Delhi High Court
K. M. Yadav vs Director Of Education & Anr. on 8 December, 2020
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Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:09.12.2020
10:59:44
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 8th December, 2020
+ W.P.(C) 9630/2020
K. M. YADAV ..... Petitioner
Through: Mr. Sanjeev Ralli, Ms. Simran
Mehrotra and Mr. Mohit Mudgal,
Advocates. (M:9811087093)
versus
DIRECTOR OF EDUCATION & ANR. ..... Respondents
Through: Ms. Mona Sinha and Ms. Ruchira
Gupta, Advocate for R-1 (M:
9810350333).
Mr. Anurag Lakhotia, Advocate for
R-2.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1. This hearing has been done through video conferencing.
2. The present writ petition has been filed under Article 226 of the
Constitution of India challenging the dismissal order dated 28th August,
2020 issued by the D.A.V. Senior Secondary Public School, J-Block,
Paschim Vihar, New Delhi for which approval was granted by the
Department of Education on 27th August, 2020 and communicated on 28th
August, 2020.
3. The short point raised by Mr. Sanjeev Ralli, ld. Counsel for the
Petitioner is that the Petitioner had already attained superannuation on 6th
August, 2020 in terms of Rule 110 of The Delhi School Education Rules,
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1973, as he turned 60 years old. Thus, the approval and the dismissal order
passed after his retirement are completely without jurisdiction. He further
submits that the disciplinary proceedings against the Petitioner was subject
matter of petitions before the Ld. Division Bench of this Court which had
passed judgment on 31st October, 2018 to the following effect:-
"24. Consequently, the impugned order of the
learned Single Judge is modified only to the extent
indicated hereunder:
(i) The de novo inquiry in terms of the impugned
order will be held and concluded within a period
of six months from today.
(ii) For the period between the date of his removal
by the disciplinary committee i.e. 5th June 2012
till the date of conclusion of the de novo inquiry
and the consequential order passed thereon, the
employee will be treated as being in service but
under suspension and be entitled to 50% of the
wages during the said period which will be paid
to him hereafter before the 10th of every month.
(iii) As far as the arrears of the subsistence wages
is concerned it will be paid to the employee by the
school within a period of eight weeks from today.
(iv) The de novo inquiry will be held by providing
the employee the DA of his choice and a fresh
inquiry report will be rendered uninfluenced by
the earlier inquiry report or any observations on
merits of the Tribunal, the learned Single Judge of
this Court, or in the present judgment."
4. As per the above order, the time given for concluding the enquiry was
six months which was thereafter finally extended by the ld. Division Bench
on 6th May, 2019 and 5th December, 2019 for a further period of six and
three months respectively. Thus, the disciplinary proceedings had to be
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SINGH NAYAL
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concluded by 5th March, 2020. According to ld. Counsel, any proceedings
conducted thereafter would be void ab initio.
5. Mr. Anurag Lakhotia, ld. Counsel appearing for the Respondent No.2
- School, on the other hand, relies upon Sections 8 and 11 of the Delhi
School Education Act, 1973 to argue that the remedy for the Petitioner is to
approach the Tribunal constituted under the Act and a writ petition would
not be maintainable. He relies upon the judgment in Shashi Gaur vs. NCT
of Delhi and Ors., (2001) 10 SCC 445.
6. After hearing ld. Counsel for the parties, this Court is of the opinion
that in case a jurisdictional issue is raised, a petition under Art. 226/227 may
still be maintainable and the jurisdiction of this Court may not be completely
ousted. However, the question as to whether a writ should be entertained or
not would have to be decided on the facts and circumstances of each case.
Recently, a ld. Single Judge of this Court, following Shashi Gaur (supra)
and after considering the relevant case law, in Sandhya Bindal v. State of
NCT of Delhi & Ors. [W.P.(C) 6975/2020, decided on 24th November,
2020], held:
"19. The foremost issue that needs to be decided is
the maintainability of the present petition before
this Court in view of the existence of the remedy of
appeal under Section 8 (3) of the DSEAR. The
provisions of Section 8(3) would be required to be
examined and the provisions are as follows -
"8. Terms and conditions of service of
employees of recognised private
schools -
(3) Any employee of a recognised
private school who is dismissed,
removed or reduced in rank may,
within three months from the date of
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communication to him of the order of
such dismissal, removal or reduction
in rank, appeal against such order to
the Tribunal constituted under section
XXX
20. A close scrutiny of Sub-Section (3) of Section 8
leaves no doubt that the provisions enable an
employee of a recognized private school to appeal
against an order dismissing, removing or reducing
him/her in rank, before the Tribunal constituted
under Section 11 of the DSEAR. Supreme Court in
the case of Shashi Gaur (supra) while interpreting
Sub-Sections (2) and (3) of Section 8 observed that
it would be inappropriate to give a narrow
construction to Sub-Section (3), thereby taking the
teachers whose services were terminated, not by
way of dismissal or removal, but otherwise, out of
the purview of the Tribunal constituted under
Section 11 of the Act. Statute has provided a
Tribunal to confer a remedy to the teachers who
are taken out of service on the whims of the
Management of private Institutions and
Governmental Authorities have been given certain
control over them. If an appeal to the Tribunal is
not provided to the employee as a remedy, he / she
would approach a Court under Article 226 of the
Constitution, which is a discretionary remedy. The
additional reason that weighed with the Supreme
Court, to observe so, was that the remedy of an
appeal was a more efficacious remedy. With this
background on the canvas, the Court categorically
held that Section 8(3) of the DSEAR provides an
appeal for challenging any termination except
where the service comes to an end by efflux of
time. ...
XXX
25. Having considered the above referred
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judgments more particularly the binding dicta of
the Supreme Court in Shashi Gaur (supra), I am
persuaded to hold that the appropriate remedy
available to the Petitioner is to approach the
Tribunal by filing an appeal against the order of
termination. While there is no gain-saying that the
inherent jurisdiction of a High Court under Article
226 of the Constitution to issue prerogative writs
cannot be limited by reason of an alternative
remedy being available but this Court is equally
bound by the dicta in Shashi Gaur (supra) where
the specific issue before the Court was the
availability of remedy of appeal before the
Tribunal constituted under the DSEAR.
36. In view of the above, the objection to
maintainability of the present petition before this
Court raised by the Respondents is decided in
favour of the Respondents and against the
Petitioner. The petition is therefore dismissed as
not maintainable in this Court, leaving it open,
however, to the Petitioner to approach the
Tribunal in accordance with law. It is made clear
that this Court has not expressed any opinion on
the merits of the case. Arguments were heard
limited to the maintainability of the present
petition and the judgment was reserved on this
aspect alone."
7. In the present case, due to the conduct of the Petitioner in the school,
a disciplinary enquiry was conducted against him. The enquiry report
recommended dismissal of the Petitioner. The question as to whether on 27 th
and 28th August, 2020, approval could have been given by the appropriate
government and a dismissal order could have been passed is a legal issue
which can be raised before the Tribunal and considered by it. Moreover,
even the question as to whether the enquiry was conducted within the time
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period specified by the ld. Division Bench could be a ground to challenge
the Inquiry report before the Tribunal which may be examining the legality
and validity of the Inquiry. All the issues raised, including the issue as to
jurisdiction for passing the dismissal order can be adjudicated by the
Tribunal. Thus, the Petitioner has an alternate remedy which is also
efficacious.
8. In view of the judgments cited above, including the recent judgment
of this Court in Sandhya Bindal (supra), this Court is not inclined to
entertain the present writ petition. The Petitioner is permitted to avail of his
legal remedies in accordance with law.
9. The Tribunal under The Delhi School Education Act, 1973 shall
consider all the issues and objections raised by the Petitioner and decide the
same in accordance with law. It is left to the discretion of the Tribunal if it
deems necessary and expedient to consider if any issue should be decided as
a preliminary issue or whether the matter needs to be decided in a
comprehensive manner.
10. The Petitioner is permitted to approach the Tribunal within a period of
thirty days from today. If the appeal is filed within thirty days, the delay in
filing of the appeal shall stand condoned. Needless to add, this Court has not
examined any of the issues raised on merits. The Tribunal would take a view
independent of any observation in the present order.
11. The writ petition is disposed of in the above terms.
PRATHIBA M. SINGH,
JUDGE
DECEMBER 8, 2020
MR/T
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