Gujarat High Court
Sudhaben B Tamboli vs Ahmedabad Education Society & 4 on 18 July, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/LPA/948/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 948 of 2011
In SPECIAL CIVIL APPLICATION NO. 16295 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
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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, 1950 or
any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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SUDHABEN B TAMBOLI....Appellant(s)
Versus
AHMEDABAD EDUCATION SOCIETY & 4....Respondent(s)
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Appearance:
MS BHAVIKA H KOTECHA with MS SHANU S PATHAN, ADVOCATE for the
Appellant(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 2 - 3
MR AD OZA, ADVOCATE for the Respondent(s) No. 4
MR PA JADEJA, ADVOCATE for the Respondent(s) No. 1
RULE UNSERVED for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
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C/LPA/948/2011 JUDGMENT
Date : 18/07/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This appeal is filed by the original respondent No.4 challenging judgement of the learned Single Judge dated 14.12.2009 in Special Civil Application No. 16295 of 2004.
2. Brief facts are as follows:
2.1 Appellant was engaged as a teacher in A.G.Primary School run by respondent, Ahmedabad Education Society (hereinafter to be referred to as the 'Society'). She was initially engaged in the year 1985 but against a sanctioned post only w.e.f. Year 1998. The school was self finance school. Due to various reasons, the Society desired to reduce one division in 5th, 6th and 7th standards of the said school with effect from the academic term starting from June 2002. Such resolution was passed on 29.05.2002. The Trust sought approval of the Director of Primary Education for such purpose. Such approval was granted by him under a communication dated 18.06.2004. Approval was, however, conditional. One of the conditions was that, the Society would follow the procedure prescribed under Section 40B of the Bombay Primary Education Act, 1947 ('the Act' for short). We may notice that the Page 2 of 20 C/LPA/948/2011 JUDGMENT teachers of the school, including the present appellant, had opposed the said move of the trust to reduce one division. Their objections were also considered by the Director before granting the permission.
2.2 On 26.12.2003, the Society issued a notice to the present appellant stating that since the Trust would be closing down one division of 5th, 6th and 7th standard, looking to her seniority as a teacher in the school, she is liable to be terminated. If she desired to make any representation to this proposal, she may do so within seven days. The appellant filed a detailed representation under communication dated 12.01.2004 and opposed her termination on various grounds. She questioned the very basis for computing the seniority, due to which, she was liable to be terminated. She contended that several other teachers, who were not under consideration for termination, were not qualified. She could be terminated while retaining such teachers. Inter alia on such ground, she requested for dropping the proposal for termination.
2.3 The Society, thereafter, applied to the Administrative Officer on 10.08.2004 seeking approval for termination of three teachers including the appellant. In the caption of the said letter itself it was mentioned that the application was for approval under Section 40B of the Bombay Primary Education Act, 1947. In the concluding portion of the application it was requested that the Trust be granted Page 3 of 20 C/LPA/948/2011 JUDGMENT permission to terminate three teachers named therein including the appellant.
2.4 On 27.09.2004, the Administrative Officer rejected the application of the Trust for approval of termination of the teachers on various grounds. He was of the opinion that proper procedure was not followed. Resolutions were passed by the Standing Committee on 02.08.2004 when the representation of one of the teachers dated 03.08.2004 was under
consideration which was inexplicable. The Trust had also failed to produce documents of approval to the initial appointment of the teachers. Inter alia on such grounds, the approval was refused.
2.5 This order of the Administrative Officer came to be challenged by the Trust before the learned Single Judge. Learned Single Judge, by his impugned judgement, quashed the order dated 27.09.2004 observing that :
"5. ... ... ... ... The respondent No.2, considering the overall facts of the case, granted approval for closure of the said standards with a direction to comply with section 40-B of the Bombay Primary Education Act.
Now the question of complying with requirements of section 40-B of the Bombay Primary Education Act is concerned, I am of the view that the permission was granted for the purpose of closure of certain divisions and on account of the same, if the strength of the teaching staff is required to be reduced by causing retrenchment of respondent Nos.4 and 5 as a consequence flowing therefrom, for the purpose of complying with the requirement of section 40-B thereof, at the most, the petitioner can be insisted to Page 4 of 20 C/LPA/948/2011 JUDGMENT pay retrenchment compensation and nothing more than that. In the present case, the petitioner has already shown their willingness to pay retrenchment compensation. It is also required to be noted that the respondent Nos. 4 and 5 were not removed from service by way of punishment, but they are simply retrenched on account of compelling circumstances beyond the control of the petitioner.
6. Apart from that the sanction to close the school was given by the respondent No.2 who is a higher authority and the respondent No.3 cannot sit in appeal over the decision of the respondent No.2. In view of the closure of the school, the respondent Nos. 4 and 5 were given an opportunity of hearing and provisions of section 40-B has already been complied with. I am therefore of the view that the impugned communication deserves to be quashed."
3. It is this judgement that the original respondent No.4 has challenged in this Letters Patent Appeal. We are informed that her services were terminated after the end of February 2005, at which time she was offered a sum of Rs. 98,556/- which included salary for eight months counting her total service of more than seven and half years, three months' salary in lieu of notice and Rs. 5,232/- towards group insurance. She, however, did not accept such payment.
4. Learned counsel Ms. Kotecha for the appellant- teacher submitted that the school management had breached the provisions of Section 40B of the Bombay Primary Education Act, 1947. Though approval for termination was not granted by the Administrative Officer, respondents terminated her service. She must be granted full wages and other Page 5 of 20 C/LPA/948/2011 JUDGMENT benefits till the date of superannuation.
5. On the other hand, learned Counsel Mr. Dave for the School management opposed the appeal contending that Section 40B was not applicable since termination was not penal. Provisions of Section 40B of the Act would not apply in case of simpliciter termination. He further submitted that the Administrative Officer erred in refusing to grant the approval. Learned Single Judge, therefore, correctly quashed the order. The School management had acted under an interim order dated 08.02.2005 passed in the main petition, in which, interim relief in terms of para 31(B) was granted. He further submitted that later on, due to paucity of students, the entire primary section of the school in Gujarati medium came to be closed down.
6. Learned counsel Mr. A.D.Oza for the authorities of Education Department contended that the observations of the learned Single Judge that, the Administrative Officer would have no authority to refuse approval in a case like this, would not be in consonance with the correct legal position.
7. We may first clear the issue regarding applicability of the Section 40B of the Act which reads as under:
40B. Dismissal removal or reduction in rank of teachers.-
(1) (a) No teacher of a recognized private primary school shall be dismissed or removed or reduced in rank nor service be otherwise terminated until-Page 6 of 20
C/LPA/948/2011 JUDGMENT
(i) he has been given by manager an opportunity of showing cause against the action proposed to be taken in regard to him; and
(ii) the action proposed to be taken in regard to him has been approved in writing by the administrative officer of the school board in the jurisdiction of which the private primary school is situate:
Provided that nothing in this clause shall apply to a teacher who is appointed temporarily for a period less than a year or a teacher appointed temporarily on a leave vacancy for a period less than a year.
Explanation.- A teacher who is appointed temporarily for a period of less than a year or a teacher who is appointed temporarily on a leave vacancy for a period of such vacancy shall not be deemed to be a teacher appointed temporarily for such period, if he has at any time prior to such appointed served as a teacher either in the same private primary school or in another private of such past service and the period of service for which he is appointed exceeds one year.
(b) The administrative officer shall communicate to the manager of the school in writing his approval of the action proposed, within a period of forty five days from the date of the receipt by the administrative officer of such proposal.
(2) Where the administrative officer fails to communicate either approval or disapproval within a period of forty five days specified in clause (b) of sub section (1) the proposed action shall be deemed to have been approved by the administrative officer on the expiry of the said period.
(3) No penalty (being the penalty other than that referred to in sub section (1)) shall be imposed on a Page 7 of 20 C/LPA/948/2011 JUDGMENT teacher of the private primary school unless such teacher has been given reasonable opportunity of being heard.
(4) Where a teacher of private primary school is suspended by the manager of the school pending any inquiry proposed to be held against him, the fact of his suspension together with the grounds therefor shall be communicated within a period of seven days, after such suspension by the manager to the administrative officer of the school board in the jurisdiction of which th school is situated, and such suspension shall be subject to ratification by the administrative officer within a period of forty five days from the date of receipt of communication in this behalf by the administrative officer and if such ratification is not communicated to the manager by the administrative officer within such period, the suspension of such teacher shall cease to have effect on the expiry of the said period:
Provided that a teacher shall, during the period of suspension, be entitled to such subsistence allowance, and on such terms and conditions as may be prescribed.
(5) Any teacher aggrieved by the order of the administrative officer under sub clause (ii) of clause(a) of sub section (1) may make an appeal to the Tribunal within a period of thirty days from the date on which the administrative officer has approved or deemed to have approved the action.
Explanation.- For the purpose of this section, and section 40C,
(a) "manager" in relation to private primary school means a person or body of persons in charge of the control or of management of the school;
(b) "teacher" means a teacher of a recognized private primary school;
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(c) "Tribunal" means a Tribunal constituted under Section 40F."
8. In plain terms clause (a) of sub section (1) of Section 40B provides for certain procedure to be followed before a teacher of a recognized primary school can be dismissed or removed or reduced in rank or his service can be otherwise terminated. Such procedure includes giving of an opportunity of showing cause against the proposed action. In fact, clause (a) of sub section (1) Section 40B is worded in negative terms providing that no teacher of a recognized primary school shall be dismissed, removed or reduced in rank nor his service be otherwise terminated until above noted requirements are followed. The language used lends further emphasis on such requirements being pre-condition before a valid dismissal, removal, reduction in rank or termination of a teacher of recognized primary school can be brought about. If we accept the contention of the counsel for the school management that, such requirements would not apply in case of termination simpliciter, we would be obliterating the expression "nor service be otherwise terminated" used in clause
(a) of sub-section (1) of Section 40B. If the intention of the legislature was to confine the effect of Section 40B (1)(a) only to dismissal, removal or reduction in rank through penal action by the employer, the later expression "nor service be otherwise terminated"
was wholly unnecessary. It is well established principle of statutory interpretation that while Page 9 of 20 C/LPA/948/2011 JUDGMENT interpreting a provision no part of the statute should be seen as redundant or mere surplusage. Every word in the statute should be given its importance and meaning. Any interpretation which leaves any part of the statute redundant must be avoided.
9. This has been the view of this Court consistently as can be seen from the discussion hereinafter. In case of Chhaganbhai P. Oza vs. The Ahmedabad Jesuit Schools Society and ors. reported in 19 GLR 347, learned Single Judge of this Court in the context of the similar expression "otherwise terminated" used in Section 36(1) of the Gujarat Secondary Education Act held that the provision is clear and would be applicable not only in regard to penal action resulting in dismissal, removal or reduction in rank, but also to action which results in termination of service of a teacher otherwise then by way of a disciplinary action. It was further observed as under:
"4. ... ... On a plain reading of sub sec. (1) of sec. 36 it is clear that the provision is applicable not only in regard to penal action resulting in dismissal or removal or reduction in rank but also to an action which results in termination of services of a teacher otherwise than by way of a disciplinary action. It is not possible to accede to the argument that the expression "nor shall his service be otherwise terminated" must mean "terminated by way of a penal action." A termination by way of a penal action is already covered by the expression "dismissal" or "removal". Learned counsel for the petitioner has contended that the expression "nor shall his service be otherwise terminated" must be construed ejusdem generis and must take colour from the Page 10 of 20 C/LPA/948/2011 JUDGMENT preceding expressions which are referable to penal action viz. dismissal or removal or reduction in rank. If it is so construed, the expression would be emptied of all its meaning and content and would be rendered otiose for dismissal or removal would cover any action of penal nature and in that event it would be altogether unnecessary for the Legislature to extend protection in respect of termination otherwise than by way of dismissal or removal. Learned counsel argued that the expression "otherwise terminated"
would refer to termination simpliciter which is effected on account of some misconduct by way of a penal measure. Now, the expression "termination simpliciter" carries the concept of termination otherwise than for misconduct and otherwise than by way of a disciplinary action. It would be impossible to construe the expression "otherwise terminated" as being referable only to a termination by way of disciplinary measure by way of a penal action. If plain and natural meaning is given to the aforesaid expression, it is not possible to construe it in the manner suggested by the learned counsel for the respondents. Counsel then argued that the expression "otherwise terminated" should be applied to cases where the termination on the face of it was a termination simplicter in form but in reality and substance was a termination by way of a penal measure. The expression "dismissal or removal"
would cover a situation like the one placed in focus by counsel. If it is dismissal or removal by way of a penal measure in reality but it is given an appearance of termination simpliciter, it is nonetheless dismissal and would be covered by the expression "dismissal or removal from service". It is therefore, not possible to uphold the submission urged on behalf of the respondents that the expression "otherwise terminated" would mean termination of service by way of a penal action and not termination simpliciter."
10. Once again, such a question in the context of Section Page 11 of 20 C/LPA/948/2011 JUDGMENT 36 (1) of the Gujarat Secondary Education Act, 1972 came up for consideration before learned Single Judge of this Court. The learned Single Judge following the decision of the Division Bench dated 25.07.1979 in Letters Patent Appeal No. 174 of 1979 noted the observations of the Division Bench to the effect that the words "otherwise terminated" used in Section 36(1) of the Gujarat Secondary Education Act, 1972 are wide enough to cover even the case of situation arising out of closure of a registered school. Learned Judge went on to observe as under:
"It would thus appear that the provisions of sec. 36(1)(a) were applicable in the instant case and that a dispute having been brought before the Tribunal under its original jurisdiction under sec. 38(1), it has wide jurisdiction to decide whether the termination was wrong, unlawful or not justified and to pass a just order, bearing in mind the four-fold interests of the teachers, student community, the management and the public interest represented by the Education Department or the Board, as held by this Court in S.S.K.Trust v. P.N.Patel, 18 G.L.R. 615. As observed in the said case at page 630, sec. 39(9) gives the widest jurisdiction to the Tribunal to decide the dispute and to give suitable directions as to reinstatement if the termination is found to be wrong or unlawful or otherwise unjustified. At page 631 it has been observed that a just order of reinstatement with back wages, which the Tribunal has to pass under such circumstances, would necessarily imply power in the Tribunal to apportion the compensation amount and to direct that the school management, which passes wrongful orders either perversely, mala fide or in the absence of any prima facie case, should bear the burden of such back wages. It would thus appear to be beyond any doubt or dispute now that in case of termination of services either by way of Page 12 of 20 C/LPA/948/2011 JUDGMENT penalty or otherwise of a member of the teaching or non-teaching staff in contravention of the provisions of sec. 36(1), the Tribunal has wide jurisdiction to order reinstatement with back wages and to give suitable directions as to who should bear the burden of back wages."
11. In case of Mahuva Kelavani Sahayak Samaj and ors. vs. Rasiklal K. Joshi and anr. reported in 1997 1 GLR 508 learned Single Judge in the context of Section 40B of the Bombay Primary Education Act,1947 held and observed that, sub section (1) of Section 40B would apply even in case of simpliciter termination. It was observed as under:
" 4. It will be noted that the area of operation of sub- section (3) of Section 40B is entirely different from the area covered by Section 40B(1)(a) of the Act. All that the sub-section (3) enacts is that even in case of any penalty other than the one which is already covered under sub-section (1)(a) a reasonable opportunity of hearing is required to be given to a teacher. Therefore, in cases, for instance, of imposing penalty of stoppage of increment which will not fall under Section 40B(1)(a), a reasonable opportunity of hearing would nonetheless be necessary. This provision can never be construed so as to lead to any inference that the expression "be otherwise terminated" in Section 40B(1)(a) was confined only to penal terminations. The provisions of Section 40B(1)(a) of the Act cover specified categories of the action proposed against a teacher and these are: (1) dismissal (2) removal (3) reduction in rank and (4) termination for other reasons. The action of termination of service of an employee who is not a temporary employee has very serious consequence and therefore the Legislature thought it wise to include even such cases of termination other than penal termination in the categories for which Page 13 of 20 C/LPA/948/2011 JUDGMENT show cause notice against the proposed action was required to be given. If the termination is penal it would be covered under the expression "dismissal"
or "removal" and in that event it was not necessary to add the words "be otherwise terminated". It necessarily follows that these words were intended to cover even cases of termination simpliciter. It is therefore clear that the procedure under Section 40B(1)(a)(i) and (ii) was required to be followed in cases of these respondents teachers as rightly held by the Tribunal. In context of a similar provision of Section 36(1) of the Gujarat Secondary Education Act, 1972 it has been held by this Court following the previous judgement, in Special Civil Application No. 3271 of 1992 that the words "otherwise terminated"
occurring in Section 36(1) of that Act are wide enough to cover even the cases of a situation arising out of closure of a registered school and the case of a primary teacher whose services are terminated simpliciter was also covered by the provisions of Section 40B of the Bombay Primary Education Act, 1947."
12. In case of Radhanpur Kelavani Mandal vs. Vasantlal Achharatlal Parekh reported in 2005 1 GLH (UJ) 7 learned Single Judge upheld the decision of the Education Tribunal which had quashed the termination of the teachers which was brought about without following the requirement of Section 40B of the Bombay Primary Education Act, 1947.
13. We are not unmindful of the decision of Learned Single Judge in case of Gujarat Vidhyapith vs. Becharbhai Nagajibhai Bharward reported in 2005 (1) GLH 236 in which, in the context of the provisions contained in Section 14(1) of the Gujarat University Services Tribunal Act,1983 it was held that Page 14 of 20 C/LPA/948/2011 JUDGMENT the same would apply only to penal action of dismissal, removal or reduction in rank of an employee. It was, however, in the background of language used in sub- section (1) of Section 14 which provided that no university employee shall be dismissed or removed from university service or reduced in rank nor shall his services be otherwise terminated by the university except after an enquiry, in which, the employee has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Thus the statutory provision under consideration was differently worded. Learned Judge also noted the provisions of sub-section (2) and (3) of Section 14 which referred to the penalty. Referring to sub section (1) of Section 14 it was in this context held that the procedure laid down in Section 14(1) of the Gujarat Universities Services Tribunal Act,1983 would apply only in cases of penal action by the employer of the dismissal, removal or reduction of the rank of the employee. It was held that there being material difference, the provisions of Gujarat Universities Services Tribunal Act,1983 cannot be compared with the provisions contained in Bombay Primary Education Act, 1947 and Gujarat Secondary Education Act 1971.
14. From the above, it can be seen that consistent view of this Court has been that Section 40B (1) of the Bombay Primary Education Act, 1947 would apply also to the case of simpliciter termination. Even if Page 15 of 20 C/LPA/948/2011 JUDGMENT permission of closure of the school is granted, the teachers of the school cannot be terminated without following the procedure prescribed in Section 40B(1) of the Bombay Primary Education Act,1947. We have given our independent reasons for upholding such view of various decisions of the Single Judges noted above. We see absolutely no reason to disturb such consistent trend.
15. Learned counsel, Mr. Dave relied on certain decisions of the Supreme Court which clarify that Article 311 of the Constitution would not apply to simpliciter termination. His contention and reliance on such decisions of Supreme Court, however, ignores one aspect of the matter viz. language used in clause (2) of Article 311 is vitally different which provides that no person who is member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Article 311 (2) does not use the expression "or otherwise be terminated" which expression is found in Clause (a) of sub section (1) of Section 40B of the Bombay Primary Education Act, 1942. For obvious reasons the protection flowing from Article 311 (2) would be available only in cases of penal action of dismissal or removal or reduction in rank.
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16. Coming to the facts of the case, we may recall that the school management armed with the permission to reduce one division in standards 5th 6th and 7th granted by the Director of Primary Education issued notices to the appellant and other teachers likely to be terminated. The school management thereafter applied to the Administrative Officer for approval of the termination. Such approval was declined by order dated 27.09.2004. The school management challenged such order before the High Court and pending such petition, terminated the service of the present appellant and other teachers. This was under
the purported protection of interim relief in terms of para 31 (B) granted by learned Single Judge on 08.02.2005. Para 31(B) of the petition prayed for staying of the implementation of the order rejecting approval. Even if such order was stayed, we fail to see how unless the same was reversed, the school management could have validly brought about termination of the teachers. Section 40B of the Bombay Primary Education Act, 1947 required approval from the competent authority before such termination could be effected. Until such order was reversed and approval granted, action of termination was not authorized in law.
17. Learned counsel for the school management would, however, contend that subsequently, such order was quashed and that therefore, the same would have the effect of validating the action of the school Page 17 of 20 C/LPA/948/2011 JUDGMENT management. We are afraid the quashing of the order would take effect from the date the court passes such an order and cannot have any retrospective effect so as to validate the action taken disregarding the statutory provision. Even when therefore not reversing the decision of the learned Single judge on the question of legality of the Administrative Officer's order of not granting approval, we are of the opinion that the school management could not have validly terminated the services of the teacher w.e.f. March 2005. Independently of this, this issue has no relevance left any longer. Firstly because admittedly, the teacher has crossed the age of superannuation and would have retired in June 2008 even if she was in service. Looking to her relatively short service tenure and the fact that the school was self finance school, question of further benefits such as pension etc. would not arise. Considering such factors, we are inclined to put an end to this litigation by awarding lumpsum compensation in lieu of her lost service. She would ofcourse be entitled to amount of Rs. 98,556/- with reasonable interest from 01.03.2005 till actual payment. Considering her past service on regular sanctioned post from the year 1998, the fact, that the school management had been granted permission to reduce one division of standard 5th 6th and 7th and that in any case, she has crossed the age of superannuation in June 2008, we direct the school management to pay additional amount of Rs. 1 lac by way of lumpsum compensation. This will be in Page 18 of 20 C/LPA/948/2011 JUDGMENT addition to amount of Rs. 98,556/- which shall be paid with simple interest @ 8% per annum from 01.03.2005 till actual payment.
18. Before closing, we record our agreement with the suggestion of Mr Oza for the Administrative Officer that some of the observations of the learned Single Judge would hamper the discretion of the Administrative Officer in deciding applications of schools under Section 40B of the Bombay Primary Education Act, 1947. Even if approval is granted by the Director either for reduction of a class or for closure of the entire school, the procedure under Section 40B(1) of the Act before terminating service of the teachers is to be followed. There may be many issues which may need consideration before granting approval for termination. Such issues may include the question of seniority of the teachers to be terminated, the requirement of number of teachers to be terminated and examination whether other formalities had been followed or not. We clarify that the contrary observations contained in the impugned judgement are reversed.
19. Letters Patent Appeal is disposed of in above terms.
(AKIL KURESHI, J.)
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(MOHINDER PAL, J.)
Jyoti
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