Compulsory Retirement; Yogeshbhai Ambalal Patel Vs. President / Managing Trustee [Gujarat High Court, 15-09-2016]

The order of compulsory retirement passed by the management in public interest, after evaluation and review of the performance of the petitioner, did not warrant any interference. All the relevant aspects of the matter were taken into consideration by the Tribunal. No error, not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order.

Order of Compulsory Retirement


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 15/09/2016

SPECIAL CIVIL APPLICATION NO. 9373 of 2015

With

SPECIAL CIVIL APPLICATION NO. 8562 of 2015

YOGESHBHAI AMBALAL PATEL….Petitioner(s) Versus PRESIDENT / MANAGING TRUSTEE & 2….Respondent(s) Appearance: S.C.A. NO.9373 OF 2015: HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1 MR RAVIKUMAR B SHAH, ADVOCATE for the Petitioner(s) No. 1 MR DIPEN C SHAH, ADVOCATE for the Respondent(s) No. 2 S.C.A. NO.8562 OF 2015: HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 1 MR RAVIKUMAR B SHAH, ADVOCATE for the Petitioner(s) No. 1 MR DIPEN C SHAH, ADVOCATE for the Respondent(s) No.2 MR NILESH A PANDYA, ADVOCATE for the Respondent No.3

JUDGMENT

1. Since the issues raised in both the captioned petitions are interrelated, those were heard analogously and are being disposed of by this common judgment and order.

2. The Special Civil Application No.9373 of 2015 is an application under Article 227 of the Constitution of India, calling in question the legality and validity of the order dated 27th March 2015 passed by the Gujarat Educational Institution Services Tribunal at Ahmedabad in new Appeal No.639 of 2014.

3. The case of the petitioner may be summarised as under:

3.1 The petitioner was appointed as an ‘Assistant Teacher’ in the respondent – School from 1st July 1993. The school management terminated the services of the petitioner with effect from 30th April 1998. The petitioner challenged the action of the management by filing an application being the application No.69 of 1998 before the Gujarat Primary Educational Tribunal and prayed for reinstatement and back wages. The Tribunal, vide order dated 21st January 2006, allowed the application and the management was directed to reinstate the petitioner with back wages.

3.2 The management, feeling aggrieved and dissatisfied with the order passed by the Tribunal, preferred the Special Civil Application No.6346 of 2006. The said petition was ordered to be rejected by a learned Single Judge vide judgment and order dated 13th November 2008.

3.3 The management being dissatisfied with the judgment and order passed by the learned Single Judge rejecting the application, preferred the Letters Patent Appeal No.137 of 2008. The said Letters Patent Appeal came to be dismissed vide judgment and order dated 26th July 2012. The Division Bench, while dismissing the appeal, filed by the management, recorded the following:

“6. For the reasons recorded above, we arrive at the judgment, and pass the order, as under.

(i) The Gujarat Primary Education Tribunal, has not committed any error, in coming to the conclusion that the action of the school management, of terminating the service of the respondent teacher, vide order dated 30.4.1998 was illegal. We find no error in the judgment and consequential order passed by the Tribunal dated 21.1.2006 in Application No: 69 of 1998.

(ii) Learned single judge has also not committed any error, much less any error apparent on the face of record, by not interfering in the above referred judgment and order dated 21.1.2006 passed by the Tribunal.

(iii) The appeal has no merit and the same is dismissed. Interim stay granted earlier, stands vacated.

(iv) The appellant school management is directed to implement the order passed by the Gujarat Primary Education Tribunal dated 21.1.2006, in Application No: 69 of 1998.

(v) At this stage, learned counsel for the appellant­ school management has requested that the above direction, to implement the order of the tribunal, be suspended for a period of six weeks. The request is accepted and it is ordered that, the direction contained in this order, to implement the order of the Gujarat Primary Education Tribunal dated 21.1.2006, in Application No: 69 of 1998, shall stand suspended for a period of six weeks from today.”

3.4 The management being dissatisfied with the dismissal of the Letters Patent Appeal, preferred Civil Appeal No.6463 of 2012 before the Supreme Court. The Supreme Court vide judgment and order dated 14th September 2012 dismissed the appeal observing as under:

“21. A person alleging his own infamy cannot be heard at any forum, what to talk of a Writ Court, as explained by the legal maxim ‘allegans suam turpitudinem non est audiendus’. If a party has committed a wrong, he cannot be permitted to take the benefit of his own wrong. (Vide:

G. S. Lamba & Ors. v. Union of India & Ors., AIR 1985 SC 1019

Narender Chadha & Ors. v. Union of India & Ors., AIR 1986 SC 638

Molly Joseph @ Nish v. George Sebastian @ Joy, AIR 1997 SC 109

Jose v. Alice & Anr., (1996) 6 SCC 342

and

T. Srinivasan v. T. Varalakshmi (Mrs.), AIR 1999 SC 595

This concept is also explained by the legal maxims ‘Commodum ex injuria sua nemo habere debet‘; and ‘nullus commodum capere potest de injuria sua propria‘. (See also:

Eureka Forbes Ltd. v. Allahabad Bank & Ors., (2010) 6 SCC 193

and

Inderjit Singh Grewal v. State of Punjab & Anr., (2011) 12 SCC 588

22. Thus, it is evident that the appellant has acted with malice along with respondent and held that it was not merely a case of discrimination rather it is a clear case of victimisation of respondent No.1 by School Management for raising his voice against exploitation.

23. After going through the material on record and considering the submissions made by learned counsel for the appellant and the respondent No.1­ in­ person, we do not find any cogent reason whatsoever to interfere with the aforesaid findings of fact.

24. The appeal lacks merit and is, accordingly, dismissed.”

3.5 It appears that upon reinstatement in service, the respondent management thought fit to take into review the work put in by the petitioner for the purpose of ascertaining whether the petitioner should be continued in service or he should be made to compulsorily retire under Rule 34 of the Bombay Primary Education Rules, 1949.

3.6 A Committee was constituted for the purpose of evaluation of the work, and the Committee, in its report, recommended compulsory retirement.

3.7 Accordingly, vide order dated 22nd November 2013, the petitioner was made to retire compulsorily by paying him three months salary.

3.8 The petitioner being dissatisfied with the order of compulsory retirement passed by the management, challenged the same by filing appeal No.639 of 2014 before the Gujarat Educational Institution Services Tribunal (for short, “the Tribunal”). The Tribunal, vide judgment and order dated 27th March 2015, dismissed the appeal filed by the petitioner.

3.9 Being dissatisfied, the petitioner has come up with this application under Article 227 of the Constitution of India invoking the supervisory jurisdiction of this Court.

3. On 23rd November 2015, the following order was passed: