Point of Law: Tribunal has exceeded its jurisdiction by setting aside the dismissal order of the respondent No.1 in view of the charges, which were proved against him.

JUDGMENT :

1. The present writ petition emanates from the order dated 28.02.2017 passed by the Gujarat Educational Institutions Services Tribunal, Ahmedabad (for short “the Tribunal”) in Appeal No.173 of 2014 (old Application No.36 of 2010), wherein and whereby the Tribunal has directed the petitioner-Trust to reinstate the respondent No.1 in service by quashing and setting aside his dismissal order dated 10.04.2010 and the order passed by the Commissioner of Higher Education dated 05.04.2010.

2. The brief facts of the case are as under:

2.1 The respondent was serving as an Assistant Teacher in the School run by the petitioner-Trust. He was appointed vide order dated 01.04.1992 and was suspended on 14.04.1994 for serious irregularities committed by him. By the order dated 10.04.2010, the respondent No.1 was dismissed from service, which was challenged by him before the Tribunal by filing an Appeal No.173 of 2014. By the judgement and order dated 28.02.2017, the dismissal order of the respondent No.1 has been set aside by the Tribunal, which has been challenged by the petitioner in the present writ petition.

3. Learned advocates Mr.Rasesh Rindani with Mr.J.K.Parmar appearing for the petitioners have submitted that a show cause notice dated 11.10.2008 was issued to the respondent No.1 containing four charges. A committee was constituted under the Gujarat Secondary and Higher Education Regulations, 1974 (the Regulations) for inquiring into the charges. It is submitted that the respondent No.1 was also represented by one Mr.Revabhai Jesangbhai Chaudhary as his defence representative and the petitioners had also participated in the same. After hearing them, the impugned order of dismissal was passed. It is submitted by the learned advocate Mr.Rindani that after following due legal procedure, the inquiry Committee held all the charges proved against the respondent No.1 and accordingly, he was dismissed from service. Learned advocate, while referring to the impugned order of the Tribunal, has submitted that the Tribunal has set aside the dismissal order on irrelevant grounds. It is submitted that the legality of the inquiry proceedings has been questioned by the Tribunal on incorrect assessment of facts. It is submitted that the observations made by the Tribunal with regard to inquiry proceedings undertaken by the Committee are erroneous. While referring to the rojkam of the inquiry Committee, it is submitted that the Tribunal has fallen in error by observing that there is no signature put on the rojkam by any of the members of the Committee, whereas in fact the rojkam reveals that the same bears the signatures of the members of the Committee as well as representative of the respondent No.1. It is submitted that in fact when an opportunity was given to the respondent No.1 to submit anything more, over and above his statement, he did not avail such opportunity.

3.1 Learned advocate for the petitioners has further submitted that there were three charges levelled against the respondent No.1 with regard to (i) unauthorized absence; (ii) misappropriation of funds of the exam fees of the students; and (iii) irregularity committed by the respondent No.1 by allowing one student of standard XI-B viz. Chaudhary Nainaben Jurabhai to write the paper of English subject from her residence. It is as submitted that the respondent No.1 was habitual in misappropriating the funds of the school and initially, when it was found that he has misappropriated the funds of the school, he was issued a show-cause notice on 29.10.2007 calling upon his explanation with regard to non-deposition of the fees of the students collected by him. It is submitted by the learned advocate that an amount of Rs.29,500/- was not deposited by the respondent No.1 after collecting the fees from the students and when such show-cause notice was issued, by the reply dated 08.11.2007, he has admitted that he has spent the amount of fees and he would not be indulging himself in such mista