MAHUVA KELVANI SAHAYAK SAMAJ Vs. RASIKLAL K JOSHI

JUDGEMENT

(1.) The petitioners have challenged the common judgment and order dated March 28, 1994 passed by the Gujarat Primary Education Tribunal in application Nos. 72, 73, 74, 75 and 107 of 1992 by which the Tribunal declared that the termination of the services of these respondents-teachers from 30-11-1989 by the petitioner-school management was illegal and that they were entitled to be reinstated in service with all consequential benefits.

(2.) The learned Counsel appearing for the petitioners in this group of petitions contended that the provisions of Sec. 40B(1) of the Bombay Primary Education Act, 1947 were attracted in the instant case because the termination of service of the respondents-teachers in this group of petitions was not by way of any penalty. It was argued that sub-sec. (3) of Sec. 40B of the Act indicated that the words common judgment and order of Gujarat Primary Education Tribunal in Application Nos. 72, 73, 74, 75 and 107 of 1992. "otherwise terminated" occurring in Sec. 40B(1)(a) had a reference to a penal termination only and termination simpliciter was not included in that expression, as a result of which, in respect of termination simpliciter no show-cause notice was necessary to be issued under Sec. 40B(1)(a) of the said Act. It was further argued that the services of these respondents-teachers were terminated since they did not possess the requisite qualifications. Reliance was placed by the learned Counsel on the decision of a single Judge of this Court in Special Civil Application No. 2472 of 1995 decided on 7-8-1995 in support of his contention that it was not necessary to follow the procedure prescribed by Sec. 40B of the said Act which was similar to the Provision 14 of the Gujarat Higher Secondary Education Act, 1972. It was submitted that in the Letters Patent Appeal being L.P.A. No. 905 of 1995, the Division Bench had granted interim relief against the operation of the judgment and order dated 7-8-1995 passed in Special Civil Application No. 2472 of 1995 but thereafter the Hon'ble Supreme Court had in S.L.P. No. 26337 of 1995 ordered notice to issue and granted ad-interim stay of the operation of the order of the Division Bench. It is, however, stated that those proceedings are no longer pending since the matter was settled.

(3.) Admittedly, no show cause notice was issued to these respondents- teachers before terminating their services and this is a ground on which the Tribunal had allowed their applications and set aside the orders of termination of their service. Section 40B(1)(a) provides that no teacher of a recognised private primary school shall be dismissed or removed or reduced in rank nor his service be otherwise terminated until he has been given a show-cause notice against the action proposed to be taken in regard to him and the action proposed has been approved in writing by the administrative officer concerned. This safeguard is not available to a teacher who is appointed temporarily or on a leave vacancy for a period of less than a year. Admittedly, the respondents-teachers had served for a number of years and they were not temporary teachers. Sub-section (3) of Sec. 40B provides that no penalty (being the penalty other than that referred to un sub-sec. (1)) shall be imposed on a teacher of the private primary school unless such teacher has been given a reasonable opportunity of being heard. On the basis of this sub-sec. (3) it was contended that the words "otherwise terminated" occurring in Sec. 40B(1)(a) of the said Act would have reference to termination by way of penalty and therefore, a show-cause notice was not required to be given in cases of termination simpliciter.