Rashmikant Remeshchandra Upadhyay v. Khedbrahma Kelavani Mandal
2022-06-10
BHARGAV D.KARIA
body2022
DigiLaw.ai
JUDGMENT : (1.) Heard learned advocate Mr.K.B.Pujara for the petitioner, learned advocate Mr.Harmish K. Shah for the respondent No.1 and learned Assistant Government Pleader Mr.K.M.Antani for the respondent Nos.3 and 4 through video conference. (2.) By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs : "(a) To quash and set aside the impugned judgment and order dated 12-9-2006 passed by the learned Gujarat Higher Secondary School Services Tribunal in Application No.4/2004 as per Annexure-Z/6; (b) To quash and set aside the impugned order of punishment of removal from service dated 31-12-2003 passed by the respondent school as per Annexure-Z/3; (c) To quash and set aside the impugned order of approval dated 24-12-2003 passed by the respondent no.3 as per Annexure-Z/2; (d) To direct reinstatement of the petitioner in service with all the consequential benefits as if the impugned orders were never passed; (e) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to stay the further operation of the impugned orders dated 24-12-2003 as per Annexure- Z/2 and the impugned order dated 31-12-2003 as per Annexure-Z/3 and the impugned judgment and order dated 12-9-2006 as per AnnexureZ/6; (f) To grant any other appropriate and just relief/s;" (3.) The brief facts of the case are as under : 3.1. The petitioner was having a degree of M.A. B.Ed with Sanskrit and Gujarati subjects. The petitioner was duly selected and appointed as Assistant Teacher in the Higher Secondary Section of Sheth K.T.High School, Khedbrahma run by the respondent No.1 with effect from 1st July, 1993. 3.2. In the year 2001-2002, when the petitioner was teaching in Standards XI and XII in the respondent-School, he had an occasion to scold one student namely Hiral Rashmikant Trivedi in Standard XII-D with regard to her improper conduct. 3.3 .It is the case of the petitioner that the said Hiral Trivedi was annoyed on the petitioner and as the family of the said student and the petitioner were belonging to the same caste, the father of the said student Mr.Rashmikant Amratlal Trivedi insisted that the petitioner should marry with his niece to which the petitioner did not agree due to social reasons.
It is also the case of the petitioner that the said Rashmikant Trivedi abused the petitioner and attacked him physically in the School at 02:30 PM on 10th December, 2001 for which the petitioner was required to get medical treatment as an outdoor patient at the Referral Hospital and Community Health Centre, Khedbrahma. 3.4. The petitioner thereafter, lodged criminal complaint against both the persons namely Rashmikant Trivedi and the said student on the same day at Khedbrahma Police Station being C.R.No.II-83 of 2001 for offences punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code. The petitioner also addressed letter dated 11th December, 2001 to the respondent No.1-Trust to provide security and safety to the School employees. 3.5. The father of the student Rashmikant Trivedi also lodged a complaint against the petitioner and his brother at Khedbrahma Police Station being C.R.No.I-117 of 2001 for the offences punishable under Sections 354, 323 and 114 of the Indian Penal Code. The petitioner was however acquitted by the Court after recording a compromise between the parties vide order dated 23.12.2004 with regard to the said complaint. 3.6. Meanwhile, during the interregnum period, due to the complaint filed by the father of the student-Hiral, the respondent-School issued showcause notice dated 17.12.2001 and placed the petitioner under suspension and he was also asked not to enter the School campus. 3.7. The petitioner submitted his reply dated 25th January, 2002 to the show-cause notice. However, the respondent No.4-Commissioner of Schools (Midday Meals and Schools) instructed the School management to take disciplinary action against the petitioner vide letter dated 16th February, 2002. 3.8. Pursuant to the said letter, the respondent- School issued show-cause notice dated 7th March, 2002. The petitioner replied to the said showcause notice vide letter dated 20th March, 2002 to the second show-cause notice issued by the School Management. The School Management thereafter, persuaded inquiry against the petitioner which was informed to the petitioner by letter dated 23rd April, 2002. 3.9. The petitioner appointed Mr.Navnitbhai M. Soni as his representative and the inquiry committee was constituted under Regulation 27-A of the Gujarat Secondary Education Regulations, 1974 (for short 'the Regulations, 1974'). 3.10. The inquiry committee in the meeting held on 25th May, 2002 prepared the charge sheet and served the same upon the petitioner with letter dated 4th June, 2002.
3.9. The petitioner appointed Mr.Navnitbhai M. Soni as his representative and the inquiry committee was constituted under Regulation 27-A of the Gujarat Secondary Education Regulations, 1974 (for short 'the Regulations, 1974'). 3.10. The inquiry committee in the meeting held on 25th May, 2002 prepared the charge sheet and served the same upon the petitioner with letter dated 4th June, 2002. The petitioner by letter dated 10th June, 2002 requested to stay the departmental inquiry as he was facing a criminal prosecution at the relevant time. The petitioner also requested that as his suspension was not ratified/approved within 45 days as required under the relevant provisions of law, he should be reinstated. The petitioner was accordingly, reinstated in service on 25th June, 2002. 3.11. It is the case of the petitioner that in the meeting held on 14th September, 2002, the inquiry committee behind the back of the petitioner concluded the inquiry on the same date and report was prepared holding the petitioner guilty of the imputations made against him with recommendation that the petitioner was liable to be punished with major penalty and also further recommended to hold inquiry under Section 36(1) of the Gujarat Secondary Education Act, 1972 (for short 'the Act, 1972'). It appears that the respondent-School Management by letter dated 20th December, 2002 sought permission to take disciplinary action against the petitioner as per provisions of Section 36(1) of the Act, 1972 from the respondent No.4. The respondent No.4 by order dated 7th January, 2003 granted permission to initiate disciplinary action against the petitioner. 3.12. It appears that the respondent-School thereafter again initiated disciplinary inquiry under Section 36(1) of the Act, 1972 vide letter dated 27th January, 2003. The petitioner was also once again placed under suspension by order dated 24th March, 2003. The petitioner appointed one Mr.Nikhilesh Upadhyay as his representative in the fresh inquiry and during the inquiry proceedings held on 8th June, 2003, the representative of the petitioner raised objections in writing contending inter-alia that earlier the petitioner was chargesheeted and inquiry report was prepared but no action was taken. However, the inquiry committee framed charges and issued charge-sheet dated 19th June, 2003. 3.13.
However, the inquiry committee framed charges and issued charge-sheet dated 19th June, 2003. 3.13. It appears that thereafter in the inquiry meeting held on 22nd October, 2003, the inquiry report was prepared holding the petitioner guilty of the allegations made against him and thereafter, without issuing the second show-cause notice calling for the explanation of the petitioner, the School Management passed resolution dated 05.11.2003 for imposing penalty of removal from service upon the petitioner and sought approval of the District Education Officer by letter dated 07.11.2003. The respondent-School Management thereafter, issued a notice dated 13.11.2003 proposing penalty of removal from service and calling the petitioner to submit his explanation for levy of such penalty. 3.14. The respondent No.4 under Section 14(1) (a) of the Gujarat Higher Secondary Schools Services Tribunal Act, 1983 (for short 'the Act, 1983') provided hearing to the petitioner with regard to the proposal of the School Management dated 07.11.2003 for his removal from service. After hearing the petitioner and the School Management by order dated 26.12.2003, the respondent No.4 sanctioned the proposal of the School Management for removal of the petitioner from service under Section 14(1)(b) of the Act, 1983. 3.15. The respondent No.1-School Management by letter dated 31.12.2003 passed an order for removal of the petitioner from service pursuant to the sanction granted vide order dated 26.12.2003 passed by the respondent No.4. 3.16. The petitioner being aggrieved by the aforesaid orders dated 26.12.2003 and 31.12.2003 preferred application No.4 of 2004 before the Gujarat Higher Secondary School Services Tribunal (for short 'the Tribunal'). The petitioner examined himself before the Tribunal and he was also cross-examined on behalf of the School. The School however, did not lead any evidence. The Tribunal by order dated 12.09.2006 rejected the application of the petitioner. The petitioner has therefore preferred this petition with the aforesaid prayers challenging the orders passed by the Tribunal whereby, the order dated 26.12.2003 passed by the respondent No.4 is confirmed. (4.) Learned advocate Mr.Pujara for the petitioner submitted that proceedings against the employees of the Secondary Schools and Higher Secondary Schools are governed by the Regulations 27-A, 27(9) and 27(10) of the Regulations, 1974 which clearly mandate that the inquiry proceedings shall be held in accordance with the principles of natural justice by issuing a showcause notice specifically stating imputation against the employee and calling for his explanation.
It was submitted that after considering the explanation of the employee, the Committee is required to record the statements of witnesses of the School Management and to provide copies of such statements and proceedings to the delinquent and thereafter, opportunity to cross-examine such witnesses is required to be given by the Committee to the delinquent. The delinquent is also required to be given an opportunity to produce his own witnesses and evidence in his defense and after the inquiry proceedings are concluded, inquiry report is to be prepared within two weeks and in one week thereafter the copy of the inquiry report is to be given to the delinquent with the second show-cause notice stating the proposed penalty. The employee is also required to submit the explanation within ten days from the receipt of the second showcause notice and the School Management thereafter in the meeting of the Board of Trustees or in the Executive Committee meeting can take the decision about imposition of the penalty. It was pointed out that without prior approval of the competent authority as provided in Section 14(1)(b) of the Act, 1983, the concerned employee cannot be either dismissed/removed or reduced in rank or otherwise terminated by the School Management. 4.2. Learned advocate Mr.Pujara submitted that there is no provision in the statutory regulation for holding inquiry proceedings twice for the same charges. It was pointed out that the petitioner was first suspended on 17.12.2001 and thereafter, the inquiry proceedings were held against him and inquiry report was prepared on 14th September, 2002, however, no punishment was imposed as per the provisions of the Regulations, 1974. It was also submitted that the said inquiry was held at the behest of the District Education Officer and not at the initiative of the School Management which is evident from the letter dated 16th February, 2002 and therefore, such inquiry was patently bad in law. 4.3. Learned advocate Mr.Pujara submitted that as no action was taken, the matter ought to have been concluded at that stage but on instructions of the District Education Officer as per letter dated 17th January, 2003 again second inquiry was initiated by the School on 27.01.2003 which itself is bad in law and violative of principles of natural justice.
4.3. Learned advocate Mr.Pujara submitted that as no action was taken, the matter ought to have been concluded at that stage but on instructions of the District Education Officer as per letter dated 17th January, 2003 again second inquiry was initiated by the School on 27.01.2003 which itself is bad in law and violative of principles of natural justice. It was reported that even the second inquiry was not at initiative of the School Management but the same was initiated at the instance of the District Education Officer and the same suffers from non application of mind. 4.4. Learned advocate Mr.Pujara submitted that the petitioner was again suspended on 24th March, 2003 though he was earlier suspended on 17.12.2001 and was reinstated in service on 25th June, 2002 which is patently illegal. It was submitted that no person can be proceeded twice for the same charges but the respondent-School Management initiated inquiry against the petitioner for the same charges and also conducted the proceedings behind his back without giving him reasonable opportunity of hearing. 4.5. It was submitted that the School management has not followed the statutory provisions requiring recording of statements of witnesses, cross examination or giving opportunity to lead evidence by the petitioner in defense. It was pointed out that the Inquiry Committee in the meeting held on 22nd October, 2003 straight away prepared the inquiry report and on the basis of such report, major penalty was imposed upon the petitioner without providing the copy of the inquiry report for issuance of the second show-cause notice calling for the explanation of the petitioner and thereafter straight away the resolution dated 05.11.2003 was passed by the School management for removal of the petitioner from services and sanction was sought from the respondent No.4 vide letter dated 07.11.2003. It was submitted that after the proposal for removal from service was sent to the respondent No.4, the School Management issued second show cause notice on 13.11.2003 which is in violation of the statutory provisions and therefore, the entire procedure conducted by the School management for removal of the petitioner from service is vitiated. 4.6.
It was submitted that after the proposal for removal from service was sent to the respondent No.4, the School Management issued second show cause notice on 13.11.2003 which is in violation of the statutory provisions and therefore, the entire procedure conducted by the School management for removal of the petitioner from service is vitiated. 4.6. It was submitted that while granting approval to the proposed penalty, the respondent No.4-Commissioner of Schools also did not provide reasonable opportunity of hearing to the petitioner and without considering all the relevant facts and circumstances of the case and the statutory provisions passed the order dated 26th December, 2003 granting sanction to the proposal submitted by the School management for removal of the petitioner from service. 4.7. It was submitted that the Tribunal also did not consider the submissions on behalf of the petitioner while rejecting the application preferred by the petitioner resulting into miscarriage of justice. It was pointed out that the Tribunal has committed an error considering the earlier inquiry as a preliminary inquiry though there is no provision of such preliminary inquiry under the provisions of the Act. 4.8. Learned advocate Mr.Pujara submitted that the foundation for holding inquiry against the petitioner due to the criminal complaint instituted by the student and her father against the petitioner is also vitiated as in the said offence the petitioner was acquitted on the basis of the compromise entered into between the parties and therefore, no occasion for imposing punishment of removal from service upon the petitioner had arisen. 4.9. Learned advocate Mr.Pujara submitted that the date of birth of the petitioner is 11.11.1966 and therefore he had no chance of any alternative employment when he was removed from service in the year 2003 and he had a long tenure before reaching the age of superannuation of 58 years. It was further submitted that the petitioner has still one or two years left of service. It was submitted that the petitioner had a blotless record of service all through out and only because of the false allegations levelled against him and for extraneous reasons, the petitioner has been made to suffer grave injustice. 4.10.
It was further submitted that the petitioner has still one or two years left of service. It was submitted that the petitioner had a blotless record of service all through out and only because of the false allegations levelled against him and for extraneous reasons, the petitioner has been made to suffer grave injustice. 4.10. Learned advocate Mr.Pujara in support of his submission relied upon the decision of the Apex Court in case of Khem Chand versus Union of India and Others, AIR 1958 Supreme Court 300 to submit that the reasonable opportunity is required to be provided to the employee to deny his guilt and establish his innocence so as to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence together with an opportunity to make representation as to why the proposed punishment should not be inflicted on him. 4.11. It was therefore submitted that the impugned orders passed by the respondent No.4 may be quashed and set aside. (5.) On the other hand, learned advocate Mr.Harmish K. Shah for the respondent-School Management submitted that the petitioner is involved in very serious charges of sexual harassment against the female student. When the petitioner was working as a Higher Secondary Teacher, he compelled Miss Hiral Trivedi to attend his private tution, failing which, the petitioner threatened to fail her in the examinations. It was pointed out that on 20.12.2000, when the petitioner was taking private tution at the house of the victim during which time, her parents had gone to attend the funeral ceremony of the relative, the petitioner told other four girl students to go home and while the victim was alone, the petitioner misbehaved with the victim. 5.2. It was submitted that thereafter, the petitioner and the victim settled the matter and therefore, the petitioner was discharged from the offences but that does not mean that the petitioner is an innocent person and looking to his behavior, the order from removal of service is just and proper and no interference may be made in the concurrent findings arrived at by the respondent authorities while granting sanction to the proposal of the School Management which was again confirmed by the Tribunal against the impugned orders. 5.3.
5.3. Learned advocate Mr.Shah submitted that the School Management passed a Resolution dated 2nd February, 2019 and resolved that the application dated 29th January, 2019 of the petitioner for reinstatement in the School was considered and as the petitioner was willing to forgo his back wages, the School Management has no objection for reinstatement subject to approval from the Education Department. It was also pointed out that in the subsequent resolution dated 02.07.2019, the resolution dated 2nd February, 2019 was reconsidered and as there is no provision for reinstatement after the removal from service, the earlier resolution was cancelled. (6.) Learned Assistant Government Pleader Mr.K.M.Antani for the respondent authorities submitted that there are serious charges levelled against the petitioner and the respondent No.4 after considering the submissions made on behalf of the School Management as well as the petitioner passed the order dated 26.12.2003 which was confirmed by the Tribunal by the impugned order dated 12.09.2006. 6.2. It was submitted that in view of the concurrent findings arrived at by the authorities as well as the Tribunal and considering the serious charges of harassment to the girl student studying in the School while taking private tution and disobedience against the petitioner which were found to be proved, no interference may be made in the impugned orders. 6.3. Learned Assistant Government Pleader Mr.Antani also submitted that the respondent authorities seriously objects to the settlement arrived at between the School Management and the petitioner and such settlement between the parties could not be binding to the State Authorities. It was submitted that if the School Management agreed for the settlement with the petitioner, the State Government would not be saddled with the financial liabilities and responsibilities and the petitioner may receive the amount of arrears, if any, from the School Management. It was submitted that respondent authorities also objects to the settlement which would entitle the petitioner for pension and retiral dues as such financial liability cannot be fastened upon the State Government. 6.4. It was submitted that even otherwise considering the grave charges of incident pertaining to the moral turpitude, the respondent authorities are not agreeable for any settlement with the petitioner. It was also pointed out that the compromise which was arrived at between the petitioner and the School Management has been rescinded as per the resolution passed by the School Management on 2nd July, 2019.
It was also pointed out that the compromise which was arrived at between the petitioner and the School Management has been rescinded as per the resolution passed by the School Management on 2nd July, 2019. It was submitted that upon acquittal of the petitioner or settlement of the issues with the complainant, the petitioner cannot be given any benefit in view of the full-fledged departmental inquiry conducted against the petitioner resulting into the removal from service in accordance with the provisions of the Acts and the Rules. (7.) Having heard the learned advocates for the respective parties and having gone through the documents produced on record, it appears that the inquiry was initiated against the petitioner for the alleged charges of indecent behavior and harassment to the girl student pursuant to the criminal complaint filed against the petitioner by the father of the girl student in the year 2001. Pursuant to the show-cause notice dated 17.12.2001, the inquiry was conducted against the petitioner as per the Regulation 27 of the Regulations, 1974 pursuant to the complaint filed against the petitioner as instructed by the respondent No.4 vide letter dated 16th February, 2002. (8.) It appears that on 04.06.2002, charge-sheet was also issued upon the petitioner with regard to the incident which took place with the girl student on 06.12.2001 with regard to the harassment and indecent behavior of the petitioner alleging moral turpitude against the petitioner. It appears that in the meeting held on 14th September, 2002, the inquiry committee came to the conclusion that considering the charges levelled against the petitioner, the petitioner is liable to be punished with major penalty as per clauses Nos.5 to 8 of Regulation 27(2) of the Regulations, 1974 and for that purpose, further inquiry under Section 36(1) of the Act, 1972 was recommended. (9.) Regulation 27 of the Regulations, 1974 pertains to the conduct and the discipline of the Head Master, Teachers and Non-Teaching staff of the registered Private School. The said Regulation provides for taking actions against the Head Master, Teachers or Non-Teaching Staff for indecent behavior against students, parents of the students, Higher Authorities etc., resulting into removal/termination/reduction in rank of service.
The said Regulation provides for taking actions against the Head Master, Teachers or Non-Teaching Staff for indecent behavior against students, parents of the students, Higher Authorities etc., resulting into removal/termination/reduction in rank of service. (10.) Section 36(1) of the Act, 1972 provides for dismissal/reduction/removal in rank of certain persons which reads as under : "36.Dismissal, removal and reduction in rank of certain persons:-(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 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." (11.) On perusal of the aforesaid provision, it is clear that any Head Master, Teacher or a member of Non-Teaching Staff of a registered private Secondary School or registered private Higher Secondary School as amended with effect from 2013, would be dismissed/reduced/removed from rank or terminated from service only after providing an opportunity of hearing and after getting the approval in writing by the competent authority. (12.) It is the case of the petitioner that as the petitioner was an Assistant Teacher in the Higher Secondary section, provisions of Section 36(1) would not be applicable as the said section at the relevant time was applicable to the registered Private Secondary School only. (13.) However, this contention raised by the petitioner is not tenable in law because the competent authority has directed the School Management to conduct the inquiry under Section 36(1) of the Act, 1972 as all Head Masters, Teacher and Non-Teaching staff of the School are covered by the provisions of the Act, 1972.
(13.) However, this contention raised by the petitioner is not tenable in law because the competent authority has directed the School Management to conduct the inquiry under Section 36(1) of the Act, 1972 as all Head Masters, Teacher and Non-Teaching staff of the School are covered by the provisions of the Act, 1972. (14.) The contention raised on behalf of the petitioner with regard to the non-compliance of the provisions of clause Nos.9 and 10 of the Regulation 27 of the Regulations, 1974 is concerned, it is not in dispute that copy of the inquiry report was provided to the petitioner and the petitioner was also given the second showcause notice on 23.11.2003 by the School Management as contemplated in the Regulation 27(9) of the Regulations, 1974. (15.) It appears from the record that the petitioner has chosen not to participate either in the inquiry conducted under Section 36(1) of the Act, 1972 or the hearing conducted by the respondent No.4 under Section 14(1)(b) of the Act, 1972. The Tribunal has categorically recorded that the Inquiry Committee was constituted as per the Regulations, 1974 and after constituting the Inquiry Committee, the first meeting was held on 8th June, 2003 where all the members of the Inquiry Committee were present and thereafter, in the second-third session, the representative of the petitioner did not remain present and all the papers demanded by the petitioner were supplied to him and thereafter, in the fourth meeting held on 22nd October, 2003, the report of the Inquiry Committee was prepared and all the relevant papers were sent to the petitioner on 23rd October, 2003 and report of the Inquiry Committee was also sent to the petitioner on 13.11.2003. It was also considered by the Tribunal that though the petitioner remained absent before the respondent No.4 during the course of hearing, he filed the written representation which was taken into consideration while granting approval to the proposal of the School for removal of the petitioner from service considering the allegations of moral turpitude of serious nature by the impugned order dated 26.12.2003. (16.) The Tribunal also considered the documents produced on record by the School Management with regard to the affidavit filed by the student Miss Hiral Trivedi before the Inquiry Committee on 17.08.2003 as well as the affidavit dated 20.08.2003 confirming the complaint dated 12.01.2002.
(16.) The Tribunal also considered the documents produced on record by the School Management with regard to the affidavit filed by the student Miss Hiral Trivedi before the Inquiry Committee on 17.08.2003 as well as the affidavit dated 20.08.2003 confirming the complaint dated 12.01.2002. Her father also has given a statement on affidavit in support of the version of his daughter. In addition to the above, six students have also given statement during the course of inquiry that they were having the tution of the petitioner in the subject of Logic. The Supervisor Shree B.G.Parmar also supported the version that the petitioner left the School after recess on 10.12.2001 without informing anyone though he was to attend the Classes in the School. The Tribunal therefore came to the conclusion that the Inquiry Committee has rightly held that all the charges against the petitioner are proved to be true. The Tribunal therefore, held that the suspension of the petitioner in the year 2002 was without prior approval of the Commissioner under Section 14(5) of the Act, 1972 and after following the procedure if the petitioner is suspended again, then the same cannot be objected and the petitioner is only entitled to the full salary for the earlier part of suspension. The Tribunal also held that so far as the inquiry report dated 14.09.2002 is concerned, it was a preliminary inquiry in which it was suggested that there is prima-facie case against the petitioner and the same requires initiation of inquiry for major punishment in accordance with law. The Tribunal therefore, held that the School Management cannot be said to have started inquiry for the second time on the same charges. (17.) It emerges from the documents on record as well as the findings arrived at by the Tribunal and the respondent No.4-Commissioner while granting approval to the proposal to the removal of the petitioner from the service that the inquiry proceedings conducted against the petitioner are not in violation of the principles of the natural justice.
(17.) It emerges from the documents on record as well as the findings arrived at by the Tribunal and the respondent No.4-Commissioner while granting approval to the proposal to the removal of the petitioner from the service that the inquiry proceedings conducted against the petitioner are not in violation of the principles of the natural justice. Though the Tribunal has held that the inquiry report dated 14th September, 2002 is a preliminary inquiry, from the documents on record, it emerges that such inquiry was conducted as per the Regulation 27(a)(2) of the Regulation 74 and thereafter, no action was taken and only upon the letter received from the respondent No.5-District Education Officer, again the inquiry was initiated under Section 36(1) of the Act, 1972. Even in the second inquiry, the Inquiry Committee has not conducted the inquiry in consonance with the principles of natural justice and in the proceedings of the inquiry recorded with regard to the meeting held on 22nd October, 2003 produced at Annexure-Y (page Nos.107 to 109), the Inquiry Committee has only recorded that neither the petitioner nor his representative remained present before the Inquiry Committee and therefore, it was inferred that the petitioner was not in a position to give explanation with regard to the charges levelled against him and thereafter, without recording any evidence led before the inquiry committee, two of the members of the Inquiry Committee in absence of the third member arrived at conclusion that all five charges levelled against the petitioner are proved. Thus, there is a fragrant breach of the principles of natural justice by not providing sufficient opportunity to the petitioner to lead the evidence, cross-examine the witnesses or make submissions with regard to the major penalty proposed against him.
Thus, there is a fragrant breach of the principles of natural justice by not providing sufficient opportunity to the petitioner to lead the evidence, cross-examine the witnesses or make submissions with regard to the major penalty proposed against him. The Apex Court in case of Khem Chand (Supra) with regard to providing opportunity of hearing to the delinquent has held as under : "(19) To summarise: the reasonable opportunity envisaged by the provision under consideration includes- (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by crossexamining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant. In short the substance of the protection provided by rules, like R. 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in S. 240 (3) of the Government of India Act, 1935 so as to give a statutory protection to the government servants and has now been incorporated in Art. 311 (2) so as to convert the protection into a constitutional safeguard. (20) We find support for our above-mentioned conclusion in the judgment of the Judicial Committee in 75 Ind App 225: ( AIR 1948 PC 121 ) (B). It is true that after quoting a portion of the passage from the judgment of the majority of the Federal Court set out above their Lordships at page 242 stated that they agreed with the view taken by the majority of the Federal Court, but their Lordships did not stop there and went on to say: "In their opinion, sub-s. (3) of S. 240 was not intended to be, and was not, a reproduction of R. 55, which was left unaffected as an administrative rule.
Rule 55 is concerned that the civil servant shall be informed "of the grounds on which it is proposed to take action", and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provision of "a reasonable opportunity of showing cause against the action proposed to be taken in regard to him ". In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Before that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which subs.( 3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an inquiry under R. 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry." The above passage quite clearly explains that the point on which their Lordships of the Judicial Committee agreed with the majority of the Federal Court is that a further opportunity is to be given to the government servant after the charges have been established against him and a, particular punishment is proposed to be meted out to him.
The opening sentence in the above passage, namely, that s. 240 (3) was not a reproduction of R. 55 and that R. 55 was left unaffected as an administrative rule does seem to suggest that S. 240 (3) is not at all concerned with the enquiry into the charges which comes at the earlier stage, but a close reading of the rest of that passage will indicate that in their Lordships' view the substance of the protection of R. 55 is also included in S. 240 (3) and to that is super added, by way of further protection, the necessity of giving yet another opportunity to the government servant at the stage where the charges are proved against him and a particular punishment is tentatively proposed to be inflicted on him. Their Lordships referred to "statutory opportunity being reasonably afforded at more than one stage ", that is to say, that the opportunities at more stages than one are comprised within the opportunity contemplated by the statute itself. Of course if the government servant has been through the enquiry under R. 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, which implies that if no enquiry has been held under R. 55 or any analogous rule applicable to the particular servant then it will be quite reasonable for him to ask for an enquiry. Therefore, in a case where there is no rule like R. 55 the necessity of an enquiry was implicit in S. 240 (3) and is so in Art. 311(2) itself. Further their Lordships say that an enquiry under R.55 "would not exhaust his statutory right and he would still be entitled to make a representation against the punishment proposed as the result of the findings of the enquiry". This clearly proceeds on the basis that the right to defend himself in the enquiry and the right to make representation against the proposed punishment are all parts of his "statutory right" and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant.
This clearly proceeds on the basis that the right to defend himself in the enquiry and the right to make representation against the proposed punishment are all parts of his "statutory right" and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant. (21) The learned Solicitor General appearing for the Union of India, then, contends that assuming that the government servant is entitled to have an opportunity not only to show cause against his guilt but also an opportunity to show cause against the punishment proposed to be inflicted on him, the appellant in the present case has had both such opportunities, for by the notice served on him on July 9, 1949, the appellant was called upon to show cause against the charges as well as against the punishment of dismissal in case the charges were established. He points out that in 75 Ind App 225: ( AIR 1948 PC 121 ) (B), the notice given to I. M. Lall did not specify dismissal as the only and particular punishment proposed to be imposed on him, but called upon him to show cause why he should not be dismissed, removed or reduced or subjected to such other disciplinary action as the competent authority, might think fit to enforce, whereas in the present case the notice referred to above clearly indicated that the punishment of dismissal alone was proposed to be inflicted. The learned Solicitor General in support of his contention relies on the observations of the majority of the Federal Court quoted above and in particular on the passage where their Lordships stated "that in some cases it would be quite sufficient to indicate the charges, the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced in rank if all or any of the charges are proved, dismissal or reduction in rank would follow and that this would be sufficient in some cases." He also strongly relies on the circumstance that their Lordships of the Judicial Committee, after quoting the above passage, stated that they agreed with the view taken by the majority of the Federal Court.
But as we have already explained, the other observations of their Lordships of the Judicial Committee, which follow immediately, quite clearly indicate that what they agreed with was that a second opportunity was to be given to the government servant concerned after the charges had been brought home to him as a result of the enquiry. Their Lordships made it clear that no action could, in their view, be said to be proposed within the meaning of the section until a definite conclusion had been come to on the charges and the actual punishment to follow was provisionally determined on, for before that stage the charges remained unproved and the suggested punishments were merely hypothetical and that it was on that stage being reached that the statute gave the civil servant the opportunity for which sub-s. (3) made provision. A close perusal of the Judgment of the Judicial Committee in I. M. Lall's case will, however, show that the decision in that case did not proceed on the ground that an opportunity had not been given to I. M. Lall against the proposed punishment merely because in the notice several punishments were included, but the decision proceeded really on the ground that this opportunity should have been given after a stage had been reached where the charges had been established and the competent authority had applied its mind to the gravity or otherwise of the proved charge tentatively and proposed a particular punishment. There is as the Solicitor-General fairly concedes, no practical difficulty in following this procedure of giving two notices at the two stages. This procedure also has the merit of giving some assurance to the officer concerned that the competent authority maintains an open mind with regard to him. If the competent authority were to determine, before the charges were proved, that a particular punishment would be meted out to the government servant concerned, the latter may well feel that the competent authority had formed an opinion against him, generally on the subject matter of the charge or, at any rate, as regards the punishment itself. Considered from this aspect also the construction adopted by us appears to be consonant with the fundamental principle of jurisprudence that justice must not only be done but must also be seen to have been done.
Considered from this aspect also the construction adopted by us appears to be consonant with the fundamental principle of jurisprudence that justice must not only be done but must also be seen to have been done. (22) It is on the facts quite clear that, when Shri J. B. Tandon concluded his enquiry and definitely found the appellant guilty of practically all the charges he for the first time suggested that the punishment of dismissal should be the proper form of punishment in this case. Shri J. B. Tandon was not, however, the competent authority to dismiss the appellant and, therefore, he could only make a report to the Deputy Commissioner who was the person competent to dismiss the appellant. When the Deputy Commissioner accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant, it was on that stage being reached that the appellant was entitled to have a further opportunity given to him to show cause why that particular punishment should not be inflicted on him. There is, therefore, no getting away from the fact that Art. 311(2) has not been fully complied with and the appellant has not had the benefit of all the constitutional protection and accordingly his dismissal cannot be supported. We, therefore, accept this appeal and set' aside the order of the Single Judge and decree the appellant's suit by making a declaration that the order of dismissal passed by the Deputy Commissioner on December 17, 1951, purporting to dismiss the appellant from service was inoperative and that the appellant was a member of the service at the date of the institution of the suit out of which this appeal has arisen. The appellant will get costs throughout in all courts. He must pay all court fees that may be due from him. Under order O. 14, R. 7 of the Supreme Court Rules were direct that the appellants could be paid his fees which we assess at Rs. 250.
The appellant will get costs throughout in all courts. He must pay all court fees that may be due from him. Under order O. 14, R. 7 of the Supreme Court Rules were direct that the appellants could be paid his fees which we assess at Rs. 250. Appeal allowed." (18.) The respondent No.4-Commissioner of Schools also while granting approval has not provided any opportunity of hearing to the petitioner and merely, recorded that the Inquiry Officer has found the charges levelled against the petitioner to be proved after giving reasonable opportunity to the petitioner and as the petitioner did not remained present on 18.12.2003 before the Commissioner, the Commissioner of Schools granted approval to the major penalty levelled against the petitioner. (19.) Section 14(1) of the Act, 1972 reads as under: "Removal of a member.- (1) The State Government may, on the recommendation of the Board and after making such inquiry, if any, as it may think fit to make, remove any elected or nominated member of the Board from office, if such member has been guilty of any such misconduct as in the opinion of the State Government, renders him unfit to be continued as a member: Provided that, no such recommendation shall be made by the Board and no removal of the member shall be made by the State Government unless the member to whom it relates has been given a reasonable opportunity of showing cause why such recommendation should not be made, or as the case may be, why he should not be removed. (2) The name of any member who has been removed from office under sub-section (1) shall be published by the Board in the Official Gazette." (20.) On perusal of the above provisions, it is clear that the petitioner is not provided any reasonable opportunity of being heard in respect of the five charges levelled against him and the Commissioner of Schools without recording any reason, has mechanically granted approval of charges of moral turpitude though such charges were never proved before the Inquiry Committee. The Inquiry Committee or the Commissioner while granting proposal of removal from service have not taken into consideration the compromise arrived at between the petitioner and the student Miss Hiral Trivedi and the fact that the petitioner was acquitted in the criminal case which is the foundation of the initiation of the disciplinary inquiry against the petitioner.
The Inquiry Committee or the Commissioner while granting proposal of removal from service have not taken into consideration the compromise arrived at between the petitioner and the student Miss Hiral Trivedi and the fact that the petitioner was acquitted in the criminal case which is the foundation of the initiation of the disciplinary inquiry against the petitioner. Except levelling charges of moral turpitude against the petitioner, there is no categorical finding on the basis of the evidence produced before the Inquiry Committee so as to prove such charges. (21.) The Tribunal also has narrated the charges in the impugned order dated 12.09.2006 as under : "3. AS per the charge sheet dated 19.6.2003 there are five charges against the applicant. There was complaint against the applicant by a girl student Miss Hiral Rashmikant Trivedi studying tn Sid. XIL-B. Her father has also made complaint supporting the version of his daughter by application dated 6.12.2001. According to the complaint of the girl student, there was frequent indecent behaviour by the applicant with her. The applicant has also made obscene gestures and put unbefitting and improper demand before her several tines, She has also complained that when she was tn Std. XI, the applicant was her class-teacher and was compelling her to keep his tuition of logic subject, If she did not keep his tuition, he threatened her to be prepared for failure in the examination. She has also complained that she went for tuition along with four other girl students at the residence of the applicant on 28.12.2000 when the applicant's parents had gone to attend the funeral ceremony of their relative, the applicant was alone in the house. So, he told the other four girl students namely (1) Vishala Raval, (2) Vibhuti Vora, (3) Binita Chauhan and (4) Shveta Nayak to go home and the complainant Miss Hiral Trivedi was not allowed to go. Thereafter he closed all the doors and windows of bis house and misbehaved with her physically. The second charge is that even after passing Std. XI by Miss Hiral Trivedi, the applicant continued to give mental harassment to her. He was making obscene gestures towards her, following her on motorcycle, and always telling her that he is her husband and one day he would kidnap her forcibly and marry with her.
The second charge is that even after passing Std. XI by Miss Hiral Trivedi, the applicant continued to give mental harassment to her. He was making obscene gestures towards her, following her on motorcycle, and always telling her that he is her husband and one day he would kidnap her forcibly and marry with her. The third charge is that he was making private tuition of logic subject which is against the Regulations and Achar Samhita of the Education Department. The fourth charge is that on 10.12.2001 after the noon-recess he was absent from tie school, even though he was to attend the periods, without informing the Supervisor or the Principal. Such a conduct on the part of the applicant shows negligence towards the duty. The fifth charge is that he has not replied to the show cause notices of the Principal dated 17.12.2001, 15.1,2002 and 29.01.2002. By ignoring the notices of the Principal he hes misbehaved, committed misconduct and shown irresponsible behavior. 4. There was an Inquiry Committee constituted as per the Regulations, and it was comprised of three persons, namely (1) Shri Keyurbhai Joshi, representative of the Management, Shri Navnitbhai Patel, representative of the Board and (3) Shri Nikhileshkumar Upadhyay, representative of the applicant. 5. The applicant was under suspension from 24.3.2003. Alter constituting the inquiry committee, the first meeting was held on 8.6.2003 when all tho members of the inquiry committee were present. Thereafter in the second and third session, the representative of applicant remained absent All the papers demanded by the applicant were supplied to him and on the fourth session on 22.10.2003 the report of the inquiry committee was prepared and all the relevant papers were sent to the applicant on 23.10.2003. The report of the inquiry committee was also sent to the applicant on 13.11.2005 (Annexure 11 on page 52). A proposal was sent to the Commissioner of Schools for imposing major punishment on the applicant. The Commissioner arranged for the hearing. The applicant remained absent. But he made written representation, which has been taken into consideration by the Commissioner. The Commissioner has given approval to the proposal of the school for removal of the applicant from service considering the allegations as moral turpitude of serious nature, by his order dated 26.12.2003. Subsequently, relying on this order of the Commissioner, the school passed the order dated 31.12.2003 for removal of the applicant from service.
The Commissioner has given approval to the proposal of the school for removal of the applicant from service considering the allegations as moral turpitude of serious nature, by his order dated 26.12.2003. Subsequently, relying on this order of the Commissioner, the school passed the order dated 31.12.2003 for removal of the applicant from service. 6. In the second session of inquiry dated 17.08.2003 the applicant remained absent. In that meeting the girl student Miss Hiral Trivedi has signed her application of complaint dated 12.1.2002 in the presence of committee and on 28.8.2003 she has given affidavit on the stamp paper of Rs.20/- against the harassment of the applicant and also said that the statement made before the committee on 17.8.2003 is true and correct. Her father has also given the same statement on affidavit of stamp paper supporting the version of his daughter. The following students have given statements that they were having tuition of the applicant in the subject of logic, namely (1) Patel Bhanubhai D. (affidavit on stamp paper), (2) Prajapati Shilpaben, (3) Vankar Anjanaben, (4) Vankare Amitaben, (5) Parikh Anjanaben and (6) Patel Kinaben. The Supervisor Shri G.B. Parmar has supported the version that the applicant left the school after recess on 10.12. 2001 without informing any one though he was to attend the periods in the School. The Committee has held that all the charges are proved to be true." (22.) After recording the above facts, the Tribunal being led by such charges, without considering the manner in which such charges were held to be proved by the Inquiry Committee, in violation of the principles of natural justice held as under : "8. Looking to thy record and submissions of the opponent-school, the DEO and the report of the Commissioner, it seems that ample opportunity of hearing was granted to the applicant. He was allowed to appoint his representative in the inquiry committee. He appointed one Shri Nikhileshkumar Upadhyay as his representative. He remained Present at the first meeting, but thereafter the applicant as well as his representative preferred not to remain present and not to participate in the inquiry. In the preliminary inquiry one Shri Navnitbhai Soni was his representative. Thereafter he withdrew his name. The relevant documents have been supplied to the applicant.
He remained Present at the first meeting, but thereafter the applicant as well as his representative preferred not to remain present and not to participate in the inquiry. In the preliminary inquiry one Shri Navnitbhai Soni was his representative. Thereafter he withdrew his name. The relevant documents have been supplied to the applicant. It is not the case that a particular document that goes to the root of the matter was demanded by the applicant and was not given to him. The inquiry report has been also given to the applicant on 23.10.2003 by the Principal of the School as well as by the Secretary of the Mandal vide letter dated 13.11.2003 which is placed on record. The school has produced the statement of salary which is paid to the applicant during suspension period, Therefore, it cannot be said that subsistence allowance is not paid. If there is arithmetical discrepancy it can be settled even afterwards by sitting across the table. But it cannot be said that subsistence allowance has not been paid at all and therefore, the judgment cited by the applicant in this behalf does not help the applicant. 9. So far as earlier suspension and inquiry is concerned that suspension was without prior approval of the Commissioner under sec. 14(5) of the Act and after following the procedure if he is suspended again there cannot be any objection. Only thing is that the applicant is entitled to the full salary of the earlier part. So far as earlier inquiry report dated 14.9.2002 is concerned, it was a preliminary inquiry which has suggested that there is prima facie case against the applicant and which requires initiation of inquiry for major Punishment in accordance with law. Therefore, it cannot be said that the school management has started second-time inquiry. The facts of the present case are quite different from the facts of the cases cited by the applicant, which cannot help him. 10. From the above facts and circumstances, there is no ground to interfere with the impugned order of the school management as well as the Commissioner of Schools. As a result, the application is rejected." (23.) The above findings arrived at by the Tribunal is contrary to the documents on record inasmuch as there is no provision of preliminary inquiry against the employee of a School under the provisions of the Regulations, 1974.
As a result, the application is rejected." (23.) The above findings arrived at by the Tribunal is contrary to the documents on record inasmuch as there is no provision of preliminary inquiry against the employee of a School under the provisions of the Regulations, 1974. The Tribunal therefore, committed an error of considering the inquiry conducted in the year 2002 as a preliminary inquiry though such inquiry was conducted under Regulation 27 of the Regulations, 1974 because at the relevant time, the Teachers of Higher Secondary Section were not covered by the provisions of Section 36 of the Act, 1972. The Tribunal has not considered this legal aspect of applicability of Section 36 of the Act, 1972 to the registered private Higher Secondary School which has been inserted in Section 36(1) of the Act, 1972 with effect from 2013 by the Gujarat Act No.20 of 2013. However, "Teacher" is defined under Clause (x) of Section 2 of the Act, 1972 to mean a Teacher of the registered School but does not include a Head Master. "Registered School" is defined under Clause (s) of Section 2 of the Act, 1972 to mean a Secondary School or a Higher Secondary School or a post basic school registered by the Board under Section 31 of the Act, 1972. Words "or a Higher Secondary School" were inserted by Section 4(8) of the Gujarat Act No.14 of 2002. The words "Private Higher Secondary School" is defined under Clause (nn) of Section 2 of the Act, 1972 which means Higher Secondary School which is not owned managed or sponsored by the Central or State Government. The said Clause was inserted by Section 4(6) of the Gujarat Act No.14 of 2002. (24.) Thus, a Teacher of a registered Higher Secondary School would be governed by the provisions of the Act, 1972 and accordingly, the petitioner would be subjected to the provisions of the Act, 1972 including the provisions of Section 36(1) of the said Act. (25.) Thus, the impugned order dated 26.12.2003 passed by the respondent No.4-Commissioner of Schools and the order dated 12.09.2006 passed by the Tribunal confirming the proposal of removal of petitioner from service based upon the inquiry report dated 22.10.2003 which is prepared contrary to the provisions of the Acts and Regulations as well as in violation of the principles of natural justice, cannot be sustained.
(26.) In view of the foregoing reasons, the petition is allowed. The impugned order dated 26.12.2003 passed by the respondent No.4, order dated 31.12.2003 passed by the School Management and the order dated 12.09.2006 passed by the Tribunal are hereby, quashed and set aside and the petitioner is ordered to be reinstated in the School run by the respondent No.1-Trust. However, the petitioner shall not be entitled to any back wages as the petitioner has not rendered any service since 2003 but the petitioner shall be granted continuity of service for all other consequential purposes including the retirement benefits. Rule is made absolute to the aforesaid extent. No orders as to cost. (27.) In view of the order passed in the main matter, the Civil Application is accordingly disposed of.