Delhi High Court

Parimal Kumar Dutta vs Appejay School & Ors on 5 July, 2010

Author: Dipak Misra,Chief Justice

35
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*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     LPA 432/2010


      PARIMAL KUMAR DUTTA                 ..... Appellant
                  Through: Mr. Bharat Bhushan, Advocate.

                      versus


      APPEJAY SCHOOL & ORS                 ..... Respondents

Through: Ms. Purnima Maheshwari, Advocate for respondent No.2.

CORAM:

      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE MANMOHAN



%                                              Date of Decision: 05th July,2010

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment?Yes.

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

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

DIPAK MISRA, CJ

Questioning the defensibility of the order dated 20th April, 2010

appeal has been preferred under Clause 10 of the Letters Patent.

2. The facts which are requisite to be adumbrated for the purpose

of adjudication of this appeal are that the appellant, a teacher in APJ

Public School, was proceeded in a disciplinary proceeding on the

ground that he had imposed corporal punishment. Be it noted, the

disciplinary proceeding was initiated by the Principal of the school

and thereafter charges were framed and an enquiry officer was

appointed.

3. It is evincible from the factual expose' that during course of

enquiry, the Principal was examined as a witness since a confessional

letter was submitted by the delinquent teacher before her.

4. Being aggrieved by the same, the petitioner invoked the

extraordinary jurisdiction of this Court under Article 226 of the

Constitution of India to quash the entire proceeding and as well as the

participation of the Principal in the enquiry proceeding.

5. It was contended before the learned Single Judge that the

Principal being a part of the disciplinary committee, could not have

examined herself as a witness and further her participation in the

ultimate determination of penalty would cause immense prejudice to

the petitioner. It was also contended that the order of suspension has

paled into insignificance inasmuch as after the expiration of six

months as engrafted under Rule 115(2) of the Delhi School Education

Rules, 1973, no steps have been taken.

6. The stand and stance put forth by the petitioner was combatted

by the answering respondent contending, inter alia, that the Principal

was required to be examined before the enquiry officer as the

confession was made before her; that the doctrine of necessity in a

case of this nature would substantially come into play; and further the

reliance on Rule 115(2) for the purpose of revocation of the order of

suspension has no legs to stand upon.

7. The learned Single Judge referred to the factum of revocation of

suspension and after dwelling upon Rule 115, expressed the view as

the proviso to sub-rule 2 of Rule 115 has been declared ultra vires in

Kathuria Public School vs. Director of Education & Anr., 123

(2005) DLT 89 (DB), the same has no relevance to the case at hand

and in any case the said provision does not render any assistance to

the petitioner.

8. Mr. Bharat Bhushan, learned counsel for the appellant has

submitted that the learned Single Judge has not addressed himself to

the issue that the Managing Committee had not extended the

continuance of the order of suspension beyond the period of six

months and, therefore, the appellant could be automatically reinstated.

In this context, we may refer with profit to Rule 115(2) of the Delhi

School Education Rules, 1973:-

"115. Suspension -

xxx xxx xx

(2) No order for suspension shall remain in force for more than six months unless the managing committee, for reasons to be recorded by it is writing, directs the continuation of the suspension beyond the period of six months."

9. Ordinarily, we would have proceeded to interpret the provision

as regards the effect of the provision when the Managing Committee

does not direct for the continuance of suspension beyond the period of

six months, but, a pregnant one, on a query being made whether such

a stand was taken in the pleadings, the learned counsel laboured hard

to point out from many a paragraph but unfortunately despite applying

the conceptual x-ray to the pleadings, we could not notice such an

assertion or any averment remotely made in that regard. In the

absence of any pleading in the writ petition and, further, as is evident,

such a contention was not canvassed before the learned Single Judge,

it would be extremely difficult at this juncture to hold that the

Managing Committee had not extended the period of suspension.

Thus, the plea raised having no infrastructure or base has to be

repelled and we accordingly so do.

10. The second limb of submission of the learned counsel for the

appellant is that the Principal being a head of the school is a part of

the Disciplinary Committee and, therefore, could not have examined

herself as a witness and by such an act, the entire enquiry proceeding

is vitiated being hit by doctrine of prejudice.

11. Resisting the aforesaid contentions it is submitted by

Mr.Maheshwari, learned counsel for the second respondent that the

Principal had received the letter of confession and the said letter was

required to be proven by adducing cogent evidence before the Inquiry

Officer.

12. In this context, we may fruitfully refer to Rule 118 of the 1973

Rules which deals with disciplinary authorities in respect of

employees. The said Rule reads as under:-

"118. Disciplinary authorities in respect of employees-- The disciplinary committee in respect of every recognised private school, whether aided or not, shall consist of--

(i) the chairman of the managing committee of the school;

(ii) the manager of the school;

(iii) a nominee of the Director, in the case of an aided school, or a nominee of the appropriate authority, in the case of an unaided school;

(iv) the head of the school, except where the disciplinary proceeding is against him and where the disciplinary proceeding is against the Head of the school, the Head of any other school, nominated by the Director;

(v) a teacher who is a member of the managing committee of the school; nominated by the Chairman of such managing committee."

From the aforesaid, it is clear as crystal that the principal is a

part of disciplinary committee. The issue that emanates for

consideration is whether she could have examined herself in the

enquiry proceeding as a witness.

13. It is worth noting that the letter of confession as a document has

to be tendered in evidence and then only it would become a piece of

evidence and the weightage that is to be given to the same would

depend upon various facts and circumstances. In this regard, we may

refer with profit to the decision in Nagubai Ammal and others Vs.

B.Sharma Rao and others, AIR 1956 SC 593 wherein it has been

held as follows:-

"(18). An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppels........"

14. In K.S. Vs. Union of India, AIR 1958 SC 419 the Apex Court

has observed that an admission is not conclusive proof of the matter

admitted, though it may in circumstances operate as estoppel.

15. In Janki Singh and Ors. Vs Basant Singh, AIR 1967 SC 341

a three-Judge Bench of the Apex Court referred to the decision of

Bombay High Court in D.S. Mohite v. S.I. Mohite, AIR 1960

Bombay 153 and expressed the view thus:-

"(5)............ Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by

a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that is not true."

16. In Prem Ex-servicemen Co-op. Tenant Farming Society Ltd.

and Ors.Vs. State of Haryana and Ors. (1974) 2 SCC 319 their

Lordships while dealing with the effect of admission have opined

thus:-

"3............. It may be that the members of the Co- operative Societies had made some admissions the nature and effect of which require examination. It is well settled that the effect of an alleged admission depends upon the circumstances in which it was made. We are unable to go into these questions until they have been fully and properly investigated by an authority empowered to consider them."

17. We have referred to the aforesaid decisions to highlight that

though confession is not defined in the Indian Evidence Act,

ordinarily it is understood as an admission. The value of the

confession has to be adjudged regard being had to the facts and

circumstances, but, all steps are required to be taken to prove the

confession as per law. The Principal concerned though a member of

the Disciplinary Committee, yet in the obtaining factual matrix, was

entitled under law to adduce evidence and hence, we do not perceive

any error in the same.

18. The controversy can be looked from another angle. The

confession, whatever would have its acceptation in law, was made

before the Principal. The submission of learned counsel for the

appellant is that she being a member of the Disciplinary Committee

should not have become a witness. Learned counsel for the respondent

No.2, per contra, would contend that she being the sole person before

whom the confession was made the doctrine of necessity would also

get attracted subject to certain riders. It is urged by him that as she

shall not participate and recuse from the stage she has deposed before

the Inquiry Officer the question of any kind of bias does not arise. In

this context, we may profitably refer to the decision in Badrinath

Vs.Government of Tamil Nadu and Ors. AIR 2000 SC 3243. In the

said case the third respondent therein who had earlier recorded adverse

remarks against the appellant was the Chairman of the Joint Screening

Committee which had found the appellant not fit for selection to the

selection grade. The question that arose before the Apex Court related

to bias and doctrine of necessity in the administrative law and the plea

of malafide as against the said respondent. Their Lordships while

dealing with the said facet have ruled as follows:-

"68. This contention raised by Sri C.S.Vaidyanathan for the respondents is well founded. This Court has held that, in such situations, no question of bias can be raised. In State of M.P. v. Ganekar Motghare, 1989 Suppl.(2) SCC 703, a Deputy Director was compulsorily retired on the recommendations of the Screening Committee. The Director, being head of the Department, had earlier awarded adverse remarks to the officer and later he also sat in the Screening Committee. It was held that there was nothing wrong with the presence in the Committee and neither bias nor malice in law could be imputed to him. The High Court's reliance on A.K.Kriapak vs. Union of

India, (1968) 2 SCC 262 : (AIR 1970 SC 150) was not accepted. Similarly, in State of Uttar Pradesh v. Raj Kishore Bhargava, 1992 Suppl. (2) SCC 92, the Chief Engineer who had given adverse entries against the officer in one year was appointed a member of the Screening Committee for deciding about the compulsory retirement of the officer. It was held that no allegation of bias can be made against the Chief Engineer.

69. In the light of the two precedents, we hold that from the mere fact that the Chief Secretary who had earlier made certain adverse remarks against the appellant was the Chairman of the Screening Committee, no bias can be imputed from that fact alone.

19. In the case at hand when the Principal herself has given in

writing that she would not be participating when there would be

discussion of the Disciplinary Authority with regard to delinquent

employee, we are of the considered opinion, there is no violation of

principles of natural justice and the doctrine of bias is not attracted.

20. We would be failing in our duty if we do not note that Mr.

Bharat Bhushan has brought to our notice certain observations in

paragraph 13 of the order passed by the learned Single Judge wherein

he has in a way observed that the letter of confession was written

under no duress. We are of the considered view that the said

observation was not necessary and accordingly, the same stands

deleted. It is open to the enquiry officer to deal with the statement of