SANCHALAKSHRI SHRI DURGA VIDYALAYA Vs. VIJAYKUMAR RAGHUVIRPRASAD MEHTA

JUDGEMENT

(1.) By way of this Special Civil Application under Art.226 of the Constitution of India, the petitioner seeks direction to quash and set aside the order dated 1st September 1997 passed by the Gujarat Secondary Education Tribunal whereby the order of termination of respondent No. 1 dated 15th March 1994 has modified and penalty of stoppage of one increment with future effect is inflicted.

(2.) The brief facts of the case are as under : Respondent No. 1 - Original applicant was declared as surplus teacher on closure of Pallavi Vidyalaya, Paldi, Ahmedabad and was sent to Durga Vidyalaya - the petitioner school to join service with effect from 25th November 1988. His service book was not sent by Pallavi Vidyalaya to the petitioner school after great persuasion as late as on 23rd November 1992. Respondent No. 1 wanted his pay to be fixed as per the revision of the pay-scale in accordance with the recommendations of the 4th Pay Commission. It may be stated that the said recommendations came into operation with effect from 1st January 1986 and in the month of July 1987, the Government had decided to extend the said benefit to the teachers of non-Government secondary schools. However, respondent No. 1 was getting salary in the pay scale of Rs. 1400-2600 at Pallavi Vidyalaya and the petitioner school continued to recommend the said salary to the Government in its regular pay bills on the basis of 'last pay certificate' which has been produced by the first respondent on his resuming duties with the petitioner school. However, when the original service book was received from the Pallavi Vidyalaya by the petitioner, it came to the petitioner's knowledge that in the service book endorsement as regards fixation of salary in accordance with the aforesaid was not signed by the competent authority, namely, District Education Officer or Education Inspector. Similarly, there was no signature of the auditor. The petitioner, therefore, wrote a latter on 31st July 1993 to respondent No. 1 indicating therein that the service book received is not complete; there are certain deficiencies regarding signature of the District Education Officer in the pay fixation as also there is no signature of the auditor and therefore, fixation in the higher pay scale cannot be done. Therefore, respondent No. 1 was instructed to get endorsement completed. Thereupon, respondent No. 1 by his letter dated 4th August 1993 requested the petitioner to hand over the 'last pay certificate' and service book for getting necessary endorsement completed. Accordingly, respondent No. 1 was given his service book, last pay certificate and the original order declaring him as surplus. Respondent No. 1 thereafter handed over original service book and last pay certificate to the petitioner along with his letter wherein he stated that the deficiencies were being removed and what was lacking in the service book has been completed. The petitioner on going through the documents received from respondent No. 1 doubted signatures appearing thereon as genuine as it was not possible to have the said deficiencies removed in such a short period of just 3 or 4 days. Therefore, on 24th August 1993 respondent No. 1 was asked that the signature appeared on the service book is not legible and that in future the papers will have to be submitted to the signature of the Director in which case it is necessary to know the name of the signatory or the authority who signed. Respondent No. 1 was asked to give name of the officer who has signed the service book. He thereupon gave in writing on 24th August 1993 that the signature is that of Education Officer, Shri S. M. Parmar. A letter was, therefore, addressed to Shri Parmar and on verifying from him that the signature found on the documents was not his signature, a show-cause notice was issued to respondent No. 1 on 23rd September 1993. An enquiry was conducted by the Enquiry Committee in accordance with regulations. The Inquiry Committee submitted its report on 6th January 1994. After receipt of the report, the management decided to terminate the service of respondent No. 1 and therefore, a proposal was sent to the District Education Officer along with the report of inquiry. Since nothing was heard from the District Education Officer, the petitioners got deemed approval of the action and therefore, after expiry of 45 days, passed an order terminating respondent No. 1 from service. Respondent No. 1 against the order of termination dated 15th March 1994 approached the Gujarat Secondary Education Tribunal at Ahmedabad. The Tribunal also found the charges proved. It was also expressed that the act on the part of the applicant who happens to be a teacher does amount to a serious misconduct. However, on the quantum of punishment, the Tribunal considering special features of the case modified the order by substituting punishment of one increment with future effect instead of termination. The relevant finding of the Tribunal reads as follows :

(3.) It is contended by Mr. B. J. Shelat, Senior Advocate that the Tribunal committed error in modifying the order of termination without giving an opportunity of hearing to the petitioners on the question of quantum of punishment. The learned Counsel relying on the unreported decision of the Apex Court in the case of Shriji Vidyalaya v. Patel Anil Kumar Lallubhai, in Criminal Appeal No. 6724 of 1983 decided on 20-8-1997 submits that the power to award appropriate punishment vests with the management and the Tribunal cannot exercise the power of interfering with the order of punishment inflicted by the management. It is further submitted that even if this Court feels that the punishment awarded by the management is disproportionate, a direction may be given to respondent No. 2 - District Education Officer to accommodate respondent No. 1 in any other school as the petitioner school has lost confidence in him.