Gurvender Singh Saini vs School Management Of Guru ...
2010 Latest Caselaw 3059 Del

*             HIGH COURT OF DELHI : NEW DELHI

+                    WP(C) No. 3198/2010

                                Pronounced on:     2nd July, 2010

GURVENDER SINGH SAINI                              .......Petitioner

                     Through:     Mr. Raj Kumar Sherawat, Advocate.

                     Versus

SCHOOL MANAGEMENT OF GURU HARKRISHAN
PUBLIC SCHOOL & ORS.                       ....Respondents
                 Through: Mr. Shagun Mehta and Mr.
                          Karandeep Singh, Advocates for
                          R-1 and 2.
                          Mr. Elgin Matt John and Ms.
                          Kavery Das, proxy counsel for Ms.
                          Anju Bhattacharya, Advocate for
                          R-3.

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
   in the Digest?


MANMOHAN SINGH, J.

1. The petitioner has filed the present Writ Petition against

the three respondents i.e. School Management of Guru Harkrishan

Public School, Delhi Sikh Gurudwara Management and Directorate

of Education under Article 226 of the Constitution of India for

quashing of termination order dated 05.02.2010 received on

27.04.2010. Further directions are sought by the petitioner to

reinstate him with full back wages and consequential benefits.

2. The case of the petitioner is that the petitioner was

appointed as Physical Education Teacher (PET) vide appointment

letter dated 17.08.2000 and his services were confirmed on

20.11.2001. Since the petitioner was denied proper pay-scale as

per Section 10 of Delhi School Education Act he filed a Writ Petition

(Civil) No. 18084/2005 before this court for seeking direction to the

school for payment of salary in the proper pay-scale and other

benefits from the date of appointment. The said Writ Petition filed

by the petitioner was allowed and the court directed the school to

pay the petitioner's salary in the pay scale of Rs. 5500-175-9000

from the date of his appointment along with the increments and

other benefits. The respondent was directed to pay the said

amount within two weeks. But according to the petitioner the

school Management has not complied with the said order dated

12.07.2006 passed by the court.

3. The grievance of the petitioner is that subsequent to the

order passed by the court he was harassed by the School

Management and was not allowed to mark his attendance and he

filed the second Writ Petition being WP(C) No. 2559/2007 before

this court. However, the said matter was resolved between the

parties with the intervention of the Division Bench by passing the

order dated 03.10.2008 in LPA No. 299/2008 and the school was

directed to pay salary and dues in terms of the settlement.

4. On 16.09.2009, the petitioner asked the respondent for

implementation of the sixth pay commission to the school but the

school management did not consider the same and issued a

memorandum and show cause notice to the petitioner. The

contents of the show cause notice reads as under:

"Mr. Gurvinder Singh Saini, PET, was directed on 27.10.2009, 09.1.2009 and 11.11.2009 to submit the self attested

copies of his Certificates and Degrees of his academic qualifications.

He was also directed on 13.10.2009 and 23.10.2009 to open up his Savings Bank Salary Account at Punjab & Sind Bank, Hari Nagar, New Delhi.

He was also directed on 13.11.2009 to mention the amount submitted to the then Chairman Late Sardar Jaspal Singh Manchanda, in his presence, as certified by Mr. K.C. Dash, PRT which was collected from the students for sponsored programme conducted in our school on 12.08.2008 for the NGO (Indian Health Education and Welfare Society).

Mr. Gurvinder Singh Saini, is hereby informed that he has not yet complied to the above said Orders. He is once again directed to comply with all the above orders within three days from the receipt of this Show Cause Notice failing which disciplinary action will be initiated against him."

5. The said show cause notice was duly replied by the

petitioner on 02.12.2009. The petitioner also filed the Writ Petition

before this court seeking implementation of the sixth pay

commission. The petitioner was placed under suspension by the

school management on 03.12.2009. The petitioner received a

letter dated 24.12.2009 issued under the signature of the Principal

whereby he was directed to present himself before the preliminary

enquiry on 02.01.2010. The relevant contents of the said notice

reads as under:

"Refer to School letter No. GHPS/HN/987/09-10 dated Dec. 18, 2009 in which you were directed to present yourself before the Inquiry Committee on 24th Dec. 2009 at 10:00 A.M., whereas it is regretted to inform you that you have not presented yourself at the appointed date and time.

Now you are once again directed to present yourself before the Inquiry Committee in

the School Office on Saturday, the 2 nd January 2010 at 10:00 A.M."

6. On 04.01.2010, the petitioner sent an application for

release of subsistence allowance alongwith the certificate of

unemployment as per Rule 115 of the Delhi School Education

Rules, 1973. The petitioner, after sending the said letter received

a letter dated 08.01.2010 from the school directing him to collect

the cheques of his salary for the months of September and

October, 2009. However, as per the petitioner he was not allowed

to enter the school.

7. The petitioner on 22.01.2010 received another letter

dated 14.01.2010 along with charge sheet dated 08.01.2010 which

was without any Article of Charges or list of witnesses and list of

documents. On 10.02.2010, the petitioner challenged the aforesaid

charge sheet dated 08.01.2010 before this court by filing of the

petition being WP(C) No. 887/2010 with advance copy to the

respondent. It appears from the order dated 10.02.2010 that the

said Writ Petition was withdrawn by the petitioner with liberty to

take all the pleas which have been taken by the petitioner in the

said Writ Petition in reply to the charge sheet issued by the

respondent. The petitioner was allowed to take up all the pleas

available in reply to the charge sheet and further directions were

issued to the concerned authority to consider all the pleas taken

up by the petitioner during the course of the inquiry. The said Writ

Petition was dismissed as withdrawn. On the same day, it appears

from the record, that the petitioner sent the reply of the charge

sheet on 10.02.2010 itself by speed post to the Principal of the

school. Simultaneously, the petitioner also filed an appeal under

Article 116 of Delhi School Education Rules, 1973 to the Director of

Education informing that the School Management has not released

the subsistence allowance to the petitioner. Since the appeal was

not disposed of, the petitioner thereafter filed another Writ Petition

before this court being WP(C) No. 2414/2010 which was adjourned

to 04.05.2010 as the Hon'ble Judge was sitting in the Division

Bench. The contention of the petitioner is that in order to make

the Writ Petition infructuous and also in defiance of order dated

10.02.2010 passed in WP(C) No. 887/2010 and without considering

the reply of the charge sheet as directed by the court in the said

Writ Petition, he was terminated from the services by a back dated

termination letter dated 05.02.2010 received by him on

27.04.2010 by Regd. Post.

8. I have heard the learned counsel for the parties. The

learned counsel for the respondent no. 1 has admitted that it has

received the reply to the charge sheet dated 14.01.2010 in

pursuance to the order dated 10.02.2010 passed in WP(C) No.

887/2010. However his contention is that when the reply was

received the petitioner was already terminated by letter dated

05.02.2010. The said contention of the respondent nos. 1 and 2 is

strongly denied by the petitioner who has argued that the said

termination letter is a back dated letter which was received by the

petitioner only on 26.04.2010 by speed post. The court, during the

course of arguments, has enquired from the learned counsel for

the respondent nos. 1 and 2 that after the receipt of reply to the

charge sheet in pursuance of order dated 10.02.2010, had the

respondent no.1 intimated to the petitioner that the reply of the

petitioner is irrelevant as he had already been terminated on

10.02.2010. The learned counsel for the respondent nos.1 and 2

has fairly conceded that the said intimation about the termination

after receipt of the reply was not given to the petitioner. His

further submission is that the respondent nos. 1 and 2 were not

aware about the order passed on 10.02.2010 in WP(C) No.

887/2010 nor it received the complete set of documents in

advance as alleged by the petitioner. His further contention is that

the petitioner was appointed as PET in the pay scale of Rs. 4500/-

as per the contract of service executed between the petitioner and

respondent no.1 at the time of appointment and the petitioner has

disclosed the said fact in the petition in order to gain undue

advantage. Thus, the Writ Petition is not maintainable.

9. The petitioner has not denied the said fact that he has

signed the documents of service with the respondent. According

to him, it is against the law and is not tenable for various reasons

and one of them is that his service was confirmed on 20.11.2001

and he continued to work till the date of termination. His

submission is that the objection raised by the respondent in the

present petition is not the subject matter and in fact the

respondent No.1 has not complied the order dated 10.2.2010

passed by this Court in W.P.(C) No.887/2010, thus the present

petition has been filed.

10. After considering the facts and circumstances of the

matter, I am of the considered view that the respondent no.1 has

no alternative but to consider the reply filed by the petitioner to

the charge sheet dated 14.01.2010 in compliance with the order

dated 10.2.2010 passed in WP(C) No. 887/2010. The said

directions are admittedly not complied by respondent no.1. The

justification given by the respondent no.1 that by that time the

order was passed, the petitioner was already terminated has no

force, as apparently it appears from the said letter that the same

was issued subsequent to the orders passed on 10.02.2010 and

was received by the petitioner in April, 2010.

11. Considering the overall facts and circumstances of the

matter the present petition is partly allowed and the impugned

order of termination dated 05.02.2010 is quashed. The

respondent no.1 is directed to consider the reply to the charge

sheet issued by the respondent against the petitioner before the

concerned authority and the concerned authority shall also

consider the same during the course of enquiry. The respondent

shall issue proper notice for the appearance of the petitioner

before the enquiry officer in this regard.

12. The Writ Petition and all the pending applications are

accordingly disposed of. Record of WP(C) No. 887/2010 be sent

back.

MANMOHAN SINGH, J.

JULY 02, 2010 dp