Managing Committee Of Shiksha ... vs Director Of Education & Anr.
2011 Latest Caselaw 2716 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 20th May, 2011.

+                   W.P.(C) 11614/2009 & CM No.11452/2009 (for stay)

%        MANAGING COMMITTEE OF SHIKSHA BHARATI
         SENIOR SECONDARY PUBLIC SCHOOL          ..... Petitioner
                     Through: Mr. Gyanendra Mishra & Mr. Samir
                              Jha, Advocates.

                                    Versus

         DIRECTOR OF EDUCATION & ANR.            ..... Respondents
                      Through: Mr. A.K. Singh, Adv. for Ms. Sujata
                               Kashyap, Adv. for R-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                       No
         be allowed to see the judgment?

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. The writ petition impugns the order dated 31 st March, 2009 of the

Delhi School Tribunal allowing the appeal of the respondent no.2 Ms.

Shikha Bhattacharya, declaring that she continues to be in the service of

the petitioner School without any break and directing the petitioner to also

pay to her 50% salary, allowance and other benefits from the period from

16th May, 1998 onwards, failing which the petitioner School was also

directed to pay interest thereon at the rate of 12% per annum. Notice of the

writ petition was issued on 15th September, 2009 and it was also informed

that the petitioner, without prejudice to its rights and contentions had

offered reinstatement to the respondent no.2 and the respondent no.2 had

accepted reinstatement and was working in the petitioner School with

effect from 4th September, 2009. The effect and operation of the order

dated 31st March, 2009 with respect to the back wages and other

consequential reliefs was stayed. The said interim order continues till date.

The counsel for the respondent no.2 has informed that though the petitioner

School had reinstated the respondent no.2 with effect from 4 th September,

2009 but the said action was mala fide and the petitioner School has again,

after a short time only terminated the services of the respondent no.2 and

the appeal of the respondent no.2 with respect to the said termination is

pending consideration with the School Tribunal.

2. It is also the contention of the counsel for the respondent no.2 that

the present case is identical to W.P.(C) No.11898/2009 titled Management

Committee of Shiksha Bharati Senior Secondary Public School Vs.

Director of Education & Deepshikha Saxena, dismissed on 27 th April,

2011.

3. The counsel for the petitioner has however contended that W.P.(C)

No.11898/2009 was decided on its own facts and the facts of the present

case are different and thus this writ petition cannot be disposed of on the

basis of the judgment in the said other writ petition. Finding that the

parties have been embroiled in litigation since May, 1998 and a fresh round

of litigation is still pending before the School Tribunal, attempts for

amicable settlement were made but could not succeed. The counsels have

been heard.

4. The respondent no.2 was appointed as a Primary Teacher in the

petitioner School vide appointment letter dated 29 th June, 1995 and on

successful completion of probation was confirmed vide order dated 9 th

June, 1997. It is the case of the petitioner School that the respondent no.2

on 7th March, 1998 submitted her resignation "with 1/3 months notice" and

which was accepted vide letter dated 30th April, 1998 signed on behalf of

Mrs. N.M. Williams, Manager of the petitioner School and sent to the

respondent no.2 under postal certificate. The petitioner School further

claims to have vide another letter dated 30 th April, 1998, also under the

signatures of Mrs. N.M. Williams, Manager sought a formal approval of

the respondent no.1 Directorate of Education (DOE) under Rule 114A of

the Delhi School Education Rules, 1973 (DSE Rules) for accepting the said

resignation of the respondent no.2.

5. On the contrary, it is the case of the respondent no.2 that she was not

allowed to resume her duties after the summer vacations and she sent

representation dated 9 th July, 1998 to the DOE and a representation dated

14th July, 1998 to the Principal of the petitioner School. It is further the

case of the respondent no.2 that on 23rd July, 1998 she came to know that

the petitioner School had fabricated her resignation letter and that she made

another representation dated 23 rd July, 1998 to respondent no.1 DOE in this

regard.

6. The respondent no.1 DOE vide its letter dated 5 th August, 1998

informed the petitioner School that the proposal for acceptance of

resignation of the respondent no.2 had not been approved and directed the

petitioner School to reinstate the respondent no.2 for the reason that she

had denied having submitted the resignation.

7. The respondent no.2 preferred W.P.(C) No.5667/1998 impugning

the order dated 5th August, 1998 (supra) of the respondent no.1 DOE inter

alia on the ground that no direction was made with respect to back wages.

8. The petitioner School also filed Writ Petition No.1505/2000

impugning the order dated 5 th August, 1998 (supra) of the respondent no.1

DOE. This Court being of the view that the petitioner School had not been

heard, vide order dated 23rd April, 2003 directed the respondent no.1 DOE

to pass an order after hearing all the parties.

9. In pursuance to the aforesaid, the respondent no.1 DOE vide order

dated 17th June, 2003 granted approval to the petitioner School for

acceptance of the resignation of the respondent no.2.

10. Resultantly, the writ petition No.1505/2000 aforesaid preferred by

the petitioner School was on 7th August, 2003 dismissed as infructuous.

Similarly, the writ petition preferred by the respondent no.2 i.e. W.P.(C)

No.5667/1998 was also dismissed as infructuous.

11. An intra court appeal being LPA No.619/2003 was preferred by the

respondent no.2 (against dismissal of her W.P.(C) No.5667/1998) which

was disposed of vide order dated 16th December, 2003. It was held that

since respondent no.2's prayer for grant of back wages had remained

untouched, the same was required to be considered. Accordingly, the

matter was remanded and liberty was also granted to the respondent no.2 to

before the Writ Court seek to amend the writ petition to challenge the fresh

order dated 17th June, 2003 of the respondent no.1 DOE granting approval

for acceptance of her resignation. The respondent no.2 thereafter applied

for amendment of W.P.(C) No.5667/1998 which application was dismissed

vide order dated 16 th August, 2004 for the reason that the said order dated

17th June, 2003 (supra) of the respondent no.1 DOE granting approval for

acceptance of resignation of the respondent no.2 was appealable before the

Delhi School Tribunal. The respondent no.2 preferred intra court appeal

being LPA No.870/2004 against the said order but withdrew the same on

12th September, 2005 with liberty to approach the Delhi School Tribunal,

particularly in light of the Division Bench judgment of this Court in

Kathuria Public School v. Director of Education 2005 VI AD (Delhi)

893. Similarly, vide order dated 4 th October, 2005 the writ petition W.P.(C)

No.5667/1998 was also disposed of with liberty to the respondent no.2 to

approach the Delhi School Tribunal and it was further ordered that the

appeal to be so preferred shall not be rejected on the ground of delay in

preferring the same and with a further direction to the Tribunal to also

adjudicate on the issue of back wages.

12. It was thereafter that the appeal to the Delhi School Tribunal was

filed by the respondent no.2 and against order wherein the present writ

petition has been filed.

13. The counsel for the petitioner School has at the outset contended that

the appeal to the Delhi School Tribunal under Section 8 of the Delhi

School Education Act, 1973 (DSE Act) does not lie against the order of the

respondent no.1 DOE granting approval for acceptance of resignation and

the order of the Tribunal is bad and liable to be set aside for this reason

alone. It is contended that under Section 8(3) of the DSE Act, any

employee of a recognized private school who is dismissed, removed or

reduced in rank is entitled to appeal against such order to the Tribunal. It is

contended that the order appealed against to the Tribunal i.e. of the

respondent no.1 DOE granting approval for acceptance of resignation is

not appealable before the Tribunal.

14. The same argument of the counsel for the petitioner School in

W.P.(C) No.11898/2009 (supra) was rejected for two reasons. Firstly, that

the jurisdiction of the Tribunal could not be ousted merely by the School

taking a stand that the employee had not been dismissed or removed but

had resigned. Secondly it was felt that the petitioner School, at the time of

disposal of W.P.(C) No.5667/1998 having not objected to the respondent

no.2 being relegated to the appeal before the Tribunal and the said order

having attained finality could not now be permitted to contend that the

Tribunal has no jurisdiction. It was also however recorded that the Full

Bench of this Court in judgment dated 27th August, 2010 in O.Ref.

No.1/2010 titled Presiding Officer, Delhi School Tribunal v. GNCTD has

set aside the judgment of the Division Bench of this Court in Kathuria

Public School (supra) (to the extent it laid down that appeal against all

grievances lies to the Tribunal) acting whereon the respondent no.2 was

relegated to the remedy of appeal before the Tribunal. The Full Bench has

held that the appeal to the Tribunal lies only against dismissal, removal or

reduction in rank and not against all grievances of the employee against the

school as held by the Division Bench in Kathuria Public School.

15. However notwithstanding the aforesaid position in law, it was held

in judgment dated 27th April, 2011 in W.P.(C) No.11898/2009 (supra) that

the petitioner School is now estopped from contending that the appeal did

not lie to the Tribunal or that the order of the Tribunal is liable to be set

aside on this ground alone. The parties have been litigating already for the

last 13 years. It was not found equitable to now, owing to the aforesaid

changed interpretation of law direct the respondent no.2 to pursue a

different remedy. This Court in exercise of powers under Article 226 of the

Constitution of India can always refuse to exercise jurisdiction even when

finding a point of law to have been made out (See Chandra Singh v. State

of Rajasthan (2003) 6 SCC 545 and ONGC Ltd. v. Sendhabhai Vastram

Patel (2005) 6 SCC 454). This is felt to be more so in the present case

since another subsequent dispute is also pending before the Delhi School

Tribunal.

16. Having considered the matter, I agree with the counsel for the

respondent no.2 that the present controversy is fully covered by the

judgment dated 27th April, 2011 in W.P.(C) No. 11898/2009 and a

slight/minor difference in facts is immaterial. The counsel for the

petitioner is not right in re-arguing.

17. The counsel for the petitioner has argued that the respondent no.2 in

the present case has not set up any case of her signatures on the resignation

letter being forged. I am unable to agree. Neither has any such ground

been taken in the writ petition nor is the said plea borne out from the

memorandum of appeal preferred by the respondent no.2 to the Tribunal.

In fact the respondent no.2 had therein made a specific prayer for

declaration that the resignation letter had been forged.

18. The other arguments urged by the counsel for the petitioner have

already been dealt with in the judgment dated 27th April, 2011 in W.P.(C)

No.11898/2009 and need is not felt to reiterate the same and all that has

been observed in paras 13 to 22 of the said judgment equally applies to the

facts of the present case. The only difference is qua the "Experience

Certificate" which was subject matter of W.P.(C) No.11898/2009 and with

which we are not concerned in the present case. It was enquired from the

counsel for the petitioner whether Mrs. N.M. Williams was examined in

the present case. The answer is again in the negative.

19. The School Tribunal in the present case has returned a finding of the

resignation letter in the present case being fabricated, from the use of three

typewriters in making thereof and from the placement of the signatures of

the respondent no.2 thereon. As observed in the judgment dated 27th April,

2011 supra, the said view taken by the Tribunal, is a plausible view from

the documents perused by this Court also and not interfereable in exercise

of powers under Article 226 of the Constitution of India.

20. The counsel for the respondent no.2 has also referred to State of

A.P. Vs. P.V. Hanumantha Rao (2003) 10 SCC 121 and State of U.P. Vs.

Johri Mal (2004) 4 SCC 714 on the scope of interference in writ

jurisdiction.

21. The present writ petition is thus liable to be dismissed. However,

need is felt to culminate also the dispute now pending between the parties

before the Tribunal. I am of the opinion that this Court in these

proceedings would have jurisdiction to put an end to the same also since

the termination now under challenge is pursuant to reinstatement which

was made without prejudice to the rights and contentions in the present

writ petition. The effect of dismissal of the present writ petition would be

of revival of the order of the Tribunal impugned in this writ petition of

reinstatement. It is felt that no purpose will be served in thrusting the

respondent no.2 upon an unwilling employer i.e. the petitioner School. It

is therefore deemed expedient to award compensation to the respondent

no.2 in lieu of reinstatement. Compensation of `40,000/- has been

awarded in judgment dated 27 th April, 2011 (supra). The said

compensation was awarded in the light of the fact that the teacher therein

had been re-employed in another School. There is no evidence of the

respondent no.2 herein having been employed in any other School. On the

said premise, the compensation to which the respondent no.2 herein would

be entitled, would be more than `40,000/-. However, since during the

attempts for amicable settlement, the counsel for the respondent no.2 even

though without prejudice to the rights and contentions, had agreed to the

same relief as in the judgment dated 27 th April, 2011 (supra), it is not

deemed expedient to vary the compensation.

22. In the circumstances, the writ petition is disposed of with the

following directions:

(i) the petitioner School is directed to in accordance with the order

of the Tribunal, within four weeks of today pay to the respondent

no.2, 50% of the back wages w.e.f. 16th May, 1998 till 31st March,

2009 (being the date of the order of the Tribunal) together with

interest @10% per annum from 1st June, 2009 till the date of

payment.

(ii) in lieu of the relief of reinstatement, the respondent no.2 is

awarded compensation of Rs.40,000/-. The compensation has been

computed taking into consideration the pay scale of the respondent

no.2 of `1200-2040 and the long span of 13 years after which it is

being awarded. If the said compensation is not paid within four

weeks, the same shall also incur interest @10% per annum till the

date of payment.

(iii) the petitioner to also pay to the respondent no.2 litigation

costs of Rs.10,000/-, also within four weeks as aforesaid failing

which the same shall also incur interest @10% per annum.

(iv) upon receipt of aforesaid amounts, the respondent no.2 would

be left with no claims whatsoever under the other proceedings stated

to be pending before the Delhi School Tribunal and the same shall

stand withdrawn in terms hereof.

RAJIV SAHAI ENDLAW (JUDGE) MAY 20, 2011 bs