[Cites 6, Cited by 0]
Gujarat High Court
The Trustee, Ahmedabad Jesuits Schools ... vs Biju Jose Vadaken on 20 March, 2026
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Reserved On : 05/03/2026
Pronounced On : 20/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22226 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 18515 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 18515 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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Approved for Reporting Yes No
✓
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THE TRUSTEE, AHMEDABAD JESUITS SCHOOLS SOCIETY & ANR.
Versus
BIJU JOSE VADAKEN & ORS.
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Appearance:
MR SUDHIR NANAVATI, SENIOR COUNSEL for NANAVATI &
NANAVATI(1933) for the Petitioner(s) No. 1
MR SANDIP H MUNJYASARA(10781) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4
MS FORUM BIMAL SUKHADWALA, AGP for the Respondent - State
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CORAM:HONOURABLE MR. JUSTICE MAULIK J. SHELAT
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CAV JUDGMENT
1. The petitioners of both these petitions, seek to challenge the
very same order dated 10.05.2019 passed by the Gujarat
Educational Institutions Services Tribunal at Ahmedabad
(hereinafter referred to as "Tribunal") in Application No. 146
of 2016 (Old Application No. 5 of 2014). In view of the
aforesaid, both these petitions are heard together and decided
by way of this common judgment.
2. The petition of Special Civil Application No. 22226 of 2019 is
filed on behalf of the Ahmedabad Jesuit School Society
(hereinafter referred to as "School") and Special Civil
Application No. 18515 of 2019 is filed by an Assistant Teacher
(hereinafter referred to as "Teacher"), whose service came to be
terminated by the School.
3. Heard Mr. Sudhir Nanavati, learned Senior Advocate
appearing on behalf of Nanavati & Nanavati for the School,
Mr. Sandip H. Munjyasara, learned Advocate for the Teacher
and Ms. Forum Bimal Sukhadwala, learned Assistant
Government Pleader for the respondent Nos.2 to 4.
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4. With consent of learned Advocates for the respective parties,
the matter is taken up for hearing.
5. THE SHORT FACTS OF THE CASE APPEAR TO BE
THAT:
5.1. The Teacher was appointed as the 'Shikshan Sahayak' in the
Higher Secondary Section of the school vide the appointment
letter dated 13.02.2006. The appointment letter was signed by
Father M.G. Raj jointly with the Principal of the School.
5.2. The Teacher, while in service, was served with a show-cause
notice dated 01.04.2013 under Section 36(1) of the Gujarat
Secondary Education Act, 1972 calling upon him to show cause
why he should not be dismissed as a 'Teacher' on the following
charges:
"1 That you had sent an objectionable anonymous shall mail in
the name of some exteacher against the school, principal and
Vice Principal in September 2011. That the Institution filed a
criminal complaint with the concerned police station, wherein
after investigation you were found guilty by the police
authorities. That the Institution did not pursue the complaint
against you on a sympathetic consideration on your tendering
an apology on 15.10.2011, to the Institution.
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2 That a student of Class XII A student gave a written complaint
on 17.08.2012, stating that you were instigating students against
the school. That it was also reported in writing by a student on
27.08.2012, that when the existence of such letter / complaint
came to your knowledge, you forced the student to change his
version and state that the student was not the author of such a
letter / complaint.
3 That your objectionable actions have been reported by the
students to their parents and hence, one parent has given a
written complaint against you on 01.10.2012, complaining that
you were causing mental harassment to their ward.
4 That the staff members of the Institution had made written
complaints about you on 15.07.2011, 13.09.2012, 04.12.2012,
24.12.2012 and 03.01.2013. That you had also misbehaved with
our supervisor Mrs. Laxi Iyer in the open forum on 22.12.2012.
5 That few days later i.e. 03.01.2013, it was reported that you
fought with Mr. Ravi Pillai in the staff room, threatened him and
insulted him.
6 That in yet another incident, it was observed that you were
forcing students to give a feed back during the classroom study
time, which was not required and was sheer waster of time. That
such an action on your part indirectly involves children into
unwarranted person score setting tactics and is extremely
unbecoming of a teacher.
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7 That the Institution has noticed that despite numerous
opportunities given to you to improve your conduct towards the
school, its staff and its students, you have continued to
misbehave and cause unnecessary hardship in the smooth
functioning of Institution, which in turn is likely to malign the
reputation of the Institution.
8 That were earlier also issued a showcause notice dated
21.01.2013, in respect of the incident of your asking for
feedback from the students during study hours. That you have
given a response to the said notice on 23.01.2013, which seems
to be a lame excuse and has not been found satisfactory by the
Institution."
5.3. The School found the reply to the show-cause notice not
convincing and accordingly decided to initiate a regular
departmental inquiry. The Inquiry Officer, on the conclusion of
the inquiry, held the charges to be established. Some of the
findings recorded by the Inquiry Officer are as under:
"13. On a proper appreciation of depositions of all the witnesses
and the documents produced by the management and more
particularly, considering the depositions of the Principal of the
School, Ms. Laxmi Iyer, Ms. Preetha Pillai, Ms. Nandini
Majmudar, Mr. Ravi Pillai and Mr. Ashwin Mehta, it is proved
beyond any reasonable doubt that the delinquent employee is
guilty of the charges levelled against him.
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14. That school management has also examined other
independent witnesses like the parents of the school. One
parent Mr. Shailesh Maheshwari has given a statement on
22.10.2013 wherein, he has alleged that the delinquent
employee is favouring particular group of the students in the
practical examination. In the same line other witness like Dr. Raj
shah has given the similar deposition. When the parents of the
students have given statements that the delinquent employee, I
have no reason to disbelieve their statement and more
particularly when they are not cross examined by the delinquent
employee.
15. The statements of all the witnesses were given to the
delinquent employee. The delinquent employee has been asked
to cross examine all the witnesses which he has refused to do
so. When there is nothing contrary to the statement given by the
witnesses and when the delinquent employee has also not given
his defence statement, I am left with no other alternative but to
accept the deposition given by all the witnesses. There is
enough documentary evidences which prove that the delinquent
employee is guilty of the charges levelled against him. I am not
resisting myself from referring to the email produced by the
witnesses wherein the delinquent employee has made serious
charges against the Principal of the school and others. Not only
that but the delinquent employee has also admitted that the
email dated 15.9.2011 is sent by him and for that he has given a
written apology on 15.10.2011. The copy of email dated
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15.9.2011 and a written apology dated 15.10.2011 if read
together, it is proved beyond any reasonable doubt that the
behavior of the delinquent employee is not befitting of a teacher
of higher secondary school.
16. On the basis of the statements of the parents and also the
statements of the students of the school, I hold that the
delinquent employee is guilty of the charges levelled against him
and that the delinquent employee demonstrates a threat to the
students. I state that the parents and the students have no
reason to give a false statement against the delinquent
employee. Even the delinquent employee has failed to examine
these witnesses. These are independent witnesses and when
there is no contradictions in their statements, I have to accept
the words of the parents and reach the conclusion that the
delinquent employee is guilty of the charges. Similarly on the
basis of all the witnesses that include even the statement of the
parents, I hold that the delinquent employee has committed a
breach of condition No.5(8) of Schedule - 2 of Regulation 27(A)
of Gujarat Secondary Education Regulation, 1974.
17. On the bare perusal of the statement by lady supervisor, Ms.
Laxmi Iyer, Mr. Ravi Pillai and the statement of the Principal of
the school, I have reached the conclusion that the delinquent
employee is guilty of the charges levelled against him and that
the delinquent employee has misbehaved with the lady
supervisor Ms. Laxmi Yer and Mr. Ravi Pillai.
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18. From the above, I hold that the management has
successfully proved that the delinquent employee is guilty of the
charges levelled against him and hence, I hold the delinquent
employee guilty of all the charges levelled again him."
5.4. The Teacher was served with a second show-cause notice dated
21.11.2013 along with a copy of the inquiry report calling upon
him to show cause why he should not be dismissed from
service.
5.5. It appears that the Society, vide its resolution dated 18.11.2013,
authorized Father M.G. Raj to issue the show-cause notice.
Later on, vide the resolution dated 09.12.2013 passed by the
Society, Father M.G. Raj was authorised to pass an order
dismissing the Teacher from service. The Teacher was
accordingly dismissed from service.
5.6. The Teacher challenged the order of dismissal before the
Gujarat Educational Institutions Services Tribunal by filing
Appeal No.339 of 2014. The Tribunal thought it fit to partly
allow the appeal by directing the school to issue a fresh show-
cause notice and initiate a de novo departmental inquiry.
5.7. After hearing the parties, the Tribunal appears to have allowed
the said appeal vide its order dated 09.12.2015 and remanded
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the matter to the school authority. The aforesaid order came to
be challenged before this Court by way of Special Civil
Application No. 1067 of 2016, which came to be partly allowed
by the Coordinate Bench of this Court vide its judgment dated
19.09.2016, whereby, it has quashed the aforesaid order of the
Tribunal and also remanded the matter back to the Tribunal,
with a specific direction to the Tribunal that it shall, without
going into any technicalities, consider whether the findings
recorded by the disciplinary authority are based on some legal
evidence, or the case is one of no evidence, or the findings are
totally perverse or legally untenable. The Teacher appears to
have carried the said judgment before the Division Bench of
this Court by filing an appeal being LPA No. 1237 of 2016. The
Division Bench, vide its order dated 21.08.2017, though it
confirmed the aforesaid order of remand passed by the
Coordinate Bench, it has observed that such remand shall be an
open remand, whereby, all contentions/defences which may be
available to the respective parties are kept open to be
considered by the Tribunal in accordance with law.
5.8. Upon remand of the matter and after giving an opportunity of
hearing to both sides, the Tribunal, vide its impugned order
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dated 10.05.2019, partly allowed the said appeal, whereby, it
has set aside the order of dismissal and remanded the matter to
the school authority to issue a fresh second show-cause notice
before passing any order of punishment. Although, the
Tribunal has opined that there is no violation of the principles
of natural justice during the course of inquiry conducted by the
School.
5.9. Thus, feeling aggrieved and dissatisfied with the impugned
order passed by the Tribunal, the School as well as the Teacher
have filed their respective petitions.
6. SUBMISSIONS OF TEACHER:
6.1. In support and oppose of the petitions filed by the Teacher and
the School, respectively.
6.2. Mr. Munjyasara, learned Advocate for the Teacher, has made
the following submissions:
i. The first show-cause notice dated 01.04.2013, which was issued
and served upon the petitioner prior to the initiation of any
inquiry, is without jurisdiction, as it was not issued by the
Manager as required under the Gujarat Secondary and Higher
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Secondary Education Act, 1972 (hereinafter referred to as "the
Act, 1972").
ii. The disciplinary authority of the school never served any
charge-sheet upon the petitioner; rather, the charges were
framed by the inquiry officer in the first meeting of the inquiry
held on 04.06.2013. This itself violates the principles of natural
justice.
iii. The inquiry was not conducted in a fair and transparent
manner by the inquiry officer and Teacher was not provided
with adequate documentary evidence for the effective cross-
examination of witnesses.
iv. It is not in dispute that along with the first show-cause notice
dated 01.04.2013, no documents were provided to Teacher.
Even the statements/depositions of witnesses were, in fact, not
supplied till the 11th meeting held on 22.10.2013, but Teacher
was forced to cross-examine the witnesses.
v. Likewise, in the 12th meeting also, the request of the petitioner
to grant some time to prepare himself for cross-examination
was not acceded to by the inquiry officer; rather, he closed the
inquiry on the very day and submitted his report. This itself
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shows the predetermination of the inquiry officer to hold
Teacher guilty.
vi. The reason of requesting for time was due to receipt of the
statements/depositions of witnesses on 28.10.2013 and other
relevant documents were not provided to Teacher.
vii. The second show-cause notice came to be issued by the school
authority to Teacher on 18.11.2013 and granted 15 days' time
to submit the reply, but due to the delay in submission of reply
beyond 15 days by the Teacher, it was not taken into account
when the order of dismissal was passed by an unauthorized
person on behalf of the school on 09.12.2013.
viii. The impugned order of dismissal before the Tribunal was
signed by Fr. M.G. Raj, S.J. (hereinafter referred to as "Raj"),
who was neither the Manager, nor a Trustee, nor the Principal
of the School and thus, the impugned order of dismissal was
passed without jurisdiction. As per Section 36(1) of the Act,
1972, the service of the Teacher can be terminated only by the
Manager. The definition of the term 'Manager' is also given in
Section 2(j) of the Act, 1972, which means a person or a body
of persons in charge of the control or management of the
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school. There was nothing placed before the Tribunal to show
that the said Mr. Raj was the Manager as defined under the
Act, 1972.
ix. The Tribunal has erroneously observed that the provision of
Section 36(1)(a) is not applicable to the school. Even it is not
the case of the school that the said provision is not applicable
to the school. The impugned order passed by the Tribunal is
not only erroneous but perverse and accordingly, it may be
quashed and set aside.
x. The Tribunal has not properly appreciated the evidence made
available on record; rather, it erroneously observed that the
inquiry conducted by the school was not in violation of the
principles of natural justice.
xi. The petition filed by the School may be dismissed on the
ground of suppression of material facts, as it has not mentioned
that the Teacher has already challenged the impugned order
passed by the Tribunal by way of Special Civil Application No.
18515 of 2019, though the school authority is aware about the
same as they appeared on caveat. The order secured by the
school in its petition is ex parte and that too by suppression of
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facts, therefore, this Court may not entertain such petition and
the same may be dismissed with costs.
xii. To buttress his arguments, Mr. Munjyasara, learned Advocate,
would rely upon the following decisions:
(1). Rattan Lal Sharma V/s. Managing Committee, Dr. Hari
Ram (Co-Education) Higher Secondary School and others,
reported in (1993) 4 SCC 10;
(2). Dalip Singh V/s. State of Uttar Pradesh and others,
reported in (2010) 2 SCC 114;
(3). K. D. Sharma V/s. Steel Authority of India Limited and
others, reported in (2008) 12 SCC 481;
(4). Deputy General Manager (Appellate Authority) and others
V/s. Ajai Kumar Srivastava, reported in (2021) 2 SCC 612;
(5). Chowdamma (D) by LR and another V/s. Venkatappa (D)
by LRs and another, reported in 2025 LiveLaw (SC) 838.
xiii. Making the above submissions, Mr. Munjyasara, learned
Advocate, would request this Court to allow the writ petition
being SCA No.18515 of 2019 and dismiss the SCA No.22226 of
2019.
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7. SUBMISSIONS OF SCHOOL:
7.1. In support and oppose of the petitions filed by the School and
the Teacher, respectively.
7.2. Mr. Sudhir M. Nanavati, learned Senior Counsel for the
School, has made the following submissions:
i. The impugned order passed by the Tribunal is not only
erroneous but perverse when it remanded the matter back to
the school authority for the issuance of fresh second show-
cause notice.
ii. The Tribunal has erroneously observed that Mr. Raj was not
an authorized person to issue the second show-cause notice
and/or to pass the order of dismissal, as he was not holding any
post in the school. The Tribunal has overlooked the resolution
passed by the governing body of the school on 09.10.2013,
whereby, it has resolved that the Teacher is to be dismissed
from service and it has authorized Mr. Raj to pass the order of
dismissal against Teacher.
iii. Once the governing body of the school passed the aforesaid
resolution and authorized Mr. Raj to pass the order of
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dismissal against Teacher, it cannot be inferred that the
impugned order of dismissal was passed by an unauthorized
person of the school and to that extent, the impugned order
passed by the Tribunal requires to be interfered with by this
Court.
iv. As per Rule 11 of the Rules and Regulations of the School, the
Managing Board has entire control of the management of the
school, whereby, they have the power to appoint as well as to
award punishment upon employees of the school. They also
have the power to delegate any of their acts to the heads of the
institution. Even as per Rule 13 of the said Rules, it would save
any action taken in good faith and it would not invalidate it,
merely on account of technical irregularities of procedure.
Accordingly, the governing body was very well within its power
to authorize Mr. Raj to pass the order of dismissal.
v. The appointment order of the Teacher dated 13.02.2006 was
also signed by Mr. Raj along with the Principal of the School,
thereby, it cannot be argued that Mr. Raj was not an
authorized person and not the Manager as per the Act, 1972.
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vi. In fact, as per the resolution dated 15.06.2005 passed by the
Governing Body of the School, Mr. Raj was authorized on
behalf of the management to act and sign as a Trustee in
matters relating to appointment, dismissal and other important
disciplinary actions related to staff members. Nonetheless, it
has not been placed before the Tribunal, but considering the
totality of the facts and circumstances, the reasons assigned by
the Tribunal while remanding the matter back to the school are
unsustainable in law.
vii. The Tribunal has categorically recorded and observed in Paras
16 and 17 of the impugned order that there was no violation of
the principles of natural justice during the course of the inquiry;
rather, an ample opportunity was given to the Teacher, despite
that he had not availed himself of such opportunity.
viii. The school is a minority institution only required to observe the
principles of natural justice before dismissing Teacher. There is
a complete misreading on the part of Teacher in regard to the
fact that his dismissal was not by the Manager as per Section
36(1)(a) of the Act, 1972. There are no any prescribed rules of
procedure to be undertaken during the course of inquiry
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stipulated under any statutory Rules and/or the Act, 1972, as
the case may be, applied to minority institution like the school.
ix. The grievance raised by the Teacher that the first show-cause
notice and the charge-sheet framed by the inquiry officer are
nothing but an afterthought, as before the Tribunal, no such
arguments were ever raised and pressed into service by the
Teacher after the remand of the matter by this Court. Rather,
as observed in Para 17 of the impugned order by the Tribunal,
the Teacher has not questioned the legality and validity of the
inquiry and as such, no argument was raised before the
Tribunal in this regard, which is self-sufficient to show that
such an argument is not tenable in law.
x. The Teacher was given all opportunities to cross-examine the
witnesses; rather, he chose to leave the 11th meeting and for no
reason, sought time in the 12th meeting to cross-examine the
witnesses. When such was the attitude of the Teacher during
the course of the inquiry, the inquiry officer thought it fit not to
delay the inquiry anymore and in that view of the matter, did
not accede to the request of Teacher, which cannot be viewed
as a violation of the principles of natural justice.
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xi. The Teacher was given an opportunity to defend his case before
the inquiry officer and the inquiry was conducted in fair and
transparent manner. The first show-cause notice wherein the
charges were framed against Teacher was duly replied by
Teacher. Even during the first hearing of the meeting, no
objection raised by Teacher when the inquiry officer
formulated the issues which were titled as charges.
xii. This Court may not entertain the petition filed by Teacher and
accept the petition of the school, as the impugned order of the
Tribunal remanding the matter back to the school is
unsustainable in law.
xiii. Making the above submissions, Mr. Nanavati, learned Senior
Counsel, would request this Court to allow writ petition being
SCA No.22226 of 2019 and dismiss SCA No.18515 of 2019.
8. No other and further submissions are being made.
POINTS FOR DETERMINATION:
9. Having heard learned advocates appearing for the respective
parties and upon perusal of the impugned order of the Tribunal
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as well as after going through the record and proceedings, the
following points fall for my consideration:
[1]. Whether, in the facts and circumstances of the
present case, the principles of natural justice were
observed by the school during the inquiry in all
respects?
[2]. Whether the second show-cause notice dated
21.11.2013 and the impugned order of dismissal
dated 09.12.2013 signed by Fr. M.G. Raj, S.J. are in
consonance with the provisions of Section 36(1)(a)
of the Act, 1972?
ANALYSIS:
POINT NO.1:
10. Before adverting to the points germane to the matter, I would
like to first refer to the relevant provisions of the Act, 1972, as
under:
"Section 2(j): "manager" in relation to any school means a
person or a body of persons in charge of the control or
management of the school."
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"Section 36(1): No person who is appointed as a head
master, a teacher or a member of non-teaching staff of a
registered private secondary school [or registered private
higher secondary school] shall be dismissed or removed
or reduced in rank nor shall his service be otherwise
terminated by the manager until-
(a) he has been given by the manager a reasonable
opportunity of showing cause against the action
proposed to be taken in regard to him, and
(b) the action proposed to be taken in regard to him,
has been approved in writing by an officer
authorised in this behalf by the Board:
Provided that nothing in this sub-section shall apply to any
person who is appointed for a temporary period only."
"Section 40A: Notwithstanding anything contained in this
Act, sub-section (1) of section 34, and clause (b) of sub-
section (1) and sub-sections (2), (3), (4) and (5) of section
36 shall not apply to any educational institutions
established and administered by a minority, whether based
on religion or language."
11. The Teacher was appointed by the school on 13.02.2006 and his
appointment letter would suggest that it was signed by the
Principal of the School as well as Mr. Raj as a Trustee of the
School. The first show-cause notice under Section 36(1) of the
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Act, 1972, came to be issued on 01.04.2013 upon Teacher by
the School. The bare reading of the said notice would suggest
that the charges were framed against Teacher and with the
aforesaid notice, it was served. The said notice is signed by the
Principal of the School.
12. The grievance raised by the Teacher before this Court is that
the said show-cause notice was not served by the Manager and
thereby, the entire inquiry proceeding initiated by the school is
vitiated. The bare reading of the impugned order of the
Tribunal would suggest that such argument was never pressed
into service at least after the remand of the matter by this
Court. The Tribunal has categorically recorded in the last
portion of Para 17 of impugned order that no representation
has been made before the Tribunal regarding the legality and
propriety of inquiry conducted against the applicant. Apart
from the said, the Tribunal, upon remand, framed only four
issues for its consideration, wherein the issue as regards
incompetency of the principal to issue the first show-cause
notice/charges is not framed. Thus, this Court has reason to
believe that such point was never raised and pressed into service
before the Tribunal.
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13. Be that as it may, the plain reading of definition of 'Manager'
given under Section 2(j) of the Act, 1972, would indicate that
the person in charge of the control or management of the
school is considered as the Manager. The post of the principal
is nothing less than to control the day-to-day management of
the school and being an administrative head over the Teacher
and other staff, according to my view, the principal can be
treated as the Manager as per the Act, 1972.
14. So far as the framing of charges by the inquiry officer is
concerned, there is no substance in the argument of Mr.
Munjyasara, learned advocate for the Teacher that due to
framing of charges by the inquiry officer, he was biased
towards Teacher. As stated hereinabove, the charges were
already framed by the school when issued the said first show-
cause notice to teacher. Rather, teacher has duly replied to the
said notice/charges point-wise vide his reply dated 10.04.2013.
No grievance was ever raised by Teacher in his reply, either of
questioning the authority of the principal to issue said notice
under Section 36(1) of the Act, 1972, or of alleging that no
charges were served upon him. As far as the bare look of the
first meeting dated 04.06.2013, wherein, the charges were
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alleged to have been framed by the inquiry officer, is concerned,
it appears that there were four issues framed by the inquiry
officer but he titled it as charges. Again, the Teacher was very
much present in the first meeting and without any objection, he
has signed the minutes of the said meeting.
15. In light of the aforesaid facts and circumstances, it does not lie
in the mouth of the Teacher to complain at this stage that the
issuance of the first show-cause notice, non-serving of the
charge-sheet, and/or framing of charges by the inquiry officer
vitiated the entire inquiry proceedings.
16. So far as the allegation of non-observance of the principles of
natural justice by the inquiry officer during the course of
inquiry is concerned, it is also unsustainable, inasmuch as it has
been revealed from the record that it was duly observed. The
conduct of Teacher in the 11th and 12th meetings duly recorded
by the Tribunal while arriving at the conclusion that an
adequate opportunity of hearing was granted to Teacher. The
relevant observations of the Tribunal made in Paras 16 and 17
in this regard need to be reproduced, which read thus:
"16. However, when the applicant is dismissed from
service, it must be examined, on the basis of the record
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of the case, whether he was provided a reasonable and
sufficient opportunity of defense in accordance with the
principles of natural justice or not. It has been submitted
on behalf of the applicant that, despite his demand for
copies of the documents during the Inquiry proceedings,
the Inquiry Officer did not pass any order and failed to
provide the documents. Therefore, as the applicant was
not given a proper opportunity to put forth his adequate
defense, the principle of natural justice was not followed
in the Inquiry. In the minutes of the 12th meeting before
the Inquiry Committee, an objection was recorded on
behalf of the applicant, wherein there is no mention
regarding the non-receipt of documents, which itself
shows that a false representation has been made by the
applicant regarding the non-receipt of documents during
the Inquiry. Furthermore, in paragraph 8 of the cross-
examination during the applicant's testimony recorded in
the present case, a clear question was asked: "Whether
you had received all the documents during the Inquiry?"
At that time, the applicant replied in the Cross
Examination that he had received the documents but
they were insufficient. However, he did not clarify which
documents were insufficient or in what manner. In such
circumstances, it appears reasonable to admit the
Respondent's submission that the Applicant made false
allegations and complained about the documents during
the Inquiry. It does not appear in the original application
that the applicant raised any specific objection regarding
the Inquiry process. In these circumstances, the
applicant's argument of not providing him sufficient
documents during the Inquiry cannot be accepted at this
stage. In the produced record of the Inquiry, there is no
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remark showing that the applicant demanded documents
during the Inquiry and such documents were not
provided to him. On the contrary, the applicant remained
present in all the meetings of the Inquiry proceedings
and even participated in the Inquiry, which indicates that
the Inquiry against the applicant was conducted
according to the principles of natural justice. In these
circumstances, the argument made on behalf of the
applicant, that the documents demanded by him during
the Inquiry were not provided and because of that the
said Inquiry should be declared illegal and unreasonable
due to non-compliance with the requirement of providing
an adequate defense, is not admissible. An argument
has also been made on behalf of the applicant that the
Inquiry Officer abused his power and proceeded ultra
vires and drew the Charge-Sheet against the applicant.
Looking at the record of the Inquiry, nothing has been
shown by the applicant as to which power the Inquiry
Officer abused. In those circumstances, it has not been
established by the applicant that the power was abused
by the Inquiry Officer. In these circumstances, the said
argument of the applicant also becomes unacceptable. It
has also been argued on behalf of the applicant that on
01/11/2013, the Inquiry Officer noted in the minutes of
the Inquiry that the Inquiry Report would be submitted
within 7 days. Nevertheless, the Inquiry Report was
submitted on the very same day. Due to this, the Inquiry
and the Inquiry Report ought to be considered per-
determined. This argument of the applicant is also not
acceptable because the Inquiry Report was submitted by
the Inquiry Officer only after the completion of the Inquiry.
Whether that report is submitted on the same day or
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thereafter, I find no substance in the applicant's
argument that the Inquiry and the Inquiry Report against
the applicant were per-determined, and therefore, the
said argument of the applicant is not admissible.
17. Perusing the records of the inquiry conducted against
the applicant, it is clear that, till the 11th meeting, the
proceedings of inquiry were conducted as per law and in
accordance with the principle of natural justice. The
applicant was present in all the meetings and stages of
the Inquiry. It has been submitted by the applicant that he
could not cross-examine the witnesses as they were not
present during the stage of Cross-Examination.
Appreciating the Para-3 of the minutes of the 11th
Meeting of the inquiry proceedings, it has been clearly
recorded about presence of the witnesses and sufficient
opportunity having been given to the applicant to cross
examine them. However, it clearly emerges from Page
No. 485 of the Rojkam qua the produced records of
Inquiry Proceedings that when an opportunity was
accorded to the applicant to cross examine the
witnesses, instead of making use of the opportunity, the
applicant left the Inquiry-Room. In these circumstances,
the argument furthered on behalf of the applicant that he
could not cross examine the witnesses due to their
absence during the Inquiry Proceedings is not at all
corroborated by the produced records and recorded
minutes. In the minutes of the 12th meeting, i.e. Inquiry-
Meeting dated 01/11/2013, the applicant has recorded
his objection in his handwriting after perusing the
minutes. In view of this fact, it is established that the
applicant was present in the meeting and he has
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endorsed the minutes of 12th meeting after reading the
same. Thus, perusing the records of the Inquiry
Proceedings, it is established that the applicant was
given sufficient and reasonable opportunity by the Inquiry
Committee to defend himself and cross examine the
witnesses. Further, it has been submitted on behalf of the
applicant that no witness' signature has been obtained
by the Inquiry Committee on any of the documents of
Inquiry endorsing their presence in the Inquiry-Meeting
for the Cross-Examination. Perusing the records of the
Inquiry Proceeding and as submitted by the Learned
Advocate for the Respondent, there is no practice of
obtaining signatures of witnesses produced in an Inquiry
Proceeding to record their presence. Under such
circumstances, the argument made on behalf of the
applicant is inadmissible wherein he averred that as no
witness signature has been obtained in the Inquiry
Proceeding and as no such witness was present for the
cross examination during the Inquiry, the applicant has
not been given an opportunity to cross examine the
witnesses. Therefore, any of arguments to the fact that
the applicant was not provided a reasonable opportunity
of defense by the Inquiry Officer in accordance with the
principles of natural justice during the Inquiry
Proceedings conducted by the institute does not appear
acceptable, and the Inquiry proceedings. conducted
against the applicant by the respondent's Inquiry
Committee are held to be legal and fair. Furthermore, the
applicant has not challenged the legality and propriety of
the Inquiry proceedings. In addition, no representation
has been made even before the Tribunal regarding the
legality or propriety of the Inquiry conducted against the
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applicant. Under such circumstances too, the Inquiry
proceedings conducted by the Inquiry Committee against
the applicant are held to be reasonable and legal."
(emphasis supplied)
17. This Court has also gone through the minutes of the 11th and
12th meetings and there is nothing to observe that the view
taken by the Tribunal is perverse, which requires any
interference by this Court while exercising its powers under
Articles 226 and 227 of the Constitution of India. It is well
settled that in the matter like the present one, unless any order
passed by the Tribunal is ex facie illegal, perverse, and/or
contrary to the provisions of law, in other circumstances, this
Court should not interfere with the findings/reasons assigned
by the Tribunal, which is a plausible view. In absence of any
perversity found in the order of the Tribunal, this Court should
not interfere with such order.
18. As observed above and after minutely going through the
reasons assigned by the Tribunal in its impugned order as well
as upon perusal of the relevant evidence forming part of the
record and proceedings, I am of the view that the principle of
natural justice was observed by the inquiry officer during the
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course of inquiry. There was no reason for Teacher to walk out
in the midst of meeting and later on complain of non-receipt of
evidence, etc.
19. It also requires to be noted here that the school is a minority
institution and there are no rules and regulations framed under
the Act, 1972, which cast duty upon the school to conduct the
inquiry in the manner prescribed under such rules. At least,
nothing of such sort was brought to my notice by the learned
advocate for the Teacher.
20. Thus, in view of the aforesaid, I am of the view that the
principle of natural justice has been duly observed during the
course of inquiry. Point No. 1 is answered accordingly.
POINT NO.2:
21. As far as the authority of Mr. Raj to serve the order of
dismissal upon the petitioner is concerned, the Tribunal has
examined this aspect in Para 18 of its impugned order, which
reads thus:
"18. Learned Advocate Shri S.C. Desai for the applicant
has argued that, as the person who signed the Dismissal
Order of the applicant is not vested with the authority or
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power to sign such an order, the Dismissal Order shall
be quashed and set aside and the applicant should be
given the benefits admissible to him. He further averred
that, Shri M.G. Raj who issued the Dismissal Order does
not hold any office in the Respondent Trust or the
institute, i.e. he was not holding any post in the Trust or
the school at the time of signing the Dismissal Order. It is
true that the second Show-Cause Notice and the
penalty-order issued to the applicant were signed by Shri
Raj. The applicant was appointed on 13/02/2006. The
stated Appointment Order is signed by Shri M.G. Raj and
Shri Raj has also signed the second Show-Cause Notice
and the Dismissal Order as the Appointing Authority.
However, perusing the records produced, it appears that,
on the day of signing the order, Shri Raj was neither
holding any office in the school or the Board of Trustees
nor was he authorized. But, perusing the resolution of the
School-Board, produced at Page No. 581 of the records,
Shri M.G. Raj had been vested with the power and
authority by the school to undertake necessary
procedure against the applicant and Shri M.G. Raj had
issued the second Show Cause Notice to the applicant in
exercise of such powers and later, he has issued the
Dismissal Order to the applicant. As per law, an
appointing authority is not concerned with a person, but it
is concerned with an office. Under such circumstances,
when Shri M.G. Raj issued the Show Cause Notice and
the Dismissal Order to the applicant with his signature,
he was not holding any office. Therefore, Shri M.G. Raj
cannot be considered competent to issue the second
Show Cause Notice and the Dismissal Order of the
applicant in capacity of the appointing authority. A
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person holding any appointment and authority in the
Trust on the given date can only be considered
competent to issue the second Show Cause Notice as
well as the Dismissal Order. Under such circumstances,
the second Show Cause Notice issued to the applicant
and the Dismissal Order cannot be considered lawful.
We have gone through the Judgments of the Hon'ble
High Court of Gujarat and the Hon'ble Supreme Court,
relied on by Learned Consel Shri Nanavati for the
Respondent. However, as the facts of the Judgments are
different from the case on hand, the same are not
applicable to the present case and therefore, the
Respondent's argument in this regard is not admissible.
Under these circumstances, as the second Show-Cause
Notice and the Dismissal Order by the concerned Shri
M.G. Raj as the appointing authority was issued on the
basis of the resolution by the Board of Trustees, it is not
as per the rules and as per law and therefore, it is liable
to be set aside. It would be fair, just and lawful if the
case is remanded back to the School Board to decide it
as per the rules after a competent authority issues the
second Show-Cause Notice to the applicant afresh and
gives him sufficient and reasonable opportunity to give
an explanation."
(emphasis supplied)
22. It is incorrect to say and accept the arguments of Mr. Nanavati,
learned Senior Counsel, that the Tribunal has not taken into
account the resolution of the governing body dated 09.12.2013,
inasmuch as the Tribunal has, in fact, taken into account such
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resolution, which was available at page No. 581 in the record
and proceedings of the case. It is true that the governing body
of the school, vide its resolutions dated 18.11.2013 and
09.12.2013, decided to serve show-cause notice with the
proposed punishment of dismissal to the Teacher and decided
to dismiss the service of Teacher, respectively. Accordingly, Mr.
Raj was authorized to issue such show-cause notice and order
of dismissal, respectively. The aforesaid resolutions dated
18.11.2013 and 09.12.2013, read as under:
"RESOLUTION
A meeting of the Governing Body of the
Ahmedabad Jesuit School's Society was called
urgently on 18th November 2013 at Newman Hall with
the President in the Chair, at which a quorum was
present to discuss about the inquiry report dated
01.1.2013 submitted by inqury officer who has
conducted an inquiry against the charges levelled
against Biju Jose Vadaken, an Asst. Teacher of St.
Xavier's High School, Loyola, Higher Secondary
Section, Science Stream.
On bare perusal of the inquiry report, submitted
by the inquiry officer, it is revealed that the
management has examined as many as 11 witnesses
and from the report of the inquiry officer, it is further
reveled that though the ample opportunity was given to
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the delinquent employee to cross examine the said
witnesses and to give his defence statement, the
delinquent employee has refused to do so, however,
the inquiry officer has on the basis of this deposition
and the documentary evidence, held that he delinquent
employee is guilty of the charges levelled against him.
Considering the resolved that the inquiry report
submitted by inquiry officer dated 01.11.2013 is
accepted in Toto.
Considering the seriousness of the charge, it is
further resolved that the show-cause notice with the
proposed punishment of dismissal may be issued to
Biju Jose Vadaken and Fr. M.G. Raj SJ is authorized to
issue such show cause notice.
Certified that the above is the true copy of the
Resolution.
Date: 18.11.2013
Place: Ahmedabad.
TRUSTEE/TREASURER
THE AHMEDABAD JESUIT SCHOOLS
SOCIETY"
"RESOLUTION
A meeting of the governing body of the
Ahmedabad Jesuit Schools Society was called urgently
today at 9 a.m. at Newman Hall with the president on
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chair, at which a quorum was present to discuss about
the final action to be taken against Mr. Biju Jose
Vadaken an Asst. Teacher of St. Xavier High School,
Loyola, Higher Secondary Section, l Science Stream.
Fr. M.G. Raj S. J. informed the governing body
that pursuant to the resolution dt. 18th November 2013
a show cause notice for the proposed punishment of
dismissal along with the inquiry report submitted by
the inquiry officer dt. 1" November 2013 were served
upon Biju Jose Vadaken on 21 November 2013 by Reg.
Post and the acknowledgment receipt delivered by the
postal department indicate that the said show cause
notice was received by him on 22nd November 2013.
Mr. Biju Jose Vadaken was called upon to show
cause within 15 days as to why he should not be
dismissed as an Asst. Teacher of St. Xavier High
School (Higher Secondary Section). Mr. Biju Jose
Vadaken has not tendered any explanation to the
above mentioned show cause notice within the
stipulated time.
Considering the fact that in a departmental
inquiry held against him where he was held guilty for
all the charges levelled against him and no explanation
has been tendered to the show cause dt. 21 November
2013 and also considering the seriousness of the
charges it is resolved that Mr. Biju Jose Vadaken is to
be dismissed from service as an Asst. Teacher of St.
Xavier High School (Higher Secondary Section).
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Fr. M.G. Raj S.J. is authorised to pass order of
dismissal against the said teacher Mr. Biju Jose
Vadaken.
Date: 09/12/2013
Place: Ahmedabad
SECRETARY/TRUSTEE/TREASURER
THE AHMEDABAD JESUIT SCHOOLS
SOCIETY"
(emphasis supplied)
23. The copy of the resolution dated 09.12.2013, whereby, Mr. Raj
was authorized by the governing body, would suggest that
though the meeting of the governing body chaired by the
President at which a quorum was present, to discuss the final
action to be taken against Teacher, but the resolution is only
signed by one person and it is not clear that who has signed
such resolution, as the seal of the Secretary/Treasurer/Trustee
of the School is affixed on at the bottom of the resolution. The
same was the case in the resolution dated 18.11.2013.
24. As per the Rules and Regulations of the School, more
particularly, Rule 11 authorizes the Managing Board to
delegate its power to the head of the institution. It is not
disputed during the course of arguments that Mr. Raj was
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neither a Trustee nor the Principal when he served the final
show-cause notice and the order of dismissal upon Teacher.
Since the resolution dated 15.06.2005 was not placed before the
Tribunal and is now submitted by the school in its petition at
Annexure K - page No. 111, it cannot be looked into by this
Court. As per Section 36(1) of the Act, 1972, the service of
Teacher shall be terminated by the Manager. As discussed
above, the Manager is already defined in Section 2(j) of the Act,
1972. Undoubtedly, the governing body of the school can be
considered as a body of persons in charge of
control/management of the school, but by no stretch of
imagination Mr. Raj can step into the shoes of the management
as defined under the Act, 1972. So far as the provisions of the
Act, 1972, are concerned, there is no power of delegation
available to such a Manager so as to delegate his power in
favour of another person. Likewise, as per the Rules and
Regulations of the School, the Managing Board can delegate its
power to the heads of the institution and not to other persons.
Furthermore, the relevant resolution dated 09.12.2013
authorizing Mr. Raj to pass an order of dismissal is only signed
by one person, though the resolution depicts that it
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was chaired by the President with a quorum of other persons,
but actually, they have not signed the resolution.
25. It is also to be noted that though Teacher could not respond to
the said final show-cause notice within 15 days' period granted
to him, but prior to passing of the said resolution dated
09.12.2013, his reply was already received by the school;
however, it appears that the same was not considered and taken
into account by the governing body of the school.
26. Thus, considering the aforesaid peculiar facts and
circumstances and upon appreciating the findings recorded by
the Tribunal in Para 18 of its impugned order, I am of the view
that the view taken by the Tribunal is neither erroneous nor
perverse, which does not require any interference by this Court
in so far as remanding the matter back to the School
management for issuance of a fresh show-cause notice and to
pass an appropriate order of punishment upon receipt of reply
from Teacher is concerned.
27. According to my view, neither final show-cause notice dated
21.11.2013, nor the order of dismissal dated 09.12.2013, passed
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by Mr. Raj, can be said to be in consonance with the provisions
of the Act, 1972. Point No. 2 is answered accordingly.
CONCLUSION:
28. In view of the foregoing observations, discussions, and reasons,
I do not find any merit in any of the petitions; rather, I find
that the order of the Tribunal is just and reasonable, and no
perversity is found in it. Since both these petitions lack merit,
they are liable to be dismissed, and accordingly, they are
dismissed. Rule is discharged. There shall be no order as to
costs. R&P to be sent back to the Tribunal forthwith.
(MAULIK J. SHELAT, J)
FURTHER ORDER
After pronouncement of the judgment, the requesto made by
Mr. Vandan Baxi, learned Advocate appearing on behalf of Nanavati
& Nanavati for the petitioner of Special Civil Application No.22226
of 2019, to stay this judgment for some time. Considering the fact
that matter is of the year 2019 and in view of the reasons assigned by
this Court, the request is rejected.
(MAULIK J. SHELAT, J)
NILESH
