M.P. Thakkar, J.
1. Are the services of a teacher liable to be terminated at the pleasure of the institution which has employed him or whether such a teacher is entitled to any protection under Section 36 of the Gujarat Secondary Education Act of 1972 (hereinafter referred to as 'the Act') is the central issue raised in this petition under Article 227 of the Constitution of India (it has been styled to be a petition under Articles 226 & 227 but inasmuch as it is directed against an order of a Tribunal, it in fact falls within the four corners of Article 227 only) by a teacher whose services have been terminated otherwise than by way of a penal action for misconduct.
2. The petitioner was engaged as a permanent teacher in 1970 by respondent No. 1 Society which is running a High School at Gandhinagar known as St. Xavier's High School. The respondent institution had served a notice, Annexure 'A', dated February 28, 1975 calling upon the petitioner to show cause why his services should not be terminated The notice in question was in the following terms:
I am to inform you that the Managing Committee of The Ahmedabad Jesuit School's Society proposes to terminate your services by one month's notice with effect from 31st March, 1975. You are hereby informed that if you have to say anything against the proposed action, you may send your explanation and/or representation within fifteen days of the receipt of this notice. Otherwise the managing Committee will presume that you have nothing to say against the proposed action.
You are further informed that the Managing Committee, after considering your representation, if any, and after hearing you, if you so desire, will take a suitable decision.
The Managing Committee has also decided to pay six months' compensation if it decides to terminate your services.
The petitioner by his reply, Annexure 'B' dated March 14 1975 called the attention of the respondent-institution to the fact that the proposed action was in clear violation of Section 36(1)(a) of the Act. He further informed the respondent that he was not in a position to show cause as to why his services should not be terminated inasmuch as in the how cause notice itself no ground for the proposed action was disclosed. In the wake of this correspondence the respondent-institution terminated the services of the petitioner by order at Annexure 'C', dated March 24, 1975 with effect from March 31,1975 on payment of six months' salary as compensation. He was inter alia informed that the Managing Committee had considered his reply to the show cause notice but had formed the opinion that the petitioner had petitioner had failed show any cause for desisting from the proposed action. The petitioner moved the Tribunal constituted under the Act by way of an application which was registered as Application No. 82/75 by the Gujarat Secondary Education Tribunal, Ahmedabad. The Tribunal was moved under Sections 38 and 39 of the Act. The Tribunal after taking into account the affidavits filed by the parties dismissed the application by the impugned order at Annexure 'F' dated August 8, 1975 on taking the view that inasmuch as the termination was effected after serving a show cause notice there was sufficient compliance with the statutory provision embodied in Section 36(1)(a) of the Act. The Tribunal negatived the contention that the petitioner had not been afforded reasonable opportunity of showing cause against the proposed action inasmuch as the respondent institution had not assigned any reasons for terminating the services of the petitioner and that in the absence of such reasons the petitioner was not in a position to effectively show cause against the proposed action. The petitioner has thereupon invoked the jurisdiction of this Court by way of the present petition.
3. Section 36(1) which has given rise to serious controversy in the present matter requires to be quoted in order to appreciate the nature/and content of the controversy. It reads as under:
36. (1) No person who is appointed as a head-master, 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 manager until-
(a) he has been given by the manager a reasonable 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.' Now, in the present case, the following facts are not in dispute.
(1) The respondent institution had served on the petitioner a notice calling upon him to show cause why his services should not be terminated on payment of compensation but the respondent institution had not assigned any reasons for the proposed action of termination the petitioner's services.
(2) No enquiry was held by the respondent institution and the services of the petitioner have been terminated on the premise that the respondent has a contractual right to terminate the services at its pleasure on payment of compensation.
(3) The respondent institution is a minority institution and, therefore, Clause (b) of Section 36(1) does not apply to such an institution and the approval in writing by an officer authorised by the Board is not necessary before taking action under Section 36.
4. The respondents did not assume the posture that Section 36(1) was not applicable to a termination simpliciter before the Tribunal. It has, however, been contended on behalf of the respondents that Section 36(1) can be invoked only by a teacher whose services have been terminated by way of a penal action and that it cannot be invoked by a teacher whose services have been terminated in exercise of a contractual right. On a plain reading of Sub-section (1) of Section 36 it is clear that the provision is applicable not only in regard to penal action resulting in dismissal or removal or reduction in rank but also to an action which results in termination of services of a teacher otherwise than by way of a disciplinary action. It is not possible to accede to the argument that the expression 'nor shall his service be otherwise terminated' must mean 'terminated by way of a penal action.' A termination by way of a penal action is already covered by the expression 'dismissal' or 'removal'. Learned Counsel for the petitioner has contended that the expression 'nor shall his service be otherwise terminated' must be construed ejusdem generis and must take colour from the preceding expressions which are referable to penal action viz. dismissal or removal or reduction in rank. If it is so construed, the expression would be emptied of all its meaning and content and would be rendered otiose for dismissal or removal would cover any action of penal nature and in that event it would be altogether unnecessary for the Legislature to extend protection in respect of termination otherwise than by way of dismissal or removal. Learned Counsel argued that the expression 'otherwise terminated' would refer to termination simpliciter which is effected on account of some misconduct by way of a penal measure. Now, the expression 'termination simpliciter' carries the concept of termination otherwise than for misconduct and otherwise than by way of a disciplinary action. It would be impossible to construe the expression 'otherwise terminated' as being referable only to a termination by way of a disciplinary measure by way of a penal action. If plain and natural meaning is given to the aforesaid expression, it is not possible to construe it in the manner suggested by the Learned Counsel for the respondents. Counsel then argued that the expression 'otherwise terminated' should be applied to cases where the termination on the face of it was a termination simpliciter in form but in reality and substance was a termination by way of a penal measure. The expression 'dismissal or removal' would cover a situation like the one placed in focus by counsel. If it is dismissal or removal by way of a penal measure in reality but it is given an appearance of termination simpliciter, it is nonetheless dismissal and would be covered the expression 'dismissal or removal from service'. It is therefore, not possible to uphold the submission urged on behalf of the respondents that I the expression 'otherwise terminated' would mean termination of service by way of a penal action and not termination simpliciter.
5. It was then argued that the concept of affording reasonable opportunity for showing cause against a termination simpliciter was not known to Industrial Law and, therefore, the Legislature could not have intended to make a provision in this behalf in relation to the employment of teacher. There is however no warrant to attribute to the Legislature an intention to maintain status quo in regard to such matters in all fields when the provision itself is plain enough and it in terms provides for protection to teachers in thesense that it obliges the management to afford a reasonable opportunity to the teacher concerned to show cause against the proposed action of termination of is services by way of termination simpliciter. It is not possible to read down the provision by attributing to the Legislature an intention not to introduce such a concept in relation to teachers. Teachers are entrusted with extremely delicate and vital functions by the society. They are the architects engaged in building a new generation. There is nothing shocking or surprising in the Legislature wanting to extend protection to the teachers so that they are not at the mercy of the management in regard to the matter of their employment. Unless protection is extended to them and some amount of reasonable security exists, the teachers would not be in a position to offer the best in them. With the changing times the Legislature was presumably aware of the necessity to extend protection to the teachers vis-avis the management. There is therefore, nothing surprising in restrictions being imposed on the management in the matter of terminating the services of the teachers. And the concept of job-protection (it needs to be realized) is a concept which has received recognition at international level in respect of all employees. It appears to have been realised that workers who constitute the real wealth of a Nation cannot be permitted to be treated as inanimate objects which can be discarded or thrown away if they cease to cater to the pleasure of the Master at his whim and caprice. It must have been realised that terminating the service of an employee has an effect similar to an earthquake in his world. Not only he, but his parents, wife and children are maimed by the decision. An employer cannot be invested with arbitrary power to destroy the entire world of the worker at his whim and pleasure (or displeasure). A worker is not an instrument evolved to enable the Master to mint his profits. Nor is a worker his slave. The society permits the employer to function on condition that he conducts his affairs in a civilized manner in keeping with the trends of the awakened and the enlightened world where a worker is respected and valued for without his labour the society cannot exist, much less, proper. A reference to this subject for instance is made in Part IV of Chapter 5 of the treatise on Labour Law by J.B. Cronin and R.P. Grime (page 123 and onwards). A recommendation made by the International Labour Organisation (I.L.O.) which is referred to as Recommendation No. 119 concerning 'termination of employment at the initiative of the employer, 1963 deserves to be quoted:
1. Effect may be given to this Recommendation through national laws or regulations collective agreement, works rules, arbitration awards, or court decisions or in such other manner consistent with national practice as may be appropriate under national conditions.
2. (1) Termination of employment should not take place unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.
(2) The definition or interpretation of such valid reason should be left to the methods of implementation set out in Paragraph I.
3. The following, inter alia, should not constitute valid reasons for termination of employment:
(a) union membership or participation in union activities outside working hours or with the consent of the employer, within working hours;
(b) seeking office as, or acting or having acted in the capacity of, a worker's representative;
(c) the filing in good faith of a complaint or the participation in a proceeding against an employer involving violation of laws or regulations; or
(d) race, colour, sex, marital status, religion, political opinion, national extraction or social origin. xx xx xx xx xx
While the Legislature may not have been able to implement these recommendations in other spheres, if the Legislature considered it desirable to implement the said recommendations and considered the time to be ripe in matters relating to the service conditions of teachers, there is nothing surprising in the Legislature making a provision in this behalf by way of Section 36(1). Be that as it may, in the face of the clear language of 36 it is to contend that the provision is not applicable to cases of termination simpliciter. In fact the respondents elves accepted the position that Sub-section (1) of Section 36 was applicable and did serve the petitioner with a notice lo show cause why his services should not be terminated. It is therefore not possible to accede to the argument that Section 36(1) does not apply to the case of a teacher whose services have been terminated otherwise than by way of a penal action.
6. The next question is whether it is sufficient for the management to call upon the petitioner to show cause why his services should not be terminated without assigning any reasons for taking the decision to terminate the services. Clause (a) of Sub-section (1) of Section 36 in terms provides that the teacher concerned is entitled to a reasonable opportunity of showing cause against the proposed action before the action can be taken by the management. Can it be said that a teacher has been afforded reasonable opportunity when he is not apprised of the reasons which influenced the management in taking a decision to terminate his services? Surely the management was not terminating his services for arbitrary or capricious grounds. It had some reason for doing so. Unless that reason was made manifest, how was the teacher to show cause against the proposed action based on the said undisclosed reason? The opportunity to show cause is no opportunity unless the teacher can effectively show cause. If the reason which operates on the mind of the management is locked in the secret recesses of its mind and if the teacher is asked to show cause as to why his services should can the teacher show? Not knowing the reasons he cannot disabuse the mind of the management and cannot make the management alter its decision to terminate the services. Only when the reason which operates on the mind of the management is communicated to the teacher can the teacher satisfy the management in exercise of the right conferred by Section 36(1)(a) that the reason is no real reason, that there is some misconception or the reason itself is non-existent or an illusory one. The purpose of affording an opportunity is only one viz. to create a situation where the management can see the point of view of the teacher and to try to alter its decision from the perspective of the reasons which weigh with the management. Surely it is not an empty formality for the sake of idle compliance with the mere letter of law emptied of all content and meaning. It must be a real opportunity. May be the management may alter its decision. May be it may not. But the teacher must be afforded an opportunity to place before the management material and arguments in order to show that the decision is not a correct or just decision. We must assume that the management is acting in good faith, honestly and in a bona fide manner for rational reasons. We cannot assume that the management is acting in an arbitrary And capricious fashion in order to visit the teacher with its likes and dislikes or in order to be vindictive. The whole purpose of obliging the/management to afford a reasonable opportunity is that the reasons operating on the mind of the management are exposed to the view of the authorities and the teacher has an opportunity to show whether or not the reasons are germane and genuine or irrelevant and illusory. Be it realised that Section 36(1) applies to all institutions and Clause (b) of Section 36(1) provides that the management cannot take the proposed action unless it is approved in writing by an officer authorised in this behalf by the Board. Unless the reasons are revealed to the teacher and to the authorised officer, how can the officer concerned obtain the assistance from the teacher in order to understand the other point of view and how can the officer concerned take a rational decision to accord or to withhold approval. In the present case no doubt the question of approval will not arise having regard to the fact that the respondent institution is a minority institution, But then Section 36 has to be interpreted in the context of the circumstance that it applies to all institutions and except in regard to some institutions which belong to minority community even in regard to termination of service by, way of termination simpliciter within the meaning of Sub-section (1) of Section 36, the action has to be approved by an officer authorised by the Board as enjoined by Clause (b) of Sub-section (1) of Section 36. Section 36(1) cannot be construed in one fashion for the minority institutions and another fashion for the management in respect of the institutions other than minority institutions as Section 36 (1)(a) is applicable to all institutions, it is, therefore, not necessary to demonstrate any further that on a true interpretation of Clause (a) of Section 36(1) it is incumbent on the management to disclose to the teacher concerned the reasons operating on its mind and the factors influencing the management in taking a decision to terminate his services in order to satisfy the requirement of affording reasonable opportunity imposed on it by Clause (a) of Section 36(1). The Tribunal was, therefore, in error in taking the view that so long as a notice was served, it was sufficient compliance within the meaning of Section 36(1) (a) regardless of the admitted position that the notice did not contain any reasons against which cause could be shown.
7. It was then argued by the Learned Counsel for the respondents that the petitioner had accepted the compensation offered to him along with the notice and, therefore, the petitioner was estopped from challenging the action taken by the management by way of termination simpliciter. The petitioner has placed on record a copy of a letter addressed by him to the President of the respondent Society on September 15, 1975 at Annexure 'H'. In paragraphs 7 and 8 of the said letter it has in terms been stated that the cheque was being cashed under protest and without prejudice and subject to his legal rights with an assurance that the amount would be returned. It is no doubt true that the respondent replied to the aforesaid letter by a communication dated September 20, 1975 at Annexure 'I' in the last paragraph whereof it has been stated as under:.It is for you to accept or reject it. The same was sent to you for payment. Therefore your request for our permission to cash the cheque is misconceived. If you accept the same, the question of returning the same does not arise. It will be deemed to be treated as acceptance of compensation and of the legality of the order made by the Management and declared valid by the Tribunal.
The petitioner replied as under by Annexure 'J':.I thank you for sending the D.C. which however, I am accepting without any prejudice to my claim that the termination of my service is illegal and void. Similarly about the compensation amount, I had to encase the cheque after informing you since the date of the validity of the cheque was expiring. I beg to reiterate my contention that the termination order passed against me was illegal and void. I had mentioned to you that I was ready and willing to return the cheque. In the circumstances, I have received the amount under protest and subject to my contentions against the termination order. If and when I succeed in the petition you will be entitled to the credit of the said amount.
It will be seen that the petitioner had encased the cheque because the last date for encashing the cheque was expiring and he had in terms made it clear that he was accepting it without prejudice to his contention that the termination was illegal and void and on a clear understanding that the amount would be returned when the application made to the Education Tribunal was decided in his favour. It is, therefore, not possible to uphold the contention of the Learned Counsel for the respondents that the petitioner is estopped from challenging the legality and validity of the impugned order of termination.
8. Learned Counsel for the respondents thereupon urged that an application under Section 38 was competent only so long as a teacher was in the employment and the relationship of master and servant was in subsistence. Section 38 in so far as material may be quoted in order to understand argument:
38. (1) Where there is any dispute or difference between the manager of a registered private secondary school and any person in service, of such school as head-master, teacher or a member of non-teaching staff, which is connected with the condition, of service of such person, the manager or, as the case may be, the person may make an application to the Tribunal for the decision of the dispute.
This provision had come up for construction before this High Court in Special Civil Application No. 539/75 with Special Civil Application No. 664/76 decided by a Division Bench of this High Court consisting of J.B. Mehta Ag. C.J., and P.D. Desai, J. on 2/5/6th July 1976. (Satsangi Shishuvihar Kelvani Trust v. P.N. Patel XVIII G.L.R. 615). This very argument has in terms been negatived by the Division Bench for the very good reason that a Tribunal has been specially constituted under the Act to decide disputes of this nature and all that has to be established is that a relationship of master and servant was in subsistence at the point of time when the dispute itself which is connected with the conditions of service of such a teacher carte into existence. Counsel argued that the decision tendered by the Division Bench required to be reconsidered and that a reference should be made to a Full Bench. Since the Constitution of the Tribunal in 1973 the Tribunal has been exercising jurisdiction in such matters without let and hindrance had as the point is covered by a decision of a Division Bench, I do not see any good reason to make a reference to a larger bench particularly as it appears to me that the very Constitution of the Tribunal would be tendered purposeless if such a view were to be taken. I am, therefore, unable to accept the contention urged by counsel in this behalf.
9. Lastly it was argued that in any view of the matter the petitioner was not entitled to any relief inasmuch as the Tribunal constituted under the Act had no jurisdiction to direct reinstatement of a teacher under Sub-section (9) of Section 39 in a case of a termination simpliciter. It is no doubt true that under Sub-section (9) of Section 39 reinstatement can be ordered only when the Tribunal holds that an order of dismissal, removal or reduction in rank is wrongful or unlawful. No reference is made to termination simpliciter in Sub-section (9) of Section 39. But then relief can be granted under Sub-section (4) of Section 39 for the Legislature has empowered the Tribunal to entertain and decide disputes of the nature referred to in Sub-section (1) Section 38. The present dispute would fall under Sub-section (1) of Section 38 as it has been held by the Division Bench in the aforesaid matters and, therefore, the Tribunal can deal with and decide any application made by teacher challenging the legality management in contravention of Section 36(1)(a) of the Act. The impugned order is in violation of Section 36(1)(a) and is void on the ground that it has been passed without compliance with the mandatory requirement I enjoined by Section 36(1)(a). Since the impugned order is in violation of the mandatory requirement of a statutory provision, it is ab initio null and void and non-existent in the eye of law. The Tribunal, therefore, did have the jurisdiction to hold that the order of termination was passed without complying with the mandatory provision of Section 36(1)(a), and that inasmuch as the condition precedent to exercise of the power had not been complied with, the order was non-existent in the eye of law. This decision could have been rendered by the Tribunal and the fact that no order for reinstatement in terms could have been passed under Section 39(9) cannot impair the jurisdiction of the Tribunal to decide the question under Sub-section (4) of Section 39. There is, therefore, no substance in this contention either.
10. In the result, the petition succeeds. The impugned order passed by the Tribunal, Annexure 'F', to the extent that the application made by the petitioner is dismissed must be quashed and set aside. The impugned order of termination, Annexure 'C', must be held to be illegal and void and non-existent in the eye of law.
The petition is allowed. Rule is made absolute to the aforesaid extent. Having regard to the circumstances of the case, there will be no order regarding costs.