Gujarat High Court
Sheth Sarabhai Maganbhai Trustfund vs Administrative Officer-Nagar ... on 24 January, 2025
NEUTRAL CITATION
C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19172 of 2007
With
R/SPECIAL CIVIL APPLICATION NO. 19425 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd/-
==================================================
Approved for Reporting Yes No
No
==================================================
SHETH SARABHAI MAGANBHAI TRUSTFUND
Versus
ADMINISTRATIVE OFFICER-NAGAR PRATHAMIK SHIKSHAN SAMITI & ANR.
==================================================
Appearance:
MR SALIL M THAKORE(5821) for the Petitioner(s) No. 1
MR. GAUTAM JOSHI, SENIOR ADVOCATE WITH HARSH V GAJJAR(7828) for the
Respondent(s) No. 2
MR AD OZA(515) for the Respondent(s) No. 1
==================================================
CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 24/01/2025
ORAL JUDGMENT
[1] The present writ petition is preferred assailing the legality and validity of the order passed by the Nagar Prathamik Shikshan Samiti, Ahmedabad Municipal Corporation (hereinafter referred to as "the respondent Samiti") dated 27.06.2007 inter alia rejecting the prayer of petitioner of dismissal of Shri Arjanbhai N. Rasadia (hereinafter Page 1 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined referred to as "the respondent") and allowing him to continue in the school observing that the disciplinary incident involved in the respondent had happened for the first time. This order dated 26.07.2007 is assailed in the present writ petition. [2] The factual background which has led to filing of the writ petition is that the petitioner is a trust, registered under the Bombay Public Trust Act, 1950 and is running various educational institutions including Sheth C. N. Kishor Vidyalaya, which inter alia is imparting education in primary section and is a recognized private primary school. The respondent was appointed as an Assistant Teacher in Sheth C. N. Kishor Vidyalaya. On 18.09.2006, the Principal of Sheth C. N. Kishor Vidyalaya, Shri Bhaktibhai Patel has lodged a written complaint before the petitioner alleging that the respondent had misbehaved with him and has also physically beaten and also demonstrated a threat. It was further alleged that the respondent had used unparliamentarily language in presence of the lady teachers who are working in the said school.
[2.1] Pursuant to the incident and considering the seriousness of the allegations levelled against the respondent, the school management decided to pass order of suspension and put the respondent under Page 2 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined suspension on 19.09.2006. Thereafter, considering the seriousness of the allegations, a show-cause notice as required under the Bombay Primary Education (Gujarat) Act, 1986 (hereinafter referred to as "the Act") was issued under Section 40(B) read with Schedule F of the Act.
[2.2] Considering the fact that respondent was put under suspension, the school management had forwarded a proposal to the respondent Samiti under Section 40(B)(4) of the Act on 25.09.2006 to get approval of the respondent committee to confirm the action of suspension. Respondent Samiti had granted approval of the proposal of the school management to put the respondent under suspension. This order was passed on 08.11.2006.
[2.3] Pursuant to the issuance of the show-cause notice, the respondent had responded to the show-cause by filing his reply on 09.10.2006. The charges levelled against the respondent were denied. Thereafter, considering the reply of the respondent, the school management decided to hold a departmental inquiry as per the provisions of the Act and Rules made therein. Three men committee was appointed to investigate into the charges levelled against the respondent. The inquiry committee held its first meeting Page 3 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined on 21.11.2006 and in the said meeting, the inquiry committee had framed charges against the respondent. Ten different meetings were held by the departmental inquiry committee from 21.11.2006 to 10.02.2007. Opportunity was given to the respondent to cross- examine all the witnesses as well as adduce other evidences. Pursuant to the completion of the proceedings, the inquiry committee had submitted a report where majority of the members of the inquiry committee came to a conclusion that the respondent was a guilty for the charges levelled against him.
[2.4] On the basis of the inquiry report submitted by the inquiry committee, the school management had passed a resolution and has resolved that since majority members of the inquiry committee had accepted the charges levelled against the petitioner, the report of inquiry be accepted. It was further resolved that considering the charges were proved against the respondent, a show-cause notice with proposed punishment of dismissal was required to be issued. Accordingly, on 09.04.2007, the school management issued a show- cause and along with the show-cause notice, the report was submitted to the respondent. The respondent submitted his reply and denied the allegations made against him. After considering the reply to the show-cause notice, the school management decided to Page 4 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined dismiss the petitioner from service, and therefore, forwarded a proposal to the respondent Samiti on 15.05.2007. It is the case of the petitioner that without considering any of the submissions made by the petitioner, the respondent Samiti by way of a cryptic order dated 27.06.2007 had rejected the prayers of the school management and declined to grant approval to dismiss the respondent from services, which has led to filing of the present writ petition. This order dated 27.06.2007 is assailed in the present writ petition. [3] Pursuant to the order passed by the respondent Samiti to not to accede to the prayers of dismissal of the respondent, the school management had communicated to the respondent on 29.06.2007, directing him not present himself from the services as a School Teacher in the school as the school management was in contemplation and process of challenging the order dated 27.06.2007 before this Court. This communication dated 29.06.2007 by the school management addressing the respondent is challenged by the respondent by way of separate writ petition being Special Civil Application No.19425 of 2007. As the issue and factual aspects in both the writ petitions are common, the parties are addressed as per cause title of Special Civil Application No.19172 of 2007. Page 5 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025
NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined [4] The fact is also that the both writ petitions were preferred in the year 2007. Thereafter, on 02.08.2007, it was recorded by this Court pursuant to the statement made by the petitioner that the respondent was receiving regular salary from the petitioner and he will be paid regular salary till the pendency of this petition. This position has not been disputed by learned advocates for both the parties and it has been further submitted that the respondent had already superannuated in the year 2021. However, the impugned order is challenged considering the question of legality involved in the adjudication of the matter.
[5] We have heard Mr. Salil M. Thakore, learned advocate appearing for the petitioner and Mr. Gautam Joshi, learned senior advocate with Mr. Harsh V. Gajjar, learned advocate for the respondent.
[6] At the outset, Mr.Gautam Joshi, learned senior advocate with Mr. Harsh V. Gajjar, learned advocate for the respondent has submitted that he is ready and willing to concede to the fact that the impugned order dated 27.06.2007 is a non-speaking order and the impugned order does not adjudicate the issue as per provisions of the Act. Therefore, if the issues in fact and law are not being Page 6 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined adjudicated, the matter can be remanded back to the respondent Samiti for a fresh adjudication within a reasonable period of time. However, without acceding to the submission made by learned senior advocate Mr. Gautam Joshi, Mr. Salil M. Thakore, learned advocate for the petitioner has submitted that the respondent Samiti has exceeded its jurisdiction in passing the impugned order. The reason given for not granting approval for dismissal of the respondent as a Teacher was that the incident took place for the first time in the career of the respondent. Therefore, the respondent Samiti came to a conclusion that the dismissal was against the principles of natural justice and that was the reason, the action of the school management was not approved. While exercising powers under Section 40(b)(2), it is not open for the respondent Samiti to suggest the punishment other than the punishment imposed by the school management and in doing so the respondent Samiti has exceeded his jurisdiction which was not vested in him.
[7] It was further submitted by Mr. Thakore, learned advocate for the petitioner that the only issued that the respondent Samiti ought to have considered at the time of considering the proposal forwarded by the school management was that whether the school management has given an ample opportunity to the respondent to defend himself Page 7 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined and whether the charge levelled against the respondent is a serious in nature or not. The respondent Samiti could have looked into whether the management had produced any sufficient evidence to prove the charge against the respondent or whether the departmental inquiry committee had given an opportunity to the respondent to defend himself by cross-examining the witnesses and adducing evidence etc. If such ingredients are present in the proceedings then in that event the respondent Samiti had no other alternative but to grant approval of the proposed action of the school management. Therefore, the main object to obtain approval of the respondent Samiti was that before dismissing the employee it has to be seem that whether the respondent teacher is not unnecessarily harass or is not removed or dismissed with ulterior motive. Once the charges are proved by the inquiry committee and proposal made by the school management, the respondent Samiti was not required to show undue sympathy and set aside the proposal, which was otherwise in accordance with law.
[8] Relying on a pari materia provision of Section 36(1) of the Gujarat Secondary Education Act, 1972, Mr. Thakore, learned advocate for the petitioner has submitted that in the case of United Education Trust Sanchalit Navjivan High School versus Page 8 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined Commissioner of Higher Education and others reported in 1991 (2) GLR 713, wherein this Court has held that jurisdiction of the authorized officer under Section 36(1)(b) of the Act has a positive content and negative content. As per negative content, the officer was not required to go into a consider the penalty proposed to be passed. That being not the power of the authorized officer the only issue required to be considered by the authorized officer was to see as to whether prima facia the case was based on legal evidence and whether the inquiry was a proper inquiry and whether the proposed dismissal of the employee amounts to victimization or unfair labour practice. Once that is seen then the authorized officer was not required to interfere with the proposal. Relying this decision, Mr. Thakore, learned advocate for the petitioner has submitted to allow the writ petition and confirmed the proposal as requested by the school management.
[9] Considering the submission, Mr. Thakore, learned advocate for the petitioner has relied on judgment of this Court indicating that the respondent Samiti had no jurisdiction to go into the proportionality of the punishment. Mr. Thakore, learned advocate has relied on judgment and order passed in Special Civil Application No.6865 of 1996 on 09.11.2006 as well as judgment and order passed in Special Page 9 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined Civil Application No.14186 of 2003 on 21.09.2016. Therefore, the crux of argument of Mr. Thakore, learned advocate is that the Administrative Officer's function under Section 40(B) is of granting "approval". It is a managerial or administrative function as held by the courts and not a judicial function. Therefore, the respondent could not have issued the impugned order.
[10] Having heard learned advocates for the parties and perused the material on record, certain things are not in dispute. As observed for both the parties, the impugned order was a non- speaking order. The impugned order has not demonstrated any reason for rejection of the proposal sent by the petitioner to dismiss the respondent. The only reason given by respondent Samiti that the incident had occurred for the first time. Therefore, there is no finding recorded by the respondent Samiti as to what was the reason to not agree with the proposal made by the school management. On this context itself, the order is required to be quashed. If the impugned order, which is appended at page Nos. 15 and 16 of the writ petition, is perused carefully, it can be seen that there is neither any re-appreciation of the evidence vis-a-vis the departmental inquiry nor any reason given for approval / disapproval of the punishment proposed by the petitioners school. The only observation made in the Page 10 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined impugned order is that since the incident has happened for the first time, the quantum of punishment is unreasonable. There is no finding with regard to approval or disapproval. Unfortunately, the impugned order of the respondent samiti is dehors the provisions of the Act. For a moment, even if the argument of Mr. Thakore, learned advocate is accepted that the Administrative Officers functioned under Section 40B is of granting approval and further the Officer is not required to give a certificate that the procedure followed is correct but he needs to remark only when he finds that the procedure followed is not proper and then can disapprove the proposal, then also there is nothing on record to show that the respondent samiti has given approval or disapproval as per the Act. The order passed by the respondent samiti is completely dehors the provisions of the Act and, therefore, is required to be quashed. [11] However, the main thrust and endeavour of Mr. Salil M. Thakore, learned advocate for the petitioner is in his second limb of argument. The argument canvassed by Mr. Thakore, learned advocate is that the respondent Samiti's function under Section 40(B) is of granting "approval". Therefore, it is managerial or administrative function and not a judicial function. This proposition is upheld by this Court in catena of decisions. Therefore, it was Page 11 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined contended by Mr. Thakore, learned advocate that instead of remanding the matter back to the respondent Samiti, this Hon'ble Court is required to go into the proportionality of punishment. The only aspect required to be seen by this Court that whether the principles of natural justice were followed and if the procedure of inquiry officer as well the disciplinary authority was according to the procedure and principles of natural justice when this Court can very much approve that and this Court would not be required to go into the "facts" of the matter. Therefore, according to Mr. Thakore, learned advocate, instead of remanding matter back to the respondent Samiti, this Court can look into the procedure and adjudicate the issue instead of remanding the matter back to the respondent Samiti. Therefore, according to Mr. Thakore, learned advocate, it would be just and proper if this Court decided the issue of approval and further refrain from remanding back the matter to the respondent Samiti.
[12] To substantiate his argument, Mr. Thakore, learned advocate has relied on judgment and order passed in Special Civil Application No.6865 of 1996 on 09.11.2006 as well as judgment and order passed in Special Civil Application No.14186 of 2003 on 21.09.2016 to say that the pari materia provisions of the Gujarat Secondary Page 12 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined Education Act, 1972 in particular Section 36(2) was considered. It was contending that the Administrative Officer's function was only to given "approval" instead of going to the proportionality of the matter. [13] To appreciate the proposition as canvassed by Mr. Thakore, learned advocate, the provisions of the Act are required to be gone into. Section 40(B) of the Act reads as under:-
"40B. (1) (a) No teacher of a recognised private primary school shall be dismissed or removed or reduced in rank nor his service be otherwise terminated until--
(i) he has been given by the manager an opportunity of showing cause against the action proposed to be taken in regard to him;
and
(ii) the action proposed to bo taken in regard to him has been approved in writing by the administrative officer of the school board in the jurisdiction of which the private primary school is situate :
Provided that nothing in this clause shall apply to a teacher who is appointed temporarily for a period less than a year or a teacher appointed temporarily on a leave vacancy for a period less than a year. \ Explanation. A teacher who is appointed temporarily for a period of less than a year or a teacher who is appointed temporarily on a leave vacancy for a period of such vacancy shall not be deemed to be a teacher appointed temporarily for such period, if he has at any time prior to such appointment served as a teacher either in the same private primary school or in another private primary school under the same management and the aggregate of the period of such past service and the period of service for which he is appointed exceeds one year.
(b) The administrative officer shall communicate to the manager of the school in writing his approval or disapproval of the action proposed, within a period of forty five days from the date of the receipt by the administrative officer of such proposal.Page 13 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025
NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined (2) Where the administrative officer fails to communicate either approval or disapproval within a period of forty five days specified in clause (b) of subsection (1), the proposed action shall be deemed to have been approved by the administrative officer on the date of the expiry of the said period (3) No penalty being the penalty other than that referred to in sub-section (1)) shall be imposed on a teacher of the private primary school unless such teacher has been given reasonable opportunity of being heard, (4) Where a teacher of a private primary school is suspend by the manager of the school pending any inquiry proposed to be held against him, the fact of his suspension together with the grounds therefor shall be communicated within a period of seven days, after such suspension by the manager, to the administrative officer of the school board in the jurisdiction of which the school is situate, and such suspension shall be subject to ratification by the administrative officer within a period of forty five days from the date of receipt of communication in this behalf by the administrative officer and if such ratification is not communicated to the manager by the administrative officer within such period, the suspension of such teacher shall cease to have effect on the expiry of the said period : Provided that a teacher shall, during the period of suspension, be entitled to such subsistence allowance, and on such terms and conditions as may be prescribed.
(5) Any teacher aggrieved by the order of the administrative officer under subclause" (ii) of clause (a) of sub-section (1) may make an appeal to the Tribunal within a period of thirty days from the date on which the administrative officer has approved or deemed to have approved the action.
Explanation.--For the purposes of this section, and section 40C,
--
(a) "manager" in relation to a private primary school means a person or body of persons in charge of the control or of management of the school;
(b) "teacher" means a teacher of a recognised private primary school;
(c) "Tribunal" means a Tribunal constituted under section 40F." Page 14 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025
NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined [14] Therefore, the procedure that is envisaged as per the Act is that the respondent Samiti was first required to approve in writing the proposal given by the school management. There is distinction between the provision of the Act viz a viz the Gujarat Secondary Act. In the provisions of the present Act, a clear distinction is given that the respondent Samiti can very well disapprove the action proposed by the school management within a period of 45 days from the date of receipt of the proposal. If such "approval" or "disapproval" is not given within 45 days then there would be a deemed approval. Therefore, there is a distinction of giving approval as well as disapproval in the provisions of the present Act. However, such distinction would not come in way for adjudicating the present issue and facts of present matter. Even assuming that the approval or disapproval is only with regard to the proportionality of the punishment and cannot go to show sympathy towards the delinquent, then also there is a fallacy in the argument submitted by Mr. Thakore, learned advocate. Mr. Thakore, learned advocate has contended that as the procedure is mere administrative, instead of remanding back the matter, this Court can look into the issue about the proportionality and decide it. In short, Mr. Thakore, learned advocate has request that this Court steps into the shoes of the Administrative Officer and grant approval as per the provisions of Page 15 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined law. Even if this Court agrees to the proposition canvassed by Mr. Thakore, learned advocate there will be a manifest injustice to the respondent. If the provisions are read carefully and more particularly sub-section (5) of the Section 40B then it can be born out that a teacher aggrieved by the order of the Administrative officer under sub-clause (ii) of Clause (a) of sub-section (1) may make an appeal to the Tribunal. Even if the Administrative Officer and in the present case respondent samiti makes an order of approval of punishment then the delinquent teacher can prefer an appeal before the Tribunal. Even if it is accepted that at the approval stage, the officer has to see the prima facie case and no re-appreciation of evidence or inquiry on merits would be permitted, the dispute raised before the Tribunal by preferring an appeal would have wider jurisdiction. The Tribunal can very well looke into the issue of approval / disapproval AS WELL AS can have a wide jurisdiction to decide whether the termination of service was wrong, unlawful or unjustified. The Tribunal can modify the punishment by re- appreciating the evidence. The unrestricted management function doctrine is not applicable to the Tribunal. Therefore, when this Court steps into the shoes of the Administrative Officer as proposed by Mr. Thakore then there would be a manifest injustice to the delinquent teacher whose right of preferring an appeal before the Page 16 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025 NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined Tribunal would become redundant. Therefore, the proposition as canvassed by Mr. Thakore, learned advocate is not acceptable. The judgment relied by Mr. Thakore, learned advocate would be different in fact, inasmuch as, in that cases, the approving authority had gone to re-appreciate the evidence. In the instant case, the approving authority, i.e., respondent samiti has neither re-appreciated the evidence nor given proper approval or disapproval. The samiti was required to give approval or disapproval as per the provisions of the Act and as par the law laid down by this Court in catena of decisions. However, that being not done, it would not be open for this Court steps into the shoes of the approving authority as per Section 40(B) which may led to taking away the legitimate right of delinquent teacher to prefer an appeal. For the reasons given hereinabove, it would not be permissible to accept the proposition as canvassed by Mr. Thakore, learned advocate.
[15] Resultantly, the impugned order dated 27.06.2007 is hereby quashed and set aside and the matter is remanded back to the respondent samiti with a direction to complete the procedure and give a reasoned order as per provisions of the Act within a period of two months from the date of receipt of this order. Page 17 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025
NEUTRAL CITATION C/SCA/19172/2007 JUDGMENT DATED: 24/01/2025 undefined [16] It is made clear that the respondent Samiti should not be influenced by any observation made by this Court in the present writ petitions. All the contentions and arguments of both the parties are kept open and the respondent Samiti should give its reason for approval or disapproval within a period of two months from the date of receipt of this order.
[17] With regard to the reasons and finding given hereinabove and due to the fact that the respondent delinquent teacher has already been superannuated, the writ petition, namely Special Civil Application No.19425 of 2007 filed by the delinquent teacher would not survive and is according dismissed. Rule discharged. [18] In view of the above discussion and observations, the writ petition being Special Civil Application No.19172 of 2007 is allowed. The order passed by the respondent Samiti dated 27.06.2007 is quashed and set aside and the matter is remanded back with a direction to pass a fresh order within a period of two months from the date of receipt of this order. Rule is made absolute.
(PRANAV TRIVEDI, J.) DHARMENDRA KUMAR Page 18 of 18 Uploaded by DHARMENDRA KUMAR(HC01071) on Fri Feb 14 2025 Downloaded on : Fri Feb 14 23:57:54 IST 2025