Sonica Jaggi vs Lt. Governor And Ors.
2008 Latest Caselaw 1352 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+                       LPA No.196/2008

%                           Date of decision: 14th August, 2008

Sonica Jaggi                      .....Appellants
                            Through: Mr.Rajiv Aneja, Advocate

                            Versus


Lt. Governor and ors.            ...Respondents

Through: Mr.Sanjeev Sabharwal, with Mr.Alok Singh, Advocates for Govt. of NCT of Delhi CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S.MURALIDHAR

1.Whether reporters of the local news papers be allowed to see the judgment?y

2.To be referred to the Reporter or not ?y

3. Whether the judgment should be reported in the Digest ?y

AJIT PRAKASH SHAH, CJ

1. Admit.

2. With the consent of the counsel appearing for the parties,

the appeal is taken up for hearing.

3. The short question that falls for our consideration in this

appeal is whether a teacher of a private school could move the

Delhi School Tribunal (hereinafter referred to as "the Tribunal")

LPA No.196/2008 page 1 of 10 seeking redressal of her grievance relating to fixation of her

salary.

4. The appellant has filed the present writ petition under

Article 226 of the Constitution of India seeking a direction to

respondents No.4 to 6, namely, the Manager, the Principal and

the Chairman of Shakti Mandir Premwati Public School to refix the

salary of the appellant in the proper pay scale of Physical

Education teacher as provided by the Recruitment Rules and in

accordance with Section 10 of the Delhi School Education Act,

1973 (hereinafter referred to as "the Act"). The learned single

Judge relying upon the observations made by the Division Bench

of this Court in Kathuria Public School and Ors. v. Director

of Education and Anr. {2005 VI AD (Delhi) 893} and also the

judgment of the Supreme Court in T.M.A. Pai Foundation v.

State of Karnataka {AIR 2003 SC 355} has held that no

restriction has been placed on the scope and ambit of the

consideration of the grievances of the teacher or employee by

the Tribunal and consequently the Tribunal is empowered to hear

all the grievances including fixation of the salary. The learned

single Judge declined to entertain the writ petition since an

LPA No.196/2008 page 2 of 10 alternative remedy is available to the appellant for the relief

claimed by her.

5. In our opinion, the order of the learned single Judge is

clearly unsustainable. Section 8 of the Act specifies the terms

and conditions of service of employees of recognised private

schools and sub-section (3) thereof provides that any employee

of a recognised private school who is dismissed, removed or

reduced in rank may, within three months from the date of

communication of such order of dismissal to him, appeal against

the same to the Tribunal constituted under Section 11, namely,

the Delhi School Tribunal. In the present case, the appellant has

not sought redressal in respect of any grievance pertaining to her

dismissal, removal or reduction in the rank. Her plea in the writ

petition is for re-fixation of her salary in accordance with the

Recruitment Rules and Section 10 of the Act. The provisions of

the Act do not provide for any machinery for seeking the said

relief.

6. The reliance of the learned single Judge on the

observations of the Supreme Court in T.M.A.Pai Foundation is

totally misconceived. In T.M.A.Pai Foundation the grievance

LPA No.196/2008 page 3 of 10 of the unaided institutions was that whenever disciplinary action

is sought to be taken in relation to the misconduct by the

employees, the rules that are normally framed by the

government or the university are clearly loaded against the

Management. In some cases, the rules require the prior

permission of the governmental authorities before the initiation of

the disciplinary proceeding, while in other cases, subsequent

permission is required before the imposition of penalties in the

case of proven misconduct. While emphasizing the need for an

independent authority to adjudicate upon the grievance of the

employee or the Management in the event of some punishment

being imposed, it was submitted that there should be no role for

the government or the university to play in relation to the

imposition of any penalty on the employee. The Court dealing

with this submission, observed in paragraph 64 as follows:

"...... Where allegations of misconduct are made, it is imperative that a disciplinary enquiry is conducted, and that a decision is taken. In the case of a private institution, the relationship between the Management and the employees is contractual in nature. A teacher, if the contract so provides, can be proceeded against, and appropriate disciplinary action can be taken if the misconduct of the teacher is proved.

LPA No.196/2008 page 4 of 10 Considering the nature of the duties and keeping the principle of natural justice in mind for the purposes of establishing misconduct and taking action thereon, it is imperative that a fair domestic enquiry is conducted. It is only on the basis of the result of the disciplinary enquiry that the management will be entitled to take appropriate action. We see no reason why the Management of a private unaided educational institution should seek the consent or approval of any governmental authority before taking any such action. In the ordinary relationship of master and servant, governed by the terms of a contract of employment, anyone who is guilty of breach of the terms can be proceeded against and appropriate relief can be sought. Normally, the aggrieved party would approach a Court of law and seek redress. In the case of educational institutions, however, we are of the opinion that requiring a teacher or a member of the staff to go to a Civil Court for the purpose of seeking redress is not in the interest of general education. Disputes between the management and the staff of educational institutions must be decided speedily, and without the excessive incurring of costs. It would, therefore, be appropriate that an educational Tribunal be set up in each district in a State, to enable the aggrieved teacher to file an appeal, unless there already exists such an educational tribunal in a State -- the object being that the teacher should not suffer through the substantial costs that arise because of the location of the tribunal; if the tribunals are limited in number, they can hold circuit/camp sittings in different districts to achieve this objective. Till a specialized tribunal is set up, the right of filing the appeal

LPA No.196/2008 page 5 of 10 would lie before the District Judge or Additional District Judge as notified by the government. It will not be necessary for the institution to get prior permission or ex post facto approval of a governmental authority while taking disciplinary action against a teacher or any other employee. The State Government shall determine, in consultation with the High Court, the judicial forum in which an aggrieved teacher can file an appeal against the decision of the management concerning disciplinary action or termination of service."

(emphasis supplied)

7. In TMA Pai Foundation the Court emphasized the need

for establishing a tribunal to deal with the grievances of the

teachers aggrieved by such disciplinary action. The Court further

directed that till a specialized tribunal is set up, the right of filing

the appeal would lie before the District Judge or Additional

District Judge as notified by the government. It was nowhere

suggested by the Supreme Court for formation of a tribunal to

deal with each and every grievance of the employees. In a

subsequent judgment in Modern School v. Union of India and

others {(2004) 5 SCC 583}, the Supreme Court has clarified that

the principles for fixing fee structure of particular institutions

have been illustrated in T.M.A. Pai Foundation (supra) and

Islamic Academy of Education v. State of Karnataka

LPA No.196/2008 page 6 of 10 {(2003) 6 SCC 697} but it must be borne in mind that those

principles were laid down in absence of any statute operating in

the field. Where, however, a statute operates in the field,

regulation of education would be governed thereby. Where the

regulation of education is governed by a legislative Act, the Court

cannot impose any other or further restrictions by travelling

beyond the scope, object and purport thereof.

8. We may mention that way back in 1978, the Supreme

Court in the case of The Principal and others v. The

Presiding Officer and others {1978 SCC (L&S) 70) held that

under Section 8(3) of the Act it is only an employee of a

recognised private school against whom an order of dismissal,

removal or reduction in rank is passed who is entitled to file an

appeal against such an order to the Tribunal. It was held that as

the school in that case was not a recognised private school on the

relevant date and the impugned order was not one of dismissal,

removal or reduction in rank but an order simpliciter of

termination of service, the appeal to the Tribunal was manifestly

incompetent. In a subsequent decision in the case of Shashi

Gaur v. NCT of Delhi & Ors. {(2001) 10 SCC 445}, it has been

LPA No.196/2008 page 7 of 10 held that Section 8(3) of the Act provides for an appeal not only

against the order of dismissal, removal or reduction in rank,

which is a major penalty in a disciplinary proceeding, but also

against termination, otherwise except, where the service itself

comes to an end by efflux of time for which employee was

appointed.

9. In Kathuria Public School and Ors. v. Director of

Education and Anr. (supra) the challenge made in the writ

petitions was to various provisions of the Act, which require prior

approval for any disciplinary action including in respect of even

suspension. A further challenge was made to the provisions

requiring the presence of a nominee of the Director of Education

on the disciplinary authority. The challenge was based on the

judgment in T.M.A. Pai Foundation case which had held that

there was no reason for the management of a private unaided

educational institution to seek consent or approval of any

governmental authority before taking any disciplinary action and

it is in the ordinary relationship of master and servant to be

governed by the terms of contract of the employment, which

would hold the field. The Division Bench held that the provisions

LPA No.196/2008 page 8 of 10 of Sections 8(2) & (4)&(5), Rule 115(2)&(5), 120(1)(d)(iii)&(iv),

120(2) requiring prior and ex-post facto approval for disciplinary

proceedings would have no application to private unaided

schools. The Bench incidentally took note of the apprehension

expressed by the teachers that if the power of approval, prior or

ex-post facto, as contained in sub-section (4) of Section 8 is held

as not applicable to the unaided schools, it may be possible to

keep a teacher in suspension for long period of time without

proper disciplinary proceedings, which is not desirable. The

Bench observed that this aspect has been taken care of by the

Supreme Court ruling in Shashi Gaur v. NCT of Delhi & Ors.

(supra) wherein the Court held that Section 8(3) of the Act

provides for an appeal not only against the order of dismissal,

removal or reduction in rank, but also against any order of

termination, excepting where the service itself comes to an end

by efflux of time for which employee was appointed. In this

context the Bench made an observation that no restriction has

been placed on the scope and ambit of the consideration of the

grievances of the teacher or employee by the Tribunal and

pending necessary legislative action by the State, the Tribunal

LPA No.196/2008 page 9 of 10 should be able to hear all grievances of the staff and teacher and

not necessarily as restricted to in sub-section (2) of Section 8 of

the Act. Therefore if a teacher is aggrieved by a suspension

order or its prolongation, the grievance can be made before the

Tribunal depending upon the facts and circumstances of the case.

It is nowhere suggested in Kathuria Public School case that the

grievances like fixation of salary can be subject-matter of an

appeal before the Tribunal.

10. In our opinion, the learned single Judge has committed an

error in holding that the appellant has alternative remedy of

approaching the Delhi School Tribunal under Section 8(2) of the

Act. The order of the learned single Judge is therefore set aside.

The writ petition stands remitted to the learned single Judge for

disposal on merits. The writ petition shall be listed before the

learned single Judge on 29th August, 2008 for further hearing.

                                       Chief Justice



August 14, 2008                      S. Muralidhar, J
"nm"




LPA No.196/2008                                         page 10 of 10