Gujarat High Court
Sheth Sarabhai Maganbhai Trustfund vs Administrative Officer-Nagar ... on 24 January, 2025
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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/-
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Approved for Reporting Yes No
No
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SHETH SARABHAI MAGANBHAI TRUSTFUND
Versus
ADMINISTRATIVE OFFICER-NAGAR PRATHAMIK SHIKSHAN SAMITI & ANR.
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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
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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
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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
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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
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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
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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.
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[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
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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
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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
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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
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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
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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
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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
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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.
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(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."
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[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
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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
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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.
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[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
