Amrutbhai Hansrajbhai Rabadia ... vs Sanchalak/ President
2022 Latest Caselaw 8978 Guj

     C/SCA/21821/2006                             JUDGMENT DATED: 11/10/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 21821 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                   Sd/-
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1     Whether Reporters of Local Papers may be allowed                  No
      to see the judgment ?

2     To be referred to the Reporter or not ?                           No

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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               AMRUTBHAI HANSRAJBHAI RABADIA (DECEASED)
                                Versus
                   SANCHALAK/ PRESIDENT & 2 other(s)
================================================================
Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR RK MISHRA(482) for the Petitioner(s) No. 1.1
MR DG CHAUHAN(218) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1,3
================================================================

    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 11/10/2022

                              ORAL JUDGMENT

1. This petition under Article 227 of the Constitution of

India is filed against oral judgment dated 18/19.07.2006 by the

Gujarat Secondary Education Tribunal, Ahmedabad in Application

No.216 of 2004.

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2. Though the petition is styled to be petition under

Articles 226 /227 of the Constitution of India, learned Advocate for

the respondent has raised a preliminary contention that the

petition being against oral judgment of the Education Tribunal, the

same would be maintainable only under Article 227 of the

Constitution of India and therefore, examination of the impugned

oral judgment will have to be in a restricted manner.

3. Learned Advocate for the petitioner submitted that

though the order of removal from service is passed by the

management after carrying out departmental inquiry by the Inquiry

Committee constituted under the provisions of the Gujarat

Secondary Education Act, however, the petitioner had objected to

inclusion of one of the constituent members, viz. Mr.Navnit Parikh,

as according to the petitioner, the said committee member had an

axe to grind and on earlier point of time, had filed complaint with

the Police Station anticipating disturbance of law and order,

wherein he had named, amongst other persons, the petitioner as

also one of the participants.

3.1 Learned Advocate has thereafter, tried to raise a

contention that issuance of the charge sheet by the management is

not under the signature of the Principal, as according to Section 35

of the Gujarat Secondary Education Act, the Principal is the

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appointing authority and therefore, entire proceeding to be vitiated

as having been initiated by an authority not authorized to

undertake such action. Learned Advocate has thereafter tried to

submit that the petitioner was always discriminated even during

the proceedings before the Inquiry Committee and none of the

contentions raised by the petitioner were addressed by the

Committee. It is submitted that the entire Committee was, in fact,

dominated by said Mr.Navnit Parikh and therefore, the petitioner,

at the initial stage itself, had objected to him being participant in

the Committee.

4. As against this, learned Advocate for the respondent

submitted that there is nothing on record to indicate any

procedural lapse. Moreover, when the inquiry has proceeded as

per the provisions of law, powers of this Court under Article 227

would be restricted as held by the Apex Court in case of Sadhana

Lodh Vs. National Insurance Co. Ltd. & Anr., reported in

(2003) 3 SCC, 524. He drew attention of this Court to para-7 of

the said judgment.

4.1 Learned Advocate thereafter submitted that the facts of

the present case do not warrant any judicial review and when

already, the Inquiry Committee has found the petitioner guilty of

the misconduct for which he was charged, and therefore, approved

by the DEO and ultimately, the Education Tribunal has also

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examined entire inquiry proceedings and has approved by the

impugned oral judgment, there is no scope for any interference by

this Court.

4.2 Learned Advocate for the respondent lastly relied upon

decision of the Apex Court in case of Apparel Export Promotion

Council Vs. A.K.Chopra, reported in (1999) 1 SCC, 759.

5. In rejoinder, learned Advocate for the petitioner

submitted that the impugned oral judgment is required to be set

aside as no evidence was adduced before the Tribunal while

application was being conducted and no witnesses were examined

by either side and therefore, decision of the Tribunal is not based

on any evidence.

6. Having heard learned Advocates for the parties and

having perused documents on record, at the outset it appears that

the impugned oral judgment clearly records that when the consent

of both parties, entire record of the departmental proceeding was

placed on record, pursuant to which it is recorded that the parties

have chosen not to adduce any oral evidence. In that view of the

matter, contention of learned Advocate for the petitioner of the

matter being based on no evidence, is not accepted. It also

appears that though contention is raised by learned Advocate for

the petitioner about authority of Mr.Navnit Parikh for issuing

C/SCA/21821/2006 JUDGMENT DATED: 11/10/2022

charge not being appointing authority, the same does not appear to

have been raised by the petitioner at any stage prior hereto and

therefore, the Court does not deem it fit to address at this stage.

7. The issue before the Court is the order of removal from

service of the petitioner for the misconduct alleged against him for

which show cause notice dated 03.11.2003 was addressed to the

petitioner, to which the petitioner having filed his reply and the

authority not being satisfied, initiated an inquiry by appointing

Inquiry Committee consisting of three members. The order in that

regard was passed on 21.02.2004, which was placed before the

Tribunal at Exh.11. One of the constituent members of the

Committee was one Mr.Navnit Parikh, against whom the petitioner

had raised objection on the ground that said Mr.Navnit Parikh had

an axe to grind and earlier had filed complaint with the local Police

Station, wherein he raised apprehension of adverse law and order

situation in some religious ceremony and had also given name of

the petitioner amongst other persons who were member of such

mob. However, the Court finds that in the detailed judgment of the

Tribunal, the Tribunal has considered the very aspect and after

considering the fact that written complaint filed by Mr.Navnit

Parikh was with regard to separate proceedings, not connected in

any manner with the charges against the petitioner. Moreover,

main allegation was against another person. However,

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subsequently it was reported that no untoward incident had taken

place. By considering all these aspects, contention of the petitioner

was turned down by the Tribunal by holding that participation of

Mr.Navnit Parikh in the Inquiry Committee would not vituate

proceedings against the petitioner.

8. The Court has not found anything on record contrary to

what has been held by the Tribunal either in the pleadings or

during the course of submission of learned Advocate for the

petitioner.

9. The Inquiry Committee had issued charge sheet

wherein 6 charges were cited against the petitioner and according

to record, the petitioner was given ample opportunity of hearing,

wherein written submissions were also filed by the petitioner which

were placed on record (page No.63).

10. The Inquiry Committee had proceeded in accordance

with law and the Committee submitted its report, wherein findings

were given as under:-

"1. The allegations made against Mr. Rabadiya such as- misconduct, disobedience, moral turpitude (conduct unbefitting) are completely proved and thus he has violated the rules of conduct, service and orders related to education, issued from time to time by the Government which is a serious type

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of misconduct.

2. Mr. Rabadiya has hidden his incompetency and pressurized the students to come to his tuition class and made the students do the lesson work like drudgery and thus harassed the students mentally, physically and financially. Hence, he has damaged the reputation and progress of the school/ organisation.

3. Mr.Gagiya Naran, Hinsu Amit, Kapuriya Atul and 34 other students studying in standard-9 have collectively as well as individually given statements. Moreover, it is proved on the basis of the deposition given before the inquiry committee. Such conduct of Mr. Rabadiya is a deliberate violation of the circulars related to education, issued from time to time. Moreover, his unbecoming behavior constitutes serious misconduct and Private Tuition is an offence under set of Rules-75.1 to 75.6 and corporal punishment is an offence under Rule-79 of Chapter 15, Discipline and Conduct Rules of the Grant in Aid Code, 1964.

Pursuant to Mr.Rabadia's misconduct, damage has been caused to the reputation and progress of the Institute on account of the article published in local newspapers like "Nobat" dated 19-09-2003 and 'Jaihind' dated 21-09-2003. Due to such misconduct and irresponsible act of Mr.Rabadia, the number of students in the school has

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decreased. Mr.Rabadia harasses and tortures the students due to which it has created a big and wrong impression on the students. Because of this, students and parents as well as the reputation and progress of the school have suffered a lot.

Thus, looking as a whole, the said allegations No.1 to 6 stated in the charge-sheet have been completely proved by the Governing Body, such is the opinion of this Inquiry Committee. The delinquent is completely guilty. Therefore, it is recommended to carry out further appropriate action."

11. From the record, it appears that the petitioner was also

served with the second show cause notice on 07.06.2004 bringing

to his notice findings of the inquiry report and the petitioner had

submitted his detailed written reply on 07.06.2004. It appears that

pursuant to such detailed reply, decision was taken for removal of

the petitioner from service vide order 15.07.2004. The Court also

finds that prior to such order being passed, proposal was moved

before the DEO for necessary approval under Section 36(2) of the

Gujarat Secondary Education Act and by communication dated

14.07.2004, approval for proposed order or removal from service of

the petitioner was given by the DEO of Jamnagar District.

12. In case of Sadhana Lodh (supra), in para-7, the Apex

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Court has held as under:-

"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Art. 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Art. 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision."

13. In case of Apparel Export Promotion Council (supra), in

paras-16 and 17, the Apex Court has held as under:-

"17. The High Court appears to have over-looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the

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findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned single Judge and the Division Bench of the High Court, it appears, ignored the well- settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Haltom in Chief

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Constable of the North Wales Police V/s. Evans (1982) 3 All ER 141, observed:

"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court."

17. Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of Judicial Review must remain conscious of the fact that if the decision has been arrived at by the Administrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute, its Judgement for that of the Administrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority."

14. For the foregoing reasons, the Court does not find any

case for interfering with the decision of the Tribunal. The petition,

therefore, deserves to be and is hereby dismissed. Rule is

discharged. No order as to costs.

Sd/-

(A.Y. KOGJE, J) SHITOLE