Delhi District Court
Resident Of J-7/23 vs Sister Nivedita School on 27 August, 2016
In the Court of Ms. Sonam Singh, Civil Judge-05, Central District, Tis Hazari
Courts, Delhi.
CS No. 593672/16
Unique ID No.02401C0159902003
Mrs. Surinder Kaur Walia
Wife of Shri S. S. Walia
Resident of J-7/23, 2nd Floor,
Rajouri Garden, New Delhi ... Plaintiff
Versus
1. Sister Nivedita School
Managing Committee
Through its Manager
B-II Hostel, Minto Road Complex,
New Delhi-110002
2. Bengal Education and Cultural Association.
Through the Secretary
B-II Hostel, Minto Road Complex,
New Delhi-110002
3. Directorate of Education
Through Director,
Govt. of N.C.T. of Delhi,
Old Secretariat, Delhi. ...Defendants
Date of Institution: 02.12.2003
Date of final Decision: 27.08.2016
Judgement
1. The Plaintiff has filed the present suit for damages as well as recovery of loss of
salary and gratuity along with pendente lite and future interest @ 9% per annum from
Defendant no. 1 and 2. Further, Plaintiff has prayed for declaration to be issued to
Defendant no. 3 not to allow Defendant no. 1 and 2 to run the school against Delhi School
Education Act and Rules 1973 (in short 'DSE Act and Rules').
Plaintiffs' case as per the plaint:
2. Plaintiff has made the following averments in her plaint:
a) Plaintiff is the Head Mistress of Defendant no. 1 school which was established in
the year 1954 and managed by Defendant no. 2 association.
b) She joined the Defendant no.1 school on 11.11.1976. She was promoted as the
Head Mistress in November 1981. The date of birth of the Plaintiff is 08.12.1945 and thus,
as per Rule 110 of DSE Rules, date of retirement of the Plaintiff is 31.12.2005 i.e. at the
age of 60 years.
c) Since the school has been granted recognition, it is the duty of Defendant no. 3,
Director of Education to monitor that the school is being run as per DSE Act and Rules and
in case, it fails to, Defendant no. 3 has the power to take punitive action against the
school. Since, Defendant no. 1 was a recognized private school, the same was to be
function as per the provisions of DSE Act and Rules.
d) In April 2002, the term of the Managing Committee expired and a new Managing
Committee came into existence. As per the scheme of management, as provided in the
DSE Act and Rules, the Head of the school along with two teachers, two members
nominated by Defendant no.3 and a representative of the Parents in the managing
Committee are to be inducted but the same was not done. Further, the existing Managing
Committee has been constituted without holding any election and in violation of the Act
and Rules. Thus, the Managing Committee which has been formed is illegally constituted.
Moreover, the Managing Committee which is running Sister Nivedita School, as per their
whims and fancies and there is total mismanagement in the school administration and in
the running of the school.
e) The Plaintiff being the Head of the school and being responsible for the day to day
administration of the school, requested Defendant no. 1 to clarify about the manner in
which the Managing Committee was constituted but Defendant no. 1 did not pay any heed
to the request of the Plaintiff.
f) That the Managing Committee illegally issued notice dated 28.03.2003 informing
that the Managing Committee has decided that that the retirement age of the teachers/staff
is reduced to 58 years. The Managing Committee being illegally constituted, had no power
to issue such a notice. Further, since the school is a recognized private school, the
retirement age of the teachers is 60 years, as per Section 110 of DSE Rules and the same
cannot be reduced to 58 years by the Managing Committee.
g) Defendant no. 1 and 2 had circulated the standing orders of the Defendant's
school, signed on 30.06.2002, which were issued to all teachers and staff on 01.07.2002,
wherein, at order no. 11, the retirement age is stated. The said clause reads as under:
" 11. Retirement age:
11.1: The age of retirement of the employee shall years."
The column relating to age of retirement was left blank, which establishes the
malafide intention of Defendant no. 1 and 2.
h) That since the date of birth of Plaintiff is 08.12.1945 and the Plaintiff was due to
retire on 31.12.2005, on attaining the age of 60 years but Defendants no. 1 and 2
arbitrarily made the Plaintiff retire on 31.12.2003, thereby depriving the Plaintiff of full two
years' salary, employer's contribution of provident fund and they have not even paid the
salary for the month of December 2003. Their act being malafide also makes them liable to
pay compensation to the Plaintiff.
i) Plaintiff had received a communication dated 07.08.2002 addressed to Education
Officer of the Defendant no. 3, a copy of which was marked to the Plaintiff to the effect that
the Plaintiff is due to retire on 31.12.2003.
j) The Defendant no. 1 and 2 harassed the Plaintiff and did not permit her to work as
Head Mistress till 31.12.2005 and during the pendency of the suit, the Plaintiff acquired the
age of retirement dis-entitling her to resume her duty as Head Mistress. The act of
Defendant no. 1 and 2 was malafide as they wanted to get rid of the Plaintiff.
k) In view of the aforesaid circumstances, the Plaintiff along with other teachers issued
a legal notice dated 30.06.2003 to the members and the Managing Committee of the
School challenging the illegal act of reducing the age of retirement of the Plaintiff and the
other teachers of the school from 60 to 58 years, in violation of the Rule 110 of the DSE
Rules. The Plaintiff also sent a legal notice dated 18.08.2003 to the Director of Education,
Defendant no. 3. The Plaintiff came to know that the Director of Education Defendant no. 3
had issued a show cause notice dated 29.08.2003 to the Defendant no. 1 and 2, asking
Defendant no. 1 and 2 as to why action should not be taken against them for forcibly
retiring the teachers of the staff at the age of 58 years instead of 60 years.
l) That it came to the knowledge of the Plaintiff that on the failure of the management
of the Defendant no. 1 and 2 to furnish a proper reply to the aforesaid show cause, the
Director of Education, in pursuance of the said show cause notice derecognized Sister
Nivedita School.
m) The Plaintiff is entitled for damages and other amounts which are given below:
a) Salary for the month of December, 2003 Rs. 6,617.00
b) Loss of salary for two years ( January 2004
to December 2005) @ Rs. 6,617/- per month
i.e. Rs. 5,829/- salary and Rs. 788/- employer's
contribution towards PF) Rs. 1,58,808.00
c) Interest component on salary at monthly
basis of its accrual @ 9% pa (bank Rate) Rs. 15,000.00
d) Payment of gratuity as payable under
Delhi School Education Act. Rs. 93,264.00
e) Compensation on account of mental
torture, tension and harassment Rs. 23,311.00
-----------------------
Rs. 2,97,000.00
-----------------------
Defendant no. 1 and 2's case as per their written statement:
3. Defendant no. 1 and 2 have made the following averments in their written statement:
a) The suit is not maintainable being barred by Section 14 and Section 41 of Specific Relief Act, 1963 (in short 'SRA')
b) The suit of the Plaintiff is liable to be dismissed under Section 9 of Code of Civil Procedure, 1908 (in short 'CPC'), since it has been filed under DSE Act and thus, Plaintiff is required to approach Delhi School Tribunal.
c) Rule 10 of DSE Act and Rules do not apply on the Defendants since, the Defendants are an "unaided minority school" as per Section 2 (O) and (X) of DSE Act.
Since, the school is an unaided linguistic minority school, it is protected by virtue of Article 30 of the Constitution of India and has independence to manage its own affairs. Both the Defendants are working and propagating the school of Bengali Language and Culture.
d) The Defendant's school vide order dated 17.10.2003 has been de-recognized by the Directorate of Education and thus, DSE Act and Rules is not applicable on the Defendant school.
e) That the school stood closed w.e.f. 17.10.2003 and is still closed till date and none of the employees worked thereafter. Hence, as per "principle of no work no pay", Plaintiff is not entitled for any relief, damages, salary etc.
f) Suit of the Plaintiff is not maintainable as no notice to Defendant no. 3 u/s 80 of the Code of Civil Procedure,1908 (in short 'CPC') was served.
g) Plaintiff has not disclosed the circumstances, under which she has suffered the alleged damages of Rs. 2,97,000/-.
h) The claim for gratuity by the Plaintiff is not maintainable before the Civil Court, as a separate forum has been provided under Payment of Gratuity Act, 1972 ( in short 'PGA')
i) Plaintiff had tried to usurp the management of Defendant no. 1 and 2 by unfair and illegal means and only by judicial orders being passed by various courts, she was compelled to hand over the management and administration of the school to the present management. The school was derecognized on the false complaints from the Plaintiff and as a result of her collusion with Director of Education.
j) Rule 110 of DSE Act and Rules has no application on the Defendants and thus, teachers as well as Plaintiff can be made to retire at the age of 58 years or even a lesser age.
k) The column pertaining to retirement age was yet to be decided and therefore, subsequently the Defendants took a decision and fixed the age of retirement. Hence, there is no reduction as such and only age of retirement was fixed.
Defendant no. 3's case as per the written statement:
4. As per the written statement, Defendant no. 3 averred that there is no cause of action in favour of the Plaintiff. Further, it averred that the suit is not maintainable on account of misjoinder of parties. Moreover, it averred that Director of Education issued show cause notice to Defendant no. 1 and 2, on the basis of letter received from the Plaintiff and thereafter, on 17.10.2003, recognition of Defendant no. 1 was taken away.
Replication
5. Replication was filed by the Plaintiff to the written statements filed by the Defendants. Plaintiff denied the averments made by the Defendants in their written statements and reiterated its stand taken in the plaint.
Issues:
6. Issues were framed on 01.11.10. The following issues were framed as given below:
1) Whether the Plaintiff is entitled to money decree for sum of Rs. 2,97,000/- along with pendente lite and future interest as prayed? OPP
2) Whether the Plaintiff is entitled to relief of declaration as prayed for? OPP
3) Whether the Plaintiff is entitled to directions to be issued to Defendant no. 3 to ensure that gratuity and employer contribution of Provident Fund is paid by Defendant no. 1 and 2 to the Plaintiff? OPP
4) Whether the suit of the Plaintiff is barred as per provision of Specific Relief Act? OPD
5) Whether the suit of the Plaintiff is barred under Section 9 CPC? OPD
6) Whether Delhi Education Act and Rules made therein do not apply to Defendants? OPD
7) Whether the suit is barred under Section 80 CPC? OPD
8) Whether there is no cause of action to file present case? OPD
9) Whether suit is bad (sic:not maintainable) for misjoinder of parties? OPD
10) Relief.
Evidence on behalf of Plaintiffs:
7. PW-1 Smt. Surinder Kumar Walia, the Plaintiff herself stepped into the witness box and was examined-in-chief by way of affidavit Ex. PW1/A and relied on the following documents:
Sr. No Exhibit/Mark Nature of Documents
1. Ex. PW 1/1 Notice dated 28.03.2003
2. Ex. PW 1/2 Extract of the Rule 110 of the Delhi School
Education Rules, 1973
3. Ex. PW 1/3 Copy of Standing Orders
4. Ex. PW 1/4 Copy of the letter dated 07.08.2003
restructuring of administrative set up received
by deponent
5. Ex. PW-1/5 Copy of legal notice dated 30.06.2003
6. Ex. PW 1/5A Reply to the legal notice was received by the
Deponent.
7. Ex. PW-1/5B Deponents addressed a rejoinder to the same
8. Ex. PW 1/6 A copy of the legal notice dated 18.08.2003 to
the Director of Education
9. Ex. PW 1/7 Show cause notice No. F.6033-36 dated
29.08.2003 to Defendant no.1 and 2 by
Defendant no.3
10. Ex. PW 1/8 A copy of the public notice dated 01.11.2003
published in the newspaper from which the
Deponents got the information regarding the
derecognition of the school.
11. Ex. PX Amended plaint
PW-1, Smt. Surender Kaur Walia, was duly cross examined by Defence Counsel.
Thereafter, Plaintiff's evidence was closed vide separate statement.
Evidence on behalf of Defendants:
8. The Defendants in support of their case brought Sh. Debabrata Ganguly, Joint Secretary of Defendant no.1 and 2 as a witness, who filed affidavit in evidence which is Ex. DW-1/A and placed on record the following documents:
Sr. No. Exhibits Nature of Documents
1. Ex. DW-1/1 Brochure of the Defendant no. 2 for the year
2013-14
2. Ex. DW-1/2 True copy of minutes of General Body
Meeting dated 25.05.2008 of the Defendant
DW-1, Sh. Debarata Ganguly, was duly cross examined by Plaintiff's counsel. Thereafter, Defendant's evidence was closed vide separate statement.
9. I have heard the Ld. Counsel for both the parties and perused the case file carefully.
10. My issue wise findings are as follows:
Issue No. 9 Whether the suit is bad for (sic: not maintainable on account of) misjoinder of parties? OPD
11. For the sake of convenience, issue no. 9 is being taken up first. The onus to prove the aforesaid issue was on the Defendant. However, except a bald averment, the Defendants did not bring on record any evidence to show as to how the suit was not maintainable on account of misjoinder of parties. It is not pleaded by any Defendant as to which party had been wrongly impleaded. Hence, the Defendants have failed to prove the present issue.
Thus, issue no. 9 is decided in favour of the Plaintiff and against the Defendants.
Issue No. 7 Whether the suit is barred under Section 80 CPC? OPD
12. The onus to prove the present suit was also on the Defendant. As per the submissions of the Defendants, the suit is not maintainable as the Plaintiff did not serve the notice under Section 80 CPC to Defendant no. 3. The purpose of a notice under Section 80 is to afford the Government an opportunity to examine the nature of the claim and if it thinks fit to settle the claim, in order to avoid any unnecessary litigation. It is observed by the court that the Plaintiff had issued a notice to Defendant no. 3 dated 18.08.2003, mentioning all the facts of the present case which can be regarded as a notice under Section 80 CPC. Further, the present suit was instituted on 02.12.2003 and the legal notice Ex. PW-1/6 was issued to Defendant no. 3 on 18.08.2003, which is more than two months, prior to the filing of the present suit, as prescribed under Section 80 CPC. Hence, the requirement of under Section 80 CPC stood fulfilled by the Plaintiff and thus, the suit cannot be said to be not maintainable on account of non-service of notice under Section 80 CPC.
Thus, this issue is also decided in favour of Plaintiff and against the Defendants.
Issue no. 5 Whether the suit of the Plaintiff is barred under Section 9 CPC? OPD
13. The onus of this issue was also on the Defendants. Section 9 of CPC provides that the Civil Court shall have jurisdiction to try all suits of civil nature excepting suits of which the cognizance is either expressly or impliedly. As per Section 25 of DSE Act and Rules, the jurisdiction of Civil Court is excluded only in respect of any matter in relation to which the administrator or the director or such other persons as mentioned therein is empowered to exercise any power. With regard to the matters where the aforesaid authorities are not empowered to exercise their powers, the Civil Court is retained with the jurisdiction to entertain a suit. Any grievance pertaining to dismissal, removal or reduction in rank is not to be considered by the Civil Court. However, present matter does not deal with dismissal, removal or reduction in rank but deals with the age of retirement being arbitrarily reduced by Defendant no. 1 and 2. The provision in this regard were appreciated by Hon'ble High Court of Delhi in the case of Servants of People Society & Ors. Vs Smt. Sudesh Oberoi & Anr. Respondents, 2007 SCC Online Del 833: ILR (2007)2 Del 690: (2007) 96 DRJ 739 (DB) : (2008)1 SLR 537 (DB). The following observations were made:
"7. Section 3 of the Act deals with the powers of the Administrator to regulate education in all the schools in Delhi. Section 10 stipulates, amongst others, thatscalesofpayand allowances, medical facilities, pension, retirement benefits and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of corresponding status in schools run by the appropriate authority and in case it is found to be less, the appropriate authority shall be entitled to direct, in writing, the managing committee of such a school to bring the same upto the levels of those employees of the corresponding status in schools run by the appropriate authority. Section 25 of the Act stipulates that no Civil Court shall have jurisdiction in respect of any matter in relation to which the Administrator or the Director or any other person so authorised or specified under the Act, is empowered by or under the Act to exercise any power. Section 28 of the Act deals with the power of the Administrator to make rules to carry out the provisions of the Act, with previous approval of the Central Government and subject to the condition of previous publication.
8. The plea of lack of jurisdiction in Civil Courts can be tested on the anvil of the provisions of Section 8 of the Act which specifies the terms and conditions of service of employees of recognized private schools and sub-section (3) thereof provides that any employee of a recognized private school who is dismissed, removed or reduced in rank may, within three months from the date of communication of such order of dismissal to him, appeal against the same to the Tribunal constituted under Section 11, namely, the Delhi School Tribunal.
9. In the present case, respondents No. 1 and 2 have not sought redressal in respect of any grievance pertaining to their dismissal, removaloreduction in rank. Their plea in the suit was for release of the benefits under the 5th Pay Commission to them by the appellants. However, the statute does not provide any machinery for seeking the said relief. The jurisdiction of Civil Courts is excluded by Section 25 only in respect of any matter in relation to which the Administrator or the Director or such other person as mentioned therein is empowered to exercise any power. With regard to the matters where the aforesaid authorities are not empowered to exercise their powers, as in the present case, the Civil Court shall retain the jurisdiction to entertain a suit and grant interim orders therein. Section 9 of the Code of Civil Procedure (in short 'CPC') provides that the Civil Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
14. Further, it is settled law that the exclusion of jurisdiction of Civil Court has not to be light inferred, such exclusion must be either categorically expressed or clearly implied. The aforesaid proposition of law was also reiterated in the case of Dwarka Prasad Agarwal (P) by L.Rs.and another v. Ramesh Chandra Agarwala and others reported as AIR 2003 SC 2696 as below:
"22. The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdictionupon the civil Courts to determine all disputes of civil nature unless the same is barred, under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil Court is not to be readily inferred. A provision seeking to bar jurisdiction of civi lcourt requires strict interpretation. The Court, it is well-settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil Court. The burden of proof in this behalf shall be on the party to asserts that the civil Court'sjurisdiction, is ousted. (See Sahebgouda (dead) by Lrs. and othersv. Ogeppa and Others (2003 (3) Supreme 130.
In view of the aforesaid proposition of law, this court has the jurisdiction to try the present suit.
Thus, the present issue is decided in favour of Plaintiff and against the Defendants.
Issue No. 4 Whether the suit of the Plaintiff is barred as per the provisions of Specific Relief Act? OPD
15. The onus to prove this issue was also on the Defendants. Defendant no. 1 and 2 has averred that the suit is barred under Section 14 and Section 41 of SRA. As per the submissions of Ld. Counsel for Defendant no. 1 and 2, there was a contract between Plaintiff and Defendants no. 1 and 2, the specific performance of which cannot be granted since it is a contract of personal service. However, it is observed by the court that vide order dated 26.08.2006, the Ld. Predecessor of this court had stated that no specific performance of the contract of the Plaintiff can be enforced and the only remedy for the Plaintiff is to seek compensation. Thus, the Ld. Predecessor held that the relief of permanent injunction could not have been granted and also observed the same to have become infructuous. Further, Ld. Predecessor gave an opportunity to the Plaintiff to incorporate the relief of damages and thereafter, an application for amendment under Order VI Rule 17 CPC filed by the Plaintiff was allowed vide order dated 29.01.2007. In the amended plaint filed, the Plaintiff has not sought an injunction in order to specifically enforce her contract of personal service but has claimed damages. Hence, the present suit cannot be said to be not maintainable on the arguments raised by Defendants.
Thus, the present issue is also decided in favour of Plaintiff and against the Defendants.
Issue No. 6 Whether Delhi Education Act and Rules (sic: Delhi School Education Act and Rules) made therein do not apply to Defendants? OPD
16. The onus to prove this issue was also on the Defendants. The Defendants have contended in their Written Statement that since the school is an unaided linguistic minority school, it is protected by virtue of Article 30 of the Constitution of India and has independence to manage its own affairs, as the Defendants are working and propagating the school of Bengali Language and Culture. Further, the Defendants had averred that the DSE Act and Rules do not apply to the Defendants as it is an "unaided minority school". Section 2(O) of DSE Act and Rules defines "Minority school", as a school established by a minority having the right to do so under clause (1) of Article 30 of the Constitution and as per Section 2(X) of DSE Act and Rules, "unaided minority school" means a recognised minority school which does not receive any aid. Ld. Counsel for the Defendants drew the attention of the court to Chapter IV of DSE Act, which consists of Section 8 to 12 and deals with terms and conditions of service of employees of the recognized private schools Ld. counsel for the Defendants specifically relied on Section 12 of the DSE Act, which reads as given below:
"Section 12. Chapter not to apply to unaided minority schools- Nothing contained, in this Chapter shall apply to an unaided minority school."
In this regard, it is pertinent to note the judgement passed by the Hon'ble Apex Court in Frank Anthony Public School Employees Association v. Union of India & Ors. (1986) 4 SCC 707 which had held that Section 12 of DSE Act which makes the provisions of Chapter IV inapplicable to unaided minority institutions is discriminatory and void. The raison d'être given by the Hon'ble Supreme Court was that employees of a recognized unaided minority private schools should be given benefits not less than those of employees of other schools, so as to ensure maintenance of education standards which can be achieved only when competent staff is attracted and that provision is not violative of the fundamental right provided under Article 30 of the Constitution. The relevant passage in this regard is from judgement of Frank Anthony Public School Employees Association v. Union of India & Ors. (supra):
"We, therefore, hold that Section 10 of the Delhi School Education Act which requires that the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority and which further prescribes the procedure for enforcement of the requirement is a permissible regulation aimed at attracting competent staff and consequently at the excellence of the educational institution. It is a permissible regulation which in no way detracts from the fundamental right guaranteed by Article 30(1), to the minority institutions to administer their educational institutions. Therefore, to the extent that Section 12 makes Section 10 inapplicable to unaided minority institutions, it is clearly discriminatory."
17. In this regard, sub-section (1) of Section 8 is also relevant which empowers the Administrator to make rules regulating the minimum qualifications for recruitment and the conditions of service of employees of recognized private schools. In terms thereof Chapter VIII of the DSE Rules provides for 'Recruitment and Terms and Conditions of Service of Employees of the Private Schools other than Unaided Minority Schools' and the same includes Rule 110 prescribing the age of retirement.Thus,Rule 110 of DSE Rules which speaks of age of retirement is very much applicable even to unaided private minority institutions. The same ratio decidendi as laid down in Frank Anthony Public School Employees Association v. Union of India & Ors. (supra) was followed by the Hon'ble Delhi High Court in CBSE v. Mount Carmel School Society & Ors. LPA 774/2010, pronounced on:15th January, 2016 and also reiterated in a very recent judgment pronounced by the Hon'ble Delhi High Court in Lott Carey Baptist Mission & Anr v. Govt. of NCT of Delhi & Anr. 2016 SCC OnLine Del 280. In Lott Carey Baptist Mission & Anr v. Govt. of NCT of Delhi & Anr. 2016 SCC OnLine Del 280 wherein it was held:
"6. ... Chapter VIII of DSE Rules continues to apply to unaided minority institutions. The controversy in issue in the said appeal related to age of retirement prescribed under Rule 110 of DSE Rules, 1973 and we have concluded that the age of retirement prescribed under Rule 110 of DSE Rules is very much applicable to unaided minority institutions."
Thus, in view of the aforesaid case laws, the contention of the Defendants that since it is an unaided minority school, DSE Act and Rules is not applicable, is not sustainable. Moreover, except a bald averment, no evidence was adduced to show that Defendant no.1 was a linguistic minority school.
18. Ld. counsel for the Defendant had also argued that since it was derecognized on 17.11.2003, the provisions of DSE Act and Rules were not applicable. However, this contention of the Defendants does not stand to reason, since on the date when the impugned notice dated 28.03.2003 was issued, i.e. Ex. PW1/1, the Defendant no.1 was running with full throttle as a private recognized school and thus, all the provisions of DSE Act and Rules were fully applicable to the Defendant school. Further, The school was derecognized only subsequent to the date of issuance of notice.
Hence, present issue is decided in favour of the Plaintiff and against the Defendants.
Issue no. 1 Whether the Plaintiff is entitled to money decree for sum of Rs. 2,97,000/- along with pendente lite and future interest as prayed? OPP Issue no. 8 Whether there is no cause of action to file present case? OPD
19. The onus to prove the first issue was on the Plaintiff. In view of the last issue decided, it has already been held that the provisions of DSE Act and Rules is applicable to the Defendant School. The Plaintiff was admittedly the Head Mistress of the Defendant School but by way of the impugned notice dated 28.03.2003 Ex. PW1/1 issued by the Managing Committee of the Defendant School, it was decided that "the retirement age will be 58 years for all teachers and staff" and she was made to retire. Further, Ex. PW1/3 are the Standing Orders which were circulated on 30.06.2002,as per which the retirement age was left blank by the Defendants. In view of the fact the aforesaid discussion, wherein this court had held that the DSE Act and Rules were applicable to the Defendant School, the impugned notice issued by the Managing Committee of the Defendant School and Standing Orders cannot be said to have any effect. The age of retirement, shall be governed , only as per Rule 110(2) of DSE Act and Rules and thus, the age of retirement would be 60 years. The Defendants could not have unilaterally reduced the age of retirement by such an internal notice. Further, Ld. counsel for the Defendant also had raised an argument that Rule 110(2) cannot apply to the Plaintiff, since she was not a teacher but the Head Mistress of the School. In this context, perusal of section 2(w) of the DSE Act becomes relevant, which defines the word 'teacher' to include the head of the school. Thus, Rule 110 will apply not only to every teacher but also the Head of the School and hence, it is applicable even to the Plaintiff in the present case. The Hon'ble Delhi High Court in this regard in the case of Manohar Lal v. Govt. of NCT of Delhi & Ors. 2013 SCC OnLine Del 3529 also clarified the true position of law, wherein confusion was caused, since sub-rule (1) of Rule 110 states that age of retirement as 58 years for all employees but for employees who are teachers the proviso provides for extension by 2 years from the age of 58 years to 60 years, however sub-Rule 1 of Rule 110 which has been subsequently amended enhances the age of retirement of a teacher to 60 years itself. The relevant para of the judgment is reproduced below:
"4.(i) At the outset let us examine the language of Rule 110 and its sub-Rules because that language requires interpretation.
(ii) There apparently seems to be some confusion when we read sub-Rule 1 of Rule 110 with its proviso in juxtaposition with sub-Rule 2. This is so because though sub-Rule 1 of Rule 110 provides age of retirement as 58 years for all employees but for employees who are teachers the proviso provides for extension by 2 years from the age of 58 years to 60 years, however sub-Rule 1 of Rule 110 which has been subsequently amended enhances the age of retirement of a teacher to 60 years itself.
(iii) Therefore, because of sub-Rule 2 now providing that a teacher continues up to the age of 60 years, the proviso to sub-Rule 1 really has no meaning because the original object was to distinguish between appointment of employees who are not teachers up to 58 years and extension of retirement of age of teachers to 60 years, however, today the de-facto position by virtue of amendment of sub-Rule 1 of Rule 110 is that a teacher's ordinary date of retirement is of 60 years."
Thus, the impugned notice dated 28.03.2003 was passed in violation of DSE Act and Rules and the Plaintiff was illegally made to retire.
20. Another argument raised by the Defendants is that the Plaintiff cannot be held to be entitled to the amount, since she was sitting idle and did not make efforts to mitigate the losses suffered by her. Per contra, the contention of the Ld. counsel for the Plaintiff in this regard was that since the Plaintiff was an aged woman of 58 years, no school would have been willing to employ her services. I find force in the contention of the Plaintiff. Admittedly, the Plaintiff was made to retire at the age of 58 years and to expect her to look for another job at that age would be expecting too much, especially for a woman who had dedicated most of her years to the Defendant school. Thus, the Plaintiff is entitled from Defendant 1 and 2 to be paid Rs. 5,829/- per month, from January 2004 upto December 2005 as loss of salary along with employer's contribution towards provident benefit of Rs. 788/-. Thus, she is entitled to a total sum of Rs. 6,617 per month (salary and pf) for the period starting from January 2004 to December 2005, amounting to Rs. 1,58,800/-
21. Further, the Plaintiff had averred in her plaint that she was not paid salary for the month of December 2003 amounting to Rs. 6,617/- . The same was also deposed by the Plaintiff in her affidavit Ex. PW1/1, Ld. counsel for the Defendant did not ask any question regarding it in cross-examination nor any suggestion was given denying this averment. Hence, the Plaintiff has proved that she was not paid salary for the month of December 2003 amounting to Rs. 6,617/- and is held entitled to the same to be paid by Defendant no.1 and 2.
22. The plaintiff has also claimed interest @9 % p.a on the salary component. Since, the Plaintiff was an employee of the Defendants no.1 and 2, the interest @ 9% p.a. on the salary component would meet the ends of justice from date of illegal retirement i.e. 31.12.2003 till the date of realization. Thus, the Plaintiff is held entitled to the same.
23. The Plaintiff has alleged mental torture, tension and harassment at the behest of Defendant no.1 and 2. This Court has already been held that the Plaintiff was illegally made to retire before her legally due date. Considering that the Plaintiff had given so many years of her life to the Defendant no.1 and 2, it was unjust to make her retire illegally, only because they were irked with her alleged interference in the management and administration of the School. Hence, in the interest of justice, the Plaintiff is entitled to be compensated for the mental harassment with an amount of Rs. 1,00,000/- by Defendant no.1 and 2.
Hence, it cannot be said that the present suit is without any cause of action. Accordingly, I am of the considered opinion that the Defendants have failed to discharge the onus cast on them. The issues are accordingly decided in favour of the plaintiff and against the Defendants.
Issue No. 3 Whether the Plaintiff is entitled to directions to be issued to Defendant no. 3 to ensure that gratuity and employer contribution of Provident Fund is paid by Defendant no. 1 and 2 to the Plaintiff? OPP
24. The onus to prove this issue was also on the Plaintiff. In this regard, The Payment of Gratuity (Amendment) Act, 2009 becomes relevant which was notified in the Gazette on 31st December, 2009. Vide the aforesaid amendment the definition of "employee" in Section 2(e) of the Payment of Gratuity (Amendment) Act extended to teachers as well, making teachers in schools covered by the Gratuity Act. Resultantly, the schools were/are under statutory obligation to pay gratuity to the teachers employed by the schools. The same has been held by the Hon'ble Delhi High Court in New Green Field Public School V. The Controlling Authority & Ors. 2014 SCC OnLine Del 6980 : (2015) 216 DLT 602 : (2015) 144 FLR 502. In view of the same, Plaintiff is held entitled to payment of gratuity of Rs. 93,264.00/- as payable under DSE Act from Defendant no.1 and 2.
Hence, issue is decided in favour of the Plaintiff and against the Defendants.
Issue no. 2 Whether the Plaintiff is entitled to relief of declaration as prayed for? OPP
25. The Plaintiff had to discharge the onus of the present issue. The Plaintiff has claimed the relief of declaration to be issue to Defendant no.3 not to allow Defendant no,1 and 2 to run school against the DSE Act and Rules. However, this relief of declaration, cannot be granted as the cause of action against Defendant no.3 is separate from the cause of action against Defendant no.1 and 2,. Thus, this relief is denied on the ground of suit suffering from multifariousness, as, Defendant no.1 to 2 and Defendant no.3 although joined together in the present suit yet their cause of action are separate. Thus, the Plaintiff has failed to prove this issue and it is decided in favour of the Defendants and against the Plaintiff.
26. Relief In view of the aforesaid facts and circumstances and based on the discussion aforesaid, the Plaintiff is held to be entitled to the following reliefs in this matter:
26.1 The suit of the Plaintiff is partly decreed. Plaintiff is entitled to a decree of an amount of @Rs. 6,617/- per month, from January 2004 upto December 2005 , amounting to Rs. 1,58,808/ (which is loss of salary and includes employer's contribution towards PF) from Defendant no. 1 and Defendant no. 2.
26.2 Plaintiff is entitled to a decree of an amount of Rs. 6,617/- as salary for the month of December 2003 to be paid by Defendant no.1 and 2.
26.3 Plaintiff is entitled to a decree of compensation for the mental harassment with an amount of Rs. 1,00,000/- from Defendant no.1 and 2.
26.4 Plaintiff is held entitled to payment of gratuity, of Rs. 93,264/- as payable under DSE Act from Defendant no.1 and 2.
26.5 Plaintiff is also held entitled to interest @ 9% p.a. on the salary component, from date of illegal retirement i.e. 31.12.2003 till the date of realization.
The Plaintiff shall also be entitled to costs of the suit. Decree sheet be prepared in the aforesaid terms.All pending applications, if any, are disposed of as not pressed.
File be consigned to record room after due compliance.
Pronounced in open court on 27.08.2016.
(Ms. Sonam Singh) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgement consists of 28 pages and each page is signed by me.