Parul Bharti vs Govt. Of Nct Of Delhi & Ors.
2011 Latest Caselaw 4941 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 3rd October, 2011.

+             W.P.(C) 8594/2009 & CM No.16609/2011 (for direction)

%      PARUL BHARTI                                           ..... Petitioner
                           Through:      Ms. Arati Mahajan Shedha, Adv.
                                      Versus

    GOVT. OF NCT OF DELHI & ORS.               ..... Respondents
                 Through: Ms. Bandana Shukla for Ms. Ruchi
                           Sindhwani, Adv. for R-1&2.
                           Mr. Anil Sehgal, Adv. for R-3 to 6.
                           Mr. Anil Kumar, DEO, Zone-16.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may          Not necessary
       be allowed to see the judgment?

2.     To be referred to the reporter or not?               Not necessary

3.     Whether the judgment should be reported              Not necessary
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner was employed as a Laboratory Assistant with the

respondent no.3 S.D. Secondary School (Gujarat), an aided school. This

petition was filed for setting aside of the order dated 31 st August, 2006 of the

respondent no.3 School placing the petitioner under suspension and

impugning the charge sheets dated 7th December, 2005 and 27th November,

2006 and the inquiry proceedings in pursuance thereto. Though the interim

relief of stay of the inquiry proceedings was sought but not granted. The

counsels have been heard.

2. It emerges, that the charge sheets aforesaid with which the petitioner

was served and in pursuance to which the petitioner was placed under

suspension did not culminate in any disciplinary action against the petitioner

in as much as the said proceedings were not approved of by the respondent

no.2 Directorate of Education (DOE). The respondent no.3 School thereafter

commenced a fresh inquiry against the petitioner and the disciplinary

authority of respondent no.3 School punished the petitioner with dismissal of

service from the employment of the respondent no.3 School but which

punishment was modified to that of compulsory retirement, by the

respondent no.2 DOE.

3. The contention of the counsel for the respondent no.3 School thus is

that the present writ petition has become infructuous and is liable to be

disposed of as such as neither the suspension nor the charge sheets or the

inquiry in pursuance thereto challenged in this petition survive and stood

substituted by a fresh inquiry and which is not under challenge.

4. It has been enquired from the counsel for the petitioner whether the

petitioner has impugned the order of compulsory retirement. The counsel for

the petitioner states that the same has not been challenged because the

petitioner on the one hand and the Society under aegis of which the

respondent no.3 School functions on the other hand arrived at a settlement

and whereunder it was agreed that the petitioner shall be taken back into

employment. It is further stated that the matter is pending before the

respondent no.2 DOE in this regard. CM No.16609/2011 seeking direction

to the respondent no.2 DOE to permit the Society running the school to take

back the petitioner and her husband (who was also in employment of the

respondent no.3 School and who also as per the settlement is to be taken

back into service) into service and to keep the present writ petition pending

till the final decision of the respondent no.2 DOE.

5. The counsel for the respondent no.3 School states that though the

petitioner on approaching the President of the Society had prevailed upon

him to agree to the aforesaid but the Managing Committee of the respondent

no.3 School has not agreed to the said proposal and as such the question of

the respondent no.2 DOE issuing any directions in this regard does not arise.

6. The counsel for the petitioner in response to the query as to why the

petition has not become infructuous has given two reasons. Firstly, it is

stated that the claims of the petitioner for salary upon the relief with respect

to suspension being granted can be agitated only in this writ petition and not

before the Delhi School Tribunal. Secondly, it is contended that the

petitioner having impugned the very initiation of the inquiry in this petition,

even if the same has culminated in a disciplinary action aforesaid against the

petitioner, the petitioner is entitled to continue the present proceedings and if

succeeds in the same, the final disciplinary action against the petitioner

would also stand set aside.

7. I am unable to agree with the latter of the aforesaid contention of the

counsel for the petitioner. The inquiry which was challenged in this petition

already stands substituted by a fresh inquiry. The petitioner did not

challenge the fresh inquiry in this petition. The fresh inquiry having resulted

in an order of compulsory retirement of the petitioner, the challenge if any

has to be thereto and not by way of the present writ petition. The argument

of the counsel for the petitioner if accepted would lead to multiplicity of

litigations with a challenge being first made to the initiation of the inquiry

and thereafter to the culmination thereof. Merely because the petitioner has

kept this petition pending, would not entitle the petitioner to the relief as

claimed. The counsel for the respondent no.3 School in this regard has also

invited attention to the order dated 21st April, 2010 in the present

proceedings whereunder the petitioner had agreed to appear before the

Inquiry Officer and to raise all objections before the said Inquiry Officer.

Attention is also invited to the order dated 8th July, 2010 whereby the

respondent no.2 DOE was directed to take a decision on the inquiry report

within three months from that date and in pursuance to which direction the

respondent no.2 DOE has taken a decision of imposition of penalty of

compulsory retirement. Moreover the Delhi School Education Act, 1971

provides for the remedy of appeal before the Tribunal against the order of

compulsory retirement and the remedy of the petitioner is before the

Tribunal.

8. Thus the only question which remains to be adjudicated is as to the

effect of the challenge to the order of suspension. In this regard, it may be

noticed that the suspension order dated 31st August, 2006 of the petitioner

was approved by the respondent no.2 DOE on 13th September, 2006.

However the respondent no.2 DOE on 27th July, 2007 revoked the

suspension of the petitioner. On 11th November, 2009, a fresh inquiry as

aforesaid, was sanctioned against the petitioner and on 24th February, 2010

DOE approved the continuation of the petitioner on suspension during the

pendency thereof. However such continuation of suspension can date back

maximum to the commencement of fresh inquiry i.e. 11 th November, 2009

and cannot relate back to any date prior thereto. It is however the admitted

position that the petitioner remained under suspension, throughout from 31 st

August, 2006 till compulsory retirement.

9. Thus the question is as to the entitlement of the petitioner during the

period 27th July, 2007 to 11th November, 2009 i.e. whether the suspension of

the petitioner during the said period is valid or not and whether the

petitioner, for the said period, is entitled only to suspension allowance in

accordance with provisions of the Delhi Education School Rules 1973 or is

entitled to full emoluments.

10. The counsel for the respondent no.3 School states that the said

question would be beyond the scope of the present petition. Even though

strictly so but I am of the opinion that the matter being before this Court, the

same should not be left unadjudicated particularly when Section 8(3) of the

Act as now interpreted by the Full Bench in O.Ref.1/2010 titled Presiding

Officer, Delhi School Tribunal Vs. GNCTD decided on 27th August, 2010

does not permit the said question to be agitated before the Delhi School

Tribunal.

11. The counsel for the respondent no.3 School has also contended that

the approval on 24th February, 2010 to the suspension should be construed as

an approval of suspension from the date of revocation i.e. 27th July, 2007.

However I am unable to agree. There is nothing to show that the decision of

the respondent no.2 DOE of not granting approval to the earlier inquiry

against the petitioner or of the revocation dated 27 th July, 2007 of suspension

was at any time recalled. The only conclusion thus can be that the

suspension of the petitioner between 27th July, 2007 and 11th November,

2008 was without authority of law and the petitioner for the said period

would be entitled to full wages and not merely suspension allowance.

12. As far as the relief claimed in CM No.16609/2011 is concerned, the

Act and the Rules do not recognize the Society and recognize only the

Managing Committee of a recognized School and in the absence of any

compromise between the Managing Committee of the respondent no.3

School and the petitioner, no direction as sought to the respondent no.2

DOE, can be given.

13. The petition is therefore disposed of with a direction to the

respondents to pay, the differential between the suspension allowance

already paid and the full wages for the period 27 th July, 2007 to 11th

November, 2009, to the petitioner within three months of today. Else, the

petition is infructuous and is disposed of with liberty to the petitioner to take

appropriate remedy against the order of compulsory retirement.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) OCTOBER 03 2011 pp