Ms. Deepika Kapila vs Director Of Education And Ors.
2019 Latest Caselaw 3416 Del

$~49
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 25.07.2019

+      W.P.(C) 5860/2018 & CM APPLN. 22817/2018
       MS. DEEPIKA KAPILA                                ..... Petitioner
                          Through     Mr.V.K. Garg, Sr. Adv. with
                                      Mr.Somyajit Pani, Ms.Noopur Dubey
                                      & Mr.Chhittranjan Singh, Advs.

                          versus

       DIRECTOR OF EDUCATION AND ORS.         ..... Respondents
                    Through  Ms.Latika Chaudhary, Adv.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

1. Vide the present petition, the petitioner seeks direction thereby

quashing the impugned suspension order dated 23.05.2003 and impugned

charge memo dated 09.03.2018.

2. Further seeks direction to reinstate the petitioner w.e.f. 23.01.2003

along with the payment of arrears, accruals, back wages and other

consequential benefits.

3. Brief facts of the case are that the petitioner was appointed as

Language Teacher (Hindi-Gen] in the pay scale of ₹5500-175-9000 by

respondent no.1 on 09.12.1997 and subsequently selected by the selection

committee as PGT [Hindi] on 05.03.1999 w.e.f. 0l.07.1999.

4. The respondent no.1 school is fully aided by Government of NCT of

Delhi, however, by order dated 29.02.2008 and 14.01.2013, the aforesaid

school was taken over by the Government of NCT of Delhi.

5. The allegations against the petitioner are that on 03.10.2002 upon

receipt of anonymous information by an informer, a false F.I.R bearing No.

644/2002 was lodged at police station Lajpat Nagar alleging that the

petitioner had produced a fake certificate as to her educational qualification.

In pursuance to the said FIR, the petitioner was arrested on 26.11.2002 but

thereafter released on 04.12.2002. Thereafter, the then Manager of the

respondent no.1 sent a notice on 07.10.2002 asking the petitioner to produce

copies of her B.Ed and M.A. certificates. On 23.01.2003, respondent no.1

issued a Show Cause Notice calling upon the petitioner to explain certain

information which the petitioner allegedly suppressed from the respondents.

The petitioner replied to the said notice on 27.01.2003 explaining the entire

position that she has been falsely implicated and that her certificates/

degrees are original and genuine which were handed over to the

investigating officer.

6. Accordingly, the petitioner was allowed to join and resume her

services from 05.12.2002, however, the respondent no.1 arbitrarily withheld

the salary of the petitioner. The school authorities would see no reason and

were adamant in not releasing the pay and allowances of the petitioner.

7. Being aggrieved by the guidelines and unethical attitude of

respondent no.1, the petitioner sent a legal notice on 05.02.2003 demanding

the respondents to release her salary and allowances which were not being

paid since October, 2002. Thereafter, the petitioner received a suspension

order under Rule 115 of the Delhi School Education Rules, 1973 dated

23.01.2003 and in continuance of the same, the approval of the

aforementioned suspension was mechanically given by the Directorate of

Education, Government of NCT of Delhi through the Office of the

Education Officer vide letter dated 25.03.2003. Due to inaction on the part

of the respondents, the petitioner having left with no other alternative,

approached this Court by way of a Writ Petition bearing W.P.(C) 5223/2003

and the same was disposed of vide order dated 11.05.2006 directing the

respondent no. l to release the salary/subsistence allowance of the petitioner.

However, on 26.04.2005 the respondent no.1 served the petitioner with the

Memorandum of Charge bearing Reference No.1829 which was duly replied

to by the petitioner vide letter dated 08.05.2005.

8. Learned senior counsel appearing on behalf of the petitioner submits

that on 23.07.2005, Mr. Sri Pal Singh, Retired Principal was appointed as

the Enquiry Officer by respondent No.1 who then sent a notice dated

18.09.2006 directing the petitioner to appear before him on 27.09.2006

which was duly replied to by the petitioner vide Letter dated 23.09.2006

through which the petitioner unambiguously stated that a criminal trial on

the same set of allegations is pending before the. Learned Metropolitan

Magistrate, Patiala House Courts, New Delhi and any defense and oral

evidence in the quasi judicial parallel enquiry will vitiate the proceedings

pending before the trial court. The petitioner further requested the Enquiry

Officer to keep the enquiry proceeding in abeyance till the adjudication of

the trial.

9. The petitioner also filed his reply to the chargesheet dated 08.05.2005.

The inquiry officer with all bias and vendetta, vide Memorandum dated

27.09.2006 closed the enquiry proceedings. The Enquiry Officer erred in

coming to this conclusion and closing the enquiry proceedings even though

a reply to his Memorandum of Charge was submitted by the petitioner.

10. Learned senior counsel further submitted that not even an iota of

judicious reasoning was given while closing the said enquiry proceeding and

the same seems to be done in haste in order to fulfill some ulterior motive.

11. Being aggrieved by the lackadaisical attitude of the respondent no.1

and the manner in which the entire controversy of the petitioner was being

handled which exposes the ulterior attitude of the respondent no.1, the

petitioner approached this court vide Writ Petition (Civil) No. 15637/2006

and the same was disposed of vide order dated 19.03.2013 directing the

respondent No. 1 to give a personal hearing to the petitioner and pass a

speaking order in accordance with law within a period of four months from

the date of the order.

12. The relevant portion of the order is as follows:

"4. In view of the above, the writ petition is dismissed as not pressed and Disciplinary Committee of the respondent no.l-school is directed to give a personal hearing to the petitioner and thereafter pass a speaking order in accordance with law. Petitioner will be entitled to file a written representation before the Disciplinary Committee which oases a final order. It is agreed that the Disciplinary Committee will hear the petitioner and pass a speaking order within a period of four months from today."

13. It is further submitted that nothing has been done despite the order of

this Court. After two years, the petitioner received a letter dated 03.02.2015

which was received on 05.02.2015 asking the petitioner to appear before the

Disciplinary Action Committee [in short DAC] on 09.02.2015. However,

upon receipt of the letter, petitioner promptly replied to know the

constitution of the Committee and the legality of the DAC.

14. Vide order dated 19.03.2013, this court had directed the disciplinary

authority to hear and pass an order after giving personal hearing to the

petitioner whereas respondents asked her to appear before a Disciplinary

Action Committee on 09.02.2015 which was contrary to the directions of

this court. There was no response either from DAC or from the school as

regard to the enquiry proceedings. The petitioner sensed malafide and

proceeded to appear before the DAC scheduled on 09.02.2015. However,

she was not allowed to enter into the school. She was stopped at the gate and

she had to come back without attending the meeting. The plight of the same

was ventilated in her letter dated09.02.2015.The petitioner also made an

application dated 24.11.2016 under Right to Information and became aware

that the meeting of the Disciplinary Authority Committee (DAC) was held

in the office of the Authorized Officer of respondent no.1 on 09.02.2015 and

the Officials of the DAC therein allegedly passed the "Speaking Order".

However, no such copy of the speaking order has been received by the

petitioner till date.

15. Learned counsel further submitted that in order to victimize and

harass the petitioner, the respondent issued a second memorandum of

charge, on 09.03.2018 which was received on 12.03.2018. The petitioner

promptly replied to the same on 20.03.2018 along with additional reply.

16. Counsel further submitted that the said memo of charge has been

issued with vendetta. The petitioner was endlessly waiting for the response

from the respondent and eventually made an application seeking resignation

on the ground that the long 15 years of pending enquiry ruined the career of

the petitioner. Her family life has been shattered and she was carrying never

ending stigma of suspension even till today.

17. Further submits that neither the respondents concluded the inquiry nor

accepted the resignation of the petitioner due to their personal vendetta and

despite directions dated 19.03.2013, the disciplinary authority has not taken

final decision on the inquiry report submitted on 27.09.2006.

18. On the other hand, in the counter affidavit filed by the respondents, it

is stated that since the petitioner was in police custody for more than 48hrs,

therefore, she was put under suspension w.e.f. 25.11.2002. Further stated

that Sh. Pal Singh a retired Principal of Directorate of Education Govt. of

NCT of Delhi was appointed as the Inquiry Officer by the Disciplinary

Authority/Committee of SRSD Senior Secondary School, Lajpat Nagar IV,

New Delhi 110024 to enquire the alleged charge framed by the Crime

Branch Delhi Police against the petitioner and others who were stated to

have obtained the job by submitting fake testimonials/degrees. Since the

petitioner did not participate in the inquiry proceedings, the inquiry officer

submitted ex-parte inquiry report on 03.10.2006 holding the petitioner guilty

and recommended her dismissal from service. However, the then

management of the school did not take any action against the petitioner on

the ground that the disciplinary Inquiry against the petitioner had been

suspended because of her court case.

19. The respondent thereafter directed the then Managing Committee to

complete Disciplinary proceedings against the petitioner as per Rule 117 (b)

(iv) of Delhi School Education Act 1973 and Rules. In the meanwhile, the

school had been taken over by the Directorate of Education pursuant to

order dated 30.01.2014 in W.P.(C) No.5367/2013. At the time of taking

over the school, the management of the school forcefully removed all

files/documents from school records including the records related to

petitioner. As a result, the authorized officer could not take any action

against petitioner with respect to the inquiry proceedings against the

petitioner for securing job on the basis of fake certificates.

20. Ms.Latika Chaudhary, counsel appearing on behalf of the respondents

submits that vide order dated 19.3.2013 passed in W.P.(C) 15637/2006, this

court issued directions that the Disciplinary Committee will give personal

hearing to petitioner before passing of any penalty order. Accordingly, the

Directorate of Education on 07.07.2014 directed DDE (SE) to complete the

disciplinary proceedings against petitioner. The Disciplinary Action

Committee for conducting disciplinary proceedings against the petitioner

was constituted. The approval of competent authority was obtained for

appointment of Inquiry Officer IO i.e. Sh. K.C. Arora retired EO and

Presiding Officer (PO)/Sh. Sunil Kumar Sharma. The Inquiry Officer was

directed to complete the inquiry within a month as per direction of the

worthy Directorate of Education. The Inquiry proceedings were completed

and its report was submitted by the Inquiry Officer. The petitioner,

thereafter, submitted an application seeking resignation on 10.03.2018

stating that she was suspended from the school by the then Managing

Committee vide order dated 25.11.2002 as she was arrested in criminal case

which is still pending before the learned CJM Saket Court New Delhi.

21. Learned counsel further submitted that at present the petitioner is

under suspension and a criminal case is pending against her for procuring

job by producing false certificate, in corroboration with the management of

the school SRSD of which her father had been manager to secure gainful

employment for his daughter in the school. When the inquiry proceedings

started against her, she submitted an application for resignation on

10.03.2018, which was rejected by the competent authority, on the grounds

that she is not clear from the vigilance point of view.

22. Learned counsel for the respondents further submitted that the

petitioner under suspension tendered an application for voluntary retirement

of her services (VRS) on 09.05.2018, which was on flimsy grounds.

Accordingly, that was rejected by the competent authority after due

consideration on 21.05.2018.

23. Learned counsel further submitted that the inquiry has been conducted

as an ex-parte as the petitioner did not cooperate and deliberately delayed

the proceedings. As per the inquiry report submitted by the inquiry officer

(IO) all the charges Nos.1 to 4, are proved beyond doubt. The DAC

unanimously decided in the meeting held on 14.09.2018 at 2:00 pm to

impose major penalty under Rule 120 DSEAR, 1973 Dismissal from Service

which shall ordinarily be a disqualification for future employment in any

aided school and forwarded the case for seeking approval of the Directorate

of Education in terms of provision of Rule 120(2) of DSEAR 1973.

24. The said Directorate has accorded approval of penalty of dismissal

from service which shall ordinarily be a disqualification for future

employment in any aided school in terms of provisions contained under Rule

117 (b) (iv) of DSEAR 1973. Accordingly, penalty is totally justified in the

eyes of law. There have been a number of decisions by the Apex Court in

which procuring a service on the basis of false documents are suppression of

information and it has been held that it amounts as equal to denying the

rights of qualified candidates.

25. I have heard learned counsel for the parties at length and perused the

material available on record.

26. The fact remains that the petitioner was put under suspension vide

order dated 23.05.2003 and as per Rule 115 of the Delhi School Education

Rules, 1973, suspension cannot go beyond six months until and unless it is

extended by the competent authority by recording reasons. During the

inquiry, the petitioner did not participate but continued to seek documents

required to participate in the inquiry. After the inquiry was conducted, the

petitioner came before this court on the ground that there is not even an iota

of judicious reasoning and evidence while closing the enquiry proceedings

and the same was done in order to fulfill some ulterior motive.

27. Being aggrieved, the petitioner filed Writ Petition (Civil) No.

15637/2006 and the same was disposed of vide order dated 19.03.2013

directing the Respondent No.1 to give a personal hearing to the petitioner

and pass a speaking order in accordance with law within a period of four

months from the date of the order.

28. Despite the directions issued by this Court, after 2 years, the petitioner

received a letter dated 03.02.2015 which was received on 05.02.2015 asking

the Petitioner to appear before the Disciplinary Action Committee on

09.02.2015. However, upon receipt of the letter, the Petitioner promptly

replied to know the constitution of the Committee and the legality of the

aforementioned committee.

29. It is pertinent to mention here that vide order dated 19.03.2013, this

court directed the disciplinary authority that after giving personal hearing to

the petitioner pass a speaking order, whereas, respondents asked her to

appear before a disciplinary action committee on 09.02.2015 which was

contrary to the directions of this court.

30. The directions passed by this court was violated on two counts; (a)

this court directed the respondent no.1 to give personal hearing to the

petitioner and thereafter pass a speaking order in accordance with law; (b)

the petitioner will be entitled to file written representation before the

disciplinary committee which shall pass a final order. Thus, it was agreed

that the disciplinary committee will hear the petitioner and pass a speaking

order within a period of four months from the date of the order. The

disciplinary committee has not passed a speaking order within a period of

four months granted by this court.

31. At this stage, since the case against the petitioner is of 2003, the

liberty cannot be given to the respondent no.1 to pass order on the inquiry

report which was submitted on 27.09.2006. Thus, there is again violation of

the directions passed by this court and the settled law that the suspension

cannot be extended beyond six months until and unless fresh decision is

taken to extend the same by giving a plausible reason.

32. In this case, though the inquiry was ex-parte and after the direction

passed by this court, an opportunity was given to the petitioner to appear in

person before the Disciplinary Authority but he was asked to appear before

different committee, contrary to the directions. Moreover, she questioned

the constitution of committee.

33. In that eventuality, the respondents had only one option that since the

petitioner did not appear, therefore, after giving the petitioner an opportunity

to appear in person, the respondent no.1 had to pass an order on the inquiry

report submitted by the inquiry officer.

34. Accordingly, I hereby quash suspension order dated 23.05.2003 and

emanating proceedings thereto. Consequently, the petitioner is reinstated in

service with 50% of the back wages and other consequential benefits.

35. It is pertinent to mention here that the petitioner submitted her

resignation on 10.03.2018 and the same was not accepted till date by the

respondents. Thereafter the petitioner sought voluntary retirement of service

on 09.05.2018 and the same was also rejected by the competent authority on

21.05.2015.

36. As the second chargesheet dated 09.03.2018 is concerned, the same

has been stayed by this court on the ground that the second chargesheet is

not permissible under the law. Thus the said chargesheet dated 09.03.2018 is

also quashed.

37. I hereby make it clear that the reinstatement order shall be issued

within a period of four weeks from the receipt of this order and arrears shall

be given within eight weeks thereafter.

38. In view of above, the petition is allowed and disposed of.

39. The pending application stands disposed of.

(SURESH KUMAR KAIT) JUDGE JULY 25, 2019 ab