SCA/3508/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3508 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ================================================= KADRI RASAM MIYA BAKSHU MIYA - Petitioner(s) Versus GOSALIYA HASANBHAI KASAMBHAI & 2 - Respondent(s) ================================================= Appearance : MR HARIN P RAVAL with MR JINESH KAPADIA for Petitioner(s) : 1, MR HJ NANAVATI for Respondent(s) : 1, MS MAMTA R VYAS for Respondent(s) : 2, MS KRINA CALLA ASSST.GOVERNMENT PLEADER for Respondent(s) : 3, ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 08/05/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) In this petition under Article 227 of the Constitution, the petitioner has challenged not only the judgment and order dated 2.1.1987 of the Gujarat Secondary Education Tribunal (Annexure-C to the petition) in Application No.169 of 1986, but the petitioner has also challenged the vires of Section 40A of the Gujarat SCA/3508/1987 2/6 JUDGMENT Secondary Education Act, 1972 as violative of Article 14 of the Constitution. 2. The petitioner was appointed as Assistant Teacher in the respondent-school by order dated 7.11.1985 and the petitioner reported w.e.f. 5.12.1985. After the petitioner put in about two months' service, the Headmaster of the school vide letter dated 8.2.1986 submitted a report regarding the teaching work of the petitioner. The report contained several lapses and shortcomings of the petitioner during the course of teaching. The report was sent to the president of the school management and a copy was also given to the petitioner. The petitioner by his reply dated 26.2.1986 admitted many of the lapses and shortcomings but requested that as he was a fresh teacher his lapses should not be dealt with very harshly. In the meantime, the Headmaster came across some more instances of unsatisfactory work. Hence the school management decided to hold an inquiry into the lapses and shortcomings and to give an opportunity to the petitioner to defend himself. 3. The school management appointed president of the management as the Inquiry Officer. The petitioner was also suspended by order dated 15.3.1986 during pendency of the inquiry. Chargesheet dated 21.4.1986 was served upon the petitioner indicating unsatisfactory work of the petitioner as a teacher including the petitioner teaching incorrect lessons in the subjects assigned to him, that the petitioner was not punctual, that the petitioner was negligent in preparing the attendance record of the students, that the petitioner was not accepting the letters from the peons and that he had not improved in spite of Headmaster's instructions. By communication dated 21.4.1986, the petitioner was informed to remain present on 28.4.1986 at 11 O' clock for the inquiry, but the petitioner remained absent and also requested for leave of absence from the Headquarters on 28th and 29th April, SCA/3508/1987 3/6 JUDGMENT 1986. When the school management received the letter on 28.4.1986 it immediately sent a telegram rejecting the request for permission to leave the headquarters and also informed the petitioner that the petitioner should remain present at the inquiry on 29.4.1986. However, the petitioner left the town and did not remain present even on 28 or 29.4.1986. The school management gave another opportunity by letter dated 30.4.1986 calling upon the petitioner to remain present at the inquiry on 5.5.1986. It was specifically indicated that this was the third and last opportunity given to the petitioner and that the petitioner may remain present with all his explanations and evidence otherwise the inquiry will proceed in the petitioner's absence. The petitioner did not remain present at the inquiry even on 5.5.1986. The Inquiry Officer decided to proceed with the inquiry and examined the Headmaster, three Assistant Teachers, Clerk of the school and two peons who gave their statements before the Inquiry Officer. On the basis of these statements and the record produced by the Headmaster, the Inquiry Officer came to the conclusion that various instances of shortcomings, negligence and unsatisfactory work of the petitioner and lapses in the teaching work of the petitioner were proved. 4. After the statements were recorded and the Inquiry Officer prepared his report, the management received a telegram from the petitioner stating as under :- “Objection. Letter follows.” In the letter dated 5.5.1986 which followed the telegram, the petitioner stated that the petitioner had earlier been insulted by the President of the school management at the latter's residence and, therefore, he would not go to the President's residence for the purpose of inquiry. The school management sent copies of all the statements recorded by the Inquiry Officer, the inquiry report and show-cause notice dated 7.5.1986 giving the petitioner an SCA/3508/1987 4/6 JUDGMENT opportunity to deal with and controvert the findings of the Inquiry Officer within eight days. The school management despatched the impugned order of termination on 17.5.1986 terminating the petitioner's services with immediate effect. According to the school management, the impugned order was despatched before the school management received the petitioner's reply on 17.5.1986. 5. The petitioner challenged the above termination order before the Tribunal contending that the inquiry was not held in accordance with law and that the District Education Officer had not granted approval of the termination order as required under Section 36(1) (b) of the Act. The school management invoked the provisions of Section 40A providing that Section 36(1)(b) shall not apply to any educational institution established and administered by a minority whether based on religion or language. The Tribunal held that the respondent school i.e. Mangrol Muslim Educational Welfare High School is run by Mangrol Muslim Educational Welfare Society and the Gujarat Secondary Education Board had also issued a circular declaring that the respondent-school was a minority institution based on religion. The school management also produced the constitution of Mangrol Muslim Educational Welfare Society and its registration with the Charity Commissioner. The constitution indicated that all the trustees of the Society were Muslims and that only a Muslim can be appointed as a trustee. This case of the management was not challenged by the petitioner in the cross- examination. The Tribunal, therefore, held that the respondent- school being a minority institution was entitled to invoke the provisions of Section 40A of the Act and, therefore, the management was not required to obtain approval of the DEO under Section 36(1)(b) of the Act before terminating the petitioner's services. 6. On merits, the Tribunal held that the material on record SCA/3508/1987 5/6 JUDGMENT including reports of the Headmaster, statement of witnesses and the inquiry report and also the admissions made by the petitioner before the Headmaster of the school that there were shortcomings in the teaching work were sufficient to negative the petitioner's allegations of malafides. The Tribunal also negatived the petitioner's contention that he was not given sufficient opportunity to defend himself. Accordingly, the Tribunal dismissed the application by the impugned judgment and order dated 2.1.1987. 7. In this petition filed in January 1987, the petitioner has accordingly challenged the said judgment and has also challenged the vires of Section 40A of the Act. 8. The challenge to vires of Section 40A of the Act cannot now survive in view of the decisions of the Apex Court in Frank Anthony Public School Employees' Association vs. Union of India, AIR 1987 SC 311 and Bharat Sevashram Sangh vs. State of Gujarat, AIR 1987 SC 494. 9. In Frank Anthony Public School Employees' Association (supra), the Apex Court was examining the provisions of subsection (2) of section 8 of the Delhi School Education Act, 1973, wherein it was provided that “no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director.” In para 20 of the said judgment the Apex Court held that Section 8(2) must, in view of the authorities, be held to interfere with the right of the minority institutions and, therefore, inapplicable to minority institutions. 10. In Bharat Sevashram Sangh (supra), the Apex Court examined the constitutional validity of the Gujarat Secondary SCA/3508/1987 6/6 JUDGMENT Education Act, 1972. After examining the constitutional validity of the other provisions, the Apex Court also considered Section 40A of the Act. The Apex Court upheld the judgment of the High Court upholding the constitutional validity of the Gujarat Secondary Education Act, 1972. Hence, it is not open to this Court to entertain the challenge to vires of Section 40A of the Act raised in this petition. Once the constitutional validity of the Act has been upheld by the Apex Court after considering the provisions of Section 40A of the Act, it is not open to this Court to go into the question as to at whose instance the challenge to the constitutional validity was examined by the Apex Court. Once the provisions of the Act have been held to be valid, the decision of the Apex Court is binding and we do not, therefore, entertain the challenge levelled by the petitioner against the constitutional validity of Section 40A of the Act. 11. On merits of the judgment of the Tribunal, we do not find any fault with the same. The petitioner was a probationer and his services came to be terminated within six months from the date of his reporting to duty. The Tribunal has given cogent reasons for coming to the conclusion that there was no illegality in the termination order and that the principles of natural justice were complied with. The facts narrated in paragraphs 2 to 4 of this judgment also are sufficient to show that the petitioner was given a reasonable opportunity of being heard but the petitioner did not avail of the same. 12. In view of the above discussion, the petition is dismissed. Rule is discharged. (M.S. SHAH, J.) (RAVI R. TRIPATHI, J.) zgs/-