Gujarat High Court
M.S.Kazi vs Muslim Education Society Runby & 3 on 24 July, 2017
Bench: M.R. Shah, B.N. Karia
C/LPA/86/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 86 of 2014
In SPECIAL CIVIL APPLICATION NO. 20747 of 2006
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
=============================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
M.S.KAZI....Appellant(s)
Versus
MUSLIM EDUCATION SOCIETY RUNBY & 3....Respondent(s)
=============================================
Appearance:
MR MTM HAKIM with MR VA MANSURI, ADVOCATE for the Appellant(s) No. 1
MR MS MANSURI, ADVOCATE for the Respondent(s) No. 1 , 3
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 24/07/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.12.2012 passed by the learned Single Judge in Special Civil Application No.20747/2006 by which the learned Single Judge has dismissed the said petition preferred by the appellant herein and has confirmed the judgment and order Page 1 of 8 HC-NIC Page 1 of 8 Created On Sun Aug 20 13:43:36 IST 2017 C/LPA/86/2014 JUDGMENT dated 13.06.2006 passed by the learned Gujarat Higher Secondary Education Tribunal (hereinafter referred to as "Tribunal") in Application No.15/2004 rejecting the said application challenging the dismissal order dated 13.01.2004, the original petitioner has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent.
[2.0] The facts leading to the present Letters Patent Appeal in nut shell are as under:
[2.1] That the appellant herein - original petitioner (hereinafter referred to as "original petitioner") was a Teacher working in the respondent Institute. That at the relevant time the petitioner was the only Teacher who was a Urde language Teacher. That the petitioner was served with the chargesheet dated 25.06.2002 wherein it was inter alia alleged that from 29.11.2001 to 15.12.2001, he had remained absent unauthorizedly and without prior permission. The charge also further reads that the original petitioner was habituated to remain absent unauthorizedly repeatedly and he traveled abroad in such unauthorized absence.
[2.2] That after conducting departmental proceedings and giving him fullest opportunity, the charge was held to be proved and ultimately an order of dismissal came to be passed. The order of dismissal was challenged before the learned Tribunal. That by a reasoned order the learned Tribunal dismissed the said application and confirmed the order of dismissal. That order passed by the learned Tribunal came to be challenged by the petitioner before the learned Single Judge and by impugned judgment and order the learned Single Judge has also dismissed the said petition and has confirmed the order passed by the learned Tribunal confirming the Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun Aug 20 13:43:36 IST 2017 C/LPA/86/2014 JUDGMENT order of dismissal.
[2.3] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Single Judge, the original petitioner - Teacher has preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent.
[3.0] Shri MTM Hakim, learned Advocate has appeared on behalf of the original petitioner and Shri M.S. Mansuri, learned Advocate has appeared on behalf of the respondent Nos.1 and 3.
[4.0] Shri Hakim, learned Advocate appearing on behalf of the original petitioner has vehemently submitted that in the facts and circumstances of the case the order of dismissal is too harsh and can be said to be disporportionate to the charge and misconduct proved. It is vehemently submitted by Shri Hakim, learned Advocate appearing on behalf of the original petitioner that as such departmental inquiry was initiated against the original petitioner with the charge of remaining absent without leave for 20 days only. It is submitted that as such the leave was not refused and therefore, the petitioner understood that his leave application has been sanctioned. It is submitted that it was a practice to sanction the leave subsequently and therefore, the original petitioner bonafidely believing that as his leave is not specifically refused, the same may be granted subsequently, the original petitioner left the country. It is submitted that therefore in the facts and circumstances of the case, the order of dismissal can be said to be too harsh. It is submitted that therefore if any lesser punishment is imposed, the original petitioner, who has already retired on attaining the age of superannuation, may get the retirement benefits.
Making above submissions it is requested to admit/allow the Page 3 of 8 HC-NIC Page 3 of 8 Created On Sun Aug 20 13:43:36 IST 2017 C/LPA/86/2014 JUDGMENT present Letters Patent Appeal.
[5.0] Present Letters Patent Appeal is vehemently opposed by Shri Mansuri, learned Advocate appearing on behalf of the Management. It is submitted that the original petitioner was the only Teacher in Urdu language and by his remaining absent unauthorizedly, repeatedly, and without prior sanction, the studies of the students was adversely affected and that had bearing on the overall image of the school as well. It is submitted that repeatedly and frequently the original petitioner was going abroad without prior permission of the school Management. It is submitted that in past, approximately on 8 occasions between 1980 to 2001, the original petitioner had gone abroad and on remaining unauthorizedly absent without getting the leave sanctioned. It is submitted that every time he was submitting the application for leave subsequently which were sanctioned subsequently with Half Pay Leave or Leave Without Pay. It is submitted that however as the petitioner was habitual in remaining absent without getting the leave sanctioned frequently, ultimately it affected the students and the education. In the facts and circumstances of the case and after having the charge and misconduct proved and thereafer when the order of dismissal has been passed which has been confirmed by the learned Single Judge, the same does not require any interference by this Court in exercise of intracourt appellate jurisdiction. It is submitted that neither there is any procedural irregularity in conducting the departmental inquiry as alleged nor there is any allegation of violation of principles of natural justice.
[5.1] Now, so far as the submission on behalf of the original petitioner that the departmental inquiry was initiated for remaining unauthorizedly absent for 20 days only i.e. for the period between Page 4 of 8 HC-NIC Page 4 of 8 Created On Sun Aug 20 13:43:36 IST 2017 C/LPA/86/2014 JUDGMENT 29.11.2001 to 15.12.2001 for which the original petitioner submitted the leave application but as the same was not refused specifically and the petitioner bonafidely believed that as per the practice the leave will be sanctioned subsequently and therefore, he left the country is concerned, Shri Mansuri, learned Advocate appearing on behalf of the Management has drawn the attention of the Court to the observations made by the learned Tribunal that the applicant made an application for leave on 13.11.2001; the application was submitted to the Principal at the residence after school hours; on the application the Principal made an endorsement that "subject to approval of the Managing Committee, as to sanction such leave, is beyond his power, such report report should be submitted before a week", however subsequently without submitting any application for leave to the school Management, the applicant left the country on 16.11.2001. It is submitted that though the application dated 13.11.2001 was for leave from 29.11.2001 to 15.12.2001, the petitioner left the country on 16.11.2001 itself. It is submitted that therefore, in the facts and circumstances of the case, the order of dismissal cannot be said to be disproportionate to the charge and misconduct proved. It is submitted that the same cannot be said to be shockingly disporportionate to the charge and misconduct held to be proved. Therefore, it is requested to dismiss the present petition.
[6.0] Heard the learned Advocates appearing for respective parties at length.
[6.1] At the outset it is required to be noted that after holding the departmental inquiry and after giving fullest opportunity to the petitioner and thereafter after holding the charge and misconduct proved and having found that the petitioner herein who was a Page 5 of 8 HC-NIC Page 5 of 8 Created On Sun Aug 20 13:43:36 IST 2017 C/LPA/86/2014 JUDGMENT Teacher, only Teacher in Urdu language was habitual in remaining absent and thereby affected the education and the students, the order of dismissal / removal has been passed which has been confirmed by the learned Tribunal as well as the learned Single Judge.
[6.2] At the outset it is required to be noted that there are no allegations of either procedural irregularity in holding / conducting the departmental inquiry nor there are allegations of violation of the principle of natural justice. Under the circumstances, the only allegation which is required to be considered is whether in the facts and circumstances of the case, the Disciplinary Authority / School Management was justified in dismissing / removing the petitioner from service and/or whether in the facts and circumstances of the case, the order penalty / punishment of removal from service is required to be interfered with on the ground that the same is disproportionate to the charge and misconduct held to be proved?
[6.3] It is required to be noted that the petitioner was the only Teacher in Urdu language which can be said to be a specialized subject. It was found that earlier the petitioner used to remain on unauthorized leave without getting the leave sanctioned and thereafter after returning he was getting the leave sanctioned which were being sanctioned either on Leave without Pay and/or Half Pay Leave. It was found that earlier on 8 occasions the petitioner remained unauthorizedly absent. Ultimately, it affected the students and the education. Lastly, the petitioner remained absent unauthorizedly and without getting leave sanctioned for 32 Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Aug 20 13:43:36 IST 2017 C/LPA/86/2014 JUDGMENT days for the period between 19.11.2001 to 20.12.2001. It is the case on behalf of the petitioner that the petitioner tendered / submitted the leave report and he was under the bonafide impression that the leave will be sanctioned subsequently as usual and as per the practice, he left the country. However, it is required to be noted that the petitioner submitted the application to the Principal at his residence after school hours on 13.11.2001. The Principal did not accept the said application and made an endorsement that whether to sanction such leave or not is beyond his powers and therefore, such report should be submitted to the Management before a week. However, subsequently, without submitting any application for leave to the School Management, the petitioner left the country on 16.11.2001 and remained unauthorizedly absent upto 15.12.2001. As reproduced by the learned Single Judge in the impugned order, the petitioner was habitual in remaining absent and atleast earlier on 8 occasions he remained unauthorizedly absent and without prior permission and he used to leave the country without prior permission and without getting the leave sanctioned. Under the circumstances and in the facts and circumstances of the case, it cannot be said that the order of dismissal / removal can be said to be too harsh and/or shockingly disproportionate to the charge and misconduct held to be proved. A conscious decision has been taken by the Management. The petitioner infact being a Teacher was required to teach the lesson of discipline to the students. If the Teacher who is required to set an example of discipline and who is required to teach lessons to the students of discipline himself frequently behaves in an undisciplined manner, what message the students Page 7 of 8 HC-NIC Page 7 of 8 Created On Sun Aug 20 13:43:36 IST 2017 C/LPA/86/2014 JUDGMENT will get from such a Teacher. By frequently remaining absent by the petitioner who was the only Teacher in Urdu language, ultimately it affected the education and the students. It is the submission on behalf of the petitioner that by remaining unauthorizedly absent and/or absent, it had not affected the result of the students. However the same is required to be viewed from another angle. If the petitioner would have been regular, in that case the result would have been better. It might be that the students might themselves have prepared and therefore, it might not have affected the ultimate result. In any case, in the facts and circumstances of the case and as the petitioner was remaining unauthorizedly absent frequently and was leaving the country without getting the leave sanctioned, in the facts and circumstances of the case, it cannot be said that the order of dismissal can be said to be disproportionate to the charge and misconduct proved and/or the same can be said to be shockingly disproportionate to the charge and misconduct held to be proved.
[6.4] We see no reason to interfere with the impugned order passed by the learned Single Judge.
[7.0] In view of the above and for the reasons stated above, present Letters Patent Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun Aug 20 13:43:36 IST 2017