Gujarat High Court
Patel Rameshbhai Fulabhai vs State Of Gujarat on 8 October, 2012
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
PATEL RAMESHBHAI FULABHAI....Petitioner(s)V/SSTATE OF GUJARAT THRO SECRETARY C/SCA/1386/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1386 of 2013 ============================================================== PATEL RAMESHBHAI FULABHAI....Petitioner Versus STATE OF GUJARAT THRO SECRETARY & 4....Respondents ============================================================== Appearance: MR AV PRAJAPATI, ADVOCATE for the Petitioner MR HS SONI AGP for the Respondent No. 1 ============================================================== CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 15/02/2013 ORAL ORDER
Heard learned advocate for the petitioner and Mr. Soni, learned AGP on advance copy.
The petitioner, the applicant in Application No. 145 of 2008 and 5 of 2010 from the Gujarat Secondary Education Tribunal, Ahmedabad, has approached this Court invoking Article 226 of the Constitution of India with the following prayers :
(A) Your Lordships may be pleased to admit and allow this writ petition;
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned Order dated 08.10.2012 passed by the Ld. Gujarat Secondary Education Tribunal, passed in Application No. 145/2008, in so far as not awarding back-wages to the petitioner, in the interest of justice;
Be pleased to hold that the Respondent No. 2 District Education Officer and the Respondents Trust both are jointly and severally liable to pay the back-wages to the petitioner by issuing suitable writ, order or direction under Article 226 of the Constitution of India.
By way of interim relief and pending this petition, be pleased to direct the Respondent No. 2 District Education officer and the Respondents Trust both to implement the order passed by the tribunal about reinstatement of the petitioner in service and also direct the respondents District Education Officer and trustees to pay back-wages jointly and severally to the Petitioner.
To pass such other and further order/s necessary in the interest of justice.
Thus, the petitioner, by way of this petition, has essentially challenged the order dated 8.10.2012 passed by the Secondary Education Tribunal, in so far as it did not grant any back wages to the petitioner and has made prayer that the District Education Officer and respondent Trust be liable to pay the back wages to the petitioner jointly and severally on account of their respective acts and omission.
The facts leading to filing this petition as could be seen from the memo of petition deserve to be set out as under:
The petitioner was appointed as Junior Clerk with effect from 13.6.1977 in Grant-in-Aid Private Secondary School run by respondent no. 3. The petitioner was promoted to the post of Office Superintendent in the year 1998. On abolition of the said post, he had to work on lower post i.e. Head Clerk. Once again, on account of dwindling the standard of the students and teachers, he was require to still work on lower post i.e. Clerk with effect from 18.6.2007. There was some grievance between the management and petitioner, as a result thereof, the petitioner was visited with notices and memos etc. The Management was constrained to place the petitioner under suspension with effect from 4.10.2007. The said order was subject matter of challenge before the Tribunal under an Application No. 280 of 2007. However, during pendency thereof, dismissal order came to be passed on 22.7.2008. Against which, the petitioner preferred an application being Application No. 145 of 2008 before the Tribunal. As a challenge of suspension became infructuous, the challenge in application No. 280 of 2007 was disposed of vide order dated 20.1.2009. The management has initiated the disciplinary proceedings against the petitioner twice, once the chargesheet was issued on 9.10.2007 for 8 charges and then, without reaching any logical conclusion on the chargesheet, a resolution No. 19 dated 9.1.2008 was passed resolving to conduct domestic inquiry by appointing representatives from the Board on the inquiry committee and passed the resolution to obtain approval from the DEO to dismiss the petitioner from service. The said proposal was made on 13.3.2008.
The School management has not in receipt of any order of rejection of the proposal from the authorized officer after 45 days, passed an order dated 22.7.2008 dismissing the petitioner from the service. It is required to be noted that on 23.7.2008, the authorized officer has also passed an order refusing the approval sought for by the management for dismissal of the petitioner on account of breach of principles of natural justice. The petitioner, thus, moved the Tribunal by filing Application No. 145 of 2008. The Tribunal came to the conclusion that the termination was essentially on account of misconduct but for which, opportunities were not offered and hence, there was breach of principles of natural justice and therefore, ordered reinstatement, however did not grant any back wages as the Tribunal noted that the petitioner was invited to work and petitioner did not join the duties and therefore, petitioner was not entitled to claim any back wages. The Tribunal s order dated 8.10.2012 is impugned in this petition qua it did not grant any back wages to the petitioner and petitioner has submitted that as there was illegal and unauthorized delay on the part of the DEO in passing the order, he also shall be responsible for paying the back wages.
Learned advocate for the petitioner has contended that the Tribunal ought to have appreciated the fact that the school has been closed and therefore, there exists no remedy now and the petitioner is left without any relief despite the fact that petitioner was reinstated.
Learned advocate for the petitioner has contended that the DEO ought to have appreciated the fact that impugned order and for which, the opportunity was sought for, was suffering from inferences of non-compliance of principle of natural justice, then, his delay in passing the order, resulted into automatically precluded the management from its right available for passing an order and hence, DEO should be held responsible for making good to the monitory losses occurred to the petitioner.
Learned advocate for the petitioner contended that additional affidavit which was filed by the Management for justifying denial of back wages indicating that the petitioner was worked as Trustee in two trusts had not been supplied to the petitioner so as to controvert the same as could be seen from the affidavit at page-85 and thus, the Tribunal was not justified in denying the back wages to the petitioner.
The petitioner s counsel has also invited this court s attention to page nos. 87 and 88, certificate issued by Trust, indicating that the petitioner is performing his job and he is not been paid anything for that and said two documents were not on the record of the Tribunal on account of lapses on the part of petitioner.
The Court is of the view that petition is required to be dismissed in limine for the following reasons namely:
The petition is containing the challenge to the order of the Tribunal only in so far it denies back wages to the petitioner. The petitioner is approaching this court invoking Article 226 of the Constitution of India. The Full Bench of this Court in a decision in case of THE BHAGYODAYA COOPERATIVE BANK LTD. VS. NATWARLAL K. PATEL AND OTHERS, reported in 2011 (3) GLH (FB) 89 held that when the petition is brought under Article 226 containing the challenge to the subordinate Tribunal s order, this Tribunal is required to be joined as party. In the instant case, the petitioner has not joined the Tribunal as a party and therefore, on this ground the petition is required to be dismissed for non-joinder of the parties, as, as per the observation of the Full Court, no petition could be maintained under Article 226 without joining the concerned Tribunal as party respondent.
The petitioner has invoked Article 226 of the Constitution of India. Not a single averment in the memo of petition indicate that such a petition could have been maintained under Article 226, as there is absolutely no reasons for invoking Article 226. In short, the petition could have at the best be brought about invoking Article 227 of the Constitution of India only. Inspite of aforesaid facts of invoking Article 226, the court need not unnecessarily elaborate at the costs of forensic time. Suffice it is to say that challenge contained in this petition essentially indicate challenge under Article 227. Assuming for the sake of presumption without holding that the petition is having been filed under Article 227, though the petitioner has admittedly filed the petition under Article 226 only, then also, the finding recorded by the tribunal cannot be disturbed as they are finding of facts and this court cannot go beyond the same.
Learned counsel for the petitioner has very fairly admitted that document at page nos. 87 and 88 issued by the Trust were not forming part of the record, and therefore, it would not be proper for this court to express any view thereon. If one looks at the order of the Tribunal, one would safely come to the conclusion that denial of back wages is not solely based upon the petitioner being dubbed to be a Trustee of the two Trusts, but in fact the order is based upon the conduct of the petitioner which has been recorded by the Tribunal, that the petitioner was invited to work and he did not go for work. These factors weighed with the Tribunal and therefore, in my view, same being findings of facts, the Court cannot go beyond the same unless and until it is shown perverse in any manner.
The Court is also called upon to determine the responsibility of the DEO for denial of back wages. In my view, this contention is wholly misconceived and deserves outright rejection as the scheme of the Act itself provides that in a given case, if DEO has not taken the decision within the time prescribed i.e. within 45 days, then the management get right to dispense with the services. The Tribunal s findings on this point is also well reasoned and it did not require any interference.
In view of aforesaid discussion, the petition being meritless, deserves rejection and is accordingly rejected. No costs.
(S.R.BRAHMBHATT, J.) pallav Page 8 of 8