Gujarat High Court
Patel vs Principal on 6 August, 2010
Gujarat High Court Case Information System
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SCA/6987/1999 13/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6987 of 1999
With
SPECIAL
CIVIL APPLICATION No. 2324 of 1999
For
Approval and Signature:
HONOURABLE
MR. JUSTICE D.A.MEHTA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PATEL
NURJAHANBEN UMARJIBHAI - Petitioner(s)
Versus
PRINCIPAL
& 2 - Respondent(s)
=========================================
Appearance
:
MR AD OZA
for Petitioner(s) : 1,
MRS
G VIJAYALAKSHMI for MR BS PATEL for Respondent(s) : 1 - 2.
MRS
RANJAN B PATEL for Respondent(s) : 1 - 2.
MS SEJAL K MANDAVIA for
Respondent(s) : 3,
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CORAM
:
HONOURABLE
MR. JUSTICE D.A.MEHTA
Date
: 06/08/2010
COMMON
ORAL JUDGMENT
1. Both these petitions have been heard together as they arise out of common order made by Gujarat 2nd Primary Education Tribunal on 23rd December, 1998 in Application Nos.275 of 1991 and 32 of 1992.
2. The petitioner of Special Civil Application No.6987 of 1999 was employed by one Huseniyanagar Kelvani Mandal, Bharuch, who is the petitioner in Special Civil Application No.2324 of 1999. Hereinafter, the parties shall be respectively referred to as the 'employee' and 'school management'.
3. It is the case of the employee that she was appointed as Assistant Teacher on 15th June, 1989 in the primary section of the school. In support of the said stand, the employee has annexed certificate issued by the Principal of the school on 20th August, 1991. It is an accepted position that at the time of appointment of the employee, trained teachers were not available and hence, the employee was appointed, though she was untrained. At the relevant point of time, the educational qualification of the employee was only S.S.C. and she had taken an examination of P.T.C. whose result was awaited. The employee was paid a lumpsum remuneration of Rs.500/- per month from the date of joining up to May, 1990 and thereafter the amount was increased to Rs.600/- per month. According to the employee, since June, 1991, she was prevented from attending the school without any reason and was orally informed not to attend the school. As according to the employee, the entire act of school management was without following due procedure, an application no.275 of 1991 was preferred on the ground that her services could not be terminated without following the procedure laid down in Section 40-B of the Primary Education Act, 1947 (the Act). Interim relief was also prayed for to the effect that the school management be prevented from restraining the employee from attending the school and from withholding regular salary. On 27th November, 1991, ex-parte injunction in terms of paragraph No. 5(3) of the application was granted by the Tribunal and the same was confirmed after bipartite hearing vide order dated 09th January, 1992.
4. The interim order came to be assailed before the High Court by way of Special Civil Application No.243 of 1992 and the Court passed the following order on 15th January, 1992:-
"The learned Counsel for the petitioner states that the petitioner will continue to pay salary to the respondent teacher, however, the respdt. teacher should not attend the school as the petitioner does not want her to attend the school. It would be open to the petitioner management to make such application to the tribunal. If such an application is made, the Tribunal shall decide that application with in a period of 15 days.
In view of the aforesaid directions, learned Counsel for the petitioner withdraws this petition. Hence, dismissed as withdrawn."
5. The application filed by the school management before the Tribunal was rejected by the Tribunal. The salary for month of January, 1992 was paid to the employee by the school management and a show-cause notice dated 20th January, 1992 asking the employee to show cause why her services should not be terminated was issued to the employee. This was followed by a reminder on 10th February, 1992. As the employee did not tender any reply, the services came to be terminated on 18th February, 1992. This order of termination was challenged by way of Application No.32 of 1992 on the footing that despite operation of the interim order made by the Tribunal in Application No.275 of 1992, the school had terminated the services of the employee without following the procedure prescribed under Section 40-B of the Act simply by giving a show-cause notice without obtaining prior approval from the Administrative Officer as required by provisions of Section 40-B of the Act. Ex-parte injunction was granted on 09th March, 1992 which came to be confirmed after bipartite hearing on 31st March, 1992. The nature of interim relief in both the orders was to the effect that the school management was prevented from terminating services of the applicant with a direction to continue the employee in service. Despite the interim directions by the Tribunal, salary has not been paid to the employee and hence application for breach of injunction has been filed by the employee, which is stated to be pending.
6. Evidence was led by the employee by examining herself and she was also cross-examined on behalf of the school management. Thereafter, President of the Trust running the school one Mr. Patel Ayub Ibrahim was examined. Subsequently, because the school management had made certain allegations against the learned Member then constituting the Tribunal, the two applications were transferred. After recording the examination-in-chief of the President of the Trust running the school, as no one was remaining present on behalf of the school management, ultimately the right to lead further evidence in defence was closed by the Tribunal.
7. Thereafter, after hearing the parties, the Tribunal has passed the order impugned wherein the preliminary contention raised on behalf of school management regarding lack of jurisdiction of the Tribunal has been negatived. On merits, the Tribunal has come to the conclusion that school management was not required to comply with the provisions of Section 40-B of the Act as laid down by this High Court in the case of Harkant G. Bhatt vs. State of Gujarat in Special Civil Application No.2463 of 1997 rendered on 27th March, 1997 whereby the High Court had held that if the appointment is not in accordance with Schedule F of the Bombay Primary Education Rules, 1949 (the Rules), there is no question of complying with the provisions of Section 40-B of the Act.
8. However, the Tribunal has in the operative portion recorded thus:-
"13. From the discussion made herein above and the judgement of High Court I am of the opinion that the order of termination passed by the school on 18.2.92 is legal and valid in the facts of the present case as the appointment was not made as per Schedule F. However, as stated herein above as this Tribunal had granted interim orders in both these applications, directing the respondents to go on paying her salaries regularly and the said interim orders are in operation till to-day, I am of the view that the applicant is entitled for receiving her salaries from July 91 till the date of this order from the school management.
14. In the result, both these applications are disallowed. However, it is held that the applicant is entitled for receiving her salaries as Asstt. Teacher of Primary Section from July 91 till today from the school management, which the school shall pay within a period of two months from receipt of this judgement. If the School failed to pay the salary to the applicant as directed within two months, then after completion of two months, the applicant will be entitled to receive the entire amount of salaries with 18 per cent interest from the school and the interest will start only after completion of two months from the receipt of this judgment by the School. No order as to costs."
9. On behalf of the employee, learned advocate assailed the impugned order of Tribunal upholding the order of termination stating that the definition of the term 'teacher' as appearing in Explanation clause
(b) at the end of Section 40B of the Act indicated that "teacher" means a teacher of a recognised private primary school and the said definition is specifically applicable to Section 40B of the Act. The Tribunal having come to the conclusion that the employee was a teacher in the primary section could not have thereafter stated that the termination order dated 18th February, 1992 was valid because once the employee was held to be a teacher, she could not be removed without following the procedure prescribed under Section 40B of the Act. Referring to the judgment of this High Court in the case of Harkant G. Bhatt in Special Civil Application No.2463 of 1997 referred to hereinbefore, it was pointed out that in a later judgment in the case of Bipinchandra P. Patel (Vakil) vs. Mafatlal Ambalal Prajapati, 2005 (2) GLH 641, the judgment in the case of Harkant G. Bhatt was not followed and, therefore, this Court ought to apply and follow the later judgment of this High Court. An impassioned plea was made that the protection granted to a teacher by the provisions of the Act cannot be taken away in such a casual manner by interpreting provisions so as to negate the rights of a person who has worked for so many years with the respondent school. A great deal of emphasis was laid on the conduct of the school management in relation to non-compliance with the interim directions issued by the Tribunal and as upheld by the High Court.
10. On behalf of the school management, though in the prayer clause of the petition filed by the school, it is prayed to quash and set aside the order dated 23rd December, 1998 made by the Tribunal, at the time of hearing, learned advocate restricted the submission to the aspect of jurisdiction which was negatived by the Tribunal while passing the impugned order and qua the direction issued finally by the Tribunal for paying the salary beyond the date of termination namely up to the date of the order commencing from July, 1991.
11. In relation to the aspect of jurisdiction on behalf of school management, it was contended that the employee had failed to produce any certificate/order of appointment on and from 15th June, 1989 and the certificate produced by the employee only indicated that the employee had worked in the pre-primary section as Assistant Teacher. Therefore, the Tribunal would not have jurisdiction.
12. Insofar as the direction to pay salary from July, 1991 till the date of the order and upon failure, to pay interest, it was submitted that the Tribunal while passing the said order had failed to appreciate that once the termination was upheld, there was no question of the school management being required to pay salary beyond the date of termination.
13. Insofar as the issue of jurisdiction is concerned, the Tribunal has after appreciating the evidence on record, as recorded in paragraph no.8 of the order impugned, come to the conclusion that though the certificate issued by the Principal of the school on 20th August, 1991 referred to the employee having worked in pre-primary section as Assistant Teacher, documents exhibited at Exhs. G, H, I, J. K and L as available on record made it clear that the employee was teaching students of Standards I to IV and her signature was found on the result- sheet of the IIIrd Standard which was countersigned by the Principal of the school. Therefore, the Tribunal was of the opinion that the employee having worked as a teacher in the primary section, the Tribunal has jurisdiction to decide the lis between the parties. It is not possible to state that the aforesaid finding of Tribunal suffers from any legal infirmity so as to warrant interference. It is not the case of the school management that the evidence considered by the Tribunal was not forming part of the record. Therefore, the plea regarding jurisdiction on behalf of school management in the petition filed by the school management does not merit acceptance.
14. Insofar as challenge to the order of termination is concerned, the contentions raised on behalf of the employee teacher do not merit acceptance. This High Court in the case of Harkant G. Bhatt (supra) has categorically held that Schedule F of the Rules makes various provisions regarding the conditions of employment in private primary schools. The said provisions being statutory in nature are binding both to the school as well as the employees of such schools. That it is evident on a plain reading of the provisions of Schedule F of the Rules that it is imperative for any private primary school to appoint a teacher who possesses qualifications prescribed in paragraph no.6 of Schedule F and who is selected by the Selection Committee constituted in accordance with paragraph no. 1(2) of the said Schedule. The High Court has further held that if neither of the aforesaid conditions stand complied with while appointing an employee teacher, there would be no right of employment, much less a right to continue in employment. Referring to Section 40-B of the Act, it is further held that once the provisions requires removal of the teacher, whether the termination is not punitive and no penal action has been taken, the question of issuing show-cause notice for holding inquiry would not arise. What was only required was issuance of a notice to afford an opportunity of hearing.
15. Applying the aforesaid ratio to the facts found by the Tribunal, admittedly, the appointment of the employee teacher is in contravention of provisions of Schedule F of the Rules. It was contended on behalf of the employee that the employee would not be in a position to produce any evidence as to whether the procedure prescribed in Schedule F of the Rules was followed or not and, therefore, the burden had wrongly been placed on the employee. It is not possible to find any fault with the order impugned for the simple reason that at no stage has the employee teacher while preferring the applications before the Tribunal even averred that her appointment was in consonance with the requirement of provisions of Schedule F of the Rules. In the circumstances, on this count, the challenge raised on behalf of the employee cannot be accepted. The Tribunal has rightly applied the ratio of the judgment of this High Court.
16. Insofar as the case of Bipinchandra P. Patel (supra) is concerned, the said judgment cannot advance the cause of the employee teacher in light of the categorical finding by the High Court wherein the aforesaid judgment in case of Harkant G. Bhatt rendered in Special Civil Application No.2463 of 1997 has been referred to. Thereafter the Court has stated thus:-
"At the cost of repetition, it is required to be noted that the respondent No.1 was appointed after interview process and the respondent No.1 is having requisite qualification and on facts and on appreciation it is held by the Tribunal that at the relevant time when the respondent No.1 was appointed, implementation of the Schedule-F was stayed."
17. Therefore, the said judgment turned on its own facts, the High Court having found as a matter of fact on the basis of the finding recorded by the Tribunal that the teacher therein had been appointed after the interview process and was having requisite qualification. Therefore, the said judgment cannot carry the case of the employee any further. Similarly, reliance upon order dated 11th July, 1996 in Special Civil Application No.4351 of 1996 in the case of Prerna Education Trust vs. Pallaviben Pareshkumar Jaiswal, suffice it to state that the said order is not a judgment and merely upholds the interim order made by the Tribunal.
18. Hence, insofar as the order of Tribunal to the extent which is challenged in Special Civil Application No.6987 of 1999 qua the order of termination of the employee teacher is concerned, no interference is warranted and Special Civil Application No.6987 of 1999 fails.
19. Insofar as the petition filed by the school management is concerned, the challenge to jurisdiction has already been dealt with leaving only the aspect of direction issued by the Tribunal for paying the salary from July, 1991 till the date of the order made by the Tribunal. This aspect need not occupy more time and space.
20. Once the Tribunal had come to the conclusion that in light of the ratio laid down by the High Court in the case of Harkant G. Bhatt (supra), the order of termination made by the school on 18th February, 1992 was legal and valid in the facts of the present case as the appointment was not made by following procedure laid down in Schedule F of the Rules, the Tribunal could not have directed payment of salary beyond the said date. Therefore, to the extent the Tribunal has stated that the salary should be paid from July, 1991 onwards up to the date of the order of the Tribunal and failing which interest is also required to be paid at the rate of 18% interest is an order which could not have been made by the Tribunal.
21. The contention on behalf of the employee that the interim orders made by the Tribunal after bipartite hearing continue to operate till the date of the order of the Tribunal and hence, the school management was bound to pay salary up to the said date is only partially correct. Though technically the said interim orders may have continued to operate till the Tribunal finally decides the applications filed by the employee, the Tribunal was duty bound to mould the final relief in accordance with order on merits made by the Tribunal. Once the Tribunal upholds the order of termination, with effect from 18th February, 1992, there is no question of the Tribunal being empowered to direct payment of salary beyond the said date. Admittedly, the employee cannot be stated to be in employment on and from 19th February, 1992 and, therefore, the direction to make payment of salary beyond that date is in excess of jurisdiction vested in the Tribunal and cannot be upheld.
22. Insofar as the conduct of the school management of not complying with the interim orders is concerned, suffice it to state that it is for the employee to take recourse to whatever legal remedy that may be available to the employee. However, such alleged conduct of non-compliance with the interim directions made by the Tribunal cannot vest the Tribunal with jurisdiction and powers to pass an order of payment of salary beyond the date of termination of the employee.
23. Therefore, the directions issued by the Tribunal in paragraph nos. 13 and 14 of the order impugned to the extent of directing the school management to pay salary beyond the date of termination namely 18th February, 1992 is hereby quashed and set aside.
24. The school management is however, directed to make payment of outstanding salary with effect from July, 1991 up to the date of termination within a period of three weeks from today without waiting for a certified copy or writ of this High Court. Such payment of salary shall be made with running interest at the rate of 6% till the actual date of payment. Learned advocate for the petitioner of Special Civil Application No.2324 of 1999 is directed to communicate the aforesaid direction to the petitioner - school management to ensure that the direction stands complied with within the stipulated period. Special Civil Application No.2324 of 1999 is accordingly partly allowed in the aforesaid terms.
25. In the result, Special Civil Application No.6987 of 1999 is rejected for the reasons recorded hereinbefore. Rule is discharged. Insofar as Special Civil Application No.2324 of 1999 is concerned, rule is made absolute to the aforesaid extent only. There shall be no order as to costs in both the petitions.
( D.A. Mehta, J. ) hki Top