Mrs. Asha Arora vs Kalka Public School & Ors.
2017 Latest Caselaw 633 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P(C) No.3171/2004

%                                        Reserved on: 30th January, 2017
                                         Pronounced on: 3rd February, 2017

MRS. ASHA ARORA                                              ..... Petitioner
                          Through:       Mr. R.M.Sinha, Advocate.
                          versus

KALKA PUBLIC SCHOOL & ORS.                                 ..... Respondents

                 Through: Mr. Anuj                    Aggarwal, ASC for
                           GNCTD.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition under Article 226 and Article 227 of the

Constitution of India, the petitioner Mrs. Asha Arora impugns the judgment

of the Delhi School Tribunal dated 25.7.2002 by which Delhi School

Tribunal has dismissed the appeal filed by the petitioner herein and upheld

the order of the disciplinary authority dated 1.7.1997 recommending

dismissal of the petitioner from the services as a Physical Education Teacher

with the respondent no. 1/Kalka Public School.

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2. Petitioner was issued a charge sheet dated 11.12.1996 on

account of failing to comply with the directions of the respondent

no.1/school as also for instigating students to boycott classes. The charge

sheet containing the grave charges against the petitioner reads as under:-

     "Ref.No. KPS/MISC/96-97                                       Dated 11-12-96
     Mrs. Asha Arora,
     C-3/341; Yamuna Vihar,
     Delhi-51
     Sub: CHARGESHEET

You were suspended with immediate effect from 22-10-96 for gross misconducts committed by you. Necessary approval of the competent authority in this regard was conveyed by Dy. Director of Education (South Zone) vide No.F.EO/z-s-25/96/1294 dated 19-11-96.

The Disciplinary Committee has decided to serve on you Charge-Sheet levelling the following charges:-

1. You were asked to prepare a Team of Junior students for any game of your choice. On 5th October, 96, when you were personally called by the Principal in her office at about 10.30 a.m. to know the progress, to which you could not give any satisfactory reply. You were verbally asked to be vigilant of your duties & responsibilities.

2. On 9th October, 96, it was found that you were not even keeping the attendance record properly pertaining to the students, who were supposed to form the team. Upon being verbally asked for negligence of duties, you could not give any satisfactory reply.

3. On 10th October, 96, the Principal instructed you not to do the duty of preparation of the team, so that other field duty could be considered and assigned to you. At this you felt offended and started shouting "I am doing duty the way I like and will continue to do same way".

4. (i) On 11-10-96 at about 7.30 a.m. at school Gate No.2, you started instigating a group of students of higher classes not to attend their classes. At your instigation, some students started instigating other students also not to attend the classes. The Principal, Vice Principal and some other teachers went there and directed the students to go to their classes, but at your provocation, a group of students continued to stay there and demanded that until the Principal gave assurance that no action would be taken against you, they would not attend the classes. You continued to instigate them and they did not attend their classes, and prevented other willing students from attending the

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classes. Though till then, no action was contemplated to be taken against you for your undesirable activities, while some changes in your duties were under consideration, you will-fully neglected the instructions and continued to incite the students to indulge in undesirable activities. Thereafter on 11-10-96, you instigated some students to gather at school Gate No.1, who went and blocked the School Gate No.1 and started shouting slogans "KPS MURDABAD, PRINCIPAL MURDABAD, NO ACTION AGAINST MRS. ASHA ARORA".You were repeatedly advised by the Principal and other staff members not to instigate students, and not to create any unhealthy scene at the school gate, but you did not care but you remarked "Bachay mere sath hai, yadi mein kahoon to bachay andar aa saktay hai". As a result of your continued instigation and provocation, the group of students continued shouting slogans against the Management. They prevented and did not allow the Team of students, which was to go for recording for Home T.V. at about 11.00 a.m. It was only after persuasion of some parents, who had reached the school by then, that the Team could go for recording. Thus as a result of your continued provocation and instigation, normal functioning of the school was disturbed and studies suffered badly.

(ii) For creating the most unfortunate and ugly situation in the school and for committing act of gross misconduct, Memo bearing No.KPS/MISC/36/4413A dated 11-10-96 was issued to you, calling upon you to explain as to why disciplinary action should not be taken against you, but you refused to take the memo. Thus your refusal to take and acknowledge Memo dated 11-10-96 was a serious act of indiscipline.

5.(i) On 14-10-96, at about 7.30 a.m. you again started instigating the students at school Gate No.2 for not attending the classes. At your instigation, a group of students did not go to their classes and started threatening and preventing other students not to attend the classes. At your instigation, a group of students started shouting slogans like "KPS MURDABAD, PRINCIPAL MURDABAD, MANAGEMENT HAI HAI, NO ACTION AGAINST MRS. ASHA ARORA, AGITATION WILL CONTINUE."

At about 10.45 a.m., on 14-10-96 itself the Principal was to go in the car from Gate No.1 for a meeting with the Chair-person of the Managing Committee of the school, but at your instigation, a group of students did not allow her to go out of the school, as they kept the school Gate No.1 blocked and ultimately the principal had to come back to office.

(ii) On 14-10-96 at about 11.00 a.m at your instigation, the group of students also started giving threat that they would damage the school buses parked at school gate, in case the Management did not give the undertaking that no action would be taken against you. At your instigation, the students turned so violent that police had to be called to save any unpleasant situation and prevent any harm to be caused to the students or property of the school. The police party came and controlled the situation.

(iii) On 14.10.96 at about 11.30 a.m., some parents came to see the Principal, when some senior teachers and police officials were also present in

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the room of the Principal. Hon'ble Member of Parliament Smt. Phoolan Devi, the guardian of two students, also reached there. While the Principal explained the situation, at your provocation some students started insisting on written assurance by the Management that no action would be taken against you. When the Hon'ble M.P. came out of the room, you deliberately took her to the play ground and started gathering the students and the teachers there, thus disturbing the normal functioning of school, for about an hour.

6. For delivery of suspension order dated 22.10.96 to you by hand, a special messenger was sent at your residence on 22.10.96. You read the suspension order, but refused to receive and acknowledge the same.

7. On 23.10.96, you came at school Gate No.1. The peon went at school Gate No.1 at about 7.50 a.m. to deliver to you the suspension order dated 22.10.96 and letter dated 23.10.96, but you again refused to receive the same. You again started instigating the group of students not to attend classes.

8. It is unfortunate that for your personal objectives, undesirable acts and deeds, you incited and instigated the students, who at your instigation behaved in most indisciplined, violent and riotous manner and created unpleasant & undesirable scene inside and outside the school, which lowered the reputation and prestige of the Institution.

9. Your above acts, deeds not only constitute grave misconducts and apart from the general meaning of misconduct, but these acts also constitute the misconducts of willfully neglecting your duties, indulging in malpractice of disturbing the normal school activities, inciting the students for indiscipline and instigating and provocating them to damage the property of school.

10. You are hereby asked to show cause within 15 days of receipt of this Chargesheet, as to why the disciplinary action should not be taken against you for the aforementioned misconducts. In case you do not submit your reply within the stipulated period, it will be presumed that you have nothing to explain and you accept the charges, and further action will be taken accordingly.

11. Your suspension order will remain operative till the final disposal of the matter.

for and on behalf of DISCIPLINARY ACTION COMMITTEE Sd/-

ASHA MEHROTRA Principal-cum-Manager KALKA PUBLIC SCHOOL."

3. Pursuant to the charge sheet disciplinary proceedings were

conducted against the petitioner. Petitioner, however, chose not to

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participate in the inquiry. Management/school, however, led evidence of as

many as ten witnesses and also proved various documents. The witnesses of

the school were not cross-examined by the petitioner nor did the petitioner

lead any evidence. The inquiry officer thereafter gave his report, which runs

into about 105 pages, holding the petitioner guilty of the charges as stated in

the charge sheet.

4. The Delhi School Tribunal by its impugned judgment has held

the charges to be validly proved against the petitioner and has dismissed the

appeal of the petitioner filed before the Delhi School Tribunal holding that

the disciplinary committee was properly constituted, seeking of change of

venue by the petitioner was not justified and the Directorate of Education

had rightly given its approval for dismissal of the petitioner and that the first

order of the earlier Director of Education denying approval only existed in

the file and was never communicated to anyone.

5. Before this Court counsel for the petitioner argued the

following aspects:-

(i) Disciplinary Committee was not properly constituted as Mrs. Asha

Mehrotra, Principal and Manager of the school who was part of the

disciplinary committee was biased against the petitioner because the

petitioner had complained with respect to Mrs. Asha Mehrotra that staff

W.P(C) No.3171/2004

members were forced to pay back substantial portion of their salaries under

the threat of losing the jobs and for which complaints were made. Also, on

8.10.1996 the Principal told the petitioner to resign because such high salary

as being paid to the petitioner, who was working as a Physical Education

Teacher, could not be afforded by the school. Petitioner refused to resign

and therefore the Principal adopted a hostile and harassing attitude towards

the petitioner.

(ii) Petitioner had demanded change of venue of the inquiry proceedings

from the school to any other venue, but this demand was illegally not

acceded to and therefore inquiry report is bound to be set aside on this

ground.

(iii) Admittedly in the present case one Director of Education had

once/earlier declined approval to the school to dismiss the petitioner, but

this order was revised by a subsequent Director of Education, and this the

subsequent Director of Education could not have done by his subsequent

order.

(iv) The punishment imposed upon the petitioner of dismissal of services

is disproportionate to the charges made out against the petitioner.

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(v) Delhi School Tribunal by the impugned judgment has incorrectly

exercised the power of the first appellate court by not referring to in detail

the report of the Inquiry Officer.

6. The first argument urged on behalf of the petitioner is

misconceived for the reason that if the petitioner had to make out a case of

bias, simply alleging the same was not enough, and that the petitioner had to

necessarily prove her alleged case of bias by leading evidence before the

Inquiry Officer. Petitioner in spite of repeated opportunities did not appear

before the Inquiry Officer, did not cross-examine the witnesses of the school

and did not lead her own evidence. Once that is so, a self-serving allegation

of bias cannot be said to have been proved for this Court to believe the

same. Also, even assuming what is stated by the petitioner against the

Principal is correct, on that account only it cannot be held that the Principal

was biased as a member of the disciplinary committee, inasmuch as, the

charges in question relate to totally different aspects of indiscipline of the

petitioner, and once the charges are proved, the so called bias cannot be said

to have any impact on the findings of the charges by the Inquiry Officer and

which report of the Inquiry Officer therefore is correct as also the order of

the disciplinary authority recommending dismissal from services of the

petitioner. Also, in view of Rule 118 of the Delhi School Education Rules,

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1973 there is a statutory necessity for the Principal and Manager of the

school/Mrs. Asha Mehrotra to be a part of the disciplinary committee.

7. The second argument of wrongly declining the change of venue

argued on behalf of the petitioner is also a totally misconceived argument

because the venue of the inquiry proceedings was the school and which was

indeed convenient even for the petitioner. Counsel for the petitioner could

not point out any provision of law that the inquiry proceedings could not be

held in the school, and accordingly once the respondent no.1/school has so

done, there is no illegality in holding the inquiry proceedings in the school,

and it is not open to the petitioner to argue that the petitioner was entitled to

change of venue of the inquiry proceedings from the school and that on

account of declining such request the inquiry proceedings must fail. This

argument of the petitioner is also therefore rejected.

8. The third argument urged on behalf of the petitioner that the

approval of dismissal was not granted by the earlier Director of Education

and was thereafter subsequently wrongly granted by a later Director of

Education appeared to be attractive at the first blush, however, admittedly,

the first order of the Director of Education only remained in the file and was

in fact never communicated to anyone including the petitioner or the

respondent no.1/school. A non communicated order existing in the

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government file does not create any right or liability as per the law laid

down by the Supreme Court in the case of Sethi Auto Service Station and

Anr. Vs. Delhi Development Authority and Others, 2009 (1) SCC 180, and

therefore, the Delhi School Tribunal was justified in its finding that the

earlier non communicated order cannot be the basis for the petitioner to

claim that no approval was given. Delhi School Tribunal has held that

internal notings of the file do not amount to a final order and which is the

correct proposition of law in view of the ratio of the judgment of the

Supreme Court in the case of Sethi Auto Service Station (supra). The third

argument urged on behalf of the petitioner is also therefore rejected.

9. The fourth argument urged on behalf of the petitioner of

disproportionate punishment is also a misconceived argument because the

charge sheet as reproduced above shows grave charges of indiscipline

against the petitioner and which includes repeatedly instigating the students

not to attend classes and causing unrest requiring calling of police. Such

grave charges of indiscipline of not following the directions of the Principal

and instigating the students not to attend classes resulting in police having to

be called, vitiates the complete atmosphere in a school, and therefore,

petitioner's services could not have been continued with the respondent

no.1/school in such circumstances. Punishment would be disproportionate

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only if it shocks the judicial conscience, and the facts of this case do not

shock judicial conscience of this Court so as to call the punishment of

dismissal from services as a shocking disproportionate punishment. This

argument of the petitioner is also therefore rejected.

10. The last argument urged by the petitioner was that the first

appellate court has not exhaustively dealt with the inquiry report and has

therefore incorrectly exercised powers as a first appellate court in para 9 of

the impugned judgment. Para 9 of the impugned judgment reads as under:-

"9. I have gone through the inquiry report and the proceedings of the Disciplinary Committee. I find that the Inquiry Officer has deal with every aspect of the allegations, in detail. The findings, given by the Inquiry Officer, as well reasoned. The Disciplinary Committee has also considered the findings carefully. Each member of the disciplinary committee had the opportunity to express views on the findings. The Disciplinary Committee by a majority decided to dismiss the Appellant. The allegations of being bias, made against the 3 members of the Disciplinary Committee by the Appellant, appear to be an afterthought. The Appellant never participated in inquiry. Under the circumstances, I find no grounds for interfere in this case. The appeal is accordingly dismissed."

11. I have already stated above that the report of the inquiry officer

is a very detailed report running into 105 pages. There is no requirement

that a first appellate court has to retype and reproduce portions of the long

Inquiry Officer's report and it is enough if the first appellate court adopts

the inquiry report after stating that the inquiry report has been gone through

by the first appellate court. This is all the more in the facts of the present

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case where admittedly petitioner did not cross examine the witnesses of the

school. The school had led evidences of as many as 10 witnesses and

proved documents. The petitioner on the other hand led no evidence

whatsoever, and therefore, inquiry officer was correct in giving a finding

against the petitioner as regards the charges in the charge sheet. In such a

case, there is no point of lengthening of its judgment by the first appellate

court by simply reproducing the pages of the inquiry officer's report before

accepting the same and it was enough for the first appellate court, being the

Delhi School Tribunal, to state that the inquiry officer's report has been

gone through, and which detailed inquiry report is accepted by the first

appellate court. This argument of the petitioner is also therefore rejected.

12. In view of the above, there is no merit in the writ petition and

the same is therefore dismissed, leaving the parties to bear their own costs.

FEBRUARY 3, 2017                                 VALMIKI J. MEHTA, J
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