Delhi District Court
Jai Charan (Sweeper) vs Don Bosco School on 9 February, 2012
IN THE COURT OF MS. NEHA, CIVIL JUDGE03(SOUTH),
SAKET COURTS COMPLEX, NEW DELHI
Suit no. 385/10
IN THE MATTER OF:
Jai Charan (Sweeper)
Don Bosco School,
Alaknanda, New Delhi. ......Plaintiff
Versus
1. Don Bosco School,
Alaknanda, New Delhi.
2. The Management Committee
Don Bosco School,
Through its Secretary,
Alaknanda, New Delhi.
3. Father Binny Issac,
Principal Don Bosco School,
Alaknanda, New Delhi. ......Defendants
Counsels : Sh. G.D.Chopra, Ld. Counsel for the plaintiff
Sh. Jai Deep Bedi, Ld. Counsel for the defendant.
DATE OF INSTITUTION : 09.01.2009
DATE OF RESERVING THE ORDER : 24.01.2012
DATE OF DECISION : 09.02.2012
JUDGMENT
CS.No. 385/10 Page 1 of 38
(Suit for Recovery of Money, Declaration and Mandatory Injunction)
1. Vide this judgment I shall decide the suit of the plaintiff for recovery of money, declaration and mandatory injunction.
2. Plaintiff's Case The plaintiff is a class IV employee of defendant no.1 school and holds the lowest post i.e. sweeper. The plaintiff joined the school in the year 1985 and has been trying his best to serve the Institution. The defendant no. 1 is an unaided Minority Institution. Though the plaintiff have served the institution with devotion, yet it had been endeavour of the plaintiff to get financial benefits due to the employees of the school. The plaintiff had been requesting the defendants to grant the benefits as available and due to class IV employee by virtue of Section 10 of the Delhi School Education Act. The defendants had been denying many material benefits. When the defendants did not agree to give benefits, the plaintiff along with others filed writ petition no.4435/03 in the Hon'ble High Court of Delhi and Hon'ble High Court of Delhi directed Director of Education to hear the matter and make appropriate orders.
3. The Director of Education vide order dated 02.12.2003 passed CS.No. 385/10 Page 2 of 38 orders for giving benefits to the plaintiff as well as other employees at par with other schools. Subsequently the defendant school made a representation to the Director and Director passed amended order dated 22.01.2004 without giving opportunity of hearing to the employees. The plaintiff continued to press for the legitimate demands as the demands were not accepted. As the demands were not being met, the plaintiff and others filed writ petition No.2075/07 in the Hon'ble High Court of Delhi and Hon'ble High Court of Delhi directed Director of Education to hear the matter and pass further directions.
4. Accordingly, a representation was made to the Director of Education. As the plaintiff had been playing a leading role in all the matters, the intention of the defendants is to see that the plaintiff is harassed at the slightest possibility without any valid cause. On 02.03.2007, the plaintiff was served with show cause notice mentioning therein that on 07.12.2006 the plaintiff had reached late for duty by 20 minutes after lunch break and no information was given to the school authorities regarding his alleged unauthorized absence from place of duty. This act amounted to indiscipline and memo dated 08.12.2006 was issued to him which plaintiff refused to receive. CS.No. 385/10 Page 3 of 38
5. The plaintiff gave reply dated 05.03.2007 wherein the plaintiff denied the allegations. The plaintiff again received letter dated 01.04.2007 informing that the reply has been found unsatisfactory and the members resolved to withhold next increment for a period of 12 months and he was further informed that the applicant's performance and conduct during the first six months after withholding of the increments would be under observation.
6. The plaintiff made representation dated 07.04.2007 explaining true position. The plaintiff received communication dated 03.05.2007 informing that no inquiry is required to be conducted in the matter as per the service contract between the parties. The present suit is not directed against the terms of the alleged service contract as a whole because partly, the issue has been raised before Director of Education.
7. The plaintiff served notice dated 10.05.2007 through advocate Sh. G.D. Chopra. The other grievance of the plaintiff is that half salary of the plaintiff for 17.02.2007 has been deducted wrongfully. When the plaintiff came to know about the deduction, the plaintiff wrote letter dated 05.03.2007 to the defendant. The plaintiff received letter dated 19.03.2007 informing that the plaintiff absented himself from duty in the first half of 17.02.2007 without information and prior CS.No. 385/10 Page 4 of 38 sanction of leave.
8. The plaintiff then wrote letter dated 07.04.2007. The plaintiff being a low paid employee had got the Proforma filled up and submitted in the school. The plaintiff did receive communication dated 03.05.2007 rejecting the request made in the letter dated 07.04.2007. The plaintiff served notice dated 10.05.2007 but no reply has been received. The plaintiff along others have served a notice dated 08.08.2007 about cuttings/alternations in the service books and for getting copies of the same. The plaintiff has also requested for a copy of the service book through letter dated 27.07.2007. The defendant school has engaged security staff at the gate of the school and if an employee leaves the premises of the school a due entry is made and gate pass is also issued.
9. It is submitted that the order of withholding increments is not only vindicative but also violates the principles of natural justice. Similarly, withholding of half day salary for reaching late on one occasion is an act of victimization and the conduct has been explained in the letter dated 19.03.2007 and the actions taken is against the basic principles of fundamental rights. Plaintiff is under constant apprehension of vindicative and wrongful action being taken against CS.No. 385/10 Page 5 of 38 him by the school authorities. The plaintiff has received letter dated 16.07.2007 which was duly replied. It is submitted that the said letter was sent malafidely with false averments and is liable to be quashed being malafide against law and violative of principles of natural justice. The plaintiff has received letter dated 13.08.2007 which establishes beyond doubt that the plaintiff is victimized because the defendants consider that the staff led by me have resorted to make unjustified and illegal demands.
10. The plaintiff was advised to file appeal before Delhi School Tribunal against the above mentioned orders. The plaintiff filed appeal No. 30/2008. However after filing of the appeal, Hon'ble Delhi High Court gave judgment in case of Sonika Jaggi Vs. Lt. Governor & Ors.. The Hon'ble Delhi School Tribunal therefore held that the said tribunal had no jurisdiction. Hence the present suit is filed for the remedy available under common law and civil court has jurisdiction to decide all suits of civil nature.
11. With a view to victimize and make record against the plaintiff and to avoid giving increments, the defendants served letter dated 03.09.2008 mentioning that during MayJune 2008 his work was found incomplete in which it is wrongly mentioned that the plaintiff CS.No. 385/10 Page 6 of 38 had opted to remain on duty during vacations. The correct facts has been mentioned in reply of the plaintiff sent in December 2008.
12. The plaintiff has filed the present suit for following relief:
a) A decree of recovery for a sum of Rs.159/ with pendente lite and further interest @18% p.a. be passed in favour of the plaintiff and against the defendants severally as well as jointly.
b) A decree of declaration be passed declaring that the act of deduction of half day salary for 17.02.2007, order dated 01.04.2007 withholding increments, and also letter dated 03.09.2008 were wrongful, illegal and malafide.
c) That a mandatory injunction be issued against the defendants, to quash all these letters and act on the basis of that there did not exist any such letters as referred to above and to release the amount of increments as if letter dated 01.04.2007 had not been issued.
13. Defendant's Case Defendants have filed written statement taking preliminary objection that the suit of the plaintiff is not maintainable. It is submitted that the defendant school is an unaided minority institution established and administered Article 30 of The Constitution of India. The defendant school has full autonomy in regard to its day to day CS.No. 385/10 Page 7 of 38 functioning and administration. It is submitted that the penalty of withholding increment for a period of 12 months w.e.f. 01.04.2008 is a minor penalty and has been imposed on the plaintiff for acts of misconduct and unauthorized absence from duty. The action has been taken against the plaintiff as per the service contract, CBSE Bye laws and Delhi School Education Act and rules. The suit of the plaintiff is barred under the provisions of Delhi School Education Act. The plaintiff has no cause of action to file the present suit. The present suit has been filed to cause undue harassment to the defendant and misuse the process of law. The plaintiff has suppressed vital and material facts and hence the suit is liable to be dismissed.
14. In reply on merits, the defendant has admitted the employment of the plaintiff. But it is denied that the plaintiff has been serving the institution with devotion and that he is not getting all the financial benefits as due to the employees of the school. It is submitted that as only a minor penalty has been imposed on the plaintiff for his acts of misconduct and unauthorized absence from duty, no inquiry is required to be conducted in the matter. It is submitted that reason for reduction of half day salary has been clearly mentioned in letter dated 19.03.2007 as he was absent from duty without information and prior CS.No. 385/10 Page 8 of 38 sanction of leave. The form prescribed by the school for leave application is for the help of its employees and has been therefore kept simple. However, the purpose of leave can always be asked separately by the management. The service books are maintained by the school properly and are required to be periodically signed by the employees as per law. Further the defendant has denied the allegations that the school is harassing the plaintiff with a view to teach a lesson.
15. The plaintiff has filed replication to the WS of defendant in which the contentions of the WS is denied and averments of the plaint is reaffirmed.
16. From the pleading of the parties following issues were framed for adjudication:
1. Whether the suit is hit by the provisions of Delhi School Education Act, 1973? OPD
2. Whether plaintiff is entitled to the decree of declaration as prayed? OPP
3. Consequently, if so, whether plaintiff is entitled to the relief of mandatory injunction as prayed?OPP
4. Whether plaintiff is entitled to the recovery along with interest, if so, at what rate and from what period?OPP CS.No. 385/10 Page 9 of 38
5. Relief.
17. The plaintiff has examined four witnesses. Plaintiff has examined himself as PW1, Sh. George Willson as PW2, Sh. Hari Chand as PW4 and Sh. Om Prakash, Deputy Education Officer as PW3. PW1 has tendered his evidence by way of affidavit Ex.PW1/A. PW1 has relied upon following documents:
1. Show cause notice dated 02.03.2007 is Ex.PW1/1.
2. Reply to the show cause notice dated 05.03.2007 is Ex.PW1/2.
3. Letter dated 01.04.2007 of withholding the increment is Ex.PW1/3.
4. Representation made by the plaintiff against letter dated 01.04.2007 is Ex.PW1/4.
5. Letter dated 03.05.2007 received from the defendant is Ex.PW1/5.
6. Notice dated 10.05.2007 served upon the defendant by the plaintiff through counsel is Ex.PW1/6.
7. Letter dated 05.03.2007 written to the defendant is Ex.PW1/7.
8. Letter dated 19.03.2007 received from the defendant is Ex.PW1/8.
9. Letter dated 07.04.2007 sent to the defendant is Ex.PW1/9. CS.No. 385/10 Page 10 of 38
10. Prescribed form for leave application is Ex.PW1/10.
11. Letter dated 13.08.2007 received from the defendant is Ex.PW1/11.
PW2 has tendered his evidence by way of affidavit Ex.PW2/A. PW3 Sh. Om Prakash, Deputy Education Officer has proved order dated 15.04.2010 of Directorate of Education as Ex.PW3/1 and Order dated 10.09.2007 as Ex.PW3/2. PW4 Sh. Hari Chand has tendered his evidence by way of affidavit Ex.PW3/A. Defendant has examined Sh. Joseph Kezhakkekara, Manager of Defendant School as DW1. DW1 has relied upon the document i.e. employees service rules which is Ex.DW1/1.
18. I have perused the material on record and carefully considered the submissions of Ld. counsels for the parties. My issue wise findings are as below:
19. Issue no. 1 Whether the suit is hit by the provisions of Delhi School Education Act, 1973?
The burden to prove this issue was on the defendant. The DW1 has not stated in his affidavit that the suit of the plaintiff is barred under Delhi School of Education Act. Defendant has filed written arguments. However in the written arguments also, it is not stated that as to how CS.No. 385/10 Page 11 of 38 the suit of the plaintiff is barred under the Delhi School of Education Act. However Ld. Counsel for the defendant has argued that the suit of the plaintiff is barred under Section 25 of the Delhi School of Education Act.
20. It is necessary to decide the maintainability of the suit in view of provisions of Delhi School of Education Act. Section 25 of the Act reads as under:
" 25. Jurisdiction of civil Courts barred No civil Court shall have jurisdiction in respect of any matter in relation to which the Administrator or the Director or any other person authorised by the Administrator or Director or any other officer or authority appointed or specified by or under this Act, is empowered by or under this Act to exercise any power, and no injunction shall be granted by any civil court in respect of anything which is done or intended to be done by or under this Act."
21. Section 8 of the Act provides the jurisdiction of the tribunal. Section 8 of the Act reads as under:
"8. Terms and conditions of service of employees of recognised private schools (1) The Administrator may make rules regulating the CS.No. 385/10 Page 12 of 38 minimum qualifications for recruitment, and the conditions of service, of employees of recognized private schools: Provided that neither the salary nor the rights in respect of leave of absence, age of retirement and pension of an employee in the employment of an existing school at the commencement of this Act shall be varied to the disadvantage of such employee:
Provided further that every such employee shall be entitled to opt for terms and conditions of service as they were applicable to him immediately before the commencement of this Act.
(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.
(3) Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under section 11.
(4) Where the managing committee of a recognised private school CS.No. 385/10 Page 13 of 38 intends to suspend any of its employees, such intention shall be communicated to the Director and no suchsuspension a shall be made. except with the prior approval of the Director :
Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct within the meaning of the Code of Conduct prescribed under section 9, of the employee :
Provided further that no such immediate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period. (5) Where the intention to suspend, or the immediate suspension of an employee is communicated to the Director, he may, if he is satisfied that there are adequate and reasonable grounds for such suspension, accord his approval to such suspension.
22. However Section 12 provides that the chapter does not apply to unaided minority school. "12. Chapter not to apply to unaided minority schools Nothing contained, in this Chapter shall apply to an unaided minority school."
CS.No. 385/10 Page 14 of 38
23. Section 8 (3) of the Act provides that only in cases of dismissal, removal or reduction in rank, the employee can appeal against the order to the tribunal. However in the present suit the plaintiff is seeking declaration that order of withholding of increment, deduction of half day salary is illegal and unjustified and the plaintiff has also sought recovery of half day salary with interest from the school. The Act does not provide for seeking such reliefs from the Tribunal.
24. Section 9 of Code of Civil Procedure gives jurisdiction to civil courts to deal with all matters related to civil rights and civil court is deemed to have jurisdiction unless expressly or impliedly barred. As the Act does not provide for the remedies which the plaintiff is seeking in the present suit, it can not be said that the suit of the plaintiff is barred under the Delhi School of Education Act. Strength can be taken from the judgment of Hon'ble High Court of Delhi in Anju Singh v. Greenfield Public School & Anr. CM.M788/2009 where it has been observed that "The petitioner then approached the Tribunal and filed an appeal. In the meantime, the judgment of learned Single Judge was appealed against and the Division Bench of this Court in Sonica Jaggi v Lt. Governor and ors. LPA No.196 of 2008 vide judgment dated 14th August, 2008 observed that the CS.No. 385/10 Page 15 of 38 decision in Kathuria Public School v. Director of Education 2005(6) AD 893 and the decision of Supreme Court in TMA Pai Foundation case(AIR 283 SC 355), does not mean the teacher has to approach the Tribunal by way of an appeal in case of her/ his grievances. The Division Bench of this Court observed that: "In our opinion, the order of the learned Single Judge is clearly unsustainable. Section 8 of the Act specifies the terms and conditions of service of employee 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. In the present case, the appellant has not sought redressal in respect of any grievance pertaining to her dismissal, removal or reduction in the rank. Her plea in the writ petition is for refixation of her salary in accordance with the Recruitment Rules and Section 10 of the Act. The provisions of the Act do not provide for any machinery for seeking the said relief."
25. Hence in view of above discussion, this court holds that the suit of the plaintiff is not barred under the Delhi School Education Act. CS.No. 385/10 Page 16 of 38 Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
26. Issue no. 2 Whether plaintiff is entitled to a decree of declaration as prayed?
The onus to prove this issue was on the plaintiff. The plaintiff has examined himself as PW1. The plaintiff has sought declaration that deduction of half day salary for 17.02.2007 was wrongful and illegal. He has also sought declaration that order dated 01.04.2007 of withholding increments with cumulative effect is illegal and malafide and letter dated 03.09.2008 issued by the defendant was also wrongful, illegal and malafide.
27. The half day salary of the plaintiff has been deducted by the defendants as the plaintiff had absented himself from the duty on 17.02.2007 in the first half without any prior intimation. The plaintiff has deposed in his cross examination that "I reached school on 17.02.2007 at 11.00 am and I filled proforma for half day leave. (Vol.) My cycle got punctured. I did not inform the school about my late coming. (Vol.) I did not had mobile. I do not know whether my leave application was sanctioned but my salary was deducted for half day. It is wrong to suggest that I made false excuse for reaching late so my CS.No. 385/10 Page 17 of 38 salary was deducted. I had applied for casual leave. It is correct that I did not work for half day but salary was wrongfully deducted as my casual leave was remaining. I do not know whether casual leave/earned leave can be sanctioned depending on the work."
28. Letter dated 05.03.2007 vide which the plaintiff has complained against deduction of half day salary is Ex.PW1/7. In the said letter, the plaintiff has stated, "When receiving pay for the month of February 2007, I found that the payment was less than usual. I inquired the reason for less payment. Then on my salary slip, it was added ½ day deducted. The reason for deduction of half day salary is not known to me... In so far as I remember that on 17.02.2007 I was late owing to unavoidable reasons. On reaching the school, I got filled a proforma for sanctioning half day casual leave. I do not know as to why instead of sanctioning half day casual leave, my salary for half day is deducted which is per se unfair".
29. In reference to letter dated 05.03.2007, the defendant has sent letter dated 19.03.2007 which is Ex.PW1/8. In the said letter dated 19.03.2007 the defendant school has stated that " in this behalf, we wish to inform you that you absented from duty in the first half of 17.02.2007 without any information or prior sanction of leave. That CS.No. 385/10 Page 18 of 38 upon reporting for duty in the second half of 17.02.2007, upon being questioned, you submitted a leave application seeking casual leave for half day without mentioning any purpose therein. We find that neither you had informed the school prior to your absenting nor you have stated any reason for absence in your application. Therefore, keeping in view these facts your leave application was not sanctioned.
Please note that as per the service Rules of the school, applicable to you, the availment of leave and its sanction is not a right but would depend upon exigencies of work and all leave are sanctioned for bonofide reasons as well as exigencies of work."
30. In reply to letter dated 19.03.2007 of the school, the plaintiff sent letter dated 07.04.2007 which is Ex. PW1/9. In the said letter, plaintiff has stated that as he reached school at 11.30 A.M. On 17.02.2007, he was required to give leave application on the form prescribed by the school. The form does not have any column for mentioning the purpose.
31. The service contract between the parties is Ex.PW1/DX1. Clause 21 of the service contract deals with leave holidays. It provides that all leaves are sanctioned according to the exigencies of work. Leave of whatsoever kind must be got sanctioned before it is availed, CS.No. 385/10 Page 19 of 38 such sanction can not be assumed or taken for granted.
32. Ld. counsel for defendant has argued that clause 15 of Employee Service Rules which is Ex.DW1/1 lays down that the school shall be entitled to make deductions from the salary of employee for all or any of the following purpose: (vi) employee's unauthorized absence from duty.
33. Plaintiff has proved the proforma for leave application of the school as Ex. PW1/10. Ld. Counsel for the plaintiff has argued that the proforma for leave application does not provide that any reason has to be given by the employee for applying for leave. It is admitted by the defendant that on 17.02.2007, there was casual leave in the account of the plaintiff, but as the plaintiff did not give prior intimation or prior sanction was not obtained from the school regarding absence, therefore half day salary was deducted.
34. The DW1 in his testimony has deposed that " It is correct that the plaintiff was late in the morning on 17.02.2007. It is correct that he has filed application for half day casual leave on that day itself after reaching the school. No prior permission was taken. I am not sure whether the school has asked the plaintiff as to why he was late on 17.02.2007. I am not sure whether in writing the plaintiff was CS.No. 385/10 Page 20 of 38 informed that his leave application of 17.02.2007 has been rejected. I do not know whether any written order was passed for deduction of half day salary for 17.02.2007.
Vol. In the attendance register if the signature of the employee is not there, his salary is deducted and no written order is required. There is service contract as per which we can deduct salary of the employee. I rely on clause 21 of service contract i.e. Ex.PW1/DX1. It is wrong to suggest that there is no provision for deduction of salary in this manner. It is correct that on 17.02.2007 there were casual leaves in the account of plaintiff. We did not accept the application of plaintiff for half day casual leave and therefore it was not granted."
35. Plaintiff has filed statement of Sh. Binoy P. Jose, Asst. Accountant of the defendant school given by him during his cross examination in the suit pending in the matter between the same parties "Jai charn & Ors. Vs. Don Bosco & Ors. CS 377/10". In the said suit, the employee of defendant no. 1 has deposed during his cross examination that "the leaves are sanctioned to the employees sometimes prior to availing the leave application in written by them and some times after the leave is availed, the employees write CS.No. 385/10 Page 21 of 38 application."
36. The clause 21 of the service contract does provide that leave of whatsoever kind must be got sanctioned before it is availed. However the proforma for leave application does not lay down that any purpose for taking leave has to be mentioned in the leave application. It is admitted that the plaintiff had applied for half day leave for 17.02.2007. DW1 has deposed that as signature of the plaintiff was not found in the attendance register, his half day salary was deducted. His testimony makes it clear that the half day casual application of the plaintiff was not considered. It was neither sanctioned and nor rejected. No communication for deduction of half day salary was sent to the plaintiff.
37. The defendant has failed to show that in each and every case or even in case of any emergency, the employee has to take prior sanction or prior permission or has to give prior intimation, although the rule provided so. It was not always followed is admitted by Sh. Binoy. P. Jose, Asst. Accountant in his crossexamination. It is no doubt true that the leave can not be obtained as a matter of right. The employee must obtain prior sanction of leave in case of anticipated events. However it is also true that casual leave can be taken in case of CS.No. 385/10 Page 22 of 38 unforeseen circumstances which was not contemplated. In the present suit, the plaintiff has deposed that he was late due to unavoidable circumstances as his bicycle had got punctured while he was coming to school. Plaintiff has not written the purpose of obtaining leave in the leave application form as no such column is there in the leave proforma.
38. Defendant has failed to show that the plaintiff earlier also has taken or applied for leave on frivolous grounds or by taking false plea. Therefore, this court holds that defendant was not justified in deducting half day salary of the plaintiff for 17.02.2007. Hence the deduction of half day salary is held as illegal and unjustified.
39. Plaintiff has also sought declaration that order dated 01.04.2007 of withholding increments with cumulative effect is illegal and malafide. In the affidavit PW1 has deposed that on 02.03.2007 he was served with show cause notice that 07.12.2006, he reached late for duty by 20 minutes after lunch brake and no information was given to school authorities regarding alleged unauthorized absence from place of duty.
40. Show cause notice dated 02.03.2007 is Ex.PW1/1. In the said show cause notice, the defendant school has alleged that on 07.12.2006 CS.No. 385/10 Page 23 of 38 the plaintiff reached late for duty by 20 minutes after lunch break and memo dated 08.12.2006 was given which was followed by letter dated 12.12.2006. Despite receipt of memo and letter the plaintiff has failed to submit any explanation. As per record you indulged in similar acts of misconduct in the past also and were warned, but you have continued to indulge in such acts. The management committee has recommended to withhold the increment of pay due to you w.e.f. April 2007. Before any such action is taken, you are given an opportunity to make any representation against the said action within seven days from receipt of this show cause notice.
41. The reply to the said show cause notice dated 05.03.2007 is Ex.PW1/2. In the reply, the plaintiff has submitted that he was never late by 20 minutes and he never refused to receive memo dated 08.12.2006. He has also stated that he has not used the defiant words as stated in show cause notice dated 02.03.2007. He has stated that he has not received letters dated 08.12.2006 and 12.02.2006 etc. He has also stated that he should be given equal statutory benefits and terms of service contracts should not be implemented as the plaintiff has signed them under duress.
42. The letter dated 01.04.2007 is Ex.PW1/3 vide which the CS.No. 385/10 Page 24 of 38 defendant school informed the plaintiff that the management committee had decided that the next increment due to the plaintiff w.e.f. 01.04.2008 shall be withheld for a period of 12 months. The said letter reads as under: "This refers to our show cause notice dated 02.03.2007. Your reply to the show cause notice was taken up for consideration by the members of Managing Committee of the school in its meeting of 06.03.2007. Your reply has been found unsatisfactory. In fact rather than explaining your position you have tried to justify you acts. Your past record has also been revived but no extenuating circumstances have been found in your favour. The members have therefore resolved to withhold your next increment for a period of twelve months. Accordingly, you are hereby communicated the order that your next increment due to you (w.e.f. 01.04.2008) shall be withheld for a period of twelve months. Your performance and conduct during the first six months after the withholding of increment will be under observation and if it is found that your performance has improved, then your may be granted the increment after completion of six months but without retrospective effect."
43. Against the said letter dated 01.04.2007, the plaintiff has written CS.No. 385/10 Page 25 of 38 letter dated 07.04.2007 which is Ex. PW1/4. In the said letter, it is again submitted by the plaintiff that there was no misconduct on his part and he hoped that after his reply dated 05.03.2007 to the show cause notice dated 02.03.2007, the show cause notice would be stopped or the committee would give him an opportunity of hearing. He has also stated in the said letter that an inquiry can establish that there was no misconduct on his part. He requested the defendant to hold an independent inquiry and give him an opportunity to furnish evidence.
44. In reference to letter dated 07.04.2007, the defendant has sent letter dated 03.05.2007 to the plaintiff which is Ex. PW1/5. In the said letter it is stated that since only a minor penalty is imposed on you, no inquiry is required to be conducted as per service contract. The said letter reads as under:
"Please be informed that the management has taken a decision to withhold your increment on the basis of a show cause notice issued to you and the explanation offered by you and principles of natural justice have been fully complied. Since only a minor penalty has been imposed on you, no inquiry is required to be conducted in the matter as per the Service Contract entered into with you. In these CS.No. 385/10 Page 26 of 38 circumstances please be advised order dated 01.04.2007 can not be withdrawn."
45. After receiving letter dated 07.04.2007, the plaintiff served notice dated 10.05.2007 through his advocate which is Ex. PW1/6. In the said notice the plaintiff has asked the defendant to withdraw order of withholding of increment for one year, withdraw order deducting half day salary for 17.02.2007 and cancel service agreement dated 03.02.2004 and to furnish true copy of service book.
46. The defendant has sent reply dated 13.08.2007 to the plaintiff in reference to notice dated 10.05.2007 and 08.08.2007 of the plaintiff. The reply dated 13.08.2007 is Ex. PW1/11. In the reply the defendant has stated that allegations of the plaintiff is baseless. It is also alleged that in order to disturb school environment, the plaintiff with few class IV employees has resorted to unjustified and illegal demands. It is also stated that defendant school is an unaided minority institution and are providing benefits and facilities as per the Delhi School Education Act. In the said reply, it is also stated that the reason for withholding of increments and nonsanctioning of leave is clarified in letters dated 03.05.2007 and 07.05.2007.
47. Ld. Counsel for the defendant has argued that withholding of CS.No. 385/10 Page 27 of 38 increments is a minor penalty as per the Employee's Service Rules and three is no requirement of holding inquiry before imposing minor penalty.
48. On the other hand, Ld. Counsel for the plaintiff has argued that withholding of increments though mentioned in category of minor penalty amounts to major penalty as the withholding of increments was with cumulative effect.
49. It is necessary to discuss the law laid down by Hon'ble Apex Court and Hon'ble High Courts on withholding of increments with cumulative effect. In Harish S/O Gajanan Agrawal vs Bank Of Maharashtra And Ors. 2006 (3) BomCR 491 Ho'ble Bombay High Court has observed as under:
"7. We have considered the contentions canvassed by the Learned Counsel for the parties as well as perused the judgment of the Apex Court in the case of Kulwant Singh Gill v. State of Punjab (cited supra) and the provisions of Bank of Maharashtra Officer Employees' (Discipline and Appeal) Regulations, 1976. It is no doubt true that as per Subclause (b) of Regulations 4, withholding of increments of pay with or without cumulative effect is punishment included in the category of minor penalties and reduction to a lower CS.No. 385/10 Page 28 of 38 grade or post, or to a lower stage in a time scale is the punishment stipulated in Clause (e) of Regulations 4 and is included in the category of major penalties. The Apex Court in the case of Kulwant Singh Gill v. State of Punjab (cited supra) was considering the similar provisions of Punjab Civil Services (Punishment and Appeal) Rules, 1970, wherein Clause (iv) of Rule 5 provided the punishment of withholding of increment of pay and this punishment was included in the category of minor penalty. Whereas, reduction to a lower stage in the timescale of pay for a specified period, with further directions as to whether or not the Government employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay was the punishment provided in Clause (v) of Rule 5 and was included in the category of the major penalties. The contention was advanced before the Apex Court in the said case by the Learned Counsel for the State that withholding of two increments with cumulative effect is only a minor penalty and it does not amount to reduction to a lower stage in the time scale. However, the Apex Court rejected this contention and in para 3 of its judgment observed thus :
CS.No. 385/10 Page 29 of 38
Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But Subrule (v) postulates reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the Government employee shall earn increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so falls Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, Learned Counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 6(iv) of the Rules. But when penalty was imposed withholding two increments i.e., for two years with cumulative effect, it would indisputably means that CS.No. 385/10 Page 30 of 38 the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order by necessary implication is that the appellant employee is reduced in his time scale by two places and it is imperpetuity during the rest of the tenure of his service with a direction that two years increments would not be counted in his time scale of pay as a measure of penalty. The words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent. When we broach the problem from this perspective the effect is an envisaged under Rule 5(v) of the Rules. It is undoubted that the Division Bench in Sarwan Singh v. State of Punjab and Ors. I.L.R.1985(2) P and H 193, speaking for the Division Bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within Clause (v) of Rule 5 or in Rule 4.12 of Punjab Civil Services Rules. It was further held that under Clause (v) of Rule 5 there has to be a reduction to a lower stage in the time scale of pay by the competent authority as a measure of CS.No. 385/10 Page 31 of 38 penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withheld with or without cumulative effect the Government employee is never reduced to a lower stage of time scale of pay. Accordingly it was held that Clause (iv) of Rule 5 is applicable to the facts of that case. With respect we are unable to agree with the High Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if the effect is kept at the back of the mind, it would always be so, the result will be the conclusion as we have arrived at. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments of earning future increments in the time scale of pay even permanently without expressly stating so. This preposterous consequences cannot be permitted to be permeated. Rule 5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry following the CS.No. 385/10 Page 32 of 38 prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void. Considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal."
50. Hon'ble Apex Court in the case of Kulwant Singh Gill v. State of Punjab 1990 (II) CLR SC 686 has held that the punishment of withholding of increments with cumulative effect is a major penalty and could not be imposed without conducting the departmental enquiry as well as the procedure required to be followed by the department before imposing major penalty.
51. In the present suit, withholding of increments of pay with or without cumulative effect is covered under the minor penalty clause of the Service Rules. The letter dated 01.04.2007 vide which the increments of plaintiff was withhold does not specify whether the order of withholding of increments was with or without cumulative effect. However during the course of final arguments, it is admitted by the defendant that withholding of increments in case of plaintiff has been done with cumulative effect.
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52. The plaintiff has examined PW2 George Wilson and PW4 Sh. Hari Chand to show that he was not late by 20 minutes for duty for which the order of withholding of increments has been passed. They both have deposed that after having lunch together, plaintiff has not gone out of school and he reached place of duty. However they have also deposed that they have not seen him personally whether he went to his place of duty or not. Nonetheless, in view of judgments mentioned above, I an of the opinion that the school was not justified in withholding increments with cumulative effect of the plaintiff without holding proper inquiry. Hence this court holds that the order dated 01.04.2007 of the defendant of withholding of increments with cumulative effect is illegal and not valid.
53. The plaintiff has also sought declaration that show cause notice dated 03.09.2008 is illegal and malafide. The letter dated 03.09.2008 has been issued by the defendant wherein the defendant has alleged that on the last day of school vacation 30.06.2008 when the school building and the surrounding was inspected by the administrator together with the Principal and the VicePrincipal to see if this school is prepared for the students who would resume the classes the next day, it was observed that the cleaning was incomplete in your place of CS.No. 385/10 Page 34 of 38 work and particularly dusting of windowpanes on the whole floor was not attended to although you were left free right through the holidays to complete the work.
54. The plaintiff has replied to this notice on 22.12.2008 and has submitted in the reply that the averments of the notice is false and malafide. The letter dated 03.09.2008 has been written about two months after 30.06.2008 and is also alleged that the letter has been written to create evidence that the work of the plaintiff is not satisfactory.
55. The letter dated 03.09.2008 though written after two months when the school was inspected by the Principal and VicePrincipal. But merely because the letter has been written after two months after the inspection was done does not give any inference that notice issued by defendant was false and malafide. It is relevant to mention that the defendant has put certain notices/warnings in the crossexamination of the plaintiff which are exhibited as Ex.PW1/DX2(Colly.). In those notices/warnings, the defendant has warned the plaintiff for being absent from duties, for not keeping the places clean as per the assignment, leaving the school premises without information etc. Some of these notices/warnings were written in the year 1986 and CS.No. 385/10 Page 35 of 38 1988. Though the plaintiff in his crossexamination has deposed that he has not received those notices/warnings. Then he has stated that he has not received some of them. He has further deposed that the school got these documents signed from him but the copy of the same was never given to him.
56. Assuming that the plaintiff has not received these notices, but it does not show that notices/warnings to the plaintiff even in the year 1986 & 1988 were issued with malafide intention. The plaintiff has stated in his affidavit that as he has been pursuing demands raised before different forums, defendant with malafide intention has given notice dated 03.09.2008. Perusal of the plaint shows that the demands has been raised against the defendant since 2003. However notices/warnings had been issued by the defendant since 1986. Therefore it can not be said that the notice dated 03.09.2008 was illegal and malafide. The defendant being the administrator and employer has right to give notices/warnings to its employee for proper management of the school, if the performance of the employee is not as per their assignment.
57. Therefore the relief of the plaintiff that the letter dated 03.09.2008 be declared as illegal and malafide is declined. This issue CS.No. 385/10 Page 36 of 38 is accordingly decided partly in favour of the plaintiff and partly in favour of the defendants.
58. Issue no. 3 Consequently, if so, whether plaintiff is entitled to the relief of mandatory injunction as prayed?
The onus to prove this issue was plaintiff. Plaintiff has prayed relief of mandatory injunction be issued against the defendants, to quash all these letters and act on the basis as if there did not exist any such letters as referred to above and to release the amount of increments as if letter dated 01.04.2007 had not been issued.
59. In view of my findings on issue no. 2, this court directs the defendant to quash order dated 01.04.2007 of withholding increments with cumulative effect of the plaintiff. The defendant is also directed to release the amount of increments as if letter dated 01.04.2007 has never been issued.
60. Issue no. 4 Whether plaintiff is entitled to the recovery along with interest, if so, at what rate and from what period? The onus to prove this issue was on the plaintiff. In view of my findings of issue no. 2 that deduction of half day wages by the defendant was unjustified, plaintiff is entitled to recovery of sum of Rs. 159/. Plaintiff has claimed interest at the rate of 18% p.a. Interest CS.No. 385/10 Page 37 of 38 claimed by the plaintiff is exorbitant. Plaintiff is entitled to reasonable rate of interest. Hence plaintiff is entitled to decree with interest @ 6% per annum from the date of notice dated 05.03.2007 till the realization of amount.
61. Relief In view of my findings on issue no. 2 to 4, the plaintiff is entitled to decree of declaration that the deduction of half day salary for 17.02.2007 and withholding of increments vide letter dated 01.04.2007 is wrongful, illegal and unjustified. The defendant is directed to quash letter dated 01.04.2007 and release the amount of increments as if letter dated 01.04.2007 has never been issued. Plaintiff is also entitled to decree of recovery for a sum of Rs. 159/ with interest @ 6% per annum from the date of notice dated 05.03.2007 till the realization of amount. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to the record room. Pronounced in the open court on 09.02.2012 (NEHA) Civil Judge03(South) Saket, New Delhi.
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