Gujarat High Court
Jagdishwarnath ... vs Vidyabharti Trust on 26 August, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26656 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
===============================================================
JAGDISHWARNATH CHANDRABHUISHANTRIPATHI
Versus
VIDYABHARTI TRUST & 1 other(s)
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Appearance:
MR GAUTAM JOSHI, LD.SR. ADV WITH MR.VYOM H SHAH(9387) for the
Petitioner(s) No. 1
MR,K.M.PATEL, LD.SR.ADV WITH MR KM SHETH(838) for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 26/08/2022
CAV JUDGMENT
Heard learned Senior Advocate Mr.Gautam Joshi assisted by learned advocate Mr.Vyom Shah for the Page 1 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 petitioner and learned Senior Advocate Mr.K.M.Patel assisted by learned advocate Mr.K.M.Sheth for the respondent No.1-School Management.
1. The petitioner has challenged the judgment and order dated 13th October, 2006 passed by the Gujarat Secondary Education Tribunal in Application No.252 of 2005 preferred by the petitioner being aggrieved by the order of his dismissal passed by the respondent-School Management on 31st October, 2005.
2.1. The brief facts of the case are that the petitioner was working as Principal of the School run by the respondent No.1-Trust which is a Public Charitable Trust duly registered and incorporated under the provisions of the Bombay Public Trust Act, 1950 and it is a grant-in-aid School duly recognised and registered under the provisions of Gujarat Secondary Education Act, 1972 (for short 'the Act, 1972').
Page 2 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 2.2. The petitioner was appointed as Principal on 17.06.1991 and was also provided with residential accommodation by the respondent-
School Management. According to the petitioner, the School Management wanted the petitioner to vacate the residential premises and the same was subject matter of Rent Suit in a Small Cause Court at Surat in the year 1994 and thereafter the School-Management was required to entered into a settlement between the petitioner and on and from that incident, alleged trouble started for the petitioner from the Management side.
2.3. A show-cause notice dated 29.11.1995 came to be issued against the petitioner which was replied by the petitioner on 18.12.1995. The petitioner was thereafter served with a chargesheet on 06.09.1996 which was also replied by the petitioner and inquiry was started and as a result of such inquiry, the petitioner was dismissed from services vide order dated Page 3 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 11.11.1998.
2.4. The petitioner challenged the said dismissal order by preferring Application No.23 of 1999 before the Gujarat Secondary Education Tribunal (for short 'the Tribunal') under Section 38 of the Act, 1972. The Tribunal by order dated 11th October, 2001 partly allowed the application on the ground that the inquiry held against the petitioner was not in consonance with the principles of natural justice and accordingly, Tribunal directed and permitted the respondent-
School Management to hold inquiry afresh by constituting three member Inquiry Committee in which the Inquiry Officer who conducted the inquiry should not be a member.
2.5. The order dated 11th October, 2001 was challenged by the respondent-School Management by preferring Special Civil Application No.11436 of 2001 before this Court which was partly allowed Page 4 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 vide order dated 26th March, 2002 by modifying the order of the Tribunal to the effect that upon reinstatement of the petitioner, he would be treated under suspension and would be entitled to subsistence allowance from the date of dismissal till the completion of the inquiry which was ordered to be held afresh against the petitioner.
2.6. Thereafter, the respondent-School Management served a fresh show-cause notice identical to the earlier show-cause notice upon the petitioner on 22nd October 2002. The Inquiry Committee of three members consisting of representative of the Gujarat Secondary Education Board, Representative of the School Management and Representative of the petitioner was constituted. The newly constituted Inquiry Committee held 19 sittings wherein the documentary and oral evidence by the petitioner and the respondent-School Management were educed, witnesses were examined and inquiry was Page 5 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 concluded.
2.7. It is the case of the petitioner that behind the back of the petitioner without informing to members of the Inquiry Committee, i.e., the Chairman, who was the representative of the Gujarat Secondary Education Board and the representative of the petitioner, 20th sitting was held on 25th February 2003 by the Management in which the petitioner was not informed nor the aforesaid two representatives were present, and proceedings were undertaken. The petitioner came to know about such 20th sitting only after the petitioner received the inquiry report of the minority member who differed from the majority view. The two members of the Inquiry Committee, i.e., Chairman and representative of the petitioner after waiting for the report of the Management Representative, submitted the report exonerating the petitioner from the charges levelled against him. The Management Page 6 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 Representative submitted independent report to the Management holding the petitioner guilty.
2.8. The petitioner was served with the second show-cause notice dated 21st March 2003. In the show-cause notice and the chargesheet, five charges were levelled against the petitioner for illegal passing or failing of students by tempering with the results of students, framing Rules of Examination without taking the members of the Education Committee in confidence in the year 1995, by not preparing the answer sheets question wise. The petitioner challenged the said show-cause notice before the Tribunal by preferring Application No.126 of 2003 on the ground that though majority of the Committee did not hold the petitioner guilty about the charges levelled against the petitioner, then second show-cause notice could not have been issued by the Management stating that the charges were held to be proved.
Page 7 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 2.9. During the pendency of the aforesaid Application No.126 of 2003 before the Tribunal, the respondent-Management issued the another show-cause notice on 13th April, 2004 wherein, it was stated that the earlier show-cause notice dated 21st March, 2003 to be treated as cancelled.
The petitioner was also served with a minority report along with the show-cause notice wherein the charges against the petitioner were held to be proved. When the matter was carried to the Tribunal along with the show-cause notice dated 13th April, 2004, report of the majority members of the Inquiry Committee was supplied to the petitioner wherein the petitioner was exonerated from the charges levelled against him. The petitioner replied to the show-cause notice on 5th May, 2004.
2.10. The respondent-School Management thereafter issued third show-cause notice dated Page 8 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 10th September, 2005 running into 140 pages wherein reasons are assigned for disagreement with the findings of the majority members of the Inquiry Committee.
2.11. The petitioner submitted his reply dated 10th October, 2005 raising an objection that the respondent-Management has no authority to overrule the decision of the majority members of the Inquiry Committee as per the Rules and Conducts (Acharsanhita), as the Inquiry Committee was consisting of a neutral umpire of the Gujarat Secondary Education Board and two representatives of Management and the petitioner were the part of the Inquiry Committee and therefore, Acharsanhita do not confer on the management to disagree with the majority findings of the Inquiry Committee.
However, the respondent-School Management passed an order dated 31.10.2005 dismissing the petitioner from the services.
Page 9 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 2.12. The petitioner therefore being aggrieved with the dismissal order dated 31st October 2005 preferred Application No.252 of 2005 before the Tribunal. The Tribunal after considering the reply filed by the respondent-School Management passed the impugned judgment and order dated 13th October 2006 and dismissed the Application No.252 of 2005 filed by the petitioner. The petitioner has therefore preferred this petition.
3.1. Learned Senior Advocate Mr. Gautam Joshi submitted that the chargesheet is issued by the Inquiry Committee and therefore, the School Management cannot be considered to be Disciplinary Authority as it is understood with reference to the Civil Service Disciplinary and Appeal Rules.
3.2. Learned Senior Advocate Mr.Joshi referred to and relied upon Rules 27A (6), (8), (9), (11) and (13) of the Gujarat Secondary Page 10 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 Education Regulations, 1974 (for short 'the Regulations') to submit that the procedure prescribed by the Regulations is mandatory. It was submitted that the Chairman of the Inquiry Committee is a government representative, and that the inquiry report has to be a joint report as interpreted by the Hon'ble Supreme Court in various cases and the reliance placed on the individual minority report of the representative of the School Management is in violation of the Regulations and therefore, the entire inquiry proceedings stand vitiated.
3.3. It was submitted that the show-cause notice dated 13th April 2004 was issued by the School Management after the period prescribed under the Regulations and therefore no consequences ought to have been taken on the basis of such time barred notice and hence, all subsequent actions would fail.
Page 11 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 3.4. It was submitted that the Tribunal has failed to consider that the charges are held to be proved with the help of the legal evidence only by the minority member of the Inquiry Committee and therefore the School Management could not have taken a contrary decision than the majority findings of the Inquiry Committee.
3.5. It was submitted that the respondent-
School Management has no power to issue show-
cause notice disagreeing with the report of the majority members as the words in the Regulations are "on the basis of the report of the enquiry committee" and not "after considering the report of the inquiry committee". It was therefore submitted that the entire proceedings initiated by the respondent-School Management relying upon the minority findings of the Inquiry Committee are contrary to the provisions of the Act, 1972 and the Regulations.
Page 12 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 3.6. It was submitted that the Rules and Regulations framed under the Act, 1972 are independent that of the Rules and Regulations framed under Article 309 read with Article 311 of the Constitution of India. As the Inquiry Report is submitted as per the Regulation 27A (6) and the procedure prescribed therein for conduct of the inquiry for imposing major penalty, as per the prescribed procedure, the respondent-School Management has no right to disagree with the majority findings of the Inquiry Committee whereby, the petitioner was exonerated from all the charges.
3.7. It was submitted that the respondent-
School Management for the reasons which are provided with the third show-cause notice dated 10th September, 2005 issued to the petitioner which runs into 140 pages could not have disagreed with the findings of the majority members of the Inquiry Committee so as to agree Page 13 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 with the findings of the one minority member who is the representative of the School Management to impose major penalty upon the petitioner by dismissing him from service. In support of such submissions learned senior advocate Mr.Joshi relied upon the following decisions :
1. Vidya Vikas Mandal Versus Education Officer1:
"(9) As rightly pointed out by the learned counsel for the appellants, Rule 37 (6), which is mandatory in nature, has not been strictly complied with. The Inquiry Committee comprising of three members, as already noticed, only one member nominated by the Management has submitted his Inquiry report within the time stipulated as per Rule 37 (6) and admittedly, the other two members nominated by the employee and an independent member have not submitted their report within the time prescribed under Rule 37 (6).
However, the learned Judges of the Division Bench, though noticed that the two members out of three found the employee not guilty, failed to appreciate that the said findings by the two members of the committee were submitted after the expiry of the period prescribed under Rule 37(6). In our opinion, the report submitted by individual members is also not in accordance with the Rules. When the Committee of three members are appointed to inquire into a particular matter, all the three should submit their combined report 1 2007 Law Suit (SC) 122 Page 14 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 whether consenting or otherwise. Since the report is not in accordance with the mandatory provisions, the Tribunal and the learned Single Judge and also the Division Bench of the High Court have committed a serious error in accepting the said report and acted on it and thereby ordering the reinstatement with back wages. Since the reinstatement and back wages now ordered are quite contrary to the mandatory provisions of Rule 37 (6), we have no hesitation in setting aside the order passed by the Tribunal, and learned Single Judge and also of the Division Bench of the High Court. In addition, we also set aside the order passed by the Management based on the report submitted by the single member of the Committee, which is also quite contrary to the Rules.
(10) In view of the order now passed by this Court, the Rule 36(2)(a) is now to be invoked and as per the said Rule, one member from amongst the members of the Management is to be nominated by the Management or by the President of the Management if so authorised by the Management, and one member is to be nominated from amongst the employees of any private school and the third member to be chosen by the Chief Executive Officer from the panel of teachers on whom State/National Award has been conferred. We direct the Management of the School to constitute the Committee in accordance with sub-Rules (i)
(ii) & (iii) of Rule 36(2)(a) to go into the matter afresh. The respondent no.2, the employee, will be now treated under suspension and he will be entitled to the subsistence allowance as per rules with effect from the date of termination of his services. The inquiry shall be completed by Page 15 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 the Committee within a period of six months from the date of their nomination/constitution."
2. Glaxo Laboratories India Limited Versus Presiding Officer, Labour Court, Meerut2:
"22. Having examined the matter both on principle and precedent, it would clearly emerge that clause 10 of S. O. 22 which collects various heads of misconduct must be strictly construed being a penal provision in the sense that on the proof a misconduct therein enumerated, penalty upto and inclusive of dismissal from service can be imposed. We see no reason for departing from the well-established canon of construction that penal provisions must receive strict construction, and not extended beyond their normal requirement. The framer's intention in using the expression 'committed within the premises of the establishment or in the vicinity thereof' are the words of limitation and they must receive due attention at the hands of the interpreter and the clause should not receive such broad construction as to render the last clause redundant."
3. W.H.King Versus Republic of India and another3:
"10. As the statute creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject. We are not concerned so much with what might possibly have been intend-ed as with what has 2 1983 LawSuit (SC) 299 3 AIR 1952 Supreme Court 156 Page 16 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 been actually said in and by the language employed."
4. Employees State Insurance Corporation Versus H M T LTD4:
"18. A penal provision should be construed strictly. Only because a provision has been made for levy of penalty, the same by itself would not lead to the conclusion that penalty must be levied in all situations. Such an intention on the part of the legislature is not decipherable from Section 85B of the Act. When a discretionary jurisdiction has been conferred on a statutory authority to levy penal damages by reason of an enabling provision, the same cannot be construed as imperative. Even otherwise, an endeavour should be made to construe such penal provisions as discretionary, under the statute is held to be mandatory in character.
19. In Prestolite (India) Ltd. v. Regional Director and Anr. [1994 Supp.(3) SCC 690], this Court rejected a contention raised by the Regional Director of Employees Insurance that under the Employee's State Inusrance General Regulations guidelines have been indicated showing as to how damages for delayed payment are to be imposed and since such guidelines have been followed, no exception should be taken thereto made to the impugned adjudication, stating :
"Even if the regulations have prescribed general guidelines and the upper limits at which the imposition of damages can be 4 2008 LawSuit (SC) 1041 Page 17 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 made, it cannot be contended that in no case, the mitigating circumstances can be taken into consideration by the adjudicating authority in finally deciding the matter and it is bound to act mechanically in applying the uppermost limit of the table. In the instant case, it appears to us that the order has been passed without indicating any reason whatsoever as to why grounds for delayed payment were not to be accepted. There is no indication as to why the imposition of damages at the rate specified in the order was required to be made. Simply because the appellant did not appear in person and produce materials to support the objections, the employee's case could not be discarded in limine. On the contrary, the objection ought to have been considered on merits."
20. In Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai and Anr. [(2007) 6 SCC 329], this Court stated :
"40. Thus, it appears that there is distinct line of authorities which clearly lays down that in considering a question of penalty, means rea is not a relevant consideration. Even assuming that when the statute says that one is liable for penalty if one furnishes inaccurate particulars, it may or may not by itself be held to be enough if the particulars furnished are found to be inaccurate is anything more needed but the question would still be as to whether reliance placed on some valuation of an approved valuer and, therefore, the furnishing of inaccurate particulars was not deliberate, Page 18 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 meaning thereby that an element of mens rea is needed before penalty can be imposed, should have received serious consideration in the light of a large number of decisions of this Court."
21. We agree with the said view as also for the additional reason that the subordinate legislation cannot override the principal legislative provisions. The statute itself does not say that a penalty has to be levied only in the manner prescribed. It is also not a case where the authority is left with no discretion. The legislation does not provide that adjudication for the purpose of levy of penalty proceeding would be a mere formality or imposition of penalty as also computation of the quantum thereof became a foregone conclusion. Ordinarily, even such a provision would not be held to providing for mandatory imposition of penalty, if the proceeding is an adjudicatory one or compliance of the principles of natural justice is necessary thereunder.
22. Existence of mens rea or actus reus to contravene a statutory provision must also be held to be a necessary ingredient for levy of damages and/or the quantum thereof.
23. The Division Bench of the High Court, therefore, in our opinion, was not wrong in opining that Section 85-B provides for an enabling provision. What, however, cannot be appreciated that is such a construction itself would lead to the conclusion that the High Court is entitled to substitute its view in place of the statutory authority. In our considered view, therefore, the matter should Page 19 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 be considered afresh for determination of quantum of damages etc. in the light of the observations made hereinbefore."
5. Roop Singh Negi Versus Punjab National Bank5:
"10. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the 5 2008 LawSuit (SC) 1893 Page 20 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
12. In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484], this Court held:
"17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
13. In Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. (supra), whereupon Page 21 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 both the learned counsel relied upon, this Court held:
"26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC 709] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India and Ors. (1958 SCR 1080) and State of Uttar Pradesh v. Om Prakash Gupta (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements
(i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi v. State of Bank of India and Ors. (1984) 1 SCC 43]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v.
State of Rajasthan (1986) 3 SCC 454] (5) Page 22 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. [See Director (Inspection & quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) Cal. LJ 344. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v. Prakash Chand Jain (1969) 1 SCR 735, Kuldeep Singh v.
Commissioner of Police and Ors. (1999) 2 SCC 10]."
The judgment and decree passed against the respondent therein had attained finality.
In the said suit, the enquiry report in the disciplinary proceeding was considered, the same was held to have been based on no evidence. Appellant therein in the aforementioned situation filed a Writ Petition questioning the validity of the disciplinary proceeding, the same was dismissed. This Court held that when a crucial finding like forgery was arrived at on an evidence which is non est in the eye of the law, the civil court would have jurisdiction to interfere in the matter. This Court emphasized that a finding can be arrived at by the Enquiry Officer if there is some evidence on record. It was furthermore found that the order of the appellate authority suffered from non application of mind. This Court referred to its earlier Page 23 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 decision in Capt.M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679] to opine:
"41. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points point that the same would depend upon other factors as well. See e.g. Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. (2004) 8 SCC 200 and Manager, Reserve Bank of India Bangalore v. S. Mani and Ors. (2005) 5 SCC 100. Each case is, therefore, required to be considered on its own facts.
42. It is equally well settled that the power of judicial review would not be refused to be exercised by the High Court, although despite it would be lawful to do so. In Manager, Reserve Bank of India Bangalore (supra) this Court observed:
39. The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out."
14. In that case also, the learned single judge proceeded on the basis that the disadvantages of an employer is that such acts are committed in secrecy and in Page 24 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 conspiracy with the person affected by the accident, stating:
"....No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipso dixit on his part cannot be a substitute of evidence.
45. The findings of the learned Single Judge to the effect that 'it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality' may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same error."Page 25 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022
C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022
15. Yet again in M.V. Bijlani vs. Union of India & ors. (2006) 5 SCC 88, this Court held:
"....Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
16. Yet again in Jasbir Singh vs. Punjab & Sind Bank & ors. [(2007) 1 SCC 566], this court followed Narinder Mohan Arya vs. United India Insurance Co. Ltd. & ors. (supra), stating:
"12. In a case of this nature, therefore, the High Court should have applied its mind to the fact of the matter with reference to the materials brought on records. It failed so to do."Page 26 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022
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6. Municipal Corporation of Greater Mumbai; Shri Ram B Dhus Versus Anil Shantaram Khoje and Others6 :
"10. We are immediately reminded of the observations made in Babu Verghese vs Bar Council of Kerala (1999) 1 SCR 1121, when this Court was called upon to consider a case under the Advocates Act. While doing so, 9 Page 10 we applied the principles earlier enunciated in Taylor vs Taylor (1875)1 ChD 426 and in Nazir Ahmad vs King Emperor AIR 1936 PC 253. The Court observed as follows:
"It is the basic principles of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all."
4.1. On the other hand, learned Senior Advocate Mr.K.M.Patel assisted by learned advocate Mr.K.M.Sheth for the respondent No.1 school-management submitted that the Tribunal after considering the evidence on record has come to the conclusion that the petitioner holding very important and crucial post of Principal in School committed various irregularities and charges levelled against the petitioner are proved and hence, the respondent No.1 has rightly 6 2014 LawSuit (SC) 143 Page 27 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 dismissed the petitioner because such a person could not have been retained in the School as a Principal.
4.2. It was submitted that the respondent No.1-School Management has framed the charges in accordance with the Regulations,and all relevant documents were supplied to the petitioner and there is no violation of the principles of natural justice.
4.3. Learned Senior Advocate Mr.Patel invited the attention of the Court that the respondent No.1 examined as many as twenty witnesses which included lady Teachers, Staff Members and Guardians and the petitioner was given an opportunity to cross-examine the witnesses. It was submitted that after proving the serious charges against the petitioner, with the help of the legal evidence by observing the rules of inquiry and principles of natural justice, the Page 28 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 impugned order dated 31.10.2005 of dismissing the petitioner from service was passed.
4.4. It was further submitted that the respondent No.1-School being a minority institution, it is not obliged to obtain a prior approval from the D.E.O. under Section 36 of the Act, 1972 to its action of dismissing the petitioner.
4.5. It was pointed out that there is no procedure prescribed in the 'Acharsanhita' and the Regulations in the event of Disciplinary Authority disagreeing with the majority decision of Inquiry Committee but in the facts of the case when the principles of natural justice have been followed, the Tribunal has rightly not interfered with the decision of the respondent No.1-School Management on the ground that 'Acharsanhita' is silent on the point. It was submitted that the procedure prescribed under Page 29 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 Regulation 27 and 27A is not applicable to the minority institutions. It was also pointed out that though there is a delay of sixteen months between the submission of reply of the petitioner to the second show-cause notice and the third show-cause notice, the same has not caused any prejudice to the case of the petitioner as the petitioner was made aware about the detailed reasons running into 140 pages for disagreement of the respondent No.1- School Management with the findings of the majority members of the Inquiry Committee.
4.6. Learned Senior Advocate Mr.Patel submitted that the findings of the majority members of the Inquiry Committee is not binding upon the Disciplinary Authority.
4.7. With regard to the contention of the petitioner that he was not made aware about the holding of 20th meeting by Inquiry Committee and Page 30 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 with regard to the charges proved against the petitioner as per the findings of one minority member of the Inquiry Committee, learned Senior Advocate Mr.Patel referred to and relied upon the following averments made in the affidavit in reply filed on behalf of the respondent No.1- School Management:
"11. With regard to the Averments made in pare 3.5 of the petition, I say and submit that I have already stated earlier that the Committees had held 19th sitting and on the request of the petitioner himself, 2Oth meeting was held. As per the record, the petitioner was informed but he chose not to remain present in the 20th meeting which was held on his request. Therefore, in his absence, nothing has been done and after waiting upto 2.30 noon, the Inquiry Committee has sent witnesses back since the petitioner chose not to remain present though he was informed, therefore, that 20th meeting was done behind his back concluded, nothing was done behind his back. Therefore, it is not correct that the petitioner was not aware about 20th sitting, on the contrary, from the said statement, which has been made on oath by the petitioner, is against the record and which shows the manner and and how the petitioner has acted as the petitioner was Headmaster.
12. With regard to the averments made in para 3.6 of the petitions, I gay and submit that Page 31 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 also, the aforesaid charges are vary serious and all charges levelled against the petitioner are proved. Not only that but there were 19th meeting held. The management has supplied all relevant documents to the delinquent. 20 witnesses have been examined by the management, which includes lady teacher, staff members, guardians and students. Not only that but opportunity was also given to the present petitioner to cross-examine them. Even at no point of time, there were no grievances of the petitioner for not supplying the documents or not allowing him to cross-examine the said witnesses. After giving full opportunity of hearing as well as observing the principle of natural justice, inquiry concluded and according to the legal position of law and particularly when the charges are proved, and after proving the said charges, in spite of passing straightway the impugned order of dismissal, the management has given full opportunity of hearing to the petitioner by issuing show cause notice and asking him as to why the report of the representative of the school should not be accepted and that too wan replied by the petitioner. After submitting that reply, again show cause notice was given to the petitioner that considering his reply and considering all the evidence on record and charges, the management issued show cause Notice as to why he should not be dismissed from service. Therefore, second show cause notice was given and ful1 opportunity was given to the petitioner, which was duly replied by the petitioner, that was considered by the management in detail and then after, after following the due Procedure of law and observing the principle of natural justice, according to the judgments of the Hon'ble Page 32 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 Supreme Court and evidence on record, the management passed the dismissal order which is just and proper and which has been confirmed by the Hon'ble Tribunal, which is just and proper and since earlier also, the dismissal order was passed by the management where the Tribunal has asked to again hold inquiry. Again, according to law, inquiry was held and after following due procedure of law, dismissal order was Passed. Therefore, now the contention of the petitioner that no opportunity of hearing was given is not sustainable, it would amount to fresh inquiry which is impermissible in law. Therefore, there cannot be second inning particularly when all the charges are proved and considering serious Charges and particularly when the petitioner was functioning as Headmaster of the school, considering that post, and considering the charges levelled against him, which are proved, a just and proper order has been Passed by the management which has been confirmed by the Tribunal, Therefore, no interference is required in the present case. Therefore, the Present petition is required to be dismissed with heavy cost.
12.1. I Say that the though the petitioner was working as Headmaster of the school, even then, this Hon'ble Court may kindly note that after dismissal from the post of Headmaster, the petitioner runs so-many schools in Surat city in the name of the Trust of his relatives, i.e., his daughters and other family members, who are trustees of the said schools where the schools are run indirectly by the petitioner, namely--Page 33 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022
C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022
1. Gyan Bharti Hindi Vidhyalaya (Std. 1 to
12)
2. Gyan Bharti English Vidhyalaya (Jr. K.G. to 7th) both ate Dindoli, Udhna, Surat.
3. Vidya Bharti Hindi Vidhyalaya (Std. 1 to
7) Ats Unn-Patiya, Udhna, Surat.
4. Excellent Hindi/ English School (Std.1 to 7) Godadara, Udhna, Surat. Prathmik School (Gujarati and 14 to 7). Surat.
5. Gyankunj Prathmik School (Gujarati and Marathi) (Std.1 to 7).
At: Dindoli, Udhna, Surat.
All these schools are run by the petitioner indirectly through his family members as trustee. Even today, all the schools city. Therefore, it is not the Case that the petitioner is without any source of income. On the contrary, he run the schools in Surat city, where on record, the names of his family members are there. Therefore, this aspect is also required to be considered by this Hon'ble Court. I have stated earlier that the inquiry was started mot on the account that the management wanted the petitioner to vacate the quarter, but considering the aforesaid charges which are proved and whole Surat city aware about the act of the petitioner which can be lighted by this Hon'ble Court by perusing the files of reports of the Newspapers. Not only that but with regard to vacating the quarter also, petitioner has already lost the petition before this Hon'ble Court. Therefore, the ground mentioned in this petition for vacating the quarter is not correct under Page 34 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 law. On the contrary, considering the charges which are proved and evidence on record, the dismissal order came to be passed by the management. It cannot be said that there is unblemished record of 20 years of service of the petitioner as a teacher. Therefore, the judgment and order passed by the Tribunal ais just and proper and according to law, applying the judgments of the Hon'ble Supreme Court and hence, ho interference is required by this Hon'ble Court and therefore, the present, Petition is required to be dismissed in limine with costs."
4.8. It was therefore submitted that the Tribunal has rightly not interfered with the decision of the respondent No.1-School Management. In support of his submissions, learned Senior Advocate Mr.Patel relied upon the following decisions:
1. In case of Subha Sudhir Thakur versus Maharashtra Shikshan Mandal in Letters Patent Appeal No.1271 of 2008 in Special Civil Application No.677 of 1997 dated 11th May, 2018, wherein the Division Bench of this Court has held as under:Page 35 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022
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12. Counsel had argued that procedure laid down under Regulation 27(A) of the Gujarat Secondary and Higher Secondary Education Regulations, 1974 was not followed. He drew our attention to Regulation 43 of the said regulations which provides that certain regulations mentioned therein shall apply to educational institution established and administered by a minority. He pointed out that Regulation 27 was one of them. However, regulation 27(A) was introduced later on which is not part of Regulation 27 and applicability thereof is not excluded by virtue of Regulation 43.
12.1 Regulation 27 contains title "Conduct and Discipline of Head-masters, teachers and members of non-teaching staff of registered private school". As the title suggests, this regulation makes various provisions for conduct and discipline of the teaching and non-teaching staff of the private registered schools. Regulation 43 excludes the applicability of certain regulations mentioned therein in case of any educational institution which is established and administered by minority. In another words, regulation mentioned in Regulation 43 would have no applicability of minority institution regulation 27 being one of them. Regulation 27(A) was introduced vide Government Resolution dated 20.05.1992. The said Regulation is numbered as 27(A) clearly indicating that it is a sub-regulation or a part of Regulation 27. It is also placed between sub-regulations (8) and (9) of Regulation 27. This sub-regulation so inserted provides that in addition to (provision made) instructions given elsewhere Page 36 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 in the Regulations in respect of matters relating to mis-conduct and indiscipline by the teaching or non-teaching staff of a registered secondary school, the Principal/Head-master shall have the powers to take disciplinary action as shown in Appendix-I of these Regulations against members of teaching or non-teaching staff of a registered secondary school. First Appendix contains detailed provision for conduct of disciplinary proceedings and is more than in the nature of conduct disciplinary appeal rules. It specifies misconduct and provides for major as well as minor penalties in addition to laying down a detailed procedure for imposition of such penalties. In clear terms, Regulation 27(A) is a part of or a sub-regulation of Regulation 27. It is against Regulation 43 therefore, when provides that the provision of Regulation 27 will not apply to a minority institution automatically even the applicability of newly inserted Clause (A) would not be excluded.
4.9. It was submitted that in view of the above decision, the Regulations 27 and 27A are not applicable to a minor institution automatically even the applicability of newly inserted clause A would not be excluded.
2. In case of Shubha Sudhir Thakur Principal M.S.M. High School Versus PS Shinde President & 4 Page 37 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 dated 02.11.2007 in Special Civil Application No.677 of 1997 , this Court has dealt with the submissions with regard to the issue of Regulations 27 and 27A of the Regulations as under:
"9. Shri Patel for the petitioner submitted that Tribunal has patently erred in not appreciating the evidence and law point in the matter and therefore, the same deserves to be quashed and set aside. Shri Patel has submitted that the inquiry proceedings conducted against the petitioner are void since the same has not been done by a Committee constituted as per provisions of sub-regulation 27-A. of S.E.R. 1974 The sub-
regulation envisages Committee consisting of (1) Representative of Management (2) Representative nominated by charge sheeted employee (3) one person from the panel prepared by the District Education Officer in case of inquiry against Principal. The said Regulation came into effect from 20.5.1992 whereas the proceedings against the petitioner commenced pursuant to the charge sheet dated 26.8.1993. It was therefore incumbent upon the respondent to hold inquiry by a committee as envisaged under sub- regulation 27-A. The inquiry in the present case is therefore illegal and the consequent order of punishment of dismissal is therefore, liable to be set aside.
10. Learned advocate for the petitioner submitted that Regulation 27-A of S.E.R. 1974 is applicable to the minority schools also as Page 38 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 by virtue of Regulation 43 of the S.E.R. 1974 only Regulation 27 is excluded from it's applicability to the institutions established and administered by minority and Regulation 27-A being an independent code in itself providing only reasonable procedure for conducting the disciplinary proceedings against the staff of the institutions so as to save them from arbitrary action and victimization of staff at the hands of unscrupulous management, cannot be said to have been excluded from its applicability to the schools run by minority. The regulation 43 as stated herein above does not include Regulation 27-A on its plain reading and it could well be said that the regulation framing authorities have framed it by incorporating the regulations deserved and intended to be excluded and the regulation which is not specifically included therein cannot be said to have been included by any implications. In other words the framing of regulation 43 is legislation by incorporation and not be reference and what is not included or incorporated in the regulation could not be said to have been included merely on its being similar to other provisions which have been specifically included there in. Learned Counsel relied upon the decision of the apex court in case of Bharat Cooperative Bank Limited vs. Cooperative banks' Employees Union 2007 II CLR 160 in support of his submissions that when there is a legislation by incorporation and not by reference only the provisions specifically incorporated therein are to be considered and subsequent amendment into those provisions on ipso facto cannot be treated to have been included into the provision which contained only the unamended earlier provision.
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11.Shri Patel for the petitioner submitted that Regulation 27-A couldn't be treated as part of the Regulation 27 merely by its incorporation in that regulation by subsequent amendment. If educational institutions established and managed by minority were intended to be exempted from the purview of Regulation 27-A, like regulation 27, than regulation framing authorities would have surely effected corresponding amendment incorporating regulation 27-A also into the provisions of regulation 43 and regulation 43 being exhaustive regulation, a piece of legislation by incorporation and not by reference, fact of its non amendment clearly indicates that its authors did not intend to exclude minority institutions from the operation and applicability of Regulation 27-A of S.E.R. 1974.
12.Shri Patel for the petitioner submitted that minority institutions have right to manage and administer their educational institutions but no right to mal-administer them. The management of minority schools cannot claim any advantageous position only on account of they being minority institutions. The minority institutions are not above the operation of law of the land. The staff of the minority institutions cannot be denied equal protection of law and equality of treatment qua staff of non- minority school in matter of disciplinary proceedings. The Courts have time and again up held the regulatory measures in form of regulations, rules framed for laying conditions of services of staff of minority institutions. The Regulation 27-A being one such type of regulations, it cannot be said to be in any way offending minority's rights Page 40 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 under Article 30(1) of the Constitution to establish and administer educational institution of their choice. It merely provides for safe guard in case of any disciplinary action. No minority institution can be permitted to resort to 'hire and fire' it's staff members at their sweet will without following due procedure of law as it is laid down under Regulation 27-A of the S.E.R. 1974.
13. Shri Patel has submitted that in case it is held that Regulation 27-A of the S.E.R. 1974 does not apply to the minority institution by virtue of the provisions of regulation 43,than in alternatively he submitted that declare Regulation 43 of S.E.R. 1974, in so far as it excludes minority institutions from the applicability of Regulation 27-A, ultra vires Articles 14 and 30 of the Constitution of India.
34.Against this backdrop now let us examine the petitioner's challenge to the initiation of inquiry, its procedure, findings of inquiry officer, action of disciplinary authority in dismissing the petitioner, findings and reasoning of the Tribunal and its order impugned in this petition and applicability of sub-regulation 27-A of S.E.R. 1974 to the minority institution and constitutional validity of Regulation 43 of the S.E.R. 1974.
35.It is most expedient to refer to the relevant provisions of the Gujarat Secondary Education Act 1972, The Gujarat Secondary Education Regulations 1974 and its operation in the filed of regulating the service Page 41 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 conditions of the teaching and non teaching staff working in the registered private secondary schools.
36. It is most important to note that the petitioner has not challenged any of the provisions of the Gujarat Secondary Education Act 1972 or its constitutional validity. The entire petition is conspicuously silent so far as challenge to the provisions of the Gujarat Secondary Education Act 1972 is concerned. As no foundation was laid in the pleadings, the Counsel for the petitioner naturally did not advance any oral or written submissions impugning any of the provisions of the Gujarat Secondary Education Act 1972.
37.The Gujarat Secondary Education Act 1972, provide for regulation of Secondary education in the State of Gujarat. The relevant provisions need to be set out as under:
Section 17 : Powers and duties of the Board :
Subject to the provisions of this Act, the powers and duties of the Board shall be as follows, namely:- .....
Sub-clause (26) : to lay down qualifications, methods of selection and conditions of appointment, promotion and termination of employment and rules for conduct and discipline of the headmaster and the teaching and non-teaching staff of registered private secondary schools; Section : 34. Recruitment and condition of service of persons appointed in registered private secondary schools: (1) Fifteen per cent of vacancies of the teaching staff of Page 42 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 a registered private secondary school shall be filled up by the persons belonging to the Scheduled Castes and Scheduled Tribes : Provided that where a person belonging to a Scheduled Caste or Scheduled Tribe is not available for filling any such vacancy, the vacancy shall be filled up as otherwise provided in this Act. Explanation - In this sub- section.
(a) "Scheduled Castes" means such castes, races or tribes or parts of, or groups within, such castes, races or tribes, as are deemed to be Scheduled Castes in relation to the State of Gujarat under article 341 of the Constitution of India.
(b) "Schedule Tribes" means such tribes or tribal communities or parts of, or groups within, such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under article 342 of the Constitution of India. (2) Subject to sub-section (1), the Board shall by regulations regulate the recruitment and conditions of service including conduct anddiscipline of persons appointed as headmaster, teachers and members of non-teaching staff of registered private secondary schools in the State; Provided that the conditions of service applicable immediately before the appointed day to the guaranteed staff shall not be varied to their disadvantage except with the previous approval of the State Government;
Provided further that it shall be lawful for any registered private secondary school imparting post basic education to make, with the previous approval of the Board, additional regulations, consistent with the basic nature and concept of posts Page 43 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 basic education and not inconsistent with the regulations made by the Board for regulating the conditions of service of persons appointed as headmaster, teachers and members of non-teaching staff of that school.
Section 35 : Registered private secondary schools to have selection Committees - (1) For every registered private secondary school there shall be following two committees, namely:- (a) a school staff selection committee for the purpose of recruiting the teaching staff of the school other than the head master. (b) a special school committee for the purpose of recruiting the head-master, and for the purpose of the initial recruitment of the headmaster and the teaching staff of a school started after the appointed day. (2) The school staff selection committee shall consist of the following members, namely :-
(i)Two representatives of the management of the school to be nominated by the management.
(ii)The headmaster of the school;
(iii)In the case of a school the total number of teachers in which is more than six, two teachers to be elected by the teachers of the school from amongst themselves, and in the case of a school the total number of teachers in which is or is less than six, one teacher to be elected by the teachers of the school from amongst themselves; and
(iv)One representative of the Board to be nominated by the Board.
(3) The special school committee shall consist of the following members, namely :-
(i)Two representatives of the management Page 44 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 of the school to be nominated by the management.
(ii)Two representatives of the Board to be nominated by the Board.
(4) Subject to the provisions of sub-
section (1) of section 34, the school staff selection committee or, as the case may be, the special school committee shall select persons for appointment as teachers of the school from amongst the persons [who are qualified to be appointed as such in accordance with the regulations made in this behalf] Provided that for the purpose of such selection preference shall be given to a protected teacher, if he is otherwise eligible.
(5)The special school committee shall select persons for appointment to the post of headmaster of the school from amongst persons referred to in subsection (4) or from amongst the teachers in the school:
Provided that for the purpose of such selection, preference shall be given to a senior teacher [serving in the school or schools under the same management] if he is otherwise eligible and suitable. (6) Whenever the persons from amongst whom a teacher or a headmaster is to be selected includes a person who is related to any member of the governing body or other body in charge of the management of the school or to any member of the school staff selection committee or, as the case may be, the special school committee, the member concerned of such committee, shall disclose the fact of such relationship to the members of the Committee and if any such person is selected by the Committee, his selection shall be subject to approval by an officer of the Board authorized in that behalf. Such approval shall be sought Page 45 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 by the Committee within a week from the date of selection of the persons concerned and the authorized officer of the Board shall communicate his decision within fifteen days from the date of receipt of the reference by him.
(7) Any appointment of a head master or a teacher made in contravention of the provisions of this section shall be ineffective.
Explanation : For the purpose of sub- section (6), a person shall be said to be related to a member if he is related to him in any of the following capacities, namely :-
Son, grandson, son-in-law, brother, daughter, grand-daughter, wife, nephew, first cousin (paternal or maternal), wife's brother, sister's husband, husband, husband's brother, husband's sister, wife's sister, daughter-in-law, and sister-in law.
Section 36 : Dismissal, removal and reduction in rank of certain persons - (1) No person who is appointed as a headmaster, 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 authorized in this behalf by the Board:
Provided that nothing in this sub-section shall apply to any person who is Page 46 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 appointed for a temporary period only. (2) The officer referred to in clause (b) of subsection (1) shall communicate his decision within a period of forty-five days, from the date of receipt by him of the proposal under the said clause (b) and if such decision is not communicated to the manager by the said officer within such period the action proposed to be taken under the said clause (b) shall be deemed to have been approved by the said officer.
(3)Where a headmaster, a teacher or a member of non-teaching staff of a registered private secondary school is suspended by the manager of the school pending any inquiry proposed to be held against him, the fact of such suspension together with the grounds therefor, shall be immediately communicated by the manager to an officer authorized in this behalf by the Board, and such suspension shall be subject to ratification by the said officer within a period of forty five days from the date of the receipt of the communication in this behalf by such officer and if such ratification is not communicated to the manager by the said officer within such period, the suspension under reference shall cease to have effect on the expiry of such period.
(4)Where a head master, a teacher or a member of the non-teaching staff of a registered private secondary school desires to submit his resignation, the resignation shall be tendered by him in person to the District Education Officer concerned and shall not be accepted by the manager unless it is so tendered and forwarded to him by such officer duly endorsed. The acceptance of any such Page 47 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 resignation tendered in contravention of this subsection shall be ineffective. (5)Any person aggrieved by an order of the authorized officer under clause (b) of subsection(1) may make an appeal to the Tribunal within a period of thirty days from the date of the decision of the authorized officer.
40(A) : Nothing contained in clause (26) of section 17, sections 34 and 35 and clause (b) of subsection(1) and sub- section (2), (3), (4) and (5) of section 36 shall apply to any educational institutions established and administered by a minority, whether based on religion or language.
38.It needs to be noted that under Section 54 of the Gujarat Secondary Education Act 1972 the State is empowered to make the first regulations and Section 53 empowers the Board to make regulations after it was constituted. The State of Gujarat while exercising its powers under Section 54 promulgated the Secondary Education Regulations 1974. These regulations came into force on and from 6th March 1974. Regulation 27 provides for conduct and discipline of Head master, teachers and members of the non-teaching staff of the registered private secondary schools in State. The Regulation 43 of S.E.R 1974 exempts Educational Institutions established and administered by minority whether based on religion or language, from the applicability of many regulations including regulation 27 of the S.E.R. 1974.The State of Gujarat amended Regulation 27 of S.E.R 1974 by incorporating sub- regulation 8 vide GR dated 17.02.1989 and incorporating sub-regulations 27-A , 9, and Page 48 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 10 in Regulation 27 vide GR dated 20.05.1992 making Sub Regulation 27-A as integral part of Regulation 27 of S.E.R 1974.
39.The placement of sub-regulation 27-A in the regulation book after sub-regulation 8 and before sub-regulation 9 and 10 in the Regulation 27 followed by Regulation 28 in itself is suggestive of sub-regulation 27-A being an integral part of Regulation 27 and as such no further amendment in Regulation 43 was necessitated so as to include Sub- regulation 27-A in it for exempting minority institutions from its applicability.
40.This Court is unable to accept the submission of Learned Counsel for the petitioner that as the Regulation 43 is an exhaustive regulation, capable of being termed as a piece of incorporating legislation rather than a legislation by reference, it's non amendment after introduction of Regulation 27-A with its appendix on the statute book, clearly indicate the intentions of it's author not to exempt the minority institutions from its applicability. This submission needs to be viewed in light of relevant provisions of the parent Act i.e., Gujarat Secondary Education Act 1972. As first of all it deserve to be borne in mind that entire set of the S.E.R 1974 are framed and promulgated under the provisions of Section 54 of the Gujarat Secondary Education Act 1972 and it being subordinate or delegated legislation cannot run contrary to the express provisions of the parent Act i.e. Gujarat Secondary Education Act 1972. Assuming, for the sake of examining the plea, without accepting that Regulation Page 49 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 43 is exhaustive and it's a piece of incorporating subordinate legislation and not subordinate legislation by reference, requiring incorporation of Regulation 27-A into it than also in light of provisions of the parent Act i.e., Gujarat Secondary Education Act 1972 especially provisions of Section 40-A of the GSE Act1972 , Sub- regulation 27-A cannot be applied to the minority institutions. The subordinate legislation or delegated legislation cannot have any provisions repugnant to the provisions of it's parent statute. As it is noted herein above the Gujarat Secondary Education Act 1972 contains Section 40-A which exempts educational institutions established and administered by minority from rigors of many regulatory provisions, similar to the one in Regulation 27 and 27-A, likely to affect adversely their rights under Article 30 (1) of the Constitution.
41. This Court (Coram: D.H.Waghela J.) in the case of Jagdishchandra N. Trivedi Vs. Trustee/Principal & 2, Special Civil Application No. 6057 of 2006 decided on 04.04.2006, has held that Regulation 27-A of the Gujarat Secondary Education Regulation 1974 is not applicable to the minority school as it is forming integral part of Regulation 27, which has been categorically excluded by the provisions of Regulation 43 of the Regulations.
42.The alternative challenge, to the constitutional validity of Regulation 43 of the S.E.R 1974 that if it is held to be covering Sub-regulation 27-A and on that basis exempting the educational institutions Page 50 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 established and managed by minority from it's applicability than it is ultravires Article 14 of the Constitution of India, needs to be viewed from the angle that the petitioner has no where impugned any of the provisions of the Gujarat Secondary Education Act 1972 as unconstitutional or violating any of her fundamental rights. As it is set out herein above Section 40-A of the Gujarat Secondary Education Act 1972 in terms exempts Educational Institutions established and administered by minority from the rigors of many identical provisions. In light of the clear and unchallenged provisions of Section 40-A of the Gujarat Secondary Education Act 1972 it would be jurisprudentially imprudent to say that Regulation 27-A is an independent regulation applicable to the minority institutions contrary to the provisions of the parent act i.e. Gujarat Secondary Education Act 1972. If it is held that sub- regulation 27-A is an independent regulation not covered by the provisions of Regulation 43 and hence the educational institutions established and managed by minority are to be regulated as per the provisions of Sub regulation 27-A, than it would amount to imposing those restrictions upon the minority institutions, wherefrom such institutions are unequivocally exempted by Section 40 -A of the parent Act i.e. Gujarat Secondary Education Act 1972. In other words the restrictions excluded by the parent Act i.e. Gujarat Secondary Education Act 1972 and which have not been challenged by the petitioner, would be again imposed upon the minority institutions under the provisions of sub-regulation 27-A, a piece of subordinate or delegated legislation. Such interpretation would deal a great blow to the very basic tenets of administrative law and principles Page 51 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 governing the delegated and subordinate legislation."
3. In case of Jagdishchandra N. Trivedi Versus Trustee/Principal & 2 in Special Civil Application No.6057 of 2006, it is held as under:
6. Having regard to the statutory scheme as described hereinabove and, in absence of the original amendment or text of the Regulations, relying upon the book of Regulations supplied by the learned counsel Mr.Vakil and published in 2001 by the Gujarat Secondary Education Board, there is no escaping the conclusion that the Regulation No.27(A) is a part of Regulation No.27 and the Appendix prescribed under Regulation No.27(A) did not apply in the case of the respondent institution. No other ground is canvassed or made out on behalf of the petitioner and neither any prejudice nor any injustice could be pointed out. Therefore, in short, no ground is made out to interfere with the impugned judgment and order.
Although no ground is made out to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution and the petition could only have been made and entertained under the supervisory jurisdiction of this Court under Article 227 of the Constitution, the Court has heard and considered the above contentions of the petitioner to ascertain whether a writ of mandamus or any other appropriate order could be made in the facts of the case. The contention and request made on behalf of the petitioner to permit him to repay the Page 52 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 wrongfully claimed and obtained amount of L.T.C. with some penalty in view of the government resolution permitting such repayment is also considered and rejected along with the petition in the overall facts and circumstances of several other charges also proved against the petitioner."
4. In case of High Court of Judicature at Bombay Through its Registrar Versus Shashikant S. Patil and Another7 , it is held as under:
"15. The Disciplinary Committee enumerated all the above reasons in its proceedings for dissenting from the Inquiry Officer's conclusions. In fact all such reasons have been set out in the notice issued by the Disciplinary Committee to the first respondent requiring him to show cause why the conclusions of the Inquiry officer be dissented from.
16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/ disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode 7 (2000) 1 Supreme Court Cases 416 Page 53 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.
17. In State of Andhra Pradesh v. S. Sree Rama Rao, [1964] 3 SCR 25, this Court has stated so and further observed thus;
"The High Court is not constituted in a proceeding under Art. 226 of the Constitution as a Court of appeal over the decision of the authorities holding departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the Page 54 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Art. 226 to review the evidence and to arrive at an independent finding on the evidence."
18. The above position has been reiterated by this Court in subsequent decisions. One of them is B.C. Chaturvedi v. Union of India.
19. The reasoning of the High Court that when the Disciplinary Committee differed from the finding of the Inquiry Officer it is imperative to discuss the materials in detail and contest the conclusion of the Inquiry Officer, is quite unsound and contrary to the established principles in administrative law. The Disciplinary Committee was neither an appellate nor a revisional body over the Inquiry Officer's report. It must be borne in mind that the inquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such inquiry as well as the view expressed by the Inquiry Officer thereon. The findings of the Inquiry Officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry officer. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the Inquiry Officer."
Page 55 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 Otherwise the position of the disciplinary authority would get relegated to a subordinate level.
20. The legal position on that score has been stated by this Court in A.N. D Silva v. Union of India, that neither the Findings of the Inquiry Officer nor his recommendations are binding on the punishing authority. The aforesaid position was settled by a Constitution Bench of this Court way back in 1963, Union of India v. H.C. Gael. The Bench held that "the Government may agree with the report or may differ, either wholly or partially, from the conclusion recorded in the report." Their Lordships laid down the following principle:
"If the report makes findings in favour of the public servant and the Government disagree with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf."
21. Thus the Division Bench of the High Court has not approached the question from the correct angle which is evident when the Bench said that it is imperative for the Disciplinary Committee to discuss materials in detail and contest conclusions of the Inquiry officer. The interference so made by the Division Bench with a well considered order passed by the High Court on the administrative side was by overstepping its Page 56 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 jurisdiction under Article 226 of the Constitution."
5. In case of Bank of India and Another Versus Degala Suryanarayana8 wherein, Hon'ble the Supreme Court has held as under :
"10. The law is well settled. The Disciplinary Authority on receiving the report of the Enquiry Officer may or may not agree with the findings recorded by the latter. In case of disagreement, the Disciplinary Authority has to record the reasons for disagreement and then to record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the Enquiry Officer for further enquiry and report.
11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of malafides or perversity i.e., where there is no evidence 8 (1999) 5 Supreme Court Cases 762 Page 57 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings. The Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained, in Union of India v. H.C. Gael, [1964] 4 SCR 718 the Constitution Bench has held:-
"the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."
13. In the case at hand a perusal of the order dated 5.1.1995 of the disciplinary Authority shows that it has taken into consideration the evidence, the finding and the reasons recorded by the Enquiry Officer and then assigned reasons for taking a view in departure from the one taken by the Enquiry Officer. The Disciplinary Authority has then recorded its own findings setting out the evidence already available on record in support of the finding arrived at by the Disciplinary Authority. The finding so recorded by the Disciplinary Authority was immune from interference within the limited scope of power of judicial review available Page 58 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 to the Court. We are therefore of the opinion that the learned Single Judge as well as the Division Bench of the High Court were not right in setting aside the finding of the Disciplinary Authority and restoring that of the Enquiry Officer. The High Court has clearly exceeded the bounds of power of judicial review available to it while exercising writ jurisdiction over a departmental disciplinary enquiry proceeding and therefore the judgments of the learned Single Judge and the Division Bench cannot be sustained to that extent. The appeal filed by the bank of India deserves to be allowed to mat extent."
4.10. It was submitted that in view of the reasons given in the third show-cause notice in detail for disagreement with the conclusion arrived at by the two majority members of the Inquiry Committee by the respondent No.1-School Management which is a Disciplinary Authority, the Tribunal has rightly not interfered with the decision of the dismissal of the petitioner because the majority findings of the Inquiry Committee or its recommendations are not binding on the respondent No.1-School Management because the inquiry is primarily intended to provide Page 59 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 reasonable opportunity to the petitioner to meet the charges made against him and also to make available the materials collected in such inquiry as well as the views and opinion expressed by the Inquiry Officer on such material to the Disciplinary Authority, however, findings of the Inquiry Officer are not binding on the Disciplinary Authority and therefore, the respondent No.1-School Management has rightly come to its own conclusion accepting the findings of minority member which are supported by reasons recorded in the third show-cause notice though there is no such procedure prescribed nor it is necessary for the Disciplinary Authority to discuss material in detail and contest the conclusion of the Inquiry Officer.
4.11. It was therefore submitted that the respondent No.1-School Management on receipt of the report submitted by the members of the Page 60 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 Inquiry Committee has not agreed with the findings of majority members by recording reasons for disagreement and after recording findings on the basis of evidence available on record the decision for dismissal of the petitioner was taken.
4.12. Learned Senior Advocate Mr.Patel further submitted that the strict rules of the evidence are not applicable to the departmental inquiry proceedings and the only requirement of law is that allegations against the petitioner are established by the evidence acting upon which reasonable person acting reasonably and with objectivity may arrive at findings as to whether the charges levelled against the petitioner are proved or not. It was submitted that once the Disciplinary Authority has come to the conclusion that the serious charges are proved against the petitioner, this Court may not exercise the jurisdiction of judicial review to interfere with Page 61 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 the findings of fact arrived at through departmental inquiry proceedings as there is no allegation of mala-fide or perversity. It was submitted that the entire case of the petitioner hinges on the findings by majority members on the aspect of binding nature of such findings upon the Disciplinary Authority. It was submitted that the findings by minority member also depend upon the same evidence to support the conclusion arrived at by the Disciplinary Authority to dismiss the petitioner which is required to be sustained.
5. Considering the submissions made by the learned advocates for the respective sides, the short question which arises for adjudication is whether findings of majority members of the Inquiry Committee is binding upon the respondent-
School Management or not meaning thereby that findings whereby the petitioner is exonerated is required to be followed by the School Management Page 62 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 though the School Management is of the opinion that the charges, on the basis of the material available in the inquiry proceedings, are proved against the petitioner.
6. The facts are not in dispute with regard to conduct of the inquiry proceedings by three-
member Inquiry Committee and providing of adequate opportunity of hearing to the petitioner except the conduct of the 20th meeting of the Inquiry Committee. As stated on behalf of the respondent-School Management, holding of the said 20th meeting on 25th February, 2003 was communicated to the petitioner which was not accepted by him and in presence of a representative of the School Management and authorized person of the School, the 20th meeting was conducted. The Minutes of the said meeting are also placed on record along with the affidavit-in-reply. It also appears that by letter dated 22nd February 2003, the petitioner Page 63 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 was informed about the 20th meeting to be held on 25th February, 2003.
7. Thereafter the petitioner filed reply to the show-cause notice dated 13th April 2004. The respondent No.1 thereafter issued the show-cause notice dated 10th September 2005 again providing an opportunity of hearing to the petitioner wherein, detailed reasons are recorded as to why the respondent No.1 is not inclined to accept the findings of the majority members of the Inquiry Committee. It appears that the respondent No.1- Management based on the evidence and documents available in the course of inquiry has analyzed the same and thereafter, arrived at the conclusion with regard to each of the eighteen charges levelled against the petitioner as proved by arriving at independent findings irrespective of the opinion rendered by the members of the Inquiry Committee. Therefore, in the facts of the case, the respondent No.1-School Management Page 64 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 cannot be said to have accepted the minority opinion of one of the members of the Inquiry Committee who was the representative of the Management but after considering the oral and documentary evidence on record, independent findings are arrived at by the respondent No.1- School Management which is communicated to the petitioner in the show-cause notice dated 10th September, 2005.
8. The respondent No.1-School Management after considering the charges levelled against the petitioner in detail along with the evidence adduced before the Inquiry Committee has concluded that all eighteen charges are proved against the petitioner and for that detailed reasons are given running into 140 pages.
9. The contention is raised on behalf of the petitioner that the procedure prescribed under the Regulation 27 and 27A is mandatory to be Page 65 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 followed by the respondent No.1-School Management, however, Regulation 27 including Regulation 27A is not applicable to the minority institution like the respondent No.1-School as held by this Court in the case of Subha Sudhir Thakur (Supra).
10. Therefore, as a natural corollary, the course adopted by the respondent No.1-School Management is just and proper. In such circumstances, reliance placed on behalf of the petitioner in the case of Vidya Vikas Mandal (Supra) is not applicable.
11. There is no doubt with regard to the proposition of law laid down in the cases of Glaxo Laboratories India Limited (Supra), W.H.King (Supra) and H M T LTD (Supra) with regard to well-established canon of construction that penal provisions must receive strict construction and cannot be extended beyond their Page 66 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 normal requirement and words of the section must be strictly construed in favour of the subject as per what is actually said in and by the language employed by the statute that creates an offence and imposes a penalty of fine and imprisonment.
However, in the facts when the respondent No.1- School Management has independently arrived at findings based on the oral and documentary evidence adduced during the course of disciplinary proceedings, the provisions of Regulations are required to be strictly applied.
Therefore, when the opportunity of hearing is given to the petitioner during the course of inquiry proceedings as provided under the Regulations and the 'Acharsanhita', the petitioner cannot make any grievance on the ground that findings of majority members of the inquiry committee are binding upon the respondent No.1-School Management as against the independent finding arrived at by it.
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12. Similarly, the decision relied upon by the petitioner in case of Roop Singh Negi (Supra) would also not be applicable in the facts of the case in asmuch as the show-cause notice dated 10th September, 2005 contained detailed reasons as to why the respondent No.1-School Management is not in agreement with the findings of the majority members of the Inquiry Committee and thereafter the evidence is analysed in detail to come to the conclusion that the charges against the petitioner are proved on the basis of such evidence. Therefore, the show-cause notice dated 10th September, 2005 issued by the respondent No.1-School Management giving opportunity of hearing to the petitioner cannot be said to be mere ipsi dixit as also on surmises and conjectures and therefore, the Tribunal has rightly not interfered with the decision taken by the respondent No.1-School Management to dismiss the petitioner.
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13. As in the facts of the case, the Regulations 27 and 27A are not applicable in view of the Regulation 43 of the Regulations, the reliance placed by the petitioner in the case of Anil Shantaram Khoje and Others (Supra) for the settled proposition that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all, would not be applicable and the respondent No.1-School Management was justified in arriving at its independent finding after analysis of the evidence available during the course of inquiry proceedings that all the charges against the petitioner are proved.
14. The petitioner has not challenged the independent finding arrived at by the respondent No.1-School Management which is confirmed by the Tribunal on merits, but the endeavor made on behalf of the petitioner is only to canvass the proposition that majority finding arrived at by Page 69 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 the Inquiry Committee is binding upon the respondent No.1-School Management. Such contention is very attractive at the first blush but in view of the decision of the Supreme Court in case of Shashikant S. Patil and Another (Supra) wherein, the Apex Court after considering the decision of A.N.D'Silva v. Union of India9 held that neither findings of the Inquiry Officer nor his recommendations are binding on the punishing authority. It is for the Disciplinary Authority i.e., respondent No.1-School Management to agree with the report or may differ either wholly or partially from the conclusions recorded in the report. As there are two opinions rendered by the members of the Inquiry Committee, one by two members exonerating the petitioner from all charges and one by single member holding the petitioner guilty of all charges who is representative of the respondent No.1-School Management, the respondent No.1-School Management 9 AIR 1962 SC 1130 Page 70 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 has right to disagree with the findings given by the two members of the Committee after independent analysis of the evidence on record and holding that the charges framed against the petitioner are proved and after providing an opportunity of hearing to the petitioner on such findings, order of dismissal was passed.
15. In case of Degala Suryanarayana (Supra) the Apex Court has held that on receipt of report of the Inquiry Officer, the Disciplinary Authority may or may not agree with the findings recorded by the Inquiry Officer and in case of the disagreement, the Disciplinary Authority has to record the reasons for disagreement and to record its own finding if the evidence available on record is sufficient for such exercise or else to remit the case to the Inquiry Officer for further inquiry and report. In the facts of the present case, the Disciplinary Authority i.e. the respondent No.1-School Management has analysed Page 71 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 the evidence available on record of Inquiry Committee in detail to come to the conclusion that the charges against the petitioner are proved. It is further held by the Apex Court that the strict rule of evidence is not applicable to the departmental inquiry proceedings and the only requirement of law is that allegation against the petitioner must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the charges levelled against the petitioner. The Tribunal is a fact-finding authority and has after going through the record including the evidence led before the Inquiry Committed has rightly not interfered with the decision arrived at by the respondent No.1-School Management to dismiss the petitioner after independent analysis of the evidence. In such circumstances, this Court exercising the jurisdiction of judicial review of the impugned order passed by the Tribunal confirming the Page 72 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 decision taken by the respondent No.1-School Management, would not interfere with the findings of fact arrived at in the departmental inquiry confirmed by the Tribunal except in case of mala-
fide or perversity where there is no evidence to support a finding or where a finding which no man acting reasonably and with an objectivity could have arrived at.
16. In the facts of the case, the impugned order passed by the respondent school-management and the Tribunal confirming the decision of dismissal do not suffer from mala-fide or perversity.
Therefore, this Court cannot re-appreciate the evidence or weighing the same as an appellate authority and so long as there is some evidence to support the conclusion arrived at by the Departmental Authority, the same is rightly sustained by the Tribunal. The Hon'ble Supreme Court in case of Union of India v. H.C. Gael10 10 AIR (1964) SC 364 Page 73 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 has held that the "High Court can and must inquire whether there is any evidence at all in support of the impugned conclusion. In other words, with the whole of the evidence led in the inquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence at it stands and only examine whether on that evidence legally the impugned conclusion follows or not." Applying the same test, it is not in dispute that there is an evidence in support of the independent conclusion arrived at by the respondent No.1-School Management that the charges in question are proved against the petitioner on analysis of the legal evidence adduced before the Inquiry Committee and accordingly, the decision of the respondent No.1- School Management to dismiss the petitioner as Principal of the School is legally based on such evidence.
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17. If the contention of the petitioner is accepted then it would also create very anomalous situation in case of converse facts. It is also possible that in a case the majority members of an Inquiry Committee may render an opinion that all the charges against the delinquent employee are proved whereas, minority member may render an opinion to hold the delinquent not guilty for all charges and the Disciplinary Authority on the analysis of the documents adduced during the course of the inquiry agrees with the minority opinion that the charges are not proved against the delinquent then whether in such circumstances can the majority opinion would be binding upon the disciplinary authority or not. In such a situation also as held by the Apex Court the independent opinion of the Disciplinary Authority would prevail unless it suffers from mala-fide or perversity. In any situation, the inquiry report submitted by the members of the Inquiry Committee Page 75 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 is only an opinion arrived at on the basis of the evidence led before it, and it is upon the Disciplinary Authority either to agree or disagree with the same.
18. A contention is also raised with regard to delay in conducting and issuing the show-cause notice dated 10th September 2005 by the respondent No.1-School Management as the same would be time barred in view of the prescribed time limit as per Regulation 27. However, in the facts of the case, the petitioner continued under suspension for the period during which the time was consumed by the respondent No.1-School Management to issue the show-cause notice after sixteen months and therefore the petitioner cannot be said to be prejudiced in any manner.
19. Thus, taking into consideration the overall facts and circumstances of the case, it cannot be said that the Tribunal has committed any error in Page 76 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022 C/SCA/26656/2006 CAV JUDGMENT DATED: 26/08/2022 confirming the decision of the respondent No.1- School Management for passing the order dated 31.10.2005 dismissing the petitioner from service. For the foregoing reasons, the impugned order of dismissal of the petitioner by the respondent No.1-School Management confirmed by the Tribunal holding that the petitioner was acting against the interest of the Institution and have lost confidence and faith of the School Management, need no interference under Article 227 of the Constitution of India.
20. In the result, the petition fails. Rule is discharged. No orders as to cost.
(BHARGAV D. KARIA, J) PALAK Page 77 of 77 Downloaded on : Mon Aug 29 21:24:12 IST 2022