Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
23. From a perusal of the impugned order, passed by the Tribunal, it is
evincible that Tribunal has quashed the order of dismissal, passed by the
School on two grounds, viz. (a) order of dismissal was based on an
alleged act of cheating and thus, penalty of dismissal could not be
imposed without holding an inquiry; and (b) School did not obtain prior
permission of the Director of Education, while imposing the major
penalty of dismissal from service. According to the Tribunal, the Scheme
of the DSE Act and DSE Rules does not provide for obtaining ex-post
facto approval, which the School sought to do and the order of dismissal
was thus illegal. Relevant it would be to note that Tribunal granted liberty
to the School to proceed against Respondent No.2 for the alleged
misconduct, in accordance with law, if so advised. Relevant part of the
order of the Tribunal is extracted hereunder, for ready reference:-
"8. It is not the case of the Respondent School that it
terminated the services of the Appellant for non-completion of
probation period satisfactorily. The Respondent School
categorically terminated the services of the Appellant for the
alleged act of cheating. As discussed the penalty of dismissal
from service could not be imposed without holding a
departmental inquiry. The Respondent School fell in grave error
on both the counts. Firstly, it did not hold any departmental
inquiry into the alleged act of misconduct of filing false
certificates. Secondly, the Respondent School did not obtain a
prior permission of the Director of Education while imposing the
major penalty of dismissal from service. The whole scheme of
Delhi School Education Act & Rules-1973 does not provide for
obtaining ex-post facto approval in imposing major penalty. The
Respondent School has thus passed an order which is totally
illegal and against the statutory provisions of law. It is not
sustainable in the eyes of law. The impugned orders dated
14.02.1995 are hereby set aside. The Respondent School is
directed to reinstate the Appellant in service.
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
9. Now coming to the aspect of payment of back-wages, the
relevant provisions are contained in Rule 121 of the Rules. Sub-
Rule 1 of Rule 121 which is relevant in the present context, is
reproduced below:
"Sub-rule 1 of rule 121 (1) When an employee who has
been dismissed, removed or compulsorily retired from
service is reinstated as a result of appeal or would have
been so reinstated but for his retirement on superannuation
while under suspension preceding the dismissal, removal or
compulsory retirement, as the case may be, the Managing
Committee shall consider and make a specified order:-
(a) with regard to the salary and allowances to
be paid to the employee for the period of his absence
from duty, including the period of suspension
preceding his dismissal, removal or compulsory
retirement, as the case may be; and
(b) whether or not the said period shall be
treated as the period spent on duty."
10. In view of the position explained above, the Respondent
School is directed to constitute its Managing Committee in
accordance with the provisions contained in Rule 59 of the Rules.
It is reiterated here that the two Members of the Managing
Committee nominated by the Director of Education shall also be
associated. The Managing Committee shall decide the issue of
payment of back-wages to the Appellant within a period of 03
months and convey its decision to the Appellant. Respondent
School is however, at liberty to proceed against the Appellant for
the alleged misconduct in accordance with law, if so advised.
The appeal is accordingly disposed of."
24. It is an undisputed position between the parties that Respondent
No.2 was appointed and placed on probation for a period of one year.
Learned counsel for Respondent No.2 had sought to contend that there
was no extension of probation by the School and in view of the ACR(s)
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
of Respondent No.2, coupled with lack of approval, as required under
Rule 105(2) of the DSE Rules, he is a confirmed employee. This
contention of Respondent No.2 cannot be accepted. Rule 105 of the DSE
Rules is as follows:-
"105. Probation
(1) Every employee shall, on initial appointment, be on
probation for a period of one year which may be extended by the
appointing authority with the prior approval of the Director and
the services of an employee may be terminated without notice
during the period of probation if the work, and conduct of the
employee, during the said period, is not, in the opinion of the
appointing authority, satisfactory:
Provided that the provisions of this sub-rule relating to
the prior approval of the Director in regard to the extension of
the period of probation by another year, shall not apply in the
case of an employee of a minority school:
Provided further that no termination from the service of
an employee on probation shall be made by a school, other than
a minority school, except with the previous approval of the
Director.
(2) If the work and conduct of an employee during the period
of probation is found to be satisfactory, he shall be on the expiry
of the period of probation or the extended period of probation as
the case may be, confirmed with effect from the date of expiry of
the said period.
(3) Nothing in this rule shall apply to an employee who has
been appointed to fill a temporary vacancy or any vacancy for a
limited period."
(emphasis supplied)
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
25. Rule 105 of the DSE Rules provides that on initial appointment,
every employee will be on probation for a period of one year, which may
be extended by the Appointing Authority, with prior approval of the
Director. In the present case, as the chronology of dates and events goes,
Respondent No.2 was appointed on 31.07.1993 and was dismissed from
service on 14.02.1995. While there is a dispute on whether the probation
was extended on 12.01.1995, nonetheless it is nobody's case that an order
of confirmation was passed. The law on confirmation of probation is
explicitly clear and well settled and I may only refer to a judgment of a
Three Judge Bench of the Supreme Court in High Court of Madhya
Pradesh thru. Registrar and Ors. v. Satya Narayan Jhavar, (2001) 7
SCC 161 where it was held as follows:
"11. The question of deemed confirmation in service
jurisprudence, which is dependent upon the language of the
relevant service rules, has been the subject-matter of
consideration before this Court, times without number in various
decisions and there are three lines of cases on this point. One
line of cases is where in the service rules or in the letter of
appointment a period of probation is specified and power to
extend the same is also conferred upon the authority without
prescribing any maximum period of probation and if the officer
is continued beyond the prescribed or extended period, he cannot
be deemed to be confirmed. In such cases there is no bar against
termination at any point of time after expiry of the period of
probation. The other line of cases is that where while there is a
provision in the rules for initial probation and extension thereof,
a maximum period for such extension is also provided beyond
which it is not permissible to extend probation. The inference in
such cases is that the officer concerned is deemed to have been
confirmed upon expiry of the maximum period of probation in
case before its expiry the order of termination has not been
passed. The last line of cases is where, though under the Rules
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
maximum period of probation is prescribed, but the same
requires a specific act on the part of the employer by issuing an
order of confirmation and of passing a test for the purposes of
confirmation. In such cases, even if the maximum period of
probation has expired and neither any order of confirmation has
been passed nor has the person concerned passed the requisite
test, he cannot be deemed to have been confirmed merely
because the said period has expired."
26. Thus, there is no concept of deemed confirmation of probation and
as a general rule, save as expressly provided by a particular Rule to the
contrary, only an order of confirmation, passed by the employer shall
give to the employee the status of a confirmed employee. Neither Rule
105 of DSE Rules nor the appointment letter provides a maximum period
of probation and thus, in the absence of a specific order of confirmation,
it is not open to Respondent No.2 to contend that he was automatically/
deemed confirmed, merely on expiry of one year probation period, only
because his ACR was 'Good'/'Very Good'. Thus, it is held that
Respondent No.2 was a probationer and not a confirmed employee, when
he was dismissed by the School.
27. Nevertheless, the question that still remains to be answered is, as to
what are the rights and safeguards/protections available to a probationer,
if any, under the scheme of DSE Act and DSE Rules. Respondent No.2
had contended that he was dismissed from service in violation of Rule
105(1) of the DSE Rules, a safeguarding provision, against unfair
treatment at the hands of the school Authorities. This Court finds merit in
the said contention. Respondent No.2 was on probation, when his
services were dispensed with and thus Rule 105 of the DSE Rules would
govern the field. Second Proviso to Rule 105(1) of the DSE Rules
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
stipulates that no termination from service of an employee on probation,
shall be made by a school, except with the 'prior' approval of the Director
of Education. In the present case, it cannot be disputed that no 'prior'
approval of the Director was sought by the School, while passing the
dismissal order. The dismissal order, as a matter of record, was passed on
14.02.1995, whereas the School wrote to the Directorate only on
16.03.1995, seeking ex-post facto approval, which was, for unexplained
reasons, granted only on 30.12.2003 by the Director, i.e. after more than 8
years. The Tribunal is therefore right in holding that the approval was of
no consequence, as there is no provision under the DSE Act or DSE
Rules for ex-post facto approval. There can be no debate that provisions
of Rule 105 of the DSE Rules are mandatory and binding on the School.
It has been elucidated in plethora of judgments, which shall be adverted
to hereinafter, that the appointment of an employee in a school, being
governed by a statutory regime, provided under the DSE Act and DSE
Rules, is a statutory appointment and this ipso facto entitles the employee
to procedural safeguards and protections envisaged therein. In this regard,
reference is made to a passage from the judgment of the Co-ordinate
Bench in Army Public School and Anr. (supra), which is as follows:-
"5. A reference to aforesaid para shows that the Supreme
Court in Management Committee of Montfort Senior Secondary
School v. Sh. Vijay Kumar (supra) has laid down the ratio that
the very nature of employment of the employees of a school are
that they are no longer contractual in nature but statutory. This
observation was made by the Supreme Court in spite of the fact
that the minority schools had entitlement under the provisions of
Section 15 and Rule 130 of the Delhi School Education Act and
Rules, 1973 to have a contract of services for its employees. It be
noted that so far as the non-minority schools are concerned there
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
is no provision in the Delhi School Education Act and Rules,
1973 to have a contractual appointment. Therefore, once if
minority schools' employees cannot have contractual employment
and they have to be treated as statutory employees, then
a fortiorily non-minority schools whose employees cannot be
engaged in employment on contractual basis, such employees in
non-minority school would surely have statutory protection of
their services. In Management Committee of Montfort Senior
Secondary School v. Sh. Vijay Kumar (supra) the Hon'ble
Supreme Court has made it clear in the aforesaid paragraph 10
that the qualifications, leaves, salaries, age of retirement etc,
removal and other conditions of services are to be governed
"exclusively" under the statutory regime provided under the
Delhi School Education Act and Rules, 1973. Once that is so,
then, as per Rules 118 to 120 of the Delhi School Education
Rules, 1973 the services of an employee can only be terminated
on account of misconduct and that too after following the
requirement of holding of a detailed enquiry and passing of the
order by the Disciplinary Authority. Therefore, in view of the
categorical ratio of the judgment of the Supreme Court in the
case of Management Committee of Montfort Senior Secondary
School v. Sh. Vijay Kumar (supra) and in view of the facts of this
case the respondent No. 1's services from the inception cannot be
taken as only contractual in nature and would be statutory in
nature. Once the services are statutory in nature, and admittedly
the respondent No. 1 has not been removed by following the
provisions of conducting an enquiry and passing of an order by
the Disciplinary Authority as required under the Rules 118 to
120 of the Delhi School Education Rules, 1973, the respondent
No. 1's services cannot be said to have been legally terminated.
Respondent No. 1, therefore, continues to be in services."
28. In the case of Laxman Public School Society v. Richa Arora, 2018
SCC OnLine Del 12097, Respondent/teacher was appointed on probation
for a period of one year, but her services were terminated prior to the
expiry of the probation period. This prompted her to approach the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
Tribunal, which held that it was incumbent on the school to obtain
approval of the Director of Education under Section 8(2) of the DSE Act
read with Rule 105 of the DSE Rules, prior to terminating the service of
the Respondent. The order of the Tribunal was challenged by the school
in a writ petition in this Court. Contention of the school before the Court
was that rigours of Section 8(2) and Rule 105 would not apply where
services of a probationer are terminated. Relying on the judgment of the
Supreme Court in Raj Kumar vs. Director of Education and Ors., (2016)
6 SCC 541, the Court held that there was nothing in the judgment of the
Supreme Court which limited its applicability so as not to extend to
termination of a probationer and in fact Rule 105(1) of the DSE Rules
itself provides for a prior approval in case of termination of service of a
probationer. It was thus held by the Co-ordinate Bench that Section 8(2)
of the DSE Act and Rule 105 of the DSE Rules, especially the Second
Proviso, would apply with equal force, to employees on probation, as it
would apply to other employees and the order of the Tribunal was upheld.
Relevant paras from the judgment in Laxman Public School (supra) are
as follow:-
"12. There is nothing, in the judgment of the Supreme Court
in Raj Kumar (supra), which limits its applicability to the case of
a regular employee, and does not extend the scope thereof to the
termination of a probationer. Rather, Rule 105 of the
Delhi School Education Rules, itself states that, "every employee
shall, on initial appointment, be on probation for a period of one
year......". This itself indicates that, even during the period of
probation, the employee continues to remain an employee. The
second proviso to Rule 105 mandates that, except in the case of a
minority school, no termination from service, of an employee on
probation, shall be made by school, except with the previous
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
approval of the Director of Education. There is no dispute about
the fact that, prior to terminating the services of the petitioner,
no approval of the Director of Education was taken.
13. One may also refer to the definition of "employee", as set
out by the Supreme Court in the judgment Union Public Service
Commission v. Dr. Jamuna Kurup, (2008) 11 SCC 10, of which
para 14 is reproduced as under:
"14. The term "employee" is not defined in the Delhi
Municipal Corporation Act, 1957, nor is it defined in
the advertisement of UPSC. The ordinary meaning of
"employee" is any person employed on salary or wage
by an employer. When there is a contract of
employment, the person employed is the employee and
the person employing is the employer. In the absence of
any restrictive definition, the word "employee" would
include both permanent or temporary, regular or short
term, contractual or ad hoc. Therefore, all persons
employed by MCD, whether permanent or contractual
will be "employees of MCD."
(Emphasis Supplied)
14. Clearly, therefore, the mandate of Section 8(2) of the
Delhi School Education Act, 1973 and Rule 105 of the
Delhi School Education Rules, 1973, especially the second
proviso thereto, would apply, with equal force, to employees on
probation, as it applies to other employees."
29. Therefore, insofar as the mandate of requiring prior approval of the
Director of Education, for terminating the services of a Probationer under
Rule 105(1) of the DSE Rules is concerned, in my view, it does not pose
any challenge and requires no exposition or comprehensive analysis,
being explicitly clear from a plain reading of Rule 105(1) of DSE Rule as
also the aforementioned judgments. It is clearly a safeguarding
mechanism, which enables the Director of Education to regulate the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
actions of the school authorities and protects a probationer from unfair
termination.
30. Learned counsel for Respondent No.2, during the course of
arguments, had relied on the judgment of the Supreme Court in the case
of Raj Kumar (supra), to highlight that while dealing with provisions of
Section 8(2) of the DSE Act, which provides for prior approval of the
Director, the Supreme Court held that termination of services of the
Appellant therein, without obtaining prior approval of the Director, was
bad in law. Albeit the judgment is in the context of Section 8(2) of the
DSE Act, yet as rightly contended by the learned counsel, it is relevant to
the present case, where the controversy revolves around a specific
provision relating to a probationer, i.e., second proviso to Rule 105(1) of
DSE Rules. The Supreme Court in Raj Kumar (supra), made significant
observations, highlighting the objective and intent of a provision in the
statute, requiring 'prior' approval of the Director and emphasised in no
uncertain terms that violation of the mandate of Section 8(2) of DSE Act,
shall vitiate the penalty order. Section 8(2) of the DSE Act is extracted
hereunder, only with a view to make a comparative with the provision of
second proviso to Rule 105(1) :-
"8. Terms and conditions of service of employees of recognised
private schools --
(2) Subject to any rule that may be made in this behalf, no
employee of a recognised private school shall be dismissed,
removed or reduced in rank nor shall his service be otherwise
terminated except with the prior approval of the Director."
31. In case of Raj Kumar (supra), the Supreme Court enunciated that
provisions of Section 8(2) of the DSE Act are a precautionary safeguard
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
which must be followed in order to ensure that employees of the
Educational Institutions do not suffer unfair treatment at the hands of the
Management. Supreme Court set aside the order of termination of the
Appellant therein on the ground that the Managing Committee of the
school concerned, had not obtained 'prior' approval from the Director of
Education, which was a mandate under Section 8(2) of the DSE Act.
Elucidating the provisions of Section 8(2) of the DSE Act, the Supreme
Court, keeping in view the intent of the Legislature in enacting Section
8(2) of the DSE Act, observed that while functioning of the aided and
unaided Educational Institutions must be free from unnecessary
Government interference, the same needs to be reconciled with the
conditions of employment of the employees working in these Institutions
and providing adequate precautions and safeguards would help in
preventing unfair treatment. The Supreme Court applied the law laid
down in Katra Education Society vs. State of U.P., AIR 1966 SC 1307,
wherein the Constitution Bench of the Supreme Court, while dealing with
a provision similar to Section 8(2) of the DSE Act held that the power of
the State Legislature to legislate under the head 'education including
universities' in Schedule VII List-II Entry 11, would prima facie include
the power to impose restrictions on the Management of Educational
Institutions, in matters relating to education. Relevant paras from the
judgment of the Supreme Court in Raj Kumar (supra) are as under:-
"45. We are unable to agree with the contention advanced by
the learned counsel appearing on behalf of the respondent
School. Section 8(2) of the DSE Act is a procedural safeguard
in favour of an employee to ensure that an order of termination
or dismissal is not passed without the prior approval of the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
Director of Education. This is to avoid arbitrary or
unreasonable termination or dismissal of an employee of a
recognised private school.
XXX XXX XXX
47. A number of legislations across the country have been
enacted which deal with the regulation of educational
institutions, which contain provisions similar to the one provided
for under Section 8(2) of the DSE Act. One such provision came
for consideration before a Constitution Bench of this Court
in Katra Education Society v. State of U.P. [Katra Education
Society v. State of U.P., AIR 1966 SC 1307] The impugned
provisions therein were certain sections of the amended
Intermediate Education Act (U.P. Act 2 of 1921). Section 16-G of
the Intermediate Education (Amendment) Act, 1958 provided that
the Committee of Management could not remove or dismiss from
service any Principal, Headmaster or teacher of a college or
school without prior approval in writing of the Inspector. The
Amendment Act also contained other provisions providing for
governmental control over certain other aspects of the
educational institutions. Adjudicating upon the competence of the
State Legislature to enact the amending Act, this Court held as
under: (AIR pp. 1310-11, paras 8 & 10)
"8. Power of the State Legislature to legislate under the
head 'education including universities' in Schedule VII List
II Entry 11 would prima facie include the power to impose
restrictions on the management of educational institutions
in matters relating to education. The pith and substance of
the impugned legislation being in regard to the field of
education within the competence of the State Legislature,
authority to legislate in respect of the maintenance of
control over educational institutions imparting higher
secondary education and for that purpose to make
provisions for proper administration of the educational
institutions was not denied. But it was said that the
impugned Act is inoperative to the extent to which it seeks to
impose controls upon the management of an educational
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
institution registered under the Societies Registration Act
and managed through trustees, and thereby directly
trenches upon legislative power conferred by List I Entry 44
and List III Entries 10 and 28. This argument has no
substance. This Court has in Ayurvedic and Unani Tibia
College v. State of Delhi [Ayurvedic and Unani Tibia
College v. State of Delhi, AIR 1962 SC 458] held that
legislation which deprives the Board of Management of a
Society registered under the Societies Registration Act of
the power of management and creates a new Board does not
fall within List I Entry 44, but falls under List II Entry 32,
for by registration under the Societies Registration Act the
Society does not acquire a corporate status. It cannot also
be said that the pith and substance of the Act relates to
charities or charitable institutions, or to trusts or trustees. If
the true nature and character of the Act falls within the
express legislative power conferred by List II Entry 11,
merely because it incidentally trenches upon or affects a
charitable institution, or the powers of trustees of the
institution, it will not on that account be beyond the
legislative authority of the State. The impact of the Act upon
the rights of the trustees or the management of a charitable
institution is purely incidental, the true object of the
legislation being to provide for control over educational
institutions. The amending Act was therefore within the
competence of the State Legislature and the fact that it
incidentally affected the powers of the trustees or the
management in respect of educational institutions which
may be regarded as charitable, could not distract from the
validity of the exercise of that power.
XXX XXX XXX
10. ... If the management fails to comply with the directions
made by the Director, that Officer may after considering the
explanation or representation, if any, given or made by the
management, refer the case to the Board for withdrawal of
recognition or recommend to the State Government to
proceed against the institution under sub-section (4) and the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
powers which the State Government may exercise after
being satisfied that the affairs of the institution are being
mismanaged or that the management has wilfully or
persistently failed in the performance of its duties, include
the power to appoint an Authorised Controller to manage
the affairs of the institution for such period as may be
specified by the Government. The provision is disciplinary
and enacted for securing the best interests of the
students. The State in a democratic set up is vitally
interested in securing a healthy system of imparting
education for its coming generation of citizens, and if the
management is recalcitrant and declines to afford facilities
for enforcement of the provisions enacted in the interests of
the students, a provision authorising the State Government
to enter upon the management through its Authorised
Controller cannot be regarded as unreasonable."
(emphasis supplied)
From a perusal of the above judgment [Katra Education
Society v. State of U.P., AIR 1966 SC 1307] of the Constitution
Bench, it becomes clear that the State Legislature is empowered
in law to enact provisions similar to Section 8(2) of the DSE Act.
48. At this stage, it would also be useful to refer to the
Statement of Objects and Reasons of the DSE Act, 1973. It reads
as under:
"In recent years the unsatisfactory working and
management of privately managed educational institutions
in the Union Territory of Delhi has been subjected to a good
deal of adverse criticism. In the absence of any legal power,
it has not been possible for the Government to improve their
working. An urgent need is, therefore, felt for taking
effective legislative measures providing for better
organisation and development of educational institutions in
the Union Territory of Delhi, for ensuring security of
service of teachers, regulating the terms and conditions of
their employment. ... The Bill seeks to achieve these
objectives."
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
A perusal of the Statement of Objects and Reasons of the DSE
Act would clearly show that the intent of the legislature while
enacting the same was to provide security of tenure to the
employees of the school and to regulate the terms and conditions
of their employment.
XXX XXX XXX
55. The respondent Managing Committee in the instant
case did not obtain prior approval of the order of termination
passed against the appellant from the Director of Education,
Govt. of NCT of Delhi as required under Section 8(2) of the
DSE Act. The order of termination passed against the appellant
is thus, bad in law."
(emphasis supplied)
32. The law laid down by the Supreme Court has been followed in a
number of judgments by this Court and I may only refer to a recent
judgment of a Co-ordinate Bench of this Court in Meena Oberoi v.
Cambridge Foundation School and Ors. 265 (2019) DLT 401, wherein
the Court has quashed an order of termination of an employee in a private
recognized school on the ground of lack of prior approval of the Director,
relying upon the binding dicta of the Supreme Court in Raj Kumar
(supra).
33. The Statement of Objects and Reasons of DSE Act, which is
extracted above in para 48 of the judgment of the Supreme Court in
Raj Kumar (supra), is a reflection of the Legislature's intent behind
enacting Section 8(2) of the DSE Act, which is to grant security of tenure
to the employees of Educational Institutions and to provide a regulatory
mechanism of the conditions of their service and ensure that in case the
Management does not treat the employees fairly, the Director of
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
Education will be in a position to set right the wrongful act of the
Management, by declining to grant approval for the proposed penalty, if
the circumstances so warrant. The intent and objective behind framing
Rule 105(1) of DSE Rules is no different as it provides a mechanism
where the Director can refuse to grant approval for termination of a
probationer, if the action of the school is wrongful.
34. Applying the dicta and ratio of the judgment of the Supreme Court
in Raj Kumar (supra) and following the judgments by the Co-ordinate
Benches of this Court, the inescapable conclusion is that a dismissal order
passed in violation of provision of second proviso to Rule 105(1) of DSE
Rules, framed with the avowed purpose and objective of safeguarding the
rights of probationers, cannot be upheld, as the salutary purpose behind
the said safeguarding provision, can hardly be underscored. The
impugned dismissal order dated 14.02.1995, having been passed,
admittedly, without 'prior approval' of the Director of Education, is
therefore untenable in law and cannot be sustained.
35. The second and the only other ground, on which the Tribunal had
set aside the dismissal order was that the said order, was predicated on an
alleged act of cheating and yet the penalty of dismissal was imposed
without holding an inquiry. In order to examine the legality of the order
of the Tribunal, from this perspective, it is pertinent to examine the order
of dismissal dated 14.02.1995, which is as follows:-
"MEMORANDUM
Sh. Kritendra Sharma was appointed as a U.D.C. in the pay
scale of Rs.1,260-1,040 vide this office letter No.AGSSS/M/93/34
to 38 dated 31.07.1995. His documents/ certificate were referred
to the concerned college/ university for verification. Shri
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
Kritendra Sharma had claimed to be B.Sc. (Graduate) at the time
of his appointment. The certificates/ documents have been found
fake/forged by the concerned college/University. Shri Kritendra
Sharma was also issued a show cause notice dated 04.02.1995 in
this regard but no reply has been received from him so far. The
show cause notice was delivered at his last available address.
Shri Kritendra Sharma is also absconding from the school after
locking school almirah which was in his custody.
Since Sh. Kritendra Sharma has cheated the school authorities as
well as Government, his service are hereby dismissed under
prevailing rules of Delhi School Education Act, 1973 with
immediate effect.
He is directed to hand over the charge of almirah within three
days from the date of issue of this letter."
36. A bare perusal of the aforementioned order shows that Respondent
No.2 was dismissed on account of an alleged act of cheating the School
Authorities as well as the Government, by invoking prevalent Rules
under the DSE Act. It is evidently not a case of termination of service of
a probationer on account of unsatisfactory performance. The order, in my
view, is indeed a stigmatic order, as held by the Tribunal and rightly
contended by learned counsel appearing on behalf of Respondent No.2.
The law on termination of services of a probationer, other than on
account of unsatisfactory performance, is no longer res integra. In Dipti
Prakash Banerjee (supra), the issue before the Supreme Court was an
order of termination of a probationer and one of the questions under
consideration was, under what circumstances an order of termination of a
probationer can be said to be punitive, i.e., founded on misconduct. The
Supreme Court also delved into when an order can be termed as stigmatic
and held that where the order is based on a misconduct and is 'founded'
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
on allegations, it cannot be termed as an order of termination simpliciter
and a stigmatic order passed without conducting an inquiry, will be
vitiated. Relevant para of the judgment is as under:-
"21. If findings were arrived at in an enquiry as to
misconduct, behind the back of the officer or without a regular
departmental enquiry, the simple order of termination is to be
treated as "founded" on the allegations and will be bad. But if
the enquiry was not held, no findings were arrived at and the
employer was not inclined to conduct an enquiry but, at the same
time, he did not want to continue the employee against whom
there were complaints, it would only be a case of motive and the
order would not be bad. Similar is the position if the employer
did not want to enquire into the truth of the allegations because
of delay in regular departmental proceedings or he was doubtful
about securing adequate evidence. In such a circumstance, the
allegations would be a motive and not the foundation and the
simple order of termination would be valid."
37. The said principle was reaffirmed and reiterated by the Supreme
Court in Chander Prakash Sahi (supra), and it was held that termination
motivated by an employee's general unsuitability is valid, however, if
there are allegations of serious misconduct then the action to terminate
has to be taken as founded on misconduct and treated as punitive. It was
observed that in regard to termination of a probationer, it has to be seen
whether the inquiry is for the purpose of determining his 'suitability' for
retention in service/confirmation or finding out truth in the 'allegations'
against him. While the former would be a case of termination simplicitor,
latter would be punitive termination founded on misconduct entailing an
inquiry before terminating the services of a probationer. At this stage, it
would be useful to allude to an earlier judgment of the Supreme Court in
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
Anoop Jaiswal v. Govt. of India, (1984) 2 SCC 369, relevant paras of
which are as follow:-
"12. It is, therefore, now well settled that where the form of
the order is merely a camouflage for an order of dismissal for
misconduct it is always open to the court before which the order
is challenged to go behind the form and ascertain the true
character of the order. If the court holds that the order though in
the form is merely a determination of employment is in reality a
cloak for an order of punishment, the court would not be
debarred, merely because of the form of the order, in giving
effect to the rights conferred by law upon the employee.
13. In the instant case, the period of probation had not yet
been over. The impugned order of discharge was passed in the
middle of the probationary period. An explanation was called for
from the appellant regarding the alleged act of indiscipline,
namely, arriving late at the gymnasium and acting as one of the
ringleaders on the occasion and his explanation was obtained.
Similar explanations were called for from other probationers and
enquiries were made behind the back of the appellant. Only the
case of the appellant was dealt with severely in the end. The
cases of other probationers who were also considered to be
ringleaders were not seriously taken note of. Even though the
order of discharge may be non-committal, it cannot stand alone.
Though the noting in the file of the Government may be
irrelevant, the cause for the order cannot be ignored. The
recommendation of the Director which is the basis or foundation
for the order should be read along with the order for the purpose
of determining its true character. If on reading the two together
the Court reaches the conclusion that the alleged act of
misconduct was the cause of the order and that but for that
incident it would not have been passed then it is inevitable that
the order of discharge should fall to the ground as the appellant
has not been afforded a reasonable opportunity to defend himself
as provided in Article 311(2) of the Constitution.
XXX XXX XXX
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
15. A narration of the facts of the case leaves no doubt that
the alleged act of misconduct on June 22, 1981 was the real
foundation for the action taken against the appellant and that the
other instances stated in the course of the counter-affidavit are
mere allegations which are put forward only for purposes of
strengthening the defence which is otherwise very weak. The case
is one which attracted Article 311(2) of the Constitution as the
impugned order amounts to a termination of service by way of
punishment and an enquiry should have been held in accordance
with the said constitutional provision. That admittedly having not
been done, the impugned order is liable to be struck down. We
accordingly set aside the judgment of the High Court and the
impugned order dated November 9, 1981 discharging the
appellant from service. The appellant should now be reinstated
in service with the same rank and seniority he was entitled to
before the impugned order was passed as if it had not been
passed at all. He is also entitled to all consequential benefits
including the appropriate year of allotment and the arrears of
salary and allowances upto the date of his reinstatement. The
appeal is accordingly allowed."
38. In the present case, dismissal order is based on the alleged act of
cheating, i.e., the order is founded on misconduct and applying the
time-honoured principles enunciated by the Supreme Court in the
aforementioned judgments, the inevitable conclusion is that the dismissal
order is punitive and stigmatic and therefore, the School was bound to
conduct an inquiry, giving opportunity to Respondent No.2 to plead his
defence and lead evidence to establish his claim of being innocent. The
mandate of holding an inquiry can be examined from another prism. If
the School would have taken recourse to holding an inquiry, it would
have necessitated leading evidence, both oral and documentary and
proving that the documents alleged to be given by Respondent No.2 were
actually given by him and that they were forged. By adopting a short-cut
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
and bypassing the said procedure, the School authorities have succeeded
in dismissing an employee by simply passing an order, without having to
discharge the onerous burden of proving the allegations, which cannot be
permitted.
39. The DSE Act and DSE Rules are a self-contained Code and
provide a comprehensive mechanism for holding an inquiry against the
delinquent employee. It has been held by the Co-ordinate Bench of this
Court in the cases of Army Public School (supra) and Hamdard Public
School (supra) that an employee of a school has a statutory protection
and his services cannot be terminated except by following due process of
law. In service jurisprudence, it is well settled that no employee can be
terminated on allegations of misconduct, without giving him or her, an
opportunity of hearing and proving his innocence. Audi alteram partem is
a well-known Latin phrase, which means 'listen to the other side'. This is
based on a fundamental principle that no person should be judged or
condemned without a fair hearing in which each party is given the
opportunity to respond. Three main requirements of principles of natural
justice must be met in every case, viz. adequate notice, fair hearing and
no bias. It would not be an exaggeration to state that the principle of
audi alteram partem is one of the twin pillars of natural justice, primarily
aimed at giving an individual the opportunity to present his point of view,
before he is confronted with an order of penalty, leading to loss of
livelihood or property etc. It needs no reiteration that a decision becomes
void if it violates the right of hearing. In the field of administrative action,
the omnipotence inherent in the said doctrine is that no one should be
condemned unheard and is applied to ensure fair play and justice to the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
affected party. In the present case, the doctrine has been completely
ignored and despite serious allegations of cheating, no inquiry was held,
before imposing the extreme penalty of dismissal, depriving Respondent
No.2 of his right to livelihood.
40. In view of the above, the argument of the School that memos and
show-cause notices were issued to Respondent No.2, to which there was
no response and thus, holding an inquiry would have been a futile
exercise, though ingenious, cannot be accepted. It has been repeatedly
held in several judgments that rule of law does not permit any person to
be proceeded against, save and except in a manner known to law and
procedure prescribed in law. DSE Act and Rules prescribe a mechanism
and procedure to hold an inquiry and memos and show cause notice can
be no substitute. Where law prescribes a manner in which a thing has to
be done, that thing must be done in that manner or not done at all, is an
age old aphorism, deeply engrained in legal lore. Insofar as the judgments
in R. Vishwanatha Pillai (supra), Vice Chairman, Kendriya Vidyalaya
Sangathan and Another (supra) and Regional Manager, Central Bank
of India (supra) relied upon by the School are concerned, the same are
distinguishable on facts, as in those cases, the caste scrutiny committee
had examined the caste certificates in question, whereas in the present
case, there was no examination/scrutiny of the documents allegedly
forged and furnished by Respondent No.2, by a competent or expert
body. Stand of Respondent No.2, that he had furnished documents
different from the ones relied upon by the School was also not examined.
In Mohd. Sartaj and Anr. (supra), the concerned employees did not have
the requisite educational or other qualifications, which is not the case here
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
and in Guardsman Nanar Ram (supra), Army Act, 1950 itself provides
for 'administrative dismissal', i.e., without holding a departmental inquiry
and thus, these judgments will not inure to the advantage of the School.
41. There is yet another dimension to the present case, which cannot be
overlooked. While as aforesaid, holding an inquiry into the allegations
leveled is a facet of the doctrine of audi alteram partem and is a sine qua
non before imposing a penalty, more so, in the Scheme of the DSE Act
and DSE Rules, in the present context, it assumes greater significance, for
the reasons that follow hereinafter. Respondent No.2 has taken a
categorical stand in paras 6 and 7 of the counter affidavit, filed in
response to the writ petition, that the plea of the School that Respondent
No.2 sought employment in the School in 1993 on the basis of certain
documents, which were found to be fake and forged in 1995, is
completely false, inasmuch as the mark sheets and the certificates and the
University degree, relied upon by the School were never submitted by
Respondent No.2 and were fabricated by the School Authorities. It is
further averred that the said documents were mischievously fabricated
and forged, at the behest of Mr. Chandolia and Mr. Hoshiyar Singh, to
falsely implicate Respondent No.2 and settle scores with him.
Respondent No.2's marriage with Mr. Chandolia's niece, triggered the
dismissal order and the FIR. Respondent No.2 has also averred that he
had submitted originals of the mark sheets and certificates of the school
and degree of the University, where he had studied. Relevant paras of the
counter affidavit are as follow:-
"6. That deponent has joined the service of the petitioner
school on 03.08.1993 in the capacity of Upper Divn. Clerk in the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
pay scale of Rs. 1200-2040. A copy of the appointment letter
dated 31.7.93 as issued and marked as Annexure R-1. The entire
case alleged against the respondent by the School Authorities is
based on certain documents which according to the petitioner
school were submitted by the respondent at the time of seeking
employment in the school in 1993 and the same were found to be
fake and forged at later stage i.e. in 1995. The above plea of the
petitioner school is false to their own knowledge inasmuch as the
mark-sheet and certificates which have been relied upon by the
petitioner School were never submitted by the respondent to the
school nor such documents were ever received by the respondent
from any of the school or University, As a matter of fact, these
alleged fake mark sheets were mischievously arranged and
procured by the then Chairman and Manager of the School
namely Mr. Chandolia and Mr. Hoshiar Singh to make a false
case against the respondent because of his marriage with a girl
who belonged to the community of the aforesaid school officials
and the respondent's marriage was strongly opposed by the
above school officials and family of the respondent's wife.
Marriage of the respondent took place on 15.1.95. Not only this,
the above named School Officials by filing false complaint on the
-basis of such illegal documents got the respondent arrested in
February, 1995 and during his detention in police custody the
respondent was forced by the police at the instance of the above
named Chairman and the Manager of school to sign certain
papers including a covering letter purportedly written on
07.05.2003 giving the impression as if the respondent had
submitted the aforesaid alleged fake and forged documents to the
school authorities along with the said letter. The respondent
reserves his right to point out self-contradiction, inconsistencies
and deficiency in the documents relied upon by the petitioner
school to support their illegal and mischievous decision.
7. That the respondent had submitted the original mark
sheets and certificates of his school and college education. These
were submitted to the appellant School authorities at the time of
joining the post of UDC after receiving the appointment letter
dated 03.08.1993. The respondent, after filing of the false
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
complaint by the above named school officials, which led to
criminal case against the respondent, procured duplicate copies
of the mark sheets from the Institutions where the respondent had
actually studied. Duplicates of all such valid mark sheets
originals of which were already submitted with the school
authorities in August, 1993 are being filed herewith as Annexure
R-2 (Colly). Original of these documents were submitted by the
respondent to the school authorities before joining the post of
UDC, whereas the documents relied upon by the petitioner
school while dismissing respondent are totally different
documents some of which even relate to a totally different
Institution altogether where the respondent never studied. In this
view of the matter, it is submitted that the above named
Chairman and Manager of the petitioner school who indulged in
illegal acts and unfair practice by falsely implicating the
respondent who did not obey the dictates of the then Chairman
and Manager of the school and went ahead with the marriage
with a girl belonging to their community. The petitioner fell in
love with a girl named Miss. Manjula who happen to be niece of
one Mr. R.N. Chandolia, Chairman of the Managing Committee
of the petitioner school. It was a case of inter-caste marriage. He
married the said girl against the wishes of her parents.
Thereafter the deponent was implicated in a false case by the
Petitioner School to teach him a lesson. The case bearing FIR
No. 47/95 is still, pending in the court of Metropolitan
Magistrate Delhi. It is the case of the deponent where he had
alongwith his application form for the post of UDC furnished the
educational qualification certificate which are genuine ones.
Respondent also underwent judicial custody for a few days from
17.2.1995 and later on released on bail. After getting released on
bail he made an attempt to join the School. He was not allowed
to enter the premises. He submitted a number of representation.
He was not allowed to enter the school. His salary was not
released. No representation of his was replied to. First such
representation was allegedly made on 20.04.1995. The last
representation is dated 17.7.2003. Finally, his wife Smt. Manjula
Sharma sought the information from the Respondent School
under Right to Information Act. She was informed that her
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
husband Shri Kritendra Sharma was dismissed from service for
furnishing the certificate of B.Sc. degree from Meerut University
which was later on found fake. Decision to dismiss him from
service was taken by the school Management Committee in its
meeting held on 14.02.1995. The Appellant filed the appeal on
the grounds inter alia that the orders of dismissal as conveyed to
his wife vide orders dated 22.08.2003 are illegal. This has not
been issued under Rule 120 of Delhi School Education Act and
Rules 1973. He was never given an opportunity to explain his
position. Principles of natural justice were not followed. Director
of Education never accorded his prior approval to the alleged
dismissal. The ex-post facto approval referred to in the impugned
orders is also illegal for the reason that the dismissal orders
could not be issued befroe the receipt of the approval from the
Directorate of Education. A copy of the appeal filed by the
deponent is annexed herewith and marked as ANNEXURE R-3.
It is an admitted case of the petitioners have not taken approval
from the respondent No.l. Therefore, during the pendency of the
appeal, the respondents tried to take the approval which has
been challenged by the deponent before this Hon'ble Court vide
Writ Petition (Civil) No.3083/2005. This Hon'ble Court had set
aside the said approval. However, upon an appeal by the
petitioner, the Division Bench of this Hon'ble Court directed that
the appeal is to be decided by the Delhi Education Tribunal. It is
submitted that the respondent was never served with the order
dated 14.02.95 either through Regd. Post or otherwise. The
respondent came to know about the decision of dismissal of the
Managing Committee only through Directorate of Education
order dated 22.08.2003 passed by the Deputy Director of
Education on the application of the respondent seeking
information under the Right to Information Act regarding the
approval of the competent authority. This application was
submitted by the respondent himself which was followed up by
his wife by visiting the office of Directorate of Education.
Inadvertently in the appeal it was stated that the said application
was submitted by the wife of the respondent. In this regard, a
copy of the application and fee receipt deposited by the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
respondent are annexed herewith and marked as Annexure R-4
(Colly)."
42. School filed a detailed rejoinder to the counter affidavit, including
response to paras 6 and 7. A perusal of the rejoinder to the said paras
shows that the School has denied the allegations relating to Chairman of
the School and also stated that enough opportunity was given to
Respondent No.2 to present his case, besides referring to the pending
criminal case. However, there is no denial to the categorical stand of
Respondent No.2 that the documents relied upon by the School were
different from the ones furnished by him. Absence of response to this
averment, in my view, is a pointer to the fact that stand of Respondent
No.2 is correct. In fact, along with the counter affidavit, Respondent No.2
has also placed on record, duplicates of the mark sheets and certificates of
the school and the degree of the college, where he studied, to substantiate
his stand and there is nothing in the Rejoinder, to clearly controvert this
stand or even create a doubt on the authenticity of these documents.
43. Having perused the judgment of the Trial Court in the criminal
case, in my view, the stand of Respondent No.2, is further fortified. At
the time of filing the writ petition, the trial was pending, however, during
the pendency, Respondent No.2 filed written submissions, whereby it was
brought to the notice of the Court that Respondent No.2 was acquitted by
the Trial Court vide order dated 19.09.2017. Copy of the order has also
been placed on record. This position was not disputed on behalf of the
School.
44. The judgment rendered by the Trial Court needs a mention for
two-fold reasons. Firstly, the allegations in the dismissal order and the
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
FIR are the same, i.e., cheating. Secondly, before the Criminal Court, the
Prosecution witnesses included Honorary Manager of the School as
PW-1, Chairman of the School Mr. Chandolia as PW-2 and Vice
Principal of the School as PW-3 and each of them deposed and presented
the stand of the School and were extensively cross-examined. Despite the
version and deposition of these witnesses, learned Trial Court acquitted
Respondent No.2 from the alleged offences under Sections 420/468/471
IPC, for cheating, forgery for the purpose of cheating and using as
genuine, a forged document for the purpose of obtaining appointment in
the School. The Trial Court held that prosecution had failed to establish
its case beyond reasonable doubt. It may be highlighted that Respondent
No.2 has been consistent in his stand and as pleaded in this Court, it was
also the case of Respondent No.2, in his defence before the Trial Court
that he was falsely implicated, due to animosity. Defence of fabrication of
documents by the School and his having furnished genuine documents in
support of educational qualifications was also taken. Learned Trial Court
deliberated upon the extensive evidence led before it and concluded that
possibility of false implication cannot be ruled out. Therefore, had the
School held an inquiry, Respondent would have the opportunity to lead
evidence and prove his stand.
45. For all the aforesaid reasons, this Court upholds the view of the
Tribunal that the dismissal order is untenable in law and cannot be
sustained.
46. Amongst the myriad nuances of this case, the next issue that arises
for consideration is the relief that can be granted to Respondent No.2,
once this Court has upheld the view of the Tribunal that the dismissal was
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
wrongful in the eyes of law. Tribunal has granted the relief of
reinstatement to Respondent No.2 and learned counsel for Respondent
No.2 had strenuously urged that this part of the order be also upheld.
Ordinarily, where termination of an employee is held to be wrongful and
illegal, relief of reinstatement is granted by the Courts, with back-wages.
However, it has been held by the Supreme Court in several judgments
that reinstatement without back-wages or with full or part back-wages, is
not an absolute rule of thumb and each case would have to be viewed on
its own facts and circumstances. In Madhya Pradesh Administration vs.
Tribhuban, (2007) 9 SCC 748, the Supreme Court held that reinstatement
may not always be an automatic consequence of the Court declaring the
termination to be illegal. In Mehboob Deepak vs. Nagar Panchayat,
Gajraula, (2008) 1 SCC 575, the same principle was reiterated by the
Supreme Court and certain factors were carved out for determining the
relief in such cases, which are as follow:-
"7. The Factors which are relevant for determining the same,
inter alia, are:
(i) whether in making the appointment, the statutory rules, if
any, had been complied with;
(ii) the period he had worked;
(iii) whether there existed any vacancy; and
(iv) whether he obtained some other employment on the date
of termination or passing of the award."
47. From the aforesaid judgments, it is crystal clear that while an
employee should not be penalised for the illegal actions of an employer or
even for the delay in the adjudicatory mechanism, however, the Courts
must take into account certain factors, both mitigating and aggravating,
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
such as length of service, existence of vacancy and nature of
employment, etc. while determining the relief of reinstatement. Applying
the above principles and the exposition of law on the aspect of relief to
Respondent No.2, looking at the length of period for which he had
worked in the School, passage of over 26 years from the date of dismissal
and that he was a probationer, in my considered view, reinstatement will
not be an appropriate relief and to this extent, the order of the Tribunal
cannot be upheld.
48. At the same time, this Court cannot shut its eyes to the fact that
Respondent No.2 has been fighting for his rights for a long period of
nearly three decades and that too, not by choice or as a luxury, but on
account of the action of the School Authorities in dismissing him, without
inquiry and additionally embroiling him in a criminal case. The
chronology of dates and events shows that owing to the order of
dismissal, which was approved by the Director of Education in 2003,
Respondent No.2 filed an appeal before the Tribunal in the year 2003,
which was dismissed as barred by time on 27.02.2009. The order was
challenged before this Court in W.P.(C) 12023/2009 and the Court
remanded the matter back to the Tribunal to hear the appeal, on merits.
The Tribunal allowed the appeal on 13.05.2011, which was challenged by
the School, by way of the present writ petition. Respondent No.2 has
been contesting the writ petition since 2011. Additionally, Respondent
No.2 was constrained to defend the criminal case, pursuant to an FIR
registered at the behest of the School Authorities, in the year 1995. The
Trial Court delivered its judgment on 19.09.2017. It is evident that
Respondent No.2 has not only suffered the mental agony and trauma of
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
dismissal from service for over 26 years, with the attending stigma, but
has also undergone a phase of prolonged litigation, both civil and
criminal. Relevant would it be to note that the civil litigation, impugning
the dismissal order, resulted in an order by the Tribunal, in favour of
Respondent No.2, which has been upheld by this Court, in the earlier part
of this judgment. Insofar as the criminal case is concerned, as
aforementioned, the Trial Court has acquitted Respondent No.2 and it
bears repetition to state that the Court has held that the possibility of
fabrication by the School Authorities cannot be ruled out. Therefore, the
stand of Respondent No.2 that he was innocent and not guilty of forgery,
cheating or fabrication, stands vindicated.
49. Ex-consequenti, compensation of Rs.5 Lakhs is granted in favour
of Respondent No.2, in lieu of reinstatement and back-wages and the
order of the Tribunal is accordingly modified. This Court is of the view
that Respondent No.2 has been treated unfairly and has suffered mental
agony and trauma, besides the social stigma attached to a dismissal order
and incarceration pursuant to the FIR. He was forced into litigation by the
wrongful acts of the School and contested the cases, both civil and
criminal, for several years, incurring expenses. It would be a travesty of
justice, if this Court, in an equity jurisdiction, does not compensate
Respondent No.2, as the relief of compensation in lieu of reinstatement
and back-wages is wholly inadequate, in the facts of the present case.
Accordingly, it is directed that Petitioner shall pay a sum of Rs.10 Lakhs
towards compensation to Respondent No.2, on account of mental agony
and trauma suffered by him due to the penalty of dismissal, stigma
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
attached to incarceration and prolonged litigation for over 26 years, both
civil and criminal.
50. The compensation awarded by this Court, as aforementioned, shall
be paid by the Petitioner to Respondent No.2, within a period of four
weeks from today. In case, the amounts are not released by the Petitioner,
within the time stipulated by the Court, the amounts shall carry simple
interest at the rate of 8% p.a. till the actual payment.
51. Looking at the mental and physical suffering undergone by
Respondent No.2 on account of the prolonged litigation, finding of the
learned Trial Court in the criminal case, especially the possibility of false
implication, it would be unfair to permit the Petitioner to hold an inquiry
at this stage and subject Respondent No.2 to another protracted litigation.
In this view of the matter, the direction of the Tribunal granting liberty to
the School to proceed against Respondent No. 2, is set aside.
52. Writ petition is accordingly dismissed, modifying the impugned
order of the Tribunal passed on 13.05.2011, as above. All pending
applications are accordingly dismissed.
JYOTI SINGH, J.
th
JANUARY 24 , 2022
nn/yg/st
Signature Not Verified
Digitally Signed
By:KAMAL KUMAR
Signing Date:25.01.2022
18:57:31
