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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VAIBHAVI D. NANAVATI, J.
Shri Zarola Kelavani Mandal - Petitioner
Versus
District Education Officer & Ors. - Respondents
R/Special Civil Application No. 11938 of 2017
Decided On : 25-07-2024
Approval - Dismissal of Employee - Gujarat Secondary and Higher Secondary Education Act, 1972 - Section 36(2) - The court emphasized the mandatory nature of the 45-day decision period for approval of dismissal, ruling that failure to comply renders subsequent decisions void.
Fact of the Case:
The petitioner, a registered trust managing a secondary school, sought approval for the dismissal of an employee after a departmental inquiry found him guilty of misconduct. The District Education Officer failed to respond within the statutory 45 days, leading the school to dismiss the employee based on deemed approval. The officer later rejected the dismissal after the employee's acquittal in a criminal case.
Finding of the Court:
The court found that the District Education Officer's decision to reject the dismissal after the 45-day period was beyond jurisdiction and thus void. The dismissal was valid due to the lack of timely communication from the officer.
Issues: Whether the District Education Officer's failure to communicate a decision within 45 days constituted deemed approval of the dismissal, and whether the subsequent rejection of the dismissal was valid.
Ratio Decidendi: The court held that under Section 36(2) of the Act, if the District Education Officer does not communicate a decision within 45 days, the proposed dismissal is deemed approved, and any later decision is invalid.
Result: The court quashed the order rejecting the dismissal and upheld the school's decision to dismiss the employee.
JUDGMENT :
Vaibhavi D. Nanavati, J.
1. Heard Mr. R.R. Vakil, learned advocate appearing for the petitioner and Ms. Suman Motla, learned A.G.P. appearing for the respondent nos.1 and 2. Mr. S.M. Kikani, learned advocate for Mr. D.H. Bharwad, learned advocate for the respondent no.3 is not present when the matter is taken up for hearing.
2. The petitioner herein – Zarola Kelavni Mandal is a registered trust and is running Shri H.J. Parikh and Smt. U.M.H. Patel Secondary School at Zarola, Taluka: Borsad, District: Anand. The petitioner is a president of Zarola Kelavni Mandal.
2.1. The petitioner herein is constrained to approach this Court invoking Article 226 of the Constitution of India, being aggrieved and dissatisfied by the order dated 13.06.2017 passed by the respondent no.1.
2.2. The petitioner is aggrieved by the order dated 13.06.2017 mainly on the ground that the petitioner approached the respondent no.1 on 17.12.2015 for granting approval to the proposed punishment of dismissal pursuant to the departmental inquiry initiated by the petitioner wherein, it was held by majority opinion that the respondent no.3 was required to be dismissed from service upon holding departmental inquiry. The said proposal dated 17.12.2015 is duly produced at Annexure-I. Upon the said proposal being communicated to the respondent no.1, respondent no.1 – District Education Officer. That the respondent no.1 has issued notice for hearing after completion of 45 days and the petitioner – school passed the order of dismissal on the basis of deemed approval as per Section 36(2) of the Act.
2.3. After acquittal by the learned Sessions Court by judgment dated 25.01.2017, the respondent no.3 made an application to the petitioner - school for taking him back in the services however, as the school had already passed order of dismissal dated 16.03.2016, in view thereof, refused to allow the respondent no.3 to join the services. The respondent no.3 approached the respondent no.1 and the respondent no.1, by impugned order dated 13.06.2017, rejected the proposal of the petitioner – school dated 17.12.2015 for dismissing the respondent no.3 from the services. Upon an application preferred by the respondent no.3 on 27.04.2017, the respondent no.3 was acquitted by the learned Sessions Court by judgment dated 25.01.2017. By impugned order dated 13.06.2017, the proposal forwarded by the petitioner herein on 17.12.2015 for dismissing the respondent no.3 was rejected by the respondent no.1. The said order dated 13.06.2017 is duly produced at Annexure-A.
3. Mr. R.R. Vakil, learned advocate appearing for the petitioner submitted that the said order dated 16.03.2016 and the consequential order dated 13.06.2017 passed by the respondent no.1 are beyond the period of 45 days and are violative of the provisions of Section 36(2) of the Gujarat Secondary and Higher Secondary Education Act, 1972 (for short, “the Act”). Mr. Vakil, learned advocate submitted that Section 36(2) of the Act provides that the respondent no.1 is required to take a decision as provided under the Section wherein, the proposal which is placed before the respondent no.1 is required to be either accepted or declined.
3.1. It is submitted that to decline the petitioner’s application by order dated 13.06.2017, after the order of acquittal is passed in favour of the respondent no.3, is beyond the scope of the provisions of Section 36(2) of the Act.
3.2. In light of the aforesaid, it is submitted that for the charges levelled against the respondent no.3, the same being grave in nature, the petitioner herein, upon framing of charges and holding departmental inquiry in accordance with the Rules and Regulations, passed an order of dismissal. After the said order was passed, representative of the respondent no.3 communicated to the petitioner on 16.03.2016 to withdraw the consent. It was also submitted by the said representative that the same was signed by the representative because of the pressure put on him forcefully
The court established that the 45-day decision period in Section 36(2) is mandatory, and failure to comply results in deemed approval of dismissal.
Compulsory retirement does not require prior approval under Section 36(1) of the Gujarat Secondary Education Act, distinguishing it from termination and emphasizing the need for procedural fairness.
The court established that compliance with procedural requirements under the Gujarat Higher Secondary School Services Tribunal Act is essential for valid dismissal of a teacher.
Termination of service without inquiry and prior approval violates statutory provisions and principles of natural justice.
The court affirmed that the disciplinary authority's decision, supported by a fair inquiry process, is not subject to re-evaluation by the court unless it is shockingly disproportionate.
The main legal point established in the judgment is that a minority institution is governed by some provisions of the Act and Rules, and the prior approval from the competent authority for terminatio....
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The main legal point established in the judgment is that the prior approval of the Director of Education is mandatory for the termination/removal of an employee of a recognized institution under Sect....
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