Dav College Managing Committee vs Surender Rana And Anr.
2006 Latest Caselaw 2171 Del

JUDGMENT

Mukul Mudgal, J.

1. The Appellant, the Dayanand Anglo-Vedic College trust and Management Society, Chitragupta Road, New Delhi has filed the present Letters Patent Appeal against the judgment of the Learned Single Judge dated 8.2.2006 passed in C.W.P. No. 1249/2002 wherein the Learned Single Judge dismissed the writ petition on merits by its order dated 8.2.2006. Aggrieved by the said order the Appellant has filed the present Letters Patent Appeal.

2. The facts leading to the present appeal are that the appellant is a unit of Dayanand Anglo-Vedic College Trust Management Society, Chitragupta Road, New Delhi registered under the Societies Registration Act, 1860. For the management and control of all its institutions the Trust has formed a Committee which is known as the DAV College Managing Committee.

3. The appellant institution is being exclusively run by this trust from its own funds and resources without any financial aid from Respondent No. 2 or any other Government agency.

4. The respondent No. 1 was appointed as store-keeper by the Appellant vide Appointment Letter dated 7.8.96 on probation for a period of one year. According to the terms of this appointment, during this period of probation, the services of the Respondent No. 1 could be terminated at any time by giving one month's notice or one month's salary in lieu thereof.

5. In accordance with the said terms, the services of the Respondent No. 1 were terminated by letter dated 1.7.1997 as the appellant was not satisfied with the work of the Respodent No. 1 and he was paid one month's salary in lieu of notice as per the terms of his letter of appointment.

6. The Respondent No. 1 felt aggrieved by the said order of termination and filed an appeal before the Delhi School Tribunal on 28.10.1997 Along with the application for condensation of delay in filing the appeal. Respondent No. 1 pleaded that his termination from services was bad in law as the prior approval from the respondent No. 2 had not been taken by the appellant herein for the termination of Respondent No. 1.

7. The appellant contested the appeal by filing a reply denying the allegations of the Respondent No. 1. The Learned Tribunal after hearing the parties found a violation of Rule 105 of the Delhi School Education Rules, 1973 allowed the appeal of the Respondent No. 1 and directed the appellant to take back Respondent No. 1 into service by its judgment dated 15.01.2002.

8. Aggrieved by the said order, the appellant herein filed a writ petition before this Hon'ble Court on 18.02.2002 which was registered as civil writ petition No. 1249/2002. The said writ petition was contested by Respondent No. 1 by filing its counter-affidavit. The said writ petition was listed for final hearing on 22.11.2005 when the counsel for the appellant and the Respondent No. 2 appeared before the Learned Single Judge and since the counsel for the Respondent No. 1 was not available the matter was accordingly adjourned to 7.4.2006 for final hearing.

9. On 3.3.2006, the Respondent No. 1 visited the office of the Appellant and sought reinstatement in the services on the basis of the order of the Learned Single Judge dated 8.2.2006. The Appellant claims that the writ petition of the appellant was listed before the Learned Single Judge on 8.2.2006 and the Learned Single Judge without hearing the appellant dismissed the writ petition on merits vide the impugned order dated 8.2.2006.

10. The Learned Single Judge's order dated 8.2.2006 has been reproduced below:

There is no appearance on behalf of the petitioner. There was no appearance on the previous date of hearing namely 28.11.2005.

The petitioner has questioned an order of the Delhi School Tribunal dated 15.01.2005 which held that the termination of the respondent employee was not in accordance with law. The respondent, who was in those proceedings appeared and took the position that it was a minority institution. However, it did not produce any material in that regard.

The Tribunal in the order recorded as follows:

4. I have heard the Learned Counsels for the parties. The respondents have not placed any documents to show that the respondent school is being run as a minority institution. In order to prove this fact, the respondents should have placed on record the Memorandum and Articles of Association of the Society, which is running the school there is also no document issued by the Director of Education to show that the respondent School is a minority school. It is therefore, to be covered under Chapter-IV of the Delhi School Education Act, 1973.

5. There is no dispute about the fact that the appellant was working in the respondent school as a Store-Keeper. The appointment letter filed by the appellant shows that he was appointed on 1.8.1996 and was put on probation for an initial period of one year. This being the situation. Services of the appellant could have been terminated only in accordance with the provisions of the Rule 105 of the Delhi School Education Rules 1973.

6. Rule 105 of the Delhi School Education Rules, 1973 requires that before the termination of an employee, prior approval of the Director of Education has to be obtained. Admittedly, no such approval was obtained by the respondents before terminating the services of the Appellant. The order of termination of his service is, therefore liable to be set aside. The appeal is accordingly accepted. The order of termination dated 30.6.1997 is accordingly set aside. It is therefore, ordered that the appellant be reinstated to his original position. The appellant shall also be entitled to the cost of this appeal which is assessed as Rs. 2000/-

Having considered the pleadings and documents on record, I do not find any infirmity in the order of the Tribunal. The petition is accordingly dismissed.

11. We are in entire agreement with the observations made by the Learned Single Judge in affirming the order of the Tribunal. We also feel that the Tribunal could not have decided in the favor of the Appellant since the appellant failed to provide any documentary proof to substantiate their claims that they are a minority institution and could thus invoke the right guaranteed under Article 29(2) of the Constitution since they are a religious minority under Article 30(1).

12. We are not going into the issue of whether the appellant institution is a minority institution under Article 30(1) of the Constitution in Delhi since no evidence to substantiate this claim has been brought to our notice. This point was not urged before the learned Single Judge as the appellant chose not to appear and accordingly this ground cannot be raised in appeal to assail the judgment of the learned Single Judge. We therefore leave this issue open for an appropriate case and reaffirm the judgment of the Learned Single Judge.

13. The records of this case reveal that the Respondent No. 1 was a victim of bureaucratic delay and complete apathy of the Appellant. We are satisfied thus that there is no reason whatsoever for us to interfere with impugned judgment of the Learned Single Judge.

14. Accordingly, this appeal is dismissed. We also direct that appellant reinstate respondent No. 1, according to the Single Judge's judgment within three weeks and in any case, not later than 22nd December, 2006.