The Managing Committee ... vs Govt. Of Nct Of Delhi And Ors
2012 Latest Caselaw 5493 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+               CM. No. 6705/2012 in W.P (C) No. 2939/2012

%               Judgment reserved on: 3rd September, 2012
                Judgment delivered on: 13th September, 2012


THE MANAGING COMMITTEE RAGHUMALARYA
GIRLS SENIOR SECONDARY SCHOOL            ..... Petitioner
                  Through: Mr. S.N.Gupta, Advocate.

                        versus

GOVT. OF NCT OF DELHI AND ORS            ..... Respondents
                   Through: Mr. Jagdip Kumar Sharma,
                            Advocate for Respondents No. 1
                            and 2.
                            Ms. Maninder Acharya and
                            Ms. Indrani Ghosh, Advocates
                            for Respondent No.3
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

1. Vide the instant application, applicant / respondent no. 3 is seeking the vacation of the interim order dated 16.05.2012 passed in CM. No. 6318 of 2012.

2. In the application, it is stated that the copy of the main Petition and the application mentioned above were not supplied to the respondent no. 3 and the interim relief granted in favour of the petitioner by an ex-parte order.

3. Ms. Maninder Acharya, ld. Counsel appearing on behalf of respondent no. 3 submitted that any suspension resorted to by the respondent School under Rule 115 of the Rules is subject to the provisions of sub-sections 4 & 5 of Section 8 of the Act.

4. For the convenience, sub-section 4 & 5 of Section 8 are reproduced as under:

"8. Terms and conditions of service of employees of recognized private schools-

(4) Where the managing committee of a recognized private school intends to suspend any of its employees, such intention shall be communicated to the Director and no such suspension shall be made except with the prior approval of the Director.

Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct within the meaning of the Code of Conduct prescribed under Section 9, of the employee:

Provided further that no such immediate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period.

(5) Where the intention to suspend, or the immediate suspension of a an employee is communicated to the Director, he may, if he is satisfied that there are

adequate and reasonable grounds for such suspension, accord his approval to such suspension.

5. Ld. Counsel further submitted that when the petitioner resolved to suspend the respondent no. 3 w.e.f 18.02.2012, the said suspension required to be resorted as per first proviso to Section 8 (4) of the Act.

Therefore, without prior approval of the respondent no. 1, it had to be governed by second proviso to Section 8 (4) of the Act i.e. the said immediate suspension dated 18.02.2012 could remain in force for not more than a period of 15 days from the date of the said suspension i.e. up to 03.03.2012, unless it had been approved by respondent no. 1 by 03.03.2012 as per the second proviso of Section 8 (4) of the Act.

6. Ld. Counsel further submitted that prior to suspension the things were fine in the School. But when the respondent no. 3 in September, 2011 dare to make complaint to the Chairman of the School and to the Delhi Commission for Women (DCW) against the conduct of the Manager Sh. R.K. Verma, who was making unsolicited overtures and misbehaving with her taking advantage of the fact that she is staying alone in Delhi.

7. Delhi Commission for Women took cognizance of the matter and has ordered an enquiry into the conduct of the above-named Manager vis-a-vis respondent no. 3.

8. Ld. Counsel has relied upon a case decided by Division Bench of this Court in a case of Anand Dev Tyagi v. Lt. Governor of Delhi, 1996 39 DRJ (DB) wherein it is held that the provisions of Section 8

(4) and Section 8(5) of the Act as under:-

"The petitioner was placed under suspension on 10.7.1994. In case the petitioner had been put under suspension on 10.7.1994 by the Managing Committee, in exercise of its power to put an employee under suspension with immediate effect on its satisfaction that immediate suspension was necessary by reason of gross misconduct, the same could remain in force at the most for a period of 15 days from the date of suspension. Suspension thereafter could remain operative only on the Director's according his approval before the expiry of the period of 15 days.

No doubt the suspension was communicated by respondent No.4 to the Director but no approval was granted by the Director before the expiry of period of 15 days. Director was required to take a decision within the ambit of sub-section (5) of Section 8 on his satisfaction that there were adequate and reasonable grounds for suspension. There is nothing in the Act or in the Rules that in the event of Director not according his approval, the same will be deemed to have been accorded. In other words, there is no deeming provision. Communication of the fact of suspension to the Director of Education and according of his approval to this act of placing an employee under suspension before the expiry of period of fifteen days is a sina qua non for the period of suspension to remain in force beyond fifteen days. 1 On approval not being granted the suspension will cease to be operative. Power lies with the Director either to approve or not to approve. It is only on approval being granted that period of suspension will extend beyond fifteen days. Not taking decision by the Director within fifteen days will also amount to approval not being accorded. No doubt the management in an emergent situation, as is referred to in the second proviso to sub section (4) of section has a right to forthwith place the employee under suspension, but this act of placing suspension requires approval, approval has

to be accorded by the director on his satisfaction that there are reasonable grounds for such suspension. It requires appositive decision to be taken. -Approval may be either accorded or withheld or may not be accorded at all. There is no question deemed approval as is contended on behalf of respondent No.4".

9. Ld. Counsel further submitted that it is held in the above-cited case that treating the petitioner therein under suspension was not in consonance with law of the School and the School was directed not to treat the petitioner therein under suspension as per the statutory provisions under Section 8(4) of the Act and the law laid down with regard to suspension of an employee of a recognized Private School. But even asserting that it had granted approval of the suspension dated 18.02.2012 of the respondent no. 3 would be untenable in law because of the aforementioned statutory provision.

10. Ld. Counsel further submitted that non-granting of approval of the immediate suspension dated 18.02.2012 of the respondent no. 3 by the Directorate of Education within 15 days would not make any order of approval / disapproval granted after the expiry of the statutory period of 15 days legitimate. Therefore, the letter dated 11.05.2012, which is only a communication does not have any effect on the immediate suspension dated 18.02.2012 as the said order became inoperative after the expiry of 15 days from 18.02.2012 i.e. from 03.03.2012 onwards.

11. Ld. Counsel has simply submitted that continuing the petitioner under suspension beyond the period of 15 days and that is when the approval of Directorate of Education having been not accorded within

the stipulated period shall cause prejudice to the rights of the respondent no. 3.

12. Ld. Counsel has further relied upon a case of Delhi Public School & Anr. v. Director of Education & Ors. 100 (2002) Delhi Law Times 530 (FB), wherein it is held as under:

"The contention of the petitioners is that having regard to the scheme of the Act and Rules, grant of approval of an order of suspension is almost automatic and as such, in the event the Director of Education things otherwise, he must assign sufficient and cogent reasons therefor. The further contention of the petitioners is that only because approval is not received within a period of 15 days, it would not automatically lead to reinstatement of the concerned employee and for the said purpose the provisions of the Act or the Rules are required to be read down, particular in view of the fact that the consequent of non-communication of the order of the statutory authority within the specified period had not been laid down. The contention of the respondents, on the other hand is that in the event an order of approval of suspension of a teacher / employee is not received by the School within a period of 15 days, reinstatement of the concerned employee would be automatic.

A statutory requirement to obtain approval of the Director of Education, in the event an employee is placed under suspension, was upheld in Frank Anthony's case (supra). We, therefore, are of the opinion that upon expiry of 15 days from the date of order of suspension, the order of suspension lapsed and the employee shall be entitled to all consequential benefits.

13. On the other hand, ld. Counsel for the petitioner / non-applicant submits that petitioner School vide communication dated 18.02.2012

and 02.03.2012 sought approval from the Director of Education. Same was replied vide communication dated 111.05.2012 that:

"Suspension order dated 18.02.2012 is not in force of after expiry of 15 days period from the date of suspension since the approval has not been obtained."

14. Ld. Counsel further submits that this itself is wrong that petitioner did not obtain the approval rather sent the aforementioned communication for approval, however, the approval has not been granted by the Director of Education.

15. Ld. Counsel further submits that as per the statute the Management has to communicate the order passed by it to the Director of Education. If the Director of Education does not take any decision thereupon, that does not mean that the order passed by the Management become useless on the expiry of 15 days period from that day. If the Director of Education does not take any decision therein that would be deemed approval.

16. Ld. Counsel has also relied upon a case of Anand Dev Tyagi (Supra) wherein it is held as under:

"In view of the above there being no approval accorded by the Director before the expiry of period of 15 days from 10.07.1994 the suspension of petitioner automatically came to an end on 25.07.1994. On and from 25.07.1994, it cannot be said that the petitioner has remained under suspension. Petitioner thereafter was neither placed under suspension afresh separately nor a request was made by respondent No. 4 to the Director for placing the petitioner again under suspension. It is not shown that Education officer or Deputy Education Officer

concerned were delegated with the powers of the Director. It is the Director of Education alone who can exercise the power to grant prior or post approval of suspension under Section 8 (5) of the Act. Education Officer or Deputy Education Officer could not have taken any decision at their own end.

17. Ld. Counsel further submits that order of suspension has been reviewed subsequently and the respondent no. 3 continued under suspension by way of their subsequent orders, which is not permissible under law. If the Management do not receive the approval of the suspension order within 15 days then the suspension has to be revoked first and thereafter only fresh order on suspension can be passed.

18. I heard ld. Counsel for the parties.

19. Respondent no. 3 was put under suspension vide order dated 18.02.2012. Thereafter petitioner School send the same to Director of Education for approval.

20. As per sub-clause 4 of Section 8 of the Delhi Public School Education Rules, 1973, if the Management Committee of the recognized private school intends to suspend any of its employee, such intention shall be communicated to the Director and no such suspension shall be made without the prior approval of the Director. Further it is provided that the Management Committee may suspend an employee with immediate effect and without the prior approval of the Director. However, no such immediate suspension shall remain in force for more than a period of 15 days from the date of suspension

unless it has been approved by the Director of Education before expiry of 15 days.

21. In the instant case, there is no approval from the Director of Education, which is mandatory under Section 8 of the Act. Without prior approval of the Director of Education, it had to be governed by second proviso of Section 8 of the Act i.e. the said immediate suspension dated 18.02.2012 could remain in force for not more than a period of 15 days from the date of the said suspension. Law has been settled in Anand Dev Tyagi (Supra) by the Division Bench of this Court that the Director is required to take a decision within the ambit of sub-section 5 of Section 8 on its satisfaction that there are adequate and reasonable grounds for suspension. There is nothing in the Act or in the Rules that in the event of Director not according his approval, same will be deemed to have been accorded.

22. In other words, there is no deeming provision. If the approval is not being granted within the prescribed period, the suspension will ceased to be operative. It is only on approval being granted, that period of suspension will extend beyond 15 days.

23. Therefore, the settled law is that not taking decision by the Director within 15 days amounts to approval not being accorded.

24. It is also on record that after putting the respondent no. 3 under suspension and when no approval has been received from the Director of Education, then thereafter, the petitioner sent another 3 - 4 communication to the Director of Education. However, respondent

no. 3 was continued under suspension even after the expiry of the period of 15 days.

25. In case the Director of Education does not take any decision thereupon, then the prescribed period of 15 days do not extent automatically and the non-decision of the Director of Education would not be considered as deemed approval.

26. Since, there is no provision of the deemed approval, therefore, the suspension order dated 18.02.2012 has lost its existence.

27. In view of the above discussion and settled law interim order passed in CM. No. 6318/2012 vide order dated 16.05.2012 stands vacated.

28. Instant application is allowed on the above terms and stands disposed of.

SURESH KAIT, J SEPTEMBER 13th, 2012 Jg/RS