IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/09/2016
SPECIAL CIVIL APPLICATION NO. 9373 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8562 of 2015
YOGESHBHAI AMBALAL PATELâ¦.Petitioner(s) Versus PRESIDENT / MANAGING TRUSTEE & 2â¦.Respondent(s)Appearance:S.C.A. NO.9373 OF 2015:HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1 MR RAVIKUMAR B SHAH, ADVOCATE for the Petitioner(s) No. 1 MR DIPEN C SHAH, ADVOCATE for the Respondent(s) No. 2 S.C.A. NO.8562 OF 2015:HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1 MR RAVIKUMAR B SHAH, ADVOCATE for the Petitioner(s) No. 1 MR DIPEN C SHAH, ADVOCATE for the Respondent(s) No.2 MR NILESH A PANDYA, ADVOCATE for the Respondent No.3
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.The Special Civil Application No.9373 of 2015 is an application under Article 227 of the Constitution of India, calling in question the legality and validity of the order dated 27th March 2015 passed by the Gujarat Educational Institution Services Tribunal at Ahmedabad in new Appeal No.639 of 2014.
3.The case of the petitioner may be summarised as under:
3.1The petitioner was appointed as an âAssistant Teacherâ in the respondent â School from 1st July 1993. The school management terminated the services of the petitioner with effect from 30th April 1998. The petitioner challenged the action of the management by filing an application being the application No.69 of 1998 before the Gujarat Primary Educational Tribunal and prayed for reinstatement and back wages. The Tribunal, vide order dated 21st January 2006, allowed the application and the management was directed to reinstate the petitioner with back wages.
3.2The management, feeling aggrieved and dissatisfied with the order passed by the Tribunal, preferred the Special Civil Application No.6346 of 2006. The said petition was ordered to be rejected by a learned Single Judge vide judgment and order dated 13th November 2008.
3.3The management being dissatisfied with the judgment and order passed by the learned Single Judge rejecting the application, preferred the Letters Patent Appeal No.137 of 2008. The said Letters Patent Appeal came to be dismissed vide judgment and order dated 26th July 2012. The Division Bench, while dismissing the appeal, filed by the management, recorded the following:
â6. For the reasons recorded above, we arrive at the judgment, and pass the order, as under.
(i) The Gujarat Primary Education Tribunal, has not committed any error, in coming to the conclusion that the action of the school management, of terminating the service of the respondent teacher, vide order dated 30.4.1998 was illegal. We find no error in the judgment and consequential order passed by the Tribunal dated 21.1.2006 in Application No: 69 of 1998.
(ii) Learned single judge has also not committed any error, much less any error apparent on the face of record, by not interfering in the above referred judgment and order dated 21.1.2006 passed by the Tribunal.
(iii) The appeal has no merit and the same is dismissed. Interim stay granted earlier, stands vacated.
(iv) The appellant school management is directed to implement the order passed by the Gujarat Primary Education Tribunal dated 21.1.2006, in Application No: 69 of 1998.
(v) At this stage, learned counsel for the appellant school management has requested that the above direction, to implement the order of the tribunal, be suspended for a period of six weeks. The request is accepted and it is ordered that, the direction contained in this order, to implement the order of the Gujarat Primary Education Tribunal dated 21.1.2006, in Application No: 69 of 1998, shall stand suspended for a period of six weeks from today.â
3.4The management being dissatisfied with the dismissal of the Letters Patent Appeal, preferred Civil Appeal No.6463 of 2012 before the Supreme Court. The Supreme Court vide judgment and order dated 14th September 2012 dismissed the appeal observing as under:
â21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim âallegans suam turpitudinem non est audiendusâ. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. (Vide:
G. S. Lamba & Ors. v. Union of India & Ors., AIR 1985 SC 1019
Narender Chadha & Ors. v. Union of India & Ors., AIR 1986 SC 638
Molly Joseph @ Nish v. George Sebastian @ Joy, AIR 1997 SC 109
Jose v. Alice & Anr., (1996) 6 SCC 342
and
T. Srinivasan v. T. Varalakshmi (Mrs.), AIR 1999 SC 595
This concept is also explained by the legal maxims âCommodum ex injuria sua nemo habere debetâ; and ânullus commodum capere potest de injuria sua propriaâ. (See also:
Eureka Forbes Ltd. v. Allahabad Bank & Ors., (2010) 6 SCC 193
and
Inderjit Singh Grewal v. State of Punjab & Anr., (2011) 12 SCC 588
22. Thus, it is evident that the appellant has acted with malice along with respondent and held that it was not merely a case of discrimination rather it is a clear case of victimisation of respondent No.1 by School Management for raising his voice against exploitation.
23. After going through the material on record and considering the submissions made by learned counsel for the appellant and the respondent No.1 in person, we do not find any cogent reason whatsoever to interfere with the aforesaid findings of fact.
24. The appeal lacks merit and is, accordingly, dismissed.â
3.5It appears that upon reinstatement in service, the respondent management thought fit to take into review the work put in by the petitioner for the purpose of ascertaining whether the petitioner should be continued in service or he should be made to compulsorily retire under Rule 34 of the Bombay Primary Education Rules, 1949.
3.6A Committee was constituted for the purpose of evaluation of the work, and the Committee, in its report, recommended compulsory retirement.
3.7Accordingly, vide order dated 22nd November 2013, the petitioner was made to retire compulsorily by paying him three months salary.
3.8The petitioner being dissatisfied with the order of compulsory retirement passed by the management, challenged the same by filing appeal No.639 of 2014 before the Gujarat Educational Institution Services Tribunal (for short, âthe Tribunalâ). The Tribunal, vide judgment and order dated 27th March 2015, dismissed the appeal filed by the petitioner.
3.9Being dissatisfied, the petitioner has come up with this application under Article 227 of the Constitution of India invoking the supervisory jurisdiction of this Court.
3.On 23rd November 2015, the following order was passed:
âRequest of the partyÂinÂperson is declined to represent his case in person, since he does not fall within the criteria which has been set up under the High Court rules. The High Court Legal Services Committee has not permitted him to appear as partyÂinÂperson on account of his ineligibility to appear and has provided him free legal aid in which learned advocate Mr. P.H.Buch presently appears for the petitioner.
Today, the partyÂinÂperson is specifically directed not to make submission. Since he has already been represented by learned advocate. All his submissions shall be made by the learned advocate representing him. Mr.P.H.Buch, learned advocate appearing for the petitioner if requires any documents from the partyÂinÂperson, the same shall be asked through the High Court Legal Services Committee which shall bear the expenses of copies etc. without insisting on the same to be made by the partyÂin person.
Mr.Dipen Shah, learned advocate appearing for the respondents No.1 and 2 at this stage seeks one weekâs time to file his reply. Reply if any to be filed on or before 1st December, 2015. Copy of which shall be furnished to the learned advocate Mr.P.H.Buch. Rejoinder, if any, to be filed on or before 3rd December, 2015.
On completion of pleadings, matter shall proceed on 3rd December, 2015.â
4.On behalf of the management, an affidavitÂinÂreply has been filed inter alia stating as under:
â3 COMPULSORY RETIREMENT UNDER RULE 34 OF SCHEDULE OF BOMBAY PRIMARY EDUCATION RULES, 1949:
I say and submit that the petitioner has been compulsorily retired under Rule 34 of schedule F of Bombay Primary Education Rules, 1949 which provides for continuance of the services of a teacher beyond the age of 55 years subject to review, evaluation and discretion of the school. For ready reference rule 34(1) of schedule F is reproduced as under:
34. Age of superannuation of teachers
(1) An employee shall retire at the age of 58 years. However review of the work will be undertake at the age of 55 years deciding whether he deserves to be continued beyond the age of 55.â
I say and verily submit that petitioners services were evaluated by constituting an independent committee of Mamtaben Barot, and Rajendrakumar Vaidh (Principal. The principal of the school while independently reviewing the services of the petitioner and also concurring with the report of the evaluation committee constituted of Mamtaben Barot and Rajendrakumar Vaidh has submitted a final report to Bhartiya Seva Samaj Trust, which upon being accepted has resulted into compulsory retirement of the petitioner by order dated 22/11/2013 by paying him 3 months salary which has been accepted by him. The copy of final report dated 20/11/2013 submitted by the principal of school â respondent 2 to respondent 1 is annexed and marked with as Annexure R1. The copy of order dated 22/11/2013 compulsorily retiring the petitioner herein from the services as teacher is annexed and marked with as Annexure R2.
4. PROCEDURE FOLLOWED BY SCHOOL â RESPONDENT 2:
I. 22/9/2012 â Petitioner intimidated school authorities and behaved in a rude and insolent manner with the principal, teacher and office bearers of the trust. The respondent 2 immediately issued a letter annexed as Annexure R3 on 22/9/2012 informing of his such misconduct and bad behaviour.
II. 24/9/2012 â Respondent 2 â school intimated petitioner that despite specific instruction to remain present on 24/9/2012 to effect his reinstatement he has wilfully with respondent 2 to remain absent. The petitioner did not cooperate with respondent 2 in carrying out reinstatement as per the orders of the honourable court and various letters came to be should thereafter on 25/9/2012, 27/9/2012, 8/10/2012, 10/10/2012, 13/10/2012. It is submitted that it was only pursuant to appointment of special officer on behalf of municipal board that petitioner could be with great difficulty reinstated in service on 16/3/2013 in the presence of special officer Falguniben Trivedi. The copy of said letters is annexed and marked with as Annexure R4.
III. Continuous and wilful absence after reinstatement
That pursuant to reinstatement on 16/3/2013 the petitioner did not remain present to perform his services till 21/3/2013 whereafter respondent 2 addressed the letter on 21/3/2013 to administrative officer informing of the same. Thereafter petitioner resumed his services from the new session on 10/6/2013 but refused to sign muster roll. Thereafter on numerous occasions the petitioner on 15/6/2013 had left the school premises during school hours without intimating the school authorities or seeking any leave. The same was intimated by the school authority vide letter dated 17/4/2013 and on the same day petitioners offensive and abusive conduct in the office of the school was also videographed. That similarly petitioner remained absent on 14/6/2013, 17/6/2013 and 24/6/2013 without intimating the school authorities or seeking any leave. The copy of various letters written by the school to the petitioner is annexed and marked with as Annexure R5.
IV. VARIOUS COMPLAINTS RECEIVED FROM PARENTS:
I say and verily submit that respondent 2 has received various complaints from the parents of students pertaining to the method, conduct and style of teaching adopted by the petitioner. The parents have alleged that students are being asked to teach other students by petitioner, and he is not performing his duty as teacher of the school and it was also further alleged by some of the parents that petitioner has appointed certain leaders wherein students are appointed to check homework of other students posing considerable consternation and disappointment amidst parents and student fraternity. The various letters received from the parents are annexed and marked with as Annexure R6.
V. Appointment of Evaluation Officer
I say and submit that the principal of the school vide letter dated 9/10/2013 appointed Mamtaben Barot to look into the complaints of the parents against petitioner and prepare a report to the said effect. That the said officer appointed by the school had personal discussion with the parents of the students and the students, to look into the nature of grievance and complaints against the petitioner. That Mamtaben Barot thereafter prepared report in terms of letter dated 9/10/2013 wherein it was shockingly revealed that petitioner is not performing his duties of teaching but has been asking students to teach other students. That the petitioner appointed teach leader and that it was a function and duty of the team leader to carry out the job of teaching. It was further intimated and reported to the school authorities that petitioner was not satisfactorily carrying out his responsibilities of teaching. The petitioner did not even check the homework given by him and appointed team leader to check homework of other students. The copy of letter dated 9/10/2013 and report their under dated 14/10/2013 is annexed and marked with as Annexure R7.
VI. Irregularities in allocation of marks and checking papers
I say and submit that grave and discouraging irregularities came to the forefront when the marks sheets of mathematics, science and environment were again reevaluated by appointing separate teachers, wherein it was discovered that in many cases even though the answers were correct, they were marked as incorrect answer and in some less marks were awarded to students than they would have been entitled to. That such a conduct of the petitioner seriously affected the prospect of many students, who were not only discouraged with the result but had deleterious effect on their outlook towards certain subjects and their capabilities. Therefore the petitioners presence as teacher has head to introduction of despicable methods of teaching to the students and young minds which was counterÂproductive to the institution and the future of the students. The letter dated 6/1/2013 was also received from statutory body â Nagar Prathmik Shikshan Samity directing the school to take appropriate steps as right of students under the Right to Education Act, 2009 has been tempered with. That it was in this background that a committee came to be appointed by letter dated 13/11/2013 for taking appropriate decision under section 34 to Schedule F of Bombay Primary Education Rules, 1949 to evaluate and gauge para meters for continuing petitioner in service. The copy of report dated 25/10/2013 and 26/10/2013 pertaining to reÂevaluation of marks sheets is annexed and marked with as Annexure R8. The copy of letter dated 6/11/2013 from statutory body is annexed and marked with as Annexure R9.
VII. Evaluation report sought by letter dated 13/11/2013:
I say and submit that respondent sought evaluation report from Rajendra Vaidh and Mamtaben Brot for the purpose of reviewing the performance of petitioner so as to consider continuation of his services after the age of 55 under rule 34 of schedule F. The copy of letter dated 13/11/2013 is annexed and marked with as Annexure R10. That report from both the aforesaid officers was received on 16/11/2013 which is annexed and marked with as Annexure R11.
VIII. Independent report by statutory authority
I say and submit that the Nagar Prathmik Shikshan Samiti which is a statutory body under Bombay Primary Education Act, 1949 also appointed its independent officer Kalyansinhy Rathva vide letter dated 25/10/2013 pertaining to the irregularities and the conduct of petitioner herein. That Kalyansinh Rathva by way of an independent report dated 28/10/2013 submitted to the statutory authority stating that continuation of the petitioner is causing grave disservice to the future of students and further infringes their rights under the Right to Education Act, 2009. That the statutory body further directed respondent 2 to take appropriate steps in the matter as per Schedule F of Bombay Primary Education Rules, 1949. The copy of letter dated 18/11/2013 address to respondent 2 is annexed and marked with as Annexure R 12.
I say and submit that petitioners has been served with a copy of order dated 23/11/2013 and 22/11/2013 and has been retired from service compulsory in exercise of powers under rule 34 of schedule F of Bombay Primary Education Rules, 1949 pursuant to payment of 3 months salary.â
5.Having heard the learned counsel appearing for the petitioner appointed by the High Court Legal Services Committee and also the learned counsel appearing for the respondent management and taking into consideration the materials on record, the only question that falls for my consideration is whether the Tribunal committed any error in passing the impugned order.
6.A Division Bench of this Court in the case ofN.P. Mehta vs. State of Gujarat[Special Civil Application No.8483 of 2010 decided on 7th October 2010] has explained the position of law so far as the compulsory retirement in public interest is concerned. The observations made in paras 7 to 9 and para 12 are relevant. The same are elicited as under:
â7. In the case of
Union of India vs. VP Sheth, reported in AIR 1994 SC 1261
the Supreme Court while noticed the requirement of communication of adverse remarks, held that that âunÂcommunicated adverse remarksâ can certainly be considered for exercise of power of compulsory retirement. Aforesaid decision was based on earlier decisions of the Supreme Court in
Baikuntha Nath Das vs. Chief District Medical Officer, Baripada, reported in 1992 (2) SCC 299
and
Posts & Telegraphs Board vs. CSN Murthy, reported in (1992) 2 SCC 317
Having noticed the principles laid down, the Supreme Court jotted down the same at one place in the case ofUnion of India vs. VP Sheth[supra], and observed as follows :Â
2. â¦., this Court evolved the following principles :Â
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short: if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the came may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse, if a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lost their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Thus, it will be evident that the order of compulsory retirement is not a punishment; it implies no stigma nor any suggestion of misbehaviour and, therefore, the question of issuing any show cause notice in the matter of retirement in the public interest does not arise. Similarly, uncommunicated adverse remarks can be noticed for retiring an officer in the public interest.
8.In the case ofBaikuntha Nath Das vs. Chief District Medical Officer, Baripada[supra], the Supreme Court considered the Fundamental Rule 56(j) and Rule corresponding to it and observed that the object and purposes for exercise of such powers are well stated in
Union of India vs. Col. JN Sinha, reported in 1970 (2) SCC 458
and other decisions referred to by the Supreme Court and held as follows :Â
34. The following principles emerge from the above discussion :
i. An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
ii. The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
iii.Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
iv. The government (or the review committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of an performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
v. An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncoomunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
9.The aforesaid decisions were reiterated in the case of
Nawal Singh vs. State of Uttar Pradesh, reported in (2003) 8 SCC 117
From the aforesaid judgment, it will be evident that the principles of natural justice have no place in the context of an order of compulsory retirement, though judicial scrutiny is permissible by the High Court or the Supreme Court. However, in such case, while the High Court would not examine the matter as an appellate Court, it may interfere if it is satisfied that the order is passed (a)mala fideor (b) not based evidence or (c) is arbitrary in a sense that no reasonable person would form the requisite opinion on the given material.â
â12. It is a settled law that this Court under Article 226 of the Constitution cannot sit in appeal. It can interfere if it is satisfied that the order is passed mala fide or not based on any evidence or is arbitrary in a sense that any reasonable person would not form the requisite opinion on the given material. In the present case, apart from the fact that the performance of the petitioner was poor, we find that the order of retirement has been passed on the basis of record of service, any reasonable person would form only one opinion that the officer is a burden on judiciary and not fit to be retained in service. For the reasons aforesaid, no interference is called. In absence of any merit, the writ petition is dismissed. No costs.â
7.The Tribunal, while dismissing the appeal filed by the petitioner herein, took into consideration the Division Bench judgment referred to above and came to the conclusion that the order of compulsory retirement passed by the management in public interest, after evaluation and review of the performance of the petitioner, did not warrant any interference. In my view, all the relevant aspects of the matter were taken into consideration by the Tribunal. 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.
8.The learned counsel appearing for the petitioner laid much emphasis on the observations made by the Supreme Court in the earlier round of litigation, more particularly, the findings recorded that the management had acted with malice and the case was not merely one of discrimination, but was one of victimisation of the petitioner herein by the management for raising his voice against exploitation. The observations of the Supreme Court should be read in the context of that particular matter. By merely relying on such observations, every time the petitioner cannot get away by submitting that he has been victimised by the school management.
9.In the overall view of the matter, I see no good reason to interfere with the order passed by the Tribunal in exercise of my supervisory jurisdiction under Article 227 of the Constitution.
10.As a result, the Special Civil Application No.9373 of 2015 fails and is hereby rejected.
11.So far as the connected petition i.e the Special Civil Application No.8562 of 2015 is concerned, the same has been filed with the following prayers:
â11 (A) Your Lordships may be pleased to direct the respondents to pay the remaining amount pending with the school committee in the pay scale of qualified teachers as per the order dated 06.03.1998 passed by the DEO and as per the interim order dated 05.03.2012 passed in LPA No.1367 of 2008 along with ___% increasing interest;
(B) Your Lordship may be pleased to direct the respondents to pay the salary and remaining amount as per the calculation from May â 19987 as well as the benefits of the higher payÂscale of 9Â20Â31 according to the government prescribed rules and regulations;
(C) Your Lordships may be pleased to direct the respondents to pay the remaining amount as per the provision made to convert total 300 leave including earned leave and halfÂpay leave of the petitioner into cash;
(D) Your Lordship may be pleased to decide the remaining amount pending with the respondent nos.1 and 2 amount as well as in words from 30.04.1998 to till today;
(E) Your Lordship may be pleased to direct the respondent Nos.1 and 2 to pay total Rs.640/Â for which Rs.500/Â towards costs and Rs.140/Â for the bank charges of return of cheque, on account mistake made by the respondent Nos.1 and 2 as per AnnexureÂRÂ23, RÂ24 and RÂ25.
(F) Your Lordship may be pleased to direct the respondent Nos.1 and 2 to pay Rs.5,500/ along with ____% increasing interest as per Annexure RÂ26.
(G) Your Lordships may be pleased to pass such other and further order as may be required in the nature and circumstances of the case.
(H) Cost may be provided for filing of the present petition on account of mistake of the respondents.â
12.I have noticed that there are highly disputed questions of facts so far as this writ application is concerned. I am of the view that the issue raised in this writ application should be looked into by the respondents Nos.3 and 4. The respondents Nos.3 and 4 are directed to look into the averments made in this writ application and thereafter issue appropriate directions to the respondents Nos.1 and 2. Let this exercise be undertaken by the respondents Nos.3 and 4 at the earliest and see to it that an appropriate decision is taken within a period of four weeks from the date of receipt of this order. If any additional information is required from the petitioner, then the petitioner shall be called upon to furnish the same. In any view of the matter, the respondents Nos.3 and 4 shall take appropriate decision and direct the respondents Nos.1 and 2 accordingly.
13.With the above, this writ application is disposed of.
