Delhi High Court
Meena Oberoi vs Cambridge Foundation School And Ors on 5 December, 2019
Equivalent citations: AIRONLINE 2019 DEL 1934, 2020 (1) ADR 486 (2019) 265 DLT 401, (2019) 265 DLT 401
Author: C. Hari Shankar
Bench: C. Hari Shankar
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) 1363/2013
MEENA OBEROI ..... Petitioner
Through: Mr. Mukesh Anand, Adv.
versus
CAMBRIDGE FOUNDATION SCHOOL AND ORS
..... Respondents
Through: Mr. Pramod Gupta, Adv. with
Ms. Manogya Singh and Ms.
Ankita Khanna, Advs. for R-1
and 2
Ms. Latika Choudhary, Adv. for
R-3 and 4
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
05.12.2019
1. The petitioner was appointed as Office Assistant, in the
Respondent No.1 School (hereinafter referred to as ―the School‖), on
4th July, 1991, and was confirmed, on the post, in 1993.
2. Consequent on the acceptance, of the recommendations of the
6th Central Pay Commission (hereinafter referred to as ―the 6th CPC‖)
by the Central Government, and the extension, thereof, to teachers, the
petitioner represented, on 21st April, 2009, to the School, objecting to
the fixation of her pay without extending, to her, the benefit of the said
recommendations. This was followed by reminders, dated 5th May,
2009 and 26th May, 2009.
WP (C) 1363/2013 Page 1 of 36
3. On 26th May, 2009, the School wrote to the petitioner, stating
that an error had been committed, while fixing her pay, at the time of
her initial appointment in 1991, which had been rectified by the
School. Chagrined, the petitioner protested, vide representation dated
30th June, 2009. This communication, avers the petitioner, elicited no
response.
4. On 21st July, 2009, an Office Order was issued by the School,
stating that it had been decided to discontinue the earlier existing
system of collection of fee and charges, in cash, from parents of
students studying in the School, w.e.f. 1st June, 2009. This change, the
Order went on to state, rendered the petitioner surplus, and her
continuance in the School ―un-productive, un-utilized, financial
burden on the school‖. Citing an Order, dated 11 th February, 2009,
issued by the Director of Education (hereinafter referred to as ―the
DoE‖), requiring the School to find out ways to minimise passing on
of its financial burden onto the parents of the students enrolled with it,
the Order dispensed with the services of the petitioner, with immediate
effect. Two cheques, for ₹ 55,731/-, and ₹ 11,420/-, representing the
petitioner's pay for the month of July, 2009, were also enclosed with
the Order.
5. After representing, unsuccessfully, against the aforesaid Order,
dated 21st July, 2009,vide communication, dated 4th August, 2009, the
petitioner preferred a statutory appeal, under Section 8(3) of the Delhi
School Education Act, 1973 (hereinafter referred to as ―the DSE
WP (C) 1363/2013 Page 2 of 36
Act‖), before the Delhi School Tribunal (hereinafter referred to as ―the
Tribunal‖) thereagainst.
6. Before the Tribunal, the petitioner advanced, principally, five
submissions. Firstly, it was contended that her disengagement, by the
School, was by way of retaliation to her repeated representations,
seeking extension, to her, of the benefit of revised pay fixation, as
recommended by the 6th CPC. Secondly, the petitioner contended that
the decision, to treat her as surplus, was unjustified on facts as well as
in law. Thirdly, the petitioner sought to invoke Rule 46 of the Delhi
School Education Rules, 1973 (hereinafter referred to as ―the DSE
Rules‖), which did not entitle the Management of a School, to close
down the school or any existing class, therein, without prior approval
of the DoE. Fourthly, it was submitted that the impugned decision was
issued in violation of Section 8(2) of the DSE Act, which required
prior approval, of the DoE, to be obtained by the School before
terminating the services of any its employees. Fifthly, the petitioner
alleged that her removal, which amounted to ―retrenchment‖ as
defined in Section 2 (oo) of the Industrial Disputes Act, 1947
(hereinafter referred to as ―the ID Act‖), had been effected in violation
of Section 25F thereof.
7. For ready reference, Sections 8(2) of the DSE Act, Section
2(oo) and 25F of the ID Act and Rule 46 of the DSE Rules, may be
reproduced thus:
WP (C) 1363/2013 Page 3 of 36
Section 8(2), DSE Act
―8. Terms and conditions of service of employees of
recognised private schools. --
(2) Subject to any rule that may be made in this
behalf, no employee of a recognised private school
shall be dismissed, removed or reduced in rank nor
shall his services be otherwise terminated except with
the prior approval of the Director.‖
Section 2(oo), ID Act
―(oo) ―retrenchment‖ means the termination by the
employer of the service of a workman for any reason
whatsoever, otherwise than as a punishment inflicted by
way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age
of superannuation if the contract of employment
between the employer and the workman concerned
contains a stipulation in that behalf; or
(bb) termination of the service of the workman as a
result of the non-renewal of the contract of
employment between the employer and the workman
concerned on its expiry or of such contract being
terminated under a stipulation in that behalf contained
therein; or
(c) termination of the service of a workman on the
ground of continued ill-health;‖
Section 25F, ID Act
―25F. Conditions precedent to retrenchment of workmen.-
No workman employed in any industry who has been in
continuous service for not less than one year under an
employer shall be retrenched by that employer until--
WP (C) 1363/2013 Page 4 of 36
(a) the workman has been given one month's notice
in writing indicating the reasons for retrenchment and
the period of notice has expired, or the workman has
been paid in lieu of such notice, wages for the period
of the notice;
(b) the workman has been paid, at the time of
retrenchment, compensation which shall be equivalent
to fifteen days' average pay for every completed year
of continuous service or any part thereof in excess of
six months; and
(c) notice in the prescribed manner is served on the
appropriate Government or such authority as may be
specified by the appropriate Government by
notification in the Official Gazette.‖
Rule 46, DSE Rules
―46. Closing down of a school or any class in a school. --
No managing committee shall close down a recognised
school, not being an unaided minority school, or an
existing class in such school without giving full
justification and without the prior approval of the
Director, who shall, before giving such an approval,
consult the Advisory Board.‖
8. The School contended, per contra, before the Tribunal, that, in
view of the decision, by the School, to discontinue, w.e.f. 1st June,
2009, the system of collection of fee, from the parents, at the fee
collection counter, the entire fee collection department had become
surplus. This department consisted of Ms. Aruna Sikka, Ms. Sushma
Sharma and the petitioner, in that order of seniority. Ms. Aruna Sikka,
being due to retire on 30th September, 2009, was retained. The
Accounts Department of the School could accommodate only one
WP (C) 1363/2013 Page 5 of 36
person, and Sushma Sharma, being senior to the petitioner, was
preferred. The petitioner could not be accommodated in any other
capacity in the school, as a result whereof, the School contended, her
continuation in its services was unproductive, underutilised and a
financial burden. It was for this reason, contended the School, that the
petitioner's services were dispensed with, on 21st July, 2009, after
paying her notice pay and salary, for the month of July, 2009, by way
of two cheques, along with a separate cheque, towards her terminal
dues, for ₹ 1,97,007/-. The School relied on Rule 47 of the DSE
Rules, to contend that the termination of service of surplus employees
was permissible. The decisions of this Court, in Prabhu Dayal Public
School v. Prahlad1 and Prabhu Dayal Public School v. Anirudh
Singh2 were relied upon. For ready reference Rule 47 of the DSE
Rules is reproduced thus:
―47. Absorption of surplus employee, etc. --
(1) Where as a result of -
(a) the closure of an aided school or any
class or classes in any aided school; or
(b) withdrawal of recognition from an aided
school; or
(c) withdrawal of aid from an aided school,
any student or employee becomes surplus, such student
or employee, as the case may be, may be absorbed as
far as practicable, in such Government school or aided
school as the Administrator may specify:
Provided that the absorption in Government service of
any employee who has become surplus shall be subject
1
ILR (2008) Supp. 8 Delhi 182
2
(2012) 1 LLJ 737
WP (C) 1363/2013 Page 6 of 36
to the availability of a vacancy and shall be subject
further to the condition that the concerned employee
possesses the requisite qualifications for the post and
has not been retrenched by the management of the
aided school on any ground other than the ground of
closure of the school or any class or classes of the
school, or withdrawal of recognition or aid from the
school:
Provided further that where any such surplus employee
is absorbed in a Government school, he shall be treated
as junior to all the persons of the same category
employed in the Government schools on the date
immediately preceding the date on which he is so
absorbed, and where such surplus employee is
absorbed in an aided school, he shall rank as junior to
all the persons of the same category employed in that
school on the date immediately preceding the date on
which he is so absorbed.
(2) Where any surplus employee is absorbed under
sub-rule (1) --
(a) the salary and other allowance last drawn by
him at the school from which he has become surplus
shall be protected;
(b) his provident fund account shall be transferred
to the school in which he is so absorbed, and thereupon
such provident fund shall be governed in accordance
with the rules and regulations in force in that school in
relation to provident fund; and
(c) the period of his qualifying service in the school
in which he had worked before such absorption and
any previous period of qualifying service, if any, in any
recognised aided school in Delhi shall be taken into
account for the purpose of computing his pension and
other retirement benefits.
(3) Without prejudice to the provisions of sub-rules (1)
and (2), where an employee becomes surplus by reason of the
closure of any class or section thereof or the discontinuance of
the teaching of any subject, such employee may be absorbed
WP (C) 1363/2013 Page 7 of 36
in the first instance, as far as practicable, in such Government
or aided school as the Administrator may specify, and if the
class or section which was closed is reopened by the former
school or if any new class or section thereof is opened by such
school or if the subject, the teaching of which was
discontinued, is re-introduced by such school, or strength of
the staff of the former school is increased, such employee
shall be reabsorbed in the former school; but if such re-
absorption does not take place within a period of five years
from the date of absorption of such employee in the
Government or aided school, such employee shall be regularly
absorbed in such Government or aided school, as the case
may be.
(4) Re-absorption of an employee in a former school shall
not affect his continuity of service or his seniority in relation
to that school or his emoluments, provident fund, gratuity and
other retirement benefits.‖
9. Vide the impugned Order/judgment, dated 4th December, 2012,
the Tribunal has dismissed the petitioner's appeal. Reliance has been
placed, by the Tribunal, on the judgments, of this Court, in Prabhu
Dayal Public School v. Prahlad1 and Prabhu Dayal Public School v.
Anirudh Singh2.
10. It has been held, by the Tribunal, that, as the School closed
down its fee Collection Department - similar to the closure of the
Transport Department, in the two Prabhu Dayal Public School
judgments supra - retrenchment of the workman, rendered surplus as
a result, could not be treated as unjustified.
11. Prabhu Dayal Public School v. Anirudh Singh2 also relied on
the judgment, of a Division Bench of this Court in Kathuria Public
WP (C) 1363/2013 Page 8 of 36
School v. Director of Education3, to the effect that unaided
recognised schools were not required to seek prior approval of the
Directorate of Education in terms of Section 8(2) of the DSE Act,
before dismissing or removing an employee from service.
12. As such, the retrenchment of the petitioner, as the junior most
employee in the fee collection department, was found to be justified.
13. The Tribunal also found that, though the petitioner had not been
paid retrenchment compensation, at the time of her disengagement by
the School, on 21st July, 2009, the School had, during the course of
proceedings, before the Tribunal, offered ₹ 1,60,000/-, by way of
cheque, towards retrenchment compensation. In the opinion of the
Tribunal, the ends of justice would be met if the said amount was
directed to be paid to the petitioner, with interest @ 18 % per annum,
computed quarterly.
14. Aggrieved by the aforesaid order, dated 4th December, 2012, of
the Tribunal, the petitioner has moved this Court by means of the
present writ petition.
Submissions and Analysis
15. I have heard Mr. Mukesh Anand, learned counsel for the
petitioner, Mr. Pramod Gupta, learned counsel for Respondent Nos. 1
3
(2005) 123 DLT 89
WP (C) 1363/2013 Page 9 of 36
and 2 as well as Ms. Latika Choudhary, learned counsel for
Respondent No. 3, at length.
16. Learned counsel essentially reiterated their respective
submissions, advanced before the learned Tribunal.
17. Having heard learned counsel and perused the material on
record, as well as the extant legal position that obtains in law, I am of
the opinion that, while the petitioner has no case, on the first three
grounds canvassed by her, before the learned Tribunal, on the fourth
and fifth grounds, she is bound to succeed.
18. The first contention advanced by the petitioner, before the
learned Tribunal, was that her disengagement, by the School, was by
way of a counter-blast, to the repeated representations of the
petitioner, regarding fixation of her pay. There is no material, on
record, to support this allegation.
19. Allegations of bias are not to be easily accepted, and merit
consideration only where there is material, overt or covert, reflective
of bias. The submission that, merely because she was repeatedly
representing, regarding fixation of her pay, the School was biased
against her, needless to say, merits rejection outright.
20. Representations, regarding service conditions, are a matter of
common occurrence in all establishments, Governmental as well as
Non-Governmental, and it is facile to suggest that such representations
WP (C) 1363/2013 Page 10 of 36
result in bias, on the part of the establishment, against the representing
employer/employees. It is not as though the petitioner had made
personal allegations, in her allegations, against any of the senior
functionary of the School. As such, the submission, of the petitioner,
that the decision to remove her from service was actuated by bias, is
rejected.
21. The petitioner contends, secondly, that there was no
justification to treat her as surplus.
22. Whether any particular employee has, or has not, become
surplus, is essentially a matter of administrative discretion, of the
establishment concerned. If there is no material, whatsoever, to
indicate that the employee had actually became surplus, a court may
legitimately intervene; however, if cogent reasons, for treating an
employee as surplus are adduced, the legitimacy, or sufficiency, or
such reasons, cannot be subject matter of judicial scrutiny. If a court
reaches the conclusion, on the facts of any particular case, that an
employee is being treated as surplus, merely to find a convenient way
of easing him out, the decision would undoubtedly merit interference.
Else, the court would be transgressing the limits of its jurisdiction, in
interfering with the decision of the establishment, regarding any
particular employee, or employees, having become surplus.
23. In the present case, the School has adduced cogent and
convincing reasons for treating the petitioner as surplus. According to
the School, a policy decision was taken, to discontinue the system of
WP (C) 1363/2013 Page 11 of 36
taking of fees, and charges payable by students, at the counter. This,
according to the School, resulted in the services of the petitioner
becoming surplus, as she was essentially engaged in receipt of fees,
over the counter, from parents. There is no cogent material, on the
record, to question the correctness of these facts - which have been
accepted by the learned Tribunal in the impugned Order/judgment,
dated 4th December, 2012 - or, consequently, of the services of the
petitioner having, thereby, been rendered surplus. This Court cannot
sit in appeal over the said decision.
24. As such, the contention, of the petitioner, that her services were
needlessly being treated as surplus, is also rejected.
25. Thirdly, the petitioner relies on Rule 46 of the DSE Rules. This
reliance, too, is, in my view, without substance, as Rule 46 of the DSE
Rules, dealt with closure of School, or of any class of the School.
Neither has the School been closed, nor was any class, in the School,
closed. The decision, of the School, to discontinue with the system of
collection of fees and charges, from the parents, across the counter,
cannot, in my view, be treated as closure of a ―class‖, by any stretch of
imagination.
26. This submission of the petitioner, too, is, therefore, in my view,
without merit.
27. The fourth and fifth submissions of the petitioner, which are
predicated on Section 8(2) of the DSE Act and on Section 25F of the
WP (C) 1363/2013 Page 12 of 36
ID Act, are, however, entitled to succeed, in view of the said
provisions, and the prevalent legal position, relating thereto.
28. The contention of the petitioner, predicated on Section 8(2) of
the Act, is that, by reason of the said provision, her service could not
have been disengaged by the School without the prior approval of the
DoE.
29. Section 8(2) ordains that no employee of a recognised private
school shall be dismissed, removed or reduction in rank, nor shall his
service be otherwise terminated except with the prior approval of
DoE.
30. The expressions ―dismissed‖, ―removed‖, ―reduced in rank‖ and
―otherwise ... terminated‖ are comprehensive and all-encompassing in
nature and embrace, within themselves, every possible contingency,
by which the services of an employee of the school are disengaged.
The intention, of the legislature, to cover all forms of disengagement
of employees, is manifest by the cautionary use of the word
―otherwise‖, in the expression ―nor shall his service be otherwise
terminated‖.
31. The wide amplitude of the expression ―otherwise‖ has been
noticed, by the Supreme Court, in several decisions.
32. While examining the expression ―or otherwise‖, as contained in
Article 356(1) of the Constitution of India - which empowers the
WP (C) 1363/2013 Page 13 of 36
President of India to proclaim a state of emergency ―on receipt of a
report from the Governor of a State or ―otherwise‖, the Supreme
Court held, in S.R. Bommai v. U.O.I4, the expression ―otherwise‖
meant ‗―in a different way‖ and (was) of a very wide import and
(could not) be restricted to material capable of being tested on
principles relevant to admissibility of evidence in Court of Law.‖ In
U.O.I. v. Brahma Dutt Tripathi5, the Supreme Court was concerned
with the expression ―or otherwise‖ as it occurred in Section 9 of the
National Cadet Corps Act 1948, which reads thus:
―7. The Central Government may provide for the
appointment of officers in or for any unit of the Corps either
from amongst members of the staff of any university or
school or otherwise and may prescribe the duties, powers and
functions of such officers.‖
(Emphasis supplied)
The Supreme Court held that the expression ―or otherwise‖ related to
other members of the corps other than the staff of any university or
school, including a student, who was a member of the corps.
Similarly, in Lila Vati Bai v. State of Bombay6, it was held that the
legislature when it used the words ―or otherwise‖ apparently intended
to cover other cases which may not come within the meaning of the
preceding clauses. Other decisions, of the Supreme Court, which
notice the overarching scope of the expression ―or otherwise‖ are
Nirma Industries Ltd v. Director General of Investigation and
Registration7, Sunil Fulchand Shah v. U.O.I.8 and Tea Auction Ltd.
v. Grace Hill Tea Industry9.
4
(1994) 3 SCC 1
5
(2006) 6 SCC 220
6
AIR 1957 SC 521
7
(1997) 5 SCC 279
WP (C) 1363/2013 Page 14 of 36
33. It is also important to note, in this context, that the expression
used in Section 8(2), is not merely, ―or otherwise‖, but is ―or
otherwise terminated‖. The expression ―termination‖ etymologically,
refers to the determination of the relationship, between the employer
and the employee. Cases which result in the determination of the said
relationship would, therefore, amount to ―termination‖ and, in my
view, the expression ―or otherwise terminated‖ is expressive of the
legislative intent to include all such cases within the provisions.
34. Equally, the expression ―remove‖ has, simply but felicitously,
been explained, by the High Court of Mysore in State of Mysore v.
B. Chikkavenkatappa10, as meaning ―to take off or away from the
place occupied‖. Every case in which an employee is taken off, or
taken away, from the place occupied by him in the establishment
would, therefore, amount, etymologically, to ―removal from service‖.
For this reason, the expression ―removed from service‖ has been held,
by the Supreme Court, to be synonymous with termination of
service11.
35. Clearly, therefore, every type of disengagement, from service,
would be covered by the expressions ―dismissed‖, ―removed‖, or
―otherwise ... terminated‖, as employed in Section 8(2) of the DSE
Act. Cases of cessation of the employer-employee link at the instance
of employee, such as cases of abandonment of service would not,
8
(2000) 3 SCC 409
9
2006 12 SCC 104
10
1964 SCC OnLine Kar 141
11
R. P. Kapur v. S. Pratap Singh Kairon, AIR 1964 SC 295
WP (C) 1363/2013 Page 15 of 36
therefore, attract the provision. Where, however, by an act of the
employer, the employee is removed from the employer's services, the
applicability 8(2) of the DSE Act cannot be gainsaid.
36. A case of disengagement from service, on the ground that the
post or the employee had become surplus, would, consequently, also
be covered thereby.
37. On the issue of whether Section 8(2) of the DSE Act applies to
orders of dismissal, removal, reduction in rank, or termination, of
employees, by private unaided schools, however, the law has, over the
period of time, been in a state of flux, though the waters appear, now,
to be stilled.
38. In Kathuria Public School3, a Division Bench of this Court,
speaking through Sanjay Kishan Kaul, J. (as he then was), held,
relying on the classic decision of the nine-judge Constitution Bench of
the Supreme Court in T.M.A. Pai Foundation v. State of
Karnataka12, that private unaided schools were entitled to maximum
autonomy in their affairs and could not, therefore, be subjected, in the
conducting thereof, to the requirement of having to seek prior
approval from the DoE. It was, therefore, held that Section 8(2) of the
DSE Act, which required prior approval of the DoE, before
dismissing, removing, reducing in rank, or otherwise terminating an
employee, would not apply to private unaided schools.
12
(2002) 8 SCC 481
WP (C) 1363/2013 Page 16 of 36
39. Adverting, now, to the two Prabhu Dayal Public School
decisions, in Prabhu Dayal Public School v. Prahlad1 and Prabhu
Dayal Public School v. Anirudh Singh2, a reading thereof reveals that
these two judgments had their genesis in a decision, of the Prabhu
Dayal Public School, to disengage the services of certain welders and
helpers, on the ground that the posts of welders and helpers were
abolished, resulting in their having been rendered surplus. Prahlad
headed one group of workmen and Anirudh Singh headed another
group of workmen, who had been thus removed. The workmen
initially approached the learned Tribunal. The learned Tribunal, while
holding that the concept of retrenchment was alien to the DSE Act,
nevertheless held the termination, of the workmen, by the School, to
be illegal. Aggrieved thereby, the School approached this Court, in
two batches of writ petitions, which were decided by the two Prabhu
Dayal Public School decisions supra, rendered by a learned Single
Judge in each case.
40. Before this Court, the workmen, i.e. Prahlad and others in one
case and Anirudh Singh and others in the second, invoked Section 8
(2) of the DSE Act, as well as Section 25F of the ID Act.
41. In Prabhu Dayal Public School v. Prahlad1, the learned Single
Judge of this Court, while noting the reliance, by the workmen, on the
aforesaid two provisions, did not return any findings regarding the
applicability of Section 8(2) of the DSE Act, but held that the ID Act,
applied to removal of workmen by schools and that, as the workmen
WP (C) 1363/2013 Page 17 of 36
had been paid retrenchment compensation, and were removed as their
posts had become surplus, no illegality had been committed.
42. This decision was followed in Prabhu Dayal Public School v.
Anirudh Singh2, which, however, also addressed the reliance, by the
workmen, on Section 8(2) of the DSE Act and, relying, for the said
purpose, on Kathuria Public School3, held that prior approval of the
DoE was not required, before removing the workmen.
43. As has been noted hereinabove, the learned Tribunal has, in the
present case, relied on the aforesaid two Prabhu Dayal Public School
decisions.
44. The law enunciated by the Division Bench in Kathuria Public
School3 was, however, reversed, by the Supreme Court in Raj Kumar
v. Director of Education13. In Raj Kumar13, the appellant therein, was
employed as a driver by the DAV Public School which, consequent to
his services having been rendered surplus, terminated his services,
vide letter dated 25th July, 2003. Raj Kumar approached this Court,
assailing his termination, by way of WP (C) 957/2003, which was
disposed of, by this Court, vide judgment and order dated 25th
February, 2004, in which this Court, holding that Section 8(2) of the
DSE Act was very wide and encompassed all kinds of termination,
relegated Raj Kumar to the remedy of appeal, available to him under
the said Act. Raj Kumar, accordingly, moved the learned Tribunal
which, vide judgment and order dated 22nd February, 2008, dismissed
13
(2016) 6 SCC 541
WP (C) 1363/2013 Page 18 of 36
his appeal, holding that the school had the right to retrench surplus
drivers, so long as they complied with the requirements of clauses (a)
and (b) of Section 25F of the ID Act. Raj Kumar chose to challenge
the said decision, of the learned Tribunal, before this Court, which
dismissed his writ petition. Aggrieved thereby, Raj Kumar approached
the Supreme Court, which reversed the judgment of this Court,
holding the decision, to remove Raj Kumar from service to be vitiated
for non-compliance with the mandate of Section 25F of the ID Act, as
well as of Section 8(2) of the DSE Act, holding, with respect to the
latter provision, that the requirement of obtaining prior approval, of
the DoE, before terminating the services of Raj Kumar, was non-
negotiable.
45. The attention of the Supreme Court was invited, by the School,
to the decision of this Court in Kathuria Public School3, regarding
which the Supreme Court held thus:
―42. On the other hand, the learned counsel appearing on
behalf of the respondent School contends that there was no
requirement on the part of the respondent Managing
Committee to comply with Section 8(2) of the DSE Act.
Reliance is placed on the decision of the Delhi High Court
in Kathuria Public School v. Director of Education3,
wherein Section 8(2) of the DSE was struck down. It was
held as under:
―21. If the aforesaid observations of the Supreme
Court in T.M.A. Pai Foundation v. State of
Karnataka12 are taken to its logical conclusion, it
would imply that there should be no such requirement
of prior permissions or subsequent approval in matter
of discipline of the staff. Thus, whether it is for
suspension or disciplinary action, the educational
institutions would have a free hand. The safeguard
WP (C) 1363/2013 Page 19 of 36
provided is for a judicial tribunal to be set up to
examine the cases.‖
43. A Constitution Bench of this Court had held in T.M.A.
Pai Foundation v. State of Karnataka12 as under: (SCC pp.
546-48, paras 61 & 64)
―61. In the case of unaided private schools,
maximum autonomy has to be with the management
with regard to administration, including the right of
appointment, disciplinary powers, admission of
students and the fees to be charged.
***
64. An educational institution is established only
for the purpose of imparting education to the students.
In such an institution, it is necessary for all to maintain
discipline and abide by the rules and regulations that
have been lawfully framed. The teachers are like foster
parents who are required to look after, cultivate and
guide the students in their pursuit of education. The
teachers and the institution exist for the students and
not vice versa. Once this principle is kept in mind, it
must follow that it becomes imperative for the
teaching and other staff of an educational institution to
perform their duties properly, and for the benefit of the
students. Where allegations of misconduct are made, it
is imperative that a disciplinary enquiry is conducted,
and that a decision is taken. In the case of a private
institution, the relationship between the management
and the employees is contractual in nature. A teacher,
if the contract so provides, can be proceeded against,
and appropriate disciplinary action can be taken if the
misconduct of the teacher is proved. Considering the
nature of the duties and keeping the principle of
natural justice in mind for the purposes of establishing
misconduct and taking action thereon, it is imperative
that a fair domestic inquiry is conducted. It is only on
the basis of the result of the disciplinary enquiry that
the management will be entitled to take appropriate
action. We see no reason why the management of a
private unaided educational institution should seek the
consent or approval of any governmental authority
before taking any such action. In the ordinary
WP (C) 1363/2013 Page 20 of 36
relationship of master and servant, governed by the
terms of a contract of employment, anyone who is
guilty of breach of the terms can be proceeded against
and appropriate relief can be sought. Normally, the
aggrieved party would approach a court of law and
seek redress. In the case of educational institutions,
however, we are of the opinion that requiring a teacher
or a member of the staff to go to a civil court for the
purpose of seeking redress is not in the interest of
general education. Disputes between the management
and the staff of educational institutions must be
decided speedily, and without the excessive incurring
of costs. It would, therefore, be appropriate that an
Educational Tribunal be set up in each district in a
State to enable the aggrieved teacher to file an appeal,
unless there already exists such an Educational
Tribunal in a State--the object being that the teacher
should not suffer through the substantial costs that
arise because of the location of the Tribunal; if the
tribunals are limited in number, they can hold
circuit/camp sittings in different districts to achieve
this objective. Till a specialised tribunal is set up, the
right of filing the appeal would lie before the District
Judge or Additional District Judge as notified by the
Government. It will not be necessary for the institution
to get prior permission or ex post facto approval of a
governmental authority while taking disciplinary
action against a teacher or any other employee. The
State Government shall determine, in consultation with
the High Court, the judicial forum in which an
aggrieved teacher can file an appeal against the
decision of the management concerning disciplinary
action or termination of service.‖
(emphasis supplied)
44. The learned counsel appearing on behalf of the
respondent School submits that not obtaining prior approval
for the termination of the services of the appellant is thus,
justified.
45. We are unable to agree with the contention advanced
by the learned counsel appearing on behalf of the respondent
School. Section 8(2) of the DSE Act is a procedural safeguard
in favour of an employee to ensure that an order of
WP (C) 1363/2013 Page 21 of 36
termination or dismissal is not passed without the prior
approval of the Director of Education. This is to avoid
arbitrary or unreasonable termination or dismissal of an
employee of a recognised private school.
46. The State Legislature is empowered to enact such
statutory provisions in relation to educational institutions,
from Schedule VII List II Entry 11 of the Constitution of
India, which reads as:
―11. Education including universities....‖
(emphasis supplied)
47. A number of legislations across the country have been
enacted which deal with the regulation of educational
institutions, which contain provisions similar to the one
provided for under Section 8(2) of the DSE Act. One such
provision came for consideration before a Constitution Bench
of this Court in Katra Education Society v. State of U.P.14
The impugned provisions therein were certain sections of the
amended Intermediate Education Act (U.P. Act 2 of 1921).
Section 16-G of the Intermediate Education (Amendment)
Act, 1958 provided that the Committee of Management could
not remove or dismiss from service any Principal,
Headmaster or teacher of a college or school without prior
approval in writing of the Inspector. The Amendment Act
also contained other provisions providing for governmental
control over certain other aspects of the educational
institutions. Adjudicating upon the competence of the State
Legislature to enact the amending Act, this Court held as
under: (AIR pp. 1310-11, paras 8 & 10)
―8. Power of the State Legislature to legislate under
the head ‗education including universities' in Schedule
VII List II Entry 11 would prima facie include the
power to impose restrictions on the management of
educational institutions in matters relating to
education. The pith and substance of the impugned
legislation being in regard to the field of education
within the competence of the State Legislature,
authority to legislate in respect of the maintenance of
control over educational institutions imparting higher
14
AIR 1966 SC 1307
WP (C) 1363/2013 Page 22 of 36
secondary education and for that purpose to make
provisions for proper administration of the educational
institutions was not denied. But it was said that the
impugned Act is inoperative to the extent to which it
seeks to impose controls upon the management of an
educational institution registered under the Societies
Registration Act and managed through trustees, and
thereby directly trenches upon legislative power
conferred by List I Entry 44 and List III Entries 10 and
28. This argument has no substance. This Court has in
Ayurvedic and Unani Tibia College v. State of
Delhi15, held that legislation which deprives the Board
of Management of a Society registered under the
Societies Registration Act of the power of
management and creates a new Board does not fall
within List I Entry 44, but falls under List II Entry 32,
for by registration under the Societies Registration Act
the Society does not acquire a corporate status. It
cannot also be said that the pith and substance of the
Act relates to charities or charitable institutions, or to
trusts or trustees. If the true nature and character of the
Act falls within the express legislative power conferred
by List II Entry 11, merely because it incidentally
trenches upon or affects a charitable institution, or the
powers of trustees of the institution, it will not on that
account be beyond the legislative authority of the
State. The impact of the Act upon the rights of the
trustees or the management of a charitable institution
is purely incidental, the true object of the legislation
being to provide for control over educational
institutions. The amending Act was therefore within
the competence of the State Legislature and the fact
that it incidentally affected the powers of the trustees
or the management in respect of educational
institutions which may be regarded as charitable,
could not distract from the validity of the exercise of
that power.
***
10. ... If the management fails to comply with the
directions made by the Director, that Officer may after
15
AIR 1962 SC 458
WP (C) 1363/2013 Page 23 of 36
considering the explanation or representation, if any,
given or made by the management, refer the case to the
Board for withdrawal of recognition or recommend to
the State Government to proceed against the institution
under sub-section (4) and the powers which the State
Government may exercise after being satisfied that the
affairs of the institution are being mismanaged or that
the management has wilfully or persistently failed in
the performance of its duties, include the power to
appoint an Authorised Controller to manage the affairs
of the institution for such period as may be specified
by the Government. The provision is disciplinary and
enacted for securing the best interests of the
students. The State in a democratic set up is vitally
interested in securing a healthy system of imparting
education for its coming generation of citizens, and if
the management is recalcitrant and declines to afford
facilities for enforcement of the provisions enacted in
the interests of the students, a provision authorising
the State Government to enter upon the management
through its Authorised Controller cannot be regarded
as unreasonable.‖
(emphasis supplied)
From a perusal of the above judgment [Katra Education
Society v. State of U.P.14 of the Constitution Bench, it
becomes clear that the State Legislature is empowered in law
to enact provisions similar to Section 8(2) of the DSE Act.
48. At this stage, it would also be useful to refer to the
Statement of Objects and Reasons of the DSE Act, 1973. It
reads as under:
―In recent years the unsatisfactory working and
management of privately managed educational
institutions in the Union Territory of Delhi has been
subjected to a good deal of adverse criticism. In the
absence of any legal power, it has not been possible for
the Government to improve their working. An urgent
need is, therefore, felt for taking effective legislative
measures providing for better organisation and
development of educational institutions in the Union
Territory of Delhi, for ensuring security of service of
WP (C) 1363/2013 Page 24 of 36
teachers, regulating the terms and conditions of their
employment. ... The Bill seeks to achieve these
objectives.‖
A perusal of the Statement of Objects and Reasons of the
DSE Act would clearly show that the intent of the legislature
while enacting the same was to provide security of tenure to
the employees of the school and to regulate the terms and
conditions of their employment.
49. In Principal v. Presiding Officer16, a Division Bench
of this Court held as under: (SCC p. 503, para 7)
―7. Sub-section (2) of Section 8 of the Act ordains
that 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 of Education. From
this, it clearly follows that the prior approval of the
Director of Education is required only if the service of
an employee of a recognised private school is to be
terminated.‖
50. The Division Bench of the Delhi High Court, thus,
erred in striking down Section 8(2) of the DSE Act
in Kathuria Public School3 by placing reliance on the
decision of this Court in T.M.A. Pai12, as the subject-matter
in controversy therein was not the security of tenure of the
employees of a school, rather, the question was the right of
educational institutions to function unfettered. While the
functioning of both aided and unaided educational institutions
must be free from unnecessary governmental interference, the
same needs to be reconciled with the conditions of
employment of the employees of these institutions and
provision of adequate precautions to safeguard their interests.
Section 8(2) of the DSE Act is one such precautionary
safeguard which needs to be followed to ensure that
employees of educational institutions do not suffer unfair
treatment at the hands of the management.
16
(1978) 1 SCC 498
WP (C) 1363/2013 Page 25 of 36
51. The Division Bench of the Delhi High Court, while
striking down Section 8(2) of the DSE Act in Kathuria
Public School3 has not correctly applied the law laid down
in Katra Education Society14 , wherein a Constitution Bench
of this Court, with reference to provision similar to Section
8(2) of the DSE Act and keeping in view the object of
regulation of an aided or unaided recognised school, has held
that the regulation of the service conditions of the employees
of private recognised schools is required to be controlled by
educational authorities and the State Legislature is
empowered to legislate such provision in the DSE Act. The
Division Bench wrongly relied upon that part of the judgment
in Katra Education Society14 which dealt with Article 14 of
the Constitution and aided and unaided educational
institutions, which had no bearing on the fact situation
therein. Further, the reliance placed upon the decision of this
Court in Frank Anthony Public School Employees'
Assn. v. Union of India17, is also misplaced as the institution
under consideration in that case was a religious minority
institution.‖
46. There can be no mistaking the tone and tenor of the afore-
extracted passages, from the decision in Raj Kumar13. The Supreme
Court has, in no uncertain terms, held that Kathuria Public School3
was wrongly decided. Equally, the Supreme Court has emphasised the
need and necessity of ensuring that, even in the case of private
unaided schools, prior approval of the DoE is obtained, before taking
any of the actions contemplated by Section 8(2) of the DSE Act.
Inasmuch as prior approval of the DoE had not been obtained before
terminating Raj Kumar from service, the Supreme Court held that,
even on that score, the termination of Raj Kumar was unsustainable in
law.
17
(1986) 4 SCC 707 : (1987) 2 ATC 35
WP (C) 1363/2013 Page 26 of 36
47. Raj Kumar13 has, recently, been followed by the Supreme Court
in Marwari Balika Vidyalaya v. Asha Srivastava18. In that case, a
show cause notice had been issued to Asha Srivastava, the first
respondent before the Supreme Court, alleging breach of discipline on
her part. On 20th February, 2001, she was terminated from service, the
letter of termination having annexed, with it, two cheques.
48. Asha Srivastava approached the High Court of Calcutta by way
of WP 889/2001, which was dismissed by a learned Single Judge, vide
order dated 20th August, 2001. A writ appeal preferred thereagainst,
however, was allowed by the Division Bench of the High Court vide
judgment dated 30th January, 2009, which set aside the order, dated
20th August, 2001, terminating the services of Asha Srivastava. The
School carried the matter to the Supreme Court.
49. Though, undoubtedly, the case before the Supreme Court, in
Marwari Balika Vidyalaya18 did not arise under the DSE Act, the
Supreme Court, nevertheless, placed considerable reliance on its
earlier decision in Raj Kumar13, whereafter, in para 22 of its
judgment, the Supreme Court concluded thus:
―22. Coming to the question of relief of reinstatement and
back wages, in view of the factual matrix of the instant case,
we have taken note of the fact that the approval of the
concerned authorities was not obtained and stigmatic order of
dismissal was passed in the most arbitrary manner. It is not in
dispute that no departmental enquiry was held.‖
(Emphasis supplied)
18
2019 SCC OnLine SC 408
WP (C) 1363/2013 Page 27 of 36
50. In so holding, the Supreme Court relied, inter alia, on its earlier
decision in Raj Kumar13, regarding which, it was held, in paras 13 and
14 of the report, as under:
―13. In Raj Kumar v. Director of Education13 this Court
held that Section 8(2) of the Delhi School Education Act,
1973 is a procedural safeguard in favour of employee to
ensure that order of termination or dismissal is not passed
without prior approval of Director of Education to avoid
arbitrary or unreasonable termination/dismissal of employee
of even recognised private school. Moreover, this Court also
considered the Objects and Reasons of the Delhi School
Education Act, 1973 and came to the conclusion that the
termination of service of the driver of a private school
without obtaining prior approval of Director of Education
was bad in law. This Court observed:
―45. We are unable to agree with the contention
advanced by the learned counsel appearing on behalf
of the respondent School. Section 8(2) of the DSE Act
is a procedural safeguard in favour of an employee to
ensure that order of termination or dismissal is not
passed without the prior approval of the Director of
Education. This is to avoid arbitrary or unreasonable
termination or dismissal of an employee of a
recognised private school.‖
14. This Court has laid down in Raj Kumar v. Director of
Education13 that the intent of the legislature while enacting
the Delhi School Education Act, 1973 (in short, 'the DSE')
was to provide security of tenure to the employees of the
school and to regulate the terms and conditions of their
employment. While the functioning of both aided and unaided
educational institutions must be free from unnecessary
Governmental interference, the same needs to the reconciled
with the conditions of employment of the employees of these
institutions and provision of adequate precautions to
safeguard their interests. Section 8(2) of the DSE Act is one
such precautionary safeguard which needs to be followed to
ensure that employees of educational institutions do not suffer
unfair treatment at the hands of the management.‖
(Emphasis and underscoring supplied)
WP (C) 1363/2013 Page 28 of 36
51. Raj Kumar13 has also been relied upon by this Court, as the
basis to set aside orders removing, or terminating, employees from
service, in various decisions, including Dr. Swami Rampal Singh
Mission School v. Sh. Harminder Pal Singh Bindra19, Management
of Rukmani Devi Public School v. Directorate of Education20 and
Salwan Public School v. Directorate of Education21.
52. It is required to be noted, here, that a Division Bench of this
Court has, in Red Roses Public School v. Reshmawati22, opined that
Raj Kumar13 could not be applied to cases in which the employee was
removed or was terminated from service, prior to the rendering of the
decision in Raj Kumar13. In other words, the said decision opines that
Raj Kumar13 could only be applied prospectively. Paras 21 to 24 of
the decision merit reproduction, thus:
―21. So far as the aspect of non-compliance of Section 8(2)
of the Delhi School Education Act is concerned, it is clear that
the decision in Kathuria Public School3 rendered by a
Division Bench of this Court was holding sway right from the
year 2005 till 2016, when the said decision was upset by the
Supreme Court in Raj Kumar13. The appellant, therefore,
could not be faulted for non-compliance of the said provision.
Pertinently, even the Director of Education took the stand
before the Appellate Tribunal that there was no necessity of
obtaining the prior approval of the Director under Section 8(2)
in the light of the decision of this Court in Kathuria Public
School3.
22. No doubt, the well settled position in law is that the
Supreme Court merely declares the law as it has always been
19
2017 SCC OnLine Del 618
20
Judgment dated 5th March, 2018 in WP (C) 6156/2016
21
2018 SCC OnLine Del 12556
22
2019 SCC OnLine Del 10937
WP (C) 1363/2013 Page 29 of 36
when it renders its decision and, therefore, the position of law,
as declared by the Supreme Court would be taken to have
prevailed in the past as well even since the law was framed,
unless the Supreme Court limits the application of the law
declared by it only prospectively. But, the Director of
Education has himself issued the order dated 20.05.2016,
stating that after the decision of Supreme Court in Raj
Kumar13, the prior approval of the Director of Education
should be obtained from the date of the judgment in Raj
Kumar13. Thus, in our view, it does not lie in the mouth of the
learned counsel for the Director of Education to now contend
that in the facts of the present case as well, compliance of
Section 8(2) should be treated as mandatory. Therefore, even
the Director of Education has sought to apply the decision
in Raj Kumar13 prospectively, and not from an anterior date.
Moreover, the decision in Kathuria Public School3 (supra)
was not upset by the Supreme Court, either because the
Director of Education accepted the said decision, or its
Special Leave Petition before the Supreme Court was
dismissed. Learned counsel for the appellant submits that the
appeal preferred from Kathuria Public School3 was dismissed
by a three-Bench Judge in limine.
23. A perusal of the relevant extract of Raj Kumar13 also
shows that the Supreme Court rejected the reliance placed by
the management on Kathuria Public School3 on the premise
that the decision in Kathuria Public School3 was rendered
after the notice of retrenchment was served on the employee.
24. We are also of the view that giving effect to the
decision in Raj Kumar13 from an anterior date would lead to
re-opening of cases and claims, which are already settled in
terms of Kathuria Public School3. We, therefore, reject this
submission.‖
(Emphasis supplied)
53. It is apparent, from a reading of the aforesaid passages, as
extracted, from Red Roses Public School22, that the Division Bench of
this Court chose to apply the law, enunciated in Raj Kumar13
prospectively, on the ground that giving effect to the decision in Raj
Kumar13 from an anterior date would lead to reopening of claims
WP (C) 1363/2013 Page 30 of 36
which stood settled in terms of Kathuria Public School3. Inasmuch as
the present proceedings are pending, as on date, before this Court, it
cannot be said that following Raj Kumar13 would result in unsettling,
or reopening of, any claim of the petitioner, which stands settled. The
main consideration on which the Division Bench, in Red Roses Public
School22, chose not to follow Raj Kumar13 may not, therefore, apply
in the present case.
54. That apart, a reading of the decision in Red Roses Public
School22 reveals that the attention of this Court was not invited, in the
said case, to the judgment rendered by the Supreme Court in Marwari
Balika Vidyalaya18. Marwari Balika Vidyalaya18 was also a case in
which the services of the respondent Asha Srivastava were terminated
on 20th February, 2001, prior to the rendition of decision in Raj
Kumar13. Even so, relying on Raj Kumar13, the Supreme Court
upheld the setting aside, of the termination of the respondent Asha
Srivastava, on the ground that requisite approval, of the higher
authorities, had not been obtained.
55. That apart, a reading of paras 13 and 14 of the report in
Marwari Balika Vidyalaya18, which have been reproduced in para 50
hereinabove, underscore the salutary purpose behind requiring that
every order of termination and dismissal of an employee must, prior
thereto, obtain approval of the DoE. This, the Supreme Court, has
emphasized, is a procedural safeguard ―intended to avoid arbitrary and
unreasonable termination/dismissal of employee of even recognized
private school‖.
WP (C) 1363/2013 Page 31 of 36
56. In view of this opinion of the law, enunciated in Marwari
Balika Vidyalaya18 by the Supreme Court, it would, in my opinion, not
be open to this Court to continue applying the law laid down in
Kathuria Public School3 which defeats the salutary purpose of
obtaining of prior approval, as underscored by the Supreme Court in
Marwari Balika Vidyalaya18. Kathuria Public School3 having been
disapproved, in no uncertain terms, not in one, but in two judgments
of the Supreme Court, continuing reliance, by this Court, on the
principles enunciated in Kathuria Public School3, would, in my
opinion, do complete disservice to Article 142 of the Constitution of
India. Once the Supreme Court has held a decision, laid down by the
High Court, to be bad in law, it is highly questionable whether any
High Court could, thereafter, apply the said decision at all, irrespective
of the practical difficulties which may, or may not, arise if the decision
were not to be applied.
57. For all these reasons, I am in agreement with the submission, of
Mr. Mukesh Anand, that the order, dated 21st July, 2009, terminating
the services of the petitioner, cannot sustain, as it has been issued
without requisite prior approval of the DoE as required by Section
8(2) of the DSE Act.
58. The fourth ground urged, by the petitioner, before the learned
Tribunal has, therefore, in my view, substance, and ought to have been
accepted.
WP (C) 1363/2013 Page 32 of 36
59. The fifth ground of challenge, as urged by the petitioner, before
the learned Tribunal, viz., that the impugned order, dated 21st July,
2009, was issued in violation of provisions of Section 25F of the ID
Act, too, in my opinion, has merit. The decisions, already cited
hereinabove, clearly establish, beyond doubt, that the termination of
the petitioner's services amounted to ―retrenchment‖, as defined in the
ID Act, and was, therefore, required to comply with the provisions of
Section 25F. Indeed, the learned Tribunal has itself acknowledged this
fact.
60. Having done so, and having also acknowledged the fact that
Section 25F was infracted, as retrenchment compensation was not paid
to the petitioner, at the time of her removal from service, the learned
Tribunal has somewhat surprisingly, glossed over this lapse, by
accepting the amount of ₹ 1,60,000/-, paid during the proceedings
before it, as having cured the lapse, merely offering as a consolation
prize, as it were, additional payment by way of interest thereon.
61. In my view, this is completely proscribed by law.
62. Section 25F of the ID Act sets out the conditions precedent to
retrenchment of workman, and postulates, unambiguously, that no
workman employed in any industry who has been in continuous
service for not less than one year under an employer shall be
retrenched by that employer until, inter alia, the workman has been
paid, at the time of retrenchment, compensation, in terms of the said
section.
WP (C) 1363/2013 Page 33 of 36
63. There is no compromise on a statutory edict. It stands fossilized,
in jurisprudence the world over, from the times of Taylor v. Taylor23
and Nazir Ahmad v. King Emperor24, both of which have been
followed by the Supreme Court in State of U.P. v. Singhara Singh25
that, if the law requires an act to be done in a particular manner, that
act has to be done in that manner, or not done at all. Expressed
otherwise, if the law prescribes a particular manner, in which a
particular act is to be done, all other manners of doing that act,
thereby, stand proscribed.
64. Section 25F requires retrenchment compensation to be paid at
the time of retrenchment of the employee, and at no later point of time.
Payment, at a later point of time, irrespective of the amount paid,
cannot cure the failure to follow the mandate of Section 25F. If
retrenchment compensation is not paid at the time of removal of the
employee, the retrenchment of the employee is void ab initio.
65. Reference may, in this context, be invited to the decisions in
Delhi Cloth and General Mills Ltd. v. Shambhu Nath Mukherji26,
Punjab Land Development and Reclamation Corporation Ltd.,
Chandigarh v. Presiding Officer, Labour Court, Chandigarh27,
Anoop Sharma v. Executive Engineer, Public Health Division No.1
23
(1875) LR 1 Ch D 426
24
1936 SCC OnLine PC 41 : (1935-36) 63 IA 372
25
AIR 1964 SC 358
26
(1977) 4 SCC 415
27
(1990) 3 SCC 682
WP (C) 1363/2013 Page 34 of 36
Panipat (Haryana)28 and Sudharshan Rajpoot v. Uttar Pradesh State
Road Transport Corporation29.
66. The learned Tribunal, therefore, was manifestly in error in
treating the payment of ₹ 1,60,000/-, made by the School during the
pendency of the proceedings before it, as representing retrenchment
compensation, and directing interest to be paid thereon.
67. It is undisputed that at the time of removal of the petitioner
from service, no retrenchment compensation had been paid to her.
The removal of the petitioner from service, therefore, clearly infracted
Section 25F of the ID Act, and was, therefore, vitiated on this ground
as well.
Conclusion
68. Resultantly, I am of the opinion that the removal of the
petitioner from service, being violative of Section 8(2) of the Delhi
School Education Act, 1973, as well as of Section 25F of the
Industrial Disputes Act, 1947, cannot sustain either in law, or on facts,
and deserves, therefore, to be set aside.
69. Resultantly, the impugned Order/judgment, dated 4th December,
2012, of the learned Tribunal, as well as the removal/termination,
from service, of the petitioner, vide order dated 21st July, 2009, are
hereby quashed and set aside.
28
(2010) 5 SCC 497
29
(2015) 2 SCC 317
WP (C) 1363/2013 Page 35 of 36
70. The petitioner is, therefore, directed to be reinstated, in service,
by the School, forthwith. In the facts of the case, the petitioner shall
also be entitled to be paid 50% of the back wages, which she would
have drawn, had she not been terminated from service. Payment of the
said amount shall be made, by the School, within a period of four
weeks from the date of receipt, by the School, of a certified copy of
this judgment.
71. Inasmuch as the learned Tribunal has not opined on the question
of pay fixation, I, too, refrain from expressing any opinion thereon.
The petitioner would, however, be at liberty to agitate the said issue
separately, by way of appropriate proceedings, in accordance with
law.
72. The writ petition is accordingly allowed to the aforesaid extent,
with no order as to costs.
C. HARI SHANKAR, J.
DECEMBER 05, 2019 dsn/HJ WP (C) 1363/2013 Page 36 of 36