Guru Harkrishan Public School ... vs Director Of Edu. & Anr.
2013 Latest Caselaw 3455 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No. 8058/2011 & CM 18144/2011 (Stay)

%                                                    6th August, 2013

GURU HARKRISHAN PUBLIC SCHOOL THROUGH ITS MANAGING
COMMITTEE                                   ......Petitioner
                 Through: Mr. A.P.S.Ahluwalia, Sr. Adv. with
                          Mr. S.S.Ahluwalia, Adv. with Ms.
                          M.S.Ahluwalia,in person.


                          VERSUS

DIRECTOR OF EDU. & ANR.                                   ...... Respondents
                   Through:              Ms. Bandana Shukla, Adv. for Ms.
                                         Ruchi Sindhwani, Adv. for R-1.

                                         Mr. Sanjeev Ralli, Adv. with Ms.
                                         Alpha Phiris Dayal, Adv. for R-2.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?    Yes


VALMIKI J. MEHTA, J (ORAL)

1.    By this writ petition, Guru Harkrishan Public School/petitioner

impugns the order of the Delhi School Tribunal dated 18.8.2011. By the

impugned order, respondent no.2-teacher has been reinstated in service

alongwith 50% back wages.



WPC 8058/2011                                                     Page 1 of 7
 2.          Whereas the case of the petitioner-school before the Tribunal

was that the respondent no.2 gave resignation which was accepted, the

respondent no.2 urged before the Tribunal that before the resignation was

accepted, the respondent no.2 withdrew the resignation.


3.          After the matter was heard at length, learned senior counsel for

the petitioner, on instructions states that petitioner will reinstate the

respondent no.2 in service and as stated in detail later, however, back wages

could not have been granted by the Tribunal in view of the judgment of a

learned Single Judge of this Court in the case of The Manager, Arya Samaj,

Girls Higher Secondary School & Anr. Vs. Sunrita Thakur Etc., 43(1991)

DLT 139, and which has been relied upon by another learned Single Judge

in the order dated 5.10.2006 in CM(M) 316/1996.            These judgments

interpreting Rule 121 of the Delhi School Education Rules, 1971 holds that

it is only the Managing Committee of the school which will decide this

aspect.


4.          I have gone through the judgment in the case of The Manager,

Arya Samaj, Girls Higher Secondary School & Anr. (supra) and the order

in CM(M) 316/1996 and which categorically state that after reinstatement of

an employee, in view of Rule 121 of the Delhi School Education Rules

WPC 8058/2011                                                   Page 2 of 7
 1973, the Delhi School Tribunal or the Court has no power to order what

should be the back wages and this aspect has to be decided by the Managing

Committee of the School.

5.          Counsel for respondent no.2 has however pointed out to me an

order passed by a Division Bench of this Court on 16.12.2002 in LPA

493/2002 in the case of M/s Apeejay School Vs. P.O.Delhi School Tribunal

and Anr., and in which, after reference to Rule 121 of Delhi School

Education Rules, the Division Bench in view of the fact that litigation has

gone on for several years in spite of Rule 121, ordered payment of back

wages. However, the Division Bench does not discuss in any manner Rule

121 including the categorical language therein which provides that only the

Managing Committee is entitled to fix remuneration of a reinstated

employee on the appeal of the employee being allowed by the Delhi School

Tribunal. With utmost respect there is no ratio which can be called out of

the order of the Division Bench.      The Division Bench has also not

considered the judgment of the learned Single Judge in the case of Sunrita

Thakur (supra) and which thus does not stand overruled, and which must be

because the judgment of the learned Single Judge would not have been cited

before the Division Bench.

WPC 8058/2011                                                  Page 3 of 7
 6.           Therefore, so far as the issue of interpretation of Rule 121 of

Delhi School Education Rules is concerned, but the same has been done in

the two judgments of the two learned Single Judges however the Division

Bench in M/s Apeejay School (supra) while referring to Rule 121 has not

applied the same and has done so without laying down any ratio with respect

to the said rule. It is hence necessary that clarity be there as to whether or

not the Delhi School Tribunal or the Court has or has not the power at the

time of reinstating an employee whose services were terminated, to grant

back wages and other monetary emoluments. For the sake of convenience, I

reproduce Rule 121 of the Delhi School Education Rules, 1973 and which

reads as under:-


     "Rule 121. Payment of pay and allowances on reinstatement (1)
     When an employee who has been dismissed, removed or
     compulsorily retired from service is reinstated as a result of appeal
     or would have been so reinstated but for his retirement on
     superannuation while under suspension preceding the dismissal,
     removal or compulsory retirement, as the case may be, the
     managing committee shall consider and make a specified order:-

      (a) with regard to the salary and allowances to be paid to the
     employee for the period of his absence from duty, including the
     period of suspension preceding his dismissal, removal or
     compulsory retirement, as the case may be; and

           (b) whether or not the said period shall be treated as the
     period spent on duty.
WPC 8058/2011                                                    Page 4 of 7
             (2) Where the managing committee is of opinion that the
     employee who had been dismissed, removed or compulsorily
     retired from service had been fully exonerated, the employee shall
     be paid the full salary and allowances to which he would have been
     entitled had he not been dismissed, removed or compulsorily retired
     from service or suspended prior to such dismissal, or compulsory
     retirement from service, as the case may be:

           Provided that where the managing committee is of opinion
     that the termination of the proceedings instituted against the
     employee had been delayed due to reasons directly attributable to
     the employee, it may, after giving a reasonable opportunity to the
     employee to make representations and after considering the
     representation, if any, made by the employee, direct, for reasons to
     be recorded by it in writing, that the employee shall he paid for the
     period of such delay only such proportion of the salary and
     allowances as it may determine.

     (3) The payment of allowances shall be subject to all other
     conditions under which Midi allowances are admissible and the
     proportion of the full salary and allowances determined under the
     proviso to sub-rule (2) shall not be less than the subsistence
     allowance and other admissible allowances."
7.           In my opinion, with utmost humility, on a literal interpretation

of Rule 121, there cannot be any doubt that as a consequence of the Delhi

School Tribunal directing reinstatement of an employee whose services have

been terminated, qua such reinstated employee it is only the Managing

Committee of the school which has to make a specific order with respect to

salary and allowance for the period of his absence from duty, including the

period of suspension.

WPC 8058/2011                                                    Page 5 of 7
 8.            Since this issue will come up in a large and innumerable

number of cases, therefore, it would be necessary that a larger Bench of this

Court be constituted with respect to the interpretation of Rule 121 as to

whether a Court or the Delhi School Tribunal can pass orders with respect to

back wages of a reinstated employee, although the categorical language of

Rule 121 specifically gives this power only to the Managing Committee of

the school.


9.            Let this case papers be placed before Hon'ble the Acting Chief

Justice for passing of appropriate orders for constitution of a larger Bench

and matter be thereafter listed before the larger Bench/Full Bench on 23rd

September, 2013.


10.           That leaves us with the issue of compliance of the order of the

Tribunal with respect to reinstatement of respondent no.2 and learned

counsel for respondent no.2 states that without prejudice to the rights of the

petitioner-school to take action against the respondent no.2 in accordance

with the provisions of the Delhi School Education Act and Rules, 1973, the

petitioner-school will reinstate the respondent no.2 within a period of two

weeks from today. Let that be done.



WPC 8058/2011                                                    Page 6 of 7
 11.          In view of the above, the writ petition is disposed of so far as

the issue of reinstatement by directing the petitioner to reinstate the

respondent no.2 as stated above is concerned, however on the aspect of

entitlement or otherwise of the Tribunal or this Court to pass orders with

respect to back wages of a reinstated employee in view of Rule 121 is

concerned, the same is referred to the larger Bench/Full Bench of this Court

and the matter be accordingly listed on 23rd September, 2013.


12.          The record of the Delhi School Tribunal which has been

received in this Court be kept in this Court till the issue of interpretation of

Rule 121 is decided by the larger bench, and thereafter, the said Bench

would pass the appropriate orders with respect to the record of the Delhi

School Tribunal.



AUGUST 06, 2013                               VALMIKI J. MEHTA, J.

ib