Smt. Baljinder Kaur vs Guru Harkishan Public School & ...
2013 Latest Caselaw 5167 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 7069/2013
%                                                    12th November, 2013

SMT. BALJINDER KAUR                                        ......Petitioner
                  Through:               Mr. Naresh Thanai, Ms. Anupriya
                                         Singh and Ms. Himanshu Pathak
                                         Advocates.


                          VERSUS

GURU HARKISHAN PUBLIC SCHOOL & ORS.         ...... Respondents

Through: Mr. Jasmeet Singh and Mr. Saurabh Tiwari, Advocates for R-1 & R-2.

Ms. Purnima Maheshwari and Mr. Manoj Kumar, Advocates for R-3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Petitioner by this writ petition seeks quashing and setting aside of the

order dated 25.10.2013 passed by respondent no.1-school whereby the

suspension of the petitioner is continued. This order dated 25.10.2013 reads

as under:-

"Ref. No. GHPS/HK/2013-14/7589 Dated 25.10.2013 Mrs. Baljinder Kaur Gandhi

TGT(Under Suspension)CO R-23, „Sai Niwas‟ Khirki Extn.

Malviya Nagar New Delhi-17

Subject: Review of Suspension Order no. 6489 dt. 12.10.2011

WHEREAS you had filed a Writ Petition in the Hon‟ble High Court Delhi which was decided by the High Court with directions:

- That you will not question constitution of the Committee as being violation of DSEAR 1973 or contend any lack of jurisdiction in the same to decide the issue before it.

- That you have no objection and agreed that enquiry committee of three prominent members of the Sikh Community will conclude the enquiry proceedings.

Accordingly, you were served a order no. GHPS/HK/2013-14/7541 dt. 17.10.2013 (copy enclosed) in which a three members inquiry Committee consisting for the proceedings or inquiry from the stage from which it is pending before the present Inquiry Officer.

You are also informed that further proceedings would be taken before the Inquiry Committee.

In view of your inquiry is being pending and charges against you, you still remain under suspension till further orders, in continuation to earlier Suspension Order no. 6489 dt. 12.10.2011.

In the event of your failure to attend the proceedings such inference as may permissible under the law would be arrived at.

Sd/-

Manager"

2. Petitioner is charged with having taken an employment when she was

not duly qualified for being appointed as a teacher with the respondent no.1-

school. Accordingly, a show-cause notice dated 2.9.2011 was issued to the

petitioner calling for her explanation. Before departmental proceedings

could be initiated against the petitioner, petitioner approached this Court by

filing W.P.(C) No. 8041/2011 challenging the proceedings emanating from

the show cause notice dated 2.9.2011.

3. Suspension of an employee is in terms of Rule 115 of the Delhi

School Education Rules, 1973. Sub-Rule 2 of Rule 115 provides an original

period of suspension of six months. The period of suspension can be

extended by the Managing Committee for a further period. The object of

giving six month‟s time validity to a suspension order is to complete the

enquiry proceedings by the school against the charge-sheeted employee in

this period. Extension of course is provided for by the Managing Committee

and which extension will have to satisfy the requirement that there are valid

reasons for extending the suspension period beyond the period of six

months. Let us therefore examine the facts of the present case as to whether

the suspension order is justified inasmuch as the suspension order continues

an earlier order of suspension passed way back on 12.10.2011.

4. At the outset I must state that for the reasons which I will record

hereinafter, the petitioner is guilty not only of concealment of facts but also

gross abuse of the process of law. The facts of this case will also show that

in fact in terms of a consent order passed by this Court in W.P.(C)

6229/2013 only recently on 30.9.2013, enquiry proceedings were to be

concluded within three months and which period will come to an end very

soon by 31.12.2013 yet the petitioner has approached this Court. The

petitioner approached this Court by contending that impugned suspension

order dated 25.10.2013 is illegal inasmuch as the suspension order cannot be

continued for such a long period from 12.10.2011.

5. I may also state that counsels for the parties must be careful when

they make a statement in Court and which a Court believes. This I am

observing because in the first call a specific query was put to the counsel for

the petitioner that whether departmental proceedings in the present case

were stayed or not stayed by any order of a Court. Counsel for the

petitioner stated that there was no handicap or any obstacle in continuation

of the departmental enquiry and there was no stay order. Matter was

therefore passed over for the school to bring the original file for answering

as to if there was no stay of the departmental proceedings then why the

school did not hold departmental proceedings for a long period of two years

from October, 2011 till today. The object of directing bringing of the file

was that departmental authorities cannot unnecessarily continue a

suspension without any fault of the charge-sheeted employee while at the

same time not holding the departmental proceedings against a suspended

employee upon whom there are ill effects of the suspension order including

of a stigma as also lesser than the normal salary being paid to such

employees. After the matter was passed over, counsel for the petitioner

brought with him the departmental file of the petitioner. In this file, counsel

for the petitioner has shown that there is an order dated 22.11.2011 passed

by a learned Single Judge of this Court in W.P.(C) 8041/2011 staying the

enquiry proceedings. The enquiry proceedings which were stayed till the

next date of hearing and which, as per the admitted position before me,

continued till the writ petition was dismissed in terms of the judgment of this

Court dated 16.4.2013. This order dated 22.11.2011 passed in W.P.(C)

8041/2011 titled as Baljinder Kaur Vs. Guru Harkishan Public School &

ors. reads as under:-

" Issue notice to the Respondents to show cause why rule nisi be not issued. Counsel appears on behalf of Respondent No.1 and 2 and 3 respectively and accept notice. They pray for time to file reply.

Let the counter affidavit be filed within a period of two weeks from today with an advance copy to counsel for the Petitioner who may file rejoinder thereto, if any, within one week thereafter.

List on 19th December, 2011.

CM 18110/2011 (stay)

Issue notice.

Counsel appears on behalf of Respondent No.1 and 2 and 3 respectively and accept notice. They pray for time to file reply.

Let the counter affidavit be filed within a period of two weeks from today with an advance copy to counsel for the Petitioner who may file rejoinder thereto, if any, within one week thereafter.

Till the next date of hearing the enquiry proceedings shall remain stayed."

It is not disputed that pursuant to this interim order the departmental

proceedings remained stayed till the dismissal of the writ petition as per the

judgment dated 16.4.2013.

6. The writ petition as already stated above was dismissed by the

judgment dated 16.4.2013, and which judgment has been filed as Annexure

P-X to the writ petition. In view of the admitted fact of stay of the enquiry

proceedings, I do not think that it is open to the petitioner to contend that

there was no handicap in conducting the departmental proceedings. Once

the departmental proceedings were stayed by the Court in terms of the order

dated 22.11.2011 which has been reproduced above they therefore could not

be continued. In fact, counsel who appears before me on behalf of the

petitioner and argues the case was the same counsel who appeared on

22.11.2011 when interim order staying the enquiry proceeding was passed.

7. Counsel for the petitioner very vehemently and passionately argued

that that what was stayed by the order dated 22.11.2011 was only the

preliminary enquiry proceedings pursuant to the show cause notice dated

2.9.2011 whereby explanation was called from the petitioner, and therefore,

it was argued that it cannot be said that the departmental proceedings were

stayed. I have found this argument really to be not only totally unsubstantial

argument but also a misleading argument because if surely preliminary

enquiry proceedings itself have been stayed, then consequently, every

proceedings thereupon including the actual departmental proceedings were

also stayed. How therefore it was argued on behalf of the petitioner on the

first call that there was no handicap in the school for conducting the

departmental proceedings, I really have failed to understand. In fact, in the

opinion of this Court, this statement that departmental proceedings could

always have been conducted by the school ought not to have been made on

behalf of the petitioner.

8. At this stage, let me reproduce the order dated 30.9.2013 passed in

W.P.(C) 6229/2013 titled as Baljinder Kaur Vs. The Principal Guru

Harkrishan Public School & Ors. and which order was passed after the writ

petition of the petitioner challenging the continuation of the suspension

proceedings pursuant to the show cause notice dated 2.9.2011 were

dismissed. This order dated 30.9.2013 reads as under:-

1. Petitioners in these two writ petitions were two petitioners in the common judgment dated 16.4.2013 passed by this Court in a bunch of cases. The judgment dated 16.4.2013 was appealed from by two petitioners and a consent order was passed by the Division Bench in LPA No.333/2013 on 23.8.2013 whereby the enquiry committee was to consist of three respectable citizens of the Sikh Community.

2. Petitioners are similarly placed though they have challenged the judgment dated 16.4.2013 inasmuch as they were two of the petitioners in the bunch of cases decided on 16.4.2013.

3. Counsel for the respondent No.1/school with its usual fairness states that limited to only those petitioners who were petitioners in the cases decided as per judgment of this Court dated 16.4.2013, and petitioners are two of such persons, respondent No.1- school has no objection to the committee constituted by the Division Bench‟s order dated 23.8.2013 to even accordingly conduct the enquiry proceedings so far as the present petitioners are concerned, however, the proceedings must be from the same stage from which it is pending before the present enquiry officer. To this counsel for the petitioner states that he has no objection. It is also agreed between the parties that enquiry committee of three prominent members of the Sikh Community will conclude the enquiry proceedings so far as the petitioners are concerned within a period of three months from today. This direction is given because counsel for the parties state that none of them will take unnecessary adjournments before the enquiry committee. It is also agreed on behalf of petitioners that though all the provisions of Delhi School Education Act and Rules, 1973 (DSEAR, 1973) will apply, however, petitioners will not question constitution of the committee as being violative of DSEAR, 1973 or contend any lack of jurisdiction in the same to decide the issue before it.

4. Writ petitions are accordingly disposed of in terms of aforesaid observations, leaving the parties to bear their own costs.

5. Dasti to counsel for the parties. "

9. This order was passed in fact as a concession on behalf of the school

to the petitioner because though the writ petition filed by the petitioner being

W.P.(C) 8041/2011 was dismissed, and the petitioner did not challenge the

judgment dated 16.4.2013 further, other petitioners whose writ petitions

were dismissed pursuant to the judgment dated 16.4.2013 had approached

the Division Bench of this Court by filing of LPAs being LPA

Nos.333/2013 and 426/2013, in which the following order dated 23.8.2013

was passed by the Division Bench:-

"1. Reflecting upon the order dated August 22, 2013 passed in LPA 333/2013 learned counsel for the parties state that the two appeals could be disposed of upon consent terms requiring the following:-

(a) The orders under which appellants (three in number in two appeals) were placed under suspension shall be withdrawn within two days and the appellants would report for duty to the Principal of the Guru Harkisha Public School, Hemkunt, New Delhi who shall assign work to them and that the appellants would be paid salary with effect from August 26, 2013.

(b) The respondents will set up a three member Committee comprising respectable citizens of the Sikh community, at least one of whom would be from the legal background, to look into the circumstances under which the appellants were given appointment and recommending necessary action. The appellants would be given a personal hearing by the Committee.

(c) For the period appellants have remained under suspension, whether apart from the subsistence allowance paid to them, any further amount would be required to be paid would depend upon the decision taken by the Committee to be constituted.

2. Needless to state the appellants shall strive to work for the welfare of the institution and its betterment whole heartedly; where they would be working.

3. Since the appeals have been disposed of on consent terms, we make it clear that we have not expressed any opinion on the merits of the law interpreted and declared by the learned Single Judge in the impugned orders.

4. No costs.

5. Dasti under the signatures of Court Master. CM No.8044-45/2013 in LPA 333/2013 CMNo.9391/2013 in LPA 426/2013 Disposed of as infructuous."

10. In view of the aforesaid order of the Division Bench, in W.P.(C) No.

6229/2013 filed by the petitioner, by the order dated 30.9.2013 the same benefit

was given to the petitioner (as given by Division Bench in the order dated

23.8.2013) of the petitioner‟s case for being considered by the committee as was

done with respect to the other petitioners in terms of the Division Bench order

dated 23.8.2013. Accordingly, the enquiry proceedings in terms of the order

passed in W.P.(C) No. 6229/2013 were to be completed within three months from

30.9.2013 and which period will soon come to an end. Really it is only at that

stage after December 2013 that whether suspension order should or should not be

continued because of enquiry proceedings not being concluded without any fault

of the petitioner would have to be examined in terms of the requirements of Rule

115.

11. It may also be stated that petitioner had filed another writ petition

being W.P.(C) 6765/2013 which was withdrawn by the petitioner because

whereas the case of the petitioner was that there was no continuation of

suspension, the school filed the letter dated 25.10.2013 by which

suspension against the petitioner was continued.

12. Resume of the above facts show that suspension order really was

continued because petitioner was successful in seeking interim orders from

this Court and which was passed on 22.11.2011 staying the enquiry

proceedings. No enquiry proceeding could be held from 22.11.2011 till

W.P.(C) No.8041/2011 was dismissed by the judgment dated 16.4.2013,

therefore, it cannot be said that the school was delaying conduct of the

departmental proceedings, and therefore, there is no ground for extension of

the suspension order. In fact as already stated above petitioner concealed

facts and made a wrong representation that there was no stay of the

departmental proceedings/enquiry proceedings.

13. Learned counsel for the petitioner has placed reliance upon two

judgments. One is the judgment of a learned Single Judge of this Court

(Vikramajit Sen, J as he then was) in the case reported as Dr. K.K.Arora Vs.

Union of India & Anr. 2005 VI AD (Delhi) 582 and the second is the

judgment of the Supreme Court in the case of State of Orissa Vs. Bimal

Kumar Mohanty (1994) 4 SCC 126. Actually reliance on both the

decisions is really for placing reliance on para 13 of the judgment of

Supreme Court in Bimal Kumar Mohanty's case (supra) and which was

also reproduced in the judgment of this Court dated 16.4.2013 in

W.P.(C)8041/2011. This para 13 reads 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)

14. It is contended on behalf of the petitioner that suspension order in this

case in view of the judgments relied upon as stated above as also the long

continuation of the suspension order from October 2011 should be held to

be illegal and the suspension order hence should not be continued. The

arguments urged on behalf of the petitioner in this regard are once again

without any merit whatsoever because Supreme Court in fact in Bimal

Kumar Mohanty's case (supra) has observed that object of suspension

order is also to ensure that a charge-sheeted employee should not feel that

he can get away misdemeanor during the pendency of the enquiry

proceedings. In fact, this aspect has been adverted to in detail in the

judgment of this Court dated 16.4.2013 whereby the earlier writ petition of

the petitioners were dismissed. It is not disputed that the said judgment

dated 16.4.2013 has become final because petitioner had not challenged the

said judgment. The ratio of the said judgment therefore unequivocally

operates against the petitioner with respect to the challenge of the

suspension order as regards the entitlement of the petitioner to contend that

the suspension order should not be continued in view of the ratio of the

Supreme Court judgment in the case of Bimal Kumar Mohanty (supra). It

is also required to be stated that we are concerned with standards of

education of children in school and the charge against the petitioner is that

she was not qualified to be employed as a teacher. On merits, I cannot

observe in one way or the other, and which aspect of merit will be decided

in the departmental proceedings, however, it cannot be said that suspension

is not justified in the facts of the present case because staying of a

suspension order may possibly amount to children being taught by teachers

who are less than qualified, and which is therefore a serious matter. It also

needs to be noted that in case charge against the petitioner is not proved,

and the departmental proceedings culminate in favour of the petitioner,

then, impugned suspension order passed will necessarily be revoked and the

petitioner at that stage will get all consequential benefits as if the petitioner

was not suspended.

15. No other issue is argued or urged before this Court except as already

dealt with herein above.

16. In view of the above, the petitioner being not only guilty of

concealment of facts, but also being guilty of misleading the Court, and

herself not allowing the enquiry proceedings to continue, hence she cannot

seek orders for quashing of the impugned order dated 25.10.2013, more so

when the same in the first instance only operates till 31.12.2013 by which

date the departmental proceedings have to be concluded.

17. The writ petition is therefore accordingly dismissed with costs

of Rs. 25,000/-. Costs can be recovered by the respondent no. 1-School in

accordance with law.

NOVEMBER 12, 2013                           VALMIKI J. MEHTA, J.
ib