Dharam Pal vs Principal, Modern School & Ors.
2009 Latest Caselaw 4199 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                                                       #28
+       LPA 521/2009

        DHARAM PAL                                                  ..... Appellant
                                Through Mr. I.A. Usmani, Advocate

                       versus

        PRINCIPAL & ORS                                            ..... Respondents
                                Through Ms. Ravi Birbal, Adv. for Respondent No. 1.

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

                 ORDER

% 20.10.2009

1. The appellant filed WP(C) No. 7210/2009 in this court challenging the direction

contained in a letter dated 18.2.2009 of the Principal of Respondent No.1 Modern School

requiring him to deposit on or before 28th February, 2009 a copy of the Certificate of

having passed the 10th Class examination of the Uttar Pradesh Board, indicating his date

of birth.

2. The appellant was, at the time of filing of the writ petition, working with the

Respondent No.1 Modern School as a Lab Attendant, a Class-IV post. He stated that he

was the President of the Modern School Karmachari Samiti and used to take up the cases

of the grievances of the workmen. The appellant stated that he had submitted to

Respondent No.1 the certificate of his educational qualifications by a letter dated

7.2.1983. The certificate issued to him by the Hindu Sahitya Sammelan, Prayag

(Allahabad) in which his date of birth is shown as 1.1.1953 was enclosed with the said

letter. He was asked by Respondent No.1 to file his personal details in a prescribed form

on 21.5.1988. This was also complied with.

3. According to the appellant, all of a sudden on 18.2.2009, the impugned letter was

issued by Respondent No. 1. In this letter it was stated that a police verification of the

particulars furnished by the appellant at the time of seeking employment, had been called

for by Respondent No. 1 by a letter dated 29.3.1978. The police verification showed that

as on 29.3.1978 the appellant‟s age was 30 years. He had, in his application dated

23.11.1979 for appointment to the post of Lab Attendant, indicated that his educational

qualification was 10th pass (Science) from the UP Board. He had, however, not furnished

copies of those certificates. The letter dated 18.2.2009 stated that since on the basis of

the police verification letter dated 29.3.1978 the appellant‟s age was 60 years, he should

furnish the Respondent No. 1 School a copy of the certificate issued by the UP Board

indicating his date of birth.

4 In its counter affidavit before the learned single Judge, the Respondent No.1

School raised a preliminary objection as regards maintainability on the ground that an

alternative efficacious remedy was available to the appellant under the Industrial

Disputes Act, 1947 (ID Act). Accepting this objection, the learned single Judge held that

since the appellant satisfied the definition of „workman‟ under Section 2(k) of the ID Act,

he had an efficacious remedy available to him under the ID Act. Consequently, the writ

petition was dismissed "with liberty to the petitioner to avail of the alternate remedy by

invoking the provisions of the Industrial Dispute Act, 1947 within two weeks from

today." The learned single Judge observed that the concerned Court should decide the

appellant‟s application for stay of the order dated 18.2.2009 within six weeks. It was

further directed that the interim order dated 2.3.2009 passed by the Court would remain

operative for a period of six weeks thereafter and that the concerned Court would decide

the stay application uninfluenced by the said interim order.

5. It appears that subsequent to the impugned order, the respondent school has

treated the appellant as having retired from service with effect from 28.2.2009.

6. With the consent of the learned counsel for the parties, the appeal itself has been

heard finally.

7. The principal contention of Mr. Usmani, the learned counsel for the appellant is

that the Respondent School unilaterally took a decision to terminate the services of the

appellant on the basis of a police verification report of 29.3.1978, nearly 31 years later,

without holding any enquiry. It is submitted that inasmuch as the appellant satisfied the

requisite qualification for appointment to the post of Lab Attendant, and had furnished

certificates to the Respondent School indicating his date of birth, there was no occasion

for the Respondent School to suddenly decide to call for his School certificate and then

proceed to terminate his services. It is submitted that the impugned action of the

Respondent in treating the appellant as having retired from service with effect from

28.2.2009 is in fact a disguised order of termination of his services without complying

with the basic principles of natural justice. It is submitted that after serving the School

for 30 years, to be asked to seek a remedy before the Labour Court, would neither be

efficacious nor justified.

8. On behalf of the Respondent School, Ms. Raavi Birbal submits that the appellant

did not produce a copy of the UP Board Certificate and, therefore, the School decided to

act on the basis of the police verification report which showed his age to be 30 years as

on 29.3.1978. It is submitted that the School was justified in treating the appellant as

having retired with effect from 28.2.2009. Ms. Birbal, however, did not dispute that the

appellant was qualified to be appointed as Lab Attendant as of 29.3.1978 and that he did

submit a certificate of Hindu Sahitya Sammelan, Prayag (Allahabad) which showed his

date of birth to be 1.1.1953.

9. Having considered the submissions of the learned counsel for the parties, it

appears to this Court that for an employee who has served the School for over 30 years,

the minimum procedure of an enquiry, in which the appellant is afforded an opportunity

of explaining why he should not be treated as retired with effect from 28.2.2009, ought to

have been followed. Instead, by acting merely on the basis of a police verification

undertaken thirty years earlier i.e. 29.3.1978, the Respondent School proceeded to treat

the appellant as having retired with effect from 28.2.2009. This procedure adopted by the

Respondent School is, in our view, arbitrary and unsustainable in law. We are also of the

view that relegating the appellant at this stage to the procedure under the ID Act is not an

efficacious remedy. That would virtually render nugatory any relief that may be possible

to be granted to the appellant if he was to succeed in showing that his date of birth was in

fact 1.1.1953.

10. Learned counsel appearing for the Respondent School submitted that while the

School will be willing to abide by any directions issued by this Court for conducting a

time bound enquiry preceding a fresh decision on the question of the correct date of birth

of the appellant, he should not, pending such enquiry, be directed to be reinstated. It

appears to this Court that once the notice dated 18.2.2009 and the consequential order

passed by the Respondent treating the appellant as having retired are set aside as being

unsustainable in law, the logical consequence should be that the appellant would stand

reinstated with effect from the date from which he was treated as no longer being in

service of the Respondent School.

11. Accordingly, the impugned order dated 19.8.2009 passed by the learned single

Judge is set aside. W.P.(C)7210/2009 is allowed and it is directed that the Respondent

No.1 School will hold an enquiry into the question of the correct date of birth of the

appellant. A fresh decision will be taken after considering all the materials placed by him

on the record in the present proceedings, as well as any other material that he may wish to

produce and after giving him an opportunity of being heard. The enquiry should be

completed and a fresh decision taken within a period of 12 weeks from today. Pending

such enquiry and decision, the appellant will be reinstated in service from the date from

which he was discontinued from service by the Respondent School on the basis of the

impugned notice dated 18.2.2009. The fresh decision will be communicated to the

appellant forthwith. If consequent upon the enquiry, the fresh decision taken by the

Respondent No.1 School is adverse to the appellant, such decision would be kept in

abeyance for a period of four weeks thereafter to enable the appellant to seek appropriate

remedy available to him in law.

12. With the above directions, the appeal is allowed but in the circumstances, without

any order as to costs.

CHIEF JUSTICE

S.MURALIDHAR, J OCTOBER 20, 2009 pk