Samarth Shiksha Samiti (Regd) vs Directorate Of Education & Anr.
2011 Latest Caselaw 2190 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 26th April, 2011

+                         WP(C) NO.10628/2009

SAMARTH SHIKSHA SAMITI (REGD)                 ..... Petitioner
                Through: Mr. Rajesh Gupta and Mr. Sumit R.
                         Sharma, Advocates

                                    Versus

DIRECTORATE OF EDUCATION & ANR.            ..... Respondents
                Through: Mr. Hem Kumar for Mr. Sanjeev
                         Sabharwal, Advocate for R-1 with
                         Mr. S.K. Nirmal, DOE Zone-19.
                         Mr. K.P. Gupta, Advocate for R-2.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may                      Yes.
       be allowed to see the judgment?

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

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


RAJIV SAHAI ENDLAW, J.

1. The petition impugns the judgment dated 30th April, 2009 of the Delhi

School Tribunal allowing the appeal of the respondent no.2 Mr. A.A. Vetal

and setting aside the order dated 27th February, 2001 of the Managing

Committee of the Dayawati Shyam Sunder Gupta Saraswati Bal Mandir

(School managed by the petitioner Society) of removal of the respondent

no.2 from the post of the Vice Principal and of dismissal from the services of

the said School and reinstating the respondent no.2 to his post and directing

the Managing Committee of the School to decide the question of payment of

salary, allowance and consequential benefits for the intervening period

within two months thereof.

2. Notice of the petition was issued and vide order dated 3 rd August,

2009 which continues to be in force, the implementation of the order of the

Tribunal was stayed. The pleadings have been completed and the counsels

have been heard.

3. The respondent no.2 was appointed in the year 1972 as Head Master

of the Primary section of the School of the petitioner and was in the year

1976 promoted as a TGT and was appointed as a Vice Principal of the

School in the year 1996. The respondent no.2 was placed under suspension

on 7th December, 1998. It was the case of the respondent no.2 that he could

not have been suspended without prior approval of the respondent no.1

Directorate of Education and he accordingly represented to the Directorate

of Education in this regard. The Directorate of Education on 21 st May, 1999

directed the School to revoke the suspension order. The School earlier filed

Civil Writ No. 3745/1999 in this Court and by interim order wherein the

order dated 21st May, 1999 of the Directorate of Education was stayed.

4. The respondent no.2 was served with a charge sheet dated 2nd April,

1999. He was charged with calling as many as 17 girl students of Class VII

to class X of the School outside the classroom for one reason or the other

and having touched their bodies and indulged in obscene acts with them. He

was also charged with calling lady teachers for talks and embracing them

and doing other obscene acts in their presence. The copies of the complaints

against the respondent no.2 were attached to the charge sheet.

5. The charge sheet was signed by the Manager of the School on behalf

of the Managing Committee of the School. The respondent no.2 in his reply

dated 19th April, 1999 to the charge sheet took a preliminary objection that

the charge sheet had not been issued by the Disciplinary Authority

(constituted as per Rule 118), as required under Rule 120.

Rule 118 of the Delhi School Education Rules, 1973 (School

Education Rules) is as under:

"118. Disciplinary authorities in respect of employees. - The

disciplinary committee in respect of every recognized 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."

6. Upon receipt of the reply aforesaid to the charge sheet, the School on

21st April, 1999 wrote to the Directorate of Education informing of the

suspension and charge sheeting of the respondent no.2 and requesting

nomination by the Directorate of Education to the five member Disciplinary

Committee. The Directorate of Education vide order dated 25 th August,

1999 appointed Smt. Maya Biswas, Education Officer, District South West

and Smt. Usha Arora, Principal SKV Moti Bagh-I respectively as his

nominees on the Disciplinary Committee setup to initiate disciplinary

proceedings against the respondent no.2.

7. The Disciplinary Authority so constituted and comprising inter alia

of the nominees aforesaid of the Directorate of Education, on 17 th January,

2000 appointed Shri Rajesh Mahindru, Advocate as the Inquiry Officer.

8. The Inquiry Officer so appointed submitted his report dated 30 th May,

2000 in respect of the charge sheet dated 2nd April, 1999 (supra) served on

the respondent no.2. The said report of the Inquiry Officer was considered

by the Disciplinary Committee and the respondent no.2 given an opportunity

to respond thereto. The Disciplinary Committee in its meeting held on 15 th

July, 2000, after considering the report of the Inquiry Officer and the reply

of the respondent no.2 unanimously concluded that the charges aforesaid

levelled against the respondent no.2 had been proved to be true; that the

offence committed by the respondent no.2 being of continuing nature spread

over a period of time and the inquiry having been conducted as per the

provisions of the Delhi School Education Act, 1973 and Rules framed

thereunder and in accordance with the principles of natural justice, the

respondent no.2 had been rightly held guilty of indulging in misbehavior

towards female students and teachers; the Disciplinary Committee

accordingly proposed the penalty of removal of service on the respondent

no.2 and forwarded the documents to the School Management.

9. The School Management vide order dated 27 th February, 2001

imposed the penalty of removal from service with immediate effect on the

respondent no.2 and against which order the respondent no.2 preferred the

appeal aforesaid to the Tribunal.

10. The Tribunal in para 15 of its judgment has recorded that the

challenge to the order dated 27th February, 2001 of the Managing Committee

of the School was on three grounds, namely

i. that the Disciplinary Committee was not constituted as per rules.

ii. that the respondent no.2 was not allowed to have a lawyer/retired

Government servant/an outsider as his defence assistance.

iii. prior approval of the Directorate of Education was not taken

before passing the order of removal against the respondent no.2.

11. The Tribunal decided the ground (ii) aforesaid in favour of the

School/petitioner and against the respondent no.2. It was held that even

though the Inquiry Officer was an Advocate but the Presenting Officer was

not a legally trained person and the charges against the respondent no.2 were

simple, plain and understandable even to an average man and no

complicated documents were to be proved or disproved and the respondent

no.2 as the Vice Principal of the School was competent to defend his case

and the Inquiry Officer was justified in refusing to allow a lawyer or a

Government servant or an outsider to be appointed as defence assistance for

the respondent no.2. It was further held that it was not a case where the

respondent no.2 had requested any of his colleagues in the same School to

act as defence assistance and they had refused to do so.

12. However, on the other two grounds the Tribunal decided against the

School. It was held that under Rule 118 r/w Rule 120 of School Education

Rules, the charges have to be framed by the Disciplinary Committee

constituted under Rule 118 and the charge sheet in the present case was

issued not by the Disciplinary Committee but by the Manager of the School

on behalf of the Managing Committee and who were not entitled or

empowered to issue the charge sheet. It was further held that the

Disciplinary Committee was constituted after the issuance of the charge

sheet and no definite charges were framed by the Disciplinary Committee

after its due constitution. The disciplinary proceedings against the

respondent no.2 were thus held to be vitiated.

13. The Tribunal though noticed that the School being an unaided

recognized school, as per the judgments in T.M.A. Pai Foundation v. State

of Karnataka AIR 2003 SC 355 and Kathuria Public School v. Director of

Education 113 (2004) DLT 703 (Delhi) and 123(2005) DLT 89 (DB) did

not require prior approval of Directorate of Education before passing the

order of removal of the respondent no.2; however held that since the

removal of the respondent no.2 on 27th February, 2001 was prior to the

aforesaid judgments, and the judgments being not retrospective, the

respondent no.2 would be governed by the law then prevalent and as per

which the prior approval of the Directorate of Education was necessary. It

was held that prior approval having not been obtained, the removal was

illegal.

14. The counsel for the petitioner has argued that the Disciplinary

Committee admittedly constituted in terms of Rule 118 (supra) even though

after the issuance of the charge sheet, by proceeding on the basis of the said

charge sheet is deemed to have approved the same and the disciplinary

proceedings could not have been held to be vitiated for the said reason.

With respect to the question of prior approval of the Directorate of

Education, attention is invited to letter dated 19 th April, 2001 of the

Directorate of Education according approval sought by the School on 12 th

December, 2000 for removal of the respondent no.2 from the service w.e.f.

7th February, 2001 "on account of the misconduct amounting to moral

turpitude". It is contended that in the face of the said ex post facto approval,

the Tribunal could not have interfered with the same.

15. Per contra, the counsel for the respondent no.2 has contended that the

respondent no.2 in his long service from the year 1972 till 1996 in the

School had an unblemished record and was during the time 1996 to 1998

when he is alleged to have misconducted himself, was about 58-59 years of

age and cannot be believed to have indulged in misconduct alleged,

particularly with girls as young as in class VII and class X. It is yet further

contended that all the complaints against the respondent no.2 are sudden and

no complaints were made during the time of two years when he is alleged to

have misconducted himself. It is argued that the respondent no.2 had in the

year 1998 asked the Management of the School for implementation of the

report of the 5th Pay Commission and owing whereto the Management

became inimical towards him and vindictively charged him with the

incidents aforesaid. It is yet further alleged that the Management of the

School was interested in granting admission to failed students of other

schools by taking donation and which was also objected to by the respondent

no.2.

16. It is further contended that the complaints of the students and the

teachers against the respondent no.2 have been fabricated and the charge

against him cooked up. It is contended that the judgments in T.M.A. Pai

Foundation and Kathuria Public School (supra) laying down that unaided

recognized schools do not require prior approval of the Directorate of

Education for imposing punishment on their employees are of a date

subsequent to the date of the order of removal of the respondent no.2 and as

per law prevalent on which date, prior approval was required and sought by

the School. It is further argued that the respondent no.2 was wrongly denied

assistance of an Advocate even though the Inquiry Officer himself was an

Advocate.

17. I have inquired from the counsel for the respondent no.2 whether the

respondent no.2 had made the demand for implementation of the

recommendation of the 5th Pay Commission in writing. The answer is in the

negative. I have similarly inquired whether there was any record of the

respondent no.2 having refused to grant admission to any student in whose

admission the Managing Committee of the School was interested. The

answer is again in the negative. The counsel for the respondent no.2 has

rather fairly stated that no such pleas were taken in writing, neither in reply

to the charge sheet nor before the Inquiry Officer nor before the Disciplinary

Committee nor before the Disciplinary Authority of the School which meted

out the punishment to the respondent no.2 and were taken for the first time

in the appeal before the Tribunal. The Tribunal also has not returned any

findings thereon.

18. In view of the aforesaid I am unable to give any credence whatsoever

to the argument of animosity and the proceedings being vindictive.

19. As far as the argument of the respondent no.2 of having been denied

assistance of the Advocate by the Inquiry Officer is concerned, the Tribunal

itself has found in favour of the School and against the respondent no.2. The

respondent no.2 has not been able to make any dent on the findings of the

Tribunal in this regard. Significantly the respondent no.2 also did not press

the said plea and rather chose to absent himself from the inquiry proceedings

and not participate in the same. No such ground was urged before the

Disciplinary Committee or the Disciplinary Authority also. No efforts were

made at that stage to come to the Court seeking permission of representation

through lawyer. It is even otherwise a settled position in law that there can

be no insistence on legal representation in such departmental proceedings.

Reference in this regard may also be made to State of Rajasthan v. S.K.

Dutt Sharma 1993 Supp (4) SCC 61, Cipla Ltd. v. Ripu Daman Bhanot

(1999) 4 SCC 188 and Harinarayan Srivastav v. United Commercial Bank

(1997) 4 SCC 384.

20. The argument of the respondent no.2 of the entire

case/charge/evidence against him being fabricated is unbelievable. The

charges meted out to the respondent no.2 were serious in nature. In our

society, girls/women hesitate in making such charges against anyone for the

fear of stigma which they themselves suffer owing thereto. As many as 9

girl students and several lady teachers of the School were examined by the

Inquiry Officer and all of whom complained of the indecent behaviour of the

respondent no.2. The School itself in proceeding on such ground against the

respondent no.2 ran a risk of affecting its own reputation and parents

especially of girls hesitating to admit them to the school. In view of all

these, the said plea raised without any basis is but to be rejected.

21. As far as the finding of the Tribunal qua the charge sheet though

required under Rule 120 to be issued by the Disciplinary Committee

constituted under Rule 118, having not been so issued is concerned, Rule

120(1)(a) is as under:

"120. Procedure for imposing major penalty. - (1) No order imposing on an employee any major penalty shall be made except after an inquiry, held, as far as may be, in the manner specified below:

(a) the disciplinary authority shall frame definite charges on the basis of the allegation on which the inquiry is proposed to be held and a copy of the charges together with the statement of the allegations on which they are based shall be furnished to the employee and he shall be required to submit within such time as may be specified by the disciplinary authority, but not later than two weeks, a written statement of his defence and also to state whether he desires to be heard in person."

22. I have inquired from the counsel for the respondent no.2 as to what is

the purport of the words "as far as may be" in the Rule aforesaid; the same

appears to suggest that strict compliance of the Rules is not to be insisted

upon and deviations as per necessity are permissible. Similarly it has been

inquired from the counsel for the respondent no.2 as to whether the principle

of ratification of the charge sheet by the Disciplinary Committee would not

apply. No answers have been forthcoming.

23. I may notice that the School while writing to the Directorate of

Education for appointing its nominees in the Disciplinary Committee had

informed of the issuance of the charge sheet to the respondent no.2. The

Directorate of Education while appointing its nominees was fully aware of

the charge sheet issued. Similarly, the Disciplinary Committee constituted

pursuant to the said nomination also proceeded on the basis of the charge

sheet and appointed the Inquiry Officer to inquire into the said charge sheet

and considered the report of the Inquiry Officer on the said charge sheet. All

this is sufficient ratification of the charge sheet issued by the Manager on

behalf of the Managing Committee of the School. The Supreme Court in

Maharashtra State Mining Corpn. V. Sunil (2006) 5 SCC 96 held that

though an act by a legally incompetent authority is invalid but can be

subsequently rectified by ratification of the competent authority. It was held

that ratification by definition means the making valid of an act already done;

the principle is derived from the Latin maxim ratihabitio mandato

aequiparatur. It was thus held that ratification assumes an invalid act which

is retrospectively validated. Even though the Apex Court in Marathwada

University v. Seshrao Balwant Rao Chavan (1989) 3 SCC 132 has held the

principle of ratification to be not applicable with regard to exercise of

powers conferred under statutory provisions but in the light of the words "as

far as may be" the principle, in the present case would apply. I also find the

Supreme Court in Goa Shipyard Ltd. v. Babu Thomas (2007) 10 SCC 662

to have after considering both Marathwada University and Maharashtra

State Mining Corpn. (supra) extended the principle of ratification to service

law also.

24. Had the intent of the legislature been that the procedure prescribed in

Rule 120 was to be strictly followed before imposition of any major penalty

on an employee of the School, the legislature would not have used the words

"as far as may be" in the said Rule. The Supreme Court recently in High

Court of Judicature for Rajasthan v. Veena Verma (2009) 14 SCC 734

interpreted the words "as far as possible" as meaning that there is no hard

and fast rule and such words give a discretion to the authorities and the

Court cannot interfere with this discretion unless it is palpably arbitrary.

Similarly a Seven Judge Bench of the Apex Court in In Re Presidential Poll

(1974) 2 SCC 33 held the words "as far as practicable" to be indicative that

in practice, there may be no uniformity owing to various other factors. A

Division Bench of this Court also in Subhash Chander v. Rehmat Ullah

ILR 1973 (1) Delhi 181 held that the words "as far as may be" are distinct

from the words "shall apply" and further held that such expressions are

obviously designed to free the proceedings from technicalities and rigours of

a strict application.

25. In the present case, the charges against the respondent no.2 are grave.

Need must have been felt to immediately proceed against him. The charge

sheet appears to have been issued without noticing Rules 118 and 120.

However, immediately after the objection in this regard being taken by the

respondent no.2, steps for constitution of the Disciplinary Committee in

accordance with Rule 118 were taken and Disciplinary Committee

constituted and which did not choose to frame a fresh charge sheet and

decided to proceed on the basis of the charge sheet already issued. The same

is found to be sufficient/contextual compliance of Rule 120 (supra). The

Tribunal does not appear to have considered the matter in the aforesaid

context.

26. The Tribunal also appears to have confused the operation of a statute

/ Rule with the effect of a judgment. It is the settled proposition of law that

a judgment interpreting a statute/provision thereof declares the meaning of

the statute as it should be construed since the date of its enactment; wherever

the Courts feel the need to make the operation of the judgment prospective,

they expressly so provide in the judgment. On the contrary, it is the statute

or the rule which is presumed to be prospective unless expressly made

retrospective. Reference in this regard can be made to Ravi S. Naik v. UOI

1994 Supp (2) SCC 641. The Supreme Court similarly in Sarwan Kumar v.

Madan Lal Aggarwal (2003) 4 SCC 147 reiterated that the interpretation by

the Court of a provision relates back to the date of the law itself and cannot

be prospective of the judgment. It was further held that when the Court

decides that the interpretation given to a particular provision earlier was not

legal, it declares the law as it stood right from the beginning as per its

decision and it will be deemed that the law was never otherwise. It was yet

further held that under the doctrine of "prospective overruling" the law

declared by the Court applies to the cases arising in future only and its

applicability to the cases which have attained finality is saved; invocation of

doctrine of "prospective overruling" is left to the discretion of the Court, to

mould with the justice of the cause or the matter before the Court. However,

if the Court interpreting the law does not hold that the interpretation given

would be prospective in operation, it is not for another Court to say that the

law as interpreted would be prospective in operation.

27. A reading of the judgment of the Division Bench in Kathuria Public

School does not show that the interpretation given by the Division Bench

would be prospective in operation. It was thus not open to the Tribunal to

declare so and the order of the Tribunal to the said extent is in the teeth of

the dicta of the Apex Court in Sarwan Kumar (supra). The rationale behind

the principle, as noted by the Apex Court in Lily Thomas v. UOI (2000) 6

SCC 224 is that the Court does not legislate but only gives an interpretation

to an existing law.

28. It may be apposite to, at this stage, notice the judgment dated 27 th

August, 2010 of the Full Bench of this Court in O.Ref.1/2010 titled

Presiding Officer, Delhi School Tribunal v. GNCTD overruling Kathuria

Public School in so far as it held appeals to the Delhi School Tribunal

maintainable against all grievances of the teachers and not merely against

the orders mentioned in Section 8(3) of the Delhi School Education Act.

However, the part of the judgment of the Division Bench in Kathuria Public

School with which we are concerned, was not the subject matter of the

reference to the Full Bench and remains unaffected thereby.

29. T.M.A. Pai Foundation or Kathuria Public School have not amended

the Delhi School Education Rules but merely ascribed the meaning which

they bear. Once the said judgments had been pronounced, the Tribunal

could not have ascribed any other meaning to the Rules than as ascribed in

the said judgments.

30. Thus both the grounds on which the Tribunal has found in favour of

the respondent no.2 cannot be sustained. Axiomatically the order of the

Tribunal impugned in this petition is quashed/set aside. Resultantly, the

appeal preferred by the respondent no.2 to the Tribunal would stand

dismissed and the order of the Managing Committee of the School of the

petitioner removing the respondent no.2 from services of the School upheld.

The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) April 26, 2011 M (corrected and released on 10th May, 2011)