Delhi High Court
Sadhu Vaswani Interantional ... vs Govt.Of Nct Of Delhi & Anr. on 22 August, 2012
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P (C) No. 8579/2010
% Judgment reserved on: 14.8.2012
Judgment delivered on: 22.08.2012
SADHU VASWANI INTERANTIONAL SCHOOL FOR
GIRLS ..... Petitioner
Through: Mr. H.L. Tiku, Sr. Adv. with
Ms. Yashmeet, Mr. Rajesh Goyal and
Mr. Harish Joshi, Advs.
versus
GOVT.OF NCT OF DELHI & ANR. ..... Respondents
Through: Ms. Anjana Gosain, Ms. Prerna Shah
Deo and Mr. Karan Burman, Advs. for R1.
Mr. Munish Tyagi, Adv. for R2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide this writ petition, the petitioner has assailed the impugned order
dated 16.11.2010 passed by the Presiding Officer, Delhi School Tribunal
whereby the learned Tribunal has opined as under:-
"12. The case of the Appellant herein is covered by the
Provisions of Delhi School Education Act & Rules-1973.
Section 8(2) of the same is reproduced below:
Section 8(2): "Subject to any rule that may be made in
this behalf, no employee of a recognized private school
shall be dismissed, removed or reduced in rank nor
shall his service be otherwise terminated except with
the prior approval of the Director."
Termination of the Services of an employee is a major penalty
and its remedy by way of appeal to the Tribunal is allowed as
per interpretation given to the Provisions of Section 8(2) of the
Act. In the case of Shashi Gaur Vs. NCT of Delhi and Others,
(2001) 10 SCC 445 remedy is not available only when the
termination of service takes place by a afflux of time for which
the employee was initially appointed. The question of obtaining
prior or ex-post facto approval of the Director has been dealt
with by the Hon‟ble Delhi High Court in the case of Kathuria
Public School (Supra). The Respondent School is an unaided
School. Being an unaided School, the only concession
available to it is that it need not seek an approval by the
Director of Education while terminating the services of its
employee. But the procedure as envisaged by the provisions of
Rule 120 of Delhi School Education Rules-1973 is required to
be followed. A departmental inquiry as prescribed has to be
conducted. Admittedly no departmental inquiry was held in the
present case for looking into the misconduct of the Appellant.
The Respondent School thus fell in grave error in terminating
the services of the Appellant without affording her the
opportunity of being heard. Impugned orders dated 21.08.1999
are thus held illegal and the same are hence set-aside.
13. Coming to the question of back-wages, the relevant law
is contained in Rule 121 of Delhi School Education Rules-1973.
It is the Managing Committee which has to consider and pass
specific orders in relation to the salary and allowances to be
paid to the employee for the period of her absence from duty.
The question as to whether the aforesaid period of absence
from duty is to be treated as „period on duty‟ is also to be
considered by the Managing Committee. It is however made
clear that the Respondent School is at liberty to take
disciplinary action against the Appellant after she is reinstated
in service. Application under Section 340 Cr.P.C. filed by the
Respondent School is not maintainable at this stage as no
findings could be given by this Tribunal in relation to falsehood
or otherwise of the statement made by the Appellant in her
affidavit. Appeal is accordingly disposed of."
2. Mr.H.L. Tiku, learned Senior Advocate appearing on behalf of the
petitioner has argued that respondent no.2 on her own abandoned the
services of the petitioner-school. She remained absent without leave and
without any information w.e.f. 07.07.1999 to 05.08.1999. She had deemed
to have submitted her resignation. This is a case of double employment.
The petitioner-school physically verified the presence of the respondent no.2
in the Tagore International School. She was on regular payroll of the
aforesaid school. Thus she is guilty of forgery and concealment of the facts.
3. Learned counsel has further submitted that the petitioner-school
prayed before the Tribunal to get the alleged fact verified by giving
directions to the Director of Education in this behalf.
4. However, the learned Tribunal relied upon the rejoinder filed by
respondent no.2 wherein she denied the contention of the petitioner-school
and reaffirmed her stand. In reply to respondent no.2 she even stated that
the petitioner-school had fabricated the documents in collusion with the
Tagore International School. She even denied her signature on those
documents.
5. Mr. Munish Tyagi, learned counsel appearing on behalf of the
respondent no.2 fairly conceded that the respondent no.2 had joined Tagore
International School only after her termination from the petitioner school but
not before that whereas the document produced by the Tagore International
School before the Tribunal were forged and created just to help the stand of
the petitioner-school.
6. I note that there is no inquiry on the documents submitted by the
Tagore International School whether the respondent no.2 had joined the
aforesaid school while in service before her termination.
7. I further note that the learned Tribunal has relied upon the statement
of the respondent no.2 wherein she denied her signature on those documents.
8. In the present controversy, I am of the considered opinion that truth
can be established only by way of inquiry on the documents produced by
Tagore International School.
9. Therefore, I direct the learned Tribunal to conduct the inquiry within
three months and pass a fresh order thereafter.
10. Consequently, the impugned order dated 16.11.2010 is hereby set
aside.
11. No order as to costs.
12. The Registry is directed to send the LCR back to the learned Tribunal.
13. The parties are directed to appear before the learned Tribunal on
30.08.2012.
13. The writ petition is disposed of in the above terms.
CM. No. 21888/2010
In view of the above, instant application become infructuous and
disposed of as such.
SURESH KAIT, J
AUGUST 22, 2012
gm
