Gujarat High Court
Navrangpura Gam Dharamada Milkat Trust ... vs Nilamben J Ayachi on 16 November, 2022
Author: A.J.Desai
Bench: A.J.Desai
C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1387 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 16954 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NAVRANGPURA GAM DHARAMADA MILKAT TRUST THROUGH
CHAIRMAN & 1 other(s)
Versus
NILAMBEN J AYACHI & 3 other(s)
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Appearance:
MR. SHALIN MEHTA, SENIOR ADVOCATE WITH MR HEMANG M
SHAH(5399) for the Appellant(s) No. 1,2
MR. SAHIL TRIVEDI, AGP for the Respondent(s) No. 2
DELETED for the Respondent(s) No. 3,4
MR. G.M. JOSHI, SENIOR ADVOCATE VYOM H SHAH(9387) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 16/11/2022
ORAL JUDGMENT
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C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 (PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. The present appeal, preferred under Clause 15 of Letters Patent, arising from the CAV judgment dated 22.06.2017 passed by learned Single Judge in the captioned writ petition by which the petition filed by the present appellant Educational Institution was dismissed. In the writ petition, the Institution has challenged the oral judgment dated 04.09.2003 passed by Gujarat Secondary Education Tribunal, Ahmedabad (for short 'the Tribunal') in Application No.201 of 2001 filed by private respondent-Teacher (for short 'the Teacher'), by which, the Tribunal has quashed and set aside the dismissal order passed by the appellant Institution and holding that the respondent Teacher would be entitled to the subsistence allowance for the period when she had not joined the services.
2. The appeal came to be admitted on 10.06.2019.
3. Short facts of the present case are that the appellant-
Navrangpura Gam Dharmada Milkat Trust is a registered Trust under the Bombay Public Trust Act, 1950, which is running administration of the school namely Navrang Secondary/Higher Secondary School. The said school is wholly aided educational institution, which receives 100% salary grant from the State Page 2 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 Government. The Teacher was absorbed in the School on 12.09.1988 as Assistant Teacher for the subject of Sanskrit, after she was declared as surplus from another school.
3.1 On 04.07.2000, the Teacher tendered an application for leave for 100 days commencing from 09.11.2000 for visiting United States of America (for short 'the USA') to the School Management to visit her daughter whom she brought up as a single parent. She was asked to furnish by the appellant Trust of the USA vide communication dated 07.08.2000. On 08.08.2000, the Teacher was called upon by the Principal of the School to inquire about the rowdy behaviour of the students of Standard-X. The Teacher came to the office and assaulted the Principal by throwing her log book and abused the Principal and the Trustee. Thereafter, she was suspended on 21.08.2000. A show cause notice was issued to her on 26.08.2000, which she had replied on 05.09.2000. Thereafter, the District Education Officer (for short 'DEO') granted approval to suspension of Teacher on 10.10.2000.
3.2 The Teacher left for USA pursuant to earlier application on 31.10.2000, without permission, and therefore, another letter was issued by the appellants on 17.11.2000 stating that she had committed breach of the condition of suspension order and therefore, subsistence allowance was not paid to her. Thereafter, Page 3 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 the departmental inquiry proceeded. The Teacher challenged the order, by which, her subsistence allowance was discontinued by filing an Application No.201 of 2001 before the Gujarat Secondary Education Tribunal, Ahmedabad. The order of management of not granting the subsistence allowance was stayed by the Tribunal and Management was asked to pay the subsistence allowance, which was subsequently modified. Thereafter, on completion of inquiry, the Teacher was dismissed from the service. The said decision was challenged by the Teacher by way of filing another Application No.158 of 2002 before the Tribunal. Both the applications were heard together and decided by the Tribunal vide oral judgment dated 04.09.2003. As stated hereinabove, both the applications filed by the Teacher came to be allowed. Being aggrieved by the said order, two writ petitions were filed by the Management being Special Civil Application No. 16954 of 2003 and Special Civil Application No. 16952 of 2003. Both the said petitions were heard together by the learned Single Judge and ultimately upheld the decision of the Tribunal. As far as the grant of subsistence allowance by the Tribunal and upheld by the learned Single Judge, the Management preferred appeal under Clause 15 of Letters Patent being Letters Patent Appeal No. 1386 of 2017. The said appeal was disposed of by the Division Bench of this Court (Coram: Hon'ble Mr. Justice M.R. Shah and Hon'ble Mr. Justice Biren Vaishnav) on 06.11.2017. Following order was passed:
Page 4 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 "1. Shri Shalin Mehta, learned Counsel appearing on behalf of the appellants seeks permission to withdraw the present Letters Patent Appeal which is arising out of the impugned order passed by the learned Single Judge in Special Civil Application No. 16952 of 2003 which is arising out of Application No. 201 of 2001 before the learned Tribunal which was with reference to the subsistence allowance preferred by the applicant -
teacher. However, he has requested to make suitable observations that the same shall be without prejudice to the rights and contentions of the appellants in Letters Patent Appeal No. 1387 of 2017. He has also requested to reserve the liberty to revive the present Letters Patent Appeal in case of difficulty. Shri Joshi, learned advocate appearing on behalf of the concerned teacher as respondent no. 1 herein has stated at the bar that he has no objection if appropriate order is passed accordingly.
2. In view of the above and without prejudice to the rights and contentions of the respective parties, more particularly, appellants in Letters Patent Appeal No. 1387 of 2017 and without further expressing anything on merits in favour of the either parties, present Letters Patent Appeal stands dismissed as withdrawn. Liberty is reserved in favour of the appellants to revive the present Letters Patent Appeal in case of difficulty. In view of the withdrawal of the main Letters Patent Appeal, Civil Application No. 11220 of 2017 stands dismissed as withdrawn with above liberty."
3.3. In view of the above order, the question which is to be Page 5 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 decided in this appeal is to consider the validity of the order passed by the Tribunal and confirmed by the learned Single Judge by which the order of dismissal passed by the appellant is quashed and set aside.
4. Learned Senior Counsel Mr. Shalin Mehta assisted by learned advocate Mr. Hemang Shah for the appellants would submit that the Tribunal as well as learned Single Judge have committed an error in quashing and setting aside of the order of dismissal of the Teacher, which was passed after full fledged inquiry. He would further submit that though the respondent-Teacher was suspended and was imposed condition not to leave the headquarter without prior permission, she had left on 31.10.2000 and returned after 100 days, and hence this is also a misconduct. He would further submit that the Tribunal as well as learned Single Judge have committed an error in quashing the dismissal order only on the ground that she was not paid subsistence allowance and no prejudice was shown by her. He would further submit that subsequently, subsistence allowance was paid, and therefore, the Tribunal as well as learned Single Judge ought not to have quashed and set aside the dismissal order. Therefore, he would submit that the appeal be allowed.
5. On the other hand, learned Senior Counsel Mr. G.M. Joshi assisted by learned advocate Mr. Vyom Shah for the respondent-
Page 6 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 Teacher, at the outset, would submit that though the Tribunal as well as learned Single Judge have ordered to release all consequential benefits, the same are not paid. Under the instructions, he would further submit that she would not claim the remaining subsistence allowance which she would have been entitled till she had attained the age of superannuation. Learned advocate appearing for the respondent-Teacher, by taking us through the orders passed by the Tribunal as well as learned Single Judge, would submit that there is no illegality committed by the Courts below. He would further submit that this is an undisputed fact that entire subsistence allowance was not paid to the respondent-Teacher, and therefore, the Tribunal as well as learned Single Judge have rightly relied upon a decision of the Hon'ble Apex Court in case of Jagdamba Prasad Shukla vs. State of U.P. and others reported in (2000) 7 SCC 90. By making the aforesaid submissions, he would submit that the appeal be dismissed.
6. Mr. Sahil Trivedi, learned Assistant Government Pleader has also adopted the arguments advanced by learned advocate appearing for the appellants. He would submit that since the appellant Institution is wholly aided educational institution, the financial liability would be upon the Government, and therefore, appropriate orders may be passed.
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7. We have heard learned advocates appearing for the respective parties. As far as the submission made by the Mr. Sahil Trivedi, learned Assistant Government Pleader is concerned, it is pertinent to note that though DEO was party before the Tribunal as well as before the learned Single Judge, no affidavit-in-reply was filed in any of the proceedings and have never opposed the prayer sought for.
8. We have gone through the order passed by the Tribunal as well as findings recorded by the learned Single Judge. It is not in dispute that entire subsistence allowance was not paid to the Teacher and in view of the above backgrounds, various aspects have been considered by learned Single Judge in detail and relevant observations have been made by the learned Single Judge, which are reproduced hereinbelow:
"27. The question, therefore, that needs to be answered at this stage in the abovementioned circumstances is as to whether the Tribunal was justified in quashing and setting aside the dismissal order for non- payment of subsistence allowance for being violative of principles of natural justice. This Court notices that the suspension order issued by the petitioner stipulated two conditions. She had challenged the suspension order and also had prayed that subsistence allowance be paid to her. It hardly requires any dilation that challenge to suspension order and prejudice to contest the departmental proceedings for nonpayment of subsistence allowance stand Page 8 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 on completely different footing. The Court needs to remember that on 3.5.2001, the Tribunal passed ex parte order directing the petitioners to pay the subsistence allowance to respondent No.1. No subsistence allowance is given to respondent No.1 despite the interim order passed on 3.5.2001. The matter appeared on board on 17.7.2001. Respondent No.1 also made a grievance on 16.8.2001 that despite the order, she had not receive the subsistence allowance. Therefore, on 20.9.2001, the Court on hearing both the sides directed the applicant to file a declaration of fulfillment of two conditions mentioned in the suspension order without prejudice to her right within one week and submit to the School Management and upon receipt of such declaration, unpaid subsistence allowance of respondent No.1 except for the period of 100 days, was directed to be released and the School Management was directed to proceed further with the Departmental Inquiry against respondent No.1 thereafter. It also emerges from the record that respondent No.1 submitted her certificates on 26.9.2001 and yet the payment of subsistence allowance, for the period of 21.8.2000 to 30.9.2001, was paid only after about the period of five months from the date of passing of the ex parte order. Till the passing of the bipartite order on 20.9.2001, no compliance was made of the said order and no reason comes forth as to why the order of the Tribunal was not complied with without even making any move for clarification or for vacating such relief. The petitioner school addressed communications to the DEO that there was no intention on its part to withhold the payment to be made to respondent No.1, which can hardly be said to be compliance of the Tribunal's direction. Both the petitioner No.2School and the petitioner No.1Trust were duty bound and legally obliged to follow the directions issued by the Tribunal as a judicial authority. Again, even if the petitioner No.2 is a Page 9 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 registered Private Secondary School and is fully aided by the State Government, that in no manner, would authorise the SchoolManagement or the DEO not to comply with the directions or to delay the same by attributing such delay to each other. In absence of any justification for complying with the directions, when the School Management proceeded with the departmental proceedings and by 17.9.2001, it had completed the departmental proceedings, not only it does not subserve the object of grant of subsistence allowance during the pendency of departmental proceedings but the same in no manner justify the action of the authority which is ex facie arbitrary. The inquiry committee chose to submit its report in the month of December, 2001. When the respondent No.1 had made her inability to participate very clear, as appearing on the record, from her application on 3.5.2001. Ironically, in the very meeting the two management witnesses, the Head Master and Mr. Girish Patel, the Director were examined. Respondent No.1 could not participate in the departmental proceedings, as out of 18 sittings, she was absent in 13 sittings. She had also drawn the attention of the inquiry committee on 10.7.2001 of her inability to participate due to nonpayment of subsistence allowance."
28.The Tribunal, relying on the decision of Jagdamba Prasad Shukla (supra) has concluded that one of the chief reasons for not participating in the inquiry, as intimated to the authority, since was financial crunch, on account of nonpayment of subsistence allowance and the order of dismissal, deserve quashment.
28.1 The Apex Court in its decision rendered in the case of Jagdamba Prasad Shukla (supra)observed as under:-
"8. The payment of subsistence allowance, in accordance with the Rules, to an Page 10 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for nonpayment of the subsistence allowance all through the period of suspension i.e. from suspension till removal. One of the reasons for not appearing in enquiry as intimated to the authorities was the financial crunch on account of nonpayment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to show cause notice stated that even if he was to appear in enquiry against medical advice, he was unable to appear for want of funds on account of non-
payment of subsistence allowance. it is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed."
29.This Court notices that there were two grounds for non- attendance to the inquiry proceedings by the appellant before the Apex Court (1) nonpayment of subsistence allowance and also illness of the appellant. Since both caused serious prejudice to the right of delinquent.
30.In light of this decision, subsequent decision of the Apex Court rendered in Shankarlal (supra) shall need to be regarded. In that matter before the Apex Court, the respondent was transferred from one station to another but he did not join. He was placed under suspension and intimation was given to him to collect subsistence allowance and other papers relating to preliminary case against him. He was non cooperative. His services came to be terminated after inquiry. One of the grounds taken by respondent was that the disciplinary proceedings were vitiated on account of nonpayment of subsistence allowance. The findings of the Tribunal were that the respondent was himself responsible for delayed payment of subsistence allowance. The High Court held that nonpayment was a Page 11 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 ground for interfering with the grant of penalty imposed. The Apex Court on noticing chronology of events reversed the judgment of the High Court and held that all facilities for receipt of subsistence allowance must be given to the delinquent officer. But when an opportunity had been given to the delinquent officer to take subsistence allowance, it must be shown that because of nonpayment, he was not in a position to participate in the proceedings or that any other prejudice in effectively defending the proceedings was caused to him. The Apex Court also held that serious error was committed in holding that the question of prejudice is irrelevant.
30.1 The Apex Court further held and observed that the appellant State had taken all possible steps for disbursement of subsistence allowance. However, in the peculiar facts and circumstances of the case, the Court held that interest of justice would subserve if the impugned judgment is set aside and the matter is remanded to the High Court for consideration afresh.
30.2 Relevant paragraphs are reproduced hereunder:
" 14. An almost identical question in regard to payment of subsistence allowance albeit in a different fact situation came up before this Court in Jagdamba Prasad Shukla v. State of U.P. & Ors. [(2000) 7 SCC 90] wherein it was opined :
"6.It is evident from the record that the High Court is not right in observing that the ground sought to be urged was not taken in the claim petition or in the writ petition. In fact, the High Court in the latter part of the judgment observes that :
"for the first time, the petitioner has taken the ground in this writ petition that he could not attend the Page 12 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 departmental proceedings due to financial crunch as he was not paid his subsistence allowance"
A perusal of the record shows that the contention urged before the High Court and again before us, was also raised before the U.P. Public Service Tribunal and even earlier before the authorities. The U.P. Public Service Tribunal considered it and on the facts of the case, the Tribunal held that :
"Therefore, those rulings where person was unable to attend the enquiry for nonpayment of subsistence allowance, resulting in inquiry being vitiated will not be applicable.
Apart from it, in reply dated 22-1-1979 sent to the showcause notice, the appellant specifically stated that he has not been paid his pay and suspension allowance which cannot be withheld and as such how could he be expected to reach Gorakhpur or elsewhere due to shortage of funds. He further stated that "the applicant has requested a number of times for drawing his pay and suspension allowance, but the same could not be drawn and sent to the applicant which was a serious handicap to appear anywhere even if he so preferred during illness and even against the recommendations of his medical attendant.
The request of the appellant for payment of subsistence allowance is also contained in his letter dated 3131978 sent to the Superintendent of Police, Railways, Gorakhpur Section, Gorakhpur. The said letter also contains the address of the appellant. The address of the appellant is in fact contained on various communications sent by him to the respondents. It is curious that the respondents could serve all other communications including the showcause notice to the appellant but insofar as the payment of subsistence allowance Page 13 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 is concerned, the plea taken is that the appellant did not intimate his address and, therefore, the amount could not be sent. Thus, it is evident that despite repeated requests, the subsistence allowance was not paid to the appellant from the date of suspension till removal. It is also evident that the appellant had expressed difficulty in reaching the place of inquiry due to shortage of funds.
8. The payment of subsistence allowance, in accordance with the Rules, to an employee under suspension is not a bounty. It is a right. An employee is entitled to be paid the subsistence allowance. No justifiable ground has been made out for non- payment of the subsistence allowance all through the period of suspension i.e. from suspension till removal. One of the reasons for not appearing in inquiry as intimated to the authorities was the financial crunch on account of nonpayment of subsistence allowance and the other was the illness of the appellant. The appellant in reply to the show cause notice stated that even if he was to appear in an inquiry against medical advice, he was unable to appear for want of funds on account of nonpayment of subsistence allowance. It is a clear case of breach of principles of natural justice on account of the denial of reasonable opportunity to the appellant to defend himself in the departmental enquiry. Thus, the departmental enquiry and the consequent order of removal from service are quashed.
15. We may, however, notice that in Indra Bhanu Gaur v. Committee, Management of M.M. Degree College & Ors. [(2004) 1 SCC 281], a Bench of this Court opined that when an opportunity had been granted to the delinquent officer to take the subsistence allowance, it must be shown that because of nonpayment thereof, he was not in a position to participate in the proceedings or that any other prejudice in effectively defending Page 14 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 the proceedings was caused to him.
16. Yet again, in U.P. State Textile Corpn. Ltd. v. P.C. Chaturvedi,(2005) 8 SCC 211, it was held :
"16.Rule 41 provides that the subsistence allowance is payable only when the employee, if required, presents himself every day at the place of work. Obviously, for establishing that the employee had presented himself at the place of work, the authorities had clearly stipulated a condition that the attendance register was to be signed. No explanation was offered by Respondent 1 employee as to why he did not sign the register. It cannot be lightly brushed aside as technical and/or inconsequential. As admittedly, Respondent 1 employee had not signed the attendance register even though specifically required in the order of suspension, the High Court was not justified in coming to a conclusion that the nonsigning was not consequential or a bona fide lapse. It is also to be noted that at various points of time the employer informed Respondent 1 employee about the consequences of his not signing the attendance register as stipulated in the order of suspension.
17. The High Court, in our opinion, committed a serious error in holding that the question of prejudice is irrelevant in so far as it misread and misinterpreted Jagdamba Prasad Shukla (supra). No law in absolute terms in this connection was laid down therein. The relief was granted to the appellant having regard to the fact situation obtaining therein. It was found as of fact that no subsistence allowance, had been given. It was not established that communication in relation to subsistence allowance was, in fact, served upon the appellant therein and Page 15 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 despite repeated requests, subsistence allowance was not paid. The fact that the Court therein opined that no justifiable ground has been made for non payment of the subsistence allowance all through the period of suspension till removal, may, itself be a ground for arriving at the conclusion that the delinquent officer was suffering from financial crunch on account thereof as also his illness."
1. In the above decision, the Apex Court held that in no absolute terms, the law has been laid down in case of Jagdamba Prasad Shukla (supra)and the fact situation of each case deserves scrutiny.
2. Reverting to the facts of the case on hands, after the bipartite order of the Tribunal also such payment was made belatedly and that too, after the date of dismissal. The record does not show that there was any promptness on the part of the authorities or the State represented through the DEO to pay the subsistence allowance, and therefore, when respondent No.1 had requested on tendering the application soon on return from leave of her inability to attend to the departmental proceedings for nonpayment of subsistence allowance, this Court sees no reason to interfere with the findings arrived at by the Tribunal. Her visit to her daughter also cannot be viewed as her financial strength to contest litigation which never is possible without substantial spending. There is nothing on record as to who had financed her trip to USA and that could also not be a concern of the Management. She was an employee who without any other family support lived her life and earned her livelihood by working in the school as a teacher and therefore also, to expect her to participate without fulfilling corresponding legal obligations is adding insult to the injury.
Page 16 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 32.1 This Court, therefore, holds that the act of non- payment has led to serious prejudice and breach of principles of natural justice. Availing opportunity to participate in Departmental proceeding without providing means is like an empty formality, a form without essence, a rhetoric without any intent.
3. The Apex Court's well laid down ratio of not to interfere with the findings of the Tribunal only because there is possibility of arriving at a different conclusion in the very set of facts and circumstances needs to be remembered at this stage.
4. Reaching to another conclusion with the very set of evidence also may not be the ground for upsetting the conclusion of the Tribunal when this Court is exercising powers under Articles 226 and 227 of the Constitution of India as held by the Apex Court in the case of SYED YAKOOB Vs.K.S. RADHAKRISHNAN & OTHERS', AIR 1964 SC 477.The Constitutional Bench of the Apex Court has held and observed that the writ of certiorari can be issued for correcting an error of jurisdiction committed by the inferior Court or the Tribunal, where, the orders are passed by the Tribunal or the Court without jurisdiction or is in excess of it or as a result of failure to exercise the jurisdiction vested in it. A writ can be issued by the High Court in exercise of jurisdiction conferred on it, when the decision taken by the inferior Court or tribunal is legal or impermissible. If none of these grounds exists, no interference would be warranted, wherein, the Apex Court observed and held thus:
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction Page 17 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the 69 dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had. Erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was' insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be Page 18 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque(1), Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam(2), and Kaushalya Devi v. Bachittar Singh(3). It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manliest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly rounded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases. the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily Page 19 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022 C/LPA/1387/2017 JUDGMENT DATED: 16/11/2022 or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened."
9. In absence of any different decision and in view of the above facts, we are in agreement with the findings recorded by the Tribunal as well as by the learned Single Judge, we do not find any reason to interfere with the impugned order.
10. A statement has been made by learned advocate appearing for the respondent-Teacher, under the instructions, that the respondent-Teacher shall not claim the remaining subsistence allowance which has been granted by the Tribunal and confirmed by learned Single Judge. Since service book of the respondent- Teacher is not available with any of the parties, the benefit shall be calculated and granted as per the last drawn salary of the Teacher. The amount shall be paid to the respondent-
Teacher within a period of Eight Weeks from today.
11. Accordingly, the present appeal is dismissed. Notice is discharged.
(A.J.DESAI, J) (NISHA M. THAKORE,J) SUYASH Page 20 of 20 Downloaded on : Sun Dec 25 06:22:55 IST 2022