Daya Nand Adarsh Vidyalaya vs Deepa Chibber & Anr.
2013 Latest Caselaw 4270 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 1009/2012

%                                                      19th September, 2013

DAYA NAND ADARSH VIDYALAYA                 ......Petitioner
                Through: Mr. S.K.Taneja, Sr. Adv. with Mr.
                         Amit Kumar, Adv.


                          VERSUS

DEEPA CHIBBER & ANR.                                       ...... Respondents

                  Through:               Mr. Anil Sehgal, Adv. for R-1.
                                         Ms. Sangeeta Sondhi and Mr. Rohit
                                         Nagpal, 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, petitioner-school impugns the judgment of the

Delhi School Tribunal (DST) dated 21.12.2011. By the impugned judgment

DST accepted the appeal which was filed by the respondent no.1 herein, and

which appeal questioned the action of the petitioner-school in illegally

terminating the services of the respondent no.1. Whereas the case of the

respondent no.1 was that she was wrongly prevented from performing her

duties and was removed from the school without following the procedure

prescribed under the Delhi School Education Act and Rules, 1973, the case

of the petitioner-school was that the respondent no.1 had resigned from

services on 4.7.2005 by submitting her letter of resignation. The Tribunal

decided the appeal by holding that respondent no.1 had not resigned and

petitioner-school was guilty in illegally removing respondent No. 1 from the

school.

2. Before me learned senior counsel for the petitioner has urged the

following grounds in support of the petition for setting aside the impugned

judgment:-

(a) No appeal was maintainable before the Delhi School Tribunal under

Section 8(3), inasmuch as the issues of resignation are not covered under

Section 8(3). It is argued that once a teacher resigns, thereafter the issue of

resignation will not fall within the scope of Section 8(3) of the Act. In

support of the proposition reliance is placed upon an order dated 13.5.2011

passed by a learned Single Judge of this Court in the case titled as Sh.

Radhey Shyam Sharma Vs. The Managing Committee, Mahasya Chunni

Lal Saraswati Bal Mandir & Anr. in W.P(C) 3245/2011 and a full Bench

judgment of this Court in the case of Presiding Officer, Delhi School

Tribunal Vs. Govt. of NCT of Delhi 2011 (180) DLT 551.

(b) Respondent no.1 was found to be fit to resume her duties on 1.1.2006,

but yet she did not join the services, and hence she cannot claim that she has

been wrongly removed.

I may state that although at one stage an argument was sought to be

raised that Tribunal has decided the case without leading evidence, however,

this argument was given up because no such ground was mentioned in the

writ petition and in fact ground (F) at page 12 of the writ petition on the

contrary only states that the issue of fact has been wrongly decided by

putting the onus of proof on the petitioner instead upon the respondent no.1.

3. So far as the first ground that an appeal is not maintainable before the

Delhi School Tribunal is concerned, I may note that the Supreme Court in

the case of Shashi Gaur Vs. NCT of Delhi, (2001) 10 SCC 445 has held that

any and every removal of a teacher/employee of a school has to be

challenged by means of appeal which is to be filed before the Delhi School

Tribunal. The relevant paras of this judgment are paras 5 to 8, which read as

under:-

"5. Mr. Das, the learned senior Counsel appearing for the appellant, contends that Section 8(3) provides for an appeal against an order of dismissal, removal or reduction in rank and not against any order of termination as is apparent from the provisions contained in Sub-section (2) of Section 8, which provides for obtaining prior approval of the Director before dismissal, removal or reduction in rank or otherwise terminating the services of an employee of a recognised private school.

The very fact of absence of the expression "otherwise termination" available in Sub-section (2) from the provisions of Sub-section (3) clearly demonstrates that against an order of termination which does not come within the expression "dismissal, removal or reduction in rank", the Legislature has not provided for an appeal to the Tribunal constituted under Section 11 of the Act.

6. In support of this contention, the Counsel also placed reliance on Rule 117 Explanation, which indicates that replacement of a teacher who was not qualified on the date of his appointment by a qualified one, will not amount to a penalty within the meaning of the said Rule [see Explanation (c)]. The learned Counsel also placed before us the observations made by this Court in the case of The Principal and Ors. v. The Presiding Officer and Ors. [1978]2SCR507 wherein this Court had observed that for applicability of the provisions of Section 11 two conditions must co-exist, namely, (i) that the employee should be an employee of a recognised private school and (ii) that he should be visited with either of the three major penalties, i.e. , dismissal, removal or reduction in rank.

7. This judgment and the interpretation put to the provisions of Sub- sections (2) and (3) of Section 8 undoubtedly, is of sufficient force. But, the question for our consideration would be that, would it be appropriate for us to give a narrow construction to Sub-section (3) of Section 8, thereby taking the teachers whose services were terminated not by way of dismissal, removal or reduction in rank but otherwise, out of the purview of the Tribunal constituted under Section 11 of the Act. The Statute has provided for a Tribunal to confer a remedy to the teachers who are often taken out of service by the caprices and whims of the management of the private institutions. The Governmental authorities, having been given certain control over the action of such private management, if an appeal to the Tribunal is not provided to such an employee, then he has to knock the doors of the Court under Article 226 of the Constitution which is a discretionary one. The remedy provided by way of an appeal to the Tribunal is undoubtedly a more efficacious remedy to an employee whose services stand terminated after serving the institution for a number of years, as in the present case where the services are terminated after 14 years.

8. In this view of the matter, we are persuaded to take the view that under Sub-section (3) of Section 8 of the Act, an appeal is provided against an order not only of dismissal, removal or reduction in rank, which obviously is a major penalty in a disciplinary proceeding, but

also against a termination otherwise except where the service itself comes to an end by efflux of time for which the employee was initially appointed. Therefore, we do not find any infirmity with the order of the High Court not entertaining the Writ Application in exercise of its discretion, though we do not agree with the conclusion that availability of an alternative remedy oust the jurisdiction of the Court under Article 226 of the Constitution." (emphasis added)

4. In view of the aforesaid judgment of the Supreme Court in the case of

Shashi Gaur (supra), in my opinion, there can be no doubt that once a

teacher/employee of a school takes up a case that she has been illegally

removed, this aspect very much falls within the jurisdiction of the Tribunal.

The mere fact that in determining this issue the Tribunal has also to consider

that whether or not the teacher or employee has resigned or not cannot mean

that Tribunal will have no jurisdiction because it is only on arriving at a

conclusion that there is no valid resignation, would thereafter the Tribunal

arrive at a decision of illegal removal of a teacher/employee of a school.

Surely, a teacher/employee who is illegally removed, will naturally approach

the Tribunal as per the ratio of the Supreme Court in the case of Shashi

Gaur (supra), and surely the defence which is laid out by the school to

justify the action of the school would not mean that the issue will not remain

that of removal of the teacher/employee from the school. In fact, it is

reiterated that it is because of the assertion of the respondent no.1 that she

has been illegally removed from the school, and which case has been

accepted by the Tribunal, that the impugned judgment has been passed in

favour of respondent no.1 and against the petitioner.

5. So far as the judgment in the case of Sh. Radhey Shyam Sharma

(supra) relied upon by the petitioner is concerned, I fail to understand at all

as to how this judgment would apply in this case because in the said case

there is no issue which is decided that an appeal against a termination order

does not lie to the DST except there is narration of facts only with regard to

earlier proceeding only as a factual history of the case. It has to be noted

that the learned Single Judge has only noted the factum of appeal not being

maintainable before the Delhi School Tribunal as narration of facts and there

is no finding of any validity of the plea that where an employee has been

removed by forcibly accepting the resignation whether that issue cannot be

decided by the Tribunal. The order dated 13.5.2011 accepting the narration

of facts thereafter holds that in a writ petition disputed questions of facts

cannot be decided of whether the resignation was a forced resignation or not.

Therefore, the judgment in the case of Radhey Shyam (supra) relied upon

by the petitioner does not help the petitioner.

Also in the case of Radhey Shyam Sharma (supra), no reference is

made to the binding judgment of the Supreme Court in the case of Shashi

Gaur (supra) and therefore, I am bound to follow the ratio of the Supreme

Court in the case of Shashi Gaur (supra) and not any observations which

were made in the order dated 13.5.2011 passed in Radhey Shyam Sharma

(supra) case.

6. The Full Bench judgment of this Court in the case of Presiding

Officer (supra) also in my opinion, does not help the petitioner because the

paras which are relied upon in the judgment on behalf of the petitioner,

being paras 23 and 24 only state that the language of Section 8(3) has to be

interpreted as per its normal meaning, but surely that normal meaning is the

meaning which has to be ascribed by the judgment in the case of Shashi

Gaur (supra). The Full Bench judgment of this Court in the case of

Presiding Officer (supra) has referred to the ratio in the case of Shashi

Gaur (supra). The observations which were made in the case of Shashi

Gaur (supra) in paras 23 & 24 were with respect to whether an order of

suspension can or cannot be challenged before the Delhi School Tribunal,

although, the word „suspension‟ is not found in Section 8(3) of the Act, and

therefore, the observations of the Full Bench in paras 23 and 24 were in aid

to the conclusion that the order of suspension cannot be appealed before the

Delhi School Tribunal under Section 8(3) of the Act.

I therefore reject the argument that the appeal filed by respondent no.1

before the Delhi School Tribunal was not maintainable.

7. That takes me to the second argument urged that if the respondent

no.1 was fit to join the duty as per the medical certificate (filed at page 52 of

the petition) w.e.f 1.1.2006 but she did not join and hence her termination is

valid, however, that argument cannot help the petitioner-school because if a

teacher/employee was fit to join duty but does not join then the school can

initiate departmental proceedings by following the procedure under Rules

118 to 120 of the Rules framed under the Act, however, without complying

with the procedure for removal, there is no automatic removal of a

teacher/employee of a school on the ground that the said teacher/employee

of a school had to join the duties but failed to join duties. I may note that the

Supreme Court in the case of Management Committee of Montfort Senior

Secondary School Vs. Sh. Vijay Kumar and Ors., (2005) 7 SCC 472 has

held that the teachers and employees of schools have statutory protection

and they cannot be removed except by following the procedure laid down

under the Act and Rules especially Rules 118 to 120 of the Delhi School

Education Rules, 1973 which require conducting of a departmental enquiry

after serving Article of Charges and the Disciplinary Authority thereafter

passing an order on the basis of report of the Enquiry Officer. Para 10 of the

judgment in the case of Montfort Senior Secondary School (supra) is

relevant and the same reads as under:-

"10. In St. Xaviers' case (supra) the following observation was made, which was noted in Frank Anthony's case (supra):

"A regulation which is designed to prevent mal-administration of an educational institution cannot be said to offend clause (1) of Article 30. At the same time it has to be ensured that under the power of making regulation nothing is done as would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice. The right conferred by Article 30 is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as a regulation. As observed by this Court in the case of Rev. Sidhajbjai Sabhai (supra), regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as minority institution as an educational institution. Such regulation must satisfy a dual test the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conclusive to making the institution an effective vehicle of education for the minority or other persons who resort to it."

The effect of the decision in Frank Anthony's case (supra) is that the statutory rights and privileges of Chapter IV have been extended to the employees covered by Chapter V and, therefore, the contractual rights have to be judged in the background of statutory rights. In view of what has been stated in Frank Anthony's case (supra) the very nature of employment has undergone a transformation and services of the employees in minorities un-aided schools governed under Chapter V are no longer contractual in nature but they are statutory. The

qualifications, leaves, salaries, age of retirement, pension, dismissal, removal, reduction in rank, suspension and other conditions of service are to be governed exclusively under the statutory regime provided in Chapter IV. The Tribunal constituted under Section 11 is the forum provided for enforcing some of these rights....."

(underlining added)

It may be noted that the Supreme Court in the case of Montfort

Senior Secondary School (supra) gave the benefit of statutory protection to

teachers and employees of schools even for a minority unaided school and

aforetiorari the observations also apply to non-minority schools.

8. Therefore, it is impermissible in law for the petitioner-school to

contend that there is an automatic removal from services allegedly on the

ground that the teacher/employee should have joined after the illness but did

not join.

9. I may state that I am persuaded to dismiss this petition also as per the

following findings and observations of the Tribunal as per which, the

Tribunal has held that the respondent no.1 did not resign from services, and

in fact, petitioner-school illegally removed the respondent no.1:-

(a) As per copies of the salary register and attendance register,

respondent no.1 was shown to be an employee even after the alleged date of

resignation on 4.7.2005. In fact, the record of the school showed that after

2005, name of respondent no.1 was shown in the registers with the

expression „without pay‟, and therefore, the contention of the petitioner that

respondent no.1 resigned on 4.7.2005 is ex facie incorrect. Also, the

petitioner-school did not file before the Court any other photocopies of the

registers as per which the photocopies of the registers filed by respondent

no.1 would have been shown to be incorrect.

(b) As per the Rule 114(A) of the Delhi School Education Rules, 1973

resignation is only effective if there is a resolution passed by the Managing

Committee accepting the resignation within 30 days of receipt of the same.

Before the Tribunal, no resolution of the Managing Committee was filed

within 30 days of the date of the alleged resignation of 4.7.2005 that the

resignation was accepted. Petitioner-school only claimed acceptance of the

resignation by the Managing Committee/Chairman and which procedure is

admittedly in violation of Rule 114 (A) of the Rules.

(c) If the respondent no.1 had really resigned on 4.7.2005, then, whatever

were the dues of respondent no.1 as on that date would have been paid to the

respondent no.1, admittedly however, nothing has been filed on record either

before the Tribunal or before this Court that any lump sum dues which were

payable to the respondent no.1 on her alleged resignation from the school

were paid to the respondent no.1. In fact, the Tribunal records that

respondent no.1‟s name continues to appear with respect to provident fund

records even after the alleged date of resignation on 4.7.2005.

10. No other issue is pressed before me on behalf of the petitioner.

11. In view of the above, the writ petition being without any merit, and an

abuse of the process of law to harass a teacher, is accordingly dismissed with

costs of Rs.25,000/-. Costs shall be paid to the respondent no.1 within a

period of four weeks from today.

SEPTEMBER 19, 2013/                               VALMIKI J. MEHTA, J
ib