KANDLA PORT TRUST Vs. K R CHAUHAN

JUDGEMENT

(1.) By way of this petition under Arts. 226 and 227 of the Constitution of India, the petitioner Kandla Port Trust has challenged the judgment and order dated 23.9.1996 passed by the Second Gujarat Secondary Education Tribunal setting aside the order dated 13/14.12.1976 removing Respondent No. 1, Shri K.R. Chauhan from service.

(2.) Brief facts giving rise to the present Special Civil Application are that Bharatiya Vidya Mandir, New Kandla is a registered private school run by Kandla Port Trust, Gandhidham which is a public trust. The respondent Shri K.R. Chauhan was appointed as Assistant Teacher on a probation for a period of two years with effect from 17.11.1969. While he was still under probation on 23.4.1971, the Disciplinary authority, namely, the Secretary, Kandla Port Trust, served a memorandum dated 23.4.1971 informing him of proposed inquiry under Regulation 12 of the Kandla Port Employees (Classification, Control & Appeal) Regulations, 1964. The allegations on which the enquiry was proposed to be held were set out in the statement of allegations enclosed with the said memorandum. It is alleged that the respondent while functioning as Assistant Teacher in the Port Trust School misbehaved with certain girl students as per the facts given in the statement and as such he conducted himself in the manner unbecoming of a teacher of a school and an employee of the Port Trust. The respondent submitted reply to the said notice on 29.4.1971 denying the allegations. The respondent demanded inspection of certain documents referred to in the reply. He also submitted that it would be difficult to reply to the charges levelled against him unless he is furnished with the said documents. The respondent had asked to furnish him copy of (1) the complaint of Kum. Bhagwanti Kalyani (2) complaint of Kum. Kamala (3) complaint of Kum. Chandrika Mulpuri, (4) complaint of Kum. Vijya (5) report of the Headmaster of Port High School (6) any memo issued against him (7) Regulation No. 12 of K.P. Employees Act, 1964. By another letter dated 6.8.1971 respondent No. 1 asked to supply copy of the annual examination programme for the year 1970-71 of Kandla School along with the duty chart of the teachers and/or examinees of the said examination. The Enquiry Officer examined six witnesses, namely : (1) Kum. Bhagwanti Kalyani (2) Shri K.J. Kalyani (3) Kum. Kamala Naraindas (4) Shri Naraindas Changrani (5) Shri J.H. Thacker, Headmaster (6) Kum. Vijaya Naranji Thacker.

(3.) Kum. Bhagwanti Kalyani in her oral statement confirmed that what she had stated in her letter dated 12.4.1971 was true. The witness also stated about the second incident where Mr. Chauhan is alleged to have gesticulated at her and the gestures were peculiar. She also stated that when she was going down through the stairs and Mr. Chauhan going up through the stairs he touched her with his elbow and attempted to pull the handkerchief which was in her hand and further expressed how good she was and he would remember her for ever. She was cross-examined by Mr. Chauhan. On a question put by Mr. Chauhan to her, she replied that the time of incident on the staircase was 9.30 a.m. and there was P.T. examination on that day. Another witness Shri K.J. Kalyani, father of Kum. Bhagwanti Kalyani stated that his daughter had reported the improper conduct of Mr. Chauhan. Some of the other girl students also came to him making similar complaints which related to immorality of Mr. Chauhan. He was also cross-examined by Mr. Chauhan. Other witnesses also made statements almost in the same lines and Mr. Chauhan was also given an opportunity of cross-examining them. The Enquiry Officer also considered defence of Mr. Chauhan to the effect that the allegations were false and fabricated at the instance of Shri Kalyani as he did not like any qualified teacher in the school. He always thought that if any qualified teacher joins, his chance of becoming Headmaster will be ruined. Mr. Chauhan had made a request for re-examination of the witnesses but the same was declined. Dealing with the question of supply of documents the Inquiry Officer said that the report of the complaint and other necessary documents were given to him. On appreciation of evidence the Enquiry Officer arrived at the conclusion that Mr. Chauhan had conducted himself in a manner unbecoming of a teacher. He also found the allegations of misbehaviour proved with the girls, namely Kum. Bhagwanti Kalyani and Kum. Kamala Naraindas. The Disciplinary authority after considering the inquiry report and the defence of the delinquent teacher imposed upon him penalty of withholding of next increment for a period of three years without cumulative effect by order dated 28.5.1975. The petitioner aggrieved by the said order preferred appeal to the appellate authority, namely the Chairman, Kandla Port Trust. The Chairman issued a notice dated 22.12.1975 to show cause as to why the penalty should not be enhanced to dismissal from service in view of the serious nature of the charges levelled against him. The show cause notice was also accompanied by the report of the enquiry. The petitioner was asked to submit his representation within a period of 15 days from the date of receipt of the memorandum. The respondent submitted reply to the said show cause notice. After considering the entire material and while agreeing with the finding of the Inquiry Officer, the appellate authority confirmed the finding of the Inquiry Officer that the respondent Shri Chauhan was guilty of misbehaviour with the girl students inflicted penalty of removal from service. The respondent challenged the said order by way of an appeal before the Gujarat Secondary Education Tribunal. In the opinion of the Tribunal the order of removal was bad being in violation of provisions of Sec. 36(1) of the Act. The Tribunal by judgment dated 11.4.1977 set aside the order of removal and declared that the respondent shall deem to be continued in service and shall be entitled to receive arrears of wages. The management was directed to reinstate him in service forthwith. An opportunity was given to the management to take appropriate steps under the provisions of Sec. 36(1) (b) of Gujarat Secondary Education Act, 1972. The petitioner approached this court by way of Special Civil Application which was registered as Special Civil Application No. 604 of 1977 and the same was rejected by the order of this court dated 20.6.1977. Letters Patent Appeal was preferred against the said judgment which was registered as LPA No. 130 of 1977. The Division Bench disposed of the said LPA by order dated 20.11.1985, on the terms agreed between the parties. By the said agreed order the order of the learned Single Judge as well as the order of the Gujarat Secondary Education Tribunal were quashed and set aside and the matter was remanded to the Tribunal for fresh decision on merits. Liberty was given to both the parties to lead evidence on merits. The Tribunal was to decide afresh the legality of the order of termination and further if invalid whether the respondent employee is entitled to be reinstated and/or to be paid back wages. It was agreed that the Management will not press at any stage before any Court or authority the contention that the Secondary Education Tribunal had no jurisdiction or that the provisions of the Secondary Education Act are repugnant to the provisions of the Major Port Trusts Act. So as the respondent employee shall also not urge or contend at any stage before any Court or authority that the departmental inquiry or the order of removal is violative of the provisions of Grant-in-aid Code or of the provisions of Sec. 36(1) (b) of the Gujarat Secondary Education Act or that the order of removal has been made by a person or authority not competent to do so under Sec. 36 of the Gujarat Secondary Education Act. The Court also clarified that the Tribunal would not consider the contentions or points which the parties have agreed not to urge or contend or press as stated in the order and they shall be treated as given up by the parties. After the remand of the matter to the Tribunal, the Kandla Port Trust Management gave an application raising an issue that the legality of the departmental inquiry should be decided first as a preliminary issue and if the inquiry is held to be illegal, the management be given an opportunity to lead evidence. Said application was rejected by the order of the Tribunal dated 11.8.1988. The petitioner approached this Court by way of Special Civil Application No. 6406 of 1988. The said application was rejected by the order of the Division Bench dated 26.2.1992. Against the said order of the Division Bench of this Court the petitioner approached the Supreme Court by way of Special Leave Petition (SLP) No. 10380 of 1992. The Supreme Court passed the following order : "The Tribunal will first decide the question with regard to the validity of the inquiry held by the appellants. In case the Tribunal comes to the conclusion that the inquiry held was not valid the Tribunal will give opportunities to both the parties to lead whatever evidence they propose to produce and then decide the matter on merits. The appeal is allowed accordingly with no order as to costs.''