JUDGMENT : (Biren Vaishnav, J.) 1. This appeal under Clause 15 of the Letters Patent has been filed by the State of Gujarat, challenging the oral judgement dated 10.09.2014, passed by the learned Single Judge. 2. By the order under challenge, the learned Single Judge, in a petition filed by the Teacher, allowed the petition reversing the order of the Education Tribunal which had dismissed his application. By dismissing the application, the Tribunal had upheld the order of dismissal of the applicant – original petitioner before the learned Single Judge. 3. Briefly, the facts indicate that the respondent No.1 was engaged as a Teacher in the school – respondent No.4, run by the respondent No.3-Trust. The school found that he was having an illicit relationship with a colleague teacher. Charges were framed, based on which a departmental inquiry by a duly constituted Committee was held and the respondent No.1 having found to have committed misconduct, was dismissed from service. 3.1 On a challenge to his dismissal before the Tribunal, the Tribunal confirmed the order. The learned Single Judge, reversed the dismissal and ordered reinstatement. The order of the learned Single Judge is stayed pending the appeal. 4. Mr.Rohan Shah, learned Assistant Government Pleader appearing for the appellant – State, would make the following submission: 4.1 That the learned Single Judge committed an error in not appreciating the fact that full opportunity of hearing was given to the respondent herein in the enquiry and that certain insignificant lapses would not vitiate the enquiry or the order of dismissal. 4.2 That the learned Single Judge has failed to appreciate and consider that the management and the approving authority have objectively considered the facts and thereafter came to the conclusion that the respondent herein cannot be retained in service and also that neither the Tribunal nor this Court can examine the matter as Appellate Authority but only procedural aspects can be gone into. 4.3 That though the third Member of the Committee was ill, but after his recovery, his opinion/decision has been considered by the disciplinary authority while passing the order of punishment. 5. Mr.Sanat Pandya, learned counsel for the respondent No.1, supported the order of the learned Single Judge. He would submit that the inquiry was held in violation of principles of natural justice. 5. Mr.Sanat Pandya, learned counsel for the respondent No.1, supported the order of the learned Single Judge. He would submit that the inquiry was held in violation of principles of natural justice. In the submission of Mr.Pandya, the inquiry held in absence of a third Member, who could not participate, was bad. That there was no evidence before the Inquiry Officer to hold the charge to be proved. 6. Mr.R.R.Vakil, learned counsel appearing for the Management, would support the appellant – State. He would submit that the Inquiry Committee was rightly constituted in accordance with Rule 27 of the Gujarat Secondary Education Regulations, 1974 Rules. Once the Tribunal had found the order of dismissal to be just and proper, the learned Single Judge could not have upset the same. 7. Having heard the learned counsels for the respective parties and having perused the orders of the learned Single Judge and the Education Tribunal, it is evident that after appreciating the contentions and aspects, the fact finding authority i.e. the Education Tribunal held thus: “4.1 After going through the documents and hearing the arguments, it is clear that looking to the charges bothe the cases cannot be tried separately or dealt with separately. The charges are based on the conduct and behaviour of a male teacher (Application No. 108/96) and of a female teacher (Application No. 115/96) with each other, either of them cannot be held guilty or either of them cannot be exonerated as innocent. 4.2 The main charge against Shri Shaikh is that there are complaints from the co-teacher that he always works together with one Assistant Teacher Smt. Pushpaben Patel. They try to work together for any educational work or for preparation of class register and in the guise of doing work with the help of each other they are showing indecent behaviour. They are taking unlimited liberty with each other and by that way they have committed misconduct and the act of moral turpitude. It is also an allegation against Shri Shaikh that his immoral relation with Smt.Pushpaben Patel, as Assistant Teacher, increases day-by-day and it creates bad impression on the students, staff members and the society as a whole. He has photographed himself with Pushpaben as if they are husband and wife and committed the moral turpitude. It is also an allegation against Shri Shaikh that his immoral relation with Smt.Pushpaben Patel, as Assistant Teacher, increases day-by-day and it creates bad impression on the students, staff members and the society as a whole. He has photographed himself with Pushpaben as if they are husband and wife and committed the moral turpitude. It is also a charge that his relation with Pushpaben Patel within and outside the school premises has tarnished his character and there are application received in this regard and he has committed moral turpitude and it has tarnished the prestige of the school. 4.3 The charge against the lady teacher (Application No. 115/96) is that there are written complaints received from the staff members that the applicant is behaving indecently with other teacher Shri U.G.Shaikh and such obscene and indecent behaviour is not befitting to a school-teacher and by this way she was committed moral turpitude. It is also a charge that her immoral relation with Shri Shaikh is increasing day-by-day and it creates bad impression on the boys and girls students as well as staff members and wife. There is another charge also that they always sit together to solve the problems/difficulties of the students and they prepare registers and other related work with the help of each other and in the guise of working and helping each other, they are showing indecent behaviour. In the past also she has given in writing that she will not repeat such indecent behaviour with Shri Shaikh in future, even then such behaviour on her part with Shri Shaikh was going on. 4.4 There is another allegation about her moving with the outsiders who are not connected with the school activity. This also depicts bad impression on the mind of staff members and the children. The school has received some applications and indecent letters regarding her obscene behaviour. It shows that she is tending towards moral turpitude. 4.5 When a legally constituted inquiry committee has by majority decided that the applicants are guilty of charges of their obscene behaviour with each other the Tribunal does not want to interfere with it. The committee has examined above five teachers, one Supervisor, the Principal of the School, one lady teacher, two members of the management and Sarpanch of the village as their witnesses. The delinquent teachers were also given chance to examine their witnesses. The committee has examined above five teachers, one Supervisor, the Principal of the School, one lady teacher, two members of the management and Sarpanch of the village as their witnesses. The delinquent teachers were also given chance to examine their witnesses. They have also produced their witnesses. The witnesses produced by the school are connected with day-by-day activity of the school, while the witnesses produced by the teacher are some merchants, traders, one agriculturist and one advocate who are not supposed to be present in the school premises every day or rather any time. The behaviour of the delinquent teachers with each other was objectionable, obscene and criticized by the staff members and the students. A male and a female talking with each other in the public premises or in a private office is very natural and normal, but the stule of talking, their action and their gesture would reflect so many things to the persons who are watching them. A person who is not present on the scene cannot know all about this. If the person on the spot feels that the behaviour of the delinquent teachers was obscene and not befitting to the teachers in the school, then the Tribunal cannot interfere and give its own conclusion. As per judgement cited above, the departmental inquiry does not require the strict proof as a criminal trial. The deposition of the witnesses, their cross-examination, documentary proofs, the general photograph which the husband and wife use to have in old age, the photograph with bust size when the male is at the right side and the female is at the left side is produced. The bill of photograph and the hand writing of Shri Shaikh behind the bill was produced before the committee. The confession of the lady teacher twice in past and one confession in the presence of her parents show that it is not the case of “no evidence”. The principles of natural justice have been followed. The opportunity of defending themselves was alsot granted to them. The Tribunal is not sitting over the appeal to the inquiry committee. As held in 1997 (1) G.L.H p.652 and 1998 (2) GLH 238 , in the departmental inquiry only fair opportunity to the delinquent at the inquiry must be given and strict rules of evidence do not apply. The opportunity of defending themselves was alsot granted to them. The Tribunal is not sitting over the appeal to the inquiry committee. As held in 1997 (1) G.L.H p.652 and 1998 (2) GLH 238 , in the departmental inquiry only fair opportunity to the delinquent at the inquiry must be given and strict rules of evidence do not apply. The defence of the teacher Shri Shaikh that he belongs to Mohammedan community, which is a minority community, and therefore the authority is bias against him, cannot be accepted. The other lady teacher is not of that community. Even otherwise, from record it cannot be accepted. In view of the above discussion, both the applications are rejected, with no order as to costs.” 8. Appreciating the relevant legal provisions of the Gujarat Secondary Education Regulations, 1974, especially Clause 27(A) &(B), in paras 26 to 28, the learned Single Judge, held thus: “26. From the provisions made in the Code above the pertinent aspects noticed as above are that Section 36 of the Act can be invoked if an enquiry in accordance with Rules by validly constituted is held. The Constitution of the enquiry committee is of three representatives and none of them is empowered to act as a President or the Chairman of the Committee. This would mean that powers of each of the members constituting committee are equal. The Code also do not contemplate a decision by majority. It contemplates a decision by committee which would necessarily mean that each of the members can record their own findings in absence of unanimity amongst them and the management would be obliged to consider all the reports if there are more than one before proposing the punishment to the delinquent. It is only in absence of one of the members as contemplated in clause 5, on expiry of 7 days notice for commencement of the enquiry, that the committee of two members would be valid. This clause will apply in the event of initial notice for commencement of the proceedings. However, on the assumption that said Clause will apply on the facts of this case, the clause cannot be read in isolation to clause 10 which prescribes 150 days as outer limit for completion of the enquiry subject to the enabling consequences empowering the District Education Officer to take appropriate decision in that regard. 27. However, on the assumption that said Clause will apply on the facts of this case, the clause cannot be read in isolation to clause 10 which prescribes 150 days as outer limit for completion of the enquiry subject to the enabling consequences empowering the District Education Officer to take appropriate decision in that regard. 27. Reverting to the facts of the present case, undisputedly, a valid reason for postponement of the enquiry on account of hospitalization of the representative of the petitioner was informed to the two members of the committee. Though not empowered to act as chairman, one of the member treated himself as chairman and proceeded to reconstitute the committee to the strength of two members and himself ruled that such constitution is valid rather than referring the matter to the District Education Officer as contemplated in clause 10 of the Code. Not only that the height of the prejudice of the two members was apparent when they noted the rejection of the report of third member even before its submission. Such an approach of the two members of the committee was not only prejudicial but also arbitrary and suffered with non-application of mind inasmuch as, the report of third member could not have been rejected in its absence. Further no such power to reject the report of one member by other member of the committee is contemplated in the Code. 28. It is also noticed that the management proposed a punishment on the delinquent on 4th January 1996 without waiting for the report of the third member, which was submitted on 6 of January 1996. This would again demonstrate the prejudice of the management against the petitioner. The purpose of appointment of representative under the Code by delinquent was to effectively present his side of the story and/or to assist the management to objectively look at the facts and evidence and the comments of the representative of the delinquent in the event of his difference of opinion from other members of the committee. However the management preferred to ignore the report of the third member and proceeded to dismiss the petitioner with prejudice.” 9. However the management preferred to ignore the report of the third member and proceeded to dismiss the petitioner with prejudice.” 9. Reading the provisions of the rule and facts would indicate that the Committee was constituted in accordance with the regulation and merely because of the one member being a Chairperson, which the rule itself prescribes cannot be held to be a procedural irregularity going to the root of the matter. Even on facts, there was no violation to consider a breach of non-compliance of the mandate of completing the inquiry proceedings in a period of 150 days. This was not even a case of the teacher even before the Tribunal. 10. The learned Single Judge, therefore, clearly fell in error in reversing an order of the Tribunal which had affirmed the dismissal of a teacher who was charged of moral turpitude. The appeal is accordingly, allowed and the order of the learned Single Judge dated 10.09.2014 passed in Special Civil Application No. 8371 of 2006 is hereby quashed and set aside.