Delhi Public School And Anr. vs Director Of Education And Ors.
2002 Latest Caselaw 97 Del

JUDGMENT

Mukul Mudgal, J.

1. This writ petition challenges the Letters dated 10th of June, 1998, issued by respondent No. 1 disapproving the suspension of respondents 3 to 5 who are teachers/employees of the petitioner No. 1-School which is an unaided private School, duly recognized under the Delhi School Education Act & Rules 1973 (hereinafter referred to as 'the Act & Rules').

2. The principal challenge to the disapproval is on the ground that the Letter dated 10th of June, 1998 (Annexure P-7 at Page 44 of the petition) gave no reasons. The said Letter dated 10th of June, 1998 reads as under:

"Sub: Reg. suspension of the three teachers of the school.

Sir,

I am directed to say that the proposed suspension cases of the following teachers of your school were placed before the Director of Education, Delhi.

1. Mrs. Indrani Ghosh, TGT

2. Sh. Ajit Singh, PET

3. Sh. B. Das, PGT

The DE has desired that the Disciplinary Enquiry may be conducted for which nominee of the Director has already been given in case the of Mrs. Ghosh and in the case of other two teachers as being provided separately.

The DE has also ordered that the suspension is not approved."

3. The petitioner No. 1 is a private School; the petitioner No. 2 is the Managing Committee of the petitioner No. 1-School; respondent No. 1 is the Director of Education, Govt. of NCT of Delhi; respondent No. 2 is the Govt. of NCT of Delhi through Chief Secretary; respondent No. 3, Mrs. Indrani Gosh. respondent No. 4, Shri Ajit Singh & respondent No. 5, Shri B. Das, all are teachers/employees of the petitioner No. 1-School.

4. The petitioners' case is that the respondents 3 to 5 had formed an illegal association led by respondent No. 3 and there was continued misbehavior by the said respondents who sought the implementation of the Fifth Pay Commission. All demands, excepting pension and benefits were accepted and the said pensionary demand was still under consideration.

The respondents 3 to 5 in the meanwhile had resorted to go on a hunger strike and repeated endeavors to persuade them to call off the strike were unsuccessful and a civil suit was also filed for perpetual injunction by the school.

Accordingly due to the aforesaid conduct and further misbehavior of the respondents 3 to 5 with the Chairman of the Delhi Public School Society, on 5th of May, 1998, by an emergent Meeting of the Management Committee a unanimous Resolution was passed for suspension of respondents 3 to 5 under Section 8(4) of the Act.

5. Sections 8(4), (5), 115, 118 of the Act & Rules read as follows:

"(4) Where the managing committee of a recognised private school intends to suspend any of its employees, such intention shall be communicated to the Director and no such suspension shall be made except with the prior approval of the Director:

Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct within the meaning of the Code of Conduct prescribed under Section 9, of the employee:

Provided further that no such immediate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period.

(5) Where the intention to suspend, or the immediate suspension of an employee is communicated to the Director, he may, if he is satisfied that there are adequate and reasonable grounds for such suspension accord his approval to such suspension.

"115. Suspension:

(1) Subject to the provision of Sub-sections (4) and (5) of Section 8, the managing committee may place an employee of a recognised private school, whether aided or not, under suspension:-

(a) where a disciplinary proceeding against such employee is contemplated or pending; or

(b) where a case against him in respect of any criminal offence is under investigation or trial; or

(c) where he is charged with embezzlement; or

(d) where he is charged with cruelty towards any student or other employee of the school; or

(e) where he is charged with misbehavior towards any parent, guardian, student or employee of the school; or

(f) where he is charged with the breach of any other code of conduct.

118. Disciplinary authorities in respect of employees. The disciplinary committee in respect of every recognised private school, whether aided or not, shall consist of.....

(i) the chairman of the managing committee of the school;

(ii) the manager of the school;

(iii) a nominee of the Director, in the case of an aided school, or a nominee of the appropriate authority, in the case of an unaided school;

(iv) the head of the school, except where the disciplinary proceeding is against him and where the disciplinary proceeding is against the Head of the school, the Head of any other school, nominated by the Director;

(v) a teacher who is a member of the managing committee of the school; nominated by the Chairman of such managing committee."

6. It is not in dispute that within 15 days of the suspension, approval was not accorded for the suspension of these respondents. However, on 10th of June, 1998, a letter was issued by the Director of Education, approving disciplinary action but disapproving the suspension of the respondents 3 to 5. The present writ petition was thereafter filed in this Court and an interim Order was passed on 17th of June, 1998, staying the letter dated 10th of June, 1998, impugned in this writ petition, which disapproved the suspension of respondents 3 to 5. This interim order has continued up to date. The dispute of respondent No. 4, Mr. Ajit Singh stood resolved by way of a settlement recorded on 5th of December, 2001 and the petition now relates to the suspension of respondent Nos. 3 & 5 only.

7. The relevant portion of the Order of this Court dated 5th of December, 2001 reads as follows:

"The main challenge in the writ petition to the impugned order dated 10th June, 1998 which reads as follows:-

"Sub : Reg. suspension of the three teachers of the school.

Sir,

I am directed to say that the proposed suspension cases of the following teachers of your school were placed before the Director of Education, Delhi.

1. Mrs. Indrani Ghosh, TGT

2. Sh. Ajit Singh, PET

3. Sh. B. Das, PGT

The DE has desired that the Disciplinary Enquiry may be conducted for which nominee of the Director has already been given in the case of Mrs. Ghosh and in the case of other two teachers is being provided separately.

The DE has also ordered that the suspension is not approved."

In so far as the question of suspension is concerned the plea of the learned counsel for the petitioner is that no reason at all has been given by the Director of Education for refusing to accord approval to the suspension and this is not in accordance with the judgment of a Division Bench of this Court reported in Prem Sehgal's case 1986 Raj. L.R. 147 (para 24). He has further relied upon 1989 Lab & I.C. 339 to contend that reasons have to be given for according/refusing approval. On the other hand the Respondents No. 3 and 5 have contended that the judgment of the learned Single Judge is Dhanpatmal's case lays down that reasons need not be given for refusal to accord sanction for approval. The judgment of Anand Dev Tyagi 1997 (70) DLT 135 has also been relied upon to contend that once sanction was not accorded within 15 days, the suspension automatically came to an end and that is how the petitioner school also understood it by communicating it to respondent No. 3."

8. Mr. V.P. Singh, the learned Senior Counsel, appearing for the petitioners submitted that the judgment of the Division Bench in Anand Dev Tyagi v. Lt. Governor of Delhi and Ors. 70 (1997) Delhi Law Times 135 (DB) does not take notice of and follow the law laid down by another Division Bench in Prem Sehgal and Anr. v The Director of Education, Delhi Administration, Delhi and Ors. in CW. No. 2333 of 1984 on 19th of July, 1984. Para 27 of the Prem Sehgal's (supra) judgment reads as follows:

"A catena of authorities was cited from both sides, but it is not necessary to deal with them. In our view, the law is quite clear. The control in respect of aided schools or Government run schools has to be somewhat different. In the case of unaided private school duly recognised by the provisions of the Act the principle of internal management is to be followed and we hold that the Director is entitled to interfere only where on cogent material he comes to the conclusion that the proposed action is either arbitrary or mala fide. In no case can the Director withhold the approval."

The learned counsel thus submitted that inherent in the requirement of coming to a conclusion by the Director that the proposed action is either arbitrary or mala fide, is the necessity of giving reasons for refusing approval. He submits that unless reasons are given, no conclusion of arbitrariness or mala fides can be arrived at an hence the above decision lays down that reasons have to be given for refusing approval.

9. Paragraphs 13, 14 & 15 of Anand Dev Tyagi's judgment (supra) read as under:

"13. In the instant case respondent No. 4 placed the petitioner under suspension forthwith on 10.7.1994 and it is contended that the order was communicated to the Director and his approval was sought. The record reveals that respondent No. 4 merely forwarded a copy of memorandum Annexure PX to the Director of Education as well". Copy was also sent to District Education Officer. The communication, which thereafter was sent by respondent No. 4 to the Director of Education is Annexure R-4/24 dated 26.7.1994 with a copy to Education Officer. The petitioner was placed under suspension on 10.7.1994. In case the petitioner had been put under suspension on 10.7.1994 by the Managing Committee, in exercise of its power to put an employee under suspension with immediate effect on its satisfaction that immediate suspension was necessary by reason of gross misconduct, the same could remain force at the most for a period of 15 days from the date of suspension. Suspension thereafter could remain operative only on the Director's according his approval before the expiry of the period of 15 days. No doubt the suspension was communicated by respondent No. 4 to the Director but no approval was granted by the Director before the expiry of period of 15 days. Director was required to take a decision within the ambit of Sub-section (5) of Section 8 on his satisfaction that there were adequate and reasonable grounds for suspension. There is nothing in the Act or in the Rules that in the event of Director not according his approval, the same will be deemed to have been accorded. In other words, there is no deeming provision. Communication of the fact of suspension to the Director of Education and according to his approval to this act of placing an employee under suspension before the expiry of period of fifteen days is a sina qua non for the period of suspension to remain in force beyond fifteen days. On approval not being granted the suspension will cease to be operative. Power lies with the Director either to approve being granted that period of suspension will extend beyond fifteen days. Not taking decision by the Director within fifteen days will also amount to approval not being accorded. No doubt the management in an emergent situation, as is referred to in the second proviso to Sub-section (4) of section has a right to forthwith place the employee under suspension, but this act of placing suspension requires approval. Approval has to be accorded by the Director on his satisfaction that there are reasonable grounds for such suspension. It requires positive decision to be taken. Approval may be either accorded or withheld or may not be accorded at all. There is no question deemed approval as is contended on behalf of respondent No. 4. Reference may be made to a decision of the Supreme Court in HPMC v. Shri Suman Behari Sharma, 1996 (5) SC 40.

14. In view of the above there being no approval accorded by the Director before the expiry of period of 15 days from 10.7.1994 the suspension of petitioner automatically came to an end on 25.7.1994. On ad from 25.7.1994, it cannot be said that the petitioner has remained under suspension. Petitioner thereafter was neither placed under suspension afresh separately nor a request was made by respondent No. 4 to the Director for placing the petitioner again under suspension. It is not shown that Education Officer or Deputy Education Officer concerned were delegated with the powers of the Director. It is the Director of Education alone who can exercise the power to grant prior or post approval of suspension under Section 8(5) of the Act. Education Officer or Deputy Education Officer could not have taken any decision at their own end.

15. Consequently the action of respondent No. 4 in treating the petitioner to be under suspension is not in consonance with law. Petitioner's suspension will be deemed to have come to an end on 25.7.1994. On and from that date he will be deemed to have occupied the same position, which he occupied prior to 10.7.1994. Keeping in view the seriousness of the allegations made against the petitioner, we leave it open to respondent No. 4, whether to assign any work of teaching or otherwise or not, to the petitioner. Resultantly we partly allow the writ petition directing respondent No. 4 not to treat the petitioner under suspension on and from 25.7.1994 and as a consequence thereto we further direct respondent No. 4 to pay all consequential benefits to the petitioner as regards pay and allowances, subject all course to the petitioner's satisfying respondent No. 4 will work out the dues and pay the same to the petitioner for the period from 25.7.1994 onwards within a period of three months from the date when the petitioner will submit the necessary proof/certificate about his not being in gainful employment."

10. The learned Counsel also submitted that in Prem Sehgal's Case (supra) it was clearly stated that when a prima facie case is made out, the Director of Education should grant approval to the suspension. He has also relied upon the observations made in Para 19 of Frank Anthony Public School Employees' Association v. Union of India and Ors. to contend that the Director is bound to grant the approval, if there are adequate and reasonable grounds for suspension. He has further submitted that there are adequate & reasonable grounds in the present case apart from the prima facie case and, therefore, the disapproval of the suspension by the Director of Education cannot stand scrutiny.

11. Mrs. Indrani Gosh, the respondent No. 3, appearing in person by placing reliance on Letter dated 20th of May, 1998 has sought to contend that this letter clearly expresses disapproval of the suspension and gives reasons and accordingly the plea of the learned Counsel for the petitioners that there were no reasons given by the respondent No. 1 is wholly unsustainable and it is in fact reflected in the Letter of the petitioners dated 20th of May, 1998 where the petitioners themselves have noticed the aforesaid letter dealing in detail with the reasons advanced in the said Letter. The respondent No. 3 has further relied upon Para 13 of Anand Dev Tyagi's Case (supra) which has been extracted above to contend that in the absence of approval, suspension cannot remain in force after 15 days. Reliance has also been placed by respondent No. 3 on the judgment of the Supreme Court in Union of India v. E.G. Nambudri to contend that reasons are not required to be recorded in absence of any statutory provisions requiring communication of reasons but reasons must exist and must be shown to the Court in the case of judicial review. However, it is not necessary to consider the applicability of the above judgment in Nambudri's Case (supra) in light of the view being taken by me in this judgment on the differing view being taken by two Division Bench judgments of this court.

12. The respondent No. 3 further submits that the petitioners themselves acted on the Letter of the disapproval and released her full salaries & allowances for the month of May, 1998 on 12th of June, 1998 and, therefore, sought to mis-utilize the Order of stay granted by this Court on 17th June, 1998 and the interim Order, passed by this Court on 17th of June, 1998 was otiose in view of the release of pay & allowances by the petitioners thereafter to the respondent No. 3 on 12th of June, 1998. She further submitted that the full pay could and would not have been released unless and until the suspension had been revoked and so understood by the petitioners.

13. Mr. Singh, the learned Counsel for the petitioners in rejoinder has submitted that with the coming into force of the interim Order of this Court dated 17th of June, 1998 which stayed the operation of the disapproval of suspension of respondents 3 to 5, the suspension of respondent Nos. 3 & 5 stood revived. 13. The respondent No. 3, Ms. Indrani Ghosh has filed a separate Civil Writ Petition No. 290/2000, claiming the following reliefs:

"(a) pass a writ, order or direction in the nature of declaration that the action of the Respondent in not enhancing the Subsistence Allowance of the Petitioner during the period of her illegal suspension is discriminatory and violative of the Petitioner's fundamental rights under Articles 14 and 21 of the Constitution of India apart from being violative of Rule 116 of the Rules.

(b) pass an appropriate writ, order or direction in the nature of a mandamus commanding the Respondent to pay the Petitioner enhanced Subsistence Allowance as per Rule 116 of the Rules, w.e.f. November 1998.

(c) pass an appropriate writ, order or direction in the nature of a mandamus commanding the respondent to pay the Petitioner all arrears of revised Subsistence Allowance w.e.f. November 1998 as per Rule 116 of the Rules, and prayer (b) herein above."

14. Both these writ petitions were taken up together as they are both interlinked.

15. If the law laid down in Prem Sehgal's Case (supra), para 27 of which requires that reasons have to be given for refusing to accord approval to the suspension of the teachers is applicable, then the learned counsel is right in contending that unless and until reasons are given for approval, no finding of arbitrariness or mala fide can be recorded so as to deny approval, and in such a situation the writ petition has to be allowed and the impugned order dated 10th June 1998 is required to be set aside. It is also evident that if the plea of the respondent is accepted that Anand Dev Tyagi's decision is applicable and was not followed in the present case as fifteen days had passed from the date of the suspension, it is clear that by virtue of non-approval there is deemed approval, in view of the law laid down in Anand Dev Tyagi's case. If Anand Dev Tyagi's case is applicable to the facts of the present case then an order passed 15 days beyond the suspension whether approving/disapproving the suspension is otiose and the suspension ceases to operate after 15 days.

16. The plea of the respondents 3 & 5 while seeking vacation of the interim order and the dismissal of the writ petition is that under the Second Proviso to Section 8(4) of the Act, it is mandatory for the Managing Committee to obtain approval of the suspension within 15 days from the date of suspension which period expired on 20th of May, 1998 whereas the order of refusal was communicated on 10th of June, 1998. Consequently, the interim Order of this Court dated 17th of June, 1998 could not have been operative unless and until a specific order was obtained for permission to suspend the respondents 3 to 17. The respondents 3 to 5 have contended that since their full pay & allowances for the month of May, 1998 were released to them and even the respondents 3 to 5 were cognizant and conscious of this legal position and thereafter have sought to misuse the Order of this Court dated 17th of June, 1998 to wrongly continue the suspension of the respondents 3 to 5. The plea of the respondents 3 and 5 that the interim order of this Court dated 17th June 1998 was of no avail to the petitioner in view of the fact that by non grant of approval of suspension within 15 days, the suspension automatically stood revoked, can only be decided after the divergence of views of two Division benches in Prem Sehgal's and Anand Dev Tyagi's cases is resolved.

17. In my view, the Anand Dev Tyagi's judgment (supra) is very clear to the effect that once the approval is not granted within 15 days then there is no question of deemed approval and it is clearly held in Anand Dev Tyagi's case (supra) that in the event of approval not being granted, the suspension will cease to be operative beyond 15 days.

18. Consequently as per the law laid down by the Division Bench in Anand Dev Tyagi's judgment (supra), the suspension would have automatically come to an end after the expiry of 15 days time after 5th of the May, 1998, i.e., on 20th of May, 1998. In this view of the matter, the further Letter, issued by respondent No. 1 on 10th of June, 1998 was otiose as the position of law had already come into play and the suspension as per Tyagi's judgment (supra) would have stood revoked. However, if the petitioners' plea is sustained then the impugned Letter dated 10th of June, 1998 has not given reasons in support of the disapproval of the suspension then the dictum of Anand Dev Tyagi's case that no action within 15 days on the request for approval for suspension amounts to non approval is contrary to the law laid down in Prem Sehgal's case (supra). In my view Prem Sehgal's decision clearly predicates that reasons are required to be given in order to arrive at a finding of arbitrariness and mala fides for non approval of the request for suspension. This position of law in Prem Sehgal's case necessitates giving of reasons and accordingly cannot visualize the deemed grant of the request for approval of suspension by not taking any action for 15 days and thereby avoiding giving reasons. The position of law laid down in Anand Dev Tyagi's (supra) case clearly does not take into account the position of law laid down in Prem Sehgal's case (supra). Both the above judgments are Division Bench judgments and the latter judgment of Anand Dev's Tyagi's case has not taken note of the earlier judgment in Prem Sehgal's case (supra). In this view of the matter and the divergence of the irreconcilable views of two Division Bench judgments, in my view the present case is required to be placed before the Hon'ble the Chief Justice to consider, if deemed appropriate, whether the views of the two Division Benches of this Court in Prem Sehgal and Anand Dev Tyagi's cases (supra) need reconciliation by a Larger Bench. Accordingly the present writ petition be listed before the Hon'ble Chief Justice for directions on Friday, the 25th of January, 2002.

19. However, I am informed that the enquiry against the respondent No. 3 is continuing and it will be in the interest of justice if the said enquiry is directed to conclude expeditiously. However, the prayer of the respondent No. 3 in CWP No. 290 of 2000 deserves to be considered. In this connection she placed reliance on Rule 116 of the Delhi School Education Rules 1973, which reads as follows:

"116. Subsistence allowances: (11) An employee, under suspension shall, in relation to the period of suspension, be entitled to the following payments, namely:-

(a) a subsistence allowance at an amount equal to one half of the pay last drawn by him and in addition to such pay, dearness allowance at the appropriate rate to be paid in the same manner as salary:

Provided that where the period of suspension is extended before (six months) the managing committee shall be competent to vary the amount of subsistence allowance any period subsequent to the period of past (six months) as follows:

(i) the amount of subsistence allowance may be increased by a suitable amount, not exceeding fifty per cent of the subsistence allowance admissible for the period of first [six months], if, in the opinion of the managing committee, to be recorded in writing, the period of suspension has been prolonged, for reasons not directly attributable to the employees;

(ii) the amount of subsistence allowance may be reduced by a suitable amount not exceeding fifty per cent of the subsistence allowance admissible for the first six months, if, in the opinion of the managing committee, to be recorded in writing the period of suspension has been prolonged due to reasons directly attributable to the employee;

(iii) any other compensatory allowance admissible, from time to time, on the basis of which the employee was in receipt on the date of suspension....."

20. I am of the view that the following circumstances necessitate the application of Rule 116 (1) & (iii):

(a) the enquiry has not concluded within six months;

(b) the petitioner school itself was of the view that the suspension stood revoked on expiry of fifteen days as evidenced by payment of full salary and allowance on 12th June 1998 to the respondent No. 3, Ms. Indrani Ghosh.

(c) The prolongation of the enquiry and suspension is not attributable to the respondent Nos. 3 and 5. In fact they have been pressing for an early conclusion. In fact from 20th March 1999 till 20th September 1999 the enquiry was not held and only resumed pursuant to this Court's Order dated 20th September 1999.

(d) Even thereafter enquiry in the case of the respondent No. 3 is not being held since July, 2000 to December, 2001.

21. I am, therefore, of the view that the respondent No. 3 is entitled to the invocation of Rule 116 (i) & (iii) with effect from six months from the date of suspension i.e., from 7th of November, 1999. This payment of arrears of enhanced subsistence allowance from 7.11.1999 payable under Rule 116 (i) & (iii), be made to the respondent No. 3 within a period of four weeks from today so as to make up the arrears as per the above directions given under Rule 116. Thereafter the respondents 3 will be continued to be paid the enhanced subsistence allowance till the suspension continues, or further directions are given by the Bench of Hon'ble the Chief Justice. I accordingly direct that the enquiries against respondent No. 3 be conducted expeditiously and be completed within a period of 10 weeks from today.

22. By this averments in the additional affidavit dated 7th August 2001 the respondent No. 5 has relied upon an order of the Director of Education dated 13th July 2000. The operative portion of the said order reads as follows:

"In view of the above findings particularly with regard to the validity of the constitution of the disciplinary authority having Shri Promod Grover as a member on it, the entire proceedings are vitiated for having been conducting by a disciplinary authority which has not been constituted according to the rules. Accordingly, its findings and recommendations are not accepted and the case is remanded back to the management with the directions to conduct the proceedings de novo after the constitution of the disciplinary authority as prescribed in Rule 118 of the Delhi School Education rules 1973."

The respondent No. 5 has also submitted that even after 13th July 2000 no communication whatsoever has been received from the school about any proceedings pursuant to the Director of Education's order dated 13th July 2000 by him and accordingly sought the vacation of the interim order of suspension passed by this Hon'ble Court. The respondent No. 5 also sought the dismissal of the writ petition. The above order of the Director of Education has set aside the findings of the disciplinary proceedings vitiated as the disciplinary authority was not constituted according to the rules. Since the Director has directed the proceedings to commence de novo and no proceedings have been commenced since 13th July 2000 till date. It is, therefore, to be considered whether the suspension order sought to be vacated or not.

23. In this view of the matter and the conclusion of the enquiry in so far as respondent No. 5 is concerned the question whether or not the suspension and its approval was to be governed by Anand Dev Tyagi or Prem Sehgal's case (supra) would become academic. In this respect in reply to the averments of the respondent No. 5 about the order of the Director of Education dated 13th July 2000, it is not stated by the petitioner whether any action was taken by the petitioner to commence the enquiry ater 13th July 2000. It is also not stated whether the order dated 13th July 2000 was challenged before any Court. The averment of the respondent No. 5 that no enquiry was commenced after 13th July 2000 is also not denied. Consequently, the suspension of respondent No. 5 is totally unjustified and insofar as the respondent No. 5 is concerned the conduct of the petitioner clearly amounts to misutilising the interim order of this court which cannot continue at all qua respondent No. 5. Consequently in sofar as respondent No. 5 is concerned the interim order stands vacated. Consequently since the enquiry persuant to the suspension has been found to be vitiated the respondent No. 5 shall be reinstated with full back wages from the date of suspension minus the amount of suspension allowance already paid to him. The aforesaid amount be paid within four weeks from today.