Gujarat High Court
Muslim Education Society Thro' ... vs Kachhi Musabhai Gigabhai on 8 June, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/14450/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14450 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MUSLIM EDUCATION SOCIETY THRO' SECRETARY....Petitioner(s)
Versus
KACHHI MUSABHAI GIGABHAI....Respondent(s)
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Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1
DECEASED LITIGANT, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 08/06/2017
ORAL JUDGMENT
1. Heard Mr.Joshi, learned advocate for the 1 HC-NIC Page 1 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT petitioner and Mr.Gadhvi, learned advocate for the respondent.
2. In present petition, the petitioner has prayed, inter alia, that:
"6(A) This Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order quashing and setting aside the impugned order dated 29.04.2003 passed by the Ld. Gujarat Secondary Education Tribunal, Ahmedabad in Application No: 484 of 1996, by declaring that the same is illegal, contrary to the documentary evidence on record."
3. The petitioner is aggrieved by order dated 29.4.2003 passed by the learned Gujarat Secondary Education Tribunal in Application No.484 of 1996, which was filed by present respondent.
4. By impugned order the learned Tribunal quashed the order dated 15.7.1996 passed by the school terminating the service of the respondent and the learned Tribunal directed the petitioner to pay full backwages and all consequential benefits till the date the petitioner attained age of superannuation.
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5. The petitioner is aggrieved by the said direction.
6. So far as factual background is concerned, it has emerged from the record that the petitioner is a public trust which runs high school called MES High School and a Primary School named MES Primary School at Vadodara. The said school is registered primary secondary school and is 'grantinaid' school. 6.1 The claimant before the learned Tribunal (i.e. respondent) was working as Assistant Teacher (Drawing).
6.2 On the allegation that the respondent herein committed misconduct, i.e. he misbehaved with headmaster of primary school, the service of the petitioner came to be terminated after conducting departmental enquiry in pursuance of the chargesheet dated 22.10.1994.
6.3 Feeling aggrieved by the said action of
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the high school i.e. terminating his service vide order dated 15.7.1996, the respondent herein filed Application No.484 of 1996 before the learned Tribunal.
6.4 In his application the respondent herein claimed and alleged that the opponent school (i.e. present petitioner) terminated his service illegally and arbitrarily. He alleged that though the allegations leveled against him were not proved, the Enquiry Officer submitted report on erroneous conclusion and the school accepted the said report without application of mind and acted upon the report and out of victimization. With such allegations the applicant prayed that the termination order may be set aside and the opponent school should be directed to pay consequential benefits.
7. The opponent school, i.e. present petitioner opposed the application and the demand of present respondent. The school contended that it had acted on complaint received from the 4 HC-NIC Page 4 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT headmaster about misconduct committed by the claimant and that it had taken the decision to terminate the service of the claimant in light of the fact that the allegations of serious nature constituting grave misconduct were proved against the claimant during the process of domestic enquiry which was conducted after issuing show cause notice followed by chargesheet. The school also claimed that opportunity of hearing and defence was granted to the petitioner and after examining evidence placed on record before the Enquiry Officer, the allegations were proved and therefore, the Disciplinary Authority passed the order terminating service of the respondent. The school claimed that the incident in question occurred on 4.10.1994 when the claimant misbehaved with lady headmaster. The headmaster lodged complaint against the claimant and therefore, a show cause notice dated 6.10.1994 was issued. Since the application's reply dated 10.10.1994 was not found satisfactory, formal chargesheet, which contained the allegations and 5 HC-NIC Page 5 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT charge against the petitioner, was issued on 22.10.1994. The claimant submitted his reply dated 22.11.1994 in response to the chargesheet. Since the reply was not found satisfactory, domestic enquiry was conducted and for that purpose the Enquiry Officer was appointed who, vide his letter dated 18.5.1995, informed the claimant (delinquent employee) to attend domestic enquiry. The place and time were also informed to the petitioner. Accordingly, domestic enquiry was conducted during which the delinquent employee declared that he did not want to lead evidence. However, the school management examined witnesses / placed documentary evidence on record. Upon conclusion of the evidence, the Enquiry Officer heard submissions and on consideration of material on record, submitted his report holding, inter alia, that the charge against the delinquent employee are proved. Upon receipt of the report dated 4.12.1994 and after considering the same, a second show cause notice was issued and the petitioner's response was called for. A 6 HC-NIC Page 6 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT copy of the report was also supplied to the delinquent employee. The claimant submitted his reply dated 27.3.1996 which was considered by the competent authority and after considering material available on record of the enquiry and other relevant material factors, the competent authority reached to the conclusion that the service of the petitioner should be discontinued. Consequently, the order dated 15.7.1997 came to be passed and the service of the petitioner came to be terminated. With such details the opponent school, i.e. present petitioner contended that its action is legal, justified and proper and the petitioner does not deserve to be reinstated in service.
8. The learned Tribunal adjudicated the application, considered rival submissions and evaluated the evidence available on record and thereafter reached to the conclusion that the claimant deserved to be reinstated in service. However, having regard to the fact that in the 7 HC-NIC Page 7 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT interregnum the claimant had crossed age of superannuation, the learned Tribunal, instead of directing the opponent school to reinstate the claimant, passed order dated 15.7.1996 quashing the termination order and directing the school to pay backwages and other consequential benefits.
9. Mr.Joshi, learned advocate for the petitioner vehemently assailed impugned order and he submitted that the learned Tribunal committed material error by proceeding in the case on the premise that the school failed to establish the charge 'beyond doubt'. According to learned advocate for the petitioner, the learned Tribunal overlooked the principle that in case of domestic enquiry and in case of action against an employee, the requirement is restricted to preponderance of probability and the principle which governs trial under criminal law i.e. principle of 'proof beyond doubt' is not applicable. Learned advocate for the petitioner submitted that the learned Tribunal examined the 8 HC-NIC Page 8 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT case on the touchstone on proof beyond doubt and on premise that the school failed to establish and prove the allegations beyond doubt and on that ground the learned Tribunal set aside the termination order and passed the impugned directions which is jurisdictional error. According to learned advocate for the petitioner, the directions passed by the learned Tribunal are unjustified, arbitrary and contrary to settled legal position and therefore deserve to be set aside.
10. Learned advocate for the petitioner also submitted that the findings recorded by the Enquiry Officer in his report dated 4.12.1995 are based on evidence and material which was available on record of the domestic enquiry. He also submitted that the Enquiry Officer recorded sufficient and cogent reasons in support of his findings / consequences and that the reasons are supported by the evidence on record and that, therefore, there was no justification to take 9 HC-NIC Page 9 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT view different from the findings recorded by the Enquiry Officer. Learned advocate for the petitioner school also emphasized that the complaint and allegation are serious and grave in nature inasmuch as he had virtually caused assault on lady headmaster and physically pushed her without any provocation by the principal and without any fault of the Principal inasmuch as the lady headmaster was merely performing her duty and acting in accordance with the rules. Learned advocate for the petitioner emphasized that the headmaster received injuries because of the conduct of the claimant. According to the petitioner, the behaviour and conduct of the respondent was unbecoming of a teacher, hence that it was found proper to discontinue his service. Consequently, on proved charges his service came to be terminated and therefore, the learned Tribunal ought not have interfered with the decision and action of the school.
11. Per contra Mr.Gadhvi, learned advocate 10 HC-NIC Page 10 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT for the respondent submitted that the learned Tribunal, on assessment of the evidence reached to the conclusion that the charges against the claimant, except some inconsequential allegations, were not proved and therefore, the learned Tribunal quashed the dismissal order. According to learned advocate for the respondent, the order passed by the learned Tribunal is just and correct and does not suffer from any infirmity.
12. Mr.Gadhvi, learned advocate for the respondent emphasized the fact that the petitioner had already crossed the age of superannuation and that, therefore, the question of reinstatement does not survive. He also submitted that the respondent - claimant has expired and that, therefore, now the only question which survives, is with regard to the payment of the backwages and retiral dues.
13. I have considered rival submissions and the material available on record as well as 11 HC-NIC Page 11 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT impugned order.
14. The fact that the claimant was visited with a show cause notice and chargesheet and in pursuance of the chargesheet, domestic enquiry was conducted, is not in dispute.
15. The fact that the petitioner school followed prescribed procedure, before terminating the service of the respondent, is not in dispute.
16. The learned advocate for the petitioner would emphasis the fact that the delinquent employee very conveniently did not come forward to get his evidence recorded and thereby, he could avoid crossexamination. Besides this, he also submitted that the delinquent employee declared, by submitting a pursis, that he does not want to examine any witness. The said fact (that the claimant did not come forward to give his evidence and he did not examine any witness) is recorded by learned Tribunal.
17. On the basis of the discussion and 12 HC-NIC Page 12 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT conclusion recorded by the Inquiry Officer, learned Tribunal has observed, in the impugned order, that:
"The charges against the delinquent having pushed lady principal and her having become unconscious have not been taken as proved."
18. In this context, when the report dated 4.12.1995 submitted by the Inquiry Officer (an advocate) is examined, it comes out that Inquiry Officer has observed and recorded in his report that any witness did not depose that the delinquent employee had abused the lady principal or he had used improper or filthy language or that he had physically pushed lady principal.
19. The Inquiry Officer has also observed and recorded that allegation and charge of using improper and filthy language and allegation and charge that the delinquent employee had physically pushed lady principal are not proved.
20. The said observation and finding by the Inquiry Officer in his report dated 4.12.1995 would go to show that the principal allegation 13 HC-NIC Page 13 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT against the delinquent employee are not proved.
21. Besides this, on reading Inquiry Officer's report, it also comes out that the Inquiry Officer also noticed certain discrepancies in the deposition by different witnesses, however, Inquiry Officer also observed that in domestic inquiry, he should be guided by the principle of preponderance of probability and not by the principle of proof beyond doubt and after taking into consideration the said principle, the Inquiry Officer recorded that the fact that delinquent employee had gone to the principle with leave report is proved and that he had insisted that the principal should put her signature and acknowledge the receipt is also proved and that when the principle declined to put her signature on copy of the report acknowledging receipt, the delinquent had taken away her spectacles is proved. However, the allegation about physical push or filthy language is not proved.
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22. On this count it is relevant to note that on careful reading of the order it comes out that actually the Tribunal has not proceeded on the premise that the employer should prove the charge 'beyond reasonable doubt' but the learned Tribunal has proceeded on the premise that the Enquiry Officer ignored the contradictions in the evidence. The Enquiry Officer appears to have considered the discrepancy in evidence, however, he, ultimately, found that the charge is proved to certain extent. Therefore, it is appropriate and necessary to mention that even if this Court accepts petitioner's contention that the learned Tribunal erroneously applied principle of proof beyond doubt in the matter of domestic inquiry and ignored the principle of preponderance of probability and on such erroneous application of law the learned Tribunal erroneously allowed itself to be influenced by trivial inconsistency or discrepancy in deposition and thereby committed error in holding that the findings of 15 HC-NIC Page 15 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT Inquiry Officer are not correct, then also, the fact that major and principal charge and allegation against the delinquent viz. that the delinquent employee had physically pushed the lady principal and/or allegation and charge that he has used filthy language are, according to Inquiry Officer, not proved / will still store in the face of the the petitioner. There is nothing on record to convince the Court that the said finding by learned Tribunal is contrary to evidence on record or perverse.
23. Under the circumstances, the charge and allegations which can be taken as proved cannot be said to be grave and serious so as to warrant and justify capital punishment of termination from service.
24. Having regard to the nature and gravity of charge which can be said to have been proved, the penalty imposed on the delinquent employee is too harsh and excessive and it is not only not commensurate with the proved charge but quantum 16 HC-NIC Page 16 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT of penalty is so harsh that any reasonable employer would, ordinarily and after considering inquiry Inquiry Officer's report, not impose such harsh penalty viz. termination from service. The Court is conscious of the fact that ordinarily the subject of quantum of penalty is in the realm of employer's discretion and the Court should not weigh the penalty in golden scales, however it is equally true that the Court would fail in the duty if arbitrary decision is allowed to operate.
25. Above mentioned aspects justified interference by learned Tribunal so far as school's decision to terminate service of the delinquent is concerned.
26. When relevant aspects are taken into account including the charges which are held to be proved by the Inquiry Officer, then, it emerges that learned Tribunal did not commit any error in holding that the order of penalty terminating service of the delinquent deserved to be set aside.
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27. Under the circumstances, it cannot be said that learned Tribunal committed error in interfering with the order of penalty.
28. However, what is relevant and important so far as impugned judgment by learned Tribunal is concerned, is that learned Tribunal did not consider it necessary to deal with the contention that when certain charge / allegations are proved against the delinquent, then, there should be order imposing some penalty and the delinquent should not be allowed to go scotfree. The petitioner, to this extent, is justified and its contention that some penalty ought to have been imposed cannot be ignored or rejected. The learned Tribunal seems to have lost sight of this aspect inasmuch as impugned direction amounts to granting all benefits and no penalty to the employee.
29. In this context and at this stage, learned advocate for the respondent again 18 HC-NIC Page 18 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT emphasized that delinquent employee crossed age of superannuation while the proceedings were pending before the learned Tribunal. He also submitted that now the delinquent employee has expired and that therefore, order passed by learned Tribunal may not be disturbed.
30. However, having regard to the facts and circumstances of the case and the contention by the petitioner that when some of the charges / allegations levelled against delinquent employee are proved, then, though the Court is of the view that penalty decided by the school is too harsh and cannot be considered commensurate to the nature and gravity of the misconduct, some penalty should be imposed, the Court is of the view that interest of justice would be served if 50% of backwages are denied to the petitioner.
31. Consequently, following order is passed:
(a) The petition is partly allowed. The impugned judgment passed by learned Tribunal 19 HC-NIC Page 19 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT is partly set aside and modified and the direction to pay backwages to the petitioner is partly set aside and modified/substituted with direction that respondent delinquent employee will be entitled for 50% of backwages from the date when his service came to be terminated till the date on which he reached age of superannuation.
(b) It is however clarified that delinquent employee shall be eligible and entitled for retiral dues which would be available to him upon retirement on superannuation.
(c) The petitioner school shall take necessary steps to pay amount to the heirs of respondent employee as expeditiously as possible and preferably within 8 weeks from receipt of the order.
(d) In view of submission by learned advocate for the petitioner, that the school is grantinaid school, it is clarified that 20 HC-NIC Page 20 of 21 Created On Sat Aug 12 04:23:30 IST 2017 C/SCA/14450/2003 JUDGMENT since the school is directed to pay backwages and all retiral benefits by virtue of learned Tribunal's order and the said order is partly modified by this Court, it would be open to the school to submit application to State Government for releasing grant equivalent to the amount payable to the heirs of respondent employee. With aforesaid clarification and direction, present petition is disposed of. Rule is made absolute to the aforesaid extent.
Sd/-
(K.M.THAKER, J.) Bharat 21 HC-NIC Page 21 of 21 Created On Sat Aug 12 04:23:30 IST 2017