Poonam Vig vs Sadhu Vaswani International ...
2012 Latest Caselaw 5412 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 11th September, 2012

+                  LPA 602/2012 and CM No.15190/2012 (for Stay )

         POONAM VIG                                              ..... Appellant
                              Through:     Mr.Munish Tyagi, Advocate
                                      Versus

    SADHU VASWANI INTERNATIONAL
    SCHOOL FOR GIRLS & ANR                    ..... Respondents

Through: Mr. H.L.Tikku, Sr. Advocate with Mr.Rajesh Goyal, Mr. Harish Chander, and Mr.Sumit Thakur, Advocates, for R-1 with Dr.R.K.Batra, Administrative Officer of the School.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI ACTING CHIEF JUSTICE

1. The appellant herein was working with respondent No.1 School as Receptionist-cum-Typist. According to the school, the appellant, w.e.f. 7th September, 1999 started abandoning from service; according to the appellant, she was sick and had sent leave application supported by a medical certificate and after she recovered, she joined her duties on 6.8.1999; however thereafter, according to her, she was not allowed to enter the school w.e.f. 12.8.1999. The appellant sent a legal notice dated 16.8.1999 alleging that she was not permitted to enter the school premises and join her duties and the school was called upon to allow the appellant to

report for duty.

2. In reply to this notice, the school sent a communication dated 21.8.1999 stating that she had remained absent without leave and without any information resulting in self termination of employment. It was further stated that "We have reason to believe that she has sought employment elsewhere and as per clause 2 of terms and conditions of employment, she has failed to give three months notice and therefore she is liable to pay three months salary in lieu of notice period. We reserve our right to submit a detailed reply at an appropriate time."

3. As per the aforesaid communication, stand of the school was that since the appellant had taken employment elsewhere and had failed to give three months notice, it was a case of self termination by the employee. This was followed by a letter dated 23.8.1999 categorically stating that the appellant had taken employment with Tagore International School, Vasant Vihar, New Delhi and her presence was physically verified there at 11.00 a.m. on 23.8.1999. In this communication, it was also stated that the authorities of Tagore International School had confirmed that she was on the regular roll of the school.

4. The appellant, thereafter, approached the Delhi School Tribunal by filing appeal against the said action, treating it to be her termination from service. Before the Delhi School Tribunal, the case set up by the school was that the school had not terminated the service of the appellant and it was a case of self termination of service by the appellant herself as she had taken employment elsewhere and it was a case of double employment.

5. Learned Tribunal treated it as termination of service by the school and held that if the allegation was that the appellant was in double employment, namely, while in service with the respondent school she had taken employment in Tagore International School as well, then there should have been a chargesheet served upon the appellant and an inquiry held into this aspect. Since this required procedure was not followed, the termination was held to be bad and the appeal was decided directing the school to reinstate the appellant.

6. Against this order dated 16 th November, 2010 of the Delhi School Tribunal, the respondent school preferred W.P.(C) No.8579/2010. In the writ petition, the main contention of the respondent school was that the appellant had abandoned the services on her own accord by joining Tagore International School and this aspect was not dealt with by the Tribunal before holding it to be a case of termination of service by the school. This contention has found favour with the learned Single Judge and the learned Single Judge has observed that since no inquiry on the documents submitted by the Tagore International School as to whether the appellant had joined the aforesaid school before or after her termination had been conducted by the Tribunal, the order of the Tribunal was wrong. The case is, thus remitted back to the Tribunal to go into this controversy.

7. It would be relevant to place on record, at this stage, that the appellant admits that she had worked in Tagore International School for sometime on ad hoc basis, however her case is that since her service was terminated by the respondent school and she was without any means, in order to sustain herself and her family she had no choice but to join Tagore International

School. According to her when she was serving the respondent school at that time she never joined Tagore International School but joined thereafter, i.e., w.e.f.1.10.1999. It would also be pertinent to mention that the Tribunal had summoned the documents from Tagore International School at the insistence of the respondent school allegedly showing the attendance of the appellant in the school records of the Tagore International School as per which the appellant was attending the school even on 16.8.1999. This document, according to the appellant, is a forged document created by the respondent school in collusion with Tagore International School.

8. The question that falls for consideration is as to whether it was necessary on the part of the respondent school to hold an inquiry as to whether the appellant had taken employment with Tagore International School while she was in the service of the respondent school or this inquiry should be gone into by the Tribunal.

9. The inquiry into this aspect is necessary to determine whether it is a case of termination by the school as alleged by the appellant or it is a case of self termination which is the defence of the respondent school. In case, it is ultimately found that the appellant had, in fact, joined Tagore International School while she was in service with the respondent school, then by inference it can be treated as abandonment on the part of the appellant sofar as her services with the respondent school are concerned. On the other hand, if it is found to be incorrect, namely, she was never in the employment of Tagore International School during her tenure with the respondent school, then not allowing the appellant to join duties would amount to terminating the services of the appellant by the respondent school. Had the respondent

school in its communication treated the aforesaid purported act of the appellant as misconduct and terminated services on that ground, probably order of the Tribunal could have been justified. In that case, service of the appellant could not have been terminated without a show cause notice, chargesheet or a proper inquiry after following the procedure contained in Rule 121 of the Delhi School Education Rules, 1973. However, the respondent school did not do so; instead the respondent school simply treated the alleged act on the part of the appellant in taking employment with the Tagore International School as abandonment or "self termination". In such a case, therefore, respondent school was not under any obligation to conduct any inquiry as it is stated at the cost of repetition that the respondent did not treat it as misconduct or tried to impose penalty upon the appellant thereby.

10. In a case like this, we are of the opinion that the Tribunal ought to have determined whether it was a case of termination by the school or it was a case of abandonment/self termination by the appellant. It was for the Tribunal to go into the question as to whether the appellant had in fact taken employment with Tagore International School even when she was serving the respondent school or she had taken that employment only in October, 1999, i.e., after the termination. Inquiry is also needed into the allegation of the appellant that the respondent school has produced forged documents in collusion with Tagore International School.

11. When the matter is seen in the aforesaid perspective, we do not find any infirmity in the order passed by the learned Single Judge directing the Delhi School Tribunal to make inquiry into this aspect and return its

findings as stated above. Depending upon the findings on this issue, it will be determined whether it is a case of termination by the employer. Needless to mention if it is found that the appellant was not in the service of Tagore International School during the period she was serving the respondent school, i.e, before 16.8.1999, it will be then treated as a case of termination by the employer, i.e., respondent school.

Accordingly, the appeal stands dismissed.

ACTING CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J

SEPTEMBER 11, 2012 Sv..