Santosh Kumari vs Lt.Governor Of Delhi & Ors.
2010 Latest Caselaw 2210 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                       Date of decision: 27th April, 2010.

+                                W.P.(C) 7858/2004

       SANTOSH KUMARI                                                       .... Petitioner
                    Through:                 Mr. H.S. Thukral, Advocate.

                                          versus

       LT.GOVERNOR OF DELHI & ORS.                      ..... Respondents
                     Through:  Mr. V.K. Tandon with Ms. Parul Sharma,
                               Advocate for R-1&2.
                               Mr. J.P. Sengh, Sr. Advocate with Mr. S.C.
                               Kalra, Advocate for R-3&4.

                                          AND

+                                 W.P.(C) 23122/2005

       SANTOSH KUMARI                                                      ..... Petitioner
                    Through:                 Mr. H.S. Thukral, Advocate.

                                          versus

       LT.GOVERNOR OF DELHI & ORS.                       ..... Respondents
                     Through:  Mr. Amiet Andlay, Advocate for R-1&2.
                               Mr. J.P. Sengh, Sr. Advocate with Mr. S.C.
                               Kalra, Advocate for R-3&4.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
       1.      Whether reporters of Local papers may
               be allowed to see the judgment?                      No

       2.      To be referred to the reporter or not?               No

       3.      Whether the judgment should be reported              No
               in the Digest?

RAJIV SAHAI ENDLAW, J.

1. W.P.(C) No.7858/2004 was preferred by the petitioner, then working as Principal

of Mata Shiv Devi Public School managed by Tri Nagar Shiksha Pracharni Sabha,

seeking quashing of the order dated 22nd April, 2004 dismissing her from the post of

Principal. It was the case of the school that the petitioner did not have the requisite

qualifications for the post of Principal and was removed from the said post pursuant to

the directions of the Director of Education, the school being a recognized unaided private

school. This Court vide order dated 17th May, 2004 in W.P.(C) No.7858/2004 directed

that during the pendency of the petition the petitioner would be permitted to continue as

the Principal of the school. The said order continues till date.

2. However, subsequently the school charge sheeted the petitioner and initiated

disciplinary proceedings against her. W.P.(C) No.23122/2005 has been filed seeking the

reliefs of change of Inquiry Officer and venue of inquiry and other directions qua the

conduct of the inquiry proceedings initiated against the petitioner. Vide interim order

dated 7th December, 2005 in W.P.(C) No.23122/2005, the inquiry proceedings initiated

against the petitioner were stayed and directions issued for payment of subsistence

allowance to the petitioner who had since been placed under suspension. Vide subsequent

order dated 16th March, 2009 in W.P.(C) No.23122/2005, inquiry proceedings were

permitted to be continued with the change in venue, in the office of the Director of

Education. However the Inquiry Officer was restrained from passing any final order

without the leave of the court. On 17th February, 2010 the petitioner contended that the

Inquiry Officer was not taking on record her representations. The counsel for the school

informed that the inquiry had since been completed and thus the question of taking any

representation from the petitioner then did not arise. This Court directed the petitioner to

deliver her representation to the Inquiry Officer within one week and directed the Inquiry

Officer to consider the said representation and even if he had already submitted the report

to the Disciplinary Authority, to submit an additional report to the Disciplinary Authority

dealing with the said representation of the petitioner.

3. The counsel for the petitioner states that the representation was accordingly

delivered to the Inquiry Officer. A copy of the same has also been placed on the record of

this Court. The senior counsel for School and the Society managing the school states that

as per the prescribed procedure, the earlier report had been submitted by the Inquiry

Officer in a sealed cover to the Disciplinary Authority and additional report as directed

by this Court on 17th February, 2010 dealing with the representation made by the

petitioner has also been submitted by the Inquiry Officer to the Disciplinary Authority.

4. The senior counsel for the School and the Society managing the school further

contends that the order of removal of the petitioner from the post of the Principal which

is under challenge in W.P.(C) No.7858/2004 as well as the order if any imposing penalty,

to be passed by the Disciplinary Authority pursuant to the inquiry proceedings aforesaid,

are both appealable under Section 8(3) of The Delhi School Education Act, 1973 before

the Delhi School Tribunal constituted under Section 11 of the Act. Attention is also

invited to Rule 120 of The Delhi Education Rules, 1973 prescribing a procedure for

imposing major penalty. Rule 120(3) also prescribes the remedy of appeal to the Tribunal

for any employee of a recognized private school aggrieved by any order imposing on him

any major penalty. It is thus contended that no purpose would be served in keeping the

present petitions pending and the Disciplinary Authority be permitted to proceed on the

basis of the inquiry report and the remedy, if any, of the petitioner, if aggrieved, is before

the Tribunal. It is contended that even if the petitioner is exonerated or even if any major

penalty is imposed on the petitioner and set aside by the Tribunal and as a result whereof

the petitioner is restored to the position of the Principal of the school, and the need for

adjudication of W.P.(C) No.7858/2004 arises, that question also has to be gone into by

the Tribunal.

5. The counsel for the petitioner however contends that the inquiry has not been

conducted in accordance with law. He contends that the petitioner has not been given any

opportunity whatsoever to participate in the inquiry and neither the prescribed procedure

nor the principles of natural justice have been followed. I have enquired from the counsel

for the petitioner whether all the said pleas also do not fall within the domain of the

jurisdiction of the Tribunal, if the petitioner is aggrieved by the action of Disciplinary

Authority. The counsel though confirms the said position but contends that why should

the petitioner be made to go through the procedure of suffering a major penalty specially

when she has only one year to attain the age of superannuation, if the inquiry is palpably

illegal.

6. This Court does not agree with the aforesaid contention of the counsel for the

petitioner. Though this Court had vide interim order earlier restrained the inquiry

proceedings but subsequently permitted the inquiry proceedings to proceed and the same

now stand concluded. Another chance was given to the petitioner vide order dated 17th

February, 2010 (supra). What remains now to be adjudicated is whether in the inquiry as

stands concluded, there is any violation of procedure/principles of natural justice. The

said question would not arise for adjudication if the petitioner is exonerated. Even if the

petitioner is punished by the Disciplinary Authority, the petitioner has the remedy of

appeal before the Tribunal. The question as to whether the procedure/principles of natural

justice have been followed or not may entail certain factual controversies also and which

are left to be best considered and dealt with by the Tribunal rather than by this Court in

the exercise of writ jurisdiction. It was a different matter, if during the pendency of the

inquiry proceedings something was pointed out which required this Court to intervene at

that stage; now nothing further remains to be done. The order dated 16th March, 2009 of

this Court in W.P.(C) No.23122/2005 permitting the inquiry proceedings to go on has

attained finality.

7. In the opinion of this Court, these petitions are for the reasons aforesaid not

maintainable. The remedy, if any, of the petitioner is before the Tribunal. The interim

order restraining the passing of final order by the Disciplinary Authority is vacated. The

senior counsel for the school and the society managing the school states that the

Disciplinary Authority shall proceed further in the matter in accordance with the

law/rules. It is further clarified that the disposal of these petitions shall not come in the

way of the petitioner taking up any ground whatsoever challenging the disciplinary

proceedings and/or any fault/flaw therein before the Tribunal. Nothing contained herein

shall be deemed to be an expression on the merits or the legality or otherwise of the

disciplinary proceedings. All the rights of the petitioner to challenge the actions of the

respondents before the appropriate Forum/Tribunal are reserved.

The petitions are disposed of. All pending applications stand disposed of.

The parties to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) 27th April, 2010 pp