Gujarat High Court
V R Shah Smruti Adarsh Education Trust vs State Of Gujarat And Others on 4 February, 2009
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
SCA/915/2009 1/5 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 915 of 2009
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V R SHAH SMRUTI ADARSH EDUCATION TRUST
Versus
STATE OF GUJARAT AND OTHERS
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Appearance :
MR HEMANG R RAWAL for the Petitioner
MR CB UPADHYAY, ASST. GOVERNMENT PLEADER for Respondent Nos.1-2
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CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
Date : 04/02/2009
ORAL ORDER
1. The petitioner Trust is before this Court challenging order dated 19.03.2008 passed by the District Education Officer, Ahmedabad City, Ahmedabad and also the order passed by the Joint Education Director (Secondary), Gujarat State, Gandhinagar, which was received by the petitioner Trust 01.01.2009, a copy of which is produced at Annexure-A, colly.
2. Learned advocate Mr.Rawal for the petitioner relied upon a decision of this Court in the matter of Satsangi Shishuvihar Kelavani Trust & Ors. Vs. P.N.Patel & Ors., reported in 1977 (Vol.XVIII) G.L.R. 615. Mr.Rawal vehemently submitted that sub- section (2) of Section 36 of the Gujarat Secondary Education Act, 1972 provides for deemed approval to a proposal made by the management. In this regard, Mr.Rawal relied upon observations made by this Court in paragraph No.10 of the decision which reads HC-NIC Page 1 of 5 Created On Fri Sep 02 00:28:56 IST 2016 SCA/915/2009 2/5 ORDER as under:-
"10. The other controversy raised is as to the period of 45 days because under sec. 36(2) the officer referred to in sec. 36(1)(b) is required to communicate his decision within a period of forty-five days from the date of receipt by him of the proposal and if such decision is not communicated to the manager within the said period, the action proposed to be taken under the said clause (b) shall be deemed to have been approved by the said officer. The term 'communicate' would have of course two ordinary literal meanings, both of transmission by the authorised officer and receipt by the management. In Banarasi Devi v. Income Tax Officer, AIR 1964 S.C. 1742, a similar controversy as regards the expression "issuing of a notice" had been considered by their Lordships because that expression also could have both the meanings, of mere sending and actual serving, and their Lordships held that only that meaning must be given which carried out the intention of the legislature and fitted into the context or the setting in which it appeared. In the present case the scheme of this deemed fiction in sec. 36(2) is of the same nature as sec. 65 of the Bombay Land Revenue Code where also the said deemed fiction of a deemed permission for N.A. use is created by the legislature. In Shivpal Singh v. Secretary of State, 26 Bom. L.R. 371 at page 374, their Lordships clearly held that the time-limit had been set out by the legislature for reaching a decision after due enquiry. Therefore, if there was no order after due enquiry within three months, further proceedings of the Collector would be defective and must be taken ton have been entirely beyond his powers. In State of Gujarat v. Patel Raghav Natha, A.I.R. 1969 S.C. 1297, at page 1301, interpreting this identical provision in sec. 65, their Lordships pointed out that under HC-NIC Page 2 of 5 Created On Fri Sep 02 00:28:56 IST 2016 SCA/915/2009 3/5 ORDER sec. 65 of the Code if the Collector did not inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted. This section showed that a period of three months was considered ample for the Collector to make up his mind and beyond that the legislature thought that the the matter was so urgent that permission shall be deemed to have been granted. Their Lordships also insisted upon a reasoned order in such cases. The same would be true even under the present scheme where legislature must be deemed to have treated the matter as so urgent that approval in the form of previous permission is deemed to be granted to the management, if the authorised officer does not communicate his decision within this 45 days' period from the date of the receipt of the proposal by him. He must also hold an enquiry and communicate his reasoned decision within this statutory period. As this is the period provided by the legislature for the operation of this fiction, there must be an element of certainty of the period of 45 days. Once terminal is already fixed of the receipt of the proposal and the other terminal must also be fixed viz. of the communication of the order by sending this order to the management, irrespective of the fact when it actually reaches the management. Any other interpretation would curtail this 45 days' period which the legislature has advisedly allowed to this authorised officer and an element of uncertainty shall be introduced because of the time taken for despatch by reason of postal delay or otherwise. This fiction of the legislature reveals the whole object of this provision that the enquiry which this authorised officer must make for granting his previous approval must be finished up within this 45 days' period as the matter is considered of that urgent nature and as the management has to shoulder the responsibility of continuing the concerned HC-NIC Page 3 of 5 Created On Fri Sep 02 00:28:56 IST 2016 SCA/915/2009 4/5 ORDER employee in service during this period. The legislature having achieve a just balance between the conflicting interests of the management and the concerned teacher, and the expeditious disposal of this approval action being the true object of this provision, the legislative fiction must be given its full play and effect. Such a provision would not be capable of any waiver by the management because on the expiry of statutory period of 45 days fiction would operate by its own force. No doctrine of waiver should be invoked against statutory provision. Therefore, merely because the management participated in the further enquiry or it seeks to avoid the enquiry by prolonging the same, this statutory period cannot be extended. There is also ample evidence in this relevant statutory scheme which leaves no doubt that the approval function is only of a limited enquiry because the final dispute on merits would still be raised and decided under sec. 38(1) when actual termination takes place where a very wide jurisdiction, even wider than the newly enacted sec. 11A of the Industrial Disputes Act, 1947 has been provided. Therefore, this limited enquiry must be held to be a restricted summary enquiry where the doctrine of management function must apply not only before the authorised officer but also before the Tribunal while exercising the appellate jurisdiction of a limited nature only against the order sought to be passed under sec. 36(1)(b) as to whether that fetter on the management's right to fire an employee should be removed or not. The whole scheme, as earlier pointed, is a complete, exhaustive scheme providing for the special rights and this efficacious remedy to help the weaker section of the teachers by imposing this fetter on the management so that until this bar was removed by independent application of mind by the authorised officer of the Board, the employee continued in service. Time limit has been set up to ensure expeditious HC-NIC Page 4 of 5 Created On Fri Sep 02 00:28:56 IST 2016 SCA/915/2009 5/5 ORDER disposal and not with the object as urged by Mr.Mehta to enable an employee to continue in service and to fight till the entire dispute was finally decided on merits by the Tribunal even as to whether the discharge was wrongful, unlawful and unjustified or not. A bare comparison of sec. 36(2) is that if authorised officer fails to communicate his decision within the prescribed period of 45 days' period to the manager, the action proposed shall be deemed to have been approved. Under sec. 36(3) in the context of suspension pending enquiry, failure to communicate ratification of such suspension by the authorised ceasing to have any effect on the expiry of such period........." (emphasis supplied).
In the present case, the facts are required to be taken into consideration. The petitioner Trust sent its proposal on 29.01.2007. If there was no further development, period of 45 days' was to expire on 14.03.2007, but before that, the officer concerned fixed hearing on 13.03.2007. It is not the case of the petitioner Trust that the authorised officer concerned fixed the hearing so as to come out of the statutory period prescribed that of 45 days'. That being so, the action of the petitioner Trust of treating the service of the teacher concerned as terminated on 17.03.2007 cannot be, at this juncture, be appreciated.
The matter requires consideration, hence, RULE.
(Ravi R.Tripathi, J.) *Shitole HC-NIC Page 5 of 5 Created On Fri Sep 02 00:28:56 IST 2016