Gyanjivan Education Turst ... vs Vijay B Makwana Sikshan Sahayak
2021 Latest Caselaw 17806 Guj

     C/LPA/848/2021                            ORDER DATED: 26/11/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/LETTERS PATENT APPEAL NO. 848 of 2021

           In R/SPECIAL CIVIL APPLICATION NO. 14301 of 2008
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
              In R/LETTERS PATENT APPEAL NO. 848 of 2021
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 GYANJIVAN EDUCATION TURST THROUGH ITS MANAGING TRUSTEE
                          Versus
             VIJAY B MAKWANA SIKSHAN SAHAYAK
==========================================================
Appearance:
MS MAMTA R VYAS(994) for the Appellant(s) No. 1,2
for the Respondent(s) No. 2
MR SHAKTI S JADEJA(5491) for the Respondent(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE S.H.VORA
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                           Date : 26/11/2021

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE)

1. Present Letters Patent Appeal is filed against the judgment and order dated 21.11.2019 passed in Special Civil Application No.14301 of 2008. By the said order, learned Single Judge has allowed the Special Civil Application holding that the appellant herein to reinstate the respondent in service with continuity and 50% back-wages from the date of his representation till date of his reinstatement.

2. Brief facts leading to filing of present Letter Patent Appeal are :-

(i) The respondent was appointed as 'Sikshan Sayahak' in the appellant school which is an aided registered private secondary school on 10.03.2003.

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(ii) That on 13.01.2006, wife of respondent herein received severe burn injuries and was admitted to hospital. An FIR alleging offence punishable under sections 498-A, 307 of Indian Penal Code was registered against the respondent at Sola High Court Police Station, Ahmedabad. Wife of the respondent succumbed to her injuries and after 8 - 10 days thereafter, section 302 of Indian Penal Code was added in the FIR. The respondent was arrested on 14.01.2006 in pursuance to the said FIR.

(iii) That entire incident was given wide publicity in the local newspaper along with photographs of the respondent herein. Being aggrieved by these news reports and bad publicity, the School Management sought details about the case and respondent was placed under suspension vide order dated 08.02.2006.

(iv) That thereafter, Departmental Proceedings were initiated and copy of charges was served to the respondent to which he responded vide reply dated 14.06.2006.

(v) The Departmental Inquiry was completed and Inquiry report was submitted on 04.08.2006 holding that the charges against the respondent stood proved. The School Management accepted the Inquiry report and issued second show cause notice to the respondent calling upon him as to why he

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should not be dismissed from service. The respondent accordingly, filed his reply to the second show cause notice.

(vi) That thereafter, the School Management took decision to dismiss the respondent from service and accordingly sent proposal to the District Education Officer (DEO) seeking approval for such dismissal under Section 36(1)(b) of the Gujarat Secondary Act, 1974. Thereafter, the DEO vide order dated 19.10.2006 was pleased to accord approval to the proposal of the Management on the basis of which School Management passed dismissal order of the respondent vide order dated 20.10.2006.

(vii) The said order of dismissal came to be challenged by the respondent before the Tribunal by filing Application No.283 of 2007.

(viii) That thereafter, the respondent who was facing criminal trial came to be acquitted by the learned Sessions Court vide judgment and order dated 10.05.2007 in Sessions Case No.139 of 2006.

(ix) The respondent placed his acquittal order on record before the learned Tribunal. However, the learned Tribunal was please to dismiss the application of the respondent.

(x) That after acquittal order, the respondent on 23.07.2007 and 06.09.2007 made representation to

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the respondent authority to reinstate him in service since disciplinary proceedings against him were based only on criminal case registered against him.

(xi) The learned Tribunal vide order dated 24.10.2008 rejected both the applications of the respondent.

3. Aggrieved, the respondent preferred Special Civil Application No.14301 of 2008 praying for quashing and setting aside order dated 20.10.2006 passed by DEO granting approval to the decision dismissing the respondent from service. He also challenged the judgment and order dated 24.10.2008 passed by the Gujarat Secondary Education Tribunal, Ahmedabad in Application Nos.64 of 2006 and 283 of 2007 upholding the order of his dismissal.

4. The appellants herein appeared and vehemently opposed Special Civil application No.14301 of 2008. By the impugned judgment and order dated 21.11.2019, the learned Single Judge allowed the Special Civil Application and set aside the order of dismissal as well as order passed by learned Tribunal with a direction to reinstate the respondent in service with continuity of service. It was also held that respondent shall be entitled to 50% back-wages from the date he made representation to the appellant to reinstate him in service.

5. Aggrieved by the order of learned Single Judge, the appellants herein have preferred the present Letters Patent Appeal.

6. Learned advocate appearing for the appellants submitted that no infirmity was pointed out in the departmental

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proceedings by the Respondent and hence, disciplinary proceedings ought to have been upheld and as charges stood proved, the dismissal of the respondent was just and proper. It was further submitted that inquiry was based on different facts and same was not affected by the outcome of criminal trial. It was also submitted that respondent was not acquitted honorably but on technical grounds and therefore, same will not vitiate departmental proceedings and dismissal order.

7. We have given our anxious consideration to the issue in question. It is seen that Disciplinary Committee has exclusively relied on following documents for proving charges :-

1) The news item published on 16.01.2006 in Sambhav newspaper.

2) The letter dated 19.01.2006 written by the Principal of the School to the Police Inspector.

3) The F.I.R. dated 14.01.2006 filed by Shri Shanabhai Punjabhai Prajapati before the Sola Police Station.

4) Letter dated 21.01.2006 written by the Principal to the Police Inspector.

5) Letter dated 25.01.2006 written by the Police Inspector, Sola Police Station to the District Education Officer.

6) Letter dated 19.0.2006 written by the petitioner to the Principal.

8. Further no independent witness was examined in the Disciplinary proceedings. It is observed that Inquiry Committee was influenced by the news item published in the newspapers while presuming active involvement of the respondent in the

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offence and concluding that "such an act was misconduct" under the Conduct Rules, which suggests that registration of an offence will amount to unbecoming of a Teacher.

9. However, learned advocate for the appellants could not dispute that disciplinary proceedings were initiated only on the basis of FIR registered against the respondent and his arrest in connection with the same. She further could not dispute that foundation for departmental inquiry and the criminal proceedings was same i.e. involvement of the petitioner in the said offence. Therefore, once the respondent was acquitted in the criminal proceedings arising out of FIR, the appellants herein could not have refused to reinstate the respondent. Further, independently the learned Single Judge has also found that the departmental proceedings impeached on procedural fairness and were bad in law.

10. This Court is in concurrence with the reasons and findings given by the learned Single Judge. No interference is called for. The Letters Patent Appeal is dismissed. No order as to costs. Consequently, Civil Application would not survive and accordingly, it stands disposed of.

(S.H.VORA, J)

(ANIRUDDHA P. MAYEE,J) SATISH