Managing Committee, Naval Public ... vs Neera Chopra & Anr
2013 Latest Caselaw 1907 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 29th April, 2013.

+                 LPA No.500/2012 & CM No.11726/2012 (for stay)

       MANAGING COMMITTEE,
       NAVAL PUBLIC SCHOOL                          ...... Appellant
                    Through: Ms. Jyoti Singh, Sr. Advocate with Mr.
                             Amandeep Joshi, Advocate.

                                    Versus

       NEERA CHOPRA & ANR                                    ..... Respondent

                  Through:            Mr. Chetan Lokur, Advocate for Mr.
                                      Viraj R. Datar, Advocate.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra Court appeal impugns the judgment dated 1 st May, 2012 of the

learned Single Judge of dismissal of W.P.(C) No.5390/2011 preferred by the

appellant School. The appellant School had preferred the said writ petition

impugning the order dated 27th May, 2011 of the Delhi School Tribunal

(Tribunal) allowing Appeal No.41/2003 preferred by the respondent No.1. The

said appeal was preferred by the respondent No.1 against the order dated 14 th

October, 2003 of the appellant School issued with the approval dated 8th

October, 2003 of the respondent No.2 Directorate of Education, GNCTD

(DoE), imposing penalty on the respondent No.1 of removal from service of the

appellant School. The Tribunal having set aside the order imposing penalty of

removal from service, directed reinstatement of the respondent No.1 in service,

with 50% of the back wages and all consequential benefits.

2. Notice of this appeal was issued and subject to deposit by the appellant

School in this Court of Rs.5 lakhs, interim stay was granted. The said amount

of Rs.5 lakhs has been deposited by the appellant School. The counsels have

been heard.

3. The Tribunal having set aside the order of removal from service on a

technical ground only, the scope of this appeal and the arguments of the

counsels were confined to the said ground only and need is thus not felt to deal

with the factual controversy save to state, (i) that the respondent No.1 was

employed as a Principal in the appellant School with effect from 14 th January,

1998; (ii) that the respondent No.1 was served with a charge sheet dated 14 th

January, 2003 issued by the Chairman of the Managing Committee of the

appellant School; (iii) that an Enquiry Committee headed by Justice A.K.

Srivastava (retired) was appointed; (iv) that the Enquiry Committee submitted a

report dated 7th September, 2003 indicting the respondent No.1 of some of the

charges levelled against her; (v) that after issuing show cause notice and

considering the response of the respondent No.1 thereto, the appellant School

vide order dated 14th October, 2003 imposed the penalty of removal from

service on the respondent No.1 with the approval dated 8 th October, 2003 as

aforesaid of the respondent No.2 DoE.

4. The order dated 27th May, 2011 of the Tribunal records that the

respondent No.1 had filed the appeal inter alia on the ground, (a) that the

charge sheet dated 14 th January, 2003 which formed the basis of penalty was

issued by the Chairman of the Managing Committee and not by the

Disciplinary Committee; that the Disciplinary Committee was constituted on

17th January, 2003 i.e. after the issuance of the charge sheet; that though the

charge sheet was circulated amongst the members of the Disciplinary

Committee on 17th January, 2003 and the members of the Disciplinary

Committee ratified the charge sheet dated 14 th January, 2003 issued by the

Managing Committee but in view of the mandatory provisions of Rule 118 of

the Delhi School Education Rules, 1973 (Rules), the framing of charges by any

authority other than the Disciplinary Committee constituted in terms of Rule

118 of Rules is contrary to the Rule 120 and vitiates not only the charge sheet

but all proceedings conducted in relation thereto; (b) that four of the five

members of the Disciplinary Committee constituted, were disqualified from

being the members of the Disciplinary Committee, being inimical towards the

respondent No.1 and being cited as a witness in the enquiry; (c) that the

respondent No.1 was not given an opportunity to show cause as to why the

penalty of removal of service be not imposed upon her; (d) that the Enquiry

Officer failed to consider the detailed written submissions furnished by the

respondent No.1; and (e) that the respondent No.2 DoE had failed to apply its

mind prior to according approval.

5. The Tribunal however further records that the main plea raised by the

respondent No.1 was, as recorded under challenge (a) above and the order of

the Tribunal does not show the respondent No.1 School having argued the

grounds (b) to (d) above. It has also not been the case of any party that any

other grounds were pressed before the Tribunal.

6. The contention of the appellant School before the Tribunal in opposition

to ground (a) above was, that the Managing Committee of a School itself is the

Disciplinary Authority as held by a learned Single Judge of this Court in

judgment dated 27th January, 2004 in CWP No.4694/2003 titled Mohan Lal

Saran Vs. Union of India and that the charge sheet in any case had been

ratified by the Disciplinary Committee and reliance in this regard was placed

on Maharashtra State Mining Corporation Vs. Sunil (2006) 5 SCC 96.

7. The Tribunal considered itself not bound by the dicta of this Court in

Mohan Lal Saran (supra) owing to certain observation in the order dated 23rd

September, 2004 in Writ Appeal No.155/2004 preferred thereagainst. The

Tribunal on its own interpretation concluded that the scheme of the Delhi

School Education Act & Rules, 1973 clearly provides for two different bodies;

the Managing Committee is a body vested with the duties and powers of

managing the School and its constitution is provided in Rule 59; the

constitution of the Disciplinary Committee is provided separately under Rule

118 and the Disciplinary Committee exercises power while framing charges on

the basis of allegations against an employee and other powers vested in it. It

was further held that had the Legislature intended the Disciplinary Committee

and the Managing Committee to be one and the same thing, there was no need

of two separate committees with separate constitution and separate roles to

play. It was yet further held that charges framed by the Managing Committee

are therefore illegal and nonest and void ab initio and incapable of ratification.

Maharashtra State Mining Corporation (supra) was held to be a case where

both the authorities had the same functions and duties to discharge and it was

thus held by the Tribunal that the principle of ratification adopted in the said

judgment was in the said context and not in the context where the action is

illegal and nonest.

8. The learned Single Judge, in the impugned judgment has agreed with the

reasoning of the Tribunal and thus dismissed the writ petition of the appellant

School challenging the same.

9. The senior counsel for the appellant School, to meet an observation of

the learned Single Judge in the impugned judgment that the charge sheet was

signed by the Chairman only and not by the Managing Committee and that

there was no resolution of the Managing Committee on record, has at the outset

handed over a copy of the Minutes of the Extraordinary Meeting of the

Managing Committee held on 13 th January, 2003 approving the charge sheet

and authorizing the Chairman of the Managing Committee to serve the charge

sheet on the respondent No.1. The senior counsel for the appellant School has

next invited attention to the Minutes of the Meeting of the Disciplinary

Committee held on 17th January, 2003 recording that the members of the

Disciplinary Committee were informed that a charge sheet has been served on

the respondent No.1 by the Managing Committee; that the said charge sheet

was circulated amongst the members of the Disciplinary Committee and the

members adopted the resolution to ratify the said charge sheet.

10. The senior counsel for the appellant School has next contended that the

Tribunal erred in not following the dicta of this Court in Mohan Lal Saran and

the learned Single Judge having not considered the said aspect. It is argued that

the efficacy of the judgment of the learned Single Judge as a precedent was not

effected by the observations of the Division Bench of this Court in appeal

thereagainst.

11. We have gone through the judgment of the learned Single Judge as well

as the order of the Division Bench in the case of Mohan Lal Saran. The

contention of Sh. Mohan Lal Saran was that the Managing Committee of a

School has no authority in matters pertaining to disciplinary proceedings and it

is only the Disciplinary Authority as per Rule 120 of the Rules which can

decide on the penalty which can be imposed and the Managing Committee had

no authority to deliberate on the enquiry report or to proceed under Rule 120.

It was in the context of such a challenge that the learned Single Judge on a

conspectus of various Rules held that the Disciplinary Authority contemplated

by Rule 120 would be the Managing Committee of the School and that it is the

Managing Committee of the School which is the competent body to take

disciplinary action. However having held so, the learned Single Judge disposed

of the writ petition directing reappointment of an Enquiry Officer to hold

enquiry into the charge sheet as per Rules. Sh. Mohan Lal Saran preferred

appeal against the said judgment and the Division Bench finding that the order

of the learned Single Judge had been implemented by reappointing the Enquiry

Officer and that fresh enquiry in which Sh. Mohan Lal Saran had participated

had already been conducted and fresh punishment order had been passed,

disposed of the appeal giving liberty to Sh. Mohan Lal Saran to challenge the

new order. However, upon the counsel for Sh. Mohan Lal Saran expressing

apprehension that dismissal of appeal would tantamount the interpretation

given by the learned Single Judge of the Rules becoming final and coming in

the way of Sh. Mohan Lal Saran in challenging the new order, the Division

Bench observed that it shall be open to Sh. Mohan Lal Saran to take advantage

of whatsoever grounds may be available to him including his interpretation of

the Rules and the decision thereon would be uninfluenced by the interpretation

given by the learned Single Judge.

12. The contention of the senior counsel for the appellant School before us is

that the Division Bench did not express any doubts as to the correctness of the

interpretation given by the learned Single Judge of various Rules and

concluding the Managing Committee to be the Disciplinary Authority and the

observations aforesaid were made only to enable Sh. Mohan Lal Saran in that

case to make a fresh challenge. She has thus argued that the Tribunal erred in

not following the judgment of the learned Single Judge.

13. The senior counsel has also invited attention to the judgment of one of us

(Rajiv Sahai Endlaw, J.) in Samarth Shiksha Samiti Vs. Directorate of

Education MANU/DE/2075/2011; in that case the charge sheet was signed by

the Manager of the School on behalf of the Managing Committee of the School

and the Tribunal in appeal had similarly as in the present case held that charges

had not been framed by the Disciplinary Committee constituted under Rule 118

and the Disciplinary Committee having been constituted after the issuance of

the charge sheet, disciplinary proceedings were vitiated. On challenge being

made to the order of the Tribunal, on a reading of Rule 120, the relevant portion

whereof is as under:

"120. Procedure for imposing major penalty. - (1) No order imposing on an employee any major penalty shall be made except after an inquiry, held, as far as may be, in the manner specified below:

(a) the disciplinary authority shall frame definite charges on the basis of the allegation on which the inquiry is proposed to be held and a copy of the charges together with the statement of the allegations on which they are based shall be furnished to the employee and he shall be required to submit within such time as may be specified by the disciplinary authority, but not later than two weeks, a

written statement of his defence and also to state whether he desires to be heard in person."

It was held that the use of the words "as far as may be" suggests

that strict compliance of the procedure prescribed therein is not to be

insisted upon and deviations as per necessity are permissible and the

principle of ratification would apply. Though in that case, there was no

express ratification by the Disciplinary Committee, as in the present case,

but it was held that the actions of the DoE of appointing nominees in the

Disciplinary Committee with the knowledge of the charge sheet having

been issued and of the Disciplinary Committee proceeding on the basis of

charge sheet and appointing the Enquiry Officer to enquire into the charge

sheet and considering the report of the Enquiry Officer on the said charge

sheet were sufficient ratification of the charge sheet. Reliance in this

regard was placed on Maharashtra State Mining Corporation. It was

further noticed that though the Apex Court in Marathwada University Vs.

Seshrao Balwant Rao Chavan (1989) 3 SCC 132 has held that the

principle of ratification to be not applicable with regard to exercise of

powers conferred under statutory provisions but in the light of the words

"as far as may be", the principle of ratification in the present case would

apply. Reliance in this regard was also placed on Goa Shipyard Ltd. Vs.

Babu Thomas (2007) 10 SCC 662 where after considering both

Marathwada University and Maharashtra State Mining Corporation, the

principle of ratification was extended to service law also. Paras 24 and 25

of the judgment in Samarth Shiksha Samiti may be produced here in

below:

"24. Had the intent of the legislature been that the procedure prescribed in Rule 120 was to be strictly followed before imposition of any major penalty on an employee of the School, the legislature would not have used the words "as far as may be" in the said Rule. The Supreme Court recently in High Court of Judicature for Rajasthan v. Veena Verma (2009) 14 SCC 734 interpreted the words "as far as possible" as meaning that there is no hard and fast rule and such words give a discretion to the authorities and the Court cannot interfere with this discretion unless it is palpably arbitrary. Similarly a Seven Judge Bench of the Apex Court in In Re Presidential Poll (1974) 2 SCC 33 held the words "as far as practicable" to be indicative that in practice, there may be no uniformity owing to various other factors. A Division Bench of this Court also in Subhash Chander v. Rehmat Ullah ILR 1973 (1) Delhi 181 held that the words "as far as may be" are distinct from the words "shall apply" and further held that such expressions are obviously designed to free the proceedings from technicalities and rigours of a strict application.

25. In the present case, the charges against the Respondent No.2 are grave. Need must have been felt to

immediately proceed against him. The charge sheet appears to have been issued without noticing Rules 118 and 120. However, immediately after the objection in this regard being taken by the Respondent No.2, steps for constitution of the Disciplinary Committee in accordance with Rule 118 were taken and Disciplinary Committee constituted and which did not choose to frame a fresh charge sheet and decided to proceed on the basis of the charge sheet already issued. The same is found to be sufficient/contextual compliance of Rule 120 (supra). The Tribunal does not appear to have considered the matter in the aforesaid context."

14. Per contra the counsel for the respondent No.1 has relied on

Marathwada University (supra) laying down that the principles of ratification

do not have any application with regard to exercise of powers conferred under

statutory provisions and the statutory authority cannot travel beyond the power

conferred and any action without power has no legal validity and is ab initio

void and cannot be ratified. He has also contended that it is not permissible for

the appellant School to at this stage in this appeal introduce new document i.e.

Minutes dated 13th January, 2003 of the Managing Committee and the learned

Single Judge was right in observing that the charge sheet is not even by the

Managing Committee but by the Chairman alone. It is also contended that in

the light of the observations of the Division Bench in appeal, the judgment of

the learned Single Judge in Mohan Lal Saran was rightly not held to be

binding by the Tribunal. It is also contended that the other grounds urged

before the Tribunal and noticed in the order of the Tribunal, have not been

decided neither by the Tribunal nor by the learned Single Judge. Attention in

this regard is invited to the Memorandum of Appeal filed before the Tribunal

urging the said grounds.

15. We find that LPA No.21/2012 was preferred against the judgment in

Samarth Shiksha Samiti and in which notice was issued on the statement of

the appellant employee therein that upon the punishment being converted from

that of dismissal to compulsory retirement, he would not litigate further and the

said appeal was disposed of on consent terms vide order dated 15 th March,

2012.

16. We are of the view that the Tribunal cannot be said to be in error, in the

light of the observations in the order in appeal, in considering itself not bound

by the judgment of the Single Judge in Mohan Lal Saran. If the said judgment

was not to come in the way of Sh. Mohan Lal Saran in making a challenge to

the fresh order against him, it will be was unfair to say that the said judgment

can come in the way of other school employees.

17. We have de novo examined the Rules.

18. Chapter VIII of the Rules deals with Recruitment and Terms and

Conditions of Service of Employees of Private Schools other than Unaided

Minority Schools and Rule 115 thereunder empowers the Managing Committee

of a School to place an employee under suspension, where disciplinary

proceedings are contemplated or pending or where a case against him in respect

of any criminal offence is under investigation or trial or he is charged with

embezzlement or where he is charged with cruelty towards any student or

employee of the school or where he is charged with misbehavior towards

parents or where he is charged with breach of any other code of conduct. Rule

117 prescribes the penalties which can be imposed upon an employee and

classifies the same into minor and major penalties. Rule 118 prescribes the

composition of the Disciplinary Authority. Rule 119 prescribes the procedure

for imposing minor penalties. Rule 120 prescribes the procedure for imposing

major penalty.

19. Though Section 8(4) of the Act requires the Managing Committee to

make suspension only with the approval of DoE but the decision to suspend has

to emanate from the Managing Committee. This Court in B.S. Verma Vs.

Delhi Administration 48 (1992) DLT 49 has held that the basic power to

suspend is conferred on the Managing Committee. For taking such decision, the

Managing Committee has necessarily to form an opinion as to the charge

against the employee inasmuch as it is only for charges of certain kind that the

power to suspend can be invoked and not for all kinds of charges. Similarly,

the decision of the proposed penalty also has to be of the Managing Committee

only i.e. whether to propose a minor or a major penalty for the misconduct of

which the employee is accused. The Disciplinary Authority of a School does

not appear to be a permanent or a standing body and is a body to be constituted

each time when the School proposes to impose a penalty. This is obvious from

the fact that even though the Managing Committee under Rule 59 and which is

a permanent or a standing body is to comprise of the nominees of the DoE also,

Rule 118 separately provides for composition of Disciplinary Authority. One

of us (Rajiv Sahai Endlaw, J.) in Mamta Vs. School Management of Jindal

Public School (2011) 5 ADD 630 and against which no appeal is found to have

been preferred, has held that merely because a nominee of the DoE also exists

on the Managing Committee cannot be read as making the Managing

Committee the Disciplinary Authority also. The practice prevalent also has

been of the School, as and when need arises, approaching the DoE for

nomination on the Disciplinary Authority. The Disciplinary Authority is thus

constituted after the Managing Committee of the School has formed an opinion

of the charges against the employee against whom major penalty proceedings

are contemplated and whether or not to place him under suspension. The

Scheme of the Rules thus permits the Managing Committee of the School to,

before constitution of the Disciplinary Authority at least form an opinion of the

nature of the charges against an employee guilty of misconduct. It thus cannot

be said that the action of the Managing Committee of the School in framing the

charges is ex facie illegal or contrary to the Rules.

20. Rule 120 (1)(a) provides for the Disciplinary Authority to frame "definite

charges" on the basis of the allegation on which the enquiry is proposed to be

held. The use of the expression "definite charges" is also indicative of

„tentative charge‟ having already been framed, as aforesaid, under the scheme

of the Rules, by the Managing Committee. Once it is found that in the scheme

of the Rules, the Managing Committee of the School before seeking

nomination on the Disciplinary Authority has already proposed the charges, we

see no reason for holding that it is not possible for the Disciplinary Authority

to, if of the opinion that the charges proposed or tentatively framed by the

Managing Committee are appropriate, to adopt the same charges. Just like the

Disciplinary Authority can ignore the charges proposed by the School and

frame its own charges, similarly if the Disciplinary Authority is satisfied with

the charges proposed by the School and on the basis whereof the Managing

Committee has taken decision under Rules 115, 117 and 118, to hold that the

Disciplinary Authority is necessarily required to frame fresh charges would be

an exercise in futility.

21. Seen in that light, we do not find the present to be a case where the ratio

in Marathwada University can be applied. We are therefore in agreement with

what has been laid down in Samarth Shiksha Samiti.

22. We may add that a Single Judge of this Court in Abha Pathak Vs.

Gyandeep Education Society MANU/DE/3723/2011 held the principle of

ratification to be applicable to the grant of approval of the DoE under Rule

120(2) of the Rules also and held that without it being shown that the result

would have been any different had the approval been prior rather than post

facto, the order imposing punishment could not be interfered with. LPA

No.1/2012 preferred against the said judgment was dismissed vide order dated

13th January, 2012 observing that the stipulation in Rule 120 of seeking

approval from DoE is a safety valve to ensure that the action of the School is

proper and that the procedure has not been violated and once approval has been

given, even though post facto rather than prior, it clearly signifies that the DoE

was satisfied about the justification of the action taken by the School. The said

principles equally apply to the present situation also.

23. We are therefore unable to agree with the reasoning of the Tribunal not

interfered with by the learned Single Judge.

24. Axiomatically, the sole ground on which the Tribunal set aside the order

of the Disciplinary Authority does not survive.

25. Though the counsel for the respondent No.1 has argued that the Tribunal

and the learned Single Judge have not considered the other pleas raised by the

respondent No.1 in the appeal before the Tribunal, but in the face of the

Tribunal having held that the main plea raised by the respondent No.1 was qua

the illegality of the charge sheet only and the respondent No.1 having not called

upon the Tribunal to decide other aspects, we do not deem it appropriate to

remand the matter to the Tribunal for consideration of the other challenges.

26. Accordingly, the appeal is allowed and the orders of the learned Single

Judge and of the Tribunal are set aside. The amount of Rs.5 lakhs deposited by

the appellant in this Court as a condition for grant of interim say be now

refunded together with interest accrued thereon, to the appellant. However in

the facts and circumstances, no costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE APRIL 29, 2013 „bs‟..