The Chairman, Ryan International ... vs Dinesh Singh Rawat & Anr.
2017 Latest Caselaw 2420 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Date of decision: 16th May, 2017

+       W.P.(C) 1298/2017

        THE CHAIRMAN, RYAN INTERNATIONAL SCHOOL
        & ORS.                                ..... Petitioners
                    Through: Mr. Romy Chacko and
                              Mr. Shubham Singh, Advs.

                        versus

        DINESH SINGH RAWAT & ANR.           ..... Respondents
                      Through: Mr. Dilip Singh, Adv.

CORAM:-
HON'BLE MR JUSTICE V. KAMESWAR RAO

V. KAMESWAR RAO, J. (ORAL)

CM. No. 5957/2017 (for exemption) Exemption allowed subject to all just exceptions.

Application stands disposed of.

CM. No. 17625/2017 This is an application filed by the petitioners seeking permission to file additional documents. The same is allowed. Application stands disposed of.

W.P.(C) 1298/2017

1. This petition has been filed by the petitioners challenging the order

dated 17th October, 2016 of the Delhi School Tribunal in Appeal No.

18/2013 whereby the Tribunal has allowed the Appeal and directed the

reinstatement of respondent no.1 within four weeks with all consequential

benefits and full wages. In so far as the back wages is concerned, in

view of Rule 121 of the Delhi School Education Act and Rules,

respondent no.1 has been directed to make exhaustive representation to

the petitioners within four weeks, who were to decide the representation

within four weeks thereafter by a speaking order and communicate the

same to the respondent no.1.

2. It is the submission of Mr. Romy Chacko, learned counsel for the

petitioners that respondent no.l was appointed as Cashier in the petitioner

School. On 28th June, 2011, a resolution was passed by the Management

of St. Lawrence Education Society authorizing Smt. Priya Arora, the

Principal of the School to take disciplinary action and impose any penalty

as per service rules of the Society and to sign the letter of dismissal /

termination order or any such letter in respect of its employees. On 26th

July, 2012, respondent no.1 has handed over the question papers of

Mathematics and Social Studies illegally and unauthorizedly to Mr.

Neeraj Bahri, father of Ms. Rushali Bahri a student of Class-X(E) of the

School, which were kept for unit test of Class-X(E) in the School Office.

This was done so that Ms. Rushali Bahri could secure good grades in the

Unit Test. A chargesheet was issued on 6th August, 2012 to the

respondent no.1 with regard to the said misconduct. Respondent no.1

filed reply to the chargesheet. Ms. Anita Burman, was appointed as an

Enquiry Officer, who submitted report holding the charges against the

respondent no.1 as proved. Respondent no.1 was granted an opportunity

to show cause as to why action should not be taken against him for the

misconduct committed by him as per the report of the Enquiry Officer.

On 20th February, 2013, the Management Committee of the School, after

considering the reply, passed an order dismissing the respondent no.1

from service. Respondent no.1 filed an Appeal being no. 18/2013 against

the order of the dismissal, before the Delhi School Tribunal. According

to Mr. Chacko, the Tribunal has allowed the Appeal on a technical

ground that the Disciplinary Authority was not constituted according to

the provisions of the Rule 118 of the Delhi School Education Rules

(DSER), whereby the entire proceedings starting from submission of the

chargesheet, framing of charges, appointment of Enquiry Officer and

subsequent enquiry proceedings as well as the Enquiry Report have been

held as illegal and the impugned order of dismissal was also held illegal

and was set aside. According to him, even if in view of the judgment of

the Supreme Court in the case of Frank Anthony Public School

Employees Association v. Union of India 1987 SC 311, Rule 118, which

is part of Chapter VIII of the Rules, is applicable to an unaided minority

School, the impugned action of the petitioners initiating disciplinary

proceedings leading to the dismissal of the respondent no.1 having been

ratified by the Management Committee, which is a larger body consisting

of the members of the Disciplinary Committee as well, no prejudice has

been caused to the petitioner Mr. Chacko would also state that on a

similar issue arising from a Judgment of this Court in the case of Mount

Carmel School Society and Anr. V. Central Board of Secondary

Education and Anr. SLP 23380/2016, the Supreme Court has granted

status quo. He has also relied upon the judgment of this Court in the case

of Management Committee St.Columbus School and Ors. v. Neena

Thomas and Ors, W.P.(C) 6769/2008 decided on 1st February, 2017.

3. That apart, he has drawn my attention to Page 141 of the paper

book to contend that even there was an infirmity in holding of the

disciplinary proceedings against the respondent no.1, the petitioners did

make a request to the Tribunal to remand the matter back to the

Disciplinary Authority for taking appropriate action. Unfortunately, the

request has not been dealt with by the Tribunal. In other words, it is

submission that the impugned order of the Delhi School Tribunal dated

17th October, 2016 need to be set aside and the matter remanded back to

the Disciplinary Authority to proceed in accordance with law including

Rule 115 and 116 of DSER. In support of his contention, he would rely

upon the judgment of the Supreme Court in the case reported as 2006 2

SCC Page 584 South Bengal State Transport Corporation v. Sapan Kr.

Mitra and Ors.

4. On the other hand, Mr. Dilip Singh, learned counsel appearing for

the respondent no.1 would support the order of the Tribunal. He states

that the Management Committee could not have taken the place of

Disciplinary Committee under Rule 118 of the Delhi School Education

Rules. He states that in the case in hand, the chargesheet ought to have

been issued by the Disciplinary Committee and not by the Principal in

contravention with the provisions of the Delhi School Education Act and

Rules. It is his submission that the School Tribunal having set aside the

impugned action of the petitioners, the necessary consequence must

follow that is the respondent no.1 need to be reinstated with all

consequential benefits. He states, petitioners cannot rely upon Section

115 (4) in support of their contention as the same is in a situation when

the infirmities have occurred during the course of proceedings, but here

the infirmities are with regard to the constitution of the Disciplinary

Committee itself. He would rely upon the judgment of this Court in the

case of 2005 II AD (Delhi) 600 Ajay Singh v. Delhi Police School and

Ors. and the Judgments of the Division Bench of this Court reported as

2017 AD (Delhi) 585 Surender Kumar (Since Deceased Thru Lrs.) Vs.

UOI & Ors. and 1991 Suppl. 2 SCC 127 Mahender Singh and Anr. in

support of his contentions.

5. Having heard the learned counsel for the parties, I am unable to

agree with the contention of Mr. Chacko that Rule 118 of DSER is not

applicable to the petitioners. It is a clear pronouncement of the Supreme

Court in Frank Anthony Public School (Supra), wherein the Supreme

Court has held that Section 12 of the Delhi School Education Act which

makes all provisions of Chapter IV inapplicable to an unaided minority

institution as discriminatory and void. As a corollary Rule 96 which

excludes applicability of Chapter VIII, including Rule 118 relating to

Disciplinary Committee, the said Chapter shall also be applicable to an

unaided minority school. Insofar as the second contention of Mr. Chacko

that no prejudice has been caused to the petitioners as the disciplinary

proceedings from the issuance of chargesheet to the penalty have been

ratified by the Management Committee of the School, i.e., a larger body,

which also have same members who would have constituted the

Disciplinary Committee is concerned, I am unable to agree with this

submission of Mr. Chacko inasmuch perusal of Rule 118 shows the

composition of the Disciplinary Committee has to be as under:

"118. Disciplinary authorities in respect of employees - The disciplinary committee in respect of every recognised private school, whether aided or not, shall consist of:-

(i) the chairman of the managing committee of the school;

(ii) the manager of the school;

(iii) a nominee of the Director, in the case of an aided school, or a nominee of the appropriate authority, in the case of an unaided school;

(iv) the head of the school, except where the disciplinary proceeding is against him and where the disciplinary proceeding is against the Mead of the school, the Head of any other school, nominated by the Director;

(v) a teacher who is a member of the managing committee of the school; nominated by the Chairman of such managing committee."

6. The Chairman of the Management Committee of the School is

part of the Disciplinary Committee. That apart, the nominee of the

Director in the case of an aided school or a nominee of the appropriate

authority in the case of an unaided school, are also part of the

Disciplinary Committee. Perusal of the Minutes of the meeting of the

Management committee held on 1st April, 2013 wherein the Management

Committee stated to have ratified the disciplinary action taken by the

Principal against respondent no.1 reveals the Chairman was absent. That

apart on a specific query to Mr. Chacko, whether any representative of

the Directorate of Education was present, his answer was in the negative.

If that be so, two functionaries, who would constitute the Disciplinary

Committee were conspicuous of their absence in the meeting of the

Management Committee held on 1st April, 2013 when a decision was

taken to ratify the disciplinary action against respondent no.1. That apart,

there is nothing in Rule 118, which contemplates, delegation of

Disciplinary Powers to the Principal as has been done in this case.

Further a statutory Rule needs to be followed in the manner it exists

without any deviation. But the plea of Mr. Chacko that the Tribunal

should have remanded back the matter to the Disciplinary Authority for

taking appropriate action in accordance with the rules appeals this Court.

It is a case where Delhi School Tribunal has set aside the impugned order

of dismissal on a technical ground of the Disciplinary Committee having

not been constituted in accordance with the Rule 118 of DSER. The

charges against the petitioners are of very serious nature and cannot be

overlooked and the same need to be enquired. The plea of the learned

counsel for the respondent no.1 that the proceedings need to be in itiated

or not should be left to the Disciplinary Committee is also appealing. In

the facts, the Tribunal should have remanded back the matter to the

Disciplinary Committee to take a decision afresh, in accordance with law.

7. In view of my above discussion without dilating further, I set

aside the order dated 17th October, 2016 and remanded the matter back to

the Disciplinary Committee to take a decision, whether to proceed against

the respondent no.1 in a departmental enquiry, if not, then the matter shall

be treated as closed, if it is otherwise, then the respondent shall conduct

the proceedings in terms of Rule 120 and pass orders with regard to the

period post dismissal of respondent No.1 in accordance with law, in terms

of the judgments referred to by the counsel for the respondent No.1 and

Rules on the subject. The aforesaid direction shall be complied within

eight weeks from the receipt of the copy of this order. The writ petition is

disposed of.

CM Nos. 17626/2017 & 5956/2017 (for stay)

Dismissed as infructuous.

V. KAMESWAR RAO, J MAY 16, 2017/jg