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[Cites 1, Cited by 1]

Delhi High Court

Abha Pathak vs Gyandeep Education Society & Ors. on 26 September, 2011

Author: S. Muralidhar

Bench: S. Muralidhar

    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   W. P. (C) 842/1994

                                           Reserved on: September 8, 2011
                                           Decision on: September 26, 2011

 ABHA PATHAK                                                   ..... Petitioner
                            Through: Mr. Sanjeev Joshi, Advocate.

                  versus


 GYANDEEP EDUCATION SOCIETY & ORS.             ..... Respondents
               Through: Mr. Arun Bhardwaj with
                        Mr. N. D. Kaushik and
                        Ms. Aarti Sharma, Advocates for R-1 to 3.
                        Mr. Himanshu Upadhyay, Advocate for R-5.

 CORAM: JUSTICE S. MURALIDHAR

   1.    Whether Reporters of local papers may be
         allowed to see the judgment?                              No
   2.    To be referred to the Reporter or not?                     No
   3.    Whether the judgment should be reported in Digest?         No

                                       JUDGEMENT

26.09.2011

1. The Petitioner, who was working as an Assistant Teacher in the Gyandeep Vidya Bhawan (hereinafter „the School‟), Respondent No. 2 herein, challenges an order dated 27th August 1993 passed by the Managing Committee („MC‟) of the School removing her from service. The Petitioner has also challenged the constitution of the Disciplinary Authority („DA‟), the order dated 15th July 1991 placing the Petitioner under suspension, the memorandum dated 28th October 1991 by which the charge sheet was issued to the Petitioner, the memorandum dated 26th August 1992 requiring the Petitioner to respond to the enquiry report and the memorandum dated 16 th September 1992 giving the Petitioner one more opportunity to make a representation on the report of the enquiry and on the question of proposed penalty of removing her from service.

2. One of the grounds on which the Petitioner has challenged the order dated 27th August 1993 removing her from service is that there was no prior approval of the Director of Education („DoE‟), Respondent No. 4, in terms of Section 8 of the Delhi School Education Act, 1973 („DSEA‟) read with Rule 120 of the Delhi School W. P. (C) No. 842 of 1994 Page 1 of 6 Education Rules, 1973 („DSER‟). On this issue, it was stated in the counter affidavit filed on behalf of Respondent Nos. 1 to 3 that the DoE had, by a letter dated 24th January 1994, accorded approval to removal of the Petitioner from service. Consequently, one of the principal submissions of the Petitioner is that the subsequent approval granted by the DoE on 24th January 1994 for removal of the Petitioner would not cure the impugned order dated 27th August 1993 of its illegality.

3. The Petitioner states that she was appointed as an Assistant Teacher in the School, which is an aided recognised school under the DSEA and receives 95% aid from the Municipal Corporation of Delhi („MCD‟), Respondent No. 7. The Petitioner states that she was confirmed as a teacher after one year of probation. This is, however, disputed by Respondent Nos. 1 to 3. The Petitioner states that despite being an aided School the management of the School was unauthorisedly collecting certain amounts from the parents of the students. This impelled the Petitioner to write letters to the Deputy Director of Education (`DDE‟) (Grants), MCD on 15th April and 7th May 1991 complaining of the said illegalities. According to the Petitioner, the School authorities were annoyed with her having complained to the MCD and decided to terminate her services. To begin with she was placed under suspension by an order dated 15th July 1991. Thereafter, on 28th October 1991 the School issued a chargesheet to the Petitioner proposing to hold an enquiry with regard to eight articles of charge. The Petitioner‟s case is that the entire disciplinary proceedings are bad in law since the DA was not constituted in accordance with Rule 118 DSER particularly since there was no nominee of the DoE attending the meetings of the DA. The Petitioner states that she stopped attending the enquiry proceedings after 7th March 1992 since she was not paid her subsistence allowance. The enquiry was completed and a copy of the enquiry report furnished to her by the School by a memorandum dated 26th August 1992 directing her to show cause why she should not be removed from service. The Petitioner‟s first reply was found not to be relevant to the notice sent to her. By a further memorandum dated 16th September 1992 she was afforded another opportunity to represent against the proposed penalty. Her further reply dated 24th September 1992 was considered by the DA on 25th September 1992 and a decision was taken to propose the major penalty of removal from service. On 14th October 1992 the School wrote to the Director (Primary Education) of the MCD seeking approval under Rule 120 DSER.

4. The counter affidavit filed by Respondent Nos. 1 to 3 shows that the School wrote to W. P. (C) No. 842 of 1994 Page 2 of 6 the Director (Primary Education) MCD on 14th October 1992 and reminders were sent on 2nd November 1992, 7th December 1992, 15th March 1993 and 21st April 1993 asking for the approval for the removal of the Petitioner to be expedited. The approval of the Director (Primary Education) of the MCD was accorded by an order dated 24th January 1994. Meanwhile, by the impugned order dated 27th August 1993 the Petitioner was removed from service. The counter affidavit by the MCD states that the procedure under Rule 118 DSER was followed and that there was a nominee of the DoE present at the meetings of the DA.

5. Mr. Sanjeev Joshi, learned counsel for the Petitioner reiterated the submissions in the writ petition. He further submitted that the disciplinary action was initiated by mala fide intentions and the MC of the School became vindictive after the Petitioner made complaints to the DDE (Grants) of the MCD against the School; the order dated 15th July 1991 passed by the MC placing the Petitioner under suspension did not have the prior approval of the DoE as required by Section 8 DSEA; it was only after the Petitioner‟s representation against the suspension that it was revoked by the DoE; the DA was not properly constituted under Rule 118 DSER; no nominee of the DoE was present during the deliberations of the DC; no subsistence allowance was paid to the Petitioner and, therefore, she was unable to attend the enquiry proceedings after 7 th March 1993; the failure on the part of the MC to pay the Petitioner‟s subsistence allowance made it impossible for the Petitioner to defend herself in the enquiry; the subsistence allowance was paid much later on 7th May 1993. Lastly, it was submitted that the order dated 27th August 1993 removing the Petitioner from service admittedly did not have the prior approval of the DoE. The approval was granted only on 24th January 1994. This rendered the impugned order dated 27th August 1993 illegal. It was accordingly prayed that the order of removal should be set aside and the Petitioner should be held entitled to reinstatement with back wages and all consequential benefits.

6. Mr. Arun Bhardwaj, learned counsel for Respondent Nos. 1 to 3 and Mr. Himanshu Upadhyay, learned counsel for Respondent No. 5 MCD contested the above submissions of the learned counsel for the Petitioner. It was denied that the suspension of the Petitioner was without the approval of the DoE or that the DA was not properly constituted. It was further submitted that the School‟s 5% share of the subsistence allowance was duly paid to the Petitioner. The 95% share of the MCD was also paid to her. The delay, if any, was on account of the Petitioner not furnishing the non-

W. P. (C) No. 842 of 1994 Page 3 of 6

employment certificate. It is submitted that the Petitioner having refused to participate in the enquiry, cannot possibly question the detailed report submitted by the EO, which held all the charges against her to be proved. Further, there was no delay on part of the MC of the School in taking consequential action of furnishing to the Petitioner a copy of the report, considering her reply thereto and taking a decision on imposition of a major penalty on her. The delay in granting approval was that of the DoE. This in any event would not invalidate the decision of the MCD.

7. The above submissions have been considered. The documents on record reveal that the relations between the Petitioner and the School were obviously strained. There were complaints made against the Petitioner by some of the parents of the school children. She was also proceeded against disciplinarily for unauthorized absence. A minor penalty of censure was also awarded to her. The School also denied that her services were confirmed after completion of one year service as claimed by her. It appears that after a letter had been issued by the Headmistress to the Petitioner on 26th March 1991 seeking an explanation about her omission to properly evaluate the answer sheets in the annual exams, the Petitioner sent the two letters dated 15th April and 7th May 1991 to the DDE (Grants) MCD alleging that the School was indulging in illegal activities. The reply affidavit of Respondents 1 to 3 shows that at one stage, pursuant to the Petitioner‟s complaints, the Deputy Education Officer (South) of the MCD issued a notice to the School on 13th August 1992 proposing to take over the management of the School under Rule 20(1) DSER. However, after a detailed reply by the School on 3rd September 1992 explaining the position, those proceedings were not pursued by the MCD. The chargesheet served on the Petitioner shows that some of the charges pertain to the period prior to the Petitioner‟s complaints. Also there was material forming the basis of the charges which was examined by the EO. It cannot be therefore said that the School acted vindictively in initiating disciplinary proceedings against the Petitioner.

8. The Petitioner has made a grievance about not being paid subsistence allowance as a result of which she did not attend the enquiry proceedings after 7th March 1992. The other reason is that the DDE advised her against attending the enquiry proceedings after 7th March 1992. The Respondents 1 to 3 and the MCD have denied that the DDE gave the Petitioner any such advice. As regards the non-payment of subsistence allowance, the School has explained that it was required to pay only 5% and the rest was to be paid by the MCD. The documents enclosed with the counter affidavit of Respondents 1 to 3 W. P. (C) No. 842 of 1994 Page 4 of 6 show that the School did pay its share of 5% and that there was some delay in the MCD paying the 95% component. Yet, the delay in the payment of the full subsistence cannot constitute a valid justification for the Petitioner not participating in the enquiry after 7th March 1992. By opting to stay away altogether from the enquiry proceedings after 7th March 1992, the Petitioner denied herself an opportunity of defending herself against the charges. She also deprived herself of the opportunity of cross-examining the witnesses of the School. The enquiry report reveals that the EO examined the evidence led in the proceedings in great detail. In the absence of any contradiction of the evidence produced by the School, it was logical for the EO to hold the charges against the Petitioner to be proved. This Court is unable to find any legal infirmity in the enquiry report as such.

9. Regarding the composition of the DA, Respondents 4, 5 and 7 in their counter affidavit have stated categorically that "the proceedings were continued in the presence of representative of the MCD who was appointed as per rules." It is further stated: "the disciplinary action as well as proceedings conducted by the management were approved by the Director of Education." In the affidavit of Respondent Nos. 1, 2 and 3 it is pointed out that the Assistant Education Officer, Shahdara (South) was member of the DA as the nominee of the DoE. Consequently, this Court is unable to find any procedural irregularity as regards the constitution of the DA. Apart from a bare denial in the rejoinder of the Petitioner, there is nothing to doubt the veracity of the statements by the MCD.

10. The enquiry report was furnished to the Petitioner and on two occasions she was given an opportunity of showing cause against the proposed punishment of removal from service. It is only after receiving her two replies that the DA resolved to impose the punishment of removal from service. Soon thereafter the School wrote to the DoE seeking approval in terms of Rule 120 DSER. It is the DoE MCD who delayed the grant of approval and in the meanwhile the impugned order came to be passed on 27th August 1993. The Petitioner has been unable to show that the result would have been any different in the absence of a prior approval of the DoE. In the circumstances, the grant of approval by the DoE was in effect a ratification of the decision of the MC of the School. The impugned order dated 27th August 1993 was not invalidated on account of the DoE approval being granted subsequently.

W. P. (C) No. 842 of 1994 Page 5 of 6

11. For the aforementioned reasons, this Court finds no merit in the writ petition. It is dismissed as such, but in the circumstances, with no order as to costs.

S. MURALIDHAR, J.

SEPTEMBER 26, 2011 ak W. P. (C) No. 842 of 1994 Page 6 of 6