Gujarat High Court
Pragnaben K. Nayak & 6 vs Director Of Primary Education & 4 on 29 June, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10111/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10111 of 2006
With
SPECIAL CIVIL APPLICATION NO. 17501 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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 or any order made thereunder ?
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PRAGNABEN K. NAYAK & 6....Petitioner(s)
Versus
DIRECTOR OF PRIMARY EDUCATION & 4....Respondent(s)
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Petitioner(s) No. 1 - 7
GOVERNMENT PLEADER for the Respondent(s) No. 2 - 3
MR BS PATEL, ADVOCATE for the Respondent(s) No. 5
MR PRASHANT G DESAI, ADVOCATE for the Respondent(s) No. 4
MRS RANJAN B PATEL, ADVOCATE for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 1 - 2
RULE UNSERVED for the Respondent(s) No. 4 - 5
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
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Date : 29/06/2016
ORAL JUDGMENT
1. Since the issues raised in both the captioned petitions are interrelated, those were heard analogously and are being disposed of by this common judgment and order.
2. By this writ application under Article 226 of the Constitution of India, the writ applicants, former teachers, have prayed for the following reliefs;
"(A) A writ of mandamus, or a writ of certiorari, or any other appropriate writ, order or direction be issued
(i) To quash and set aside the order dated 29.11.05 passed by respondent no. 1 granting permission to the respondent no. 5 - school to close down the classes, in the interest of justice;
(ii)Be pleased to direct that the action of the respondent no. 5 for closing down the class is absolutely illegal, unjust and violative of Fundamental rights of the petitioners;
(iii) Be pleased to direct the respondents to ensure that petitioners shall be given their due and payable salaries till date and shall be paid their wages from time to time until order is passed terminating them in accordance with law;
(iv) The respondent no. 5 may be directed to pay regular salary to all the teachers and further the petitioners may be permitted to resume their duties in respondent no. 5 school;Page 2 of 30
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(v)To direct that the State Government shall frame adequate scheme in cases of closure/reduction in classes by primary schools and direct that the petitioners and other teachers may not be terminated from services and they shall be absorbed elsewhere in the school situated in Surat Area, in which there is a need of teachers and before appointment of any new private primary teacher in the area of Surat, the petitioners and other teachers who are surplus because of so called reduction of classes shall be first of all absorbed;
(B) Pending the admission, hearing and final disposal of this petition, the implementation, operation and execution of the order dated 29.11.05 passed by the respondent no. 1 giving permission to close down the classes to the respondent no. 5 school, may kindly be stayed and the respondent no. 5 may further be directed to maintain from acting in furtherance to the impugned order dated 29.11.2005, in the interest of justice;
(C) The respondent no. 5 may be directed to pay arrears of salary to all the petitioners and continue of pay the same to the petitioners. The respondent authorities may also be directed to ensure that petitioners shall be given their due and payable salaries;
(D) Any other and further reliefs as may be deemed fit, in the interest of justice, kindly be granted."
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3. The facts of this case may be summarized as under;
4. The writ applicants came to be appointed on 01.08.1989 as the Assistant Teachers in the school run and managed by the respondent No.5. They all were appointed after following the due process of law. They were appointed in accordance with Schedule-F of the Bombay Primary Education Act. It appears that the respondent No.5 sought the necessary permission from the Director of Primary Education to close down the eight classes of the Primary School.
5. The Director of Primary Education passed an order dated 1.8.2003 granting permission in favour of the respondent No.5 to close down the eight classes of the Primary School. The order is at page-49, Annexure, E to this petition.
6. The writ applicants were informed about the same vide notice dated 19.11.2003.
7. The order passed by the Director of Primary Education dated 1.8.2003 granting permission to the respondent No.5- School to close down the classes was made a subject matter of challenge by filing Special Civil Application No.16463 of 2003. The said writ application was rejected by the learned Single Judge vide order dated 29.9.2004. While rejecting the writ application, the Court observed as under;
"5. Heard the learned advocates appearing for the parties. A proposal was submitted on behalf of respondent No.5 to close down 8 classes. The said proosal was submitted as required under section 40(b) of the Bombay Primary Education Act. 1947 [hereinafter referred to as "the Actt"). The said proposal was sent through the DEO. Surat. The DE0, Surat, also sent his Page 4 of 30 HC-NIC Page 4 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT proposal/recommendation to the Director of Primary Education, respondent No.1 herein. The main reasoning given by the respondent No.5 Institution was due to opening of many new primary schools in the area and though all efforts were made the number of the students had decreased which has necessitated to close down certain classes. Even in the reply submitted by the petitioners it is also admitted that decrease of students in the classes might be because of opening of new schools in the nearby area. Considering the aforesaid reasons and considering the Written submissions and the objections submitted by the petitioners the respondent no.1 has taken a decision allowing the respondent No.5 to close down 8 classes. It is also required to be noted that while passing the impugned order dated 1.8.2006 the respondent No.1 Director of Primary Education has taken care to protect the interests of the petitioners also, meaning thereby that the respondent No.1, while passing the impugned order, imposed certain conditions namely that the provisions of Section 40(b) of the Act are required to be complied with by the management and the school management is required to make payment of 'retrenchment compensation and/or to give protection as required under Schedule "F" to the said Act and as such the rights of the petitioners are already protected by the respondent No.1 while passing the impugned order. It is brought to the notice of the Court that the questions with regard to service conditions of the petitioners and their termination are already pending before the Primary Education Tribunal. Therefore, I am not considering anything with regard to service conditions and/or termination and other aspects relating to service conditions of the petitioners. This Court is only required to consider the legality and validity of the impugned order dated 1.8.2003 by which the respondent No.1 has granted permission to respondent No.5 to close down 8 classes in the Primary Section.
5.1. So far as the contention on behalf of the petitioners that the impugned order is a non-speaking and non- reasoned order is concerned. the same is not correct. From the bare reading of the impugned order dated 1.8.2005 it it clear that the Director of Primary Education has considered the reasons for closing down the classes and had also noted the objections submitted by the petitioners and thus passed the impugned order.
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Therefore the contention on behalf of the petitioners that it is a non-speaking and non-reasoned order is not correct.
5.2. The next contention made on behalf of the petitioners that the petitioners were not given adequate opportunity and that certain documents which were relied upon by respondent No.5 while passing the impugned orders are not given and therefore the impugned order is in breach of principles of natural justice, has no substance. Firstly. the petitioners had never asked for any document from the Director of Primary Education. The petitioners had also not made submissions for non-supply cf documents. The petitioners had submitted their objections on 27.6.2003. Even in the said objection also the petitioners have never asked for any document nor the petitioners have asked for any time. Therefore, the Contention on behalf of the petitioners, to the effect that the petitioners were neither given adequate Opportunity nor given the documents as asked for and therefore the impugned order is in breach of principles of natural justice, has no substance and the same is required to be rejected.
5.3. The next contention submitted on behalf of the petitioners that it is the Secretary to the Education Department who has jurisdiction under Rule 5 of Schedule "F has also no substance. Firstly. the petitioners had never raised any question with regard to jurisdiction of respondent No.1 at the time of hearing before the respondent No.1. The petitioners allowed the respondent No..1 to passed the order and only when it was found that the order is against the petitioners they have raised the question with regard to jurisdiction of respondent No.1. which is not permitted. Even otherwise, in the impugned order dated 1.8.2003 itself, the respondent No.1 has stated that he has got the jurisdiction and authority under the notification issued by the Education Department of the State Government dated 26.5.2002. Under the circumstances, it cannot be said that the respondent No.1 has no jurisdiction.
6. So far as granting of benefit and protection which is Page 6 of 30 HC-NIC Page 6 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT required to be given under the provisions of the act, Rules and Schedule 'F' are concerned, in the order dated 1.8.2003 itself the Director of Primary Education has taken care to see that the rules are followed and complied with by the management. Under the circumstances, it cannot be said that the impugned order passed by the respondent No.1, considering the number of the students being decreased due to grant of permission to many primary schools in the nearby area, is in any way illegal and/or arbitrary which requires interference of this Court exercising power under Article 226 of the Constitution of India more particularly when the Director of Primary Education has passed the order even to protect the interests of the petitioner also while imposing the condition to comply with provisions of Section 40(b) of the Act, the Rules and Schedule 'F' with regard to protection and grant of retrenchment compensation to the petitioners. Under the circumstances, there is no substance in the present Special Civil Application and the same is required to be dismissed and is hereby accordingly dismissed. Notice is discharged. The ad-interim relief granted earlier stands vacated forthwith.
7. In View of the order passed in Special Civil Application, no orders in the Civil Application No. 7415 of 2004 which is filed by the respondent No.5 for vacating the ad- interim relief granted in the main Special Civil Application. The Civil Application stands disposed of accordingly.
8. The writ applicants herein, being dissatisfied with the order passed by the learned Single Judge referred to above, preferred Letters Patent Appeal No.77 of 2005. The letters patent appeal came to be allowed by an order dated 14th June, 2005. The order reads thus;
"The appellants were appointed as Assistant Teachers in the school which is being managed by Akhand Anand Vidhya Bhavan Trust, Surat (respondent No. 5). In 2003, respondent no. 5 filed an application before District Education Officer, Surat (respondent no. 3) Page 7 of 30 HC-NIC Page 7 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT under Section 40 of the Bombay primary Education Act, 1947 (for short, "the Act") (as applicable to the State of Gujarat) for closure of 8 classes of the School. By that time, the appellants had put in almost 14 years of service. On 18.6.2003, the appellants received a letter from respondent no. 5 intimating them that hearing on the application filed by it for closure of some classes would be conducted by respondent No. 1 on 27.06.2003 and they should remain present before him. On receipt of that communication, the appellants submitted representation dated 27.06.2003 to protest against the proposed closure of the classes. They claimed that the application for closure of some classes was a part of the design of the management to terminate the services of the teachers. They referred to applications dated 30th October, 2001, 24th July, 2002 and 21st March, 2003, addressed to respondent no. 1 with the complaint that the President of the school had threatened the teachers of the primary school to terminate their services and that they were not being paid salary.
After hearing the representative of respondent No. 5, the teachers and respondent no. 3, respondent no. 1 passed order dated 1.8.2003, whereby he sanctioned closure of 8 classes of Akhand Anand Vidhya Bhavan, Surat (Primary school) with effect from June, 2003. The English translation of the relevant extracts of that order is reproduced below:-
"After taking into consideration the details, documents and representations and proposal under reference of District Education Officer, Surat and by virtue of power under notification No. KSH-31-K-SPS- 1099-143 dated 25.6.2002 on the compliance of following conditions, sanction is given to close down one class of Standard - 1, two classes for Standard -2, one class of Standard - 3, one class of Standard - 4, two classes of Standard 5 and one class of Standard - 6, in all
8 classes of Akhand Anand Vidhya Bhavan, Surat Primary School w.e.f. June, 2003.
Conditions:-
1. Provision of Sec. 40B of Bombay Primary Education Act, 1947 shall have to be complied with;
2. The school management shall be responsible for Page 8 of 30 HC-NIC Page 8 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT protection - compensation as per schedule - F, because of this sanction and they will be liable as per their appointment contract conditions. For this, any legal or financial liability will not be of the Government.
3. Besides recognized classes of school, the sanction for one additional class of Standard - 7 shall have to be obtained from District Education Officer, Surat. Otherwise, class shall have to be closed."
The appellants challenged aforementioned order in Special Civil Application No. 14463 of 2003 on the following grounds:
a). Respondent no. 1 did not have the jurisdiction, power or authority to decide the application filed by respondent no. 5 under Section 40 of the Act for closure of the classes;
b). The decision or respondent no. 1 is vitiated due to violation of the rules and natural justice, inasmuch as they had not been given effective opportunity of hearing;
c). The order passed by respondent No. 1 does not satisfy the requirement of a speaking order;
d). That the order for closure of the classes was passed without complying with the procedure prescribed under Rule 5 of Schedule "F" appended to the Bombay Primary Education Rules, 1949 (for short, 'the Rules').
The learned Single Judge rejected all the grounds of challenge. He held that order dated 1.8.2003 passed by respondent No. 1 contained cogent reasons and satisfied the requirement of a speaking order; that the petitioners (appellants herein) are not entitled to question the jurisdiction of respondent No. 1 to sanction the closure of the classes because they had not raised any such objection at the time of hearing, that the plea of non- supply of the documents is not tenable because such a request had not been made before submitting objections dated 27.06.2003. The learned Single Judge further held that the order passed by respondent no. 1 adequately safeguards the interest of the teachers and, therefore, they were not entitled to challenge the closure of the classes.
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Shri Dipak R. Dave, assailed the order of the learned Single Judge primarily on the ground that the conclusions recorded by him on the issue of violation of the rules of natural justice are based on misreading of Rule 5 of Schedule "F" appended to the Rules. Shri Dave submitted that even through Rule 5 does not, in terms, provide for grant of an opportunity of hearing to the teachers likely to be affected by the closure of the school, this must be read as implicit in the language of the Rule. He further submitted that the teachers are entitled to be heard before the authorized officer forwards the application of the management to the Government and they are entitled to represent their cause at the stage of hearing before the State Government.
Shri L.B.Dabhi and Shri B.S.Patel supported the order of the learned Single Judge and argued that in the absence of express stipulation in that regard, the requirement of hearing by the authorised officer cannot be read as a condition precedent to the submission or forwarding of application made by the management for closure of the school or reduction in the total number of classes. Learned Counsel submitted that the appellants are estopped from challenging the order passed by respondent No. 1 on the ground of lack of jurisdiction or violation of the rules of natural justice because they had not raised these objections before respondent no. 1.
We have given our most anxious consideration to the respective arguments. Rule 5 contained in Schedule "F" appended to the Rules reads as under:
"5. Closure of School or Reduction in the total number of classes. No management of recognized private primary school shall effect any reduction in the total number of classes in its school or close down the school without the prior permission in writing of the Government. For this purpose the management shall have to make an application to the Authorized Officer at least six months before the date from which it intends to reduce the number of classes or close down the school. On receipt of such application, Authorized Officer shall hear the management and forward such application with his remarks to Government through the Director of Page 10 of 30 HC-NIC Page 10 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT Primary Education. The Government may in such manner as may be appear to it to be necessary and shall decide whether the application should be granted or refused either in whole or in part."
A careful reading of the above reproduced rule shows that it is couched in negative language and ordians that the management of recognized primary school shall not effect any reduction in the total number of classes in the school or close down the school without obtaining prior permission from the Government. The rule also lays down the procedure which is required to be followed by the management for obtaining the permission. The management has to make an application to the authorized officer at least six months before the date from which reduction in the number of classes or closure of the school is intended to be effected. The authorized officer is required to hear the management and then forward the application to the Government along with his remarks. The Government is empowered to make appropriate enquiry in the matter and then decide whether the application should be granted or rejected either wholly or partly.
In our view, the requirement of hearing the management incorporated in the second part of Rule 5 of Schedule "F" without a corresponding provision for hearing the teachers is clearly indicative of the fact that the rule making authority did not intent to provide an opportunity of hearing to the teachers at the stage of forwarding of application of the management by the authorized officer to the State Government. This appears to be so because mere forwarding of the application of the management does not result in reduction in total number of classes or closure of the school and the teachers employed in the school are not likely to be affected at that stage. Their right to remain in employment is put to peril only if the State Government, after conducting such further enquiry as it may deem necessary, sanction the application of the management. At that stage the requirement of hearing the teachers can be read as implicit. This is precisely what appears to have happened in the present case, when the management of the school informed the appellants that hearing of this application for reducing the number of classes would be held by the respondent Page 11 of 30 HC-NIC Page 11 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT No. 1 on 27.6.2003. Therefore, we are not inclined to accept the plea of the appellants that the order sanctioning closure of 8 classes of the primary school run by respondent no. 5 should be quashed on account of denial of opportunity of hearing to them at the stage of forwarding of application by respondent No. 3.
However, we find considerable merit in the contention of Shri Dave that order sanctioning reduction of 8 classes of the school should be nullified because the appellants were not given an effective opportunity to represent their cause before respondent no. 1. The facts brought on the record of this appeal show that on receipt of the application of respondent No. 5 along with the comments of the authorized officer, respondent NO. 1 fixed the date of hearing 27.6.2003. The appellants were informed about the date of hearing by the management of the school vide letter dated 18.6.2003. It is neither the case of respondents nor any evidence has been produced before the Court to show that letter dated 18.6.2003 sent by the management of the school to the appellants contained an indication about the material produced along with the application made for closure of the classes or that they were otherwise apprised that the particular documents will be relied in support of the management's prayer for closure of the classes. On his part, respondent no. 1 did not give any intimation to the appellants that the management of the school had relied on the particular documents to support its prayer for closure of the classes. This shows that the appellants were through out kept in dark about the material should to be relied by the respondent no. 5 in support of its plea closure of the school and on that account they did not get effective opportunity to counter the claim of the management. Therefore, we are inclined to take the view that the order passed by the respondent No. 1 sanctioning closure of 8 classes of the primary school run by the respondent no. 5 is vitiated due to violation of the rules of natural justice i.e. audi alteram partem.
The requirement of hearing, whether it is express or implied necessarily means an effective opportunity of hearing. If a person is called upon to contest the claim made by another person without being informed of the material sought to be relied in support of the latter's claim, then the opportunity of hearing given by the Page 12 of 30 HC-NIC Page 12 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT competent authority cannot be treated as a substantive and effective opportunity of hearing. This proposition finds support from the judgements of the Supreme Court in Managing Director, ECIL Vs. B. Karunkar - JT 1993 6 SCC 1 and Yoginath D. Bagde Vs. State of Maharashtra (1997) 7 SCC 739.
In view of the above conclusions, we do not consider it necessary to deal with other points raised by the appellants in support of their prayer for quashing order dated 1.8.2003 passed by respondent no. 1.
In the result, the appeal is allowed. The order of the learned Single Judge is set aside. Order dated 1.8.2003 passed by respondent No. 1 sanctioning closure of 8 classes of the primary school run by respondent No. 5 is declared illegal and quashed with the direction that the application made by respondent No. 5 be declared afresh after giving effective opportunity of hearing to the respondent no. 3. The parties are directed to appear before respondent No. 1 on July, 14, 2005. The appellants maintainability of the application filed by respondent No. 5 and respondent No. 1 shall decide the same without being influenced by the observations contained in the order of the learned Single Judge."
9. Pursuant to the order passed by the Division Bench of this Court referred to above, the Director of Primary Education, passed an order dated 29.11.2005 granting permission once again to the respondent No.5 to close down the eight classes subject to certain terms and conditions. One of those terms and conditions is that the closure shall be subject to compliance of section 40(b) of the Bombay Primary Education Act, 1947.
10. It is the case of the writ applicants that although such condition was imposed, yet the respondent No.5 did not comply with the provisions of section 40(b) of the Act.
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11. Hence, this petition.
12. Mr. Dave, the learned counsel appearing for the writ applicants vehemently submitted that the impugned order, although made it very clear that the permission was subject to compliance of section 40(b) of the Act, yet the respondent No.5, with impunity, defied the same. Mr. Dave submits that a false affidavit has been filed by the respondent No.5 stating that they have complied with the provisions of section 40(b) of the Act. He would submit that the orders of termination dated 19.5.2004 are a nullity in view of the order passed by the Division Bench of this Court in the appeal referred to above.
13. Mr. Dave submits that if the respondent No.5 would have complied with the provisions of section 40(b) of the Act, then they would have pointed out the same to the respondent No.1 who, in turn, would not have imposed such condition upon the respondent No.5.
14. According to Mr. Dave, section 40(b) of the Act provides that a teacher, who is sought to be terminated from his or her service, is required to be issued a notice and the teacher has also to be afforded an opportunity of personal hearing. According to Mr. Dave, in the case in hand, no such notices were issued to the writ applicants with a view to give them an opportunity of hearing. Mr. Dave submits that according to the provisions of section 40(b) of the Act, the D.P.E.O has to be approached by the school, who would hear both the parties, i.e., the school as well as the teachers and, thereafter, the D.P.E.O would pass the necessary orders approving the sanction or not.
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15. According to Mr. Dave, since in the case in hand, section 40(b) of the Act has not been followed, the School has not even approached the D.P.E.O for the purpose of approval of the termination orders.
16. Mr. Dave submits that the termination orders have been passed straightway without affording any opportunity of hearing.
17. Mr. Dave prays that appropriate directions or orders be passed to set things right.
18. On the other hand, this writ application has been vehemently opposed by Mr. B.S. Patel, the learned counsel appearing for the respondent No.5. Mr. Patel would submit that there has been an absolute compliance of section 40(b) of the Act. Mr. Patel has placed reliance on the following averments made in the affidavit-in-reply filed on behalf of the respondent No.5.
"That the petitioner no. 1 has in pursuance to the order passed by the management has taken Rs. 82,422/- from the school, petitioner no. 3 has also withdrawn Rs. 82,422/- and petitioner no. 4 has also withdrawn Rs. 82,422/- and petitioner no. 5 has also withdrawn Rs. 82,422/- from the school, which has been paid by the respondent no. 5 Trust hence, have accepted the order of their termination, which is going to the root of the case and the same fact has not been disclosed. On this ground i.e. suppression of material fact which is going to the root of the case, the petition is deserved to be dismissed.
11. The averments made in para 3.15 that the petitioners were not at all heard on merits and the petitioners were kept under the bonafide impression that their application for deferring the hearing would be considered and the petitioners wer not informed that Page 15 of 30 HC-NIC Page 15 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT their application for adjournment of hearing is rejected but it was informed to the petitioners that whatever they want to say, may be given in writing and, therefore, besides one typed representation, hand-written representation was given with specific request to provide documents and for deferring haring till then and the petitioners were informed that appropriate order will be passed and the petitioners were not incorrect and I deny the same. In fact, I was present and petitioners had participated in the hearing and had also contended that because of the change of uniform and running the school in different shifts the number of students is decreased and that has been done intentionally by the management. Hence, it was admitted by the petitioners that number of students and classes have been decreased. The reason for the same is in dispute. In fact, because of the mushroomisation of the primary schools in the area of the school run by the respondent no. 5 trust the number of students had been decreased. The petitioners and other teachers had made sincere efforts to maintain the number of students but could not succeed. The same fact is intentionally not disclosed and with a view to put the management under the pressure the baseless allegations like change of uniform and running the school in two different shifts for the boys and girls had been impleaded, which is not relevant factor for reduction in number of students.
13. The averments made in para 3.18 that petitioners have not been paid their salaries till date is incorrect on part of the petitioners. It is also incorrect on part of the petitioners to state that respondent no. 1 has directed the respondent no. 5 to follow provisions of section 40 B of the Act before terminating services of the petitioners but, till date no notice have been received by the petitioners, is incorrect as earlier notice of terminating service had not been set aside by any competent court. In fact, the notice had been served and the amount payable has been offered and 5 out of 7 petitioners had already received the amount. It is too high for the petitioners to state that they are continued in service and required to be paid the salaries. I state that as they are not at all in service, as their services had been terminated by notice dated 19/11/2003 which is not set aside by any court till today. The averments made in the said para that if the petitioners are not allowed to join the Page 16 of 30 HC-NIC Page 16 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT services, nor they are given their salaries, is self- contradictory as the petitioners are not at all in service since 2003. It isincorrect on the part of the petitioners to state that petitioners are prevented even from entering into the school premises after issuing the order dated 19/5/2004, which cannot be said to be so called termination order. It is also incorrect on the part of petitioners to state that petitioners have not been given their salaries and the petitioners were required to be paid their salaries before hearing could be completed before the respondent no. 1 but that was also not done, is incorrect and I deny the same. In fact, the respondent no. 5 trust had approached the Hon'ble Court by filing an application under Article 226 (3) of the Constitution of India. The petitioners had filed the Contempt Petition and the same had been disposed of and at no point of time the order of termination of services has been set aside by the Hon'ble Court or by any competent court hence, the case of the petitioners regarding salary is misconceived, untenable and hence, I deny the same.
19. The averments made in ground (I) are misconceived and based on legal submission and I am advised not todeal with the same. It is incorrect on the part of petitioners to state that without following the provisions of section 40-B of the Act the petitioners were terminated. In fact, even the respondent no.1 have got no authority to decide the same as the same falls within the perview of the powers of the Tribunal constituted under the Bombay Primary Education Act. It is too high on the part of the petitioners to state that termination order which was passed on the basis of earlier order of respondent no.1 dated 01.08.2003 and since the aid order was set aside, automatically, the termination order would not survive, is totally incorrect interpretation. The respondent no.5 is a public charitable trust and without any income and without taking any work from the petitioners can not be expected to pay the salary."
19. Mr. Patel has also placed reliance on one additional affidavit-in-reply filed on behalf of the respondent No.5, inter aia, stating as under;
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"2. I submit that respondent No.5 had been granted permission for reduction of classes on 1.8.2003. In pursuance of the same permission, there were conditions in the order in which the first condition was to follow the procedure under section 40-B of the Act. From the record, it clearly reveals that respondent No.5 school had served the notice to each of the petitioner and though given proper opportunity of being heard, no reply has been received. In pursuance of the same show cause notice, the proposal has been submitted to the office of respondent No.3. The entire proposal is at page 166 to 179 in the present petition, so the same is not reproduced here.
3. I submit that on receipt of the proposal, respondent No.3 passed the order on 12.5.2004, copy of which is on page 165 accepting the proposal and directing the respondent No.5 to follow the condition No.2. In pursuance of the same, services of the petitioners had put to an end by order dated 19.5.2004 and compensation which was required to be paid as per condition No.2 had been deposited in the account of the petitioners on 28.5.2004. Copy of the statement of bank is appended hereto and marked as Annexure-I to this additional affidavit. The identical order terminating the services of the petitioners had been passed on 19.5.2004. Copy of one of the orders dated 19.5.2004 is appended hereto and marked as Annexure-II to this additional affidavit.
4. I submit that subsequently on 8.6.2004 respondent No.5 received the letter from respondent No.3 but prior to the letter dated 8.6.2004, services of the petitioners had been put to an end and compensation had already been paid. In that event, there was no occasion for respondent No.5 to implement the letter dated 8.6.2004. Against the order of termination, the petitioners had filed Misc. Civil Application No.93 of 2004, but the same has been withdrawn as the final order in Special Civil Application No.16463 of 2003 had been passed by the Honourable Court.
5. I submit that the order dated 19.5.20047 has become final and the same has been passed after following the procedure under section 4.-B of the Act.
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The same is not challenged by the petitioners even though the petitioners had informed th Honourable Court at the time of hearing of Special Civil Application No. 16463 of 2003 regarding pendency of some proceedings before the Primary Education Tribunal.
6. I submit that the order passed by respondent No. 1 dated 1.8.2003 had been set aside by the Honourable Court and fresh order had been passed on 29.11.2005. The same condition had been imposed again, but in fact, the date on which the order had been passed, services of the petitioners were already come to an end by order dated 19.5.2004. In that event, there was no question of following any condition as services had been terminated and compensation has been paid."
20. According to Mr. Patel, an amount of Rs.82,422/- was credited in the account of each of the writ applicants aggregating to Rs.5,76,954/-. The details have been shown at page-186. He, therefore, prays that there being no merit in this writ application, the same be rejected.
21. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether there has been due compliance of the provisions of section 40(b) of the Act at the end of the respondent No.5.
22. So far as providing of opportunity of hearing to the teachers at the stage of forwarding an application of the management by the Authorized Officer to the State Government for closure of the classes is concerned, the same has been dealt with by the Division Bench in the judgment and order referred to above. The Division Bench rejected the plea of the writ applicants herein in the appeal that the order, sanctioning closure of the eight classes of the Primary School run by the respondent No.5, deserve to be quashed on account Page 19 of 30 HC-NIC Page 19 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT of denial of opportunity of hearing to them at the stage of forwarding of the application by the respondent No.5 herein.
23. At the same time, the Division Bench accepted the argument of the learned counsel appearing herein for the writ applicants before the Appellate Court that the order, sanctioning reduction of eight classes of the School deserve to be nullified because the teachers were not given an effective opportunity to represent their cause before the State Authority.
24. I do not propose to go into the issue as regards the legality and validity of the order passed by the Director of Primary Education dated 29.11.2005 so far as granting of the permission for the closure of the eight classes is concerned. However, at the same time, I expect the respondent No.5 to comply with the directions issued therein. I also expect the Director of Primary Education to confirm whether there has been compliance of section 40(b) of the Act at the end of the respondent No.5 as directed by me in the order dated 29.11.2005.
25. Prima facie, I am convinced by the submissions of Mr. Dave that there has been no compliance of section 40(b) of the Act in true perspective. However, I propose to remit the matter to the Director of Primary Education for the purpose of verification whether there has been due and proper compliance of section 40(b) of the Act by the respondent No.5 or not. I may invite the attention of all the respondents to the decision of this Court in the case of Radhanpur Kelavani Mandal vs. Vasantlal Achharatlal Parekh, 2005 (1) GLH Page 20 of 30 HC-NIC Page 20 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT (UJ) 7. I may quote the observations made by the learned Single Judge as under;
"9. With respect to the first contention of the learned Counsel for the petitioners, it is not seriously in dispute that the provisions of Section 40B of the Bombay Primary Education Act in so far as the same lay down the procedure to be followed before termination of a teacher are pari materia with the provisions of Section 36 of the Gujarat Secondary Education Act. Learned Counsel for the petitioners has fairly stated that Section 36 of the Gujarat Secondary Education Act have been interpreted by this High Court wherein by judgment dated 8th March, 1979 while deciding Special Civil Application no.652 of 1979, the learned Single Judge of this High Court in the case of SHARDA EDUCATION TRUST v. KIRITKUMAR CHIMANLAL SHELAT AND OTHERS, was pleased to hold that even where the competent authority has granted permission for closing down some of the classes which leads to the action of the management to terminate the services of the teachers, procedure as laid down in Section 36(1) of the Gujarat Secondary Education Tribunal Act is required to be followed. It is also not in dispute that the decision of the learned Single Judge in the case of SHARDA EDUCATION TRUST's case (Supra) came to be confirmed by the Division Bench of this Court vide order dated 25th July, 1979 while deciding L.P.A. no.174 of 1979.
10. I also find that while deciding Special Civil Application no.3271/1992 by judgment dated 29th July, 1994, the learned Single Judge of this High Court in the case of SHREE CHUDA EDUCATION TRUST v. SMT. RAJBALA K. GOHIL AND OTHERS, was pleased to come to the conclusion that the provisions of Section 40B of the Bombay Primary Education Act are pari materia with the provisions of Section 36 of the Gujarat Secondary Education Act. The learned Single Judge in the said decision of SHRI CHUDA EDUCATION TRUST (SUPRA) was, therefore, pleased to apply the ratio of the decision in the case of SHARDA EDUCATION TRUST (SUPRA) to the provisions of Section 40B of the Bombay Primary Education Act also. Learned Counsel for the petitioners, however, has sought to draw distinction with respect to the provisions of Bombay Primary Education Act by Page 21 of 30 HC-NIC Page 21 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT urging that in the Bombay Primary Education Act under Schedule "F" to the Bombay Primary Education Rules, it is provided that management of a private school shall not terminate otherwise than as a matter of penalty the services of any permanent trained teacher without previous permission of an Administrative Officer and that the teacher to be so terminated shall be entitled to compensation as provided in the said Rule. It is the case of the counsel for the petitioners that in view of the said provisions under Schedule "F", the provisions of Gujarat Secondary Education Act cannot be held as pari materia with the provisions of Section 40B of the Bombay Primary Education Act since the entire scheme of the Act under the Bombay Primary Education Act is vitally different from that of Gujarat Secondary Education Act. He has, therefore contended that since the petitioners have already complied with the requirements of payment of compensation to the teachers concerned there was no necessity to give an opportunity as required under Section 40B of the Bombay Primary Education Act before terminating the services of such teachers. I am unable to accept the contention of the learned Counsel for the petitioners. Besides being bound by the law of judicial precedents, I am also in respectful agreement with the view of the learned Single Judge expressed in the decision of CHUDA EDUCATION TRUST (Supra) and find that the provisions of Section 40B of the Bombay Primary Education Act are pari materia with the provisions of Section 30 of the Gujarat Secondary Education Act in so far as they pertain to procedure to be followed before terminating the services of a teacher. The presence of Rule 13 under Schedule "F" of the Bombay Primary Education Rules, in my view, would not make any material difference. Compliance thereof would not obviate the requirements of following the procedure laid down under Section 40B of the Bombay Primary Education Act. Obviously, the requirements of Rule 13 of Schedule "F" are in addition to, and not in substitution of the procedural requirement of Section 40B of the Bombay Primary Education Act, since by way of the schedule the provisions of Section 40B of the Act can be supplemented and not supplanted. In the result, the first contention of the learned Counsel for the petitioners cannot be accepted. I accordingly find that, before bringing about a valid termination of the services of the teachers concerned, the petitioners were required to Page 22 of 30 HC-NIC Page 22 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT follow the procedure as laid down under Section 40B of the Bombay Primary Education Act, in the present case, even when the termination was sought to be brought about on account of decision to reduce the classes for which permission was granted by the State authorities and which would have led to closing down the entire primary section.
11.1 As noted earlier, upon being given permission to reduce the classes/ close down the primary section, the petitioners had issued a notice dated 20th May, 1992 to concerned teachers calling upon them to show cause within ten days as to why their services should not be terminated. Immediately thereafter, on 21st May, 1992, the petitioners approached the District Primary Education Officer and sought permission to terminate the services of the teachers concerned. Under Section 40B(1)(a) of the Bombay Primary Education Act, it is provided that no teacher of a recognized private primary school shall be dismissed or removed or reduced in rank; nor his services be otherwise terminated until he has been given by the Manager an opportunity of showing cause against such action proposed to be taken and the action proposed to be taken in regard to him has been approved in writing by the Administrative Officer of the School Board. Under Clause B of subsection (1) of Section 40B, it is provided that the Administrative Officer shall communicate to the Manager of the school in writing his approval or disapproval of the action proposed within a period of 45 days from the date of receipt of his proposal. Subsection (2) of Section 40B provides that where the Administrative Officer fails to communicate either approval or disapproval within a period of 45 days as specified in Clause B of subsection (1), the proposed action shall be deemed to have been approved by the Administrative Officer on the date of expiry of the said period.
11.2 Thus, before terminating the services of a teacher, he has to be given an opportunity of showing cause against such proposed action. In the present case, the show cause notice in question was issued on 20th May, 1992. The respective teacher was given time for a period of ten days to give his explanation as to why his services should not be terminated. Without waiting for any Page 23 of 30 HC-NIC Page 23 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT response from the teachers and even without waiting for the said period of ten days to be over the petitioners straightway approached the District Primary Education Officer on the very next day , that is, on 21st May, 1992 seeking approval for the proposed action to terminate the services of the teachers concerned. Thus, the petitioners obviously issued the show cause notice with a prejudged mind and even without ascertaining the response from the teachers proceeded to apply for approval of the proposal to terminate their services. This, in my view, would not meet with the requirement of an opportunity of showing cause being given to the teachers concerned which is a precondition and procedure to be followed before terminating the services of the teachers as provided under Section 40B of the Bombay Primary Education Act. Thereafter also, the representation of the teachers dated 26th December, 1992 does not appear to have been taken into account and the management appears to have proceeded ahead with their decision to terminate their services. In this view of the matter, I find that the Education Tribunal was correct in concluding that the petitioners have not followed the procedure laid down under Section 40B of the Bombay Primary Education Act before terminating the services of the teachers. Therefore, the failure on the part of the District Primary Education Officer to respond to the request of the petitioners to grant approval to the proposed action of termination within a period of 45 days as required under the Act would be inconsequential since I find that from the very inception, the action of the petitioners was illegal, being in contravention of the mandatory requirements of Section 40B of the Bombay Primary Education Act."
26. I may also invite the attention of the respondents to the decision of this Court in the case of Natvarbhai Purshottambhai Patel vs. Secretary, Pariraj High School, 1979 (2) GLR 697. I may quote the observations as under;
"[8] The legal position, however, has undergone a sea change since the enactment of the Act. The right of a school management inherent in the relationship of master and servant to fire a members of teaching or non-
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teaching staff of a registered private secondary school subject at the highest to the conditions of contract is now severely restricted by the provisions of sec. 36 (1) which has been superimposed by the legislature. Besides, under sec. 38 (1), the Tribunal has been constituted as the authority for the decision of any dispute including dispute arising out of an alleged wrongful, unlawful of unjustified termination. Under sec. 38 (2) read with section 40 (1), jurisdiction of the State Government and of the Civil Court to decide such a dispute has been expressly taken away. Under sec. 39 (4), duty has been cast upon the Tribunal to entertain and decide, inter alia, disputes of the nature referred to in sec. 38 (1). Under sec. 39 (8), the decision of the Tribunal has been made final and it has been provided that no suit shall lie in any civil court in respect of the matters decided by it. Under sec. 39 (9). widest jurisdiction has been conferred upon the Tribunal to give suitable directions as to reinstatement when termination is found to be wrong, unlawful or otherwise unjustified. Under this branch of law, therefore, having regard to the provisions of Secs. 36 (1), 38 (1), 39 (4) and 39 (9), a member of teaching or nonteaching staff of a registered private secondary school, who is wrongfully dismissed, is entitled to a declaration of unlawful termination and restoration to service and other consequential benefits such as back wages etc. It needs to be emphasized, however, that each one of these reliefs, although inextricably interconnected with the other, is an independent relief and that the question of grant of one or the other depends upon considerations relevant to each relief. Undoubtedly, the relief of declaration is the main relief and, therefore, unless the termination is found to be illegal or wrongful or otherwise unjustified, the question of granted, the Tribunal in exercise of its judicial discretion will be required to grant one or more of the consequential reliefs bearing in mind of the circumstances of the case and relevant legal principles. [9] Against this background, let us examine the question relating to award of back wages in the instant case. The Tribunal has, in terms, found the termination to be wrongful, inter alia being in violation of sec. 36 (1) (a). Therefore, the main relief or the relief, which constitutes of foundation for granting the consequential reliefs, has been given to the petitioners and they were entitled to claim the consequential reliefs. However, as the Page 25 of 30 HC-NIC Page 25 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT petitioners found suitable alternative employment meanwhile, they did not press for the relief of reinstatement to which they would have been otherwise entitled because no other exceptional circumstances are pleaded or proved. Could the petitioners, for having voluntarily opted to give up such relief under the aforesaid circumstances, be legitimately penalized by denying to them the other consequential relief of back wages on the sole ground that since no order of reinstatement is made, they would not be paid their full back wages ? Could the school management, which has obviously acted arbitrarily and in patent disregard of statutory provisions, be legitimately allowed to benefit for its wrong by such denial merely because the petitioners, have opted not to press the relief of reinstatement under special circumstances of the case ? Even if the petitioners themselves had not given up the relief of reinstatement but the Tribunal had refused to grant such relief on the ground of their having been gainfully employed elsewhere in a similar position without any loss (assuming that on such a ground, relief of reinstatement could be refused, on which question this Court should not be taken to have expressed any opinion), could the Tribunal at the same time have legitimately refused the just relief of compensation for their wrongful termination ? It is conceivable that this benevolent legislation enacted with the end in view of ameliorating the conditions of service of the much exploited class of secondary teachers has authorised the Tribunal to deny to an aggrieved teacher adequate compensation equivalent at least to full back wages in a case where wrongful termination is found but reinstatement is not ordered under special circumstances, especially when under the ordinary law some compensation at least would have been given and under Regulation 33 a fairly generous compensation is payable to permanent teachers even if termination is in accordance with sec. 36 ? The answers to these questions cannot but be in the negative. In taking the view that it has done, the Tribunal with respect, has failed to appreciate not only the content and extent of the remedy available under the ordinary law but also under the special law which it was administering. The Tribunal also overlooked that once the main relief of declaration of unlawful termination is granted, the right to consequential reliefs arises and that the question of Page 26 of 30 HC-NIC Page 26 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT granting each consequential reliefs has to be independently examined, in the light of the relevant legal principles and on the facts and in the circumstances of each case. The Tribunal further overlooked that mere denial of the relief of reinstatement of a relevant ground does not necessarily disentitle the aggrieved teacher from claiming the relief of just compensation for having been illegally prevented by the management from working and earning unless it is shown that he was gainfully employed during the period of his enforced idleness. In my opinion, therefore, the decision of the Tribunal refusing full back wages to the petitioners from the date of wrongful termination of their services t111 the date of their reemployment proceeds upon a total misconception of law.
[10] The foregoing discussion would show that the decision of the Tribunal, in so far as it refused the relief of full back wages to the petitioners during the aforesaid period, suffers from an apparent error of law and that to that extent it requires to be quashed and set aside. The Tribunal has found that the first petitioner was absorbed in another school with effect from July 25, 1978 and that the second petitioner was so absorbed with effect from July 10, 1978. The petitioners would, therefore, be entitled to full back wages for the period from June 10, 1978 t111 their respective dates of reemployment in another school. It was not the case of the school management before the Tribunal nor it is its case before me that during the aforesaid period the petitioner were gainfully employed anywhere. No other cogent or relevant ground was urged before the Tribunal or before me. It is under these circumstances that this Court is of the opinion that award of full back wages for the aforesaid period is the only just and proper order which could be made. Having regard to the fact that the order of termination was passed in patent disregard of the mandatory provisions of sec. 36 (1) (a) and that the petitioners had to fight their legitimate battle right upto this Court in order to get the relief to which they were obviously entitled, on account of the intransigent attitude of the school management, it would be just and reasonable to direct that the school management shall bear the burden of back wages. The public revenue cannot be saddled with the liability of back wages for the obvious fault of the school management. However, in Page 27 of 30 HC-NIC Page 27 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT order to ensure that the relief granted by this Court is not frustrated and that the petitioners have not st111 to fight a further battle in order to recover back wages from the school management, the third respondent herein is directed to pay to each petitioner the amount of back wages calculated in accordance with the aforesaid directions and to deduct the amount so paid from the next instalment of the grant payable to the school management. The payment instalment of the grant payable to the school management. The payment will be made within a period of one month from the receipt of the writ. The first and second respondents will give discharge certificate and service books to the petitioners bringing the same in accordance with this decision and if the service-books are already given to the petitioners, they will be corrected accordingly. Writ will issue accordingly to the respondents as expenditiously as possible.
[11] Before parting with the case, it requires to be mentioned that on behalf of the school management a lame attempt was made to attack the finding of the Tribunal with regard to the violation of the provisions of sec. 36 (1) (a). The argument advanced in this behalf was that the petitioners were in any event heard by the third respondent before he permitted closure of classes by his order dated April 11, 1978 and that, therefore, the petitioners were already afforded a reasonable opportunity of being heard before the termination was made. This is a somewhat extra-ordinary argument. Sec. 36 (1)(a) in terms provides that the person whose services are to be terminated must be given by the manager a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The opportunity has to be afforded before the action is taken and not thereafter. Besides, it has to be afforded by the manager and not by some other person. In the instant case, no opportunity was afforded by the manager before the order of termination was passed. Therefore, the school management cannot take shelter behind the hearing given by the third respondent, which was in a totally different context, namely, in regard to the application of the school management for closure of certain classes in the school."Page 28 of 30
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27. In view of the above, this writ application is disposed of with a direction to the Director of Primary Education to call upon the respondent No.5 to explain in what manner section 40(b) of the Act has been complied with. The Director of Primary Education shall also hear the teachers in this regard and take into consideration the materials and their submissions as regards the non-compliance of the provisions of section 40(b) of the Act. In the event if the Director of Primary Education, State of Gujarat comes to the conclusion that his order dated 29.11.2005 has not been complied with in true perspective, then he shall recall the order dated 29.11.2005 granting permission to the respondent No.5 for the closure of the eight classes and take appropriate steps in that regard in accordance with law so far as the service conditions of the writ applicants are concerned. Let this exercise be undertaken at the earliest and be completed within a period of two months from the date of the receipt of the writ of the order.
28. With the above, this writ application is disposed of.
29 So far as the connected petition is concerned, the same is filed by the petitioner who is the respondent No.5 of the Special Civil Application No.10111 of 2006. This petition is filed under Article 227 of the Constitution of India, calling in question the legality and validity of the order passed by the Gujarat Primary Education Tribunal dated 19th March, 2010 in Applications Nos.38 to 43 of 2007.
30. The issue raised before the Tribunal was one relating to the unpaid salary. The Tribunal, by the impugned order, Page 29 of 30 HC-NIC Page 29 of 30 Created On Wed Jul 06 00:11:20 IST 2016 C/SCA/10111/2006 JUDGMENT allowed the applications filed by the teachers and directed the petitioners to make the necessary payment towards the salary.
31. Having heard the learned counsel appearing for the parties and having considered the materials on record and also keeping in mind the discussion in the connected writ application, I am of the view that no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order.
32. As a result, this petition fails and is hereby rejected. Rule is discharged.
(J.B.PARDIWALA, J.) Vahid Page 30 of 30 HC-NIC Page 30 of 30 Created On Wed Jul 06 00:11:20 IST 2016