Tajinder Kaur vs Guru Harkishan Public School And ...
2013 Latest Caselaw 1712 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     WP(C) No.8040/2011, WP(C) No.7342/2011, WP(C) No.8041/2011,
      WP(C) No.8053/2011, WP(C) No.8054/2011, WP(C) No.8055/2011,
      WP(C) No.8189/2011 & Cont.Cas(C) No.868/2011

%                                                         April 16, 2013
1.    WP(C) No.8040/2011

TAJINDER KAUR                                              ..... Petitioner
             Through:            Mr. Naresh Thanai with
                                 Mr. J.P.Singh, Advs.

                        versus

GURU HARKISHAN PUBLIC SCHOOL AND ORS ..... Respondents

Through: Ms. Prabhsahay Kaur, Adv. for R-1 & 2.

Ms. Ferida Satarawala, Adv. for R-3.

                        and

2.    W.P.(C) No.7342/2011
MANJIT KAUR AND ANR                                       ..... Petitioners
             Through:            Mr. Naresh Thanai with
                                 Mr. J.P.Singh, Advs.

                        versus

GURU HARKRISHAN PUBLIC SCHOOL AND ORS ..... Respondents Through: Mr. Jasmeet Singh, Adv. for R- 1.

Ms. Sonia Sharma for Mr. V.C.Jha, Adv.

for R-2.

                        and

3.    W.P.(C) 8041/2011
BALJINDER KAUR                                            ..... Petitioner

                   Through:       Mr. Naresh Thanai with
                                 Mr. J.P.Singh, Advs.

                        versus

GURU HARKISHAN PUBLIC SCHOOLD AND ORS ..... Respondents Through: Ms. Prabhsahay Kaur, Adv. for R-1 & 2.

Ms. Ferida Satarawala, Adv. for R-3.

                        and

4.    W.P.(C) 8053/2011
JASVEEN KAUR                                                ..... Petitioner
                  Through:       Mr. Naresh Thanai with
                                 Mr. J.P.Singh, Advs.

                        versus

GURU HARKISHAN PUBLIC SCHOOL AND ORS ..... Respondents Through: Ms. Prabhsahay Kaur, Adv. for R-1 & 2.

Ms. Ferida Satarawala, Adv. for R-3.

                        and

5.    W.P.(C) 8054/2011
HARDEEP KAUR                                              ..... Petitioner
                  Through:       Mr. Naresh Thanai with
                                 Mr. J.P.Singh, Advs.

                        versus

GURU HARKISHAN PUBLIC SCHOOL AND ORS ..... Respondents Through: Ms. Prabhsahay Kaur, Adv. for R-1 & 2.

Ms. Ferida Satarawala, Adv. for R-3.

                        and


 6.    W.P.(C) 8055/2011
RAJNI SHARMA                                              ..... Petitioner
                  Through:       Mr. Naresh Thanai with
                                 Mr. J.P.Singh, Advs.

                        versus

GURU HARKISHAN PUBLIC SCHOOL AND ORS ..... Respondents Through: Ms. Prabhsahay Kaur, Adv. for R-1 & 2.

Ms. Ferida Satarawala, Adv. for R-3.

                                 and

7.    W.P.(C) 8189/2011
JASVINDER KAUR                                            ..... Petitioner
             Through:            Mr. Naresh Thanai with
                                 Mr. J.P.Singh, Advs.

                        versus

GURU HARKISHAN PUBLIC SCHOOL AND ORS ..... Respondents Through: Ms. Prabhsahay Kaur, Adv. for R-1 & 2.

Ms. Ferida Satarawala, Adv. for R-3.

                                 and

8.    Cont.Cas(C) No.868/2011

MANJIT KAUR & ANR.                                         ..... Petitioners
             Through:            Ms.Minal Sehgal, Adv.

                        versus

GURU HARKISHAN PUBLIC SCHOOL AND ORS ..... Respondents Through: Ms. Prabhsahay Kaur, Adv. for R-1 & 2.

Ms. Ferida Satarawala, Adv. for R-3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

W.P.(C) No. 8040/2011

1. There are two reliefs which are claimed in the writ petition. The

first relief is for quashing the suspension of the petitioner as no prior or post

facto approval of the Director of Education has been taken. The second relief

is the challenge to a letter dated 18.10.2011 issued by the respondent

No.1/school initiating a fact finding enquiry.

2. Both these aspects have been dealt by me in the judgment dated

10.4.2013 passed in three connected writ petitions, being WP(C)

Nos.8412/2011, 8413/2011 and 8421/2011 titled as Jatinder Kaur Saini vs.

School Management Of G.H.P.S., Fateh Nagar & Ors.; Gurmeet Kaur vs.

School Management Of G.H.P.S., Fateh Nagar & Ors. and Swaranjit

Kaur vs.School Management Of G.H.P.S., Fateh Nagar & Ors.

respectively.

3. In the aforesaid judgment dated 10.4.2013 I have relied upon

two Division Bench judgments of this Court in the cases of Kathuria Public

School vs. Director of Education, 123 (2005) DLT 89 and Delhi Public

School & Anr. Vs. Shalu Mahendroo & Ors.(2013) 196 DLT 147(DB), and

which judgments hold that with respect to private unaided schools, neither

prior nor post facto approval of the Director of Education is required before

suspending an employee/teacher. Adopting the ratio contained in the

judgment dated 10.4.2013 in WP(C) No.8412/2011 and connected matters,

the argument in the present case is rejected that prior or post facto approval

is required of the Director of Education.

4. Counsel for the petitioner urges that the issue is of a minority or

a non-minority institution but I fail to understand how this argument at all is

in any manner relevant because it is not disputed that the respondent

No.1/school is an unaided private school. Once respondent No.1 is an

unaided private school, whether minority or non-minority, no prior or post

facto approval would be required with respect to suspension orders from the

Director of Education.

5. The second issue which is argued is (again the same issue

which has been dealt by me in the judgment dated 10.4.2013) that the

enquiry initiated in terms of the letter dated 18.10.2011 is violative of the

Delhi School Education Act and Rules, 1973. To this aspect, counsel

appearing for the respondent No.1/school states that the letter dated

18.10.2011 was only a preliminary fact finding enquiry and if disciplinary

proceedings are held by the respondent No.1/School the same will be held in

accordance with Delhi School Education Act, 1973 and its Rules and

especially Rules 118 to 120. Thus the second issue urged on behalf of the

petitioner also accordingly does not survive.

6. An additional issue which has been urged on behalf of the

petitioner on merits is that the petitioner was duly qualified, and therefore,

suspension order should be set aside. I may state that the issue with regard

to merits will be an issue in the Departmental Proceedings, and the case of

the respondent-school is that petitioner was not qualified when she was

appointed, and therefore, the petitioner was suspended. I may note that the

petitioner has filed an application which is coming up before me first time

today being CM No.4595/2013 which refers to the fact that the petitioner has

during the pendency of the present proceedings completed her Master of

Arts, and therefore, this fact is sought to be brought to the attention of this

Court. In fact, this aspect in my opinion shows that at the relevant time

when the petitioner was employed the petitioner was not qualified as per

rules and therefore, the suspension order is valid. I must hasten to add that I

express no final opinion one way or the other on the qualification of the

petitioner. I note that the Supreme Court in the judgment in the case of State

of Orissa vs. Bimal Kumar Mohanty (1994) 4 SCC 126 has observed as

under:-

"It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations inputted to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated

earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge."

(underlining added)

7. In accordance with the ratio laid down in aforesaid para 13 of

the judgment of the Supreme Court, there are various grounds for

suspension, and suspension orders are not interfered with ordinarily by the

Courts. In the present case, I am of the opinion that there are no grounds for

interfering with the suspension orders because of the ratio of the judgment of

the Supreme Court stated in para 13 above which states that there are various

reasons for suspending an employee including to remove the impression

among the members of service that dereliction of duty would pay fruits and

the offending employee could get away even pending enquiry without any

impediment. The Supreme Court has said that each case has to be

considered depending on the nature of allegations, gravity of the situation

and the indelible impact it creates on the service for the continuance of the

delinquent employee in service pending enquiry or contemplated enquiry or

investigation. In the present case, teaching of students by an unqualified

teacher is surely a grave aspect entitling the respondent No.1/school to

suspend the petitioner.

8. For the sake of record I must note that the counsel for the

petitioner has filed written submissions today before me in Court alongwith

various judgments but in view of the judgments of Division Benches of this

Court in Kathuria Public School (supra) and Delhi Public School (supra),

the judgments relied upon have no application.

9. In view of the above, the writ petition is accordingly dismissed.

WP(C) No.7342/2011

10. It could not be disputed on behalf of counsel for the petitioner

that this case will also stand covered by the judgment passed by me today in

WP(C) No.8040/2011. This writ petition is also accordingly dismissed by

adopting the reasoning contained in WP(C) No.8040/2011 and WP(C)

No.8412/2011 decided on 10.4.2013.

WP(C) No.8041/2011, WP(C) No.8053/2011, WP(C) No.8054/2011, WP(C) No.8055/2011, WP(C) No.8189/2011

11. In view of the observations in WP(C) No.8040/2011 and

adopting the same, these writ petitions are also dismissed.

Cont.Cas(C) No.868/2011

12. In view of the fact that Contempt jurisdiction is a discretionary

jurisdiction and the main writ petition itself stands dismissed by me by

today's judgment in WP(C) No.8040/2011, I am not inclined to exercise the

Contempt jurisdiction in the facts of the present case. Contempt petition is

accordingly dismissed.

                                            VALMIKI J. MEHTA, J
APRIL     16, 2013
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