Jayshreeben Mohanlal Shiyalwala vs Shree Mithapur Nutan Bal Shikshan ...
2022 Latest Caselaw 6570 Guj

      C/SCA/9015/2019                           JUDGMENT DATED: 22/07/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO.9015 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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 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 or any order made thereunder ?

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                JAYSHREEBEN MOHANLAL SHIYALWALA
                              Versus
             SHREE MITHAPUR NUTAN BAL SHIKSHAN SANGH
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Appearance:
MR RV DESHMUKH(300) for the Petitioner(s) No. 1
MR K.M. PATEL, SR COUNSEL assisted by                           MR.VARUN
K.PATEL(3802) for the Respondent(s) No. 1,2
MS KHYATI P HATHI(346) for the Respondent(s) No. 3
NOTICE NOT RECD BACK for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 4
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                            Date : 22/07/2022

                            ORAL JUDGMENT

1. Rule returnable forthwith. Learned advocates waive

C/SCA/9015/2019 JUDGMENT DATED: 22/07/2022

service of notice of Rule for the respective respondents.

2. Heard Mr. R.V. Deshmukh, learned counsel for the

petitioner, Mr. K.M. Patel, learned Senior Counsel

assisted by Mr. V.K. Patel, learned advocate for

respondent Nos.1 and 2 and Ms. K.P. Hathi, learned

counsel for District Primary Education Officer, Jamnagar.

Though served, nobody appears for District Primary

Education Officer, Devbhumi Dwarka.

3. The challenge in this petition under Article 226 of the

Constitution of India is to the judgment and order dated

24.10.2018 passed by the Gujarat Educational Institute

Services Tribunal, Ahmedabad in Application No.68 of

2018.

4. The facts in brief would indicate that the petitioner was

working with the respondent No.1 - Shree Mithapur

Nutan Bal Shikshan Sangh @ Mithapur, District Jamnagar

and the school run by respondent No.2. She was charge

sheeted for misconduct and after departmental

C/SCA/9015/2019 JUDGMENT DATED: 22/07/2022

proceedings, the management sought approval from

District Primary Education Officer, Jamnagar to impose

punishment of reversion. The District Primary Education

Officer by an order dated 13.2.2006 granted approval to

impose the punishment of reversion. Post the approval

so granted, the management passed an order dated

23.2.2006 issuing order of penalty reverting the

petitioner. Those orders became a subject-matter of

challenge before the Gujarat Primary Education Tribunal

in Appeal No.2 of 2006. The Tribunal set aside the

approval. As a result of which, management filed SCA

No.10317 of 2012 challenging the order of the Tribunal.

This Court by an order of 4.5.2017 revived the orders of

the District Primary Education Officer, Jamnagar,

approval dated 13.2.2006 and so also the punishment

order dated 23.2.2006 which too was revived and

confirmed. The petitioner challenged the same in appeal

before the Division Bench. The appeal was not

entertained however, subject certain modification, the

appeal was disposed of. Pursuant to the order of the

Division Bench, the petitioner approached the Tribunal

C/SCA/9015/2019 JUDGMENT DATED: 22/07/2022

by filing Application No.68 of 2018, by which the

impugned order, the Tribunal refused to entertain on the

ground that once the High Court in LPA No.1078 of 2017

had confirmed the findings of the learned Single Judge, it

was not open for the Tribunal to reopen the entire issue

and examine the order of punishment.

5. Mr. Deshmukh, learned counsel for the petitioner drawing

the attention of the Court to paragraph No.8 of order of

the Division Bench dated 21.8.2018 would submit that

while the Division Bench left it open for the Tribunal to

reopen the issue of examining the order of penalty on

merits, by observing that the Division Bench was not

going into the merits of the inquiry proceedings namely

on the question of whether there was violation of

principles of natural justice and since the final directions

of the learned Single Judge were modified and the order

of penalty was only revived by deleting the words "and

confirmed", the Tribunal ought to have heard the

application on merits.

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6. Mr. K. M. Patel, learned Senior Counsel assisted by Mr. V.

K. Patel, learned advocate for the respondent Nos.1 and

2 would support the order of the Tribunal.

6.1. Mr. Patel would invite the attention of the

Court to the observations made by the Coordinate Bench

of this Court when it allowed the petition of the

management vide its order dated 4.5.2017. He would

submit that though the jurisdiction of Tribunal may have

been different in deciding the order of approval and that

of penalty, the High Court specifically and positively held

that there was no breach of violation of principles of

natural justice which could be agitated by the present

petitioner and the finding Tribunal within that regard was

set aside. In other words, the order of penalty dated

23.2.2006 stood confirmed.

6.2. According to Mr. Patel, even when the

observations of the Division Bench in paragraph No.8 are

read, the submissions of Mr. Deshmukh cannot be read in

isolation. The Division Bench had in fact categorically

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observed that the Court was in complete agreement with

the findings recorded by the learned Single Judge and

finds no reason to take a different view. In other words,

the Division Bench had affirmed the finding of the

learned Single Judge on the legality of the order of

penalty that the Tribunal was right and could not have

entered into the merits of the order of penalty when the

High Court had positively confirmed the same.

7. For the benefit of this order, it will be in the interest to

reproduce paragraph No.6 of the order dated 4.5.2017 of

the learned Single Judge of this Court in Special Civil

Application No.10317 of 2012 which reads as under:

"6. The finding of the Tribunal is mainly to the

effect that there was violation of principles of

natural justice. For this purpose, denial to

further cross examine Mr. B.D. Tank - the

Management Witness is specifically referred.

This Court finds that the Tribunal fell in error

while arriving at the said finding, since it was

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not only inconsistent with, but contrary to

record. This Court has taken into

consideration the inquiry proceedings, more

particularly the cross examination of the said

witness (Mr. B.D. Tank) on behalf of the

respondent No.1. It is a fact on record that

few hundred questions were put to the said

witness on behalf of the respondent No.1.

Most of those questions were irrelevant for

the inquiry in question, some of them were

more to humiliate the said witness, who was a

very senior functionary of the School

Management. The record, in totality, indicates

that the respondent No.1 was less interested

for her defence, more interested to create

record that she is not given sufficient

opportunity. The time gap between different

hearings, the interim order(s) of the Tribunal,

the distance of the places where from the

witnesses were to come and the place of

hearing, the stand which the respondent No.1

C/SCA/9015/2019 JUDGMENT DATED: 22/07/2022

and her representative had taken on each

hearing - from all this, an unmistakable

picture emerges that there was no breach of

principles of natural justice which could be

agitated by the respondent No.1. The finding

of the Tribunal in that regard is thus

erroneous and therefore unsustainable. The

impugned order therefore needs to be set

aside."

8. The Division Bench in Letters Patent Appeal No.1078 of

2017 dated 21.8.2018 held in paragraph Nos.8 and 9 as

under, which read as under:

"(8) From the facts as emerging from the

record, and a perusal of the order passed

by the District Education Officer, the

court is of the view that there is no

infirmity in the same. The court

refrains from making any

observations on the merits of the

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inquiry proceedings inasmuch as any

comment whether or not the principles of

natural justice were complied or not

would be likely to influence the Tribunal

in the matter that may be filed by the

appellant challenging the penal

order. This court is in complete

agreement with the findings recorded by

the learned Single Judge and finds no

reason to take a different view.

However, the court is of the view that

while the learned Single Judge was

justified in observing that the order

dated 13.02.2006 passed by the

District Education Officer stands

revived and confirmed and the

consequential punishment order passed

by the petitioner school management

dated 23.02.2006 stands revived, the

learned Single Judge was not

justified in observing that the same

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stands confirmed inasmuch as the same

would seriously prejudice the rights of

the appellant to challenge the penal

order dated 23.02.2006 under section

40B of the Act.

(9) In view of the above, the court does

not find any reason to interfere with

the the impugned judgment and order

passed by the learned Single Judge. The

letters patent appeal is accordingly

dismissed. However, the observations

made by the learned Single Judge in

Paragraph No.8.3 of the impugned

judgment and order, whereby it is

observed that the consequential

punishment order passed by the

petitioner school management dated

23.02.2006 stands revived and confirmed

is hereby modified by deleting the words

"and confirmed"."

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9. Technically therefore, the Tribunal was not entirely wrong

in ousting the petitioner's application that it could not

decide the same on merits. However, in light of the final

direction which revived the order of penalty dated

23.2.2006 and the words "and confirmed" were deleted,

the Tribunal did have some scope of adjudicating the

veracity of the order of penalty dated 23.2.2006 on

merits subject to the observations of this Court in

paragraph No.6 of the order of 04.05.2017 passed in

Special Civil Application No.10317 of 2012 by the learned

Single Judge read in light of paragraph No.8 of the

Letters Patent Appeal No.1078 of 2017 of the Division

Bench.

10. Accordingly, the order dated 24.10.2018 passed by the

Tribunal is quashed and set aside. The proceedings are

remanded to the Tribunal to decide the application

afresh on merits, on the limited ground available to the

applicant / petitioner in light of the observations made

hereinabove.

C/SCA/9015/2019 JUDGMENT DATED: 22/07/2022

11. The petition is partly allowed. Rule is made absolute to

that extent. Direct Service is permitted. No order as to

costs.

(BIREN VAISHNAV, J) VATSAL S. KOTECHA