This petition is directed against the order dated 28.12.2011 passed by the learned Gujarat Secondary Education Tribunal, Ahmedabad in Application No.123 of 2011 whereby the adverse remarks in the ACR are directed to be expunged. 2. So far as the relevant factual aspects are concerned, it emerges from the record that the respondent – teacher has been working with the petitioner school since 1987. It appears that in view of certain misconduct of the respondent teacher, a show-cause notice was issued for which explanation was called for. An explanation as regards the proposed action of placing appropriate adverse entry in the ACR was also called for. It appears that the respondent reacher submitted his explanation in response to the said notice. Subsequently, the petitioner school issued another notice dated 4.12.2010 seeking explanation with reference to the same act. Therefore, the respondent teacher submitted a similar explanation on 7.12.2010. It also emerges that another notice dated 9.12.2010 for the very act and on very same ground was issued and the respondent teacher again submitted similar explanation on 10.12.2010.
2.1 After the aforesaid process, the headmaster informed the respondent teacher vide letter dated 18.12.2010 that an adverse entry was recorded in his ACR for the academic year 2010-2011 and it was decided to withhold his future increment. Another letter dated 3.8.2011 was also forwarded to the respondent teacher informing him about the adverse entry and stoppage of one increment. In view of the said action of the petitioner school, the respondent teacher preferred above mentioned Application No.123 of 2011 mainly on the ground that the action of making adverse entry and withholding of one increment were in breach of principles of natural justice and in violation of the prescribed procedure for taking such action.
2.2 The learned tribunal heard the petitioner school and the respondent teacher and examined the material on record.
2.3 After considering the submissions made on behalf of the petitioner school and the respondent teacher, the learned tribunal found that before taking impugned action of withholding one increment and recording adverse entry in the ACR, the concerned teacher was not afforded any opportunity of hearing and defence, though as mentioned above three notices were issued. It also emerged before the learned tribunal that though notices inviting explanations were issued and in response to all three notices the concerned teacher had submitted his reply, any opportunity of hearing and defence was not granted to the respondent teacher.
2.4 As the learned tribunal noticed from the record that any hearing was not afforded, the learned tribunal considered it appropriate to allow the application and that therefore, passed the order dated 28.12.2011 holding and declaring that :-
“In view of the above discussion, I am of the opinion that both the actions taken by the management are not tenable having been taken in breach of principles of natural justice and procedure aspects of the matter. This application, therefore, deserves to be allowed.
In the result and for the foregoing reasons, this application is allowed. The orders dt. 18.12.10 and 3.8.11 are quashed and set aside. The management shall expunge the adverse entry made in the ACRs. No order as to costs.”
3. Mr. K.S.Kotai, learned advocate has appeared for the petitioners, and submitted that the decision of the learned tribunal is erroneous and unjustified. He submitted that the petitioners had issued notices and called for the explanation and that therefore, the learned tribunal ought not to have set aside the orders passed by the Disciplinary Authority. He, however, fairly conceded the fact that opportunity of hearing and defence was not granted to the respondent teacher and the petitioners considered issuance of notices and the opportunity of tendering explanation was considered sufficient for compliance of principles of natural justice. He also submitted that the petitioners cannot run away from the fact that proper and effective opportunity of hearing was not granted to the respondent teacher.
4. I have taken into consideration the submissions made by learned advocate for the petitioners and the order passed by the learned tribunal and also the material on record. It is true that the petitioner school had issued notices to the respondent and invited explanations. The other two notices which followed the first notice are almost similar and the respondent teacher also tendered similar explanation as he had tendered in response to the first notice. However, what is pertinent to note is that in the first notice which was issued by the petitioner school, even the proposed penalty was also mentioned and that too even before considering the explanation of the respondent teacher, which means that the petitioner school had decided to impose penalty and the explanation of the respondent teacher was called for only for the sake of formality. Furthermore, after the respondent teacher tendered his explanation, the petitioner school did not consider it necessary to afford opportunity of hearing and defence to the respondent teacher. Any hearing was not conducted. The aforesaid aspects are not in dispute or they are rather admitted by the petitioner school.
4.1 Having regard to the aforesaid factual aspects and the observations made by the learned tribunal in para-6 and 7 of the order dated 28.12.2011, it cannot be said that the said observations are baseless or unjustified or contrary to the evidence on record. The said observations are also not perverse or arbitrary. When the learned tribunal, after considering the aforesaid aspects and for the reasons mentioned in para – 6 and 7 passed the order allowing the application and directing the management to expunge the adverse remarks, the order cannot be said to be unjustified or arbitrary or perverse. Learned advocate for the petitioners has failed to point out any infirmity in the order dated 28.11.2011. He has also not been able to make out any case against the order passed by the learned tribunal. The impugned order does not warrant any interference.
The petition, therefore, fails and stands disposed of as rejected.
(K.M.Thaker, J.) kdc