Back
Gujarat High Court
Judgename :R.K.Abichandani
MAHUVA KELAVANI SAHAYAK SAMAJ - Appellant
Versus
RASIKLAL K.JOSHI - Respondent
S.C.A. 10826 of 1994
Decided On : 07/18/1996
[Para 3]The area of operation of Sub-sec. (3) of Sec. 40B is entirely different from the area covered by Sec. 40B (1)(a) of the Act. All that the sub-sec. (3) enacts is that even in case of any penalty other than the one which is already covered under sub-section (1)(a) a reasonable opportunity of hearing is required to be given to a teacher. Therefore, in cases, for instance, of imposing penalty of stoppage of increment which will not fall under Sec. 40B (1)(a), a reasonable opportunity of hearing would nonetheless be necessary. This provision can never be construed so as to lead to any inference that the expression be otherwise terminated in Sec. 40B (1)(a) was confined only to penal terminations. The provisions of Sec. 40B (1)(a) of the Act cover specified categories of the action proposed against a teacher and these are : (1) dismissal (2) removal (3) reduction in rank and (4) termination for other reasons. The action of termination of service of an employee who is not a temporary employee has very serious consequence and therefore the Legislature though it wise to include even such cases of termination other than penal termination in the categories for which show cause notice against the proposed action was required to be given. If the termination is penal it would be covered under the expression dismissal or removal and in that event it was not necessary to add the words be otherwise terminated. It necessarily follows that these words were intended to cover even cases of termination simpliciter. It is therefore clear that the procedure under Sec. 40B (1)(a)(i) and (ii) was required to be followed in cases of these respondents teachers as rightly held by the Tribunal.
[Para4](b) New Plea - Petitioner Management did not contend before Tribunal that respondent teachers were not having the requisite qualification - It could not be allowed to raise that question for the first time in the petition - Held, even if this plea is allowed still order of termination not sustainable for want of show cause notice as provided under Sec. 40B (1)(a) of the Bombay Primary Education Act, 1947.As regards the contention that these teachers were not having the requisite qualifications it is clear that no such contention was ever raised before the Tribunal and the petitioner management cannot be allowed to raise that question for the first time in this petition. Even if the question of qualification was involved and was a ground for issuing orders of termination, it was incumbent upon the management to have followed the provisions of Sec. 40B (1)(a) of the said Act.
[Para 5]
( 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 Honble 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.
( 4 ) IT will be noted that the area of operation of sub-sec. (3) of Sec. 40b is entirely different from the area covered by Sec. 40b (1) (a) of the Act. All that the sub-sec. (3) enacts is that even in case of any penalty other than the one which is already covered under sub-se
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
