Gujarat High Court
C P Oza Decd.Thro.His Heirs & Lr'S vs Vijaynagar Education Society Thro ... on 5 August, 2022
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 25680 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 ?
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C P OZA DECD.THRO.HIS HEIRS & LR'S
Versus
VIJAYNAGAR EDUCATION SOCIETY THRO SECRETARY K A SHAH & 2
other(s)
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Appearance:
DECEASED LITIGANT for the Petitioner(s) No. 1
MR JD AJMERA(119) for the Petitioner(s) No. 1.1,1.2,1.3,1.4,1.5
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 3
MR SHAILESH C PARIKH(583) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 05/08/2022
CAV JUDGMENT
1. By this petition under Articles 226 and 227 of the Constitution of India, the Page 1 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 petitioner- late Shri C.P. Oza, (here-in- after referred to as "the petitioner") who is now represented by his legal heirs, has challenged the order dated 23.06.2006 in Application No.69 of 1997 passed by Gujarat Secondary Education Tribunal, Ahmedabad (For short "the Tribunal") whereby the order dated 30.01.1997 passed in Appeal No.28 of 1989 by respondent no.1 - Vijaynagar Education Society is confirmed.
2. The brief facts of the case of the petitioner are as under:
2.1) The petitioner joined the Secondary School as Assistant Teacher in the year 1961.
The petitioner was thereafter appointed as Head Master/Principal with respondent no.1 run grant-in-aid school in the year 1978.
2.2) In the year 1984, the petitioner was suspended from the post of Principal/Head Master on the allegation of misconduct vide order dated 31.08.1984 passed by respondent no.1. It was alleged against the petitioner that the petitioner deliberately tried to manipulate the appointment procedure so as to get his daughter Ms. Kailashben C. Oza to be appointed as Assistant Teacher on the Page 2 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 reserved vacancy of teachers in respondent no.1 school though reserved category candidates were available. There were also other charges with regard to compelling the students for tuition, not carrying out the instructions given by the management, irregularities in maintaining the accounts, not maintaining the log book, etc. 2.3) On 23.10.1984, Secretary of respondent no.1 issued charge-sheet reiterating the allegations as contained in the show cause notice issued along with the suspension order. Thereafter, the inquiry committee consisting of one person Shri R.H. Vyas was constituted by respondent no.1. The last meeting of the inquiry committee was held on 30.3.1987 and the inquiry was completed by the inquiry committee and thereafter, inquiry report was submitted on 28.02.1989. During the period of inquiry proceedings about 155 meetings were held. The petitioner appointed one Mr. Kunjbihari Barot as his defense assistant. The respondent management examined five witnesses in support of the charges leveled against the petitioner. The petitioner did not examine any one of 36 witnesses, though their names were provided by him.
Page 3 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 2.4) As per the inquiry report, the charges leveled against the petitioner were held to be proved. Therefore, on 15.05.1989, second show cause notice was issued to the petitioner along with the inquiry report, calling upon him to show cause as to why he should not be dismissed from service.
2.5) The petitioner requested for supply of the copies of the complaints for the charges leveled against him and thereafter filed reply dated 21.06.1989 to the show cause notice.
2.6) Respondent no.1 on 24.08.1989 decided to dismiss the petitioner and therefore, approached the District Education Officer under section 36(1)(b) of the Gujarat Secondary Education Act, 1972 (For short "the Act, 1972) seeking approval for the proposed action.
2.7) The District Education Officer after considering the material on record and after hearing both the sides by order dated 6.10.1989 declined to grant approval to the proposed action of the respondent management.
Page 4 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 2.8) The respondent management therefore, being aggrieved by order of the District Education Officer filed Appeal No.28 of 1989 before the Tribunal. The Tribunal by order dated 5.01.1990 granted interim relief in favour of the respondent no.1 management to the effect that on payment of full salary, the management would be entitled to restrain the petitioner from attending his duties.
2.9) The petitioner thereafter made an application dated 22.10.1996 for voluntary retirement with effect from 31.01.1997. However, the same was rejected by the respondent no.1 management on 3.11.1996.
2.10) On 30.01.1997, the Tribunal allowed the Appeal No.28 of 1989 of the respondent no.1 management and granted approval to dismiss the petitioner from service. The respondent management therefore, on the same date that is on 30.01.1997 passed the order of dismissing the petitioner from service.
2.11) The petitioner therefore, being aggrieved by the order of dismissal filed Application No.69 of 1997 before the Tribunal which was also dismissed by the Tribunal Page 5 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 vide impugned order dated 23.06.2006. Being aggrieved the petitioner has filed this petition.
3. This Court (Coram: Hon'ble Mr. Justice H.K. Rathod, As His Lordship was then) admitted the petition vide order dated 10.01.2007. The petition was dismissed for non prosecution on 31.08.2017 by this Court which was later on restored vide order dated 20.09.2017.
4. It appears from the record that for the academic year 1983-1984, certain posts of teachers fell vacant in the respondent no.1 school and 'No Objection Certificate' was obtained from D.E.O. by the petitioner being the Headmaster of the school. Accordingly, the recruitment process was initiated by the petitioner by publishing the advertisement altering the qualification by omitting Hindi subject and thereafter ignoring applications of candidates of reserved category, interviews were held on 10.07.1983 in which two candidates were shortlisted for recruitment including the daughter of the petitioner. When other candidate Smt. Naynaben Jani expressed her inability to join the post, daughter of the petitioner was Page 6 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 appointed as an Assistant Teacher in the school run by the respondent no.1. However, District Education Officer by communication dated 18/20.07.1983 informed respondent no.1 school that appointment of Ms. Kailashben was illegal and therefore, respondent school terminated her services by order dated 27.07.1983.
5. Ms. Kailashben filed Application No.184 of 1983 before the Tribunal challenging the termination order wherein the petitioner was impleaded as respondent no.2. The Tribunal by order dated 30.03.1984 allowed the Application No.184 of 1983 setting aside the order of termination. The Tribunal in the said judgment and order criticised the role of the petitioner by holding as under :
"From the papers produced by him, it appears that the Headmaster deliberately had tried to manipulate the appointment of the applicant who happens to be his daughter (page-7 of the judgment)"
"If one reads the tenor of the Third Advertisement, it will be clear that the headmaster in order to accommodate his daughter deliberately did not call for interview 9 persons from Schedule Caste and Backward Communities who had applied for the post of Hindi Teacher and subsequently dropped the word Hindi in the second advertisement (page-8 of the judgment)"Page 7 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022
C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 "It is open to the management to take appropriate steps against the headmaster for flouting the direction given to him by the Secretary of the Mandal with regard to the appointment of teacher in the school (page 15 of the judgment)"
6. In view of above observations made by the Tribunal, respondent no.1 school initiated the disciplinary proceedings against the petitioner by issuing show cause notice dated 31.08.1984 along with suspension order.
7. The respondent no.1- school management challenged the order of the Tribunal in Application No.184 of 1983 by preferring Special Civil Application No.1853/1984 before this Court. The said writ petition was allowed by this Court vide order dated 9.9.1996. This Court also criticised the role of the petitioner and passed several strictures against him as the petitioner was one of the respondents in the said petition filed by respondent no.1 against the daughter of the petitioner.
8. The petitioner thereafter tendered his application for voluntary retirement on 22.10.1996 which was not approved by respondent no.1 school management.Page 8 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022
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9. Learned advocate Mr. J.D. Ajmera appearing for the legal heirs of the petitioner submitted that the inquiry officer as well as the Tribunal has committed an error by not considering the defense reply of the petitioner in its true perspective wherein the petitioner has explained in detail about each allegations to demonstrate his innocence. It was submitted that the inquiry conducted by the inquiry officer is contrary to the procedure prescribed under the statutory Regulation no. 27 and Rule 69.7 of the Grant-in-aid Code Rules as only one inquiry officer was appointed instead of constituting the inquiry committee of three members. It was submitted that as the inquiry is not conducted by such inquiry committee, the whole inquiry is vitiated and deserves to be quashed and set aside.
9.1) Learned advocate Mr. Ajmera further submitted that there is gross violation of principles of natural justice by the inquiry officer as the petitioner was not allowed to examine the President of the trust Mr. N.R. Trivedi and other employees in support of his case. It was pointed out that inspite of repeated requests being made by the Page 9 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 petitioner, the complaints which were the basis of the allegations made against the petitioner were never provided.
9.2) It was submitted that the charge- sheet dated 23.10.1984 was issued under the signature of Secretary Mr. Kanubhai Shah whereas show cause notice was issued under the signature of the President of the trust and therefore, the charge-sheet suffers from impropriety and illegality because it was not issued by the inquiry officer. It was further submitted that the individuals like the Secretary or the President could not be the manager and therefore, the inquiry is illegal since inception.
9.3) Learned advocate Mr. Ajmera submitted that the petitioner's defense reply was running into more than 50 pages however, the vital documents submitted with the defense statement were never produced on record of the tribunal. The petitioner, therefore, filed additional affidavit before the Tribunal to consider such documents. However, the Tribunal discarded such documents. Learned advocate relied upon the following documents produced before the Tribunal :Page 10 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022
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1) A copy of letter dated 11.4.1984 by Peon Shri Haribhai Chauhan addressed to the Secretary.
2) A copy of letter dated 1.3.1986 addressed by the District Panchayat, Banaskantha regarding the exemption in Hindi subject for the daughter of the petitioner.
3) Photocopy of letter dated 18.04.1987 written by the New York Advertisement Agency to the Inquiry officer.
4) Copy of mark-sheet of the daughter of the petitioner of M.A. Part-I examination.
9.4) It was submitted that the aforesaid documents clearly show that the petitioner has not acted mala fide as alleged by the respondent no.1 in the charge-sheet.
9.5) Learned advocate Mr. Ajmera thereafter referred to the documentary evidence produced on record before the Tribunal to point out that though the inquiry was concluded in the year 1987, inquiry report was submitted after almost two years in February, 1989 and on this ground only Page 11 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 entire inquiry report has been vitiated and therefore, the impugned action taken by the respondent authority and confirmed by the Tribunal dismissing the petitioner from service is liable to be quashed and set aside.
9.6) It was submitted that the impugned order of the Tribunal without taking into consideration the voluminous record of more than 1000 pages which clearly shows that the petitioner has not committed any misconduct as alleged by respondent no.1 management in the charge-sheet and the inquiry report suffers from non application of mind as it was submitted by the inquiry officer after more than two years without considering the defense and documents which have come on record during the course of inquiry.
10. On the other hand, learned advocate Mr. Shailesh C. Parikh for respondent no.1 submitted that inquiry is conducted by the inquiry officer in accordance with law and the contention raised on behalf of the petitioner that the inquiry committee should consist of three members is not tenable in view of the fact that when the inquiry committee was constituted in 1987, Regulation Page 12 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 27 was not in vogue at the relevant time and at that time inquiries were conducted by appointing one man inquiry committee and hence, it cannot be said that the inquiry was illegal. It was further submitted that Grant- in-aid Code Rules do prescribe the inquiry committee of three members, but the said Code is in nature of administrative instructions and guidelines and do not have any statutory force and therefore, breach of such Rules cannot vitiate inquiry.
10.1) Learned advocate Mr. Parikh submitted that this Court should not exercise the power under Article 227 of the Constitution of India to interfere with the order passed by the Tribunal when allegations of serious nature leveled against the petitioner have been proved during inquiry.
10.2) It was submitted that after service of the charge-sheet, independent and impartial inquiry officer was appointed to conduct the inquiry after giving opportunity of hearing to the petitioner. It was submitted that it was due to the hurdles created by the petitioner, inquiry was delayed for a long time and total 155 sittings were held by the inquiry officer Page 13 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 during which more than 250 documents were produced on record by both the sides before the inquiry officer. It was pointed out that the petitioner asked various adjournments and for more than 40 times, inquiry was postponed due to the absence of the petitioner.
10.3) It was further pointed out that the petitioner was also afforded opportunity to defend his case through his defense representative Mr. Kunjbihari Barot. It was therefore, submitted that the contention on behalf of the petitioner for violation of principles of natural justice is not borne out from the record.
10.4) Learned advocate Mr. Parikh further submitted that the petitioner also did not cooperate with the proceedings before the Tribunal by making false allegations against the member of the Tribunal and as a result, the application was transferred to the other Tribunal. It was submitted that the application filed by respondent management is rightly allowed by quashing and setting aside the order of District Education Officer and granting permission to dismiss the petitioner considering the serious charges which are proved against the petitioner.
Page 14 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 10.5) Learned advocate Mr. Parikh submitted that the Tribunal has rightly considered that the post of principal, held by the petitioner, was a post of confidence and being head of the school, the petitioner was a responsible person, and he was not expected to indulge in mal-practice, irregularities and fraud to appoint his daughter as Assistant Teacher in the school. Learned advocate Mr. Parikh relied upon the observations made by this Court in order passed in Special Civil Application No.1853/1984 in case of daughter of the petitioner which is also referred to by the Tribunal.
10.6) Learned advocate Mr. Parikh submitted that the Tribunal was required to see whether the charges leveled against the petitioner are proved on the basis of legal evidence by observing principles of natural justice by affording reasonable opportunity of hearing to the petitioner during the course of inquiry or not and the Tribunal after going through entire inquiry proceedings and after hearing the learned advocates for both the sides has come to the conclusion of granting approval to the Page 15 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 decision taken by the respondent - school management to dismiss the petitioner from services.
10.7) Learned advocate Mr. Parikh submitted that during the pendency of the proceedings before the Tribunal also, the respondent no.1-school management has considered the proposal to permit the petitioner for compulsory retirement instead of dismissal from service. However, in the meeting of the Executive Committee held on 2.04.2005, it was unanimously resolved by resolution no.4 not to change the punishment of dismissal imposed upon the petitioner. It was therefore, submitted that respondent no.1 school has never agreed for lesser punishment to the petitioner than that of dismissal. It was submitted that Tribunal has rightly come to the conclusion for granting permission to the petitioner school to dismiss the petitioner from service in view of the serious charges which are proved during the course of inquiry.
11. Considering the rival submissions of both the sides and on perusal of documentary evidence produced on record and the impugned order passed by the Tribunal dated Page 16 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 23.06.2006, it appears that the Tribunal has considered the documentary evidence produced on record in detail about the facts of the case.
12. The school management served the charge- sheet dated 23.10.1984 upon the petitioner containing about seven charges which are reproduced by the Tribunal as taken from the reply of the management as under :
"1. The first charge against him was that on a reserved vacancy though reserved candidates were available, ignoring their claim and by committing malpractice he appointed his own daughter on the said post. He also changed the advertisements from time to time and he also made changes in the marks given by the selection committee.
2. The second charge was in connection with compelling the students for tuition etc. and harassing the students and parents for not submitting to such compulsions and he harassed one Hema Rameshchandra Shukla and also misbehaved with Ku.Chhaya Rawal.
3. The third charge was in connection with not carrying out the instructions given by the Government for various benefits and facilities for Cl. IV employees.
4. The fourth charge was in connection with the irregularities in maintaining the accounts and also for not providing details etc. and also about non-co-operation.
5. The fifth charge was in connection with not maintaining logbook.Page 17 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022
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6. The sixth charge was in connection with not obeying the instructions and not using the chamber allotted to him and creating disturbing.
7. The sixth charge was in connection with not preparing the budget and not giving the details in spite of repeated reminders and creating obstructions in the day-to-day administration and also misguiding the management."
13. The contention of the petitioner that constitution of one member inquiry committee is illegal, is not tenable in view of the fact that Regulation 27 which is relied upon on behalf of the petitioner was not in operation at the relevant point of time and therefore, one man inquiry committee appointed by respondent school management is proper and legal.
14. During the course of inquiry, the petitioner was given opportunity of hearing to lead evidence and defend his case and the inquiry officer has held more than about 155 meetings of inquiry, and, merely because inquiry report was submitted late, petitioner cannot be said to be prejudiced in any manner. As stated here in above, inquiry was initiated by respondent school management pursuant to the observations made by the Tribunal in the order dated 30.03.1984 passed Page 18 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 in Application No.184 of 1983 filed by the daughter of the petitioner. This Court also in order dated 9.9.1996 passed in Special Civil Application No.1853/1984 filed by respondent school management against the order of the Tribunal, has observed against the petitioner as under :
"Para 18 : The matter assumes more importance if it is considered from another angle. It is a case where respondent no.2 had changed the advertisement from time to time. He has not called SC/ST and other backward class candidates for interview though the post was reserved for them. In the last advertisement he had left it open to consider the candidate with qualification other than B.A. with Hindi and Sociology. On the basis of the evidence which has come on record an interference follows that he manipulated the advertisement so as to get his daughter selected.
Para 24 : ".... Evidence has been produced and point has also been raised by the management before the Tribunal that the candidate who was placed at serial no.1 in the merit list and the headmaster were colleagues in Coba Training College where they were serving together. It is a fact that respondent No.2 has not appeared in the witness box. In the presence of this evidence which is uncontroverted, I find sufficient merits in the contention that there are possibilities, that the Headmaster, respondent no.2, himself would have obtained the letter from the candidate who stood at serial no.1 expressing her liability to join the school. The Tribunal has not decided this issue.Page 19 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022
C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 Para 27 : It is not only a case of maneuvering the appointments by the headmaster but it is a case of fraud played by him with the candidates belonging to reserved category. The post which was reserved only for SC/ST and other backward community candidates has not been filled in by selecting candidates belonging to those categories. Respondent no.3 has not called any of the candidates reserved category who applied in response to three advertisements. It is not the case where suitable candidates belonging to reserved category were not available. In response to the first advertisement where posts were shown to be reserved, nine applications were received out of which seven were persons belonging to reserved class who possessed the requisite qualifications for the post advertised. In response to other advertisements further applications should have been received, details of which have not come on record. Twenty seven applications were received in total. But the head master has called only 7 seven candidates. In fact, as discussed above, he has called only five persons who had to decline the appointment after her selection."
The Tribunal has also while passing the impugned order, considered the above observations made by this Court against the conduct of the petitioner in the matter of appointment of his daughter in school.
15. It is true that the observations made by this Court are only prima facie, however, the Tribunal after considering the documentary evidence on record has confirmed the findings of the inquiry officer with regard to the Page 20 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 charges leveled against the petitioner as proved.
16. It is also pertinent to note that though the petitioner was a party respondent before this Court in the aforesaid proceedings, he did not file any reply denying the averments made against him in the petition filed by the respondent no.1 school-management with regard to the irregular appointment of his daughter as Assistant Teacher in respondent no.1 school. The inquiry officer has considered the entire material on record to come to the conclusion that charges are proved against the petitioner and as such, the Tribunal has rightly not interfered with such findings arrived at by the inquiry officer in view of the fact that such findings are neither perverse nor there is any other infirmity is found by the Tribunal in the conduct of the inquiry.
17. The petitioner was given an opportunity to bring the witnesses before the inquiry officer but he had chosen not to produce any witnesses and he kept on insisting respondent no.1 school management to issue notice and call witnesses before the inquiry officer and in such circumstances, the witnesses were not Page 21 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 examined by the Tribunal. The Tribunal has come to the conclusion that if the petitioner wanted to prove his case he was required to produce witnesses and therefore, could not have made insistence for issuance of notice by the management to call the witnesses to support the case of the petitioner. Therefore, the Tribunal has rightly held that there is no violation of any principles of natural justice during the course of inquiry proceedings.
18. With regard to supply of the documents to the petitioner, it is found by the Tribunal that the documents which were relevant were supplied and the petitioner also did not point out as to which relevant document was not supplied and what was the purpose for which such documents were required so as to cause any prejudice to the petitioner.
19. The Tribunal after considering the judgment of the Supreme Court in case of State of U.P. and others v. Ramesh Chandra Mangalik reported in AIR 2002 SC 1241 as well as judgment of this Court in case of Gautambhai Devshankar Dave v. State of Gujarat reported in 2004(1) GLH 603 relied Page 22 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 upon by respondent school management as well as judgment of the Apex Court in case of State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan reported in AIR 1961 SC 1623 relied upon on behalf of the petitioner has held that the documents which the management has relied upon against the petitioner have been supplied to him. It was further observed that the petitioner has not been able to pinpoint the particular document and to demonstrate as to how such document was relevant and what prejudice is caused to the petitioner due to non supply of such document. The Tribunal has also rightly held that charge-sheet issued under the signature of Secretary of respondent no.1 is also not fatal to the inquiry as before there was no such rule which prohibit the Secretary of respondent no.1 to issue charge-sheet under his signature and charges are formulated by respondent no.1 school management. The Tribunal has therefore, held that petitioner was not able to point out any prejudice caused to him.
20. In view of the above, the contention raised on behalf of the petitioner was rightly negated by the Tribunal and the inquiry officer has rightly come to the Page 23 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 conclusion on basis of oral and documentary evidence that charge-1 which is of serious nature was proved holding that the petitioner had indulged in mal practice inasmuch as four posts which were required to be filled in as per the advertisement include one post for a B.A./B.Ed. teacher with Hindi and G.B.T.C. and 9 persons belonging to Scheduled Caste and Backward community possessing the required qualifications applied for the said post. However, the petitioner did not call any of the 9 candidates in interview and instead of issuing another advertisement and in all 27 candidates applied for the post in response to three advertisements given by the petitioner on behalf of respondent no.1 school and though No Objection Certificate was given by DEO of Assistant Teacher having qualification of BA/B.Ed with Hindi, last advertisement omitted Hindi qualification completely contrary to the permission granted by DEO and without consulting the management and without signature of the DEO advertisement was issued. It was also found by the Inquiry Officer that the petitioner deliberately tried to manipulate the appointment procedure to see that his daughter gets appointed as Assistant Teacher. The petitioner was however unable to prove Page 24 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022 C/SCA/25680/2006 CAV JUDGMENT DATED: 05/08/2022 his innocence in the inquiry. The Tribunal has rightly come to the conclusion that the petitioner could not have acted in the manner in which he has acted in getting the appointment for his own daughter. Therefore, it cannot be said that charges against the petitioner are vitiated in any manner whatsoever and for other charges leveled against the petitioner, the same are also proved in the inquiry.
21. With regard to the contention raised on behalf of the petitioner that the inquiry report was submitted after about more than two years, it is required to be noted that the petitioner failed to point out any prejudice or injustice suffered because of delay in submitting the inquiry report, as the inquiry report is based upon the documents on record and the findings are arrived at after considering such documents. The inquiry report also contains reasons for delay in preparing the report. In such circumstances, in absence of any prejudice caused to the petitioner, no fault can be found with the inquiry report, more particularly when reasonable opportunity is afforded to the petitioner during the course of inquiry.
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22. The Tribunal has also considered commensurately the quantum of punishment with the charges leveled against the petitioner in view of the contentions raised with regard to 36 years of service rendered by the petitioner so as to take a lenient view. The Tribunal after considering the contentions of both sides has held as under:
"In the facts and circumstances of the present case, it is not possible for me to agree that the punishment is disproportionate. Having regard to the sensitive post of the head of the school held by the applicant and keeping in view the expectation from any such person, in my opinion, the order of dismissal is the just retribution for the misconduct committed. As held by the Hon'ble Supreme Court in the case of U.O.I v/s. B.C.Chaturvedi reported in J.T.1995 (8) 651. This forum does not have jurisdiction to reduce the punishment. Still, however, due to repeated requests coming on behalf of the applicant, before the arguments started I had put a word to the management to ascertain whether it was possible to convert the dismissal into compulsory retirement. The school management has expressed inability to convert the dismissal into voluntary retirement. It is, therefore, not possible for this forum to reduce or convert the punishment. I have perused the facts of the case relied upon by the applicant (AIR 1985 SC 75). The case before the Supreme Court was of Sweeper and the charge was not about the fraud and therefore, the said judgment, in my view, would not held the applicant."Page 26 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022
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23. In view of above findings arrived at by the Tribunal which cannot said to be perverse as the same are based on the documents produced on record, no interference is called for in the impugned order dated 23.06.2006 passed by the Tribunal while exercising extra-ordinary jurisdiction under Article 227 of the Constitution of India.
24. The petition therefore, being devoid of any merit, fails and is accordingly dismissed. Rule is discharged.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 27 of 27 Downloaded on : Fri Aug 05 21:27:29 IST 2022