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1997 Supreme(Guj) 227
Gujarat High Court
Judgename :R.BALIA
B.M.Shah Education Society - Appellant
Versus
Shilpaben B.Chauhan - Respondent
S.C.A. 618 of 1995
Decided On : 05/07/1997
Headnote:Service & Employment — Termination — Fraud or misrepresentation — Necessarily visiting the employee with Civil consequences and permanently stigmatise him — Termination not sustainable without following the rudimentary principle of natural justice of holding regular enquiry — He should be given opportunity to tender his explanation & providing opportunity to tender his explanation with evidence — Even the notice for termination of service was not serviced & facts suggest that decision was already reached to terminate the services of respondent No. 1.
The court in the first instance found that termination of an employee wherein allegation of fraud, misrepresentation or mistakes are stated would amount to visiting the employee with evil consequences and permanently stigmatise him without following the rudimentary principles of natural justice. It would not be an order of termination simpliciter but it would be an order of termination based on the allegations of fraud, misrepresentation or mistake which would disentitle the employee from future employment in any public employment. Such an order therefore cannot be passed without following rudimentary principles of natural justice, namely of informing the party the reason for his termination and providing the opportunity to tender his explanation with evidence and consideration of such an explanation and evidence by the employer. The aforesaid ratio of the decision rather supports the conclusion of the Tribunal that holding of an inquiry before termination of services of an incumbent takes place on the ground of fraud, misrepresentation or mistake is rudimentary.
[Para 9]
Moreover, the chain of events suggests that notice issued on 16.9.1993 was not served. Merely by receiving registered envelopes one does not get to know what is in the cover. Thereafter, it is shown that the notice was again sent on 21.9.1993 under certificate of posting. Under notice, a weeks time was given to reply from the date of receipt of the notice. No attempt has been made to show as to when the notice was actually served. Taking the next day of posting as earliest date on which it could have been delivered, the order has been made on 29.9.1993 i.e. to say on 7th day when the notice could be deemed to have been served on the respondent No. 1 at earliest. It goes to show that a decision was already reached to terminate the services of respondent No. 1. No enquiry was intended to be held and on the expiry of time, as if Shylocks pound of flesh was due, order was issued terminating services reflecting the mind that the management had no intention to adhere to the standards of reasonable opportunity of being heard to be afforded to the incumbent even to the minimum standard envisaged in the decisions of this Court, so stoutly relied on by it for dispensing with such opportunity.
[Para 11]
( 1 ) HEARD learned counsel for the parties. This Special Civil Application is directed against the order of the Gujarat Higher Secondary Education Tribunal dated 17/18. 8. 1994/3. 9. 1994. The petitioner is an Education Society which is running and managing Primary, Secondary and Higher Secondary schools in Bhavnagar city. The services of respondent No. 1 Shilpaben B. Chauhan were terminated by the school management on 29. 9. 1993. That order was challenged before the Tribunal. The Tribunal allowed the appeal and set aside the termination order. The facts giving rise to this petition are : that the respondent No. 1 who is member of socially and economically backward class and holds qualification of M. Sc. (Micro Biology) and B. Ed. , was serving in Secondary School managed by the petitioner since 9. 10. l991. Thereafter in pursuance of advertisement issued in that regard she applied for appointment to post of Assistant teacher (Laboratory) in the Higher Secondary section of the School and on being selected and selection being approved by the District Education Officer, was given appointment with effect from 1. 1. 1993. That appointment was cancelled on the alleged ground that the father of the respondent No. 1 who is Headmaster of the school has obtained appointment by connivance. In this connection it was alleged that initially when the vacancy had arisen in the school for the post of Assistant Teacher (Laboratory) no objection certificate was given by the Department to place the post in general category open for all incumbents. At the same time the Department has also given No Objection Certificate dated 23. 6. 1992 by specifying the vacancy in the subject of English to be reserved for socially economically backward class and the qualification prescribed for such post was B. A. , B. Ed. On representation being made by the Headmaster of the school purporting to be on behalf of management that in the subject of English S. E. B. C. candidates may be hardly available and hence the post in English subject may be kept for general candidates and vacancy of assistant Teacher (Lab) may be kept for S. E. B. C. candidate as according to the headmaster for that category science postgraduate candidates may be available from amongst S. E. B. C. class. Upon this representation, by order dated 26. 6. 1992 the D. E. O. communicated his no objection for exchange of posts in English to general category and the post of Assistant Teacher (Laboratory) from general category to S. E. B. C. category. Thereafter advertisement was issued in Jai Hind on 18. 8. 1992 inviting applications for the post of Assistant Teacher (Lab) in the Higher Secondary Section and the qualification prescribed was M. Sc. (Micro Biology) and B. Ed. (Maths and Science ). The advertisement disclosed that the post is reserved for S. E. B. C. candidate. Interviews were arranged on 6. 10. 1992. District Education Officer had sent his representative. The President of the school management was member of the selection committee. The third member of the selection committee would ordinarily be Headmaster of the institution but since in the present case the Headmaster was the father of the candidate he abstained himself from participating in the deliberation of the selection committee. Instead next senior person in the school sat as a member of the selection committee. It transpires that at the time of interview only one candidate respondent No. 1 appeared before the selection committee. She was selected to be appointed though in the first instance the representative of the district Education Officer who was member of the selection committee, did not sign the recommendations inter alia on the ground that sufficient number of candidates were available, though no such objection in writing were taken. However, before the Tribunal he deposed that at the relevant time he did not sign rojkam of selection because he felt that there should be at least 3 candidates before a selec
