Gujarat High Court
Shri Palitana Education Society ... vs Ms. Harshaben Jayantilal Bhal on 10 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12403 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
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SHRI PALITANA EDUCATION SOCIETY (THROUGH ITS SECRETARY)
& ANR.
Versus
MS. HARSHABEN JAYANTILAL BHAL & ANR.
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Appearance:
MR DG SHUKLA(1998) for the Petitioner(s) No. 1,2
MR. KULDEEP D VAIDYA(7045) for the Respondent(s) No. 1
MS. FORAM SHAH, AGP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 10/11/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Kuldeep D.
Vaidya as also learned AGP Ms. Forum Shah, waive service of
notice of Rule for and on behalf of the respective respondents.
2. With the consent of the learned advocates for the respective
parties, the present writ petition is taken up for hearing.
3. Heard learned advocate Mr. D.G.Shukla with learned
advocate Ms. Meshwa Bhatt for the petitioners, learned
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advocate Mr. Kuldeep D. Vaidya for respondent No.1 and
learned Asst. Government Pleader Ms. Foram Shah for
respondent No.2, at length.
4. The present writ petition is filed under Articles 226 and 227
of the Constitution of India, seeking following reliefs:-
"9. (A) Your Lordships may be pleased to issue a writ of
certiorari or a writ in the nature of certiorari or any other
writ or direction quashing and setting aside the impugned
interim Order dated 05.03.2020 below Application Ex.11
in Application No.2041 of 2014 passed by the learned
Gujarat Educational Institution Services Tribunal,
Ahmedabad at Annexure "A" to this petition as being
illegal, without jurisdiction and without authority in law.
(B) Pending hearing and final disposal of the present
petition, Your Lordship may be pleased to grant the
interim relief staying the implementation, execution and
operation of the impugned interim Order dated
05.03.2020 below Application Ex.11 in Application No.
2041 of 2014 passed by the learned Gujarat Educational
Institution Services Tribunal, Ahmedabad at Annexure
"A" to this petition;
(C) Pending hearing and final disposal of the
present petition, Your Lordship may be further pleased to
grant the interim relief staying the proceedings of
Application No. 2041 of 2014 pending before the learned
Gujarat Educational Institution Services Tribunal,
Ahmedabad;
(D) An ex-parte ad interim relief in terms of paragraph
9(B) & above may kindly be granted.
(E) Any other and further reliefs as this Hon'ble Court
may deem fit and proper in the circumstances of the case.
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5. SUBMISSIONS ON BEHALF OF THE PETITIONERS
5.1. Learned advocate Mr. D.G.Shukla with Ms. Meshwa Bhatt would
state that respondent No.1 was working as Principal with petitioner
- School and she was dismissed from service without holding any
inquiry, thereby, she chooses to challenge such decision of her
dismissal before Gujarat Educational Institution Services Tribunal,
Ahmedabad (for short 'the Tribunal'), being Application No.2041 of
2014, wherein impugned application filed by the petitioners below
Exhibit-11, whereby requested the Tribunal to allow petitioners to
lead an evidence pursuant to Notice dated 17.06.2013 and
03.07.2023 issued against the petitioners.
5.2. Learned advocate Mr. Shukla would submit that despite the
pronouncement by the Hon'ble Apex Court, in number of its
decisions, one of it cited before the Tribunal, the impugned
application filed below Exhibit-11 by the petitioners herein has
been erroneously rejected.
5.3. Learned advocate Mr. Shukla would respectfully submit that it is
settled legal position of law that in a case where decision of
petitioners dismissing respondent No.1 found to be in violation of
principles of natural justice, in that eventuality, petitioners require
to be given an opportunity to lead an evidence to justify their
decision of dismissal.
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5.4. Learned advocate Mr. Shukla would heavily rely upon the
decision of the Hon'ble Apex Court in the case of Bharat Forge
Company Limited Vs. A.B.Zodge reported in 1996 (4) SCC 374,
whereby would contend that in a case of no disciplinary inquiry
undertaken by employer against delinquent before imposing
penalty and same is under challenge before Tribual, in such a case,
if employer requests Tribunal to grant such opportunity to
employer to lead evidence, thereby can substantiate its decision,
same is required to be granted by the Tribunal.
5.5. Learned advocate Mr. Shukla would respectfully submit that as
Tribunal has completely overlooked the aspect of observing
principles of natural justice, vis-a-vis the request made by the
petitioners and erroneously observed that decision of Hon'ble Apex
Court in the case of Bharat Forge Company Limited (supra)
would not be applicable to the proceedings instituted before the
Tribunal as there is no provision under the Gujarat Secondary and
Higher Secondary Education Act, 1972 (for short 'the Act, 1972'),
granting such liberty in favour of employer, thus, committed
serious error in law.
5.6. Learned advocate Mr. Shukla would submit that observations
made by the Hon'ble Apex Court and ratio of its decision is requires
to be applied/binding to every Court / Tribunal. It is submitted
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that even there is no provision under the Industrial Disputes Act,
1947, which contemplates such opportunity to be given to the
employer concerned in a case where decision is found to be against
the principles of natural justice, then also, the Hon'ble Apex Court
in the aforesaid decision, on which the reliance placed, granted
such opportunity to the employer concern.
5.7. Thus, making the aforesaid submissions, learned advocate Mr.
Shukla, would request this Court that impugned decision of
Tribunal may be quashed and set aside and liberty may be granted
to the petitioners to lead their evidence in a case where Tribunal
comes to the conclusion that their decision of dismissing
respondent No.1 is in violation of principles of natural justice.
6. SUBMISSIONS ON BEHALF OF RESPONDENT NO.1
6.1. Per contra, learned advocate Mr. Kuldeep Vaidya for respondent
No.1 would vehemently object the present writ petition, contending
inter alia, that petitioners, knowing fully well, have passed an order
of dismissal without observing the provisions of 'the Act, 1972' and
in that event, at this stage, no such liberty be given to the
petitioners. It is submitted that there is no error, much less any
error of law, committed by the Tribunal while rejecting the
impugned application filed by the petitioners.
6.2. Learned advocate Mr. Vaidya would further submit that there is
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no express provisions under 'the Act, 1972' to grant any such
liberty in favour of the petitioners being employer, in a case where
impugned decision found to be in violation of principles of natural
justice, thereby, there is no error committed by the Tribunal in
rejecting the prayer made by the petitioners. It is submitted that at
given point of time, District Education Officer, in its order dated
13.02.2014, categorically observed that the petitioners require to
follow the procedure as per 'the Act, 1972' when imposed major
penalty upon respondent No.1. It is further submitted that when
petitioners have not taken this into account and without holding
any inquiry, dismissed the respondent No.1, to fill the lacuna in
their decision, request made by the petitioners by way of impugned
application, which cannot be granted and should not be
entertained by this Court.
6.3. Learned advocate Mr. Vaidya, would respectfully submit that as
per prayer made in para-2 of the impugned application, whereby
petitioners want to contemplate fresh inquiry against respondent
No.1 in pursuance of their notice dated 17.06.2013 and
03.07.2013, which cannot be permitted, even if, the decision of the
Hon'ble Apex Court may be applicable in the facts of the present
case, as Hon'ble Apex Court even not granted such liberty in favour
of the employer.
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6.4. Lastly, learned advocate Mr. Vaidya would humbly request that if
ultimately, this Court comes to the conclusion that as per the cited
decision of the Hon'ble Apex Court, petitioners require to give such
opportunity to lead their evidence, then considering the fact that
the original application filed by respondent No.1 before Tribunal is
of the year 2014 and as such, respondent No.1 was dismissed from
service, suitable direction be issued to the Tribunal to conclude the
trial of such application and decide it as early as possible.
6.5. Making the aforesaid submissions, learned advocate Mr. Vaidya
would request this Court to reject this petition.
7. SUBMISSIONS ON BEHALF OF RESPONDENT NO.2.
7.1. Learned AGP Ms. Forum Shah appearing for respondent No.2
would submit that, as such appropriate direction is already
issued by the District Education Officer to petitioners before
inflicting an order of punishment and as such, when matter
pending writ large before the Tribunal, this Court may pass
appropriate order in the interest of justice.
8. ANALYSIS
8.1. Having heard the learned advocates appearing for the respective
parties, it is remained undisputed that without holding any
departmental inquiry against respondent No.1, petitioners have
terminated her services by imposing punishment of dismissal,
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which is subject matter of application No.2041 of 2014 instituted
by respondent No.1 against the petitioners and respondent No.2,
which is still pending before the Tribunal.
8.2. In this backdrop of facts and circumstances of the case,
petitioners being employer moved an application below Exhibit-11
before the Tribunal contending that if Tribunal comes to the
conclusion that order of dismissal suffers from violation of
principles of natural justice, an opportunity may be granted to
petitioners to initiate inquiry against respondent No.1.
8.3. It is true that at given point of time, respondent No.2 herein
appears to have passed an order dated 13.02.2014, whereby
directed the petitioners that before inflicting any major penalty
upon respondent No.1, petitioners do observe the provision of the
Act, 1972. Whether order of dismissal passed by the petitioners is
in violation of principles of natural justice or in contravention of
any of the provisions of 'the Act, 1972', is yet to be decided by the
Tribunal. So, at this stage, this Court would not like to make any
comment on the nature of the order of dismissal impugned before
the Tribunal.
8.4. At the same time, in a case where decision of terminating the
services of respondent No.1 in form of dismissal, would ultimately
found to be in violation of principles of natural justice and / or
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contrary to the provisions of 'the Act, 1972' by the Tribunal, in
that eventuality, if employer wants to avail an opportunity to lead
an appropriate evidence before the Tribunal concerned, such
opportunity, if sought for, could not have been denied by the
Tribunal as employer wishes to make the order of dismissal good
on the strength of evidence which may be led by it.
9. As such, issue germane in the matter, according to me, squarely
covered by the decision of the Hon'ble Apex Court in the case of
Bharat Forge Company Limited (supra), wherein after
discussing the previous case law on the issue, Hon'ble Apex
Court held thus:
"7. A domestic enquiry may be vitiated either for non-
compliance of rules of natural justice or for perversity.
Disciplinary action taken on the basis of a vitiated
enquiry does not stand on a better footing than a
disciplinary action with no enquiry. The right of the
employer to adduce evidence in both the situations is
well-recognised. In this connection, reference may be
made to the decisions of this Court in Workmen of
Motipur Sugar Factory (P) Ltd. Vs. Motipur Sugar
Factory (P) Ltd. (1965 (II) LLJ 162 (SC>). State Bank of
India Vs. R.K.Jain (1971 (III) LLJ 599 (SC>). Delhi
Cloth General Mill Co. Ltd. Vs. Ludh Budh Singh (1972
(1) LLJ 180 (SC>) and Firestone Tyre Co.s Case (supra).
The stage at which the employer should ask for
permission to c additional evidence to justify the
disciplinary action on merits was indicated by this Court
in Delhi Cloth and General Mill's case (supra). In
Sankar Chakrabarty's case (supra), the contention that in
every case of disciplinary action coming before the
Tribunal, the Tribunal as a matter of law must frame
preliminary issue and proceed to see the validity or
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otherwise of the enquiry and then serve a fresh notice on
the employe- by calling him to adduce further evidence to
sustain the charges, if the employer chooses to do so, by
relying on the decision of this Court in the case of Cooper
Engineering Ltd. (1975 (2) LLJ 379 (SC>), has not been
accepted. The view expressed in Delhi Cloth Mill's case
(supra) that before the proceedings are closed, an
opportunity to adduce evidence would be given if a
suitable request for such opportunity is made by the
employer to the Tribunal, has been reiterated in Sankar
Chakrabarty's case after observing that on the question
as to the stage as to when leave to adduce further
evidence is to be sought for, the decision of this Court in
Cooper Engineering Ltd. has not overruled the decision
of this Court in Delhi Cloth Mill's case. There is no
dispute in the present case that before the closure of the
proceedings before the Tribunal, payer was made by the
employer to lead evidence in support of the impugned
order of dismissal. Hence, denial of the opportunity to the
employer to lead evidence before the Tribunal in support
of the order of dismissal cannot be justified."
(emphasis supplied)
9.1. The bare reading of aforesaid would clearly indicate that in
a case where departmental action taken on the basis of a
vitiated inquiry and/or rule of natural justice would not
follow, in both the situations, it is well recognized that right
of employer to adduce evidence can be granted, if sought for.
10. The Tribunal appears to have not properly appreciated the
ratio of the aforesaid decision of the Hon'ble Apex Court,
inasmuch as, erroneously observed that decision of Hon'ble
Apex Court having so passed under Labour Laws, not
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applicable to the facts of the present case as nothing
germane from the provisions of 'the Act 1972', which entitled
employer to seek for such opportunity.
11. According to my view, the observations and reasons, so
assigned by the Tribunal while rejecting the impugned
application, not only erroneous but perverse rather contrary
to settled legal position of law, require to be set at naught by
this Court. The ratio of the aforesaid decision of Hon'ble
Apex Court and such other decisions would be applicable in
all disciplinary action taken by employer against delinquent-
employee be it governed by Industrial Dispute Act, 1947 or
the Act, 1972 or like one. Whenever, any Tribunal found the
disciplinary action of employer suffers from the flaw as
noticed in the aforesaid decision, if employer sought for an
opportunity to lead its evidence, the Tribunal require to
grant such opportunity.
12. At the same time, there is some substance in the argument
so canvassed by Mr. Vaidya, learned advocate for
respondent No.1-dismissed employee, that under pretext of
availing such opportunity, petitioners cannot be permitted to
initiate fresh departmental inquiry against her, as requested
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in impugned application.
13. As can be seen and held by Hon'ble Apex Court that what is
to be granted to the petitioners, is an opportunity to lead an
appropriate evidence to justify their decision, thereby
dismissed the services of respondent No.1, and not to permit
the petitioner to hold a departmental inquiry, that too,
before the Tribunal.
14. At this stage, learned advocate Mr. Shukla, under the
instructions of his client, would not join the issue in this
regard and request this Court that though before the
Tribunal in an impugned application request made for
departmental inquiry to be conducted by the petitioners,
petitioners may be permitted to lead only evidence before the
Tribunal, to substantiate penalty of dismissal inflicted upon
respondent No.1.
15. CONCLUSION
15.1. Having considered the peculiar facts and circumstances of
the present case and considering the ratio laid down by the
Hon'ble Apex Court in the case of Bharat Forge Company
Limited (supra), so also in view of forgoing reasons, the
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impugned order requires to be quashed and set aside which
is hereby quashed and set aside.
15.2. Consequently, impugned application filed below Exhibit-
11 in application No.2041 of 2014 pending before the
Tribunal is hereby partly allowed to the extent that in a case
where Tribunal comes to the conclusion that order of
dismissal impugned in the aforesaid application is vitiated
and suffers from violation of principles of natural justice and
/ or passed contrary to provisions of 'the Act, 1972', in that
eventuality, petitioners herein are permitted to lead
appropriate evidence in accordance with law to justify its
order of dismissal.
15.3. It goes without saying that in such an event, respondent
No.1 is permitted to cross examine the witness of
petitioners, if any and also can lead her appropriate evidence
to rebut the evidence of petitioners.
16. Before parting it, it is observed that the aforesaid application
preferred by respondent No.1 in the year 2014, who faced
the order of dismissal, considering such facts and
circumstances of the case, the Tribunal is hereby directed to
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adjudicate the entire process of deciding the aforesaid
application on or before 31 st December, 2026, subject to
respondent No.1 cooperates before the Tribunal.
17. In view of the aforesaid conclusion, the present writ petition
is partly allowed to the aforesaid extent. Rule made absolute.
No costs. Direct Service permitted.
(MAULIK J.SHELAT,J)
Lalji Desai
