Managing Committee Daisy Dales ... vs Rajinder Singh Malik & Ors.
2011 Latest Caselaw 1394 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI
%                           W.P.(C) 7267 OF 2000


+                                  Date of Decision: 10th March, 2011

#      MANAGING COMMITTEE DAISY
       DALES SR. SEC. SCHOOL & ANR.            ...Petitioners
!                       Through:  Mr. Kuldeep Kumar &
                                  Mr. O.P. Sisodia, Advs.

                                Versus

$      RAJINDER SINGH MALIK & ORS.          ...Respondents
                     Through:  Mr. Duli Chand Malik &
                                Mr. D.S. Choudhary, Advs.

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

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 in the digest? (No)

                         JUDGMENT

P.K.BHASIN, J:

This writ petition under Articles 226 and 227 of the Constitution

of India was filed against the judgment dated 21st September, 2000 of

the Delhi School Tribunal (to be referred to hereinafter as the „the

tribunal‟) constituted under the Delhi School Education Act, 1973

whereby the petitioners herein were directed to take back in service

respondent no.1 herein who was employed by them as a Laboratory

Assistant in Daisy Dales Senior Secondary School, East of Kailash

(petitioner no.2 herein and which shall be referred to hereinafter as „the

School‟) w.e.f. 01/07/96.

2. The relevant facts may first be briefly be noticed before

proceeding further to consider the grounds of challenge taken by the

petitioner in this petition against the impugned judgment of the tribunal.

On 1st July, 1996 the respondent no.1 was appointed as a Laboratory

Assistant in the School. The respondent no.1 claimed that was not being

paid his salary as per the pay scales fixed by the 5th Pay Commission

and when he started claiming that the management of the school

decided to get rid of him and therefore without any rhyme or reason

terminated his services w.e.f. 3rd July, 1998 by not permitting him to

join duty that day when he had reported for duty after the summer

vacations of the school. He was also not paid his salary for the months

of April to June, 1998 when he had gone to the School on 2nd July, 1998

and had asked for his salary ,he was told that the School was not in a

position to pay according to the new pay scales and was offered salary

@ Rs.1900/- p.m. only which he refused to accept. . Feeling aggrieved

by the decision of the School not to allow him duty w.e.f. 3rd July,

1998, the petitioner approached the Tribunal by filing an appeal on 20th

July, 1998 seeking his reinstatement in service and also for a direction

to the School to pay him his salary as per the new grades and that too

by cheques.

3. The School contested that petition before the Tribunal. In its

reply it admitted that respondent no.1 was appointed as a Laboratory

Assistant and it was also stated that he was appointed in the pay scale of

975-25-1150-EB-30-1540. It also took the plea he was given the

appointment subject to his producing past experience certificate from

any recognized school. However, he did not produce that certificate.

The Director of Education also informed the School vide its letter dated

20th March, 1998 that the respondent no.1 was over age. The respondent

no.1 had then instead of producing the experience certificate stopped

coming to School from 1st April, 1998 onwards and thereafter he came

to the school only on 2nd July, 1998 to claim his salary for the months

of April to June, 1998 but since he was absenting from duty

continuously during that period and had not reported for duty despite

repeated notices he was not paid any salary. It was denied that the

School had offered to pay him salary @ Rs.1900/- p.m. It was claimed

that he was paid Rs.3800/- on 2nd July,1998 but not as his salary and

that money was paid only to enable him to tide over his emergent need.

Regarding the prayer of respondent no.1 for payment of his salary as

per the new pay scales the School‟s reply was that "As the new pay

scales were implemented by the school only after the petitioner

left/deserted his job w.e.f. 1-4-98 hence his ineligibility for the new

pay scales."

4. The learned tribunal accepted the case of respondent no.1 herein

that his services had been terminated illegally as a major penalty

without holding any enquiry and following principles of natural justice

as provided under Rule 120 of the Delhi School Education Rules, 1973

and directed his reinstatement in service with all the consequential

benefits .Feeling aggrieved the management of the School has filed this

writ petition for setting aside the impugned judgment of the Tribunal.

5. It was not disputed by the learned counsel for the petitioners that

the School where the respondent no. 1 was appointed is governed by

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

framed thereunder but it was submitted that this is not a case of

termination of the services of respondent no.1 by the School by way of

removal or dismissal but a case of abandonment of job by him by

absenting from duty from 1/04/98. It was also argued that since the

appointment of respondent no. 1 was conditional upon his producing

past experience certificate and since he had not produced the same his

appointment never got regularized and being temporary employment,

as was evident from the appointment letter dated 1 st July, 1996, it

cannot be in any event said to be a case of dismissal or removal from

service and so the Tribunal had no jurisdiction to entertain his appeal

and order his reinstatement in service with consequential benefits. In

support of these submissions learned counsel cited some decisions of

this Court reported as 2000 IV AD (DELHI) 808, "Delhi Public

School & Ors. Vs. Mrs. Kelki Aggarwal & Anr.", 125 (2005) DLT

797, "Smita Paul Vs. Principal, St. Anthony's Senior Secondary

School & Anr." and 111(2004) DLT 374, "Mrs. P.L. Agarwal (since

deceased through LRs) Vs. Lt. Governor, Delhi & Ors.". It was also

submitted by the learned counsel that since services of respondent no. 1

were admittedly governed by the provisions of Delhi School Education

Act, 1973 and the rules framed thereunder, respondent no. 1 by virtue

of Rule 105 was supposed to have been appointed on probation for a

period of one year and that period of probation could be extended by

the appointing authority i.e. Management of the School, with the prior

approval of the Director of Education and his services could be

terminated without any notice during the period of probation. It was

also contended that since in the present case there was no formal order

of confirmation of the services of respondent no. 1 on the completion of

initial period of probation of one year his further continuation in

services was also on probation and therefore, even if it is accepted that

the school had terminated his services the same could not be said to be

illegal for want of any domestic enquiry against him. In support of this

submission learned counsel relied upon another judgment of this Court

reported as ILR (1987) II Delhi 591, "Wing Commander S.K. Singh

Vs. Lt. Governor".

6. On the other hand, learned counsel for the respondent no. 1 had

submitted that it was a clear case of termination of the services of

respondent no. 1 on the ground of alleged absence from duty and

therefore, the learned Tribunal had rightly come to the conclusion that

the services of the respondent no. 1 having been terminated without

holding an enquiry, as provided under Rule 120 of the Delhi Education

Rules, 1973 ,he was entitled to be reinstated in service.

7. As far as the plea taken in the present writ petition to the effect

that the respondent no. 1 had been given appointment purely on

temporary basis is concerned, the same cannot be entertained since no

such case was pleaded nor was any appointment letter placed before the

learned Tribunal. As noticed already, the School had in its reply to the

appeal of the respondent no. 1 before the Tribunal had only claimed

that the appointment of respondent no. 1 was subject to his producing

past experience certificate from any recognized School and it was not

the stand before the Tribunal taken by the School that the services of

respondent no. 1 had been dispensed with because of his failure to

produce the experience certificate nor was its stand before the Tribunal

that the Director of Education had asked the school to terminate the

services of respondent no. 1 because of his being overage or non-

production of past experience certificate by him. Similarly, the

submission made by the counsel for the petitioner before this court that

the employment of respondent no. 1 being on probation could in any

case be terminated without any notice etc. cannot be entertained since

this stand was also not taken before the Tribunal.

8. Now I come to the plea of the petitioner that it had not terminated

the services of the respondent no. 1 but he himself had abandoned his

services by not reporting for duty w.e.f. 1st April, 1998 onwards. It was

submitted by the learned counsel for the petitioners and as had been

averred in the writ petition also that since respondent no. 1 had not

reported for duty despite being called upon by the School to do so his

name was removed from the rolls of the School. Thus, the fact remains

that the services of respondent no. 1 stood terminated because of

removal of his name from the rolls of the school by the management by

treating his absence from duty as abandonment of the job by him. In my

view, the name of respondent no. 1 could not have been removed from

the rolls of the School by ITS management on the assumption that he

had abandoned his job since there is no such Rule under the Delhi

School Education Rules, 1973 giving the authority to the management

of a school governed by the Delhi School Education Act, 1973 to strike

off the name of any employee from its rolls because of unauthorized

absence treating the same is abandonment of job by the absentee

employee. The Hon‟ble Supreme Court had in "The Regional

Manager, Central Bank of India Vs. Vijay Krishna Neema & Ors.",

AIR 2009 SC 2200 observed that what constitutes abandonment may be

a matter of statutory provision or agreement between the employer and

the employee. Here, there is no statutory provision in that regard and

there was no question of any such agreement between the School and

respondent no.1 since the terms of employment of the employees of the

Schools governed by the Delhi School Education Act, 1973 are

governed by this Act and the Rules framed thereunder. Thus, in the

absence of any such rule permitting termination of services of an

employee of a School on the ground of abandonment of the job by the

employee the management of the school could not have removed the

name of respondent no. 1 from its rolls. The Hon‟ble Supreme Court

had also observed in "V.C., Banaras Hindu University and Ors. Vs.

Shrikant", AIR 2006 SC 2304 that the employer cannot create a new

exit door for the employee to throw him out of service on the ground of

abandonment of job by the employee when the Rules do not give that

authority to the employer. Therefore, in the present case the removal of

the name of respondent no. 1 from the rolls of the School on the

assumption that he had abandoned his job did amount to termination of

his services because of the misconduct of unauthorized absence from

duty on his part which, as rightly concluded by the learned Tribunal

also , could not have been done without holding an enquiry in which it

could be decided whether respondent no. 1 had committed the

misconduct of unauthorised absence from duty or not.

9. Therefore, I do not find any merit in this writ petition and there

being no scope for any interference in the impugned judgment of the

Tribunal, this writ petition is dismissed with costs.

P.K. Bhasin, J

March 10, 2011/pg