Air Force Senior Secondary School ... vs Pushpa Sah And Ors.
2013 Latest Caselaw 323 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on: 14.01.2013
                                Judgment pronounced on: 22.01.2013

+     LPA No. 723/2012

      AIR FORCE SENIOR SECONDARY SCHOOL
      AND ANR.                                   ..... Appellants
                      Through: Mr K.K. Sharma, Sr. Adv with
                               Ms Bhanita Patowary, Adv.
               versus
        PUSHPA SAH AND ORS.                              .... Respondents
                    Through:          Mr J.P. Senth, Sr. Adv with Mr
                                      Sumeet Batra and Ms Ankita
                                      Gupta, Advs for R-1
                                      Mr Swastik Varma with Ms Sonam
                                      Anand, Advs for R-2 and 3
      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. The respondent No.1, Pushpa Shah, who was working as librarian

with the appellant school, was issued a charge sheet, alleging various acts

of misconduct insubordination etc. After holding a Departmental Inquiry

into the charges, penalty of dismissal of service was imposed upon her.

She filed an appeal before the Delhi School Tribunal (hereinafter referred

to as 'the Tribunal') challenging the order of dismissal. Vide order dated

17th December, 2002, the Tribunal quashed the penalty imposed upon

respondent No.1 and remanded the matter back with directions to

constitute a fresh Disciplinary Authority Committee (hereinafter referred

to as 'DAC'), with the approval of respondent No.3 Director of

Education. In compliance of the order passed by the Tribunal a DAC was

constituted. In its meeting held on 11th July 2003, the DAC resolved to

issue a Show Cause Notice, based upon the earlier charge sheet issued to

respondent No.1, and hold an inquiry into those charges. The copy of the

charge sheet was forwarded to respondent No.1 vide letter dated 29 th July,

2003. Vide letter dated 31.10.2003, she sought payment of subsistence

allowance to enable her to engage a Defence Assistant to defend her in

the inquiry. There were other correspondences also exchanged between

the parties. On 27.11.2003, the appellant sent a cheque of Rs.5000/- to

respondent No.1 towards payment of subsistence allowance. The

respondent No.1, however, did not join the inquiry as a result of which

she was proceeded ex parte in the inquiry on 12.12.2003. On submission

of Inquiry Report, a Show Cause Notice was issued to respondent No.1,

asking her to show cause as to why major penalty of dismissal from

service be not imposed on her. After considering the reply received from

respondent No.1, the appellant forwarded a proposal to Director of

Education to impose penalty of dismissal of service upon respondent

No.1. Being aggrieved, respondent no.1 filed WP(C) 3353/2005 in this

Court in which an interim order was passed, directing Director of

Education not to convey its approval/disapproval with respect to the

imposition of penalty upon respondent No.1. On 23.04.2005 the amount

of subsistence allowance was paid to respondent No.1. The decision of

respondent No.3 Director of Education on the proposal for dismissal of

respondent from service, which had been kept in a sealed cover, was

opened by the Court in which the WP(C) 3353/2005 was pending at that

time. It was revealed on opening the sealed cover that the Director of

Education had not agreed with the recommendations made by the

appellant and had directed it to follow the procedure laid down in Rule

120 of Delhi School Education Rules, 1973. Thereupon the learned

counsel for the appellant made a statement that further action by them

shall be taken in terms of the order passed by the Director of Education.

The writ petition was disposed of with a direction to respondent No.1 to

co-operate in the inquiry, if held against her in accordance with law.

2. The meeting of the DAC was held on 17th December, 2008 and

pursuant to the decision taken in the said meeting, a proposal for

imposing major penalty of dismissal of respondent from service was sent

to Director of Education, on 19th December, 2008, for its approval. Vide

letter dated 24.12.2010, the Director of Education conveyed to the

appellant that the penalty of dismissal of respondent No.1 from service

was not warranted, considering the omissions and commissions on her

part and that the ends of justice would be met if major penalty of

compulsory retirement was imposed upon her. Pursuant to the aforesaid

communication from Director of Education, the appellant, vide order

dated 14.03.2011, imposed major penalty of compulsory retirement upon

respondent No.1. The order was challenged by respondent No.1 before

the Tribunal. The appeal filed by her was allowed by the Tribunal. Being

aggrieved vide order dated 31.08.2012, the appellant filed WP(C)

5943/2012 challenging the order passed by the Tribunal. The writ petition

having been dismissed, the appellants are before us by this appeal.

3. The first contention of learned counsel for Respondent No.1 before

us was that there was denial of principles of natural justice to respondent

no.1 since she was not paid subsistence allowance as a result of which she

could not defend herself during the inquiry. In support of his contention,

the learned counsel for respondent No.1 has placed reliance upon the

decision of Supreme Court in Capt. M. Paul Anthony v. Bharat Gold

Mines Ltd. And Anr. 1999(2) SCC 257. In the case before the Supreme

Court, the appellant had contended that during the period of suspension

he was not paid subsistence allowance as a result of which he could not

undertake a journey from his home town in Kerala to place in Karnataka

where departmental proceedings were being held. Not only was the

appellant denied any subsistence allowance, his prayer for adjournment

on account of his illness, which was duly supported by medical

certificates was refused, resulting in ex parte proceedings against him.

The Apex Court held that the appellant had been punished in violation of

principles of natural justice.

4. In Fakirbhai Fulabhai Solanki v. Presiding Officer and Anr.

(1986) 3 SCC 131, Supreme Court, inter alia, observed that an order of

suspension by itself does not put an end to the employment and the

workman continues to be an employee during the period of suspension,

though it prevents him from rendering his services. It was further

observed that most of the workmen are not in a position to maintain

themselves and the members of their family, during the pendency of the

proceedings before the Tribunal. It was noted that in addition to the cost

of maintenance of the family, the workman has to find money to meet the

expenses that he has to incur in connection with the proceedings before

the Tribunal and if no amount is paid during the pendency of the

application made by the management to the Tribunal, it has to be held

that the workman concerned has been denied a reasonable opportunity to

defend himself in the proceedings before the Tribunal and such denial

leads to violation of principles of natural justice and consequentially

vitiate the proceedings before the Tribunal under sub-section (3) of

Section 33 of Industrial Disputes Act. The view taken by the Supreme

Court in respect of payment to a workman during pendency of the

proceedings before the Tribunal would equally apply to an employee who

is facing a departmental inquiry and is denied the subsistence allowance

and on account of non-payment of such allowance, he is not in a position

to defend himself in the inquiry instituted against him.

In State Government of M.P. and Ors. v. Shankarlal (2008) 2

SCC 55, Supreme Court observed that the payment of subsistence

allowance, in accordance with the Rules, to an employee under

suspension is not a bounty. It is a right.

5. In Ghanshyam Das Srivastava v. State of Madhya Pradesh (1973)

1 SCC 656, the appellant before Supreme Court was placed under

suspension and subjected to a departmental inquiry. He did not participate

in the inquiry which, therefore, was held ex parte and the charges were

reported to be proved. The main contention of the appellant was that no

subsistence allowance had been paid to him and, therefore, he had no

money to go to the place where the inquiry was being held. That place

was 500 kilometres away from the place where the appellant was residing

during his suspension. The High Court did not accept his contention,

noticing that he did not complain specifically in the writ petition that he

could not attend the inquiry as he had not been paid subsistence

allowance and had no means of his own to meet the expenses of going to

the place of inquiry. It was further noted that in his affidavit, he had not

given particulars of his source of income and the estimate of expenses to

be incurred by him in the inquiry. It was also noted by the High Court

that train fare from the place of the appellant to the place of inquiry was

only about Rs 20. Allowing the appeal, Supreme Court noted that the

appellant had sent a letter to the Inquiry Officer, informing that unless

subsistence allowance was paid, he would not be able to face the inquiry.

This, Supreme Court found to be a specific pleading on the point of non-

payment of subsistence allowance and shortage of funds with the

appellant. The Court felt that it would prima facie suggest that the

appellant had no other source of income except his pay. It was also noted

that the affidavit of the respondent did not allege that the appellant had

any other source of income except his pay. Noticing that he was

suspended on 13.10.1964 and did not get subsistence allowance till

20.03.1965, the Court felt that the order passed by the High Court was not

sustainable.

6. In the case before us, this is not in dispute that the respondent was

placed under suspension since some time in the year 1994. Vide letter

dated 11.08.2003, a copy of which has been filed by the appellant,

respondent No. 1 wrote to the appellant that for last 10 years, she had

suffered hunger, torture and trauma and was empty stomach and sought

release of her salary, which had been withheld for 10 years. This is

appellant's own case that vide letter dated 31.10.2003, the respondent

demanded subsistence allowance so as to enable her to engage a defence

assistant for participation in the inquiry. Vide letter dated 18.11.2003, the

appellant informed the respondent that the amount of arrears and the

period for which the subsistence allowance would be paid, would be

decided by Directorate of Education, but, the management was

processing to give some reasonable amount to her on account basis. This

letter was followed by a letter dated 27.11.2003, enclosing a cheque of Rs

5,000/- towards subsistence allowance. The case of the respondent is that

she had repeatedly been writing to the appellant to pay the subsistence

allowance to her. In her letter dated 01.09.2004, in reply to the show-

cause notice dated 22.07.2004, the respondent referred to those letters and

stated that injustice had been done to her since she could not get

subsistence allowance, as a result of which, she was not able to defend

herself during the departmental inquiry as she had no money whatsoever

to engage a defence assistant, who could present her case before the

Inquiry Officer. In the concluding part of this communication, she again

sought release of the subsistence allowance to her. In her writ petition,

filed before this Court (CWP 3353/2005), the petitioner specifically

referred to her letters dated 11.08.2003, 31.08.2003, 08.11.2003 and

13.11.2003, seeking payment of subsistence allowance and stated that

since only Rs 5,000/- were paid to her towards subsistence allowance on

27.11.2003, she was unable to defend herself before the Inquiry Officer.

She also referred to her letter dated 31.10.2003 stating therein that she

had no money to engage a suitable defence assistant and, therefore, was

not in a position to attend the departmental inquiry. A copy of the letter

dated 31.10.2003 is annexure P-7 to the writ petition. She also referred to

her telegram dated 13.11.2003, wherein a request was made for release of

the subsistence allowance so as to help her in engaging a suitable defence

assistant and further stating that only then she would be in a position to

attend the inquiry proceedings. The copy of the said telegram is annexure

P-11 to the writ petition. Thus, this was the specific case of the

respondent in the communications sent by her to the appellant during the

course of inquiry that unless subsistence allowance was released to her,

she would not be able to engage an appropriate defence assistant and

would not be able to participate in the inquiry. There is no plausible

explanation from the appellant for not paying the whole of the

subsistence allowance to the respondent at the time it became due to her.

A perusal of the non-employmnet certificate dated 25.06.2005, issued by

the respondent, a copy of which has been filed by the appellant, would

show that subsistence allowance for the period from January, 1997 to

May, 2005 was paid to her on that date. Thus, no subsistence allowance

at all was paid to the respondent for almost seven years and, thereafter, on

persistent demand by her, only a paltry sum of Rs 5000/- was paid to her.

In our view, a paltry payment of Rs 5000/- to the respondent on

27.11.2003 certainly would not have been sufficient for the respondent to

not only take care of herself and her family, but also meet the expenses to

be incurred in defending herself in the inquiry which, inter alia, included

paying remuneration to the defence assistant whom she wanted to engage

to defend her in the inquiry. An employee cannot be expected to maintain

herself and her family members and also incur the expenditure to defend

herself in a departmental inquiry even if the subsistence allowance, which

is the minimum amount required to sustain the employee and her family

members, is not paid to her on a regular basis.

7. The case of the respondent is that she did not have the means to

pay to the defence assistant she wanted to engage and consequently, she

could not engage him and could not defend herself before the Inquiry

Officer. This is not the case of the appellant that the respondent

possessed sufficient means to defend herself in the inquiry, even without

payment of subsistence allowance to her. This was not the case of the

appellant before us that the respondent had income from other sources or

had savings which were sufficient to enable her to engage a defence

assistant, without receiving the subsistence allowance from the appellant.

Therefore, the prejudice to the respondent on account of withholding of

subsistence allowance for an unreasonably long period is writ large in the

case before us. We, therefore, have no hesitation in concluding that non-

payment of subsistence allowance to the respondent violated the

principles of natural justice since the respondent, on account of non-

payment of subsistence allowance, was unable to engage a defence

assistant and defend herself before the Inquiry Officer.

8. For the reasons stated hereinabove, we find no reason to interfere

with the order of the learned Single Judge to the extent he has upheld the

order of the Tribunal setting aside the penaly order dated 14.03.2011.

However, in our opinion, the cost of litigation awarded by the Tribuanl to

the respondent was highly unjustified. In our view, payment of Rs 1 lakh

towards cost of litigatrion would be sufficient in the facts and

circumstances of the case. We are also of the considered view that the

appellant should be granted liberty to resume the inquiry proceedings on

the basis of chargesheet already served upon the respondent, after

payment of the cost of litigation, awarded by us and up to date

subsistence allowance, as per rules. If the appellant decides to resume

inquiry, the same shall be concluded within a period of three months of

the inquiry being resumed. The appellant shall continue to pay

subsistence allowance to the respondent as per the rules applicable to her.

If the appellant decides to resume the inquiry in terms of this order, the

respondent would fully cooperate with the Inquiry Officer.

The appeal stands disposed of. No other as to costs.

V.K.JAIN, J

CHIEF JUSTICE

JANUARY 22, 2013 'raj'/BG