Hillwoods Academy And Ors vs Archna Peter And Anr
2017 Latest Caselaw 6410 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment reserved on: October 16, 2017
                               Judgment delivered on: November 14, 2017

+      W.P.(C) 3996/2017, CM No. 17584/2017

       HILLWOODS ACADEMY AND ORS            ..... Petitioners
                       Through: Mr. Rana S. Biswas, Adv. with
                                Mr. Sunil Kr. Sharma & Mr. Paul
                                Paske, Advs.

                          versus

       ARCHNA PETER AND ANR                               ..... Respondents
                        Through:              Mr. Nikilesh R., Adv. with Mr.
                                              Niraj Jha, Mr. Navdeep Jain,
                                              Ms. Pratima Singh, Advs, for R-1
                                              Mr. Satyakam, ASC with
                                              Mr. K.P. Singh, LA, Zone-II for
                                              R-2

CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO

                               JUDGMENT

V. KAMESWAR RAO, J

1. The challenge in this writ petition is to the order dated March 2, 2017 of

the Delhi School Tribunal in Appeal No. 31/2015 whereby the appeal filed by

the respondent no.1 herein under Section 8(3) of the Delhi School Education

Act, 1973 has been allowed and the termination of the services of the

respondent no.1 w.e.f October 14, 2014 was held to be illegal and arbitrary

and the letter dated January 16, 2015 received by the respondent no.1 on

February 14, 2015 was set aside.

2. Some of the facts relevant for the proper adjudication of the case are,

petitioner no.1 herein is a recognized Private unaided School and the

respondent no.1 has been working as a primary teacher in the petitioner

School w.e.f July 28, 1997. It is the case of the petitioner herein that on

October 14, 2014, parents of two students of KG-D namely Pranav Sharma

and Uday Gupta met the Head-Mistress of the School, i.e., petitioner no. 2 in

her office and complained against the respondent no.1 stating, she as a class

teacher had confined their wards in the toilet. It was also the allegation of the

parents that she had assaulted, i.e., slapped, pinched and pulled the ears of the

students on October 10, 2014. The complaints of the parents were filed in

writing. It was also stated by the parents in their complaints that it was not for

the first time, that such an incident had taken place, but earlier also similar

kind of assaults were being administered by the respondent no.1 to their

wards. Petitioner no.2 enquired into the matter and the school children were

called and heard after the parents had left. It is the case of the petitioners that

the children bitterly started crying and repeatedly stating that they were

dreaded to be confined in the toilet. The children were found to be mentally

disturbed. Respondent no.1 was called and explanation was sought from her.

In her explanation, she had stated as the children were found playing with the

water in the washroom and were wet, she as a teacher told them to remain in

toilet and they will not go home. However, she denied physically assaulting

the students. Petitioner no.2 prepared a report regarding the alleged acts and

misconduct of the respondent no.1 and submitted the same to the petitioner

no.3. It was decided that respondent no.1 be sent home for an indefinite

period for her insensitive and harsh behaviour.

3. In the appeal filed before the Delhi School Tribunal, it was the case of

the respondent no. 1 that on October 17, 2014, she met the petitioner no. 3 on

the occasion of Diwali and enquired as to when she should join back. She was

told to meet after Diwali. Thereafter despite sending messages through SMS

and asking petitioner no. 3 to give an appointment, petitioner no. 3 has been

sending messages, 'wait till we decide'. Be that as it may, respondent no. 1

wrote a letter to respondent no. 3 requesting her for permission to join the

School. After receiving the letter dated January 4, 2015, petitioner no. 3 had

asked respondent no. 1 to meet her on January 15, 2015. It is the case of the

respondent no. 1 that petitioner no. 3 had asked her to sign an undated letter,

in which it was mentioned that for violating the guidelines of RTE Act with

regard to awarding punishment to the students, she (respondent no.1) was

being prevented from attending the School and performing her duties as a

teacher. Respondent no.1 refused to sign such a letter. On her refusing to

sign such letter, the petitioner no.3 threatened her on dire consequences

including removal her from her services for the incident dated October 10,

2014. It was the case of the respondent no.1 that on February 4, 2015, she

received a letter dated January 16, 2015 informing about the action of sending

her home because of awarding the punishment to the children. Thereafter,

respondent no.1 made a representation dated February 16, 2015 to Directorate

of Education. It was the case of the respondent no.1 that the letter dated

January 16, 2015 is a letter of termination, which is arbitrary and illegal. The

stand of the petitioners before the School Tribunal was about the incident that

had taken place on October 10, 2014, which has been referred above. It was

also the case of the petitioners that on July 9, 2015, respondent no.1 was

suspended and thereafter memorandum dated September 4, 2015 was issued

to the respondent no.1. An Enquiry Officer was appointed and the respondent

no. 1 was awarded punishment of dismissal by the disciplinary authority in

view of the Enquiry Report. A letter was written to the Directorate of

Education for sending approval of the termination of the respondent no.1.

Respondent no.1 has also taken a stand before the Tribunal that she has not

been paid salary between October 14, 2014 till July 9, 2015. That apart, even

in terms of the letter dated July 9, 2015, subsistence allowance has not been

paid. The Tribunal held that the relationship between the respondent no.1 and

the petitioners came to an end on October 14, 2014 when the respondent no.1

was not paid her salary. It also held that the alleged proceedings of issuing of

suspension letter, appointing of Enquiry Officer and conducting of enquiry

were illegal, afterthought to cover their lapses to regularize the illegal

termination of the respondent no.1 w.e.f October 14, 2014. The Tribunal

directed the reinstatement of the respondent no.1, with liberty to the

respondent no.1 to make a representation under Rule 121 of the Delhi School

Education Act and Rules, 1973 with regard to back wages.

4. The matter was heard on different dates. When the matter was heard on

May 8, 2017, it was adjourned to enable the parties to take instructions. On

May 17, 2017, this Court had recorded the statement of the counsel for the

petitioners that petitioners are willing to pay the back wages for the period

October 14, 2014 to July 9, 2015, i.e., the date when the respondent no.1 was

suspended and thereafter from July 10, 2015 onwards to pay suspension

allowance and also to hold de-novo enquiry wherein respondent no.1 may

participate. On July 7, 2017, counsel for the respondent no.1 had argued that

even the respondent no.1 cannot be treated to have been validly suspended on

July 9,2015 as no approval of the Directorate of Education was taken in that

regard. He also stated that till such time fresh order of suspension is passed,

respondent no.1 shall also be entitled to back wages w.e.f July 10, 2015 till the

date of suspension. This submission was not acceptable to the counsel for the

petitioners, who on July 19, 2017 made a submission that the petition needs to

be decided on merit. The submission of the learned counsel for the petitioners

has been that the charges against the respondent no.1 being of very serious

nature, the Tribunal could not have directed her reinstatement. He had also

submitted that the Tribunal should have given liberty to the petitioners herein

to conduct a de-novo enquiry against the respondent no.1 on serious

allegations. On the other hand, learned counsel for the respondent no.1 would

justify the order of the Tribunal inasmuch as the letter dated January 16, 2015,

whereby the petitioners had sent the respondent no.1 home in fact is an order

of termination which should not have been issued without following due

process of law. He seeks reinstatement of the respondent no.1 with all back

wages.

5. Having heard the learned counsel for the parties, there is no dispute that

there was no enquiry held against the respondent no.1 before issuing the letter

dated January 16, 2015. The Tribunal was justified in holding that said letter

has the effect of terminating the services of the respondent no.1. If that be so,

the order of the Tribunal cannot be faulted except to the extent that Tribunal

noting the seriousness of the charges alleged against the respondent no.1

should have granted liberty to the petitioners to conduct a de-novo enquiry

against the respondent no.1. Unfortunately that has not been done. The order

of the Tribunal needs to be modified to the extent giving liberty to the

petitioners to conduct de-novo enquiry if so advised in accordance with the

provisions of the Delhi School Education Acts and Rules, 1973. In so far as

the payment of back wages are concerned, same shall be governed by the

direction of the Delhi School Tribunal in Para 26 of the impugned order.

6. During the course of the submissions, an issue arose whether the

respondent no.1 shall be deemed to be under suspension w.e.f July 9, 2015,

which was contested by the counsel for the respondent no.1 on the ground that

same was non-est as the same to be effected with approval of the Directorate

of Education which has not been done. I deem it appropriate that on this

aspect, respondent no.1 shall make a representation to the Directorate of

Education within one week from today detailing the grounds on which

according to her the suspension is illegal. The Directorate of Education shall

pass a reasoned order within three weeks thereafter after seeking the

comments from the School. If the Directorate of Education agrees with the

stand of the respondent no.1 then the suspension of the respondent no.1 w.e.f

July 9, 2015 shall be deemed to have been revoked and the respondent no.1

shall be entitled to full back wages for the period after July 9, 2015 and shall

be reinstated forthwith. This would not preclude the petitioner no.1 School to

issue a fresh suspension order in accordance with the Rules. The petition is

disposed of.

CM. NO. 17584/2017 Dismissed as infructuous.

V. KAMESWAR RAO, J

NOVEMBER 14, 2017/jg