Nauman Ahmad Khan vs Managing Committee Rabea Girls ...
2013 Latest Caselaw 435 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                           WP(C) No.560/2013


%                                                        January 30, 2013


         NAUMAN AHMAD KHAN                                 ..... Petitioner
                    Through:             Ms. Indirani Ghosh, Adv.


                            versus


         MANAGING COMMITTEE RABEA GIRLS PUBLIC SCHOOL &
         ORS                               ..... Respondents

Through: none.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This is a writ petition in which the petitioner, who was working

as a teacher in the respondent No.1/Rabea Girls Public School, challenges

the chargesheet dated 11.9.2012, the subsequent enquiry report dated

15.1.2013, and, the order dated 23.1.2013 removing the petitioner from

services of the school.

2. Chargesheet was issued against the petitioner because the

petitioner failed to comply with his order of transfer from respondent

No.1/school to Hamdard Public School and instead gave a letter dated

3.5.2012 to the Secretary of the respondent No.2 which reads as under:-

"THE SECRETARY HAMDARD EDUCATION SOCIETY TALIMABAD, SANGAM VIHAR, DELHI Dt: 03/05/2012

Respected Sir,

I, Nauman Ahmad Khan, request you to meet in context of the office order issued in my name regarding my transfer from RABEA GIRLS PUBLIC SCHOOL TO HAMDARD PUBLIC SCHOOL. I would join HAMDARD PUBLIC SCHOOL very soon after discussing in person the following points of much concern. 1, Reason of transfer 2, My seniority 3, Salary 4, Transportation 5, Period of transfer

Please provide in black & white. Thanks for kind consideration.

NAUMAN AHMAD KHAN PGT-CHEMISTRY RABEA GIRLS PUBLIC SCHOOL BALLIMARAN, DELHI-110006."

3. The contentions as raised on behalf of the petitioner are

twofold. Firstly, it is said that the entire action whether of issuing of transfer

order or of the chargesheet or the impugned order terminating the services

are all issued by the respondent No.2/society and not by the Managing

Committee of the respondent No.1/school and therefore such actions are

violative of the Delhi School Education Act,1973 and the Rules framed

thereunder because the society has no jurisdiction. The second argument is

that there are clear-cut violations of statutory rights of the petitioner, in view

of the judgment of the Supreme Court in the case of Harbans Lal Sahnia &

Anr. vs. Indian Oil Corporation Ltd. & Ors., 2003(2) SCC 107 and

therefore writ petition can be filed.

4. I may note that as per Sections 8 and 11 of the Delhi School

Education Act against an order of termination of services of an

employee/teacher of a school, an appeal lies before the Delhi School

Tribunal. The law in this regard is well-settled almost since over the last 13

years by the judgment of the Supreme Court in the case of Shashi Gaur vs.

NCT of Delhi, 2001 (10) SCC 445 which holds that every type of

termination of services can be challenged before the Tribunal. I therefore

put it to counsel for the petitioner whether the counsel is aware of the

judgment of the Supreme Court, and to which the counsel says that she is

aware of the judgment whereby the termination of services of an employee

have necessarily to be challenged before the Delhi School Tribunal,

however, it is stated that since the entire action is without jurisdiction, a writ

petition should be entertained.

5. I am indeed surprised as to how writ petitions are filed in spite

of the fact that the Supreme Court has made it clear over 13 years back that

every type of termination of an employee of school has necessarily to be

challenged before the Delhi School Tribunal. Of course, the fact that the

actions which have been taken against the petitioner are wrongly taken

because according to the petitioner action ought to have been taken by the

Managing Committee of the school and not by the respondent No.2/society,

however, that will be a ground to challenge the order of termination of

services, and such termination of services is still challengeable/can be

impugned before the Delhi School Tribunal. The same relief sought in this

Court can also be granted by the Delhi School Tribunal. I fail to understand

therefore the need to rush to this Court seeking exercise of jurisdiction under

extraordinary powers under Article 226 of the Constitution of India when

there is an established alternative of efficacious remedy to the petitioner, and

that too within the city of Delhi itself.

6. At this stage, counsel for the petitioner states that the

respondent No.1/school is an unaided minority school and therefore the

termination of services of such employees such as the petitioner is not

required to have approval of the Director of Education under Section 8 sub-

Section 2 in view of the judgment of the Supreme Court in the case of Frank

Anthony Public School Employees Association vs. Union of India, 1986

(4) SCC 707. The consequence of this argument will be that the Delhi

School Tribunal may not be the forum to challenge the termination of the

contractual services. It is argued that the respondent No.1 had to have

entered into a contract of service with the petitioner, but, the respondent

no.1/school did not enter into contract of service which is a requirement of

Section 15 of the Act read with Rule 130 of the Rules framed under the Act.

It is argued on behalf of the petitioner that actually the appointment letter

will therefore have to be treated as a contract of service.

In my opinion, even if we take up this alternative argument of

the petitioner, then really the issue becomes an issue of contract between the

petitioner and the respondent No.1/school and the breach thereof. Issues as

to breach of contract or illegal termination without following the provisions

of contract, cannot be the subject matter of a writ petition. Such issues of

contractual breaches of terms of employment, or other issues pertaining to

contract, have to be the subject matter of proceedings in a civil suit which is

an alternative efficacious remedy. Termination of contractual employment,

except in gravest of grave cases, have ordinarily been the subject matter of

challenge by filing of a suit.

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

as not maintainable. Since the writ petition is dismissed, interim application

also stands dismissed.

VALMIKI J. MEHTA, J JANUARY 30, 2013 ak