Director of Education v. Bhatikar Model High School, Represented by its Chairman Shri R. S. Kamat, Managing Committee
2013-07-09
F.M.REIS
body2013
DigiLaw.ai
JUDGMENT : Heard Shri Noorani, learned Addl. Government Advocate, appearing for the Petitioner and Shri V. R. Tamba, learned Counsel appearing for the Respondent nos. 1 and 2. 2. The above Petition challenges the Judgment/Order dated 24.06.2008, whereby the preliminary objection raised by the Petitioner herein to the maintainability of the Appeal preferred by the Respondent no.1, came to be rejected. 3. Shri Noorani, learned Addl. Government Advocate, appearing for the Petitioner, has pointed out that in terms of Section 22 of the Goa, Daman and Diu School Education Act, 1984, (herein after referred to as the 'said Act'), the Management is not entitled to pursue an appeal whereby the permission to grant major penalty has been refused. Learned Addl. Government Advocate further pointed out that, as in the present case, the Respondent no.1/Management has preferred such Appeal, the learned Tribunal was not justified to come to the conclusion that the Appeal preferred by the Respondent no. 1 was maintainable. Learned Addl. Government Advocate further pointed out that Rule 97 of the Goa, Daman and Diu School Education Rules, 1986 clearly provides that in cases in which the major penalty has been imposed, the aggrieved employee is entitled to prefer an Appeal to the Tribunal. Learned Addl. Government Advocate further submits that in view of the said provisions of Rule 97 of the Rules which does not contemplate an Appeal to be filed on behalf of the Management, the learned Tribunal was not justified to come to the conclusion that the Appeal preferred by the Respondent no.1 was maintainable in law. Learned Addl. Government Advocate further submits that only an Appeal on behalf of an employee is maintainable in terms of the provisions of Section 22 of the said Act and, as such, the question of entertaining the Appeal preferred by the Respondent no.1 by the Tribunal, is totally erroneous. Learned Addl. Government Advocate has also taken me through the provisions of Section 22 of the said Act as well as the provisions of Rule 97 and pointed out that upon reading the said provisions together, the only conclusion that can be drawn is that the Appeal is maintainable is only at the instance of the employee and not the Management. Learned Addl.
Learned Addl. Government Advocate as such submits that the impugned Order/Judgment of the learned Tribunal deserves to be quashed and set aside and the Appeal preferred by the Respondent no.1 before the learned Tribunal be rejected as not maintainable. 4. On the other hand, Shri Tamba, learned Counsel appearing for the Respondent nos. 1 and 2, has supported the impugned Judgment/Order. Learned Counsel has pointed out that on plain reading of the provision of Section 22 of the said Act, an Order passed under Section 11(2) of the said Act is appeal-able under sub-section (e) of Section 22 of the said Act. Learned Counsel further pointed out that on plain reading of Rule 95 of the said Rules, it clearly provides that any Order refusing permission by the Director of Education, is subject to the Order under Section 22 of the said Act. Learned Counsel further submits that considering that Section 22 contemplates an Appeal under the said Act, the inescapable conclusion is that the order refusing permission by the Director, is subject to an Appeal under Section 22 of the Act. Learned Counsel has taken me through the impugned Judgment and pointed out that the learned Tribunal has rightly appreciated the provisions of law and, as such, no interference is called for in the impugned Judgment. 5. I have considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the records. It is not in dispute that the Order refusing the permission has been passed in terms of the provision of Section 11 (2) of the said Act. A perusal of Section 22 of the said Act provides thus: 22. Appeal.- (1) Subject to the provisions of sub-section (2), an appeal shall lie to the Tribunal from the following orders: a) refusing to recognize a school under subsection (2) of section 5; b) withdrawing the recognition of a school under sub-section (3) of section 5; c) stopping, reducing or suspending aid under sub-section (2) of section 7; d) refusing to grant permission under subsection (3) of section 9; e) dismissing, removing from service any employee or reducing him in rank or retiring him compulsorily or otherwise terminating his services under section (2), (2(a), (4) and (4a) as the case may be, of section 11.
(2) Every such appeal shall be preferred within thirty days from the date of communication of the order: Provided that the Tribunal may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (3) On receipt of any such appeal, the Tribunal shall, after giving the appellant a reasonable opportunity of being heard and after making such enquiry as it deems proper, pass such orders as it may deem fit, after recording the reasons therefore. 6. Rule 95 provides thus : “95. Authority to impose penalties and/or to institute disciplinary proceedings”. (1) The Managing committee being the disciplinary authority shall be competent to impose any of the minor penalties prescribed under rule 94(1) (a) as per the procedure laid down in rule 90.” (2) The disciplinary authority as specified under rule 94, shall be competent to institute disciplinary proceedings as per the procedure laid down under rule 97, against any employee for the imposition of any of the major penalties specified under rule 94(1)(b) but shall not be competent to impose any of the major penalties except with prior approval of the Director of Education and subject to provisions of Section 22 of the Act.” 7. Section 11(2) of the Goa, Daman and Diu School Education Act, 1984 provides thus : “11(2). Subject to any rules that may be made in this behalf, no employee of an aided school shall be dismissed, removed, reduced in rank, compulsorily retired or his service otherwise terminated, except with the prior approval of the Director.” 8. On plain reading of the said provisions, it is evident that an appeal would lie to the Tribunal from the orders passed in terms of the provisions of Section 11(2) of the said Act. The words used in the said provisions “or otherwise” is apparently intended to cover other cases which may not come within the meaning of preceding clause which would give rise to an appeal under Section 22 of the said Act. These words are not the words of limitation but of extension so as to cover all possible ways in which a situation may occur in the context of grounds mentioned therein.
These words are not the words of limitation but of extension so as to cover all possible ways in which a situation may occur in the context of grounds mentioned therein. Thus, the contextual interpretation of the words “or otherwise” is to be given by the Court while considering the said provisions of the said Act. Hence, in such circumstances, the learned Tribunal was justified to come to the conclusion that the appeal preferred by the respondent nos. 1 and 2 was maintainable before the learned Tribunal. 9. The contention of Mr. Noorani, learned Additional Government Advocate appearing for the petitioner that an appeal is not maintainable in terms of Section 22 of the said Act at the instance of the respondent nos. 1 and 2 cannot be accepted. There is nothing to suggest in the said provisions referred to above in the said Act to the effect that only an employee is entitled to prefer an appeal in terms of Section 22 of the said Act. Even on perusal of the said Rule, it is clear that an order refusing approval to grant major penalty is subject to the provisions of Section 22 of the said Act. Hence, on reading of the said provisions of the said Act and Rule 95, I find that the learned Tribunal was justified to come to the conclusion that the appeal filed by the respondent nos. 1 and 2 is maintainable before the learned Tribunal. The contention of Mr. Noorani, learned Additional Government Advocate appearing for the petitioner to the effect that Rule 97 of the Act would preclude the filing of the appeal by the said respondents cannot be accepted. Hence, there is no reason to interfere in the impugned order. As such, the petition stands rejected. Rule stands accordingly discharged.