Ambalal Motibhai Patel, Chairman, New English School Trust Vs. Hansaben Dinmanishanker Shastri and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/742996
SubjectLabour and Industrial
CourtGujarat High Court
Decided OnJan-29-1991
Judge S.D. Shah, J.
Reported in(1991)2GLR713
AppellantAmbalal Motibhai Patel, Chairman, New English School Trust
RespondentHansaben Dinmanishanker Shastri and anr.
Cases ReferredLallaram v. Management of D.C.M. Chemical Works Ltd.
Excerpt:
- - 1 were proved, and therefore, it recommended dismissal of the respondent no. the enquiry committee thereafter came to conclusion on 21st august, 1979 that none of the findings of guilt arrived at by it earlier deserve to be altered and recommended that the respondent no. as well as the tribunal have grossly erred while exercising powers under section 36(1)(b) of the said act in refusing approval. to reappreciate the evidence like an appellate authority and to reach conclusions different to those reached by the enquiry committee. as well as the tribunal found that the respondent no. 9. on going through the report of the enquiry officer as well as the reasoning of the d. the management failed to do so. this aspect is clearly brought out by the tribunal in its judgment. as well as the tribunal were justified in refusing to grant approval to the proposed action of the management solely on the ground that reasonable opportunity to defend was denied to the respondent no. 1 shall act like a true teacher and shall by her conduct satisfy the management so as to see that the rest of her service tenure is peaceful and is one which brings credit to her as an ideal teacher and to the institution also.s.d. shah, j.1. this petition under article 226 of the constitution of india is directed against the judgment and order gujarat secondary education tribunal in appeal no. 18 of 1979 whereby the tribunal refused to grant approval to the action of the petitioner-management to dismiss the respondent no. 1 from service. the said judgment and order is dated 28-2-1980 and produced at annexure 'f' to the petition, the d.e.o.-respondent no. 1 herein vide his order, dated 4th october, 1979 refused to grant permission to the proposed action of dismissal of respondent no. 1 from service in exercise of his power under section 36(1 )(b). the said order of the dist. education officer is confirmed by the tribunal and being aggrieved by the said order the school management has filed the present petition.2. before i deal with the legal submissions made by mr. s.n. shelat, learned advocate for petitioner, short facts giving raise to the present petition are stated hereinbelow:(i) the respondent no. 1 was appointed as asstt. teacher in sardar patel vinay mandir, vasad with effect from 16th june, 1971. within short time from her appointment disputes and or differences have arisen between respondent no. 1 and the petitioner-management. according to management, the respondent no. 1-teacher was suffering from actue sense of superiority complex and that she was highly cantankerous by nature and she was also not open or amenable to any discipline. she is not even ready to any correction whatsoever in teaching technique. at times, she behaves in a most undignified manner and uses languages which is highly insulting and derogatory. the chargesheet, dated 8th june, 1979 was served on the respondent no. 1 levelling number of charges. the respondent no. 1 was called upon to submit her reply to the chargesheet. she filed written statement. the petitioner-management did not accept her explanation and appointed enquiry committee to hold regular enquiry into the charges levelled against her. the enquiry committee submitted its report, dated 29th july, 1979. the committee found that the chargesheet levelled against the respondent no. 1 were proved, and therefore, it recommended dismissal of the respondent no. 1 from service. based on said recommendations of the enquiry committee the petitioner-management served show cause notice on respondent no. 1-teacher. the enquiry committee thereafter came to conclusion on 21st august, 1979 that none of the findings of guilt arrived at by it earlier deserve to be altered and recommended that the respondent no. 1 should be dismissed from service as provided by regulation no. 27(7)(g). the said papers were, thereafter, sent to d.e.o.-respondent no. 2 herein along with letter, dated 22-8-1979 for his approval to the proposed action of dismissing respondent no. 1 from service.(ii) the d.e.o. after hearing boy the parties came to conclusion that proper opportunity of being heard was provided to the respondent no. 1-teacher by the enquiry committee. however, he held that the charges levelled against the respondent no. 1 were not proved and that some of the charges were absolutely petty so as not to call for punishment of dismissal from service. he, therefore, refused approval to the management's proposal for dismissing the respondent no. 1 from service. the tribunal confirmed his decision.3. mr. s.n. shelat, learned advocate for petitioner, submits that both the d.e.o. as well as the tribunal have grossly erred while exercising powers under section 36(1)(b) of the said act in refusing approval. the powers of d. e.o. under section 36(1)(b) for granting approval to the action proposed to be taken by the management are akin to the powers of management under section 33(2)(b) of i.d. act, and the jurisdiction of d.e.o., is very limited. if due enquiry is held and charges are held proved against the employer after due compliance of rules of natural justice, submits mr. shelat, approval shall have to be granted by the d.e.o. to the proposed penalty and it is not open to the d.e.o. to interfere with the proposed penalty on the ground that it is excessive, severe and or disproportionate. it is also not open to the d.e.o. to reappreciate the evidence like an appellate authority and to reach conclusions different to those reached by the enquiry committee. mr. shelat further submits that if rules of natural justice are fully complied with and if the charges are held proved against the respondent-teacher by the enquiry committee there was no jurisdiction in the d.e.o. to refer approval on the ground that on appreciation of evidence he held that the charges are not proved and or on the ground that even if the charges are proved he finds that the punishment is excessive and disproportionate. in order to appreciate this submission of mr. shelat, it is necessary to refer to the provisions of section 36 of the gujarat secondary education act which are reproduced hereinbelow:36(1) no person who is appointed as a headmaster, a teacher or a member of non-teaching staff of a registered private secondary school shall be dismissed or removed or reduced in rank nor shall his service be otherwise terminated by the management until.(a) he has been given by the manager a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, and(b) the action proposed to be taken in regard to him, has been approved in writing by an officer authorised in this behalf by the board;provided that nothing in this sub-section shall apply to any person who is appointed for a temporary period only.(5) any person aggrieved by an order of authorised officer under clause (b) of sub-section (1) may make an appeal to the tribunal within a period of thirty days from the date of the decision of the authorised officer.4. it is clear that penalty of dismissal, removal or reduction in rank shall not be imposed on a headmaster, teacher or a member of non-teaching staff of a registered private secondary school until: (i) he has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him, and (ii) the action proposed to be taken has been approved in writing by an officer authorised in this behalf. in this case d.e.o. is the officer authorised by the board to grant approval. on going through the scheme of this section and putting this section juxtaposition to section 32(1)(b) of i.d. act there is no room for doubt that the said provisions are closely parallel to each other. in fact the purpose of enacting clause (b) of section 36(1) is to put a check or control over the arbitrary and or unauthorised action of the management in terminating the services of employees. the division bench of this court in the case of satsangi shishuvihar kelavani trust v. p.n. patel and ors. reported in (1977) 18 glr 615 considered the scheme of sections 36, 38 and 39 of the said act and also considered the scope, extent and nature of the jurisdiction of the authority under section 36(1)(b) of the said act. while exercising approval function under section 36(1)(b) the d.e.o. is not given power to compel attendance of witnesses or to examine any person on oath. his enquiry is of summary nature. it is not a full-fledged enquiry on merits which the tribunal would undertake while deciding final dispute on merits in its original jurisdiction. the division bench of this court described the function of d.e.o. under section 36(1)(b) as 'management function' because the approval is in the shape of previous approval of the action of the management in proposing penalty is in the form of proposal. the court, therefore, derived clue from this nature of the provision and held that the approval function also must be looked upon as management function. the division bench of this court examined the scheme of section 33 of the i.d. act and also the various decisions of supreme court dealing with the approval function. under section 33 when the management wants to impose penalty it is required to apply for requisite permission to the tribunal, the jurisdiction of the industrial tribunal while dealing with such an application is said to be limited jurisdiction. in fact, the division bench found that the authorised officer and tribunal can: (i) consider whether prima facie case based on legal evidence adduced before the enquiry committee had been made out by the employer for the dismissal of the employee, (ii) whether proper domestic enquiry into the alleged misconduct of the employee is held in accordance with the rules of natural justice, and (iii) whether proposed dismissal of the employee amounts to victimisation or unfair labour practice.5. having set out positive content of the jurisdiction of the authorised officer and the tribunal the division bench proceeded to examine the negative content thereof holding that: (i) it is not open to authorised officer and the tribunal to consider whether the order proposed to be passed by the employer is proper/adequate or excessive/disproportionate, (ii) it is not open to them to grant permission subject to certain conditions which the tribunal might deem fair and just, (iii) it is not open to the tribunal to act as a court of appeal and to reappreciate the evidence and to substitute its own judgment for that of the management.6. it is also pertinent to note that once the d.e.o. refused to grant permission under section 36(1 )(b) to the proposed action of dismissal or removal from service the aggrieved party has remedy of preferring appeal to the very tribunal under section 36(5) of the said act. where an appeal is preferred by the aggrieved party, the tribunal exercises the appellate jurisdiction which is very limited and not wider than that of authorised officer. however, if the dispute is raised under section 38 in the original jurisdiction of the tribunal, the jurisdiction of the tribunal would be wider. since in the present case only appeal was preferred to the tribunal by the petitioner-management, submits mr. shelat, the jurisdiction of the tribunal was also limited jurisdiction, and not in any case wider than the jurisdiction of authorised officer under section 36(1)(b) of the said act. i am of the opinion that mr. shelat is right in his submission that the jurisdiction of the authorised officer under section 36(1)(b) of the act is akin and closely parallel to the jurisdiction of the industrial tribunal under section 33(2)(b) of the i.d. act. mr. shelat also invites my attention to the decision of the supreme court in the case of lallaram v. management of d.c.m. chemical works ltd. reported in : (1978)illj507sc . the supreme court in that case was concerned with the jurisdiction of industrial tribunal while dealing with the application under section 33(2)(b) of i.d. act, 1947. after considering the scheme of section 33 and various decisions of the court, the court found that the jurisdiction of an authority granting approval to a proposed action cannot be wider and is, in fact, more limited. therefore, authority exercising under section 33(2)(b) must bear in mind the departure deliberately made by the legislature in separating the two classes of cases falling under the two sub-sections and in providing for express permission in one case and only approval in the other. supreme court in the said case found that the jurisdiction of industrial tribunal under section 33(2)(b) is confined to the enquiry as to: (i) whether proper domestic enquiry in accordance with the relevant rules/standing orders and principles of natural justice has been held, (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out, (iii) whether the employer had come to a bona fide conclusion that the employer was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee, (iv) whether the employer has paid or offered to pay wages for one month to the employee, and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.7. based on the strength of the above authority, mr. shelat submits that the jurisdiction of the authorised officer under section 36(1)(b) of the present act is also limited and so is the jurisdiction of the appellate authority under section 36(5) of the said act. i am in full agreement with mr. shelat, and i am of the opinion that the jurisdiction of the authorised officer under section 36(1)(b) of the act has a positive content and negative content. in its positive content he can inquire into:(i) whether prima facie case based on legal evidence adduced before the enquiry committee had been made out by the employer for the dismissal of the employee;(ii) whether proper domestic enquiry into the alleged misconduct of the employee is held in accordance with the rules of natural justice;(iii) whether proposed dismissal of the employee amounts to victimisation or unfair labour practice.in its negative content the authorised officer/tribunal.(i) cannot consider whether the penalty proposed to be passed is adequate/ proper or inadequate/disproportionate;(ii) cannot grant approval subject to certain conditions which the authorised officer may deem just and proper;(iii) cannot act as a court of appeal so as to reappreciate evidence and to substitute its own judgment for that of the management.8. keeping in view this principle, mr. shelat invites my attention to the decision of the d.e.o. and that of the tribunal in appeal. in fact, both the d.e.o. and the tribunal in terms found that rules of natural justice are fully followed in the enquiry conducted by the enquiry committee and that full opportunity was provided to respondent no. 1 to defend herself. both these authorities, in fact, found that some of the charges levelled against the respondent no. 1 can be said to have been proved. however, on reappreciation of the evidence the d.e.o. finds that some of the charges cannot be said to have been proved against the respondent no. 1. on the other hand, the tribunal came to conclusion that, there was no proper enquiry or that it was the case no evidence inasmuch as the enquiry contemplated by law was not held by the enquiry committee. the d.e.o. as well as the tribunal found that the respondent no. 1 had become desperate and at times her conduct was not proper. in fact, tribunal observes that the respondent no. 1 should have tried to cultivate cordial relations with the principal of the school. tribunal also finds that the respondent no. 1 had lost sense of propriety, particularly, as a teacher in the profession of education in addressing letters to the principal and the education department. despite this, the authorities refused approval to the proposed action of dismissal mainly on the ground that there was no fair enquiry inasmuch as in support of charges levelled against respondent no. 1 no evidence was adduced by the management and in the absence of any proof no finding of guilt of respondent no. 1 can be reached.9. on going through the report of the enquiry officer as well as the reasoning of the d.e.o. and the tribunal i find that after service of chargesheet on respondent no. 1, the management did not adduce any evidence before the enquiry committee. the management simply produced the correspondence and called upon the respondent no. 1-teacher to defend. the correspondence was not proved at all. looking to the nature of charges levelled against respondent no. 1 it can be said that the charges were not solely based on the correspondence. in order to prove the charges it was necessary for the management to adduce oral evidence. the management failed to do so. the management solely relie upon the correspondence between the respondent no. 1 and school management on one hand and the respondent no. 1 and the education department on the other hand. from this correspondence all the charges, in fact, cannot be proved. if one refers to detailed chargesheet one find that number of charges were such which require the management to adduce oral evidence. therefore, the tribunal rightly found that it was the case where no reasonable opportunity to defend was provided to the respondent no. 1-teacher. the d.e.o. while holding that the charges were not proved was not, in fact reappreciating the evidence, but in fact, stressing the absence of evidence to justify his refusal to grant approval. this aspect is clearly brought out by the tribunal in its judgment. the exercise undertaken by the d.e.o., for reappreciating the evidence and to reach finding inconsistent with those reached by the enquiry committee was not permissible. the d.e.o. as well as the tribunal were justified in refusing to grant approval to the proposed action of the management solely on the ground that reasonable opportunity to defend was denied to the respondent no. 1-teacher because the petitioner-management has not led any evidence in support of its chargesheet. in fact, it was a case of no evidence.10. i, therefore, hold that there is no reason to interfere with the judgment and order of the tribunal confirming the action of the d.e.o. however, i cannot resist to observe that the action of the respondent no. 1 deserves denunciation. as a teacher it was expected of her to observe discipline, and that too, with the principal. it is hoped that the respondent no. 1 shall act like a true teacher and shall by her conduct satisfy the management so as to see that the rest of her service tenure is peaceful and is one which brings credit to her as an ideal teacher and to the institution also.in the result, petition fails. rule is discharged with no order as to costs.
Judgment:

S.D. Shah, J.

1. This petition under Article 226 of the Constitution of India is directed against the judgment and order Gujarat Secondary Education Tribunal in Appeal No. 18 of 1979 whereby the Tribunal refused to grant approval to the action of the petitioner-Management to dismiss the respondent No. 1 from service. The said judgment and order is dated 28-2-1980 and produced at Annexure 'F' to the petition, the D.E.O.-respondent No. 1 herein vide his order, dated 4th October, 1979 refused to grant permission to the proposed action of dismissal of respondent No. 1 from service in exercise of his power under Section 36(1 )(b). The said order of the Dist. Education Officer is confirmed by the Tribunal and being aggrieved by the said order the school management has filed the present petition.

2. Before I deal with the legal submissions made by Mr. S.N. Shelat, learned Advocate for petitioner, short facts giving raise to the present petition are stated hereinbelow:

(i) The respondent No. 1 was appointed as Asstt. Teacher in Sardar Patel Vinay Mandir, Vasad with effect from 16th June, 1971. Within short time from her appointment disputes and or differences have arisen between respondent No. 1 and the petitioner-Management. According to Management, the respondent No. 1-Teacher was suffering from actue sense of superiority complex and that she was highly cantankerous by nature and she was also not open or amenable to any discipline. She is not even ready to any correction whatsoever in teaching technique. At times, she behaves in a most undignified manner and uses languages which is highly insulting and derogatory. The chargesheet, dated 8th June, 1979 was served on the respondent No. 1 levelling number of charges. The respondent No. 1 was called upon to submit her reply to the chargesheet. She filed written statement. The petitioner-Management did not accept her explanation and appointed Enquiry Committee to hold regular enquiry into the charges levelled against her. The Enquiry Committee submitted its report, dated 29th July, 1979. The committee found that the chargesheet levelled against the respondent No. 1 were proved, and therefore, it recommended dismissal of the respondent No. 1 from service. Based on said recommendations of the Enquiry Committee the petitioner-Management served show cause notice on respondent No. 1-Teacher. The Enquiry Committee thereafter came to conclusion on 21st August, 1979 that none of the findings of guilt arrived at by it earlier deserve to be altered and recommended that the respondent No. 1 should be dismissed from service as provided by Regulation No. 27(7)(g). The said papers were, thereafter, sent to D.E.O.-respondent No. 2 herein along with letter, dated 22-8-1979 for his approval to the proposed action of dismissing respondent No. 1 from service.

(ii) The D.E.O. after hearing boy the parties came to conclusion that proper opportunity of being heard was provided to the respondent No. 1-Teacher by the Enquiry Committee. However, he held that the charges levelled against the respondent No. 1 were not proved and that some of the charges were absolutely petty so as not to call for punishment of dismissal from service. He, therefore, refused approval to the Management's proposal for dismissing the respondent No. 1 from service. The Tribunal confirmed his decision.

3. Mr. S.N. Shelat, learned Advocate for petitioner, submits that both the D.E.O. as well as the Tribunal have grossly erred while exercising powers under Section 36(1)(b) of the said Act in refusing approval. The powers of D. E.O. under Section 36(1)(b) for granting approval to the action proposed to be taken by the Management are akin to the powers of management under Section 33(2)(b) of I.D. Act, and the jurisdiction of D.E.O., is very limited. If due enquiry is held and charges are held proved against the employer after due compliance of rules of natural justice, submits Mr. Shelat, approval shall have to be granted by the D.E.O. to the proposed penalty and it is not open to the D.E.O. to interfere with the proposed penalty on the ground that it is excessive, severe and or disproportionate. It is also not open to the D.E.O. to reappreciate the evidence like an appellate authority and to reach conclusions different to those reached by the Enquiry Committee. Mr. Shelat further submits that if rules of natural justice are fully complied with and if the charges are held proved against the respondent-Teacher by the Enquiry Committee there was no jurisdiction in the D.E.O. to refer approval on the ground that on appreciation of evidence he held that the charges are not proved and or on the ground that even if the charges are proved he finds that the punishment is excessive and disproportionate. In order to appreciate this submission of Mr. Shelat, it is necessary to refer to the provisions of Section 36 of the Gujarat Secondary Education Act which are reproduced hereinbelow:

36(1) No person who is appointed as a Headmaster, a Teacher or a Member of non-teaching staff of a registered private secondary school shall be dismissed or removed or reduced in rank nor shall his service be otherwise terminated by the management until.

(a) he has been given by the Manager a reasonable opportunity of showing cause against the action proposed to be taken in regard to him, and

(b) the action proposed to be taken in regard to him, has been approved in writing by an officer authorised in this behalf by the Board;

Provided that nothing in this Sub-section shall apply to any person who is appointed for a temporary period only.

(5) Any person aggrieved by an order of authorised officer under Clause (b) of Sub-section (1) may make an appeal to the Tribunal within a period of thirty days from the date of the decision of the authorised officer.

4. It is clear that penalty of dismissal, removal or reduction in rank shall not be imposed on a Headmaster, Teacher or a Member of non-teaching staff of a registered private secondary school until: (i) he has been given reasonable opportunity of showing cause against the action proposed to be taken in regard to him, and (ii) the action proposed to be taken has been approved in writing by an officer authorised in this behalf. In this case D.E.O. is the officer authorised by the Board to grant approval. On going through the scheme of this section and putting this section juxtaposition to Section 32(1)(b) of I.D. Act there is no room for doubt that the said provisions are closely parallel to each other. In fact the purpose of enacting Clause (b) of Section 36(1) is to put a check or control over the arbitrary and or unauthorised action of the Management in terminating the services of employees. The Division Bench of this Court in the case of Satsangi Shishuvihar Kelavani Trust v. P.N. Patel and Ors. reported in (1977) 18 GLR 615 considered the scheme of Sections 36, 38 and 39 of the said Act and also considered the scope, extent and nature of the jurisdiction of the authority under Section 36(1)(b) of the said Act. While exercising approval function under Section 36(1)(b) the D.E.O. is not given power to compel attendance of witnesses or to examine any person on oath. His enquiry is of summary nature. It is not a full-fledged enquiry on merits which the Tribunal would undertake while deciding final dispute on merits in its original jurisdiction. The Division Bench of this Court described the function of D.E.O. under Section 36(1)(b) as 'management function' because the approval is in the shape of previous approval of the action of the management in proposing penalty is in the form of proposal. The Court, therefore, derived clue from this nature of the provision and held that the approval function also must be looked upon as management function. The Division Bench of this Court examined the scheme of Section 33 of the I.D. Act and also the various decisions of Supreme Court dealing with the approval function. Under Section 33 when the management wants to impose penalty it is required to apply for requisite permission to the Tribunal, the jurisdiction of the Industrial Tribunal while dealing with such an application is said to be limited jurisdiction. In fact, the Division Bench found that the authorised officer and Tribunal can: (i) consider whether prima facie case based on legal evidence adduced before the Enquiry Committee had been made out by the employer for the dismissal of the employee, (ii) whether proper domestic enquiry into the alleged misconduct of the employee is held in accordance with the rules of natural justice, and (iii) whether proposed dismissal of the employee amounts to victimisation or unfair labour practice.

5. Having set out positive content of the jurisdiction of the authorised officer and the Tribunal the Division Bench proceeded to examine the negative content thereof holding that: (i) it is not open to authorised officer and the Tribunal to consider whether the order proposed to be passed by the employer is proper/adequate or excessive/disproportionate, (ii) it is not open to them to grant permission subject to certain conditions which the Tribunal might deem fair and just, (iii) it is not open to the Tribunal to act as a Court of appeal and to reappreciate the evidence and to substitute its own judgment for that of the management.

6. It is also pertinent to note that once the D.E.O. refused to grant permission under Section 36(1 )(b) to the proposed action of dismissal or removal from service the aggrieved party has remedy of preferring appeal to the very Tribunal under Section 36(5) of the said Act. Where an appeal is preferred by the aggrieved party, the Tribunal exercises the appellate jurisdiction which is very limited and not wider than that of authorised officer. However, if the dispute is raised under Section 38 in the original jurisdiction of the Tribunal, the jurisdiction of the Tribunal would be wider. Since in the present case only appeal was preferred to the Tribunal by the petitioner-Management, submits Mr. Shelat, the jurisdiction of the Tribunal was also limited jurisdiction, and not in any case wider than the jurisdiction of authorised officer under Section 36(1)(b) of the said Act. I am of the opinion that Mr. Shelat is right in his submission that the jurisdiction of the authorised officer under Section 36(1)(b) of the Act is akin and closely parallel to the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the I.D. Act. Mr. Shelat also invites my attention to the decision of the Supreme Court in the case of Lallaram v. Management of D.C.M. Chemical Works Ltd. reported in : (1978)ILLJ507SC . The Supreme Court in that case was concerned with the jurisdiction of Industrial Tribunal while dealing with the application under Section 33(2)(b) of I.D. Act, 1947. After considering the scheme of Section 33 and various decisions of the Court, the Court found that the jurisdiction of an authority granting approval to a proposed action cannot be wider and is, in fact, more limited. Therefore, authority exercising under Section 33(2)(b) must bear in mind the departure deliberately made by the Legislature in separating the two classes of cases falling under the two Sub-sections and in providing for express permission in one case and only approval in the other. Supreme Court in the said case found that the jurisdiction of Industrial Tribunal under Section 33(2)(b) is confined to the enquiry as to: (i) whether proper domestic enquiry in accordance with the relevant Rules/Standing Orders and principles of natural justice has been held, (ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic Tribunal is made out, (iii) whether the employer had come to a bona fide conclusion that the employer was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee, (iv) whether the employer has paid or offered to pay wages for one month to the employee, and (v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.

7. Based on the strength of the above authority, Mr. Shelat submits that the jurisdiction of the authorised officer under Section 36(1)(b) of the present Act is also limited and so is the jurisdiction of the appellate authority under Section 36(5) of the said Act. I am in full agreement with Mr. Shelat, and I am of the opinion that the jurisdiction of the authorised officer under Section 36(1)(b) of the Act has a positive content and negative content. In its positive content he can inquire into:

(i) whether prima facie case based on legal evidence adduced before the Enquiry Committee had been made out by the employer for the dismissal of the employee;

(ii) whether proper domestic enquiry into the alleged misconduct of the employee is held in accordance with the rules of natural justice;

(iii) whether proposed dismissal of the employee amounts to victimisation or unfair labour practice.

In its negative content the authorised officer/Tribunal.

(i) cannot consider whether the penalty proposed to be passed is adequate/ proper or inadequate/disproportionate;

(ii) cannot grant approval subject to certain conditions which the authorised officer may deem just and proper;

(iii) cannot act as a Court of Appeal so as to reappreciate evidence and to substitute its own judgment for that of the management.

8. Keeping in view this principle, Mr. Shelat invites my attention to the decision of the D.E.O. and that of the Tribunal in appeal. In fact, both the D.E.O. and the Tribunal in terms found that rules of natural justice are fully followed in the enquiry conducted by the Enquiry Committee and that full opportunity was provided to respondent No. 1 to defend herself. Both these authorities, in fact, found that some of the charges levelled against the respondent No. 1 can be said to have been proved. However, on reappreciation of the evidence the D.E.O. finds that some of the charges cannot be said to have been proved against the respondent No. 1. On the other hand, the Tribunal came to conclusion that, there was no proper enquiry or that it was the case no evidence inasmuch as the enquiry contemplated by law was not held by the Enquiry Committee. The D.E.O. as well as the Tribunal found that the respondent No. 1 had become desperate and at times her conduct was not proper. In fact, Tribunal observes that the respondent No. 1 should have tried to cultivate cordial relations with the Principal of the school. Tribunal also finds that the respondent No. 1 had lost sense of propriety, particularly, as a teacher in the profession of education in addressing letters to the Principal and the Education Department. Despite this, the authorities refused approval to the proposed action of dismissal mainly on the ground that there was no fair enquiry inasmuch as in support of charges levelled against respondent No. 1 no evidence was adduced by the Management and in the absence of any proof no finding of guilt of respondent No. 1 can be reached.

9. On going through the report of the Enquiry Officer as well as the reasoning of the D.E.O. and the Tribunal I find that after service of chargesheet on respondent No. 1, the Management did not adduce any evidence before the Enquiry Committee. The Management simply produced the correspondence and called upon the respondent No. 1-Teacher to defend. The correspondence was not proved at all. Looking to the nature of charges levelled against respondent No. 1 it can be said that the charges were not solely based on the correspondence. In order to prove the charges it was necessary for the Management to adduce oral evidence. The Management failed to do so. The Management solely relie upon the correspondence between the respondent No. 1 and School Management on one hand and the respondent No. 1 and the Education Department on the other hand. From this correspondence all the charges, in fact, cannot be proved. If one refers to detailed chargesheet one find that number of charges were such which require the Management to adduce oral evidence. Therefore, the Tribunal rightly found that it was the case where no reasonable opportunity to defend was provided to the respondent No. 1-Teacher. The D.E.O. while holding that the charges were not proved was not, in fact reappreciating the evidence, but in fact, stressing the absence of evidence to justify his refusal to grant approval. This aspect is clearly brought out by the Tribunal in its judgment. The exercise undertaken by the D.E.O., for reappreciating the evidence and to reach finding inconsistent with those reached by the Enquiry Committee was not permissible. The D.E.O. as well as the Tribunal were justified in refusing to grant approval to the proposed action of the management solely on the ground that reasonable opportunity to defend was denied to the respondent No. 1-Teacher because the petitioner-Management has not led any evidence in support of its chargesheet. In fact, it was a case of no evidence.

10. I, therefore, hold that there is no reason to interfere with the judgment and order of the Tribunal confirming the action of the D.E.O. However, I cannot resist to observe that the action of the respondent No. 1 deserves denunciation. As a teacher it was expected of her to observe discipline, and that too, with the Principal. It is hoped that the respondent No. 1 shall act like a true teacher and shall by her conduct satisfy the Management so as to see that the rest of her service tenure is peaceful and is one which brings credit to her as an ideal teacher and to the institution also.

In the result, petition fails. Rule is discharged with no order as to costs.