main application being Application no. 251 of 1995 and decide SCA/677/1997 8/81 JUDGMENT the same, preferably within eight weeks from receipt of the writ of the court, strictly on merits without being influenced by the order of this Court reserving liberty to the petitioner to revive the petition in case of any adverse order against the petitioner as she had challenged the vires of regulation 43 in the petition. The Secondary Education Tribunal had transferred the Application to the Primary Education Tribunal as that Tribunal had initially heard the matter. The Petitioner once again moved this Court by preferring MCA 1046 of 1995 in SCA 5686 of 1995 for appropriate directions the High Court (Coram M.S.Parikh J as he then was) vide it’s order dated 13.09.1995 directed the Secondary Education Tribunal to decide the petitioner’s application being Application No. 251 of 1995 within period of eight weeks. As in the meantime she did not receive her wages despite the orders the petitioner moved MCA No. 886 of 1995 in SCA 4504 of 1995 in the High Court. 8. The Tribunal, finally decided the petitioner’s application vide its judgment and order dated 6.01.1997 impugned in this petition, dismissing her application and confirming the order of the school management dismissing the petitioner from services. The Tribunal also stayed its order for week. The petitioner therefore moved MCA no. 127 of 1997 in SCA 5686 of 1995 for it’s revival in terms of the order dated 13.07.1995 made there under. The petitioner has not averred as to what happened to that application but it appears that the present petition was filed and ultimately on 1.04.1997 this Court (Coram: M.R.Calla J as he then was) refused the Interim Relief and SCA/677/1997 9/81 JUDGMENT fixed the matter for final hearing on 1.04.1997. 9. Shri Patel for the petitioner submitted that Tribunal has patently erred in not appreciating the evidence and law point in the matter and therefore, the same deserves to be quashed and set aside. Shri Patel has submitted that the inquiry proceedings conducted against the petitioner are void since the same has not been done by a Committee constituted as per provisions of sub-regulation 27-A. of S.E.R. 1974 The sub-regulation envisages Committee consisting of (1) Representative of Management (2) Representative nominated by charge sheeted employee (3) one person from the panel prepared by the District Education Officer in case of inquiry against Principal. The said Regulation came into effect from 20.5.1992 whereas the proceedings against the petitioner commenced pursuant to the charge sheet dated 26.8.1993. It was therefore incumbent upon the respondent to hold inquiry by a committee as envisaged under sub-regulation 27-A. The inquiry in the present case is therefore illegal and the consequent order of punishment of dismissal is therefore, liable to be set aside. 10. Learned advocate for the petitioner submitted that Regulation 27-A of S.E.R. 1974 is applicable to the minority schools also as by virtue of Regulation 43 of the S.E.R. 1974 only Regulation 27 is excluded from it’s applicability to the institutions established and administered by minority and Regulation 27-A being an independent code in itself providing only reasonable SCA/677/1997 10/81 JUDGMENT procedure for conducting the disciplinary proceedings against the staff of the institutions so as to save them from arbitrary action and victimization of staff at the hands of unscrupulous management, cannot be said to have been excluded from its applicability to the schools run by minority. The regulation 43 as stated herein above does not include Regulation 27-A on its plain reading and it could well be said that the regulation framing authorities have framed it by incorporating the regulations deserved and intended to be excluded and the regulation which is not specifically included therein cannot be said to have been included by any implications. In other words the framing of regulation 43 is legislation by incorporation and not be reference and what is not included or incorporated in the regulation could not be said to have been included merely on its being similar to other provisions which have been specifically included there in. Learned Counsel relied upon the decision of the apex court in case of Bharat Cooperative Bank Limited vs. Cooperative banks’ Employees Union 2007 II CLR 160 in support of his submissions that when there is a legislation by incorporation and not by reference only the provisions specifically incorporated therein are to be considered and subsequent amendment into those provisions on ipso facto cannot be treated to have been included into the provision which contained only the un- amended earlier provision. 11.Shri Patel for the petitioner submitted that Regulation 27- A couldn’t be treated as part of the Regulation 27 merely by its incorporation in that regulation by subsequent SCA/677/1997 11/81 JUDGMENT amendment. If educational institutions established and managed by minority were intended to be exempted from the purview of Regulation 27-A, like regulation 27, than regulation framing authorities would have surely effected corresponding amendment incorporating regulation 27-A also into the provisions of regulation 43 and regulation 43 being exhaustive regulation, a piece of legislation by incorporation and not by reference, fact of its non amendment clearly indicates that its authors did not intend to exclude minority institutions from the operation and applicability of Regulation 27-A of S.E.R. 1974. 12.Shri Patel for the petitioner submitted that minority institutions have right to manage and administer their educational institutions but no right to mal-administer them. The management of minority schools cannot claim any advantageous position only on account of they being minority institutions. The minority institutions are not above the operation of law of the land. The staff of the minority institutions cannot be denied equal protection of law and equality of treatment qua staff of non-minority school in matter of disciplinary proceedings. The Courts have time and again up held the regulatory measures in form of regulations, rules framed for laying conditions of services of staff of minority institutions. The Regulation 27-A being one such type of regulations, it cannot be said to be in any way offending minority’s rights under Article 30(1) of the Constitution to establish and administer educational institution of their choice. It merely provides for safe guard in case of any SCA/677/1997 12/81 JUDGMENT disciplinary action. No minority institution can be permitted to resort to ‘hire and fire’ it’s staff members at their sweet will without following due procedure of law as it is laid down under Regulation 27-A of the S.E.R. 1974. 13. Shri Patel has submitted that in case it is held that Regulation 27-A of the S.E.R. 1974 does not apply to the minority institution by virtue of the provisions of regulation 43,than in alternatively he submitted that declare Regulation 43 of S.E.R. 1974, in so far as it excludes minority institutions from the applicability of Regulation 27-A, ultra vires Articles 14 and 30 of the Constitution of India. 14. Shri Patel without prejudice to the aforesaid contentions, has further submitted that order of dismissal passed on 2.6.1995 by the Hon'ble Secretary on the basis of the resolution of the governing body passed on 28.5.1995 is without authority and illegal in as much as when the governing body passed resolution, its tenure of two years provided in Rule 20 of the Memorandum of Association of the respondent No. 1 was already over. The subsequent amendment providing for 5 years term cannot cure the defect since the amendment enhancing the tenure of office of the governing body was made only on 11.6.1995. 15. Shri Patel has assailed the order dated 2.6.1995 passed by the School Management on the ground that the charge sheet was vague. The petitioner was not permitted to SCA/677/1997 13/81 JUDGMENT engage defense representative to assist her in the inquiry. The management witnesses left cross- examination half way and the petitioner had no opportunity to cross-examine the management witnesses, which has caused serious prejudice to the petitioner. The Presiding Officer Shri Dhabewala was also examined as management witness and his cross- examination was not permitted. The examining of Presiding Officer as management witness itself is in breach of principles of natural justice. The School Management and I.O. did not permit the petitioner, inspection of relevant documents nor did they allow her to have copies thereof. 16. The counsel for the petitioner in the alternative submits that assuming for the sake of arguments that Regulation 27-A is not applicable to the minority school than also, the factum of inquiry and the way it had been conducted would in itself go to show that the respondents have not followed the principles of natural justice and therefore, inquiry proceedings itself was illegal and order of dismissal is required to be quashed and set aside. 17.Shri Patel for the petitioner further submitted that the Learned Tribunal ought to have appreciated the basic lacuna in conducting the departmental inquiry against the petitioner and it ought to have quashed and set aside the order of dismissal. The Tribunal did not appreciated the facts that the Governing Body of the School Management was not competent to pass the impugned resolution nor was it competent to dismiss the petitioner and SCA/677/1997 14/81 JUDGMENT subsequent amendment to their Memorandum of Association would have no curing effect. The Tribunal ought to have appreciated the fact that the Regulation 27-A was applicable to the minority institution also as its merely lays down the procedure to be followed in case of any disciplinary proceedings against the staff members of the minority school. The Tribunal ought to have appreciated that examining of presenting officer was not permissible in the inquiry proceedings and it vitiates the entire proceedings. The Tribunal ought to have appreciated that the petitioner was wrongly denied the assistance of near friend for defending her in the inquiry proceedings and that has also vitiated the inquiry. The Tribunal ought to have appreciated the fact that I.O. ought to have permitted the petitioner the cross- examining of the presenting officer when she made specific request for the same. The Tribunal ought to have appreciated the fact that many witnesses of the Management left the cross half way and that has affected the valuable right of the delinquent to cross-examine the management witnesses. The Tribunal ought to have appreciated the fact that IO did not have any right to revoke charges from the charge sheet. The Tribunal ought to have appreciated the fact that charges were vague and unsustainable. As the Tribunal has not appreciated these aspects its judgment and order also deserves to be quashed and set aside. 18. Shri Patel in support of his submission relied on the following authorities: (1) State of Kerala V/s. K.T.Shaduli AIR 1977 SC 1627 wherein the apex court held that Sales SCA/677/1997 15/81 JUDGMENT Tax Officer’s refusal to summon the wholesale dealer for cross-examination by the assessed would amount to infraction of the right conferred upon the assessed. (2) Surath Chandra V/s. State of W.B. AIR 1971 SC 752 wherein the apex court held that vague and indefinite charges and failure to supply statement of allegation would render removal of Government servant void. (3)Zuinjaroo Bhikaji Nagarkar Vs. Union of India AIR 1999 SC 2881 wherein the apex court has held that mere mistake of law cannot be made basis for initiating Departmental Proceedings, (4) C.M.C.H. Employees Union vs. C.M. College Vellore Asso. AIR 1988 SC 37 the apex court held that the provisions of I.D.Act cannot be said to be ultravires Article 14 and 30 of the Constitution. (5) D.A.V College Jallundhar Vs. State of Punjab AIR 1971 SC 1737 wherein the DAV college impugned SS. 4,4(2) 4(3) and 5 of the Gurunanak University Act 1969 on the ground of violation of provisions of Articles 29(1) & 30 (1) of the Constitution. Relying upon AIR 1958 SC 956 and AIR 1963 SC 540 it was held that minority has absolute right to establish, regulate and manage institution for achieving excellence. (6) Mahindra & Mahindra Limited Vs. Union of India AIR 1979 SC 798 wherein the apex court held that powers conferred upon the commissioner under Section 13(2) of the Monopolies and Restrictive Trade Practices Act 1969 are wide and an application under S.13 (2) being an alternative remedy available to a party and failure to prefer an appeal cannot be construed as acquiescence. And estoppal can arise only if party to a proceeding has altered his position on faith of a representation or promise made by another. (7) Shri SCA/677/1997 16/81 JUDGMENT Patel for the petitioner also relied upon the decision of Calcutta High Court in case of Mohd. Mia Vs. State of West Bengal 2000 III LLJ 1147 in support of his submission that presenting officer cannot be a Management Witness in Disciplinary Proceedings. (8) Transport Commissioner Vs. Radha K Moorthy (1995) 1 SCC 332 Shri Pastel relied upon the judgment in support of his submission that vague charges cannot be sustained whereas Shri Desai for the respondent School Management relied upon this Judgment in support of his submission that initiation of departmental proceedings by an officer subordinate to the appointing authority was held to be unobjectionable. (9) U.P.State Road Transport Vs. Mahesh Kumar Mishra (2000) 3 SCC 450 wherein the apex court, when the delinquent conductor was dismissed for misconduct of non issuing tickets, in absence of statements of the passengers found punishment was disproportionate. (10) Secretary Malamnkara Syrian Catholic College vs. T.Jose (2007)1 SCC 386 wherein the apex court has elaborately laid down the extent of regulatory measures in form of Regulations applicable to minority institution without effecting their rights under Article 30(1)