Rosetta Williams vs The Director Of Education, Govt. ...
2007 Latest Caselaw 703 Del

JUDGMENT

Kailash Gambhir, J.

1. By way of this writ petition under Article 226 of the Constitution of India, the petitioner who is employed with the Delhi Public School International, has sought to challenge the disciplinary proceedings initiated against her pursuant to the articles of charges dated 14.2.2007 being violative of fundamental rights of the petitioner and the principles of natural justice.

2. Mr. Mahabir Prasad, Senior Advocate for the petitioner has contended that although respondent/DPS International School is fully governed by the Delhi School Education Act and the Rules framed there under but with impunity the respondent school has initiated disciplinary proceedings against the petitioner in flagrant violation of the mandatory provisions of the Delhi School Education Act. Mr. Mahabir Prasad has contended that school itself has adopted the Delhi Education Act and the Rules and therefore, the service conditions of the petitioner are guided by the Delhi School Education Act and the Rules framed there under would be applicable to the school. Counsel for the petitioner has also placed reliance on Rule 118 of the Delhi School Education Act which prescribes a nominee of the Director of Education as one of the Members of the Disciplinary Authority. Counsel for the petitioner contended that no such nominee of the Director of Education is a Member of the Disciplinary Authority and therefore the constitution of Disciplinary Committee is per se illegal. Counsel for the petitioner has also contended that suspension of the petitioner is also in violation of Section 8(4) of the Delhi School Education Act and the Rule 115 of Delhi School Education Rules framed there under.

3. On the other hand Mr. Rajiv Shakdhar, Senior Advocate appearing for the respondent/school has seriously opposed filing of the present petition. Mr. Shakdhar states that present petition is a gross abuse of the process of the Court as the petitioner cannot be allowed to avail two parallel remedies on the same cause of action. Counsel for the respondent has contended that already the petitioner has filed two civil suits being CS (OS) No. 2401/2006 and CS (OS) No. 24/2007 which are pending disposal before Delhi High Court on its original side. Vide order dated 2.4.2007, petitioner was directed to place pleadings of aforesaid civil suits on record.

4. I have heard learned Counsel for the parties at a considerable length. Although there is no absolute bar on the continuation of the two parallel proceedings especially when one matter is pending before the civil court and the other before the writ court but still the continuation of two parallel proceedings would depend upon the facts of each and every case. Civil Suit No. 2401/2006 is a suit for permanent and interim injunction which was filed at the stage when the petitioner had challenged some kind of interference from the side of the management of the respondent/school in due discharge of her administrative and financial powers. In the said suit the petitioner has also sought directions to appoint her as the Secretary Member of the Managing Committee of the DPS International, in accordance with the provisions of the Memorandum of Association of the Society and Delhi School Education Act and the Rules framed there under. The reliefs being sought in CS (OS) No. 2401/2006 are independent and distinct and therefore the civil suit being CS(OS) No. 2401/2006 cannot come in the way of the present writ petition. The other civil suit being CS(OS)No. 24/2007 is a suit for declaration. The said suit was filed by the petitioner after the petitioner was placed under suspension vide order dated 28.12.2006. The petitioner has placed reliance on various provisions of the Delhi School Education Act and the Rules framed there under, especially Section 8 of the Delhi School Education Act and Rule 115 of Delhi School Education Rules assailing the said suspension order as being in complete violation of the provisions of the Delhi School Education Act and the Rules framed there under. The petitioner in the said suit claimed declaratory decree so as to declare her suspension order dated 28.12.2006 as non-est, null and void. It would be appropriate to reproduce the prayer paragraph of CS(OS).No. 24/2007 as under:

(a) pass a declaratory decree declaring the suspension order dated 28.12.2006 passed by the Chairman of the defendant No. 2 as nonest and null and void;

(b) award the costs of this suit to the plaintiff; and

(c) grant any other relief which the Court may deem fit and proper in the facts and circumstances of the case.

5. The arguments on the interim application were heard by my learned brother Justice G.S. Sistani and vide order dated 27.2.2007 certain directions were given. It would be relevant to reproduce the said directions as under:

It is contended by learned Counsel for the plaintiff that the Order of suspension is bad in law as the defendants have failed to comply with the provisions of the Delhi School Education Act. The case of the defendants is that the Delhi School Education Act is not applicable as the D.P.S. International School is not a recognised school. It is further submitted that in case, the Act is applicable then this Court would have no jurisdiction as the suit would not lie in view of Section 25 of the Delhi School Education Act and even, otherwise, a civil suit is not maintainable.

After some hearing, it is considered appropriate at this stage that the enquiry, which has been ordered, may be continued. The copy of the charge sheet has been supplied to the plaintiff who will file reply thereto. The defendants will conclude the enquiry within six weeks after the reply is received. Pending enquiry, the cell phone and laptop which is in the possession of the plaintiff will not be taken back, however, the plaintiff will continue to pay the bills on the earlier terms and conditions.

It is stated that, in case, during the pendency of enquiry the defendants take the services of a professional, similar opportunity will also be given to the plaintiff, as well.

Learned Counsel for the defendants submit that enquiry will be carried out following the principles of natural justice. After the enquiry report is finalised, the same shall be placed before the disciplinary authority/managing committee who will file their recommendations in a sealed cover before this Court.

List on 08.05.2007.

Parties will cooperate to enable the time schedule to be followed.

6. A bare perusal of averments made in the plaint filed in CS.(OS).No. 24/2007 and the aforesaid order dated 27.2.2007 and to compare the averments contained in the present writ petition and the prayers made in the writ petition, the position becomes explicitly clear that in substance the petitioner has sought to challenge action of the respondent on the same grounds while taking recourse to two parallel and concurrent remedies. In the said interim order the clear cut directions have been given by the civil court that the enquiry against the petitioner would continue and the defendant/respondent will conclude the enquiry within a period of six weeks after the reply is received by them. It has also been observed by the Court that the enquiry will be carried out after following the principles of natural justice and both the parties would cooperate so as to achieve the outcome of the enquiry within the time schedule.

7. In the stay application being C.M. No. 4622/2007, the petitioner has sought directions against the respondent from proceeding with the disciplinary proceedings consequent to the Article of Charges dated 14.2.2007 during the pendency of the present petition. No satisfactory reply was given by the counsel for the petitioner when asked as to whether this Court can grant such restraint order as being claimed in the interim application on the face of the interim direction given by the civil court, whereby directions have been given to continue with the enquiry proceedings.

8. The counsel for the petitioner has placed reliance on the judgment of the Supreme Court in , National Institute of Mental Health and Neuro Sciences v. C. Parameshwara in support of the preposition that the second case under Section 10 CPC can only be stayed when whole of the subject matter in both the suits are identical. Counsel for the petitioner has also placed reliance on another judgment of the Supreme Court in The Principal and Ors. v. The Presiding Officer and Ors. to support his preposition that prior approval of Director of Education is required before order of termination is passed against an employee of the recognised private school. Both the aforesaid judgments do not help the case of the petitioner.

9. The facts of the National Institute of Mental Health and Neuro Sciences (supra) are totally dis-similar to the facts of the instant case, where, the question was of stay of civil court proceedings after the award of the labour court was challenged before a writ court under Article 226 of the Constitution. The Supreme Court in this judgment has held as under:

...Since the scope of the writ petition filed by the management was entirely distinct and separate from the suit instituted by the management in the civil court, we are of the view, that, the High Court had erred in directing the trial court not to proceed with the drawing up of the decree.

10. The facts of The Principal and Ors.(Supra) are also not applicable to the facts of the present writ petition as in the said case the Supreme Court has dealt with the school which was duly recognised and therefore the prior approval of the Director of Education under Section 8(2) of the Delhi School Education Act has been held to be imperative.

11. On the other hand counsel for the respondent has relied upon the judgment of the Supreme Court in K.K.Modi v. K.N. Modi and Ors. . Para 43 and 44 of the said judgment are reproduced below:

43. The Supreme Court Practice 1995 published by Sweet and Maxwell in paragraph 18/19/22 (p.344) explains the phrase "abuse of the process of the court" thus:

This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.

44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.

12. It is an admitted fact on record that the petitioner has already chosen the remedy of filing civil suit seeking declaration against the alleged illegal action of the respondent. This remedy, the petitioner has apparently taken under Section 34 of the Specific Relief Act. Once the petitioner has chosen to take recourse to civil remedy then to invoke the writ jurisdiction of this Court under Article 226 of the Constitution on the same cause of action, based on almost identical facts involving same legal question can result in conflicting decisions.

13. As already stated above, it does not impinge the jurisdiction of the High Court under Article 226 of the Constitution, even where one has taken recourse to a civil remedy prior in time. In a given case Writ Court may have to examine wider issues such as violation of fundamental rights, violation of some law, enactment or violation of principles of natural justice or other similar issues. But where a kind of overlapping of jurisdiction is noticed and there can be conflict of decisions, then, in a given case the High Court may decline to exercise jurisdiction in favor of such party under Article 226 of the Constitution which is a jurisdiction of discretion and equity. The present writ petition perhaps could have been entertained had the petitioner withdrawn the said Civil Suit No. 24/2007.

14. In civil suit already the directions have been given by the Court for continuation of the enquiry proceedings then, how, in this petition this Court while exercising writ jurisdiction can set at naught the order passed by the learned Single Judge on the original side. This would rather amount to sitting in appeal over the decision of the civil court exercising jurisdiction on the original side. I, therefore, do not feel inclined to exercise writ jurisdiction in the present case. The petition is devoid of any merit Dismissed.