Delhi High Court
Seraj Ali vs Director Of Education & Anr. on 8 January, 2016
Author: Pradeep Nandrajog
$~8 to 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 08, 2016
+ LPA 9/2016
SERAZ ALI ..... Appellant
Represented by: Ms.Indrani Ghosh, Advocate
versus
DIRECTOR OF EDUCATION & ANR ..... Respondents
Represented by: Mr.Sanjoy Ghosh, Advocate
+ LPA 10/2016
MAHENDER ..... Appellant
Represented by: Ms.Indrani Ghosh, Advocate
versus
DIRECTOR OF EDUCATION & ANR ..... Respondents
Represented by: Mr.Sanjoy Ghosh, Advocate
+ LPA 11/2016
SANSAR CHAND ..... Appellant
Represented by: Ms.Indrani Ghosh, Advocate
versus
DIRECTOR OF EDUCATION & ANR ..... Respondents
Represented by: Mr.Sanjoy Ghosh, Advocate
+ LPA 12/2016
BALRAM ..... Appellant
Represented by: Ms.Indrani Ghosh, Advocate
LPA No.9/2016, LPA No.10/2016,
LPA No.11/2016, LPA No.12/2016 Page 1 of 5
versus
DIRECTOR OF EDUCATION & ANR ..... Respondents
Represented by: Mr.Sanjoy Ghosh, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (ORAL)
CM No.583/2016 in LPA No.9/2016
CM No.585/2016 in LPA No.10/2016
CM No.587/2016 in LPA No.11/2016
CM No.589/2016 in LPA No.12/2016
Allowed subject to just exceptions.
LPA No.9/2016, LPA No.10/2016, LPA No.11/2016, LPA No.12/2016
1. The appellants in the above captioned appeals are employees of the
respondent No.2 school, which is an unaided private recognized school
under the provisions of the Delhi School Education Act, 1973 and the Rules
framed thereunder. Citing instances of employees working as a driver,
conductor or other class-IV category posts, appellants filed writ petitions
pleading that since the Delhi School Education Act, 1973 or the Rules
framed thereunder do not provide for termination of service by way of
retrenchment, declaration be granted that the respondent No.2 school is
bound to follow the procedure established by the Delhi School Education
Act, 1973 and the Rules framed thereunder in connection with the service
of the appellants. In other words what the appellants claim is that on the
justification that the post(s) held by them has been abolished on account of
LPA No.9/2016, LPA No.10/2016,
non-availability of work, their services cannot be dispensed with.
2. The writ petitions filed by the appellants have been dismissed by the
learned Single Judge vide impugned common order dated December 21,
2015 on the reasoning that the petitions are premature.
3. Having heard learned counsel for the parties, we are of the opinion
that if the jurisprudence of remedies was correctly understood and applied
by the appellants they would not be litigating at all at this stage.
4. From the pleadings in the writ petition(s) filed by the appellants it is
apparent that the appellants would be workman as defined under Section
2(s) of the Industrial Disputes Act, 1947. Concededly, if the school were
to resort to retrenchment on account of non-availability of work or for any
other reason; and retrenchment being as defined by Section 2(oo) of the
Industrial Disputes Act, 1947, should appellants raised an issue , they would
be entitled to raise an industrial dispute.
5. Merely because retrenchment as a concept is not statutorily enacted
under the Delhi School Education Act, 1973 or the Rules framed
thereunder would not mean that if there is no work is available the school
cannot abolish the post(s) held by the appellants , and in such circumstance
the appellants would have to leave employment.
6. The confusion in the mind of the appellants appears to be the result of
misunderstanding by the counsel of the law declared by the Supreme Court
in the decision reported as (2001) 10 SCC 445 Shashi Gaur vs. NCT of
Delhi & Ors. The said decision concerns Section 8(3) of the Delhi School
Education Act, 1973 which reads as under:-
"8.Terms and conditions of service of employees of recognized
private schools-
LPA No.9/2016, LPA No.10/2016,
(1) xxxx
(2) xxxx
(3) Any employee of a recognized private school who is
dismissed, removed or reduced in rank may, within three
months from the date of communication to him of the order of
such dismissal, removal or reduction in rank, appeal against
such order to the Tribunal constituted under Section 11."
7. Right of the employee to file an appeal before the Tribunal constituted
under Section 11 of the Act is restricted by the language of the statute, to
orders of dismissal, removal or reduction in rank. The fact before the
Supreme Court was visited with service being terminated on the ground that
she did not possess the requisite qualification. The termination was not as a
measure of penalty. The Supreme Court held that every kind of termination
would be akin to a dismissal and therefore the Tribunal constituted under the
Delhi School Education Act, 1973 would have jurisdiction to try the lis.
8. The ratio of law declared in the said judgment cannot be extended to
mean that an employee of a recognized unaided private school, on being
declared surplus, cannot be retrenched from service.
9. It would be a case where a workman would have two remedies. One
to approach the Tribunal under the Delhi School Education Act, 1973 to
question the termination of service by way of retrenchment. The second
would be to seek an industrial dispute.
10. The appeals are accordingly dismissed in limine but without any order
as to costs.
CM No.582/2016 in LPA No.9/2016
CM No.584/2016 in LPA No.10/2016
LPA No.9/2016, LPA No.10/2016,
CM No.586/2016 in LPA No.11/2016
CM No.588/2016 in LPA No.12.2016
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
JANUARY 08, 2016
skb
LPA No.9/2016, LPA No.10/2016,
