SCA/2259/1989 1/36 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2259 of 1989 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 ? ========================================================= NAVRANGPURA VILLAGE CHARITABLETRUST AND ORS - Petitioner(s) Versus CHINUBHAI G PATEL & 1 - Respondent(s) ========================================================= Appearance : MR HJ NANAVATI for Petitioner(s) : 1, MR RD RAVAL for Respondent(s) : 1, MR HEMANT MAKWANA, ASST GOVT. PLEADER for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 16/10/2007 SCA/2259/1989 2/36 JUDGMENT ORAL JUDGMENT 1. The petitioner, a charitable trust registered under the Bombay Public Trust Act, 1949 running a school, has under Article 227 of the Constitution of India challenged the judgement and order dated 21.03.89 passed by the Gujarat Secondary Education Tribunal in Application No. 372/87 quashing and setting aside the order of dismissal passed by the petitioner dismissing the respondent no.1 and directing reinstatement of respondent no.1 with full backwages while substituting the order of dismissal by an order of punishment of withholding two increments for two years for the misconduct of late submission of answer books and for being non punctual. 2. The facts in brief deserve to be set out in order to appreciate the controversy involved in this matter: 2.1 The petitioner trust is running a school wherein the respondent no.1 was appointed in primary section with effect from 23.06.75. The respondent no.1 came to be appointed as a teacher in the secondary section as he was holding degree in BSc and BEd. It is an allegation made in the petition and it was an allegation before the Tribunal also that the respondent no.1 was indulging in various activities including conducting private tuition classes and therefore he was unable to attend the school SCA/2259/1989 3/36 JUDGMENT punctually. The respondent no.1 being not punctual in coming to the school in time, a record was kept and it was sought to be established through the record that the respondent no.1 was not punctual in coming to the school. The respondent no.1 was visited with a charge sheet as complaints were received from two teachers against the conduct of the respondent no.1 in connection with a public examination of Standard 12 which was being conducted in the premises of the petitioner school on 12.06.86. A show-cause notice dated 20.06.86 came to be served by the petitioner wherein three charges were levelled against him as under: (i)Though the assessed answer books were to be submitted by 14.05.86, the respondent had submitted them on 20.05.86 with the result that only by putting extreme effort the school could announce the result on the stipulated day of 24.05.86; (ii)On and often the respondent was coming late to the school and that he was late for 104 days in 1983-84, for 89 days in 1984-85 and 96 days in 1985-86. (iii)The behaviour of the respondent at the public examination of Std. 12 gave rise to suspicion and that two teachers of the school had complained regarding the behaviour on 12.06.86. 2.2 An inquiry was conducted as per the procedure laid down and ultimately the inquiry officer held the SCA/2259/1989 4/36 JUDGMENT charges to be proved against the respondent no.1 and therefore the disciplinary authority of the petitioner trust imposed penalty of dismissal from service under the provisions of Gujarat Secondary Education Act. This order was forwarded for due approval to the District Education Officer who was supposed to either approve it or disapprove it after hearing the parties within 45 days as stipulated under the Education Act. By virtue of provisions of deemed approval the dismissal order came to be effective as during the period of 45 days the concerned District Education Officer did not pass any order either approving or disapproving the action of the management. 2.3 The respondent no.1 challenged the said order by way of Application No. 372/87 before the Gujarat Secondary Education Tribunal at Ahmedabad and the Tribunal vide its CAV judgement and order dated 12.03.89 partly allowed the application quashing and setting aside the order of dismissal and directing the petitioner to reinstate the respondent no.1 with full backwages and substituting the order of penalty of dismissal with that of withholding of two increments for a period of two years in respect of the misconduct for late submission of answer books and for being non punctual. As it is stated hereinabove, being aggrieved and dissatisfied with the order, the petitioner Trust has preferred this petition under Article 227 of the Constitution of India. SCA/2259/1989 5/36 JUDGMENT 3. On 31.03.89, this Court (Coram: G.T Nanavati, J. as he then was) issued rule and ordered notice to be issued in respect of interim relief which was made returnable on 06.04.89. A statement came to be made on behalf of respondent no.1 who was represented by advocate on caveat that till then the respondents will not take any action against the petitioners on the basis of the order which has been passed by the Tribunal. The said relief came to be extended time and again. 3.1 On 18.07.89, this Court (Coram : P.M Chauhan, J., as he then was) passed a detailed order staying the order of the Tribunal till further order and rule was made returnable on 28.08.89. 4. Mr H.J. Nanavati, learned advocate appearing for the petitioner trust has made submissions in detail assailing the order of the Tribunal. Mr Nanavati has submitted that the Tribunal has patently erred in setting aside the order of dismissal passed by the petitioner and has further erred in ordering reinstatement with full backwages and substituting the penalty of imposing the penalty of withholding of two increments for a period of two years making inroads on the rights of the management to impose punishment. He has further submitted that the Tribunal infact over stepped in its jurisdiction in dealing with the application of the respondent no.1 and therefore the order impugned deserves to be SCA/2259/1989 6/36 JUDGMENT quashed and set aside. 4.1 Mr Nanavati has heavily relied upon the decision of the Apex Court in the case of Sanchalakshri and Another vs. Vijaykumar Raghuvirprasad Mehta & Anr reported in AIR 1999 SC 578. He has submitted that the Apex Court has clearly deprecated and disapproved the action of the education tribunal in setting aside the order of punishment imposed by the management and substituting the same with punishment of stoppage of two increments with future effect. Mr Nanavati has relied upon the observation of the Apex Court made in para 6 and submitted that therefore the Tribunal in the instant case could not have brushed aside the entire set of evidences of the management of the petitioner trust and substituted the penalty. Therefore on this count the order of the Tribunal is contrary, erroneous and the same deserves to be quashed and set aside. 4.2 Mr Nanavati has further submitted that the provisions of sections 38 and 39 of the Education Act would go to show that the Tribunal did not have power to appreciate or re-appreciate the evidence on record. He has relied upon a decision in case of Union of India vs. Parma Nanda reported in 1989(2) SCC 177 and submitted that under the scheme of Secondary Education Act as well as rules made thereunder, the Tribunal ought to have considered only as to whether there was due compliance of principles of natural justice and should have come to SCA/2259/1989 7/36 JUDGMENT the conclusion on that basis only. It was not open to the Tribunal to take upon itself the exercise of re-evaluating and re-assessing the entire set of evidence and come to it own conclusion brushing aside the evidence relied upon by the present petitioner. The Tribunal has undertaken that exercise and therefore on this count alone the order of the Tribunal deserves to be quashed and set aside. He has also relied upon the decision of this Court in the case of Ramanlal R. Khorsma & Anr. vs. Virabhai Talsibhai Parmar & Anr. reported in 2004(4) GLR 3342 in support of his submission. 4.3 Mr Nanavati has relied upon the decision of the Apex Court in the case of U.P. SRTC vs. Ram Kishan Arora reported in 2007(4) SCC 627 and canvassed a submission that the Tribunal could not have re- appreciated the evidence and it is not open even to this Court to do the same under Article 227 of the Constitution of India. This being the latest judgement on the said point the same could go to show that the impugned order made by the Tribunal deserves to be quashed and set aside. Mr Nanavati has also relied upon the decision of the Apex Court in the case of Kishore Kumar Khaitan & Anr. vs. Praveen Kumar Singh reported in AIR 2006 SC 1474 and submitted that as per the decision of the Apex Court Article 227 of the Constitution cannot be said to be imposing any restrictions upon the Court to restrain itself from appreciating the errors of the Tribunal whose judgement is under challenge otherwise it would SCA/2259/1989 8/36 JUDGMENT amount to perpetuating injustice which is done under the order impugned. 4.4 Mr Nanavati has relied upon the decision of this Court in the case of Ambalal Motibhai Patel, Chairman, New English School Trust v. Smt. Hansaben Dinmanishanker Shastri & Anr. reported in 1991(2) GLR 713 and submitted that now the question with regard to order of the Tribunal flowing from 36(5) is no more required to be elaborately argued. He has pointed out the factual aspects in order to show the perversity in the judgement of the Tribunal. Mr Nanavati has submitted that at page 5 of the petition it was clearly averred by the petitioner which is also borne out by the record of the Tribunal that the petitioner was non punctual on account of his other activities like his engagement in private coaching classes etc. During the deposition before the Tribunal the respondent no.1 was subjected to a question with regard to his engagement with Patel Classes which has gone on record and has also been overlooked by the Tribunal while quashing and setting aside the order of the management. Mr Nanavati has brought to the notice of this court the deposition at Ex. 6 which has been ignored or not dealt with by the Tribunal in its order. 4.5 He has further submitted that the Tribunal has completely ignored the principles of pleadings and submissions as the Tribunal has come to the conclusion that the inquiry officer was biased though SCA/2259/1989 9/36 JUDGMENT no bias was pleaded by the respondent no.1 at all. There is only one allegation that the inquiry officer had not acted in accordance with law and that itself could not mean that it was an allegation that the inquiry officer was biased or that the conduct of the inquiry officer was such as to term him to be biased. Mr Nanavati has relied upon the decision of the Apex Court in the case of Workmen in Buckingham and Carnatic Mills, Madras vs. Buckingham and Carnatic Mills, Madras reported in 1970(1) LLJ 26 in support of his submission that the bias cannot be proved by making mere allegations without there being any substance on record. Therefore, in view of this also the decision of the Tribunal deserves to be quashed and set aside. 5. Mr R.D Rawal, learned advocate appearing for the respondent no.1 has made elaborate submissions defending the order of the Tribunal. Mr Rawal has submitted that in fact the order of dismissal was a result of a well planned design either to bring about the respondent no.1 to the terms of the management or to dispense with his services as it was not palatable to the management. Mr Rawal has submitted that the motive behind the issuance of charge-sheet could be evident from the very reading of the charge-sheet which would go to show that the management had designed to compel the respondent no.1 to agree to their terms or to dispense with his services. 5.1 Mr Rawal has submitted that the respondent no.1 SCA/2259/1989 10/36 JUDGMENT being a forthright person admitted that he was not punctual on some occasions but there were sufficient reasons militating against his coming to the school in time. When the management suffered the non punctuality of the petitioner for two to three years as could be seen from the charge-sheet itself without any demur then it can well be said that it was a trap laid down by the management to constitute charge against the respondent no.1. The charge in itself would show that the management has become so meticulous in pointing out each and every incident of the respondent's late coming to the school. Mr Rawal has also emphasized the fact that the school timings being from 11.00 hrs the reporting time of the teachers was 10.55 hrs. On many occasions the respondent was late only as he could not reach at 10.55 hrs but he had come within the time gap of 10.55 hrs and 11.00 hrs and on some days even after 11.00 hrs but that in itself should not have been viewed as such a serious misconduct as the school had acquiesced into his late coming by not issuing memo and/or taking action. Mr Rawal has also relied upon the reply given by the respondent no.1 wherein instances have been quoted in respect of co-employees who were permitted to come late and no action was taken against them. 5.2 Mr Rawal has attempted to show that the sufferance on the part of the school management for as many as three years in issuance of charge-sheet is malafide as this very management has not taken any SCA/2259/1989 11/36 JUDGMENT action against any other late comer. Mr Rawal has further submitted that the issuance of charge sheet itself is malafide. He has heavily relied upon the words of the charge-sheet and submitted that the second charge in respect of late submission of answer sheets in itself was ill-founded inasmuch as the factum of death of two close relatives of the petitioner was infact within the knowledge of the management and the disciplinary authority himself has sent a note of condolence and acknowledged its folly in reprimanding the petitioner on this count. Mr Rawal has heavily relied upon the reply given by the respondent to the charge-sheet and submitted that the tenor of the reply reveals the personality of the respondent no.1 which appears to be nothing but being forthright on his part as he has candidly accepted and admitted the charges in respect of late coming on many occasions and late submission of the answer sheets. Mr Rawal has submitted that the late submission of answer sheets and late coming deserves to be viewed in context of the explanation coming forward from respondent no.1 which would go to show that infact charges of late coming to the school and non submission of answer sheets in time did not have any foundation to rest upon. He has also submitted that the inquiry officer did not conduct the inquiry strictly in accordance with principles of natural justice and therefore the Tribunal which is the court of first instance was entitled to appreciate the aspects and come to its own conclusion. SCA/2259/1989 12/36 JUDGMENT 5.3 Mr Rawal has heavily stressed the factum of the inquiry officer putting questions to the delinquent respondent no.1 hereinabove which the tribunal has termed to be “leading questions” which were not permissible to be asked. Mr Rawal has submitted that the respondent no.1 was not provided legal assistance or atleast assistance of a friend to help him in the disciplinary proceedings. Mr Rawal from the proceedings attempted to point out that the respondent no.1 did give name of a fellow teacher who was not willing to be his assistant or of a friend who can help him in defending the charge. In such a situation Mr Rawal has submitted that it was a duty cast upon the authorities to provide the delinquent with help of someone who could have been of real assistance to the respondent no.1 as from the record it appears that no such attempt was made on the part of the inquiry officer which has vitiated the inquiry proceedings. Mr Rawal has further submitted that the inquiry officer while submitting his report based upon his assumption of the evidence has conveniently ignored the explanation given by the delinquent respondent no.1 in respect of the charge of late coming and late submission of answer sheets. He has submitted thus on that count also the Tribunal was justified in coming to the conclusion that the inquiry officer was biased and therefore the inquiry was vitiated. 5.4 Mr Rawal has submitted that the Tribunal has however substituted the penalty of dismissal with SCA/2259/1989 13/36 JUDGMENT that of withholding of two increments for a period of two years and the same being absolutely just and proper no interference is called for under Article 227 of the Constitution of India. He has also submitted that infact the concerned District Education Officer at the relevant time was acting against the respondent no.1 as deliberately he permitted the statutory period to pass so that the respondent no.1 shall be deprived of his right to make an appeal before the Tribunal and the deemed approval becomes operative. Mr Rawal has submitted that the District Education Officer passed an order after the statutory stipulated period of 45 days only with a view to prejudice the concerned authorities as he has approved the decision of the management in dismissing the services of the petitioner. Mr Rawal has submitted that the District Education Officer in his order has clearly mentioned that his children were studying in the school and therefore there was a consideration whether to take up the matter for approval or not and ultimately after passing of statutory period the District Education Officer passed an order approving the decision of the management on the ground that his children were studying in the primary section whereas the case on hand pertained to secondary section. On this basis Mr Rawal has made submission that the District Education Officer was acting malafidely and the order of the District Education Officer was passed with an aim to prejudice the concerned authorities. SCA/2259/1989 14/36 JUDGMENT 5.5 Mr Rawal has further submitted that so far as the third charge is concerned the same cannot be said to have been proved and the Tribunal has rightly held it not to be proved as the entire incident is absolutely natural without any intention of ill-will on the part of the respondent no.1. The entire conduct of the respondent on the day on which he is said to have visited the school and passed up the numbers of three candidates/examinees to the said G.I Patel would go to show that the respondent was not activated with any motive for seeking undue favour in respect of said three examinees. In fact the inquiry officer has not taken into consideration the explanation put forward by the respondent justifying his presence in the school and passing of the chit. The motive attributed to the respondent no.1 by the said G.I Patel has its genesis in the pre-existing disliking and/or grudge against the respondent inasmuch as the respondent did not favour Mr Patel whose daughter was studying under him. The entire incident is said to have happened in presence of one Shri Boravadia, a fellow teacher who has not been examined at all. Had Mr Boravadia been examined by the management, truth would have come out indicating clearly that the motives which were attributed to the respondent were lacking and therefore the entire charge would have been watered down to an incident which cannot be said to be an exceptional one so as to attract disciplinary proceedings against respondent no.1. SCA/2259/1989 15/36 JUDGMENT 5.6 Mr Rawal has submitted that the charge contains the exchanges between the respondent no.1 and the managing trustee and the managing trustee has also not been examined by either the management or the inquiry officer and in absence thereon the admission be said to have been attributed to the respondent which also cannot be relied upon. The tribunal has appreciated all these facts and come to the conclusion that the inquiry officer was biased and the charge no.3 was not proved and therefore the penalty of dismissal was quashed and set aside. This Court under Article 227 of the Constitution of India may not reverse the same even if there appears to be anther view plausible. 7. Mr Rawal has relied upon a decision of the Apex Court in the case of Ouseph Mathai and Others vs. M. Abdul Khadir reported in 2002(1) SCC 319 and heavily stressed upon the observation of the Apex Court in head note 'C' and submitted that the scope of this Court under Article 227 to interfere with the order of the adjudicating authority whose order under examination is very limited. Mr Rawal has submitted that as per the observation of the Apex Court the high Court may not interfere with the decision of the Tribunal even if it is found to be wrong as mere wrong decision is not a ground for exercising jurisdiction under Article 227 of the Constitution of India. It is submitted on behalf of the respondent no.1 that the high court may intervene under Article SCA/2259/1989 16/36 JUDGMENT 227 only where it is established that lower court or tribunal has been guilty of grave dereliction of duty and flagrant abuse of power resulting into gross injustice to any party and that the high court is not to sit as an appellate court over the decision of the Tribunal. 7.1 Mr Rawal has also relied upon the decision of the Apex Court in case of Mohd. Yunus vs. Mohd. Mustaqim & Ors reported in AIR 1984 SC 38 and submitted that the Apex Court has while examining the scope of jurisdiction of high court under Article 227 observed that even error of law cannot be corrected and therefore on this count Mr Rawal submitted that the decision of the Tribunal does not call for any interference as the Tribunal cannot be said even to have erred while quashing and setting aside the order of dismissal and substituting the same so far as the charge in respect of late submission of answer sheet and non punctuality are concerned. 7.2 Mr Rawal has further relied upon a decision of the Apex Court in the case of Khalil Ahmed Bashir Ahmed vs. Tufelhussein Samasbhai Sarangpurwala reported in AIR 1988 SC 184 and further relying upon para 13 of the said decision submitted that in view of the decision of the Apex Court cited hereinabove where even two views are possible and plausible the view which may appear to be attractive to the high court need not be taken for reversing the view taken by the tribunal. SCA/2259/1989 17/36 JUDGMENT 7.3 Mr Rawal has also relied upon the decision of this Court (Coram: H.K Rathod, J.) in SCA 13571/06 decided on 13.07.06 wherein this court based upon the decision of this court did not reverse the view taken by the lower court on the basic principle that where two view are possible the high court cannot act as an appellate authority to interfere with the award while exercising its powers under Article 227 of the Constitution of India. Mr Rawal has further relied upon a decision in the case of Roshan Deen vs. Preeti Lal reported in AIR 2002