Sharda Devi Sanskrit Vidyapeeth vs Shri Ganesh Ram Bhatt & Anr.
2017 Latest Caselaw 3263 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                        Date of Decision: 14th July, 2017

%                          LPA No.470/2017

    SHARDA DEVI SANSKRIT VIDYAPEETH    .... Petitioner
                 Through: Mr.Sunny Choudhary with
                          Mr.Abhimanyu         Singh,
                          Advocates
                                Versus
    SHRI GANESH RAM BHATT & ANR.          .....Respondents
                 Through: Mr.Sanjeev Ralli with
                          Mr.Prabhav Ralli, Advocates
                          for Caveator.
                          Mr.Santosh K. Tripathi, ASC
                          with Mr.Rizwan, Advocate for
                          R-2/Director of Education.

    CORAM:
    HON'BLE MR. JUSTICE VIPIN SANGHI
    HON'BLE MS. JUSTICE REKHA PALLI

    VIPIN SANGHI, J. (ORAL)

CM No.24392/2017

1. Exemption allowed, subject to just exceptions.

CM No.24391/2017 (for condonation of delay)

2. This application has been filed by the appellant seeking

condonation of 29 days delay in filing the present Letters Patent

Appeal.

3. For the reasons stated in the application, the same is allowed. Delay in filing the Letters Patent Appeal is, hereby, condoned.

This application is disposed of.

LPA No.470/2017

4. The appellant has preferred the present Letters Patent

Appeal to assail the judgment dated 8th May, 2017 rendered by

the learned Single Judge in Writ Petition (C) No.6581/2016.

The learned Single Judge has allowed the said writ petition

preferred by the respondent herein and set aside the order dated

4th April, 2016 passed by the learned Delhi School Tribunal in

Appeal No.17/2015 whereby the respondent's application to

seek condonation of 430 days delay in filing the statutory

appeal against his dismissal from service, had been dismissed.

The respondent was serving as the Principal of the appellant

School. He was sought to be suspended initially. Since the

suspension was not approved by the Director of Education, the

respondent contended that he was entitled to be reinstated in

service. On the aforesaid aspect, he preferred a writ petition

being Writ Petition (C) No.7255/2011. The writ petition was

filed on or about 12th September, 2011. The operative part of

the appellant's prayers reads as under:-

"a) Issue a writ of mandamus or any other appropriate writ order of direction thereby directing the respondent no.1 to enforce the statutory provisions of the Delhi School Education Act and the rules made there under and take appropriate action in accordance with law as envisaged under section 24 of the Act, against the respondent no.2 in view of the violations of the act and the rules brought to their notice by the petitioner and also to protect the petitioner from illegal and arbitrary action of the respondent no.2 of not allowing him to resume and discharge his duties as principal/head of the school.

b) Issue a writ of probation or any other appropriate writ order or direction thereby restraining the respondents from removing/terminating the service of the petitioner except in accordance with law.

c) Issue a writ of mandamus or any other appropriate writ order or direction thereby directing the respondents to immediately allow the petitioner to attend the service and accordingly letting him to perform and discharge his duties as principle/head of the school. Consequently further direct the respondents to pay the petitioner his entire unpaid salary and allowances and further pay

the petitioner regular salary and allowances admissible to him month by month in accordance with law."

5. It can be seen from the record that during the pendency of

the writ petition, the appellant sought to dismiss the respondent

from service, after obtaining approval of the Director of

Education on 10th October, 2013. The learned Single Judge of

this Court decided the writ petition on 11th July, 2014. During

the pendency of the dismissal/removal from service, vide order

dated 31st October, 2013, the learned Single Judge required the

placing of the order on issue on record in the writ proceedings.

6. The learned Single Judge held that the period of

suspension having elapsed at the end of fifteen days, failure on

the part of the Director of Education to communicate a decision

within the stipulated period could not be interpreted to mean

that the respondent would automatically remain under

suspension till further orders.

7. Consequently, the order of suspension dated 28th April,

2011 was held to have died its natural death at the end of fifteen

days w.e.f. 30th April, 2011. The appellant herein was directed

to pay to the respondent his unpaid salary and allowances as

admissible w.e.f. 15th May, 2011.

8. The respondent was aggrieved by the said order of the

learned Single Judge, since the respondent was not permitted to

challenge the order of dismissal, which had been passed during

the pendency before the Delhi School Tribunal. Consequently,

the respondent preferred LPA No.108 of 2015 which was

disposed of by the Division Bench on 27th February, 2015. The

Division Bench held that there was no question of the learned

Single Judge, considering any request by the respondent, to

permit him to challenge the order of a removal from service

since a statutory right was vested in him under Section 8 of the

Delhi School Education Act to challenge his removal before the

Tribunal. The respondent had even contended before the

Division Bench that he remained under a wrong impression,

that till the writ petition filed by him questioning his suspension

was decided by learned Single Judge, he could not file an

appeal before the Tribunal. The Division Bench observed that

since the respondent was holding the position of a Principal and

he was discharging executive functions as the Principal of the

School, he should have understood the difference between an

order of suspension and order of removal. The Division Bench

observed in para 9 as follows:-

"9. Be that as it may, it would be for the Tribunal to decide whether delay in filing the appeal challenging the order removing appellant from service needs to be condoned or not and for which the sufficiency of the cause projected by the appellant would be considered with reference to the cause shown."

9. After the disposal of the aforesaid LPA, the respondent

preferred the statutory appeal against his removal with an

application to seek condonation of 430 days delay but the

Tribunal rejected the said application and consequently, the

respondent preferred the writ petition which has been allowed

by the learned Single Judge by the impugned judgment dated 8th

May, 2017. A perusal of the impugned judgment shows that the

learned Single Judge has taken note of several decisions of the

Supreme Court dealing with the principles to be applied and the

approach to be adopted by the court while dealing with the

application seeking condonation of delay in such like

circumstances including the decision in Esha Bhattacharjee

Vs. Managing Committee of Raghunathpur Nafar Academy &

Ors. in Civil Appeal Nos.8183-8184/2013 decided on 13th

September, 2013.

10. The submission of learned counsel for the appellant is

that the learned Single Judge failed to appreciate that the

present case was the case of gross delay in filing of the statutory

appeal and it was not a case of only some delay. He submits

that the Division Bench in the earlier LPA had already rejected

the ground taken by the respondent in not preferring the

statutory appeal during the pendency of the writ petition and the

LPA and in the face of the said order, the Tribunal was justified

in rejecting the application seeking condonation of delay. No

other explanation has been furnished by the respondent apart

from claiming that his writ petition and thereafter the LPA was

pending. However, it may be noted, the said writ petition and

LPA related only to the issue of his suspension and not to the

issue of removal from service.

11. We have perused the record including the impugned

judgment and heard the submissions of learned counsels and

having considered the matter, we find no error in the impugned

judgment.

12. We have deliberately extracted hereinabove the prayers

made by the respondent in his earlier writ petition i.e. WP (C)

No. 7255/2011. No doubt, the cause of action for preferring the

said writ petition was the refusal of the appellant-School to take

back the respondent in service despite expiry of the period of

fifteen days from the date of suspension even though the

approval of the Director of Education has not been obtained.

However, in the said writ petition, the respondent had also

sought protection of the Court from illegal and arbitrary action

of the respondent no.2 in not allowing him to resume and

discharge his duty as Principal/Head of the School and "to seek

issuance of a writ of probation or any other appropriate writ

order or direction thereby restraining the respondents from

removing/terminating the service of the petitioner except in

accordance with law."

13. It cannot be ruled out that the respondent may have been

reeling under the impression that his removal from service was

also an aspect, which he would be entitled to urge when the writ

petition is heard by the learned Single Judge. This belief of the

respondent may have been further fortified by the fact that the

learned Single Judge vide order dated 31st October, 2013

required placing on record of the order of the disciplinary

authority removing the respondent from service.

14. No doubt, the respondent was not correct in his thinking

that in the earlier writ proceedings, he could assail the order of

removal from service which had come into existence after the

filing of the first writ petition. It is for this reason that the

Division Bench held that the respondent was not correct in his

thinking that the order of removal could be assailed in the writ

proceedings or in the appeal or in the Letters Patent Appeal.

However, the Division Bench did not say that the respondent

actually did not entertain such a belief. It is for this reason that

in para 9 of its decision dated 27th February, 2015, the Division

Bench inter alia observed "Be that as it may, it would be for the

Tribunal to decide whether delay in filing the appeal ....."

15. Even otherwise, we find that the judgment rendered by

the learned Single Judge is in accordance with justice. The

respondent having been removed from service, has no other

remedy except to prefer statutory appeal before the Delhi

School Tribunal. That valuable right cannot be allowed to be

defeated on mere technicality. The respondent has nothing to

gain by making delay in filing the statutory appeal. Therefore,

the said delay in this case cannot be treated as a calculated

delay. It is not even the appellant's case that the power to

condone the delay did not vest with the Tribunal.

16. In the aforesaid circumstances, we find no merit in this

appeal which is hereby dismissed.

(VIPIN SANGHI) JUDGE

(REKHA PALLI) JUDGE JULY 14, 2017/aa