Management Of Mother'S ... vs Delhi School Tribunal And Anr.
1987 Latest Caselaw 36 Del

JUDGMENT

B.N. Kirpal, J.

(1) The challenge in this writ petition is to the order of the Delhi School Tribunal which allowed the appeal of Smt. Uma Mehrotra, whose services had been terminated.

(2) Briefly stated, the facts are that Mother's International School was established on 23rd April, 1956. On 1st July, 1960 the said School appointed Mrs. Uma Mehrotra as a Teacher. According to the petitioner Mrs. Mehrotra was qualified to teach Nursery classes only and she was recruited for that purpose. After the appointment of Mrs. Mehrotra, the School was taken over by Sri Aurobindo Society. According to the petitioner in the year 1967 this School was bifurcated into Mother's International School, which was recognised and Mother's Nursery Sch èool, which was un-recognised. The case of the petitioner is that Smt. Uma Mehrotra continued to work as a Teacher in Mother's Nursery Schl, which was a separate Institution from Mother's International School. In the year 1973 the Delhi School Education Act came into operation. It is not disputed that the provisions of the said Act were applicable to Mother's International School. According to the petitioner. Mother's Nursery School took a decision to close down and on 1st January, 1975 a letter was written to Smt. Uma Mehrotra informing her that it had been decided not to take any more students in the Nursery School and that her services would stand terminated with effect from 30th April, 1975.

(3) Smt. Uma Mehrotra filed an appeal to the Delhi School Tribunal. By order dated 29th September, 1977 this appeal was allowed. According to the Tribunal the provision of Delhi School Education Act and the Rules framed there under had not been followed and, therefore, her termination was not valid. The orders of termination passed against Smt. Uma Mehrotra were accordingly set-aside.

(4) The present petition has been filed by the Management of the school challenging the aforesaid decision of the Tribunal.

(5) During the pendency of this Writ petition, Smt. Uma Mehrotra died on 16th December, 1978 and her legal representatives have been brought on record.

(6) The contention of the petitioners is that Smt. Uma Mehrotra was not an employee of the Mother's International School and, therefore, the provisions of the Delhi School Education Act were not applicable. In the alternative, it was contended that even if she is regarded to be an employee of Mothers International School, her services were terminated and under the provisions of Section 8(3) of the said Act no appeal is maintainable against termination simpliciter. The submission of the learned counsel is that, relying upon the decision in the case of The Principal and others v. The Presiding. Officer & Ors., and the single Bench decision of this Court in Civil Writ No. 791 of 1977 (Management of Mother's International School v. Delhi School Tribunal) dated 23rd May, 1978 and the decision in L.P.A. No. 56 of 1978, Maya Sharma v. Management of Mother's International School, the termination of services of Smt. Uma Mehrotra did not amount to either dismissal or removal or reduction in rank and, therefore, no appeal was maintainable.

(7) Section 8(2) and 8(3) of the Delhi School Education Act are as follows: "8. Terms and conditions of service of Employees of recognised Private Schools.

(1)...... ........

(2) Subject to any rule that may be made in this behalf, no employee of a recognised private School shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director.

(3) Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under Section 11.

Whereas Section 8(2) uses the expression "dismissal, removal and reduction in rank as well as termination from service", Section 8(3) does not cover the cases of termination simpliciter. As held in the aforesaid decisions in order that the case is covered by the expression "dismissal, removal or reduction in rank," it is necessary that the action is taken by way of punishment. It is not alleged by any one that in the present case the action which was taken against Mrs. Uma Mehrotra was by way of punishment. As held in the aforesaid decisions, no appeal is provided under Section 8(3) to the Tribunal in case of termination simpliciter. The learned counsel is, therefore, right in contending that against the order dated 1st January, 1975 terminating the services of Mrs. Uma Mehrotra an appeal could not have been preferred to the Tribunal. At this stage I must take notice of the fact that one other employee of the School who was similarly situate as Uma Mehrotra, also challenged her termination" This employee namely Smt. Maya Sharma, also filed an appeal to the Tribunal and got relief of reinstatement. The Management of the School then challenged that decision by Civil Writ No. 791 of 1977 which was allowed by Prakash Narain, J.(as he then was) by his judgment dated 23rd May, 1978. Maya Sharma has filed a Letters patent Appeal being L.P.A. No. 56 to 1978 which was allowed on 19th October, 1981. The Division Bench upheld the contention of the School that no appeal was maintainable before the Tribunal. The Division Bench, however, came to the conclusion that Maya Sharma was an employee of Mother's International School and she was governed by the provisions of the Delhi School Education Act. It was further held by the Division Bench in that case that the provisions of Section 8(2) had not been complied with and, therefore, the order of termination of services of Maya Sharma was void Under those circumstances the Division Bench came to the conclusion that the Court ought not to exercise its extraordinary jurisdiction under Article 226 of the Constitution in setting aside the order of the Tribunal. It is on this ground alone that the Letters Patent Appeal of Maya Sharma was allowed.

(8) The observations of the Division Bench in Maya Sharma's case apply to the present case with equal force. In the present case also the learned counsel for the petitioner has not been able to satisfy me that Uma Mehrotra could not be regarded as an employee of Mother's International School As has been noted by the Tribunal, in the present case the initial letter of employment had been issued to Uma Mehrotra by Mother's School. In 1971 a fresh letter of appointment was issued by Mother's International School. With regard to the contribution of provident Fund of the Management, the counsel for the petitioner is unable to bring to my notice any document which would show that the provident fund was contributed by the Mother's Nursery School. The learned counsel says. that he is not aware as to who contributed the management's share of the provident fund. There is, to my mind, no reason to suspect that the facts of Uma Mehrotra's case would be different from those of Maya Sharma's case. In Maya Sharma's case the Division Bench has categorically found as a fact that provident fund was contributed by Mother's International School. In the present case, also, if Mother's International School had not contributed the provident fund, an averment to this effect would certainly have been made in the writ petition filed by the School. In view of the fact that the appointment letters were issued by Mother's International School, it is difficult to come to the conclusion that Uma Mehrotra was not an employee of that School. This being so, the provisions of the Delhi School Education Act became applicable and it was incumbent upon the Management of the School to obtain the necessary permission under Section 8(2) before taking action against Uma Mehrotra. As no such permission was sought and obtained, the order of termination of her services was void. Because the order of termination was void and if Uma Mehrotra had taken action in a proper forum she would have succeeded, this would be a fit case where this Court, in exercise of its jurisdiction under Article 226 of the Consitution, should refrain from interfering with a just and correct order of the Tribunal, even though that order may have been passed without jurisdiction. The learned counsel for the petitioner has relied upon the decision in the case of Pandurang & Ors. v. State of Maharashtra, and contended that a right decision by a wrong forum is no decision in law. There can be no quarrel with this proposition. Nevertheless, even a wrong decision has to be set-aside by a Court of competent jurisdiction. In the present case, applying the dictum in L.P.A. No. 56 to 1978, a writ court ought not to exercise its discretion in setting-aside a fair and a just order even if it is passed by a Tribunal which had no jurisdiction to entertain the appeal. This is more so because at the present moment a suit to recover the just amounts due from the petitioner would be hopelessly barred by time. The employee, namely, Uma Mehrotra had bona fide believed that an appeal before the Tribunal was maintainable and in fact she succeeded before the Tribunal. It will be very harsh and unfair that at this late stage her legal representatives are told that a correct and fair order passed in her favor has to be set-aside on a technical ground. It is now well settled that a writ is not issued as a matter of right. A writ court may, in proper cases, not set-aside the orders which may be technically bad in law as along as the orders which are passed are just, fair and proper. Applying that principle, I feel that this is not a fit case where I should exercise by jurisdiction under Article 226 of the Constitution of India.

(9) For the aforesaid reasons this writ petition is dismissed but with no orders as to costs.