1. Heard Mr. Majmudar, learned advocate for the petitioner and Mr. Mansuri, learned advocate for the contesting respondents.
2. In this petition, challenge is made to the order passed by the Gujarat Higher Secondary Education Tribunal dated 13.06.2006, whereby, Application No.15 of 2004 filed by the present petitioner challenging the dismissal order dated 13.01.2004 was rejected.
3. The petitioner a teacher, was working in respondent institute, which is a minority institute. The petitioner was served with a charge-sheet dated 25.06.2002, wherein, it was inter-alia alleged that, from 29.11.2001 to 15.12.2001, he had remained absent, without prior permission, and gone abroad to attend 'Umara'. The charge further reads that the petitioner is habituated to remain absent unauthorisedly, repeatedly, and he travels abroad in such unauthorised absence.
4. After conducting departmental proceedings, including giving opportunity of hearing to the petitioner, the charge was held to be proved and ultimately, dismissal order came to be passed. The said dismissal order was challenged before the Gujarat Higher Secondary Education Tribunal as aforesaid and the Tribunal, after going through the record, has by reasoned order dismissed the application filed by the petitioner, which has given rise to this petition.
5. Learned advocate for the petitioner submitted that the order of the disciplinary authority as well as the order of the Tribunal be interfered with by this Court on more than one count. It is submitted that the punishment of dismissal on petitioner is disproportionate since the incident of absence, which led to issuance of charge-sheet was of twenty days only. It is also contended that leave was not refused and therefore, petitioner understood that his leave application has been sanctioned. It is also agitated that on 21.12.2001, after that leave period was over, the petitioner, had gone back to school and petitioner was permitted to resume the duty and on that day, no allegation was made against the petitioner and therefore, misconduct, if any, should deemed to have been condoned by the management and the issuance of charge-sheet was an afterthought exercise by the disciplinary authority. In support of the contention of proportionality, learned advocate for the petitioner has also relied upon the decision of Hon'ble Supreme Court of India reported in AIR 2010 SC 75 and has urged that the punishment order and the order of the Tribunal be set aside.
6. On the other hand, Mr. Mansuri has vehemently opposed this petition and by referring to the affidavit in reply filed by respondent no.3, it is contended that the petitioner was the only teacher in Urdu language and by his remaining absent, repeatedly, without prior sanction, the study of the student was adversely affected and that had bearing on the overall image of the school as well. It is also indicated by learned advocate for the respondent that it is not that once or twice he had gone abroad without prior sanction, but repeatedly and frequently he was going abroad without prior permission of the school management and apart from the fact that it was creating difficulty for running the school, going abroad without prior permission of the management itself is misconduct and this Court may not interfere with the action taken by the Disciplinary Authority.
7. Having heard learned advocates for the respective parties and having gone through the record, I find that the no fault can be found when school management has, in the above fact situation, thought it fit not to continue the petitioner in service as a teacher, who remained absent repeatedly, without any prior sanction and that too for the reason, which can not be said to be emergent or unavoidable. Further, going abroad, that too, to attend religious ceremony, how so pious it may be, can not be termed as such visit, which can be permitted to have been undertaken by an employee without prior permission of the school management, the employer.
8. Further, there is finding of fact recorded by the Tribunal in para-7 of its order as under:
“7. While reading the charges, the past history of the applicant is also to be seen.
In the last column against some of the entries it is written 'sanctioned', however, there is no dispute about the fact that initially those visits were without prior permission, which subsequently, came to be sanctioned. Thus, so far the charge that the petitioner is repeatedly visiting foreign countries without prior permission or leave of his employer is an undisputed position.
9. The above finding of fact as recorded by the Tribunal makes the case of the school management stronger, since the allegation on the petitioner as reflected in the charge-sheet is that the petitioner is habitual in remaining absent without prior sanction of the leave.
10. In the above fact situation, considering the totality, I find no illegality in the view taken by the Tribunal or the decision of the disciplinary authority and consequently, I am not inclined to interfere in any of the above two decisions. The petition needs to be dismissed and is dismissed. Rule discharged. No costs.
Sd/-
MH Dave/39 (PARESH UPADHYAY, J.)