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LPA/594/2010 2/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 594 of 2010
In
SPECIAL
CIVIL APPLICATION No. 2420 of 1992
With
CIVIL
APPLICATION No. 3277 of 2010
In
LETTERS PATENT APPEAL No. 594 of 2010
===============================================
JAMAL
HAJI AHMED NOORANI & 2 - Appellants
Versus
KHIMZAR
A SATTAR NAVIWALA & 5 - Respondents
===============================================
Appearance
:
MR PP MAJMUDAR for Appellant(s)
: 1,1.2.1 - 3.
MS MAMTA R VYAS for Respondent(s) : 1 - 4.
None
for Respondent(s) : 3, 3.2.2, 3.2.3, 3.2.4, 3.2.5, 3.2.6, 6,
MS
MANISHA LAVKUMAR SHAH, AGP for Respondent(s) :
5,
===============================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 08/09/2010
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE A.L.DAVE)
1.
The appellants challenge
the order passed in Special Civil Application No.2420 of 1992 on
6.8.2004, whereby the petition preferred by the appellants came to
be dismissed. The said petition was preferred to challenge judgment
and order passed by the Gujarat Primary Education Tribunal, Ahmedabad
in Application No.218 of 1988 dated 2.7.1991.
2.
This appeal was filed after lapse of 583 days beyond the period of
limitation and therefore the same was dismissed by a Coordinate Bench
by order dated 16.3.2007. The appellants carried the said order to
the Apex Court, and the Apex Court by order dated 31.8.2009 allowed
Civil Appeal No.5912 of 2009 arising out of SLP (C) No.8608 of 2007.
The Apex Court expressed a view that the Letters Patent Appeal should
have been disposed of on merits. The order was then set aside with a
direction to this Court to dispose of the Letters Patent Appeal on
merits. Hence, the matter is circulated today.
3.
Learned advocate Mr.Majmudar appearing on behalf of the appellants
submitted that this matter is required to be heard on merits as per
direction of the Apex Court.
3.1
Learned advocate Mr.Majmudar appearing for the appellants submitted
that the tribunal has not considered the fact that the school is
closed; that the appellant is a minority institution and enjoys
certain privileges under Article 30 of the Constitution of India; and
that the institution before passing order is required only to afford
an opportunity to the employee as provided under Section 40-B of the
Bombay Primary Education Act, 1947 and that was done in respect of
respondents No.1 and 2. He submitted that no formal
termination order is passed in respect of respondents No.3 and 4
as the school was closed.
3.2
Mr.Majmudar submitted that the Tribunal has ordered
reinstatement with full backwages. The respondents would not have
remained unemployed for so many years and they have not established
that they have not gainfully employed during this period. Still the
Tribunal ordered full backwages and reinstatement which is also not
proper. He submitted that the appellant is a minority institution and
the appellant would be burdened of heavy financial responsibility and
therefore the appeal may be entertained.
3.3
Learned advocate Mr.Majmudar submitted that since the school is
closed, the appellant is prepared to settle the dispute with the
respondents if they are ready to accept compensation in lieu of
termination and backwages.
4.
Learned advocate Ms.Vyas for respondents No.1 to 4 submitted that,
the fact that the appellant is a minority institution is not proved
by the appellants before the tribunal. Even if it is assumed that the
appellant is a minority institution, the right it enjoys is an
exemption from procedure envisaged in clause (ii) of sub-sec.(1) of
Section 40-B of the Act requiring the institution to have approval of
the termination. But clause (i) of the said provisions still
continues to operate, and in the instant case, the appellants have
not followed the principles of natural justice as per findings of
both the tribunal as well as the learned Single Judge, and therefore,
no protection as minority institution is available to the appellants.
5.
Learned advocate Ms.Vyas submitted that the Apex Court was
examining the question of delay while observing that the matter has
to be decided on merits, but question of maintainability of appeal
would also be the question of merit and therefore that question will
have to be examined by this Court. She submitted that the petition
was purely under Article 227 of the Constitution of India, though
nomenclature as petition under Articles 226 and 227 of the
Constitution of India. This is clear from the prayer clause and
therefore the order of the learned Single Judge being one in exercise
of jurisdiction under Article 227 of the Constitution of India, the
Letters Patent Appeal would not be maintainable.
6.
Learned advocate Mr.Majmudar in rejoinder submitted that, simply
because the learned Single Judge observed that the Court is
exercising jurisdiction under Article 227 of the Constitution of
India, the petition cannot be labelled as one under Article 227 of
the Constitution of India. In support of his submission, he has
relied on the decisions of the Apex Court in the case of M.M.T.C.
LIMITED vs. COMMISSIONER OF COMMERCIAL TAX AND OTHERS reported in
(2009) 1 SCC 8 and ASHOK K. JHA AND OTHERS vs. GARDEN SILK MILLS AND
ANOTHER reported in 2010(1) GLR 502, and submitted that
the petition was under Article 226 of the Constitution and be
treated, as such, holding that this appeal would be maintainable.
6.1
Learned advocate Mr.Majmudar submitted further that the backwages
and reinstatement may not be ordered in light of the decision in the
case of SENIOR
SUPERINTENDENT, TELEGRAPH (TRAFFIC), BHOPAL vs SANTOSH KUMAR SEAL AND
OTHERS reported in AIR 2010 SC 2140.
7.
We have considered rival sides submissions. In the first
instance, we may record, at the outset, that both the Tribunal as
well as the learned Single Judge have arrived at a concurrent factual
finding that there was breach of principles of natural justice while
terminating the services of respondents No.1 to 4 and, therefore, the
order of termination passed in respect of respondents No.1 and 2 was
illegal and nonest, whereas no order of termination has been passed
in respect of respondents No.3 and 4 on the ground that the school is
closed. When no such order is passed, obvious there is no question
of having followed principles of natural justice, and therefore, we
find that no interference is possible in this factual finding of the
Tribunal as well as the learned Single Judge and the learned advocate
for the appellants is also not able to show anything which would show
that these findings are perverse in any manner. All that is shown is
that some show-cause-notice was served to respondents No.1 and 2.
8. Learned
advocate Mr.Majmudar relied on the decision of Sindhi
Education Society and another vs. The Chief Secretary, Govt. of NCT
of Delhi and others reported in 2010(6) Scale 578. Having
gone through the judgment, we do not find any observation by the Apex
Court that minority institution while enjoying benefit of Article 30
of the Constitution of India are not bound to follow principles of
natural justice or are exempted from following the procedure
prescribed by any law. All that the said article provides that they
can establish an institution and administer the same. The appellants
have not produced anything to show that they have their own set of
administrative rules and, therefore, the appellant would be bound by
the general law and the principles which they are bound to be
followed.
9.
We may also observe that the object behind Article 30 is to
facilitate such minority institution to achieve excellence in the
field of education (para 60 of the judgment) and termination of
services of respondents No.1 to 4, by no stretch of imagination, can
be said to be undertaken by the appellant for achieving excellence in
the field of education. The decision, therefore, will not be helpful
to the appellant.
10.
Learned advocate relied on the decision in case of Committee
of Management, Kanya Junior High School Bal Vidya Mander, Etah, U.P.
vs. Sachiv, U.P.Basic Shiksha Parishad, Allahabad and others reported
in AIR 2006 SC 2974, to support the contention that prior
approval of District Basic Education Officer is not necessary for
terminating the services of teacher of minority institution. There
cannot be any dispute on this principle if the provision contained
under Section 40-B of the Act is seen, as discussed earlier, where
the exemption is from clause (ii) of sub-sec.(1) of Sec.40-B of the
Act. In the instant case, there is a breach of principles of
natural justice contemplated under clause (i) of sub-section (1) of
Sec.40-B of the Act. The decision, therefore, cannot be helpful to
the appellants.
11.
So far as the contention that the Tribunal has not given a finding
on the question of appellant being a minority institution enjoys
certain privileges, we may observe that the protection that the
minority institution enjoys is one under Article 30 of the
Constitution of India which runs as under:
30.
Right to minorities to establish and administer education
institutions: –
(1) All
minorities, whether based on religion or language, shall have the
right to establish and administer educational institutions of their
choice.
[(1A) In
making any law providing for the compulsory acquisition of any
property of an educational institution established and administered
by a minority, referred to in clause (1), the State shall ensure that
the amount fixed by or determined under such law for the acquisition
of such property is such as would not restrict or abrogate the right
guaranteed under that clause.]
(2) The
State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that
it is under the management of a minority, whether based on religion
or language.
Clause 1 of the said
Article would be attracted which permits the minorities to establish
an institution and to administer the same. It does not give any such
exemption from following the requirements of law and principles of
natural justice while administering the institution. The appellant is
not able to show any rules of its administration. Under the
circumstances, normal principles of law would be applicable.
12.
It may also be noted that, even if the appellant is held to be a
minority institution, it has not followed the principles of natural
justice. Remanding the matter to the Tribunal for giving a finding
on it is not going to serve any purpose, but would only result into
dragging the litigation.
13.
Ms.Vyas was right in contending that the Supreme Court has
ordered to hear the matter on merits ignoring the delay would mean
that the question of maintainability will have to be examined by the
Court as part of merits. In this context, the judgment relied upon
by learned advocate Mr.Majmudar referred to hereinabove would
establish that the Courts should not take a technical approach. In
the light of the said judgment, if the petition is examined, we find
that, in the cause title, there is reference of Articles 226 and 227
of Constitution of India. However, the prayer clause runs thus:
(A)
to allow this petition with costs;
(B)
to quash and set aside the judgment Annex. `B’ dated 2.7.1991 passed
by the Primary School Tribunal passed in Application No.218/1998;
(C)
to direct the Tribunal to decide the issue about the applicability
of the provisions of the Primary Education Act and the Rules framed
thereunder and as to whether the petitioner-institution is a minority
institution or not and/or to modify suitably the said order Annex.`B’
in the facts and circumstances of the case;
(D)
to issue interim relief staying the operation and implementation of
the impugned order Annex. `B’ dated 2nd July 1991 pending the hearing
and final disposal of this special civil application.
14.
A plain reading of the prayers made in the petition and the
contents of the petition makes it clear that the appellant was
invoking only the jurisdiction of the High Court under Article 227
of the Constitution of India. No writ of certiorari is sought for
constructively by pleading and, therefore, the petition, as rightly
held by the learned Single Judge, is one under Article 227 of the
Constitution of India. If that is so, an appeal under Clause 15 of
the Letters Patent Appeal would not be maintainable either. We have
examined the merits of the case. We find that the appeal has no
merits and is not maintainable either. The appeal, therefore, must
fail and stands dismissed.
15.
In light of dismissal of the appeal, Civil Application No.3277 of
2010 stands dismissed.
(
A.L. DAVE, J. ) ( BANKIM N. MEHTA, J. )
syed/
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