Sunil Sikri vs The Management Committee Of Guru ...
2014 Latest Caselaw 5993 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+    W.P.(C) 7744/2014 and CM APPL. 18228-18229/2014

                                                Decided on : 20.11.2014

IN THE MATTER OF:
SUNIL SIKRI                                               ..... Petitioner
                       Through: Mr. T.N. Tripathi, Advocate

                       versus

THE MANAGEMENT COMMITTEE OF GURU HARKRISHAN PUBLIC SCHOOL
& ORS                                             ..... Respondents

Through: Mr. A.P.S. Ahluwalia, Sr. Advocate with Mr. S.S. Ahluwalia, Advocate for R-1 and R-2/School.

Mr. Sumit Chander, Advocate for R-3/GNCTD.

CORAM HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.(Oral)

1. The present petition has been filed by the petitioner praying inter

alia for quashing/setting aside the orders dated 28.03.2014 and

10.09.2014 passed by the respondent No.1/School and the

Memorandum and Articles of Charge dated 17.12.2013 issued by the

respondent No.2/Disciplinary Committee of the respondent No.1/School.

The petitioner also seeks orders to restrain the respondent No.2/School

and respondent No.3/DOE from continuing with the enquiry against him,

on the basis of the Resolution dated 21.11.2013 and the Memorandum

and Articles of Charge dated 17.12.2013.

2. As counsels for the respondents state that they are ready with

their arguments and do not wish to file replies, with the consent of the

parties, the petition is being heard and disposed of at the stage of

admission.

3. This is the third round of litigation initiated by the petitioner

against the respondents. Prior hereto, the petitioner had filed W.P.(C)

191/2014, wherein he had laid a challenge to the Resolution dated

21.11.2013 passed by the respondent No.1/School and to the

Memorandum and Articles of Charge dated 17.12.2013 issued by the

respondent No.2/Disciplinary Committee. The aforesaid writ petition was

disposed of on the very first date, i.e., on 10.01.2014, with an

observation that the contentions raised by the petitioner in the reply

submitted to the show cause notice issued to him required to be

determined by the concerned committee, i.e., the Managing Committee.

Accordingly, the Managing Committee of the respondent No.1/School

was directed to hear and decide the two preliminary objections raised by

the petitioner, namely, the resurrection of the complaint of alleged

molestation dated 22.01.1994 after two decades being uncalled for and

illegal and secondly, that the Committee constituted pursuant to the

Resolution dated 21.11.2013, not being in accordance with the

provisions of the Delhi School Education Act and Rules, 1973 (in short

'DSEAR').

4. Pursuant to the aforesaid order, the Managing Committee of the

respondent No.1/School had passed an order dated 28.03.2014,

whereunder the petitioner was informed that as per the Resolution of the

School Management Committee dated 10.03.2013, his representation

dated 18.02.2014 was disposed of by rejecting the two objections raised

by him against the inquiry proceedings initiated on the basis of an earlier

Resolution dated 21.11.2013 and it was decided to continue the inquiry

against him at the point, where it was left.

5. Aggrieved by the aforesaid order dated 28.03.2014, the petitioner

had filed W.P.(C) 2696/2014 raising a grievance that he had not been

granted an oral hearing by the Managing Committee despite earlier

orders passed by the court in that regard. During the course of hearing

of the aforecited petiton, it was agreed on 27.5.2014 that the order

dated 28.03.2014 passed by the Managing Committee of the respondent

No.1/School be recalled and the matter be remitted back to the

Managing Committee for a de novo hearing. Accordingly, the order dated

28.03.2014 was recalled and it was directed that after giving oral

hearing to the petitioner, the Managing Committee of the respondent

No.1/School would decide the matter in terms of the directions issued on

10.01.2014 in W.P.(C) 191/2014. It was further clarified that the recall

of the order dated 28.03.2014 passed by the Managing Committee will

not impact the final determination that may be made by it and the

Managing Committee will be free to come to its own conclusion after

applying its mind objectively and independently.

6. In view of the aforesaid order, learned counsel for the petitioner

had agreed to withdraw the aforecited petition while reserving his right

to seek legal recourse in case a grievance would arise in future.

Resultantly, the order dated 28.03.2014 was recalled and it was

observed that the inquiry proceedings will not continue till a decision is

taken in the matter by the Managing Committee.

7. Thereafter, the petitioner was given a fresh hearing by the

Managing Committee and the impugned order dated 10.09.2014 came to

be passed by the Managing Committee holding inter alia that the

decision taken to constitute a Departmental Action Committee is correct

and it was noted that both the objections raised by the petitioner and

mentioned in para 2 hereinabove, were devoid of merits and were

rejected. Consequently, the inquiry proceedings that had been kept in

abeyance were directed to be continued against the petitioner.

Aggrieved by the said decision, the petitioner has filed the present

petition.

8. Learned counsel for the petitioner assails the order dated

10.09.2014 passed by the respondent No.1/School and submits that the

said order reveals that the respondent No.1/School has not applied its

mind and has not taken an objective decision on the two objections

raised by him.

9. The first objection taken by the petitioner is to the effect that

resurrection of the complaint of alleged molestation dated 22.01.1994,

after almost two decades is uncalled for and illegal. A perusal of the

impugned order reveals that the Managing Committee had considered

the said objection and observed that the petitioner had tendered his

resignation to the respondent No.1/School on 22.01.1994, which was

duly accepted and as a result, no inquiry was called for by the School.

Later on, when he had approached the school for withdrawal of his

resignation and the said request was turned down, he had filed an

appeal against the said decision which had remained pending for seven

years before the Delhi School Tribunal, till August 2011. On 18.08.2011,

the said appeal was allowed by the Tribunal and the petitioner was

directed to be reinstated with 50% back wages. The respondent

No.1/School challenged the order dated 18.08.2011 passed by the Delhi

School Tribunal by filing a petition in this Court, registered as WP(C)

No.8058/2011. The said petition was disposed of vide order dated

06.08.2013, wherein the School had agreed to reinstate the petitioner

but it was granted liberty to conduct an inquiry against him for his

involvement in the incident of 22.01.1994. Immediately thereafter, steps

were taken by the respondent No.1/School to hold an inquiry against the

petitioner and after Resolutions were passed in that regard, a

Memorandum was issued and Articles of Charge were framed against the

petitioner on 17.12.2013.

10. Thereafter, the petitioner had filed two writ petitions, the first one

being W.P.(C) 191/2014 and the second one being W.P.(C) 2696/2014

which were disposed of vide order dated 27.05.2014 by issuing

directions to the School to pass a speaking order on the two objections

taken by the petitioner after giving him an oral hearing. The Managing

Committee of the respondent No.1/School observed in its order dated

10.9.2014 that there was no delay in instituting the inquiry as per the

rules and in terms of the order dated 06.08.2013 passed by the High

Court and in any case, the Court had reserved the right of the School to

hold an inquiry into the incident of 22.01.1994 (Annexure P-8). The

Managing Committee has further observed that if the petitioner's request

is acceded to and the inquiry is dropped, it would cause great injustice to

the staff member, who was a victim of the act of molestation allegedly

committed by the petitioner in the year 1994 and is waiting for justice.

It has also been observed in the order that during the oral hearing

granted to him, the petitioner had almost admitted that the aforesaid

incident may have occurred due to his mental illness.

11. Having regard to the nature of the allegations levelled against the

petitioner, the Managing Committee was of the opinion that they were

grave and involved the modesty of a woman and could not be left un-

inquired only on the ground of delay. On merit also, the reply furnished

by the petitioner to the Managing Committee was found to be

unsatisfactory and therefore, the Committee was unanimous in its

decision that an inquiry was called for and ought to be held against the

petitioner in connection with the incident in question with a caveat that

he would have a full and fair opportunity to explain his stand and take all

the defences that may be available to him before the Inquiry Officer.

12. Coming to the second objection taken by the petitioner with regard

to constitution of the Departmental Action Committee in terms of the

Resolution dated 21.01.2013, learned counsel for the petitioner states

that the respondent No.1/School overlooked the fact that the Delhi

School Education Act and Rules are not applicable to unaided minority

schools and therefore, the said Committee should not have been

constituted in consonance with the said Rules. The aforesaid submission

was duly taken note of by the Managing Committee and rejected with

the observation that sufficient powers vest in the Committee to decide as

to which rules and regulations would be followed by it for conducting the

disciplinary proceedings and the rules and as the regulations stipulated

in the DSEAR were uniformly being followed for all the employees of the

School, an exception could not be made for the petitioner.

13. The Court has carefully perused the impugned order dated

10.09.2014 and finds that the submission made by learned counsel for

the petitioner that the respondent No.1/School has not applied its mind

and not taken an objective decision on the objections raised by the

petitioner, is not borne out from a perusal of the said order. Instead,

the said order reveals that the Managing Committee of the School has

taken into consideration both the objections raised by the petitioner, the

first one being belated and uncalled for resurrection of the incident that

relates back to the year 1994 and the second objection being that the

DAC constituted by the Managing Committee in terms of the Resolution

dated 21.11.2013 is against the provisions of the DSEAR and returned

its findings.

14. The plea of the counsel for the petitioner that the alleged incident

in question having occurred nearly two decades ago is a sufficient

ground to terminate the inquiry proceedings, is found to be unjustified.

Any such view would tantamount to defeating the right to dispensation

of justice to the victim, who happens to be a lady staff member of the

very same School and this is all more relevant, when she has been

vigorously pursuing her complaint and the inquiry is stated to be pending

at the stage of recording her cross-examination.

15. The submission made by learned counsel for the petitioner that if

the victim was really aggrieved, she ought to have filed a FIR against the

petitioner, does not hold any water. Assuming that the victim had not

filed a FIR in respect of the alleged incident, it would certainly not be a

ground for the respondent No.1/School to drop the disciplinary

proceedings initiated against the petitioner on the complaint submitted

by her to the school management.

16. Furthermore, it is not as if the delay in conducting the inquiry is

attributable either to the respondents No.1 and 2/School or to the

victim. The facts narrated in the impugned order reveals that the alleged

incident of molestation had taken place on 22.01.1994 and on the very

same date, the petitioner had tender his resignation to the respondents

No.1 and 2/School, which was duly accepted. Resultantly, the School

did not initiate any inquiry into his alleged conduct. However, the

petitioner had second thoughts about the resignation tendered by him

and when he sought to withdraw the same and his request was turned

down by the School, he challenged the said decision before the Delhi

School Tribunal. Thereafter, the petitioner's appeal had remained

pending before the Tribunal till it was finally decided on 18.08.2011. This

explains the passage of over seven years between 21.01.1994 to

18.08.2011.

17. Aggrieved by the decision of the Tribunal, the respondent

No.1/School had filed a writ petition in this Court, which was disposed of

vide order dated 06.08.2013, wherein the School had agreed to reinstate

the petitioner, but at the same time, liberty was granted to the School to

conduct an inquiry against the petitioner for his alleged involvement in

the incident of 21.01.1994. Within four months therefrom, the

respondents No.1 and 2/School had taken steps to pass a Resolution and

issue a Memorandum against the petitioner, whereafter Articles of

Charge were framed on 17.12.2013. This was followed by the petitioner

filing two petitions before this Court, which were disposed of vide order

dated 27.05.2014, with directions issued to the School to pass a

speaking order on the twin objections taken by the petitioner with regard

to resurrection of the complaint of alleged molestation against him after

two decades and the invalid constitution of the DAC. A speaking order

has now been passed and is assailed by the petitioner in the present

proceedings.

18. It is apparent from the sequence of events narrated above that

neither the respondents No.1 and 2/School, nor the victim had any role

to play in the delay in initiation of the departmental proceedings against

the petitioner.

19. As regards the second objection taken by the counsel for the

petitioner that Chapter VIII of the DSEAR is inapplicable to the

respondents No.1 and 2/School, it being a minority school and the

School cannot invoke the said provision to constitute the DAC or initiate

disciplinary inquiry against the petitioner, the same is untenable and

taken note of only to be rejected. The DSEAR does not debar a private

minority school from adopting the Rules prescribed under the Statute for

conducting disciplinary proceedings against its teaching and non-

teaching staff members and nor does it mandate that in the absence of

rules framed by a school like the respondent No.1, it cannot adopt the

procedure laid down in the Act and follow the Rules meant for

conducting an inquiry against a delinquent employee. Moreover, as has

been noted in the impugned order, the said rules for disciplinary

proceedings as provided in the Act have been uniformly applied to all the

employees of the School and therefore, no exception can be made in the

case of the petitioner.

20. Given the aforesaid facts and circumstances, this Court is of the

opinion that the impugned order dated 10.09.2014 passed by the

Managing Committee of the respondents No.1 and 2/School does not

deserve to be interfered with in view of the fact that the same is backed

by valid and cogent reasons for turning down both the objections raised

by the petitioner for the continuation of the inquiry proceedings and the

procedure prescribed for conducting the disciplinary proceedings against

him.

21. As for the merits of the case which learned counsel for the

petitioner has sought to argue by pointing out the fallacies in the Articles

of Charge framed against his client, this Court declines to tread that path

for the simple reason that after the respondent No.1/School had passed

the order dated 10.09.2014, the parties were directed to appear before

the Inquiry Officer for completion of the departmental proceedings.

Now that the inquiry has finally commenced after passing of the

impugned order dated 10.09.2014, there is no good reason to stall it

once again on the aforesaid plea taken by the petitioner. Instead, given

the time lag, the disciplinary proceedings ought to be taken to their

logical conclusion at the earliest.

22. The Court has been informed that the matter is at an advanced

stage of cross-examining the victim (a colleague staffer of the School)

and is listed for the said purpose on 24.11.2014. All the pleas that the

petitioner has taken in the present petition with regard to the merits of

the case have admittedly been taken by him before the Inquiry Officer.

In these circumstances, the Court refrains from making any observations

on the merits of the case. After conclusion of the evidence, parties shall

be at liberty to address arguments and the petitioner shall have ample

opportunity to make his submissions and take all the pleas available to

him at that stage.

23. As a result, without making any observations on the merits of the

case, the present petition assailing the order dated 10.9.2014 passed by

the Managing Committee of the respondent No.1/School proposing to

constitute a DAC, is dismissed as being devoid of merits. Liberty is

granted to the Inquiry Officer to conduct the inquiry proceedings in

accordance with law. After a report is submitted by the Inquiry Officer

to the Disciplinary Committee, the petitioner shall be furnished a copy

thereof and afforded an opportunity to respond thereto. Thereafter, the

disciplinary proceedings shall be taken to its logical conclusion.

24. At this stage, learned counsel for the respondents No.1 and

2/School states that the enquiry proceedings did commence on

4.10.2014 and on the last date of hearing fixed before the Inquiry

Officer, i.e, on 18.11.2014, the petitioner had sought an adjournment

and he was duly accommodated and the next date of hearing is for the

cross-examination of the victim on 24.11.2014. He submits that as the

petitioner has been creating hurdles in the inquiry proceedings by

adopting dilatory tactics and failing to co-operate, appropriate directions

be issued to him to cooperate for an expeditious conclusion of the

inquiry.

25. Having regard to the fact that the incident in question, which is the

subject matter of the inquiry, relates back to the year 1994, which is

almost two decades ago, it is deemed appropriate to direct the Inquiry

Officer not to accommodate either party by giving unnecessary

adjournments. The Inquiry Officer shall proceed with the inquiry with

reasonable dispatch and make an endeavour to conclude the same as

expeditiously as is possible.

26. With the above orders, the petition is dismissed in limine, along

with the pending applications.

                                                       (HIMA KOHLI)
NOVEMBER       20, 2014                                   JUDGE
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