Gujarat High Court
Dr Abdulkadar Adam Nawab vs Huseinabai Charitable Trust & 2 on 6 August, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/4044/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4044 of 2010
With
SPECIAL CIVIL APPLICATION NO. 4816 of 2010
With
CIVIL APPLICATION NO. 5287 of 2014
In SPECIAL CIVIL APPLICATION NO. 4044 of 2010
With
CIVIL APPLICATION NO. 5143 of 2014
In SPECIAL CIVIL APPLICATION NO. 4816 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
==========================================================
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 of NO the judgment ?
4 Whether this case involves a substantial question of NO law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== DR ABDULKADAR ADAM NAWAB....Petitioner(s) Versus HUSEINABAI CHARITABLE TRUST & 2....Respondent(s) ========================================================== Appearance:
PARTY-IN-PERSON, ADVOCATE for the Petitioner(s) No. 1 (MR SURESH M SHAH), ADVOCATE for the Respondent(s) No. 1 GOVERNMENT PLEADER for the Respondent(s) No. 3 MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 1 Page 1 of 14 HC-NIC Page 1 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 06/08/2015 COMMON CAV JUDGMENT Since the issues involved in both the captioned applications are interrelated, those were heard analogously and are being disposed of by this common judgment and order.
By way of Special Civil Application No.4044 of 2010 under Article 227 of the Constitution of India, the petitioner calls in question the legality and validity of the order passed by the Gujarat Secondary Education Tribunal, Ahmedabad, in Application No.161 of 2006 and, by way of Special Civil Application No.4816 of 2010, the petitioner seeks to challenge the order passed by the very same Tribunal in Appeal No.6 of 2006. The Tribunal passed a common order disposing of Application No.161 of 2006 and Appeal No.6 of 2006 as well.
The facts briefly stated are as under :
The petitioner was appointed as the Headmaster in the respondent School on 2nd May 2000. The respondent no.1 is a Charitable Trust and runs a secondary school in the name of the Zenith High School in Vadodara. The said school is registered as the grant-in-aid school.
For the alleged acts of misconduct, the petitioner was placed under suspension in July 2002. A regular departmental Page 2 of 14 HC-NIC Page 2 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT inquiry was conducted, and at the end of it, the charges framed against the petitioner were held to be established. The management sought approval of the District Education Officer under Section 36 of the Gujarat Secondary Education Act, 1972, for dismissing the petitioner from service.
It appears that the District Education Officer had declined the approval. The management had, therefore, to approach the Tribunal by way of an Appeal No.5 of 2004.
It appears that the petitioner herein also filed two applications before the Tribunal : (i) Application No.360 of 2005 for non-payment of salary, and (ii) Application No.16 of 2004 challenging the inquiry proceedings.
The Tribunal adjudicated both the applications, and by a common judgment and order dated 29th October 2004, remitted the matter with a direction to complete the inquiry in accordance with the rules within a period of five months. The judgment of the Tribunal was challenged by the respondent no.1 before this Court by filing the Special Civil Application No.15500 of 2004. The petitioner herein also challenged the order of the Tribunal by filing the Special Civil Application No.14876 of 2004. Both the petitions were disposed of by a common judgment and order dated 1st August 2005 with a direction to conduct the inquiry in accordance with the rules.
It appears that thereafter the inquiry was conducted afresh. A three-member inquiry committee was constituted. In all twelve charges were framed against the petitioner. The charges were relating to gross dereliction of duties as the Principal and acts of misbehaviour with teachers, staff-Page 3 of 14
HC-NIC Page 3 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT members, guardians, etc. One of the charges was exhibiting inhumane attitude compelling a guardian of a sick and hospitalized student to appear in the examination.
The petitioner, appearing in person, submitted that the inquiry which was conducted by the three-member committee was quite contrary to the principles of natural justice. He submitted that he was not permitted to cross-examine the witnesses. He submitted that the entire inquiry was conducted with a bias mind. He also submitted that many vital documents were not provided to him. He submitted that he was not given adequate opportunity to defend himself in the inquiry.
On the other hand, Mr.Mehul S.Shah, the learned advocate appearing for the respondent no.2, submitted that there is no substance worth the name in the petitions and the same deserve to be rejected. He submitted that the Tribunal has dealt with all the aspects in details and this Court may not interfere with the well-reasoned order of the Tribunal in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
Having heard the party in person and Mr.Shah, the learned advocate appearing for the respondent nos.1 and 2, the only question that falls for my consideration is, whether the Tribunal committed any error in passing the impugned order.
I have gone through the entire order passed by the Tribunal. I am convinced with the reasonings assigned by the Tribunal. The Tribunal has taken pains to consider each and every aspects of the matter. I may quote the observations made by the Tribunal in paragraphs 7 to 11 as under :Page 4 of 14
HC-NIC Page 4 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT "7. From the facts and submissions of parties noticed above, it is quite clear that this domestic inquiry against the delinquent employee was conducted on remand of the matter by the Tribunal and the Hon'ble Gujarat High Court after setting aside the earlier inquiry proceedings conducted by the management; on the ground of grossly defective inquiry proceedings. The applicant/delinquent employee was holding a very sensitive post of H.M. in the school. Needless to mention that the post of H.M. is of great importance in the present set-up. He is required to act like a coordinator between the management on one hand and staff-members, students, guardians, Education deptt. and the Education Board on the other hand. By doing the balancing act between all these parties he is required to run the school keeping the interests of the students at the top priority. He is required to maintain a decent moral character and behaviour and thus, to command respect among the students, staff and guardians by his nobleness, knowledge and behaviour.
He is also required to do some teaching work in the school. The Regulations have also stipulated several duties that the Principal is required to carry out. Unfortunately, within 3 years of his career as Principal in the respondent school he has come under the clouds of very serious allegations. As briefly enumerated in the earlier paragraph apart from the administrative errors and lapses he is also charged for his arrogant, inhuman and curt behaviour with staff-members, students, guardians etc. He was tried for 12 charges in the domestic inquiry comprising of 3 members as required under Regulations. The school management has examined about 25 witnesses. Though it is argued by the applicant that they were not allowed to be cross- examine, his admission in the evidence before this Tribunal and also the record reveals that he did cross- examine them but some of them have left in the midst on the ground that the irrelevant questions were being asked to them. At the end of the proceedings two members of the inquiry committee i.e. one representative from the panel of Gujarat Secondary Education Board and the management's representative have submitted the inquiry report recording the findings of guilt. The representative of the delinquent employee on the inquiry committee has, however, submitted Page 5 of 14 HC-NIC Page 5 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT inquiry report giving him clean chit. The school management has accepted the majority report and after following the procedure of seeking his explanation and obtaining the approval from the authorized officer the order of dismissal came to be passed and his Tribunal is called upon to examine the legality and validity of the said proceedings. The law on the point is now well- settled. In the matters of this nature the role of the Tribunal is secondary and is limited to the extent of judicial review. The scope of judicial review is limited to the deficiency in decision making process and not the decision. In exercise of judicial review interference with the proceedings is permissible where it is found that the recorded findings are based on no evidence or the findings are totally perverse and/or legally untenable. Once it is found that there is some evidence establishing the charge then no interference is called for. The superior courts have time and again held that while exercising the powers of judicial review, the Tribunal cannot re- appreciate the evidence and come to a different conclusion. It is also well-established that once the charges are found to have been proved the Tribunal cannot alter or interfere with the quantum of penalty stating it to be harsh or disproportionate unless it shocks the judicial conscience. The strict rule of Evidence Act is not to be applied but preponderance of probability is to be considered. The principles of natural justice and fairness in the procedure have to be given more importance and once the inquiry is found to have been conducted in violation of the principles of natural justice and/or the rules of inquiry resulting into the miscarriage of justice or causing gross prejudice then the order of dismissal in the judicial review can be interfered with. The question of adequacy of evidence also cannot be gone into while exercising the powers of judicial review. In short, the deficiency/defect in the process of reaching the decision can be reviewed and not the decision itself. If the illegality, irregularity or irrationality are noticed in the process resulting into grave prejudice to the delinquent employee then only the interference with the order of dismissal is permitted.
Keeping in mind the above-referred parameters/principles enunciated by the Hon'ble Supreme Court and the High Courts in several decisions (some of which have been referred by both the parties Page 6 of 14 HC-NIC Page 6 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT during the course of their arguments). It appears to me that this is not the fit case where any interference is called for.
8. Upon perusal of the record of the domestic inquiry, it appears to me that the same is conducted in accordance with the rules and the principles of natural justice. The management has examined over 20 witnesses in support of the charge-sheet. The delinquent employee was given an opportunity to cross-examine the witnesses and he has also availed that opportunity. It, however, appears that some witnesses have left the cross-examination in the midst because the applicant was asking them irrelevant questions. For instance, as pointed out by the management on page-233, 236 and 243 of the inquiry proceedings thoroughly irrelevant questions were asked by the applicant. The witness was asked to produce the appointment order, xerox copies of the muster-roll and pay bills etc. The cross-examination of the witness is the most important stage. It is through the process of cross- examination only a party can elicit the truth. Having said so, the party asking the questions in the cross- examination is also duty bound to see that only the relevant questions are asked to the witnesses. If the irrelevant questions are put to the witnesses and they leave the cross-examination halfway having been tired of answering such irrelevant questions, it cannot be said that the right of the applicant of cross-examining the witness is violated. Now coming to the applicant's right of presenting his witnesses, it becomes clear from his cross- examination before this Tribunal and also the record that he has never submitted any list of witnesses to be examined in support of his case and there was no request from his side for the same. It is now well- established law that a party which complains about the violation of any provision, has to establish as to what prejudice the said action has caused to him. In the instant case, though it is alleged that the inquiry was conducted in breach of Regulations, upon careful perusal of the record, it does not appear to be so. On perusal of the record, it also appears to me that the delinquent employee has been more keen to raise the technical points rather than making the submissions on merits of the charges. It appears that in the inquiry proceedings the management has not appointed the presenting officer. However, the record reveals that in the meeting Page 7 of 14 HC-NIC Page 7 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT dt. 28.12.05 the request of the Managing Trustee to allow the employee of the school Mr.Hitesh Pandya to work as presenting officer for management seems to have been accepted and he continued as presenting officer for the management. The delinquent employee has also cross- examined him. Though it is contended by the applicant that the charge-sheet was not framed and there was delay in doing so which has violated the Regulations, the record reveals that the charge-sheet is framed after the deliberations in the meeting of the inquiry committee and, therefore, it cannot be said that there was any violation of Regulations resulting into the miscarriage of justice. The applicant has also contended that in some meetings the managing trustee and some other persons were present. The applicant has, however, not pointed out any prejudice that is caused to his case due to their presence. In the examination-in-chief the applicant has mentioned that he was not permitted to have the services of defence representative though demanded. He has, however, not pointed out any such request from the record. Moreover, the procedure of domestic inquiry applicable in the present case does not provide for any such provision. Though it is contended by the applicant that the inquiry was conducted on the basis of concocted documents, he has not been able to establish the same. As regards applicant's contention about the initiation of domestic inquiry by Mr.Bandukwala who is not the authorized person, in my opinion, this contention at this distance of time, more particularly, in view of the judgment of this Tribunal and Hon'ble Gujarat High Court is now not required to be gone into.
9. The delinquent employee has made allegations of mala fide and bias against Board's representative on the inquiry committee Mr.Desai but he has not been able to establish the same and the record does not indicate anything of that sort. Similarly, the delinquent employee has made allegations against the D.E.O. and the clerk of his office about the illegal demand etc. There is no material placed on record even remotely supporting such statements. As stated earlier, the applicant also appears to have filed a criminal case against the D.E.O. and the inquiry officer. He has also made complaint to the Bar Council of Gujarat against some advocates including the one who appears in this matter for the management.
Page 8 of 14HC-NIC Page 8 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT
10. From the record and submissions of parties, I am of the view that the domestic inquiry against the delinquent employee is conducted in accordance with rules by giving him the opportunity to defend his case and, therefore, no interference with the order is called for. As stated earlier, both the parties have relied upon several decisions of Hon'ble Supreme Court and High Courts. As I have given my findings by keeping the law laid down by the Honourable Courts in the aforementioned judgments, I do not feel it expedient to discuss each and every judgment separately.
11. The submission of the applicant about the appointment of management's representative Mr.V.C.Patel not being in accordance with law cannot be accepted because he has been appointed by the management as its representative on the inquiry committee vide letter dt.8.8.05 (Page-56 of the proceedings). As noticed above, the delinquent employee has also challenged the D.E.O's order dt.31.3.06 whereby he has accorded approval to the management's proposal of dismissing the applicant. After the said order was passed, the management has passed the order of dismissal on 3.4.06. In view of this development, the order passed in appeal merges into the order of dismissal and cannot be separately examined. Still, however, upon perusal of the said order, it appears to me that the D.E.O. has considered the relevant aspects of the matter before passing the order. He is required to consider whether the inquiry was conducted in accordance with rules and principles of natural justice and that has been considered by him. I, therefore, do not find any merit in the applicant's submissions against the said order of the D.E.O."
I am not impressed with the argument of the petitioner that the inquiry was conducted in violation of the principles of natural justice. In all cases of domestic inquiry, such argument would be the principal argument.
I also explained to the petitioner appearing in person that the strict rules of evidence are not applicable in cases of Page 9 of 14 HC-NIC Page 9 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT departmental/domestic inquiries. I also explained to the petitioner that the charge against the delinquent has to be established by the employer on the principle of preponderance of probability and not on the principle of proof beyond reasonable doubt.
I heard the petitioner appearing in person at length and to his heart's content. He repeatedly kept on submitting before me about the violation of the principles of natural justice. Except this, there was no other argument canvassed before me. The petitioner vehemently submitted that since the adequate opportunity was not given to him, the impugned order deserves to be quashed. He has placed reliance on not less than twenty judgments of the Supreme Court and the High Courts. One of his contentions was that in the course of the inquiry the Managing Trustee used to remain present and this caused lot of prejudice.
The Supreme Court, in the case of State Bank of Patiala and others v. S.K.Sharma, AIR 1996 SC 1669, laid down few basic principles of natural justice keeping in view the context of disciplinary inquiries and orders of punishment imposed by an employer upon the employee. I may quote those principles contained in para 32 of the judgment :
"32. We may summarise the principles emerging from the above discussion. [These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee]:
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory Page 10 of 14 HC-NIC Page 10 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed.
Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision g expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be Page 11 of 14 HC-NIC Page 11 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it mays the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provisional which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived its then the order of punishment cannot be set aside on theground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not it or that the provision could no be waived by him, then the Court or Tribunal should make appropriate directions [include the setting aside of the order of punishment], keeping in mind the approach adopted by the Constitution Bench in B.Karunkar. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called.
(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice [rule of audi alteram] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity" and no adequate opportunity, i.e., between Page 12 of 14 HC-NIC Page 12 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT "no notice"/"no hearing" "no fair hearing".
(a) In the case of former, the order passed would undoubtedly be invalid [one may call it "void" or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule [audi alteram partem ].
(b) But in the latter case, the effect of violation [of a facet of the rule of audi alteram] has to be examined from the standpoint of prejudice; in other word in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/ Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. . In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
I am of the view that the case of the petitioner at best may fall in clause (3). Clause (3) discussed by the Supreme Court is with regard to the violation of the procedural provisions. The Supreme Court has clarified that except cases Page 13 of 14 HC-NIC Page 13 of 14 Created On Fri Aug 07 02:27:27 IST 2015 C/SCA/4044/2010 CAV JUDGMENT falling under "no notice", "no opportunity" and "no hearing"
categories, the complaint of violation of the procedural provisions should be examined from the point of view of prejudice.
In short, the Supreme Court has laid emphasis to ensure a fair hearing and to ensure that there is no failure of justice.
In the overall view of the matter, I do not find any merit in these applications. It cannot be said that the petitioner have had no fair hearing or that the disciplinary inquiry against him was not a fair inquiry.
In the result, these applications fail and are hereby rejected. Rule discharged. Civil Applications stand disposed of.
(J.B.PARDIWALA, J.) MOIN Page 14 of 14 HC-NIC Page 14 of 14 Created On Fri Aug 07 02:27:27 IST 2015