Shashi Bala vs Sbm Sr. Secondary School & Ors
2015 Latest Caselaw 969 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 3rd February, 2015

+                         LPA No.706/2014

       SHASHI BALA                                        ..... Appellant
                          Through:     Mr. Ashok Agarwal and Ms. Nisha
                                       Tomar, Advs.

                                     Versus

    SBM SR. SECONDARY SCHOOL & ORS           ..... Respondents
                  Through: Ms. Sanjoy Ghosh & Mohd. Farookh,
                           Advs. for R-1.
                           Ms. Purnima Maheshwari, Adv. for R-
                           5&6.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the order dated 26th August, 2014 of

the learned Single Judge, of dismissal of W.P.(C) No.5299/2014 preferred

by the appellant and thereby, though refusing to quash the disciplinary

proceedings initiated against the appellant but with liberty to the appellant to

persuade the Inquiry Committee constituted, to stay the inquiry proceedings

till the complaint filed by the appellant with respect to the same incident

before the Criminal Court, is decided and with further liberty to the appellant

to challenge the report of the inquiry, if any adverse finding to the appellant

is returned therein.

2. The appeal came up before us for admission on 13th January, 2015,

when after hearing the counsel for the appellant, and the counsel for the

respondent No.1 SBM Sr. Secondary School and the counsel for the

respondents No.5&6 i.e. Directorate of Education (DoE) and Govt. of NCT

of Delhi (GNCTD) appearing on advance notice, we reserved judgment. The

respondent No.2 is Capital Greens Educational Society owning the

respondent No.1 School and the respondents No.3&4 are the Internal

Complaints Committee and the Inquiry Officer and the respondent No.7 is

the Presiding Officer of the Internal Complaints Committee of the

respondent No.1 School. Need for issuing notice thereto was / is not felt.

3. The appellant filed the writ petition from which this appeal arises,

pleading:

(i) that the respondent No.1 School is a Government aided

recognised private school run by the respondent No.2 Society;

(ii) that the appellant has been employed in the respondent No.1

School since 5th March, 1980, initially as a TGT, promoted on 16th

April, 1993 to PGT and on 1st July, 2008 as the Vice-Principal;

(iii) that the appellant on 5th July, 2013 found that her attendance

record for the period from 1st July, 2013 to 4th July, 2013 had been

tampered with;

(iv) that when the appellant in this regard went to the office of the

Principal of the School, the Principal, who has since retired, passed

obscene remarks, abused her and also attempted to slap her; the

Physical Education Teacher also made shameful gestures with obscene

remarks and the TGT Maths also present abused the appellant using

shameful language. In the meantime, PGT History also joined them;

the appellant called the police by dialling 100 and whereon all the said

persons approached threateningly to her; that the appellant ran out and

narrated the whole incident to the Police Officer;

(v) that an FIR No.259/2013 dated 21st July, 2013 under Section

509 IPC was registered against all the aforesaid persons and on 9th

January, 2014 charge sheet has been filed in the Court of Metropolitan

Magistrate, Delhi against the said persons and trial is pending;

(vi) that the Manager of the School on learning of the incident, on

5th July, 2013 itself approached the appellant and asked the appellant

to submit a complaint in writing and the appellant submitted such a

complaint;

(vii) that a three members Committee conducted so called inquiry,

without the consent of the appellant and in utter violation of the

principles of natural justice submitted a report dated 15 th July, 2013

that the Principal was not to be blamed for harassment, use of abusive

language or making threatening gestures and on the contrary the

appellant had levelled false allegations and had behaved

disrespectfully with the Principal and had engaged in direct

correspondence with the Department of Education and other higher

authorities in violation of the code of conduct and thereby caused

irreparable harm and tarnished the image of the School;

(viii) that the Manager of the School issued a show cause notice dated

16th July, 2013 constituting a Six Members Internal Complaints

Committee under Section 4 of the Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act, 2013;

(ix) that though the appellant along with some other teachers sought

inter alia the criteria adopted for nominating the members to the

Committee and to ensure transparency and neutrality of the

Committee, but the same were not furnished;

(x) that the said Committee submitted a report dated 12 th August,

2013, also to the effect that the appellant could not substantiate any

allegations against the aforesaid persons and that the allegations levied

by her were false and recommending action against the appellant for

levelling false allegations;

(xi) that the appellant had never approached the Internal Complaints

Committee to investigate into her complaint dated 5 th July, 2013

which was addressed to the Manager of the respondent No.1 School

and the said Manager was not authorized, without the written consent

of the appellant, to approach the Internal Complaints Committee to

investigate into the complaint;

(xii) that the proceedings conducted by the Internal Complaints

Committee are a sham;

(xiii) that the Internal Complaints Committee had no jurisdiction to

investigate into the complaint;

(xiv) that the appellant was vide order dated 14 th August, 2013 placed

under suspension; however since the DoE, GNCTD did not approve of

the order of the suspension, the same was revoked on 4th September,

2013 and the appellant re-joined duty with effect from 5th September,

2013;

(xv) that the respondent No.1 School served a notice dated 18th

September, 2013 to the appellant asking the appellant to show cause as

to why she should not be proceeded against for levelling false

allegations against the Principal and the Staff of the School, causing

irreparable harm and tarnishing the image of the School and which

was in violation of Rule 123 of the Delhi School Education Rules,

1973;

(xvi) that thereafter Memorandum / Charge Sheet dated 19 th March,

2014 was served on the appellant;

(xvii) that the appellant submitted her reply dated 3rd April, 2014;

(xviii) that the respondent No.1 School vide letter dated 22 nd May,

2014 informed the appellant that inquiry under Rule 14 of Central

Civil Service (CCS) Rules, 1965 read with Rule 120 of the Delhi

School Education Rules was being held against her; vide subsequent

letter dated 23rd May, 2014, the appellant was informed of the

appointment of a Presenting Officer;

(xix) that the appellant received notice dated 23rd May, 2014 of the

Inquiry Officer of the hearing scheduled on 11th June, 2014;

(xx) that the appellant vide communication dated 18 th June, 2014

represented to the respondent No.1 School to stay the disciplinary

proceedings awaiting decision of the Criminal Court; however the said

representation was rejected vide communications dated 23 rd June,

2014 and 27th June, 2014;

(xxi) that the appellant on 12th August, 2014 represented to the DoE

but to no avail.

4. The appellant, in the writ petition filed on or about 13th August, 2014,

sought the reliefs of:

(a) Quashing of the Memorandum / Charge Sheet dated 19th

March, 2014;

(b) quashing of the report / recommendations dated 12th

August, 2013 of the Internal Complaints Committee;

(c) quashing of the report of the Inquiry Committee.

5. When the writ petition came up before the learned Single Judge on

26th August, 2014, the counsel for the respondent No.1 School stated that the

inquiry shall proceed uninfluenced by any finding of the Internal Complaints

Committee. The learned Single Judge, in the impugned order, observed that

upon such statement, the grievance of the appellant on the basis of the

challenge of the Internal Complaints Committee disappeared and held that he

was not inclined to interdict the inquiry proceeding at that stage and disposed

of the writ petition observing that it will be open to the appellant to raise all

objections before the Inquiry Committee and to also persuade the Inquiry

Committee to stay proceedings till the complaint before the Criminal Court,

is decided. Liberty was also given to the appellant to challenge the report of

the inquiry, if any adverse finding was returned therein by the Inquiry

Committee, in accordance with law including by way of a writ petition.

6. The counsel for the appellant before us contended that the

departmental inquiry against the appellant on the allegations of misconduct

should not be allowed to continue, when the Criminal Court also is seized of

inquiry into the same incident.

7. We invited the attention of the counsel for the appellant to the various

judgments holding that the two i.e. the departmental proceedings and the

prosecution proceedings into the same incident can go on simultaneously.

8. Reference in this regard can be made to:-

(i) State of Rajasthan Vs. B.K. Meena (1996) 6 SCC 417

reiterating that principles of natural justice do not require that

the employer should wait for the decision of the Criminal Court

before taking disciplinary action against the employee and

holding that it is not in the interest of the administration that

persons accused of serious misdemeanour should be continued

in office indefinitely and for long period awaiting the result of

criminal proceedings. Such a situation was held to be serving the

interest of the guilty and the dishonest only.

(ii) Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. (1999) 3

SCC 679 where the precise question for adjudication was

whether departmental proceedings and proceedings in a

criminal case launched on the basis of the same set of facts can

be continued simultaneously. It was held that there is a

consensus of judicial opinion amongst the High Courts and the

various pronouncements of the Supreme Court on the basic

principle that the proceeding in a criminal case and the

departmental proceeding can proceed simultaneously and that

the basis for this proposition is that proceedings in a criminal

case and the departmental proceedings operate in distinct and

different jurisdictional areas; whereas in the departmental

proceedings, where a charge relating to misconduct is being

investigated, the factors operating in the mind of the

Disciplinary Authority may be many such as enforcement of

discipline or to investigate the level of integrity of the

delinquent or the other staff; the standard of proof required in

the those proceedings is also different than that required in a

criminal case; while in the departmental proceedings the

standard of proof is one of preponderance of the probabilities, in

a criminal case, the charge has to be proved by the prosecution

beyond reasonable doubt. The Supreme Court further held that

there is nothing wrong in conducting two parallel proceedings,

one by way of disciplinary action and the other in the criminal

Court and that there is no legal bar for both proceedings to go

on simultaneously.

(iii) Noida Entrepreneurs Association Vs. Noida (2007) 10 SCC

385 where the State Government had dropped departmental

inquiry against an officer for the reason of the same having been

initiated on the basis of report of an Inquiry Commission and on

the basis of which report, the officer was also being prosecuted.

The Supreme Court held the order of the State Government to be

not based on any rational foundation and observed that the

conceptual difference between a departmental inquiry and

criminal proceedings had not been kept in view. It was further

held that the purpose of departmental inquiry and of prosecution

is different; the criminal prosecution is launched for an offence

for violation of a duty the offender owes to the society, or for

breach of which law has provided that the offender shall make

satisfaction to the public. It was held that the crime is an act of

commission in violation of law or of omission of public duty.

Per contra, the departmental inquiry is to maintain discipline in

the service and efficiency of public service. It was held that it is

expedient that the disciplinary proceedings are conducted and

completed as expeditiously as possible. The judgments of the

Supreme Court holding departmental proceedings to be

maintainable even after acquittal in prosecution were cited with

approval.

9. The counsel for the appellant is unable to contest the said position in

law.

10. We may further record that the aforesaid judgments do carve out an

exception in a situation where the simultaneous pursuing of the departmental

and criminal proceedings may result in the accused being required to

disclose his defence before the stage therefor in the prosecution. However

that is not the situation here. In the present case, in the prosecution, the

appellant is the complainant and not the accused. Thus the present case does

not fall in the said exception.

11. The counsel for the appellant then contended that the Internal

Complaints Committee constituted under the Sexual Harassment Act was not

in accordance therewith. It was contended that the appellant had chosen to

lodge an FIR and did not want to adopt the route of the Sexual Harassment

Act.

12. However, we reminded the counsel for the appellant that the counsel

for the respondent No.1 School has already, before the learned Single Judge,

made a statement that the inquiry now underway will be uninfluenced by the

findings of the Internal Complaints Committee and in the light of the said

statement, the learned Single Judge observed that the said findings did not

survive. That being the position, it is now not open to the appellant to raise

the said ground.

13. We may also note that the appellant in this proceeding is not entitled

to, on the one hand state that she did not want to proceed under the Sexual

Harassment Act and on the other hand, challenge the findings of the Internal

Complaints Committee constituted under the said Act. The counsel for the

appellant agreed that for such challenge to the findings of the Internal

Complaints Committee under the said Act, the remedy of appeal was / is

available and which had not been availed. Moreover, now the respondent

No.1 School itself has stated that the inquiry now initiated against the

appellant shall be uninfluenced by the findings of the said Committee.

14. The counsel for the appellant then sought to make vague allegations

about the inquiry now underway being biased. Not only is that not the case

of the appellant but even otherwise, we may record that in accordance with

Rule 118 (iii) of the Delhi School Education Rules framed under the Delhi

School Education Act, 1973, one of the members of the Disciplinary

Committee of the school is a nominee of the Directorate of Education in case

of aided school as the respondent No.1 is. The vague allegations made as a

last resort, are thus unbelievable. It is not the case that the DoE has any

animosity with the appellant. It cannot also be lost sight of that, even if the

report of the inquiry now underway is against the appellant and the said

report is accepted by the Disciplinary Authority of the respondent No.1

School, the appellant, against that also will have the remedy of appeal to the

Delhi School Tribunal constituted under Section 11 of the Act supra and

which is presided over by an equivalent of District Judge or Judicial Officer.

The allegations of bias made are thus not only misfounded but without any

merit.

15. Moreover, the Supreme Court in:

(i) D.P. Maheshwari Vs. Delhi Administration (1983) 4 SCC 293;

(ii) National Council for Cement and Building Materials Vs. State

of Haryana (1996) 3 SCC 206; and,

(iii) Avtar Singh Hit Vs. Delhi Sikh Gurudwara Committee (2006)

8 SCC 487

has deprecated the practice of challenge to proceedings being made

before conclusion, at interim stage, and which results in derailing and

delaying of the original proceedings. To the same effect are the judgments

of the Division Bench of this Court in Maruti Suzuki India Ltd. Vs.

Tourism Development Corporation Ltd. (2013) IV AD (Del) 615 followed

in Eastern Economist Ltd. Vs. Union of India MANU/DE/0090/2015. On

this ground also, the challenge to the disciplinary proceedings, at this stage is

not found maintainable.

16. We therefore do not find any merit in the appeal and dismiss the same.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE FEBRUARY 3, 2015 'bs/gsr'..