Delhi High Court
The Management Of M/S Shafiq Memorial ... vs Sh. Padam Kant Saxena, Presiding ... on 24 July, 2001
Equivalent citations: 94(2001)DLT261, 2002(61)DRJ238, [2002(92)FLR240]
Author: Dalveer Bhandari
Bench: Dalveer Bhandari, Mahmood Ali Khan
ORDER Dalveer Bhandari, J.
1. This Letters Patent Appeal is directed against the judgment and order dated 6.1.1996 passed by the learned Single Judge dismissing the writ petition in liming. The appellant had challenged in the writ petition the award passed by the learned Presiding Officer, Labour Court No.IX, New Delhi published in the gazette on 16.10.1995.
2. Brief facts necessary to decide this appeal are set to as under:-
3. The appellant is a recognised aided minority educational institution. Respondent No.2 Mohammed Salman Abbasi was appointed as an Upper Division clerk on a purely ad-hoc basis from 11.6.1977 to 31.12.1977. According to Rule 98 of the Delhi School Education Rules, 1973, it is mandatory that every appointment made by the managing committee of an aided school shall, initially, be provisional and requires the approval of the Director of Educational. In other words, no appointment in an aided school can be made without the prior approval of the Director of Education. Rule 98 of the Delhi School Education Rules, 1973 reads as under:-
98. Appointing authority-- (1) The appointment of every employee of a school shall be made by its managing committee.
(2). Every appointment made by the managing committee of an aided school shall, initially, be provisional and shall require the approval of the Director;
Provided that the approval of the Director will be required only where Director's nominee was not present in the Selection Committee/DPC or in case there is difference of opinion among the members of the Selection Committee;
Provided further that the provision of this sub-rule shall not apply to a minority aided school.
(3) The particulars of every appointment made by the managing committee of an aided school shall be communicated by such committee to the Director (either by registered post acknowledgement due or by messenger who will obtain an acknowledgement of the receipt thereof), within seven days from the date on which the appointment is made.
(4) The Director shall be deemed to have approved an appointment made by the managing committee of an aided school if within fifteen days from the date on which the particulars of the appointment are communicated to him under sub-rule (3), he does not intimate to the managing committee his disapproval of the appointment, and the person so appointed shall be entitled for his salary and allowance from the date of his appointment.
(5) Where any appointment made by the managing committee of an aided school is not approved by the Director, such appointment may (pending the regular appointment to the post) be continued on an adhoc basis for a period not exceeding three months and the salary and allowances of the person so continued on an adhoc basis shall qualify for the computation of the aid to be given to such school.
4. It may be pertinent to mention that in response to the recommendation for the approval of the ad-hoc appointment of respondent No.2, the Education Officer vide letter dated 20.7.1977 declined to approve the said appointment. In pursuance of a further request on behalf of the appellant, the Director of Education informed the school management that the ad-hoc appointment of respondent No.2 has been approved for the post of Upper Division Clerk w.e.f. 11.6.1977 to 2.10.1977 on ad-hoc basis, subject to the condition that the post is covered under the post fixation. Thereafter, further approval was granted to respondent No.2 on the same basis up to 31.12.1977.
5. On 5.1.1978 in a meeting of the managing committee of the appellant it was decided that no regular appointment could be given to respondent No.2 as the post of Upper Division Clerk was a promotional post and the claim of an eligible incumbent in the feeder cadre of Lower Division Clerk was under consideration. The managing committee decided to offer the post of Lower Division Clerk to respondent No.2 on ad-hoc basis. The offer was given to respondent No.2 vide letter dated 7.1.1978 by the Principal. The same reads as under:-
7.1.78 Dear Mr. Salman Abbasi, You were appointed as U.D.C. on ad-hoc basis up to 31.12.77. The post of U.D.C. is a promotion post and the claim of present L.D.C. for promotion is under consideration and he has been given time to improve himself and prove worthy of being promoted.
In these circumstances on the post of U.D.C. a regular appointment cannot be made. The Managing Committee decided to offer you the post of L.D.C. as I informed you. If you are prepared to accept the same please let me know at once. If you do not want to accept it you are relieved today.
Yours faithfully, Sd/-
(Mohd. Adil) Principal
6. Respondent No.2 on the same day had sent a letter of acceptance to the Principal in which he requested the school to permit him to continue to work at his own risk and responsibility. It may be pertinent to mention that he also agreed that he may not be paid the salary of a Upper Division Clerk and if the Directorate of Education does not approve his appointment, in that event he will not make any claim for the same. Respondent No.2's letter of acceptance set to the Principal of the school as under:-
Dated 7.1.78 The Principal, S.M. School, Bara Hindu Rao, Delhi.
Sir, I request you to permit me to continue to work in the school office at my risk and responsibility. If the Managing Committee agreed to extend my ad-hoc appointment as U.D.C. and the Directorate of Education approves the same, I may be paid salary as U.D.C. otherwise I will make no claim for the same.
In case the M.C. insists and appointment as L.D.C. subject to the approval of the Directorate of Education, I will accept the salary of L.D.C. for the period of work here from 1.1.78 onward.
Yours faithfully, Sd/-
(Mohd. Salman Abbasi) U D C
7. The Directorate of Education did not grant further extension beyond 31.12.1977. The letter dated 16.3.1978 sent by the Education Officer to the Manager of the school reads as under:-
"I am to refer to your letter No. 834 dated 7.2.78 on the abode subject, I am to inform you that no further extension beyond 31.12.77 is approved by the Department.
You may however submit a case afresh for consideration for ad-hoc appointment of Shri M.S. Abbasi as L.D.C. against the post of U.D.C. for a period not exceeding six months."
8. The manager of the school appointed respondent No.2 as a Lower Division Clerk on ad-hoc basis for six months w.e.f. 1.1.1978 against the post of Upper Division Clerk subject to the approval by the Directorate of Education. The letter dated 25.6.1978 reads as under:-
"Resolved that Sh. Salman Abbasi, M.A. be and is hereby appointed as Lower Division Clerk in the school office on ad-hoc basis for 6 months w.e.f. 1.1.78 against the post of U.D.C. subject to eth approval by the Directorate of Education, Delhi.
9. The Directorate of Education granted approval to respondent No.2 as Lower Division Clerk from 1.1.1978 to 30.6.1978. The letter sent by the Education Officer granting approval reads as under:-
To The Manager/Principal, Shafiq Memorial Hr. Sec. School, Bara Hindu Rao, Delhi, With reference to your letter NO. 981 dated 28.6.78 on the subject cited above, I am to convey the approval of the Director of Education, Delhi for the post of LDC in the scale of Rs. 260-400 to Shri M.S. Abbasi w.e.f. 1.1.78 to 30.6.78 subject to the conditions that the post is covered under the post fixation. The appointment is made against a sanctioned vacant post caused by Resignation/Promotions/leave vacancy by Shri.______.(Name not mentioned in the letter field by the petitioner) Copy of the joining report of the above incumbent may please be sent to this office.
Original Degree/Certificates may also please be collected from this office.
Yours faithfully, Sd/-
B.S. Chauhan Education Officer"
10. The approval from the Directorate of Education was not received. Respondent No.2 thereafter initiated conciliation proceedings which resulted into a reference for adjudication by the Delhi Administration by its order dated 10.5.1979. The terms of the reference were as follows:-
"Whether the services of Shri Mohammad Salman Abbasi have been terminated illegally and/or unjustifiably and if so, to what relief, is he entitled?"
11. The Labour Court vide order dated 4.8.1995 held that respondent No.2 was doing clerical work and as such he is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and the termination of his services for any reason amounts to retrenchment and non compliance of the provisions of section 25-F renders his termination illegal because respondent No.2 was not paid retrenchment compensation or notice pay as contemplated by Section 25-F of the Industrial Disputes Act, 1947 which is a condition precedent. The Labour Court directed that the workman is entitled to the relief of full backwages and continuity of service.
12. Mr. B.B. Sawhney, learned counsel appearing for the appellant submitted that it is not a case of termination simpliciter, but is a case of termination by efflux of time. In other words, the appointment of respondent No.2 was for a specified period on ad-hoc basis and after the expiry of that period, the appointment automatically got terminated. It was not a case of termination of service of respondent No.2.
13. Mr. Sawhney submitted that the case of respondent No.2 is governed by the Delhi School Education Act, 1973 which is a comprehensive and self contained act and respondent No.2 ought to have resorted to the remedies available under the said Act. Mr. Sawhney submitted that the appellant is a very small aided minority school and looking to the total number of the employees of the school, it cannot be termed as an industry. Mr. Sawhney further submitted that the appointment of respondent No.2 was as per Rules 96 and 98 of the Delhi School Education Rules, 1973. He further submitted that the ex-post facto sanction granted by the Directorate of Eduction for a period beyond 240 days would not lead to the conclusion that the services of respondent No.2 were regularised. He submitted that the appointment can only be made within the ambit of Rules 96 and 98 of Delhi School Education Rules, 1973.
14. Mr. Rajive Aggarwal, learned counsel appearing for respondent No.2 submitted that respondent No.2, Presiding Officer of the Labour Court, while passing the impugned award has neither acted without jurisdiction nor has failed to exercise the jurisdiction so vested in him. He further submitted that the impugned award does not suffer from any illegality as there is no manifest error on the face of the award. He further submitted that award has been affirmed by the learned Single Judge and no interference is called for by this Court.
15. Mr. Aggarwal also submitted that while exercising extraordinary jurisdiction and the power of supervisory jurisdiction under Article 226 & 227 of the Constitution, this Court should not substitute its opinion and defeat underlying purpose, spirit and intention of the legislature.
16. Mr. Aggarwal also submitted that the Labour Court by the impugned award has only restored the position of respondent No.2. The Court has not regularised the services of respondent No.2. He further submitted that respondent No.2 was not given opportunity of being heard before termination of his service and he was also not given notice pay or compensation. Therefore, termination of respondent No.2 is clearly violative of the provisions of Section 25 F & G of the Industrial Disputes Act, 1947.
17. Mr. Aggarwal submitted that the Industrial Disputes Act applies to the aided minority educational institutions. According to him, the appellant school never raised this issue that respondent No.2 is governed by the Delhi School Education Act and Rules, 1973 and not by the Industrial Disputes Act, 1947. The school cannot now be permitted to raise this ground at this stage. he submitted that admittedly respondent No.2 has worked for more than 240 days for the purpose of Section 25-B of the Act and, therefore, the termination of his services without complying with the provisions of Section 25-F of the Act is not only illegal but void ab initio.
18. It is pertinent to mention that 95% funds of the private minority aided school are drawn from the Directorate of Education, but the Directorate of Education was not even made a party in all these proceedings. On our request Mrs. Avinash Ahlawat, learned Counsel for the Directorate of Education assisted the Court in this case.
19. Apart from the aforesaid submissions, learned counsel for the appellant Mr. B.B. Sawhney, submitted that it is not a case of termination simpliciter. He also submitted that according to Rule 98 of the Delhi School Education Rules, 1973 there is a statutory embargo placed on the management not to make any appointment without the approval of the Directorate of Education. In the instant case, the Management could not continue respondent No.2 in service, because they did nt receive the approval of the Directorate of Education. He submitted that because of the statutory restriction or embargo on the management, the management was totally helpless in the matter and could not make any appointment. Financial aid to he extent of 95% is to be provided by the Directorate of Education to the private aided schools. The existence or survival of the private schools are predominantly dependent on the grants received from the Director of Education and consequently they have to abide by the directions and orders issued by the Director of Education. Apart from the grants there are specific provisions in the Delhi School Education Act and those provisions have to be strictly adhered to.
20. The learned counsel for the appellant submitted that no illegality or irregularity could be attributed to the management because they were totally at the mercy of the Directorate of Education for getting approval and in absence of approval, the management could not continue respondent No.2 in service. The consequence of continuing respondent No.2 in service would be to perpetuate the illegality and irregularity and consequently the actions and decisions of the management wold be in direct contravention of the provisions of the Delhi School Education Act and the rules framed there under. Apart form this, the appellant is in no financial position to pay remaining 95% salary of respondent No.2.
21. The learned Counsel for the parties have placed reliance on a number of judgments. We do not deem it necessary to refer them and burden this judgment because we are deciding this judgment on the basis of the doctrine of statutory prohibition dealt by the Supreme Court in the case of R.B. Sewak Ram Maternity Hospital vs. Presiding Officer, Labour Court, Jalandhar .
22. Both Mrs. Ahlawat and Sawhney placed reliance on the aforementioned R.B. Sewak Ram's judgment of the Supreme Court. This case relates to the employment of the respondents therein as auxiliary nurses and midwives in the hospital. The respondents in the said case are holders of Diploma, but they were not registered under the Punjab Nurses Regulation Act, 1932. Section 17 of the said Act prohibits employment of an unregistered nurse. Therefore, services of the respondents had to be terminated by the appellant. Termination of the services gave rise to an industrial dispute, which was referred for adjudication to the Labour Court.
23. The Labour Court held the termination of services of the respondents to be illegal on the ground that it constitutes retrenchment under Sections 2(oo) and 25-F of the Industrial Disputes Act were not complied with. The writ petition field by the hospital management was dismissed by the High Court. In the appeal before the Supreme Court the main submission of the appellant, hospital management, was that since the respondents were not duly registered as nurses under the provisions of the Act, therefore, they cannot be appointed as nurses and, the direction regard their reinstatement wold run counter to the express provisions of the Act. Their Lordships of the Supreme Court in the aforementioned case observed that in view of the prohibition contained in Section 17 of the Act against employment of a person who is not registered as a nurse under the Act, no direction could be given for reinstatement of the respondents till they obtained such registration. The direction regarding reinstatement given by the Labour Court, has, therefore, to be read as subject to the respondents obtaining the necessary registration under the provision of the Act. Their Lordships of the Supreme Court further observed that under these circumstances backwages could not be awarded to the respondents and the Labour Court was in error in directing payment of backwages. The Supreme Court consequently set aside the direction given by the Labour Court regarding payment of backwages and also directed that reinstatement would be subject to the respondents obtaining registration as nurses under the provisions of the Act. The facts of this case are quite akin to the facts of the case at hand. The appellant management did not receive prior approval from the Directorate of Education and according to Rule 98 of the Delhi School Education Rules, 1973, therefore, respondent No.2 could not be continued. In view of the statutory prohibition and embargo, the appellant can not be compelled to reinstate respondent No.2 in service.
24. According to the ratio of the aforesaid Supreme Court judgment respondent No.2 is not entitled to backwages and the order of the Labour Court regarding payment of backwages which has been affirmed by the learned Single Judge is liable to be set aside. As far as reinstatement is concerned, that would be subject to respondent No.2's getting approval from the Directorate of Education as envisaged under Rule 98 of the Delhi School Education Rules, 1973. Until the approval is received from the Director of Education, the management of the school cannot take any decision with regard to respondent No.2.
25. Consequently this appeal is allowed and judgments of the High Court and the Labour Court are set aside. In the facts and circumstances of the case, the parties are directed to bear their own costs.