1. This petition filed under Article 226/227 of the Constitution of India is directed against the judgment and order dated 17.3.1992 passed in Application No.702 of 1990 by the Gujarat Higher Secondary Education Tribunal ["the Tribunal" for short] whereby the order dismissing the respondent No.1 from service of the school as a teacher was quashed and set aside and the respondent No.1 was ordered to be reinstated in service with full back wages.
2. Respondent No.1 joined the services of the petitioner school somewhere in the year 1975 and while serving as a teacher, he applied for the post of Head Master which was advertised by the Management of the School. He was interviewed by the selection committee along with the other eligible persons but was not selected. One Shri S.N. Jain whose name was recommended by the selection committee was appointed as Head Master. In the year 1989, departmental inquiry was initiated against the respondent No.1 on the charges of dereliction of duty, irregularity in coming to the school, lack of punctuality and diligence in work, inefficient teaching work and slapping the head master of the school, Shri S.N. Jain. The respondent No.1 submitted reply and denied the said charges. However, the Management did not accept it and initiated departmental inquiry. Inquiry Officer submitted his report dated 12.12.89 recording finding that the charge of slapping the Head Master of the School Shri S.N. Jain on 18.9.1989 was proved. The management of the school accepted the said finding recorded by the inquiry officer and issued show cause notice to respondent No.1 proposing punishment of dismissal from service. After considering the reply of the respondent No.1, the Management decided to impose the proposed penalty and referred the matter to the District Education Officer for his approval as per the requirement of section 36(1)(b) of the Gujarat Secondary Education Act, 1972 ("the Act" for short). The District Education Officer approved the proposed punishment of dismissal and thereafter, vide order dated 30.8.1990, the management of the school imposed penalty of dismissal against the respondent No.1. Against the said order of dismissal, respondent No.1 had preferred application before the Tribunal under section 38 of the Act. The Tribunal allowed the said application and set aside the order of dismissal which came to be challenged by the petitioner by filing the present petition.
3. As could be seen from the record of this case, the petition was earlier allowed by the learned Single Judge vide order dated 11.2.1998 and the judgment and order passed by the Tribunal was quashed and set aside, mainly on the ground that the Tribunal has no jurisdiction to re-appreciate the evidence, to record its own finding and to substitute the finding recorded by the inquiry officer and also on the ground that there was no complaint as regards non observance of the principles of natural justice or due procedure established under law.
4. The above said judgment and order passed by the learned Single Judge was carried in appeal by respondent No.1 by filing Letters Patent Appeal No. 268 of 1998. The Hon'ble Division Bench allowed the said appeal filed by respondent No.1 and quashed and set aside the judgment and order passed by the learned Single Judge and remanded the proceedings of the petition again to the learned Single Judge for a fresh adjudication in light of the principles laid down by the Division Bench in S.S.K. Trust versus PN Patel, reported in 1977 (18) GLR page 615 by holding that the restrictive interpretation given by the learned Single Judge to the ambit and scope of the Tribunal's power under section 39 runs contrary to the law laid down by the Division Bench in SSK Trust (Supra). This is how the matter is now placed before this Court.
5. The inquiry officer in his report stated that the management examined two witnesses one Mr. Mundra and the second one is Mrs. Pushpaben Gour. Both are eye witnesses to the incident of slapping Mr. S.N. Jain, Head Master of the School. Witness Mrs. Pushpaben Gour has not been cross examined by respondent No.1. From the side of respondent No.1., three witnesses were examined. Witness Shri Dinesh Ameta stated that no incident had happened as alleged. He stated that respondent No.1 had taken tea, water with him during the recess and they were together from 7.13 a.m. to 12.30 p.m. Other two witnesses stated that they did not see happening of the event of slapping to SN Jain by respondent No.1 RR Pandey. In the ultimate conclusion, the inquiry officer has stated that the incident of slapping is proved beyond doubt as it took place in presence of two eye witnesses.
6. The Tribunal however recorded in its order that it perused the deposition of the head master and two eye witnesses very minutely and it found the discrepancies in their evidence. It also recorded that the inquiry officer did not thought it fit to discuss the defence of respondent No.1 that it was out of vengeance that the Head Master was activated to remove the delinquent by concocting story of slapping. The Tribunal then came to the conclusion that since the disciplinary action rested only on one charge of indisciplined and rude behaviour in slapping the Head Master and when that charge has not been sufficiently proved, it cannot upheld the action of the school management and ultimately the Tribunal allowed the application of the respondent No.1.
7. Learned Advocate Mr. Abhishek Mehta for the petitioner management has made following submissions :
(1) That the Tribunal has exceeded in its jurisdiction in reappreciating the evidence and substituting its own finding in place of the finding reached by the Inquiry Officer.
(2) Under the Scheme of the Act, though the Tribunal can decide the dispute between the parties by exercising the power under sec. 38 of the Act, that would not give power to the tribunal to assess and appreciate the evidence on record of the inquiry officer and to reach a different finding than that of the inquiry officer simply because the tribunal was of the view that there was discrepancy in the evidence of the eye witnesses and the inquiry officer did not discuss the defence of respondent NO.1 as regards alleged act of vengeance on the part of the head master.
(3) That the tribunal is not empowered to disturb the finding recorded by the inquiry officer who found respondent no.1 guilty of the charge of slapping the headmaster on conjectures and surmises when the finding recorded by the inquiry officer is on the basis of the evidence of two eye witnesses. In inquiry proceedings, strict procedure analogous to the Evidence Act is not to be strictly adhered to. On preponderance of probabilities, on examination of the statements of the witnesses, when the inquiry officer has found the charge proved against the respondent no.1, the tribunal under the purported exercise of powers under section 38 of the Act cannot unsettle such finding by observing that excepting the words of the parties, there is nothing else to support the one or the other version and the inquiry officer was required to perform very delicate exercise of analyzing the evidence very closely and the inquiry officer has not undertaken such task. By making such vague observations, the Tribunal ought not to have discarded the finding arrived at by the inquiry officer based on the statement of two eye witnesses.
(4) Respondent No.1 has chosen not to cross examine second eye witness Ms. Pushpaben Gour, therefore, evidence of the second eye witness has remained uncontroverted. This eye witness has clearly stated in her statement before the inquiry officer that she saw respondent no.1 slapping Shri SN Jain. Therefore, even if no other witness is to be considered by the inquiry officer, on the sole version of one eye witness, the charge of slapping the Head Master Shri SN Jain can be said to be proved. Version of the sole eye witness was enough for the inquiry officer to reach his conclusion. In the present case, not only on the basis of statement of one eye witness, but considering the evidence of two eye witnesses, inquiry officer has come to the conclusion that the charge against the respondent no.1 is proved beyond doubt. The Tribunal therefore cannot stretch its jurisdiction to unsettle such finding of the inquiry officer on conjectures and surmises and if the tribunal is permitted to substitute its view where no other view is possible on the basis of such evidence of the eye witness, the very sanctity of the proceedings before the inquiry officer would be at stake and in every case, the tribunal will start interfering with the finding recorded in the domestic inquiry.
(5) There is no flaw in inquiry and decision making process is according to law and the DEO having approved the proposed decision, the Tribunal committed grave error of jurisdiction in setting at naught the finding of inquiry.
(6) Learned Advocate Mr. Abhishek Mehta has relied on the following judgments in support of his arguments :
* Shriji Vidyalaya and Anr. vs. Patel Anil Kumar Lallubhai & Anr. - JT 1998 (8) SC 460.
* Kendriya Vidyalaya Sangathan & Anr. Vs Satbir Singh Mahila - AIR 2008 SCW 1790.
* Ramanlal R.Khorsma i/C. Principal Vs. Virabhai Talsibhai Parmar, MANU/GJ/0262/2004.
* Lalit Popli vs Canara Bank & Ors. (2003) 3 SCC 583.
* State of Rajasthan vs BK Meena & Ors. (1996) 6 SCC 417.
* State of Haryana & Anr. vs. Ratan Singh (1977) 2 SCC 491.
* Workmen of Balmadies Estates vs Management, Balmadies Estates & Ors. (2008) 4 SCC 517.
* Hombe Gowda Educational Trust & Anr. vs. State of Karnataka & Ors., (2006) 1 SCC 430.
* Mahindra & Mahindra Ltd. vs. NB Narawade (2006) 3 SCC 134.
* Principal Secretary Government of AP & Anr. vs. M. Adinarayan (2004) 12 SCC
579. * UP State Road Transport Corporation vs. Subhash Chandra Sharma & Ors., AIR 2000 SC 1163.
He further relied on the judgment of the Allahabad High Court in case of Rama Shankar Pandey and others v. UP Police/Station Officer, PS Kotwali, 1995 AIHC 2926 to point out that where ever there is Supreme Court judgment, learned Single Judge should follow the judgment of the Supreme Court judgment even if there is larger bench judgment of the very high court if the issue is similar before the larger bench and before the Hon'ble Supreme Court. He, therefore, submitted that though the Hon'ble Bench has reversed the earlier judgment of the learned Single Judge and remanded the matter for fresh decision,but in view of the judgment of Hon'ble Supreme Court in case of Shriji Vidyalaya (Supra), in respect of this very provision of the Act, holding that the Tribunal cannot go into the matter and give its finding and substitute the punishment, this Court should quash and set aside the judgment rendered by the Tribunal as the tribunal has exceeded the jurisdiction by re-appreciating the evidence and substituting its finding in place of the finding recorded by the inquiry officer.
8. As against the above said submissions made by the learned advocate for the petitioner, learned advocate Mr.Asim Pandya for the respondent No.1 has made following submissions :
(1) The Tribunal has got wide jurisdiction under section 39 of the Act to examine the legality, propriety and justness of the inquiry conducted by the inquiry officer.
(2) It has jurisdiction to come to its own finding and conclusion after appreciating and examining the evidence on record of the inquiry proceedings.
(3) Jurisdiction of the tribunal to re-appreciate the evidence and substitute its own finding is well recognized in a judgment of SSK Trust Case (Supra). As per his submission, the decision in case of SSK Trust and the judgment of the Division Bench of this Court in Letters Patent Appeal are the precedent on the matter at issue about the jurisdiction of the tribunal. As per his submission, there is no ratio laid down by Hon'ble the Supreme Court in case of Shriji Vidyalaya (supra) and, therefore, as per the Supreme Court judgment in case of Uttranchal Road Transport Corporation Vs. Mansaram Nainwal reported in AIR 2006 SC 2840 and in the case of M/s. Zee Tele Film Limited and another Vs. Union of India and others, reported in AIR 2005(SC)2677, this Court is required to follow the precedent and, therefore, the Tribunal is having power and jurisdiction to reach to its own finding after examining the evidence which the tribunal having done so and having reached to its own finding,this court while exercising the powers under Article 226/227 of the Constitution, should not interfere as this Court is having very limited powers to interfere under Article 226/227 of the Constitution, with the finding recorded by the Tribunal.
(4) The Tribunal is exercising original jurisdiction of resolving the disputes between the teacher and management and if two views are possible on the basis of the evidence available on record and when the tribunal has taken the possible view, this High Court would not like to disturb such possible view taken by the tribunal unless such view taken by the tribunal is found to be perverse or any serious error of law is pointed out which is not the case here.
(5) The Hon'ble Supreme Court in the judgments in the case of Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram reported in AIR 1987 SC 117 and in the case of V.S. Kuttan Pillai Vs. Ramakrishnan and Another reported AIR 1980 SC 184 held that unless there was flagrant violation of law or miscarriage of justice, it is not for High Court to interfere with under Article 226/227. Learned advocate Mr. Pandya submitted that this Court would not like to interfere with the possible view taken by the tribunal. The Tribunal used the phrase "to the hilt". As per the Oxford Dictionary, the word hilt would mean the charge is not proved completely or thoroughly. Thus, the tribunal did not apply strict standard of proving the charge beyond reasonable doubt for coming to its own conclusion. But on the basis of the evidence, the charge was not found sufficiently proved and, therefore, Tribunal came to conclusion that dismissal based on the report of the inquiry officer was bad in law.
(6) The tribunal has considered the testimony of the witnesses and has found discrepancies in the evidence of eye witnesses and has also found that there is nothing shaky about the witnesses examined by the delinquent and the tribunal has given fine reasons why the report of inquiry officer should not be relied on. The tribunal having considered and examined the evidence, found that except the words of the parties, and other witnesses, there is nothing else to support the conclusion or version and looking to the earlier enmity between the head master and the delinquent, the inquiry officer ought to have closely examined the evidence adduced before him but the inquiry officer has failed to undertake such task and the action being taken as vengeance against the delinquent, the tribunal was justified in substituting its own view which was the only possible view and conclusion given by the tribunal was just and proper and within its jurisdiction, therefore, this court may not exercise its extra ordinary power to disturb the finding and conclusion reached by the tribunal.
(7) DEO approved on irrelevant consideration and without application of mind, charge not proved is also taken into consideration.
9. Learned Assistant Government Pleader Mr. Rahul Dave appearing for respondent No.3 has, while adopting the submissions made on behalf of the petitioner, submitted that the charge of slapping the Head Master Shri SN Jain is clearly proved against respondent No.1 on the basis of the version of eye witnesses and the Inquiry Officer having recorded the clear finding on the basis of such evidence of the eye witnesses, it was not open to the tribunal to reappreciate and substitute its view in place of the view of the inquiry officer in exercise of the powers under sec. 39 of the Act. Learned AGP Mr. Dave has also urged that the power with the tribunal to decide the dispute between the teacher and management would not take into its sweep the substitution of finding reached by the inquiry officer automatically. The tribunal can substitute its finding only when it finds that either there is no evidence to support the charge or evidence was not at all reliable to prove the charge but the tribunal cannot re appreciate so as to record the finding of disapproval to the view taken by the inquiry officer just because it felt that there were words against words between the parties and another view was possible. He, therefore, submitted that the tribunal having committed gross error in exercising the jurisdiction, this court can certainly interfere with the judgment rendered by the tribunal while exercising the powers under Article 226/227 of the Constitution of India.
10. From the arguments advanced by learned counsel for the parties and on perusal of the record, following two main questions arise for consideration of this Court:
(1) Whether the Tribunal was within its jurisdiction in appreciating and examining the evidence to record its own finding and conclusion ?
(2) When on the basis of appreciating the evidence, the Tribunal has reached to the possible conclusion that the charge against respondent No.1 cannot be said to be proved, is it open to this Court to interfere under Article 226/227 of the Constitution of India ?
As regards question No.1 about jurisdiction of the Tribunal, Hon'ble Division Bench in the judgment in the above-referred Letters Patent Appeal has quashed the judgment of learned Single Judge by holding that restrictive interpretation given by learned Single Judge to the ambit and scope of jurisdiction of Tribunal under Article 39 of the Act, runs counter to the judgment of S.S.K. Trust (supra). Division Bench has considered the judgment of the Hon'ble Apex Court in the case of Shriji Vidhyalaya (supra) and had followed the judgment in the case of S.S.K. Trust and held that the ambit and scope of jurisdiction of the Tribunal under Article 39 is very wide and it can re-appreciate, examine and substitute its own findings and reach to its own conclusion and can alter the order of punishment as the Tribunal is exercising the original jurisdiction. Relevant discussion of the Hon'ble Bench in the above referred Letters Patent Appeal reads as under:-
"In view of this settled legal position of the interpretation of the analogous schemes, it is obvious that the two provisions can be harmonised only in the manner we have done by holding that at the approval stage prima facie case has to be sen and the enquiry would be a limited enquiry and not a full enquiry on merits. It is only when a dispute is raised after termination that the wide jurisdiction of the Tribunal is attracted to decide whether the termination of service is wrong, unlawful or not justified and whee a full inquiry even by reappreciating evidence unrestricted by any management function doctrine is permission for the Tribunal which can even modify the punishment. The whole jurisdiction of the Tribunal is to pass a just order bearing in mind the four-fold interests involved in the dispute. Therefore, such a just order of reinstatement with back wages would necessarily imply power in the Tribunal to apportion the compensation amount. Whenever compensation is to be apportioned the settled legal position is that the apportionment is by taking into account the blameworthiness. The Tribunal is given jurisdiction to pass a just order in the larger interests so that justice is done both to the management and the teacher concerned and the educational interests prosper. When the order of back wages has to be passed in such grant-in-aid schools, the entire salary of the teachers being paid from the public grant, the burden must be justly apportioned. The Tribunal would have to see that the guilty party bears the burden of such back wages. Therefore, the school management can be made personally responsible by the Tribunal by exercising a just discretion when justice can be done only in that manner as for wrongs or perversity or mala fides of the management which takes action in absence of any prima facie case, the public should never be made responsible to bear this burden of the back wages. That would be paying premium to the arbitrary, high-handed and mala fide conduct of the management. The very distinction which we have made between limited scope of the enquiry on the doctrine of management function and the full inquiry on merits after reappreciation of the entire evidence by passing a just order even when misconduct is proved or by interfering wit the punishment at the final stage when a dispute has arisen in regard to termination of service would show that when the management acts arbitrarily in a highhanded manner by way of victimisation or in a perverse way or passes punishment which is out of all proportion to the blameworthy conduct or acts in contravention of the principles of natural justice or without holding a fair enquiry as required by law or flouting the fetter of previous approval, such action would justify the Tribunal apportioning the blame by suitably modifying the direction about the back wages so that the management might have to pay personally in fit cases. Even in order to save a hard-hit, ill fated poor teacher from suffering further starvation because of the weak finances of the management, the tribunal may have to give suitable direction by requiring the educational authorities to make payment to the teachers directly from the grant. Therefore, the legislature has advisedly invested the Tribunal with a very wide jurisdiction to do complete justice in the matter by enabling the teacher to have recourse to this efficacious, adequate, cheap remedy in supersession of the ordinary Courts of the land so that they would have a proper security of tenure and arbitrary right of firing a teacher by the management would be effectively checked from being abused so as to subserve the larger public interest. The Tribunal would, therefore, have to give just directions for such back wages at the time of reinstatement keeping in mind the facts and circumstances of each case so that real and complete justice is done bearing in mind these guidelines so that this wide power is exercised in public interest to guarantee security of tenure to the weak, hard-hit teachers while granting this cheap efficacious relief under secs.38 and 39. If the matter is looked at from this angle, both the provisions in secs.36 and 38 would be properly harmonised and there would be no duplication and overlapping and this interpretation would completely fit in the context and setting of this whole scheme and give full effect to the intention of the legislature to remedy the situation which had arisen from the teacher's conditions being previously regulated only under the administrative instructions issued under the grant-in-aid Code. The appellate decision also would be final but only to that limited extent as the finality if for that different purpose only at that stage when fetter is operating only on the management function, and such a decision would not be final so as to exclude full enquiry on merits after the service is actually terminated so that justice would be done to the teacher as aforesaid."
It appears to us that attention of the learned Single Judge was not drawn to the judgment of the Division Bench and this appears to be the reason why the learned Single Judge concluded that the jurisdiction of the Tribunal under Section 38 read with Section 39(9) is limited and is akin to the Tribunals constituted under the Administrative Tribunals Act, 1985. This is borne out from the following extracts of the order under challenge.
"The question that necessarily arises is whether the learned Tribunal was acting within its jurisdiction in reappreciating the evidence, led in course of disciplinary proceedings, and in substituting the findings recorded by the Inquiry Officer by its own. The scheme and the purpose of the Act is similar to that of the Administrative Tribunals Act, 1985. The jurisdiction of the civil court to settle, decide or deal with any question which is required to be settled, decided or dealt with by the Tribunal is expressly barred; the decision of the tribunal is final and cannot be questioned in any Civil Court. Besides, in my view, there is no provision in the Act which suggests that the Tribunal can sit in appeal over the findings recorded by the inquiry officer in course of domestic trial. The Tribunal could not have reappreciated the evidence and substituted the findings recorded by the inquiry officer unless such findings were found to be based on no evidence, or on extraneous material, or were perverse. The Tribunal could not have come to a different conclusion, merely because it was possible to do so, and substituted the conclusions drawn by the Inquiry Officer. I cannot accept the contention of Mr.Mishra that the Tribunal is supposed to exercise appellate jurisdiction under section 36(5) of the Act. Sub-Sec.(5) of Sec.36 of th Act provides for an appeal against the order of an authorized officer (i.e. DEO in the present case) granting or refusing the approval under section 36(1)(b) of the Act. Thus, said appellate power is required to be exercised in respect of the order of the authorized officer and not the order of the school. In my opinion, the approval of the authorized officer is made the condition precedent only with a view to avoiding any possibility of arbitrary or discriminatory action by the registered private school. It is merely one more safeguard provided against any arbitrary or malafide action being taken by the registered school for extraneous consideration or with ulterior motive. It, therefore, cannot be said that the Tribunal has jurisdiction to reappreciate the evidence and to record its own findings and substitute the findings recorded by the Inquiry Officer by its own. If such powers were conferred upon the tribunal, virtually all the disciplinary proceedings would be required to be reconducted before the tribunal. I am, therefore, of the view that the tribunal while exercising its jurisdiction under section 36(5) of the Act or 38(1) of the Act, has to exercise the jurisdiction of that of judicial review. Further, the Tribunal has also erred in holding that the charge was required to be proved to the hilt. It is well settled proposition of law that in a domestic enquiry, the strict requirement of proof, as in the case of criminal trial, is not necessary."
In our opinion, the restrictive interpretation given by the learned Single Judge to the ambit and scope of the Tribunal's power under Section 39 of the Act runs contrary to the law laid down by the Division Bench in S.S.K. Trust Vs. P.N. Patel (supra).
11. In Shriji Vidhyalya (supra), there appears to be no analysis of the provisions of the Act, so as to decide the ambit and scope of jurisdiction of the Tribunal. In the said case, applying the principle laid down in the case of Union of India Vs. Parma Nanda reported in J.T. 1989 (2) SC 132 and B.C. Chaturvedi Vs. Union of India and others, reported in J.T. 1995(8) SC 65, it was held that the Tribunal could not substitute its punishment in place of punishment given by the management.
12. In the case of Kendriya Vidhalaya (supra), the charge of physical assault on the Principal was proved and still the Tribunal interfered with the punishment which was not approved by the Hon'ble Supreme Court. In the case of Ramanlal R. Khorsma (supra), this Court held that the Tribunal recorded that when the charge against the delinquent was proved, it could not have then interfered with punishment. In the case of Lalit Popli (supra), the Hon'ble Supreme Court held that when High Court exercising the powers under Article 226, it cannot sit in appeal on the decision of the domestic inquiry and that of lower authority if there is no error of law or procedure leading to manifest injustice or violation of the principle of natural justice.
13. In the case of State of Haryana (supra), the Hon'ble Supreme Court has held that departmental inquiry is not bound by strict rules of Evidence Act, but fair play and natural justice. Only total absence but not sufficiency of evidence before the Tribunal is the ground for interference by the Court. In the case of Principal Secretary (supra), it is held that the scope of judicial review cannot be extended to the examination of the correctness of the charge as it is not in appeal but only a review of the matter in which the decision was arrived at. In my view, any of the above-referred decisions, cannot be said to be precedent on the issue in question. The Hon'ble Supreme Court in the case of Uttranchal Road Transport Corporation Vs. Mansaram Nainwal reported in AIR 2006 SC 2840 has held that decision is a precedent on its own facts. The only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason, it is important to analyse a decision and isolate from it the ratio decidendi. A decision is an authority for what it actually decided. Enunciation of the reasons or principle on which a question before a Court has been decided is alone binding as precedent. In another decision of the Hon'ble Supreme Court in the case of M/s. Zee Tele Film Limited and another Vs. Union of India and others, reported in AIR 2005(SC)2677 the Hon'ble Supreme Court has held that a decision is not an authority for the proposition which did not fall for its consideration. In this case, the decision in the case of SSK (supra), followed by the Hon'ble Bench in the above-referred Letters Patent Appeal, is issue about the jurisdiction of the Tribunal raised before this Court. Therefore, the said two decisions are precedents for the purpose of deciding the ambit and scope of the jurisdiction of the Tribunal. The decision in the case of Shriji Vidhyalaya (supra) was not directly on the point and it was on the facts of its case before the Hon'ble Supreme Court as regards the substitution of punishment by the Tribunal. I am, therefore, bound to follow the judgment rendered in the above-referred Letters Patent Appeal as the same is the precedent on the issue of jurisdiction involved in the present case. I accordingly follow the same precedent and am of the opinion that the Tribunal was within its jurisdiction in appreciating and examining the evidence on record to reach its own findings and ultimate concision.
13.1. This brings me to the second question as regards the jurisdiction of this Court under Article 226 of the Constitution of India, to interfere with the judgment and order passed by the Tribunal, which has on examination and appreciation of the evidence found that the charge was not established against respondent No.1 and did not uphold the action of the school management of dismissing respondent No.1 from service.
13.2. By now, it has been well settled that this Court while exercising the powers under Article 226/227 of the Constitution of India against the judgment and order delivered by the Tribunal cannot sit in appeal to find out as to whether the view taken by the Tribunal on appreciation of the evidence is proper or not. This Court cannot be examine the facts and evidence on record to arrive at a conclusion as to whether the Tribunal has committed any error in appreciating the evidence to find out whether the conclusion reached by the Tribunal is proper or not. Judicial Review permissible by this Court under Article 226/227 of the Constitution of India is as to whether the Tribunal has exercised its jurisdiction and power in flagrant violation of any law or in breach of the principles of natural justice or in total lack of jurisdiction or when the Tribunal having concurred that the charge is proved, still it interferes with ultimate punishment.
13.3. In the present case, to decide whether the Tribunal has committed any such error, as stated above, relevant observations and findings recorded by the Tribunal are required to be noticed and they are stated as under:-
"In support of his case the applicants examined himself on oath. On behalf of the opp. school the then H.M. Shri S.N. Jain was examined. The back-drop of the dispute is required to be stated in order to understand the background. The applicant has been working as an asstt. teacher in the opp. school for last about 15 yrs. He is a double post-graduate teacher with the training qualification of B.Ed. He is the senior most teacher in the school. When in or about October 1986 the then H.M. of the school left, the applicant was given charge of the administration of the school w.e.f. 4.10.86. Admittedly, w.e.f. 29.10.86 the applicant had worked as I/c. H.M. for about 10 months. He continued in that position upto 5.8.87. Then again he was the I/c. H.M. for the period between 22.7.88 and November 1988. There is nothing on record to show that during these 2 tenures of I/c. H.M. there was any cause of complaint regarding the work or behaviour of the applicant. During this tenure that above-mentioned Shri S.N. Jain who became H.M. w.e.f. November 1988 was working as a junior teacher. As an I/c. H.M. the applicant had occasions to give memos, to the above mentioned Shri S.N. Jain in connection with some indiscipline and dereliction of duties by the said Shri Jain. Shri Jain in his deposition initially denied to have received any such memos but when he was confronted with his reply to such memo, he had to admit that he had received at the hands of the applicant some memo. This reply of Shri Jain to the memo given by the applicant is exhibited at Ex.W. The opp. School carried out the procedure for selection and appointment of a regular H.M. in or about November 1988. The applicant the above mentioned Shri Jain and some other candidates were interviewed. As has been stated hereinabove, the applicant was the senior most, was qualified and had the experience as an I/c. H.M. of the opp. school for about an year a half. However, in the interview the above mentioned Shri S.N. Jain was selected and appointed as the H.M. naturally, there was some heart-burning so far as the applicant and some other teachers are concerned. The applicant along with some five teachers represented against the selection of Shri Jain as the H.M. This representation has been produced at Ex.A. Some 7 teachers of the school also represented to the D.E.O. regarding the selection. This representation is posted at Ex.B in which some allegations were made against Shri Jain. The applicant had also filed an application before this Tribunal being application no.1084/88 making a grievance that his seniority and eligibility were ignored and Shri Jain was wrongly selected and appointed as H.M. But as the post of H.M. is a selection post ultimately the applicant withdrew the said application. It is in this manner that Shri S.N. Jain took charge as the H.M. and continued as H.M. w.e.f. November 1988.
After Shri S.N. Jain's taking over as the H.M. appears that some teachers felt that Shri Jain was rude and insulting in his behaviour towards them and therefore, these 8 teachers had to resort to action in the form of mass C.L. The applicant was amongst these 8 teachers. This mass C.L. report is exhibited at Ex.C on which the H.M. Shri S.N. Jain has endorsed that the cause is not proper and so the leave is not permitted. Thereafter, the applicant was served various memos dt. 15.12.88, 29.12.88, 6.2.89, which are produced at Ex.Y collectively. Thus, the applicant and the then H.M. Shri S.N. Jain were at loggerheads. In this background it was alleged by the then H.M. Shri S.N. Jain that on 18.9.89 the applicant had the audacity to slap him in the school premises."
"In the instant case, there are 2 contradictory versions. Excepting the words of the parties and the witnesses there is nothing else to support one or the other version. In such circumstances, the inquiry officer is required to perform a very delicate exercise of analyzing the evidence very closely. Unfortunately, the inquiry report does not indicate that the inquiry officer has undertaken such exercise."
"I have perused the deposition of the H.M. and the two witnesses very minutely and I find the following glaring discrepancies:
(1) In the complaint at Ex.V which the H.M. made immediately after the happening of the so-called incident, the H.M. has stated that he was slapped in the presence of Shri Mundra, Pushpabahen and Madhubahen. In the deposition before the inquiry officer at page-6 of Ex.X (being the Rojkam of inquiry) he has stated that only two persons Shri Mundra and Pushpabahen witnessed the incident. Neither Madhuben mentioned in the contemporaneous complaint at Ex.V has neither been mentioned nor has she been examined.
(2) In the cross-examination of the H.M. at page-9 of Ex.X the H.M. states that the clerk informed him at 10.15 that "Shri Pandey (delinquent) has not yet come, perhaps he is about to come". However, the clerk Shri Mundra in his examination-in-chief states that he was informed by Shri Pandey (delinquent) that he is going home and may not come if there is some work and if he will come, he will come by 10.20. The clerk further states that I informed the H.M. Shri Jain that Shri Pandey (delinquent) may not come as he has informed him that he may not come. Thus, the version of the H.M. and Shri Mundra is quite contradictory on the point as to whether the delinquent did not come without informing or whether he had informed that he may not come.
(3) The deposition of the third school witness Smt. Pushpa Gaur as recorded on page-17 of Ex.X is as under:
"After slapping Shri Jain Shri Pandey (Delinquent) went in the opposite direction. Shri Jain was disturbed. He went into the office and then came out. I do not know what happened next. I went to my duty to take the class".
When an incident like slapping the H.M. happens it would be against the course of human conduct for a teacher not to follow as to what would happen next. Furthermore, admittedly, at that time examinations were going on. In all the classes invigilators or supervisors had gone to their assigned duty between 10.10 and 10.20. Then there was the occasion for Pushpaben Gaur to go to attend to her duties between 10.25 and 10.30. Therefore, Smt. Gauri's testimony does not sound convincing.
On the other hand, on perusing deposition of the three witnesses represented by the delinquent I do not find anything which is shaky or incredible. Of course, the two teachers Shri Ametha and Shri Joshi stated that till about 10.20 and 10.25 respectively they have not witnessed any such incident though they were near about the staff room. If the case of the school is that it was between 10.25 and 10.30 that the incident occurred then the deposition of Shri Ametha and Shri Joshi would not be of much help. However, the deposition of Mr. Adhav is very crucial. He has deposed that at 10.00 be was outside the office and he was talking with some guests who had come to see him. When the bell rung he along with other teachers took the answer-books and question papers. But since the guests were present, with the permission of the H.M. he sent one Ballusinh as his substitute and after finishing talks with the guests at 10.30 a.m. he left for the class. According to him till this time no incident as has been narrated and alleged by the H.M., had occurred. This deposition is recorded at page 23,24 and 25 of the Ex.X. He was cross-examined by the H.M. and was asked as to how he had sent a peon called Ball Usinh for the work of supervision. Shri Adhav replied in the face of the H.M. that with the H.M.'s own permission he had sent to peon. This story has not been shaken by any evidence like the record of answer-books from the class or by the evidence of any other co-teacher or by the evidence of said Shri Ballusinh. It was the case of the applicant that one Shri Sher Bahadur, a peon in the school was asked by the H.M. to give a statement that he saw the applicant slapping the H.M. but Shri Sher Bahadur refused to sign such a statement because he had not seen anything of the sort. The applicant was to examine the said Shri Sher Bahadur but merely on the plea that on the day when the examination of other witnessed by the applicant was over, Shri Sher Bahadur was not in the school, he was not examined and the inquiry was closed. As a matter of fact, the inquiry officer should have even suo moto given another date for examining the said Shri Sher Bahadur in order to get at the truth. However, the inquiry was closed and the inquiry officer proceeded to prepare his report.
In the above state of affairs I cannot subscribe to the view that the witnesses of the school management are required to be believed and that the evidence of the delinquent is shaky or incredible. In any case, the charge that the applicant had slapped the H.M. on 18.9.89 is not proved to the hilt. When a teacher is to be removed or dismissed after a clean service of 15 yrs; unless the charge is proved to the hilt, the penalty cannot be allowed to operate."
"Curiously enough, though the background was tale-telling, the inquiry officer has not though it fit even to discuss the defence that it was out of vengeance that H.M. was activated to attempt to remove the delinquent by the concocted story of slapping. The D.E.O. who approved the penalty has not discussed the evidence at all. Furthermore, without any discussion, he has even held that the applicant was guilty of not doing the duty which he was assigned and also of stealing answer-book. These charges are not held to be proved even by the inquiry officer. Therefore, less said about the order of the D.E.O. the better.
Under the above circumstances, when the disciplinary action rests only on one charge of indiscipline and rude behaviour in slapping the H.M. and when that charge has not been sufficiently proved, I cannot uphold the action of the school."
Going through the above observations and findings recorded by the Tribunal, it clearly appears that the Tribunal, while exercising the original jurisdiction, has closely examined the evidence on record and found that the findings reached by the Inquiry Officer were not required to be subscribed or concurred. Therefore, it cannot be said that the Tribunal has committed any flagrant violation of law or committed any breach of principle of natural justice or simply interfered with the punishment on irrelevant consideration though it believed that the charge was proved. The Tribunal has recorded specific finding that the charge against respondent No.1 cannot be said to have been proved at all. The Tribunal has found that excepting the words of the parties and witnesses before the Inquiry Officer, there was nothing else to support one or the other version. At this stage, it is required to be noted that before the Tribunal, the respondent No.1 examined himself and on behalf of the school, the then headmaster Shri S.N. Jain was also examined. Therefore, the parties had adduced their own evidence before the Tribunal because the Tribunal was exercising the original jurisdiction. On the basis of the evidence adduced by the parties before the Tribunal, the Tribunal has recorded that respondent No.1 and the then headmaster Shri Jain were at loggerheads and therefore, task before the Inquiry Officer was very delicate and therefore, the Inquiry Officer was required to closely scrutinize the evidence adduced before him. The Tribunal has recorded that the Inquiry Officer has failed to perform the very delicate exercise of analyzing the evidence very closely. The Tribunal, having independently examined and appreciated the evidence on record before the Inquiry Officer, if has reached to its own findings and conclusion, it is not open to this Court to interfere with the above-said findings and conclusion recorded by the Tribunal while exercising the powers under Article 226/227 of the Constitution of India.
14. In view of above, present petition filed under Article 226/227 of the Constitution of India is required to be dismissed. Accordingly, it is dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith. No order as to costs.
Sd/-
(C.L.Soni,J.) an vyas Top