Gujarat High Court
Principal vs Popatlal Narsibhai Joshi & on 1 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/17789/2003 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17789 of 2003
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PRINCIPAL, JJ SECONDARY SCHOOL & 1....Petitioner(s)
Versus
POPATLAL NARSIBHAI JOSHI & 1....Respondent(s)
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Appearance:
MARSHALL & ASSOCIATES, ADVOCATE for the Petitioner(s) No. 1 - 2
GOVERNMENT PLEADER for the Respondent(s) No. 2
HL PATEL ADVOCATES, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/04/2016
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the petitioner, the Principal of a Minority School, has prayed for the following reliefs;
"(a) Quashing and setting aside the part of the judgement dated 18/11/2003 passed by the Gujarat Secondary Education Tribunal in Application No. 125/95 whereby the order of dismissal of the Respondent No. 1 from service has been quashed and BE FURTHER PLEASED to quash and set aside the order directing payment of 50% back wages and BE FURTHER PLEASED to quash and set aside the part of the order and directions which are against the petitioner:
(b) PENDING THE ADMISSION, HEARING AND FINAL DISPOSAL OF THIS PETITION, be pleased to stay execution, implementation and operation of the judgement dated 18/11/2003 passed by the Gujarat Secondary Education Tribunal in Application No. 125/95;Page 1 of 7
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(c) To grant any other appropriate and just relief/s: and also to grant the cost of this petition"
2. The facts of this case may be summarized as under;
2.1 Sir J.J. Parsi Benevolent Institution at Surat is a Charitable Trust. It runs a school in the name of Sir J.J. Secondary School. The school appointed the respondent No.1 as a teacher in the year 1981. The school management initiated a departmental inquiry in the year 1994 against the respondent No.1 for certain acts of misconduct and dereliction of duty. The departmental inquiry resulted in dismissal of the respondent No.1 from the service. The respondent No.1, being dissatisfied with the action of the petitioner in dismissing him from the service, challenged the order of dismissal before the Gujarat Secondary Education Tribunal at Ahmedabad by filing Application No.125 of 1995. The Tribunal, by an order dated 18th November, 2003, partly allowed the application. While party allowing the application, the Tribunal, observed as under;
"In the result, these applications are partly allowed, the order of removal in respect of applicant of Application No. 124 of 1995 and order of dismissal in respect of the applicant of Application No. 125 of 1995 are quashed and set aside. The school management shall pay backwages of 50% of salaries to each of the applicants from its own funds within one month from receipt of this Judgement. With regard to the remaining 50% of the backwages management shall taken the decision while concluding the departmental inquiry against the applicants. Both the applicants are held entitled to be restored to active duties. However, it is open for the management to continuer them under suspension on condition that their subsistence allowance i.e. ful salaries shall be paid by the school management from their own funds till such time they continue under suspension. It is also open for the management to proceed further with the departmental Page 2 of 7 HC-NIC Page 2 of 7 Created On Tue Apr 05 02:02:40 IST 2016 C/SCA/17789/2003 ORDER inquiry proceedings fro the stage of defects as noticed in this judgement, only after payment of 50% salaries as directed. These applications are accordingly disposed off. No order as to costs."
2.2 Thus, it appears on plain reading of the operative part of the Tribunal's order that the Tribunal took the view that the inquiry was not carried out in a proper manner and, accordingly, the order of dismissal was quashed and the respondent No.1 was ordered to be reinstated in service with 50% of salary towards the back wages. The Tribunal, however, left it open for the management to initiate a fresh inquiry and take an appropriate decision. The Tribunal further clarified that so far as the balance 50% of the back wages was concerned, the same would be dependent on the outcome of the fresh inquiry.
2.3 The petitioner, being dissatisfied with the order passed by the Tribunal, challenged the same by filing this writ application.
3. On 22nd December, 2003, the following order was passed;
"Heard the learned advocates.
Rule. Learned advocate Ms. Acharya waives service of rule on behalf of the respondent no. 1. Notice as to interim relief returnable on 20th February, 2004. Pending this petition, there shall be interim stay of the impugned judgment and order dated 18th November, 2003 passed in Application No. 125 of 1995 in so far as the petitioners are directed to pay backwages to the respondent no. 1 and to reinstate him in service on active duty, on condition that the disciplinary action initiated against the respondent no. 1 shall proceed against the respondent no. 1 as directed by the Tribunal and shall be completed Page 3 of 7 HC-NIC Page 3 of 7 Created On Tue Apr 05 02:02:40 IST 2016 C/SCA/17789/2003 ORDER by 15th February, 2004 and on further condition that the respondent no. 1 shall fully cooperate in completion of the disciplinary inquiry."
4. Thereafter, on 23rd March, 2004, the following order was passed;
"Learned advocate Mr. R.R. Marshal places on record a communication dated 17th March, 2004, addressed to the respondent, intimating a decision to dismiss him from service with immediate effect. Same be taken on record.
S.O. to 31.3.2004."
5. Thereafter, on 31st March, 2004, the following order was passed;
"Heard learned advocate Mr. Marshall for the petitioner, learned advocate Mr. Asim Pandya appearing on behalf of respondent No.1 and learned AGP Mr. N.D.Gohel appearing on behalf of the respondent State.
2. It is the contention of Mr. Marshall that in light of order passed by the petitioners on 17.3.2004 copy of which is placed on record, earlier this matter was not required to be notified in light of an order passed in this matter on 22.12.2003 and the matter may be posted for final hearing.
3. Learned advocate Mr. Pandya submitted that the order dated 22.12.2003 was only ad interim order and therefore, the matter is rightly notified. According to Mr. Pandya the ad interim relief was only in respect of back wages and not against the reinstatement in service on active duty. He submitted that the respondent No.1 has not been paid even subsistence allowance and some indulgence may be granted in this regard.
4. Mr. Marshall countering the submissions of Mr. Pandya submitted that there is no question of paying any subsistence allowance because services of respondent No.1 were already terminated earlier and there is no question of subsistence allowance. The inquiry was Page 4 of 7 HC-NIC Page 4 of 7 Created On Tue Apr 05 02:02:40 IST 2016 C/SCA/17789/2003 ORDER proceeded further and order dated 17.3.2004 was passed only in light of order of the Court to finally conclude the enquiry which was incomplete because of nonavailability of certain witnesses and the time bound schedule to be followed. He, therefore, submitted that no indulgence is required to be granted.
5. Having regard to the contentions before this Court, since the matter is already admitted it requires a detailed consideration. So far as interim relief part is concerned, this Court after hearing learned advocates for both the sides while passing order on 22.12.2003 observed as under:
"Pending this petition there shall be interim stay of the impugned judgement and order dated 18.11.2003 passed in Application No. 125 of 1995. In so far as the petitioners are directed to pay backwages to respondent No.1 and to reinstate him in service on active duty on condition that the disciplinary action initiated against respondent No.1 shall proceed against respondent No.1 as directed by the Tribunal and shall be completed by 15.12.2004 and on further condition that respondent No.1 shall fully cooperate in completion of the disciplinary inquiry."
Following this direction, the inquiry was proceeded further and ultimately order dated 17.3.2004 was passed by the petitioner terminating service as an Assistant Teacher with immediate effect.
6. In the opinion of this Court now, therefore, no further hearing and direction for interim relief is required since the services of the respondent No.1 are terminated which would be an independent cause for the parties.
7. So far as the question raised by Mr. Pandya regarding subsistence allowance is concerned, two aspects are emerging. First, that according to the petitioner, services of respondent No.1 were already terminated much earlier and the inquiry was proceeded further following direction of the Court and therefore, there is no question of subsistence allowance. Against that, it is indicated that if that was so, there was no need for termination order dated 17.3.2004 which says that service are terminated with immediate effect.
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8. Be that as it may, this is a petition by the employer. If the employee is aggrieved for nonpayment of subsistence allowance, it is open for him to take appropriate recourse before appropriate authority and the authority shall decide the question in accordance with law, considering the contentions that may be raised by both the sides uninfluenced by this order or the order dated 22.12.2003. The matter be placed for final hearing in due course."
6. It appears that the fresh inquiry resulted in dismissal of the respondent No.1 from the service. This happened way back in the year 2004. The order of dismissal attained finality as the respondent No.4 did not deem fit to challenge the same.
7. It appears from the three orders referred to above by this Court that not only the order of reinstatement was stayed, but even the order so far as the payment of the back wages to the extent of 50% was also stayed.
8. With the fresh inquiry and the fresh order of dismissal passed by the management, nothing remains in the matter and, more particularly, when the respondent No.1 thought fit to accept the order of dismissal.
9. In view of the above, no further adjudication is required. The part of the impugned order passed by the Tribunal challenged in this petition is quashed. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Page 6 of 7 HC-NIC Page 6 of 7 Created On Tue Apr 05 02:02:40 IST 2016 C/SCA/17789/2003 ORDER Vahid Page 7 of 7 HC-NIC Page 7 of 7 Created On Tue Apr 05 02:02:40 IST 2016