Gujarat High Court
Bhartiben Prakashchandra Shah vs District Education Officer on 31 July, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/10327/2007 ORDER DATED: 31/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10327 of 2007
==========================================================
BHARTIBEN PRAKASHCHANDRA SHAH
Versus
DISTRICT EDUCATION OFFICER & ORS.
==========================================================
Appearance:
MR HARSIMRANSINGH P BHATIA(10429) for the Petitioner(s) No. 1
MR. MAHITOSH U SINGH(7015) for the Petitioner(s) No. 1
MR. MH SHEKHAWAT(7194) for the Petitioner(s) No. 1
MS NIDHI VYAS AGP for the Respondent(s) No. 1
MS SNEHA A JOSHI(2156) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
==========================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 31/07/2024
ORAL ORDER
1. Heard Mr. Mishra, learned advocate appearing for the petitioner, Ms. Nidhi Vyas, learned APP appearing for the respondent No.1 and Ms. S. A. Joshi, learned advocate appearing for the respondent No.2.
2. By way of this petition, the petitioner herein has challenged the order dated 26.03.2007 passed by leaned Secondary Education Tribunal in Appeal No.1 of 2005 as well as consequential order dated 04.04.2007 passed by the respondent No.2 in compulsory retiring the petitioner.
Page 1 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024
NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined
3. The petitioner has prayed for following reliefs:-
"(A) Be pleased to admit the present special civil application.
(B) Be pleased to issue a writ of certiorari and/or a writ in the nature of certiorari by quashing and setting aside the order dated 26-3-2007 passed by the Ld. Gujarat Secondary Education Tribunal in Appeal No. 1/2005 as well as the consequential order dated 4-4-2007 passed by the respondent no.2 by further restoring the service of the petitioner in school namely Shri K N Shah Modasa High School.
(C) Pending the hearing and final disposal of this petition, be pleased to grant ad interim relief by staying the impugn orders dated 26-3-2007 passed by the Ld. Tribunal in Appeal No. 1 / 2005 as well as consequential order dated 4-4-2007 passed by the respondent no.2 by further restoring the service of the petitioner forthwith.
(D) Be pleased to pass such other and further orders as deem fit in the interest of the justice."
4. Brief facts of the present case are as under:-
4.1 The petitioner was initially appointed as assistant teacher in Shri N. S. Patel High School, Sayra in the pay scale of Rs.440 - 750 with effect from 24.07.1978. Respondent No.1, by order dated 12.07.1989, appointed the petitioner in Shri K. N. Shah Modasa Page 2 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined High School on being declared surplus in the Shri N. S. Pate High School, Sayra due to reduction of classes. From the very beginning, respondent No.2 was not ready to accept the petitioner and did not allow the petitioner to join the service in view thereof petitioner had to approach the learned Tribunal by way of Application No.148/89, which came to be allowed by order dated 05.10.1989. In the year 1993, respondent No.2 has managed in reallotting the petitioner at Shri N. S. patel High School and in view thereof the petitioner had to approach the learned Tribunal for appropriate relief. In the said application, also learned Tribunal pleased to allow the application of the petitioner by directing the D.E.O. to hold proper inquiry in the matter upon detail inquiry that the petitioner was required to be continued at Shri K N Shah High School.
4.2 It is the case of the petitioner that the petitioner was not cooperating in the misdeed of the school management and raising voice against the said activities of the school management, respondent no.2 was always finding the way to get a rid away of the petitioner and harassing the petitioner.Page 3 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024
NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined 4.3 It is the case of the petitioner that respondent No.2 alleged against the petitioner that the petitioner has inflicted very strict physical punishment upon one Radhika R. Patel student of standard 8/B and for which show cause notice came to be issued to the petitioner on 24.11.2003. The petitioner had replied to the said show cause notice. Second show cause notice issued on 23.12.2003 and the petitioner was informed with regard to initiation of departmental inquiry. On 20.02.2004, charges were framed by the committee constituted by one Shri Chatursinh M. Chauhan as Head and Member of the Board, Shri Vallabhbhai Patel as representative of the respondent No.2 and Shri Dashrathbhai Upadhyay representative of the petitioner. The petitioner replied to the said charges on 05.03.2004 and objected against the representative of the respondent No.2 being a law graduate, it appears that accordingly the representative of the respondent No.2 came to be changed under the new member Shri Bipinbhai R. Shah came to be appointed without following any procedure. Departmental proceedings are in violation of principle of natural justice only with a view to show that proper procedure has been followed with sole oblique motive to dismiss the Page 4 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined petitioner. Even after the final report was given by the respondent No.2 after almost one month from the submission of the report of the representative of the petitioner and wherein serious mischief played and also forged the signature of the representative of the petitioner for which criminal complaints are filed. A report was submitted to the respondent No.1 for approval under Section 36 of the Act for inflicting major punishment of termination / compulsory retirement. The aforesaid facts were also brought to the notice of the respondent No.1 vide letters dated 11.08.2004 and 26.08.2004 and further requested to give opportunity of hearing before coming to the conclusion. The petitioner filed Special C.A. No.11794 of 2004, which came to be disposed of by order dated 12.01.2005 directing the respondent No.1 to decide the matter taking into consideration the contentions and the objections raised by the petitioner and also considered the letters dated 11.08.2004 as well as 26.08.2004. Upon holding a detailed inquiry by order dated 01.02.2005, the respondent No.1 has refused to grant approval / sanction for compulsory retirement of the petitioner for various reasons by passing a reasoned order.
Page 5 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024
NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined 4.4 Being aggrieved and dissatisfied by the said order passed by the respondent No.1, the petitioner approached the Gujarat Secondary Education Tribunal by preferring Appeal being No.1 of 2005, the petitioner also filed reply in the said Appeal on 25.07.2005. The learned Tribunal allowed the appeal by preferring the respondent No.2 observing that the seeking approval under Section 36(1) of the Act for compulsory retirement is misplaced because in the section, nowhere mention for compulsory retirement and therefore, respondent No.2 is proposed action of compulsory retiring an employee, no approval is required to be obtained under the provision of Section 36(1)(b) of the Act from the respondent No.1. It was further observed that the management can pass an order of compulsory retirement without seeking the approval from the respondent No.1. Pursuant to the said order passed by the learned Tribunal dated 23.03.2007 in Appeal No.1 of 2005. The respondent No.2, by the order dated 04.04.2007 passed an order of compulsory retiring the petitioner with immediate effect without following any procedure.
Page 6 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024
NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined 4.5 Being aggrieved and dissatisfied by the impugned order passed by the learned Tribunal dated 26.03.2007 in Appeal No.1 of 2005 and consequential order dated 04.04.2007 passed by the respondent No.2. The petitioner herein has approached this Court under Article 226 and 227 of the Constitution of India, seeking the relief prayed for above.
5. Mr. Mishra, learned advocate appearing for writ applicant submitted that the order impugned passed by the learned Tribunal is erroneous thereby the learned Tribunal has held that to pass an order of compulsory retirement, no permission, from the D.E.O., is required to be taken. It is further submitted that erroneously held that the cases of compulsory retirement would be covered under the cases of "otherwise termination" within the meaning of Section 36(1) of the Act. It is submitted that the respondent No.2 could not have proceeded to pass the order of compulsory retirement without any approval of the respondent No.1. It is submitted that the learned Tribunal has erred in construing Section 36 as well as Regulation 27(a)(6), which provisions of the Act and cause serious prejudice to the petitioner. Placing reliance on the aforesaid submissions, it is Page 7 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined submitted that the order impugned is required to be interfered with the findings of the case and the present petition is required to be allowed.
6. Ms. Joshi, learned advocate appearing for the respondent No.2, is not in a position to controvert the aforesaid submissions advanced by Mr. Mishra, learned advocate appearing for the petitioner herein. It is, however, submitted that no error can be said to have been committed by the learned Tribunal in passing the impugned order.
7. Mr. Nidhi Vyas, learned AGP appearing for the respondent No.1, submitted that the order passed by the respondent No.2 is just and proper and it is rightly held by the approval authority that compulsory retirement is rightly rejected by the respondent No.1.
8. Upon considering the submissions of respective parties and perusing the documents on record. Having heard the learned advocates appearing for respective parties. The learned Tribunal while allowing the Appeal No.1 of 2005 by impugned order and judgment dated 26.03.2007, has held in paragraph Nos.5 to 7 as considered the provisions of Section 36(1) of the Gujarat Secondary Page 8 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined Education Act, 1972 and read with Regulation 27(a)(6)(1) of the Regulations, which are reads as under:-
"5.The secondary education in the state of Gujarat is regulated by Gujarat Secondary Education Act and Regulations framed there under. Under the scheme of Section 36 of the Act if any employee of a registered private secondary school is required to be dismissed or removed or reduced in rank or his services are otherwise terminated, the manager is required to give him the reasonable opportunity of showing cause and is also required to obtain approval in regard to the proposed action from the authorized officer i.e. D.E.Ο. This is the statutory requirement and which is required to be followed only for 4 proposed actions mentioned above. For inflicting other punishments observance of no such formality is prescribed in the Act. Adverting to the facts of the case, admittedly, on 24.8.2005 (Ann.9) the school management has sent a proposal to the authorized officer seeking his approval not to any of the 4 actions prescribed in Section 36 (1) but seeking approval to their proposed action of compulsorily retiring the delinquent employee from services as that is one of the major punishments prescribed under the Regulations. As it could be clearly seen from the language of Section 36 of the Act that the punishment of compulsory retirement is nowhere prescribed and therefore, for inflicting that penalty the manager is not required to seek approval from the authorized officer. In my view, therefore, the action of management sending proposal to the authorized officer Page 9 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined (D.E.O.) to seek such an approval is completely misplaced and unwarranted. The management could have proceeded to pass the order of compulsory retirement without going for any approval from the authorized officer. At this stage, it is worthwhile to note that the management of one registered private secondary school had imposing the punishment of compulsory retirement upon its employee without seeking prior approval from the authorized officer. The said action was questioned by the teacher concerned in application no.39/04 and by the judgment dated 9.1.2006; this Tribunal has upheld the decision of the management and held that for imposing the punishment of compulsory retirement. There is no provision in the Act requiring the management to seek approval from the authorized officer. L.A. for Respondent No.2 has produced that judgment before me in this appeal. In my view, the point involved in this application, therefore, is already concluded by the above-referred judgment of this Tribunal. Instead of giving reasons afresh, it will be suffice to extract para-4 and 5 from the said judgment which runs out as under:-
"4. Sec.36 (1) of Gujarat Secondary Education Act, 1972 (hereinafter to be referred to as "Act" for brevity) lays down the mandatory procedure to be followed before passing the orders of dismissal, removal and reduction in rank in respect of the employees of registered private secondary schools. Apart from providing the reasonable opportunity to the delinquent employee to defend himself, an Page 10 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined additional safeguard is also provided to the employees of registered private secondary schools where under no employee of a registered private secondary school shall be dismissed, removed or reduced in rank unless the action proposed to be taken is approved in writing by the authorized officer of the Board (D.E.O.) In exercise of powers under Section 54 of the Act of the Government of Gujarat has framed Regulations providing the detailed procedure for conduct of the departmental inquiry. Although Section 36 (1) enjoins upon the management to seek prior approval from the D.E.O. before taking action of dismissal, removal, reduction in rank and otherwise termination against the employee, prior approval from the D.E.O. is pre-requisite, by the afore-mentioned Regulation Government has added one more punishment i.e. compulsory retirement for which also the management is required to obtain approval from the D.E.O. The main contention of the applicant being based on this provision, it is necessary to notice the provisions of Section 36 (1) of the Act & Reg.27 (a) (6) (1) which is extracted hereunder:-
36. "(1) No person who is appointed as a headmaster, a teacher or a member of non teaching staff of a registered private secondary Page 11 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined 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 appointed for a temporary period only."
Regn.27 (a) (6) (1) (True translation) "27(a)(6) Procedure to impose major penalty"
(1) For the misconduct of disobedience of the order, negligence to duty, misconduct, moral turpitude, irregularities committed on the board, the major penalties of (1) demotion, compulsory retirement and dismissal from services shall be imposed upon the the employees of registered private secondary school, except the employees appointed on purely temporary basis, as per the provision of Section 36 of the Act only after conducting formal inquiry in the matter by the Inquiry Committee formed under these regulations."
6. Referring to the admitted fact that the school management has passed the impugned order of compulsory retirement Page 12 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined without seeking prior approval from the D.E.O. Mr. J. A. Trivedi, L.A. appearing for applicant has submitted that this is the case of clear breach of Section 36 of the Act. Though the action of compulsory retirement is not included in Section - 36 (1) of the Act, it is contended by Mr. Trivedi that the action of compulsory retirement is covered under the cases of "otherwise terminated" because the net effect of the order of compulsory retirement is identical to that of the action of termination as in both the cases the relationship of master and servant is served. In support of this contention he has placed reliance on the judgment of Hon'ble Gujarat High Court in the case of Shri Mahuva Kelevani Sahayak Samaj and others Vs. Rashiklal K. Joshi & Anor reported in 1996 (2) GLH 269, Mr. Prajapati, L.A. appearing for the management has submitted that looking to the clear-cut language of Section 36 (1) and having regard to the fact that the action of compulsory retirement is totally different from the action of termination, it cannot be said that the cases of compulsory retirement are covered under the cases of "otherwise terminated". On behalf of the D.E.Ο., it is pointed out that the management had never made a proposal to the D.E.O. seeking approval prior to passing of the impugned order. It is, therefore, an admitted fact that the management has not sought the approval from the D.E.O. seeking approval to their action of retiring the delinquent compulsorily from services. Upon hearing the parties and perusal of the language of Section - 36 so also the judgment referred by L.A. for applicant hereinabove, I am of the view that the action of "compulsory retirement" Page 13 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024
NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined cannot be considered as the action of "otherwise terminated", as mentioned in Section 36 (1) of the Act. The act of termination and the act of compulsory retirement are two different and distinct actions with two different results flowing there from. In the matters of termination, the concerned employee is not entitled to the accrued benefits of qualifying service rendered by him whereas in the case of "compulsory retirement" there is no forfeiture of accrued benefit of qualifying service rendered by the concerned employee. In the latter case the concerned employee becomes entitled to receive pension and post- retrial benefits whereas in the case of termination, he is not entitled to such benefits. Merely because the effect of both the actions viz. "otherwise terminated" and "compulsory retirement" is the same i.e. severance of master and servant relationship but in the case of termination, the employee is not entitled to the retrial benefits whereas in the case of compulsory retirement is not included in Section 36 (1) of the Act, it is contended by Mr. Trivedi that the action of compulsory retirement is covered under the cases of "otherwise terminated" because the net effect of the order of compulsory retirement is identical to that of the action of termination as in both the cases the relationship of master and servant is severed. In support of this contention, he has placed reliance on the judgment of Hon'ble Gujarat High Court in the case of Shri Mahuva Kelevani Sahayak Samaj and others Vs. Rasiklal K. Joshi and Anor reported in 1996(2) GLH 269, Mr. Prajapati L.A. appearing for the management has submitted that looking to the clear-cut Page 14 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined language of Section - 36 (1) and having regard to the fact that the action of compulsory retirement is totally different from the action of termination, it cannot be said that the cases of compulsory retirement are covered under the cases of "otherwise termination". On behalf of the D.E.O., it is pointed out that the management had never made a proposal to the D.E.O. seeking approval prior to passing of the impugned order. It is, therefore, an admitted fact that the management has not sought the approval from the D.E.O. seeking approval to their action of retiring the delinquent compulsorily from services. Upon hearing the parties and perusal of the language of Section - 36 so also the judgment referred by L. A. for applicant hereinabove, I am of the view that the action of "compulsory retirement"
cannot be considered as the action of "otherwise termination", as mentioned in Section 36 (1) of the Act. The act of termination and the act of compulsory retirement are two different and distinct actions with two different results flowing there from. In the matters of termination, the concerned employee is not entitled to the accrued benefits of qualifying service rendered by him whereas in the case of "compulsory retirement" there is no forfeiture of accrued benefit of qualifying service rendered by the concerned employee. In the latter case, the concerned employee becomes entitled to receive pension and post- retrial benefits whereas in the case of termination, he is not entitled to such benefits. Merely because the effect of both the actions viz. "otherwise terminated" and "compulsory retirement" is the same i.e. severance of master and servant Page 15 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined relationship but in the case of termination the employee is not entitled to the retrial benefits whereas in the case of compulsory retirement he gets all the benefits. In my view, therefore, it can not be said that the cases of "compulsory retirement" are covered under the cases of "otherwise termination" within the meaning of Section 36 (1) of the Act. The above-referred contention of L.A. Mr. Trivedi is, therefore, negative."
Mr. Trivedi has alternatively submitted that Reg.27 (a) (6)(1) enjoins upon the management to seek prior permission from the D.E.O. even in the cases of compulsory retirement and this provision being a statutory provision for breach committed by the management, the impugned order deserves to be set aside. From the above referred provision of the Regulation as extracted hereinabove, it could be seen that over and above the acts of dismissal, removal, reduction in rank & otherwise termination, the action of compulsory retirement is also included in this Regulation for which the management is required to obtain the prior approval from the D.E.O. A comparison of the substantive provision of the Act i.e. Section - 36 (1) and the above- referred Regulation would make it crystal clear that by way of Regulation the cases of compulsory retirement are sought to be added in Section - 36 (1) of the Act. In my considered opinion, it is not permissible. It is well-settled position of law that the Regulations and rules have to be in conformity with the main provisions of the Act as the Regulations and rules or instructions can not have overriding effects on the substantive provisions mentioned in the Act. Page 16 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024
NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined In the instant case, even though cases of compulsory retirement are not included in Section - 36 (1) of the Act, by way of Regulations which are framed under Section 54 of the Act, the cases of compulsory retirement are sought to be added in the Act. In my view, this is not permissible. Regulations and rules must conform to the substantive provisions and they are framed with a purpose to supplement the broad provisions made in the Act and in no case they can supplant the substantive provisions. In the instant case, it can be clearly seen that by the above- referred Regulation, the cases of compulsory retirement are sought to be added in Section 36 (1) of the Act. As the Regulations can not have overriding effect on the provisions of the Act, this provision found in the above - referred Regulation is required to be ignored and in any case it can not be considered as mandatory and breach thereof, therefore, does not help the applicant in any manner.
7. From the detailed discussion made in the earlier decision and the paras of which are quoted hereinabove, it becomes abundantly clear that for the management's proposed action of compulsorily retiring an employee the approval from the authorized officer under Section - 36 (1)
(b) of the Act is not required to be obtained. It is open for the management to pass such an order after following all other necessary requirements even without seeking the approval from the D.E.O. In the instant case, therefore, it is open for the management to pass the order of compulsory retirement on the basis of the inquiry held against the delinquent employee. This appeal is accordingly disposed Page 17 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined of. No order as to costs."
9. It is apposite to refer to Section 36 (1) of the Act, it is also apposite to refer to Regulation 27(a)(6)(1) of the Regulations, which are reproduced hereunder:-
"4. Sec.36 (1) of Gujarat Secondary Education Act, 1972 (hereinafter to be referred to as "Act" for brevity) lays down the mandatory procedure to be followed before passing the orders of dismissal, removal and reduction in rank in respect of the employees of registered private secondary schools. Apart from providing the reasonable opportunity to the delinquent employee to defend himself, an additional safeguard is also provided to the employees of registered private secondary schools where under no employee of a registered private secondary school shall be dismissed, removed or reduced in rank unless the action proposed to be taken is approved in writing by the authorized officer of the Board (D.E.O.) In exercise of powers under Section 54 of the Act of the Government of Gujarat has framed Regulations providing the detailed procedure for conduct of the departmental inquiry. Although Section 36 (1) enjoins upon the management to seek prior approval from the D.E.O. before taking action of dismissal, removal, reduction in rank and otherwise termination against the employee, prior approval from the D.E.O. is pre-requisite, by the afore-mentioned Regulation Government has added one more punishment Page 18 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined i.e. compulsory retirement for which also the management is required to obtain approval from the D.E.O. The main contention of the applicant being based on this provision, it is necessary to notice the provisions of Section 36 (1) of the Act & Reg.27 (a) (6) (1) which is extracted hereunder:-
36. "(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 appointed for a temporary period only."
Regn.27 (a) (6) (1) "27(a)(6) Procedure to impose major penalty"
(1) For the misconduct of disobedience of the order, negligence to duty, misconduct, moral turpitude, irregularities committed on the board, the major penalties of (1) demotion, compulsory retirement and dismissal from services shall be imposed upon the the employees of registered private secondary school, except the employees appointed on purely temporary basis, as Page 19 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined per the provision of Section 36 of the Act only after conducting formal inquiry in the matter by the Inquiry Committee formed under these regulations."
10. On perusal of the aforesaid provisions of Section 36(1) provides for a mandatory procedure to be followed before passing the order of dismissal, removal and reduction in rank in respect of employees of registered private secondary schools. It also provides for granting reasonable opportunity to the delinquent employee to defend himself, an additional safeguard is also provided to the employees of registered private secondary schools where under no employee of a registered private secondary school shall be dismissed, removed or reduced in rank unless the action proposed to be taken is approved in writing by the Authorized Officers of the Board (D.E.O.). In exercise of powers under Section 54 of the Act, the Government of Gujarat framed regulations providing the detailed procedure for conduct of the departmental inquiry. On conjoint reading of Section 36 (1) of the Act and Regulation 27(a)(6)(1) of the Regulations, Regulation 26(7)(a)(6) of the Regulations provides for seeking approval from respondent No.1. The aforesaid reasons, in the opinion of this Court the learned Tribunal has erred in holding Page 20 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined that it cannot be said that the cases of "compulsory retirement" are covered under the cases of "otherwise termination".
11. It is apposite to refer to decision of Hon'ble Apex Court in case of Maharaja Sayajirao University versus Kanubhai Naranbhai Hathibhai Patel reported in 2016 (0) AIJEL-HC 236004, paragraph No.10.1 which reads as under:-
"10.1 It can thus be seen that section 14 of the Gujarat Universities Services Tribunal Act deals with the penal actions of the University against the employee concerned. It is in this context provided that no such action of dismissal, removal from service, reduction in rank or otherwise that of termination be taken except after holding an inquiry informing the employee of the charges against him and giving him a reasonable opportunity of being heard in respect of those charges. As noted earlier, sub-section (2) of section 14 of the Gujarat Universities Services Tribunal Act provides for penalty other than those envisaged under sub-Section (1) of section 14. The order that may be passed by the University under sub-Section (1) of section 14 has been made appealable to the Tribunal at the instance of the employee. The entire section, therefore, deals with the action of the University of taking penal action against the employee. While sub-Section (1) of section 14 deals with the penal action of dismissal, removal from service or reduction in rank or otherwise terminating the service, sub-Section (2) of section 14 deals with imposition of penalty other than those specified in sub-Page 21 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024
NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined Section (1) of section 14. Seen from this angle, in my view, the procedure prescribed under sub-Section (1) of section 14 has relevance only for a penal action taken by the University and would not apply to a case where the services of the employee are sought to be terminated by way of simpliciter termination. The words "otherwise terminated" may however pose some difficulty. It can be urged, as has been done by the counsel for the respondent No.1 that the term "otherwise terminated" must be construed as termination simpliciter and cannot be a penal action proposed by the University."
12. In the present case, considering the facts and position of law as referred above, it is undisputed even by the communication by the respondent No.2, pursuant to the representation preferred by the petitioner herein by order passed in the present petition No.10327 of 2007 on 22.02.2023 referred to representation to the respondent No.2 to reconsider, the grievance of the petitioner in the said communication also that the respondent No.2 has categorically stated that the punishment is a major penalty. The aforesaid substantiates, in the opinion of this Court that the order of the compulsory retirement is punitive in nature, imposing major penalty and would not fall within the domain "otherwise termination", which would be simpliciter termination within the meaning of Section Page 22 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined 36(1) of the Act. Further regulation 27(a)(6)(1) also provides for seeking approval from the respondent No.1. The respondent No.1 upon refused to grant approval / sanction for compulsory retirement of the petitioner by order dated 01.02.2005 on the grounds of non- following of procedure while passing the order against the petitioner / employee and the entire procedure being biased and against the principles of natural justice, due consideration and taking into consideration that documents, produced on record and the contentions of the respective parties by following principle of natural justice.
13. For the foregoing reasons, this is the fit case to exercise extraordinary jurisdiction under Article 226 of the Constitution of India in view of the fact that in the opinion of this Court that the learned Tribunal has committed an error in construing the provisions of Section 36 (1) of the Act. The same was required to be read with Regulation 27(a)(6)(1).
14. In view of the aforesaid, impugned order passed by the Gujarat Secondary Education Tribunal in Appeal No.1 of 2005 dated Page 23 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024 NEUTRAL CITATION C/SCA/10327/2007 ORDER DATED: 31/07/2024 undefined 26.03.2007 as well as consequential order dated 04.04.2007 passed by the respondent No.2 erred passing the order of compulsory retirement, which are quashed and set aside.
The present petition stands allowed accordingly. Rule is made absolute.
(VAIBHAVI D. NANAVATI,J) Vikramsinh Amarsinh Page 24 of 24 Downloaded on : Wed Aug 07 20:35:59 IST 2024