Ms. Rekha Sabharwal vs Management Of Saai Memorial Girls ...
2017 Latest Caselaw 669 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 1130/2010

%                                                      6th February, 2017

MS. REKHA SABHARWAL                                            ..... Petitioner
                 Through:                Mr. Padma Priya, Advocate with
                                         petitioner in person.

                          versus

MANAGEMENT OF SAAI MEMORIAL GIRLS SCHOOL & ANR.
                                               .... Respondents

Through: Mr. Palak Rohmetra, Advocate for respondent No.1.

Ms. Jyoti Taneja, Advocate for respondent No.2.

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, petitioner impugns the judgment of the Delhi School

Tribunal (DST) dated 31.7.2009 by which the DST has dismissed the appeal

filed by the present petitioner challenging the order of the disciplinary

authority dated 7.11.2006 dismissing the appellant from the services as an

Assistant Teacher with the respondent no.1/ Saai Memorial Girls School.

2. The facts of the case are that petitioner was served a charge

sheet containing the following imputations of misconduct:-

"Statement of imputation of misconduct and misbehaviour in support of articles of charges framed against Smt. Rekha Sabharwal, Asstt. Teacher. Article-I Saai Memorial School is an English Medium School known for quality education in the locality. Smt. Rekha Sabharwal, Asstt. Teacher was asked to teach English and environmental studies to the students of Class-III. It was observed that She had willfully neglected in her performance of duties. A number of parents lodged complaints regarding her quality of teaching and behavior. Complaints of Parents further stand corroborated with the quality of checking of exercise books/note books of students by Smt. Rekha Sabharwal and performance report of Consultant (Primary Education) dated 7.8.06 shows that Smt. Rekha Sabharwal does not know basics of English language and is not fit for teaching the English Medium Students of Primary Class. Article-II On 10.8.06, when Principal of School, along with Consultant (Primary Education) checked her way of teaching. Smt. Rekha Sabharwal abused and misbehaved with the Principal of School.

Article-III She is in habit of misbehaving with fellow teachers and other staff of School and Mrs. Jasvir Kaur on 1.07.05, Mrs. Vandana Nagi (TGT) on 14.08.06 and Mrs. Mithlesh, Class-IV on 21.3.06.

Article IV School holds Parent Teachers meeting periodically to have interaction of parents with Teachers regarding performance of students. Smt. Rekha Sabharwal who was deputed to teach students of Class III-B, refused to attend the parents of Class III-B on Parent Teacher Meeting held on 26/8/06.

Sd/-

MANAGER SAAI MEMORIAL SCHOOL SAI BHAWAN"

(underlining added)

3. A reading of the aforesaid charges shows that the petitioner

was charged not fit for teaching English language even to primary school

students. There are also charges against the petitioner of misconduct not

only with the Principal of the school but also with other teachers and staff

of the school. There are also charges with respect to petitioner not meeting

the parents in the Parent Teacher Association meeting.

4. After the charge sheet was served upon the petitioner,

petitioner denied the charges, and therefore, an Enquiry Officer was

appointed. Before the Enquiry Officer, management/school led evidence of

as many as eight witnesses. Most of the witnesses of the respondent no.

1/school were cross-examined at length by the petitioner who was assisted

by her father in the disciplinary proceedings. Respondent no. 1/school also

proved various documents from Ex. P/1 to Ex. P/15 including the

complaints made by other teachers with respect to rude behavior of the

petitioner. After the evidence of the respondent no. 1/school was

completed, petitioner was asked as to whether petitioner wants to lead any

evidence and in response to which query it is found recorded in the order

sheet of the Enquiry Officer dated 20.12.2006 that petitioner stated that she

has already submitted her defence reply to the charge sheet and she has

nothing to say in her defence in writing or verbally. The Enquiry Officer

has thereafter given his report dated 17.2.2007 holding that first three

Articles of Charges has been proved and Articles of Charge IV has been

partially proved. Petitioner was therefore held guilty with respect to neglect

of her duties, misbehavior with Principal and misbehavior with other

teachers and employees of the school.

5. Before I turn to the arguments urged on behalf of the

petitioner, I may note the fact that whereas the respondent no. 1/school

during the course of enquiry proceedings led evidence of as many as eight

witnesses, most of whom were cross-examined in detail by the petitioner,

documents were proved by the respondent no. 1/school, yet, petitioner led

no evidence whatsoever in support of her case. Merely replying to a show

cause notice or filing written arguments will not mean that petitioner has led

evidence in support of her case. Therefore, the present is a case of detailed

evidence led by the respondent no. 1/school on the one hand with no

evidence led on behalf of the petitioner on the other. This Court therefore,

so far as merits is concerned, has to hold the charges against the petitioner

to be otherwise proved as the petitioner having failed to rebut the case

against her.

6. Learned counsel for the petitioner has argued the following

aspects to challenge the impugned judgment of the DST dated 31.7.2009:-

(i) Constitution of the disciplinary authority was faulty because the

Principal and Vice Principal Mrs. Jasvir Kaur since were the complainants

against the petitioner, hence the impugned order of the disciplinary

authority is liable to be set aside on this ground itself inasmuch as the

Principal and Vice Principal have deposed in the enquiry proceedings.

Reliance is placed upon a Division Bench judgment of this Court in the case

of The Managing Committee Vidya Bhawan Mahavidyalaya (Secondary

School) Vs. Directorate of Education and Ors. ILR (2006) I DELHI 403.

(ii) The order which is passed by the disciplinary authority in this case as

also the report of the Enquiry Officer dated 17.2.2007 are non-speaking,

and therefore, for this reason itself the same are liable to be set aside.

(iii) There is violation of principles of natural justice because petitioner

was not allowed to file documents and which has become clear from the

note-sheets/order sheets of the Enquiry Officer dated 28.11.2006,

20.12.2006 and 26.12.2006. The impugned proceedings being in violation

of principles of natural justice have therefore to be set aside.

(iv) The charge against the petitioner is factually incorrect that petitioner

was not good at teaching and accordingly the petitioner ought not to have

been held guilty in terms of the Enquiry Officer‟s Report and the order of

the disciplinary authority.

(v) The order of the disciplinary authority removing the petitioner is hit

by the doctrine of proportionality because petitioner has been imposed the

disproportionate punishment of removal from services and which could not

have been even if all the Articles of Charges were proved against the

petitioner.

(vi) The Articles of Charges against the petitioner are malicious and the

entire disciplinary proceedings are vitiated because the disciplinary

proceedings were initiated against the petitioner because petitioner had

asked for her full salary which was not being paid to her.

7(i). Taking the first argument urged on behalf of the petitioner, no

doubt, a person cannot be both a complainant as also a witness in the

enquiry proceedings in view of the judgment of this Court in the case of

Vidya Bhawan Mahavidyalaya (supra), yet, it is seen that in the present

case what will apply will be the doctrine of severance. Besides charge

contained in Article II there were also other articles of charges against the

petitioner and which have been reproduced above. Petitioner has been held

guilty of all the Articles of Charges including Article II of misbehaving

with the Principal. Even if however Article II is removed from the Articles

of Charges and hence from the enquiry officer‟s report, yet, Articles I and

III stand duly proved and which findings on Articles I and III are severable

and not related to Article II, and therefore, applying the doctrine of

severance the Enquiry Officer‟s report and the consequent disciplinary

order is justified on the basis of the Articles I and III and which articles

have no connection to the Principal being the complainant and also the

witness as regards these Articles of Charges I and III.

(ii) As regards the allegations that Vice Principal being Mrs. Jasvir

Kaur, the teacher‟s representative was part of the disciplinary committee

and also deposed in the enquiry proceedings, it is seen that Mrs. Jasvir Kaur

had informed the Principal with respect to rudeness of the petitioner with

other teachers and petitioner not performing the duties which were given to

her. Both these aspects of rudeness and neglect in performing of duties

have been independently proved against the petitioner i.e even without

taking the complaint of Mrs. Jasvir Kaur, because in the enquiry

proceedings various teachers deposed with respect to rudeness of behavior

of the petitioner and of the petitioner not performing her duties. Also, the

doctrine of severance again can be applied because even if Article III of

charges is taken away, yet, Article I of charges, which was a very serious

complaint against the petitioner was proved and which was as regards

petitioner neglecting and being incompetent in performing her duties and

that petitioner not having the requisite knowledge of English language for

teaching the English medium students of primary classes in the subject

school which was an English medium school. Therefore, for this reason of

the doctrine of severance and also the fact that Mrs. Jasvir Kaur only

forwarded the complaints of other teachers and which complaints were

proved independently before the Enquiry Officer by the respondent no.

1/school through witnesses and documents, the ratio of the judgment in the

case of Vidya Bhawan Mahavidyalaya (supra) will not apply to the facts of

the present case. The first argument urged on behalf of the petitioner is

therefore rejected.

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

Enquiry Officer has passed a non-reasoned order and which non-reasoned

order has been adopted by the disciplinary authority by passing an

unreasoned order is an argument without merit inasmuch as the Enquiry

Officer‟s report in the present case is a detailed report which discusses the

evidence which was led by the respondent no. 1/school being the

depositions of the witnesses as also the documentary evidence Ex. P/1 to

Ex. P/15. Enquiry Officer in the report has referred to the contents of the

depositions of the witnesses (who were cross-examined) as to how the same

proved the case of the respondent no. 1/school and also as to how the

documents proved the case of the respondent no. 1/school. There is no

specific format of an Enquiry Officer‟s report and merely because the

Enquiry Officer in the concluding paras of the report states that Articles of

Charges are proved without giving discussion would not mean that earlier

detailed discussion showing the charges being proved cannot be looked into

by this Court. The detailed Enquiry Officer‟s report in the present case

therefore under no stretch of imagination can be said to be a non-speaking

report. Also, the disciplinary authority need not pass a detailed order and

once the Enquiry Officer‟s report is a detailed report discussing the articles

of charges, and how the same are proved, what are the depositions of the

witnesses, what are the documents etc etc, in such a scenario it cannot be

held that Enquiry Officer‟s report and the disciplinary authority‟s order are

non-speaking and therefore have to be set aside. This argument urged on

behalf of the petitioner is therefore rejected.

9(i). The third argument of the petitioner is by placing reliance upon

certain note sheets of the Enquiry Officer and thereby claiming that

petitioner was denied the opportunity to file documents in support of her

case. Nothing can be further from the truth and since the DST on this aspect

has exhaustively given its discussion and which clearly shows that

petitioner had complete opportunity and repeated opportunities to file

documents and which she did not utilize, it cannot be held that the case

against the petitioner was not proved. DST has therefore in the opinion of

this Court rightly held that the case of the petitioner is incorrect and that she

was not given opportunity to file documents. The relevant observations in

this regard of the DST, and which are adopted by this Court, read as under:-

"10(viii). Another allegation of the appellant is that Inquiry Officer had not allowed appellant to put her defence documents on record and she had specifically referred to the order sheets dated 28.11.2006 and 20.12.2006. In the order sheet dated 28.11.2006, it has been mentioned that Appellant would be afforded a fair chance for making her defence at the appropriate stage. In the order sheet dated 20.12.2006, it is mentioned that on 28.11.2006 CO was asked to give details of defence documents and defence witnesses if any, which she proposed to adduce before the Inquiry Officer in this case by 06.12.2006 but she had not been given any such list.

It is pertinent to mention here that after 28.11.2006 the matter was listed on 06.12.2006 when the Inquiry Officer was not well and the matter was again adjourned to 08.12.2006 and thereafter to 13.12.2006. Even on 13.12.2006, 15.12.2006 and 18.12.2006 the Appellant did not produce any list of witnesses or details of the defence documents. Even in the order sheet dated 20.12.2006 Appellant had been given another chance to submit her documents along with her defence brief at the appropriate time. The matter was adjourned to 26.12.2006. On this date, the remaining evidence of the witnesses of the Management was recorded. The Appellant informed that she had already submitted her defence reply to the charge-sheet and as such she had nothing more to say in her defence in writing or verbally. She made a request that she should be given a date for submitting defence brief and as per her request she had been given time till 27.01.2007 for submitting defence brief. Prior thereto, the Presenting Officer was directed to submit the prosecution brief. It is clear that the Appellant herself had foregone her right to put her defence in writing along with her documents and to call her defence witnesses as noted in the order sheet dated 26.12.2006. When the Appellant herself had chosen not to put her defence in writing and to call her defence witnesses and to file her defence documents, the Inquiry Officer was right in fixing the case for submission of prosecution brief as well as defence brief on 11.01.2007 and 27.01.2007 respectively and no fault can be found with the Inquiry Officer in this ground." (underlining added)

(ii) In view of the above observations of the DST, the argument

urged on behalf of the petitioner of her not being given adequate

opportunities to file documents in support of her case is a misconceived

argument and is therefore rejected.

10(i). Even the argument of the petitioner that she was good at

teaching and the Enquiry Officer therefore should not have been held the

petitioner guilty, the DST has in this regard given very pertinent

observations to reject the case of the petitioner inasmuch as DST found that

the school was an English medium school and petitioner was appointed as

an Assistant Teacher and not as an Assistant Teacher (Nursery) as claimed

by the petitioner. Petitioner therefore was found not to have the requisite

knowledge of English and in fact there are complaints received from the

parents of students who had appeared as witnesses before the Enquiry

Officer and thus proving the case of the respondent no. 1/school. The

relevant paras of the impugned judgment of the DST and which are adopted

by this Court, read as under:-

"10(i) In the appeal Appellant has maintained the stand throughout that she was an Asstt. Teacher in the Respondent School since 01.04.2003 till her removal on 29.03.2007. But in the rejoinder the Appellant comes-up with a new contention that she was appointed as Nursery Teacher who was made to work as Asstt. Teacher and the inquiry was conducted against her as Asstt. Teacher; hence the whole inquiry process was void ab-initio. In support of this contention Appellant has filed an almost illegible copy of a document Annexure „R-1‟ wherein the words „Asstt.‟ „T‟ were written in one ink but the word „Nursery‟ was added in some other ink/pen later on. On the strength of this document dated 27.03.2003 the Appellant has tried to make a summersault and set up a new case at rejoinder stage without amending her appeal. The printed contents of this document R-1 are not legible. A new stand contrary to the stand taken in the appeal cannot be allowed to be taken in rejoinder. Hence the Appellant cannot agitate that she was only an Asstt. Teacher (Nursery) and not an Asstt. Teacher for the primary section as was her case in the appeal.

xxxx xxxx xxxx

10(ix) As far as the findings of the Inquiry Officer are concerned the Appellant had challenged the same on the ground that her performance for 7 days cannot be the basis for imposing penalty of removal upon her. As per the Respondents, it is an English medium School where teachers are required to teach the students in English and Appellant was given class III for teaching English and EVS but she was unable to teach students in English as is evident from her performance appraisal done by the Consultant Ms. Nisha Sharma who had prove documents exhibit P/12 to P/15. Moreover, number of complaints had been received from the parents of students of Class III who had appeared as witnesses before the Inquiry Officer. The contention of the Appellant that she was appointed for teaching all subjects of class I and to teach only Hindi to other primary classes is not tenable. The documents proved by Ms. Nisha Sharma Consultant clearly show that appellant did not have the basic knowledge of English grammar, composition and punctuation and she was unable to teach English and EVS to class III students. It has been detailed in the evidence of the parents who had appeared before the Inquiry Officer As PW-1 to PW-8." (underlining added)

(ii) Accordingly, this argument urged on behalf of the petitioner

that she ought not to have been guilty of being deficient in teaching, is an

argument which cannot be accepted by this Court, and the same is therefore

rejected.

11(i). The last argument urged on behalf of the petitioner was that

petitioner has been proceeded against maliciously because petitioner had

made complaints to the Director of Education with regard to the petitioner

not receiving her complete salary.

(ii) In my opinion, this argument cannot help the petitioner in facts

of the present case for two reasons. Firstly, even if assuming there is malice

yet once the charges are otherwise proved, existence of malice cannot

exonerate the petitioner from the charges which have otherwise been proved

in the disciplinary proceedings. The second reason is that petitioner had

ample opportunities to lead evidence and give her statement/deposition to

prove alleged malice and rebut the case of the respondent no. 1/school, but,

petitioner did not step into the witness box and did not lead any evidence in

support of her case. This is so noted by the Enquiry Officer in the note

sheet dated 26.12.2006 and which reads as under:-

"Disciplinary Inquiry Proceedings into the charges made against Mrs. Rekha Sabharwal, Asst. Teacher, Saai Memorial School, Sai Bhawan, Delhi-31 held today 26.12.06

The following are present:

1. Mrs. Rekhas Sabharwal- C.O.

2. Mr. Kulwant Singh- Father of C.O. (Defence asstt.)

3. Mrs. Neena Sharma- P.O.

Dr.(Mrs.) Meenakshi Keswani, Mrs.Jasvir Kaur, Mrs. Vandana Nagi, Mrs. Nisha Sharma and Mrs. Mithlesh are present. Their statements have been recorded separately.

The C.O has informed that she has already submitted her defence reply to the charge sheet as such at this stage now she has nothing to say in her defence in writing or verbally. She has made a request that she should be given date for submitting her defence brief. She has opted for the purpose 27.1.07, when she will submit her defence brief, but prior to the defence brief the P.O. will submit the prosecution brief in writing which will be attached to the Inquiry officer and a copy thereof shall be endorsed to the charged officer under registered cover. The P.O. is granted date of 11.1.2007 for submitting the prosecution brief as stated above.

sd/-

R.K. BHARDWAJ INQUIRY OFFICER

1. MRS. REKHA SABHARWAL-C.O. sd/-

2. MRS. NEENA SHARMA-P.O. sd/-

3. DISCIPLINARY AUTHORITY"

12. Once petitioner leads no evidence to prove her case, then, the

case of the respondent no. 1/school which has been proved by the

deposition of witnesses and proving of documents has to be believed, and

therefore, petitioner has failed to prove that respondent no. 1/school had any

malice as was alleged by the petitioner. The last argument urged on behalf

of the petitioner is also therefore misconceived and is rejected.

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

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

FEBRUARY 06, 2017                                 VALMIKI J. MEHTA, J
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