Mrs. Shashi Sharma & Ors. vs Doon Public School And Ors.
2013 Latest Caselaw 5195 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No.6868/2012

%                                                     13th November, 2013

MRS. SHASHI SHARMA & ORS.                                  ..... Petitioners
                 Through:                Mr. K.P. Gupta, Advocate.

                           Versus

DOON PUBLIC SCHOOL AND ORS.           ...Respondents

Through: Mr. Manoj V. George, Advocate for respondent Nos.1 and 2.

Mr. Yogesh Saini, Advocate for respondent No.3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by five petitioners. Petitioners were

teachers of the respondent no.1/Doon Public School. The following reliefs

are claimed in this writ petition:-

"In view of the premises set forth herein above it is most respectfully prayed that this Hon‟ble Court may graciously be pleased to:

a) Direct the respondent No.1 & 2 to pay the Gratuity along with interest @ 12% per annum to the petitioners for the period mentioned hereunder:

a. Petitioner No.1 Smt. Shashi Sharma for the period 11.07.1988 to 31.03.2011;

b. Petitioner No.2 Smt. Daljeet Kaur for the period 21.07.1981 to 31.08.2010;

c. Petitioner No.3 Smt. Punam Palta for the period 13.07.1989 to 02.09.2011;

d. Petitioner No.4 Ms. Anjana Ahuja for the period 02.04.1990 to 09.06.2011;

e. Petitioner No.5 Smt. Monica Manchand for the period 01.07.2000 to 09.06.2011;

b) Direct the Respondent No.1 & 2 to pay the Petitioner No.1 cash in lieu of earned leave for the period 1988 to 2003;

c) Direct the Respondent No.1 & 2 to pay the Petitioner No.2 cash in lieu of earned leave for the period 1981 to 2003;

d) Direct the Respondent No.1 & 2 to pay the Petitioner No.3 salary for the period 01.05.2011 to 02.09.2011and to the Petitioner No.4 & 5 salary for the period 01.05.2011 to 09.06.2011;

e) Direct the Respondent No.1 & 2 for payment of cash in lieu of their earned leaves to the Petitioner No.3, 4 & 5 as per their leave account available with the respondents;

f) Direct the Respondent No.1 & 2 for payment of 15% balance arrears of 6th Pay Commission to the Petitioners No.3 & 5;

g) Direct the Respondent No.1 & 2 for payment of Bonus for the year 2010-2011 to the Petitioners No.3, 4 & 5;

h) Direct the Respondent No.1 & 2 to pay enhanced DA for the period April, 2011 to 09.06.2011 to the Petitioner No.4 & 5;

i) Any other or further relief which this Hon‟ble Court deems fit, just and proper in the peculiar circumstance of the case in interest of justice may also please be awarded."

2. The claims on behalf of the petitioners therefore are made

under the heads of gratuity, cash in lieu of earned leaves, salary for a

particular period, payment of arrears in terms of Sixth Pay Commission,

bonus, and finally DA. So far as the issues with respect to whether the

petitioners have been paid or not been paid amounts due under different

heads, if complete amount is paid or not paid, what is the amount due and

payable to the petitioners under different heads, whether the school is

entitled to any adjustment etc etc are all aspects which are best looked into

by a competent officer of the Director of Education because this involves

going into accounts and documents to determine the aforesaid question.

All the amounts which are prayed for in the prayer clause if found due

would be payable to the petitioners alongwith interest as will be stated

hereinafter.

3. With respect to entitlement of payment of gratuity to the

petitioners the issue is covered by the judgment passed by this Court in the

case of Deepak Dua Vs. Directorate of Education and Anr. in WPC

7040/2011 decided on 10.4.2013 which states that Payment of Gratuity

Act, 1972 (hereinafter referred to as „the Act‟) applies to schools and all

employees of schools have to get gratuity as per the Act when their

services with the school comes to an end. Gratuity would be payable for

the period of services and of the amounts as stated in the Act.

4. So far as entitlement of the petitioners to interest is concerned,

it is noted that as per proviso to Section 7(3A) of the Act, interest is

payable unless the delay in payment is attributable to the fault of the

employee. I do not find any averment in the counter-affidavit which will

justify non-payment of interest on account of fault being of the petitioners.

Obviously, there cannot be any fault of the petitioners because if the

respondent no.1/school was sincere all that it had to do was to send the

necessary bank drafts/pay orders to the petitioners for whatever amounts

were due. Simply by saying that cheques are ready or cheques are filed

will not mean compliance of sub-Section (3) of Section 7 which requires

payment of gratuity within 30 days from the date from which it became

payable. Interest is payable at rates which are notified by the Central

Government from time to time for repayment of long term deposits, and

instead of leaving this issue open because what should be the rate of

interest is not specified before me by means of the notification of the

Government, I deem it fit that interest @ 9% per annum simple will be

payable to the petitioners with respect to the gratuity amounts after 30 days

from which the amounts became payable. Interest will be paid till the

amounts are paid to the petitioners.

5. At one stage, on behalf of the school it was sought to be

contended that petitioners have not validly resigned/superannuated

however I find this argument without merit in view of Rule 114A of the

Delhi School Education Rules, 1973 which states that there is a deemed

approval to resignation if no approval is received after 30 days. Therefore,

petitioners would be deemed to have resigned after 30 days of their giving

their respective notices for resignation to the school. Of course, for this

period of one month if petitioners have served the respondent no.1-school,

then, they will be entitled to salary for that period but immediately after

tendering of resignation if petitioners have not worked in the school, then,

for one month petitioners will not be entitled to emoluments which are

payable to them for this period of one month.

6. In cases where amounts have to be determined and accounting

has to be gone into, I have passed orders in different cases that

representations in this regard can be made to the Director of Education by

the concerned employees, and which representation would annex charts

under different heads of what amount and under what heads is payable to

the employees, and for which period, and to which the school will have a

right to respond to show if amounts under different heads for the different

periods have or have not been paid to the petitioners or if partly paid then

to what extent paid. One such order has been passed in a bunch of cases

with lead case being W.P.(C) No.1119/2011 titled as Meena Singh Vs.

Director of Education & Anr. decided on 4.7.2013, and which order reads

as under:-

"1. In this bunch of cases the basic issue is compliance of Section 10(1) of the Delhi School Education Act, 1973 (hereinafter referred to as „the Act‟) by the concerned schools which are some of the respondents in these cases. The application of Section 10(1)

is qua different facets i.e whether with respect to a particular month‟s salary or with respect to arrears thereof or with respect to implementation of the Sixth Pay Commission Report‟s recommendations as directed by the Director of Education vide its order dated 11.2.2009 and so on and so forth. In sum and substance Section 10(1) by its statutory mandate requires the same to be complied with by all the recognized schools in Delhi by giving benefits to teachers/employees of private schools the same benefit given to equivalent employees in Government schools.

2. Counsel for the petitioners has drawn my attention to an order dated 20.11.2007 passed in W.P.(C) No.4195/2007 and which reads as under:-

"The present writ petition has been filed by the petitioner praying inter alia for various directions to the respondents including orders directing respondent Nos.1 and 2 to grant the petitioner all the benefits under the rule, i.e., seniority, promotion, Leave Travel Allowance, reimbursement for extra work done and arrears of salaries, etc.

In view of various contentious issues involved and the factual position that needs to be examined in this case, it would be appropriate to direct the petitioner to make a substantive representation to respondent No.4 raising all the grievances that she has against respondent Nos.1 and 2, including those, subject matter of the present petition. The said representation shall be made by the petitioner within a period of six weeks. The said representation, when made, shall be considered by respondent No.4, who shall fix a date of hearing on which date, the petitioner as also respondent Nos.1 and 2 shall be present and/or be represented.

After granting hearing to the parties, respondent No.4 shall pass a speaking order within four weeks under written intimation to the petitioner as also respondent Nos.1 and 2. In case, the petitioner is left with any grievance thereafter, she is at liberty to seek redressal as per law.

Till the aforesaid representation is disposed of by respondent No.4, the status-quo order dated 29.5.2007 shall continue to operate. Respondent Nos.1 and 2 are also directed to continue paying the petitioner her salary through crossed non-negotiable cheques only.

In terms of the aforesaid order, writ petition is disposed of along with the pending application.

A copy of this order be given DASTI to counsel for respondent No.4.

3. It is the Director of Education who would be better equipped to go into the accounting/mathematics/amounts and payments in terms of Section 10(1) of the Act.

4. In view of the order passed in W.P.(C) No.4195/2007 and which has been reproduced above, these writ petitions are therefore disposed of with the following directions:-

(i) Each of the petitioners will make detailed representations to the Director of Education within a period of six weeks from today specifying what is their entitlement, how much of their entitlement they have received or not received as the case may be, amounts/figures with respect to the dues claimed and how the same are claimed shall be mentioned, whatever payments have been received will also be mentioned, what is the balance which is payable and which legally ought to have been paid but is not paid will also be stated with clarity in the representations.

(ii) The Director of Education on receipt of these representations will within a period of four weeks thereafter issue notices to each of the concerned schools for giving their written response to the representations given by the petitioners.

(iii) Director of Education or his nominee will thereafter pass speaking orders as to whether the schools have complied with the requirements of Section 10(1) and the notification dated 11.2.2009

for implementation of the report of the Sixth Pay Commission. The orders of the Director of Education or his nominee will contain detailed facts and figures with respect to the period in question and the amounts claimed by the respective parties and if any amount is still payable as claimed by the petitioners then how such amounts have become due. Speaking orders will be passed within a period of four months from today.

(iv) Director of Education or his nominee will give personal hearing to the parties or their representatives (including Advocates) before passing the speaking orders.

5. Writ petitions are disposed of with liberty to any of the parties to approach the Court in case of any grievance subsisting after passing of the orders by the Director of Education."

7. Accordingly, let petitioners now file detailed representations

to the Director of Education/respondent no.3 within a period of four weeks

from today giving details under different heads and for different periods

stating what are the amounts which are due to the petitioners in terms of

prayer clauses made in this writ petition. A copy of these representations

will be given to the respondent no.1/school through its counsel who

appears in this Court. School will give response to these representations

and calculation sheets of the petitioners to the Director of Education within

a period of four weeks and advance copy of which will be given to the

petitioners through their counsel in this Court. The Director of Education

will thereafter nominate an appropriate officer to go into the accounting

and the amounts due. The officer appointed by the Director of Education

should complete the exercise within a period of four months from today.

On the amounts which would become due to the petitioners, if the officer

as appointed by the Director of Education so finds that amounts are due,

then, on such amounts under all heads, petitioners will be entitled to

interest @ 9% per annum simple after 30 days from the dates of their

resignations/superannuation given to the respondent no.1/school. Amounts

which are calculated, if found due and payable to the petitioners, in terms

of the specific order to be passed by the officer appointed by the Director

of Education, will be paid to the petitioners by the respondent no.1-school

within a period of six months from today, failing which interest will

thereafter become payable @ 12% per annum simple.

8. The writ petition is accordingly disposed of by holding that

the petitioners are entitled to interest @ 9% per annum simple or 12% per

annum simple as per the situation as detailed above. With respect to the

aspect of resignation it is held that as per the relevant provision of Rule

114A of the Delhi School Education Rules, 1973 will become operative 30

days after giving of notices to the school. The competent officer appointed

by the Director of Education after hearing both the parties will pass a

speaking order within four months from today and the petitioners if

entitled to the amounts should be paid the amounts within a period of six

months from today. Speaking orders will be communicated to the

respective parties.

9. In case, the petitioners feel that they were entitled to the

higher amounts than as awarded by the officer appointed by the Director of

Education, then, at that stage petitioners can in accordance with law

approach a Court of law.

10. Writ petition is accordingly disposed of in terms of aforesaid

observations, leaving the parties to bear their own costs.

NOVEMBER 13, 2013                              VALMIKI J. MEHTA, J.
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