Delhi High Court
G D Goenka Public School & Anr. vs Vinod Handa & Anr. on 7 August, 2019
Equivalent citations: AIRONLINE 2019 DEL 1320, 2019 (6) ADR 277 (2019) 262 DLT 154, (2019) 262 DLT 154
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 2275/2016 & CM APPls. 9801/2016 and 18809/2018
G D GOENKA PUBLIC SCHOOL & ANR. ..... Petitioners
Through: Mr. Rajat Aneja, Adv. and
Ms. Nisha Sharma, Adv.
versus
VINOD HANDA & ANR. ..... Respondents
Through: Mr. Sanjeev Kumar, Adv. for
R-1
Mr. Devesh Singh, ASC (Civil) for GNCTD
with Ms. Sukriti Ghai, Adv. for DOE
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
07.08.2019
1. The petitioner school (hereinafter referred to as ―the School‖)
seeks, by means of this writ petition, to assail order, dated 27th
January, 2016, passed by the learned Delhi School Tribunal
(hereinafter referred to as ―the learned Tribunal‖) whereby the appeal,
of the respondent, under Section 8(3) of the Delhi School Education
Act, 1973 (hereinafter referred to as ―the DSE Act‖) has been accepted
and, consequently, the school has been directed to reinstate the
respondent in service, with consequential benefits from the date of the
impugned order.
W.P. (C) 2275/2016 Page 1 of 32
2. The respondent had joined the services of the School on 11th
September, 1995, as Taekwondo teacher, and was confirmed on 31st
March, 2004.
3. On 10th August, 2011, the Punjab Police authorities visited the
school, in connection with a criminal case, in which the respondent's
name was mentioned. Investigations commenced, thereafter, in which
the respondent participated. These investigations resulted in a report,
dated 13th January, 2012, whereby the Police authorities exonerated
the respondent. During this period, the respondent remained absent
from service.
4. Consequent to his exoneration, the respondent approached the
school, for being allowed to rejoin services, but was not permitted to
do so.
5. The contention of the petitioner is that the respondent had
submitted a letter, dated 10th August, 2011, to the petitioner, resigning
from the services of the petitioner, and that the said letter had been
accepted on 11th August, 2011. As against this, the respondent
contends that the said letter had been typed out, by the petitioner, on a
blank sheet of paper, on which the respondent had been made to
append his signature, at the time of the visit by the Police on 10th
August, 2011.
6. In June, 2013, the petitioner recruited another Taekwondo
teacher, against the post which was being held by the respondent.
W.P. (C) 2275/2016 Page 2 of 32
7. The respondent appealed, to the learned Tribunal, against the
refusal, on the part of the petitioner, to allow him to join services. He
prayed that the said decision be quashed and set aside, and that he be
reinstated with full back wages. It was specifically averred, by the
respondent, in the said appeal, that he never had any intention to
resign, and that the resignation letter was a fabrication, by misusing
the sheet of paper on which the respondent had been made to append
his signature on 10th August, 2011.
8. As against this, the petitioner contended, before the learned
Tribunal, that the respondent had, categorically, resigned from the
services of the petitioner vide the letter dated 10th August, 2011
(supra), which was tendered by him on 11th August, 2011 and
accepted by the petitioner on the same day. It was sought to be
submitted that, the case being one of severance of service by reason of
resignation, it could not be treated as a case of ―dismissal, removal or
reduction in rank‖ and was not, therefore, amenable to the appellate
jurisdiction of the learned Tribunal, as conferred on it by Section 8(3)
of the DSE Act. It was also pointed out that the appeal was barred by
time, having been filed 575 days after the expiry of the prescribed
period for doing so. On merits, it was contended that, as the
respondent had severed relations with the petitioner, by resigning from
the petitioner's service of his own volition, he had no case. It was also
sought to be submitted that there were several complaints against the
respondent; however, this Court does not intend to examine the said
contention, as the services of the respondent were never terminated on
the ground of any complaint against him. The allegation of fabrication
W.P. (C) 2275/2016 Page 3 of 32
of the resignation letter dated 10th August, 2011, as leveled by the
respondent, was categorically denied by the petitioner.
9. The learned Tribunal, has vide the impugned order dated 27th
January, 2016, allowed the respondent's appeal. It has not returned
any finding on the issue of maintainability of the appeal, in the context
of Section 8(3) of the DSE Act. On merits, the learned Tribunal has
returned the following findings:
(i) The reply, of the petitioner, to the respondent's appeal,
was contradictory, as the date of the respondent's resignation
was mentioned, as at one point, as ―10th August, 2011‖ and at
another as ―11th August, 2011‖.
(ii) The resignation of the respondent had not been accepted
in terms of Rule 114A of the DSE Rules, which required it to be
accepted by the Managing Committee. Rule 114A of the DSE
Rules may, for ready reference, be reproduced thus:
―114A. Resignation-- The resignation submitted
by an employee of a recognised private school
shall be accepted within a period of thirty days
from the date of the receipt of the resignation by
the managing committee with the approval of the
Director:
Provided that if no approval is received
within 30 days, then such approval would be
deemed to have been received after the expiry of
the said period.‖
W.P. (C) 2275/2016 Page 4 of 32
(iii) It was found that no minutes, of any meeting held on 11th
February, 2011, accepting the respondent's resignation, had
been produced by the petitioner, no date of acceptance of the
resignation was forthcoming, and the identity of the officer,
who had accepted the resignation, was also unknown.
(iv) The allegation, of the respondent, regarding fabrication of
the resignation letter, was found to contain merit. In this
context, the learned Tribunal noted that the resignation letter
was not handwritten but was typed, and that, though a signature
was appended, at the foot of the said letter, below the
endorsement ―accepted‖, no date had been appended
thereunder. Besides it was noted, the resignation letter was
dated 10th August, 2011, and a certificate, dated 12th August,
2011, had been issued by the school, to the effect that the
respondent had resigned from its services. This indicated that
the resignation of the respondent, if at all, had been accepted by
the petitioner before 12th August, 2011. Para K of the
preliminary objections, in the reply of the petitioner, to the
respondent's appeal, specifically averred that the respondent
was on leave on 10th August, 2011. The learned Tribunal
found, in the circumstances, that it was not possible for the
respondent to have tendered the resignation letter while on
leave.
(v) Apropos the submission, of the petitioner, that the
resignation letter was tendered and accepted on 11th August,
W.P. (C) 2275/2016 Page 5 of 32
2011, too, the learned Tribunal expressed doubt as to how a
managing committee meeting could have been convened on 11th
August, 2011 itself, and the resignation of the respondent
accepted therein. Specific note was taken of the mandatory
requirement, contained in Rule 114A of the DSE Rules (supra),
of acceptance, of the resignation of every employee, by the
managing committee. A resignation, not accepted by the
managing committee was, therefore, no resignation at all, in the
eyes of law.
(vi) Finally, the learned Tribunal noted that there was an
unusual space between the words ―yours sincerely‖ at the foot
of the letter dated 10th August, 2011, and the name of the
petitioner. This, too, in the opinion of the learned Tribunal
casts a cloud on the genuineness of the letter of resignation.
10. Following on the above observations, the learned Tribunal
directed the reinstatement of the respondent, in service, with
consequential benefits from the date of the impugned order, i.e. from
27th January, 2016. The respondent was also granted liberty to
represent, to the petitioner, for back wages, in view of Rule 121 of the
DSE Rules, and the petitioner was directed to pass a speaking order,
on the said representation, if made.
11. The present writ petition, at the instance of the school, seeks to
challenge the aforesaid order dated 27th January, 2016, of the learned
Tribunal.
W.P. (C) 2275/2016 Page 6 of 32
Rival stands
12. I have heard Mr. Rajat Aneja on behalf of the petitioner and
Mr. Sanjeev Kumar on behalf of the respondent.
13. Appearing for the petitioner, Mr. Aneja submits that the
consistent stand, of his client, has been that the respondent was on
leave on 10th August, 2011, and submitted the letter of resignation on
11th August, 2011. The Punjab Police authorities had, it is submitted,
arrived twice at the school on 10th August, 2011 and 12th August,
2011, whereas the respondent submitted his resignation on 11 th
August, 2011. Attention has been invited to the following passages
from the reply, filed by the petitioner, to the respondent's appeal
before the learned Tribunal:
―l. Again on 12.08.2011 the police authority visited
the school looking for the Appellant where the authority
informed the police officials that the Appellant is no more
working with the school and provided the address
available with the school management.
m. That thereafter Appellant approached the principal
on 23/7/2012 and requested the principal that he is at dire
need of money and requested the Respondent to hire his
son Mr. Jimmy Handa as a Taekwondo coach on daily
wages. On the request and on compassionate ground the
management approved the request and appointed Mr.
Jimmy Handa, however the management was constrained
to remove Mr. Jimmy Handa in Feb 2013 as he was
caught stealing mobile phone in the school premises.
n. Thereafter the Appellant never contacted the
school authority and after a gap of almost 2 years, the
W.P. (C) 2275/2016 Page 7 of 32
management was shocked to receive the notice of the
present appeal from this Hon'ble Tribunal where first
time management came to know that the Appellant has
filed the present appeal. On the facts mentioned above the
present appeal is liable to be dismissed.‖
14. Mr. Aneja further draws attention to the communication, dated
14th January, 2012, from the respondent to the principal of the school,
in which the respondent has referred to his ―earlier letter dated
10.08.2011, wherein I had requested for leave from work due to some
very urgent personal work which had come about because of an
emergency and could not have been put off to be done later‖. This
reference, Mr. Aneja would seek to submit, has to be treated as a
reference to the earlier letter of resignation, and not to any leave letter.
15. Mr. Aneja further seeks to submit that the respondent had
remained on an unauthorized absence, as he had not referred to any
sanction, being granted to him, of leave from work. He draws attention
to the following passages from the judgment of this Court in
Cambridge Senior Secondary School v. Dr. Islam Uddin, 2017 SCC
OnLine Del 12678 :
―7. Upon hearing and on perusal of impugned order,
material on record and the decisions cited, I find that
Supreme Court in Vijay S. Sathaye (supra), has reiterated
that absence from duty in the beginning is a misconduct
but when absence is for a very long period, it may
amount to voluntary abandonment of service and in that
eventuality, the bonds of service come to an end
automatically, without requiring any order to be passed
by the employer. It has been clarified that if a person is
absent beyond the prescribed period for which leave of
W.P. (C) 2275/2016 Page 8 of 32
any kind could be granted, then he/ she should be treated
to have resigned or ceased to be in service. Supreme
Court has empathetically clarified in Vijay S. Sathaye
(supra) that in such a case, there is no need to hold an
inquiry or to give any notice as it would be useless
formality.
8. Supreme Court in Syndicate Bank Staff Association
(supra) has gone to the extent of declaring that even if it
is assumed that an inquiry was necessitated, still it is
required to be seen whether there was any explanation for
absence from duty. Supreme Court in G.T. Lad (supra)
has made it clear that temporary absence is not ordinarily
sufficient to constitute an abandonment of service but the
intention to abandon may be inferred from the acts and
conduct of the parties and inference of abandonment of
service cannot be easily drawn unless from the length of
absence and other warranting circumstances, it can be
assumed that an employee intended to abandon the
service.
9. What is the prejudice caused to first respondent by
non-holding of inquiry is a vital aspect which is required
to be considered in the instant case in view of Supreme
Court's decision in Aligarh Muslim University (supra),
wherein while dealing the case of extension of leave,
Supreme Court has declared that ―principal of prejudice‖
has been consistently applied by the courts in several
cases.
10. In the light of afore-noted legal position and upon
scrutiny of the material on record, I find that first
respondent had applied for three years' leave from
August, 2012 to August, 2015 vide application of 11th
May, 2012 (Annexure P-5), as respondent had been
appointed as Associate Professor in Qassim University,
Buradah, Kingdom of Saudi Arabia. It is true that
petitioner-School vide Communication of 11th May, 2012
(Annexure P-6) had informed the Qassim University that
first respondent would be relieved from duty when he is
required to take up his new assignment. But no prudent
W.P. (C) 2275/2016 Page 9 of 32
person can possibly treat petitioner-School's
th
Communication of 11 May, 2012 (Annexure P-6) to be
implied grant of leave for a period of three years. It is
being so said because first respondent on the same day
i.e. on 11th May, 2012 had made another application for
one year's leave to petitioner-School and in that context
petitioner-School's Communication of (Annexure P-6) is
to be seen and it cannot be taken to be a grant of leave for
a period of three years.‖
16. On the basis of the aforesaid paras from the judgment in
Cambridge School (supra), Mr. Aneja would seek to submit that the
respondent could not have proceeded on leave on his own. This, in his
submission, adds credence to his version that the respondent had
actually resigned from his services.
17. It was further contended, by Mr. Aneja, that the inordinate
delay, in the filing of the appeal, by the respondent, before the learned
Tribunal, had been condoned without any reason. The appeal itself, he
would submit, was not maintainable, in lieu of the fact that the case
did not involve dismissal, removal or reduction in rank.
18. As a fallback argument, Mr. Aneja would submit that, at this
point of time, there could be no question of reinstatement of the
respondent and that, if at all, he could only be entitled to some
monetary compensation.
19. Arguing in opposition, Mr. Sanjeev Kumar, appearing on behalf
of the respondent, relies on the finding, of the learned Tribunal, that it
was impossible to believe that the managing committee of the school
W.P. (C) 2275/2016 Page 10 of 32
had accepted the respondent's resignation on the very day on which it
was tendered. He points out that, rather, the minutes of the meeting of
the managing committee of the school, held on 28th March, 2012 as
annexed by the petitioner with his rejoinder to the writ petition,
indicate that the alleged resignation, of his client was, if at all,
approved by the managing committee of the school on 28th March,
2012 only. This, he would submit, was in clear violation of Rule 114A
of the DSE Rules and could not be treated as a valid acceptance of
resignation at all.
20. Apropos the argument of delay, as advanced by the petitioner,
Mr. Kumar would submit that his client was cleared, by the Police of
the charges, against him, on 13th January, 2012, and wrote, to the
school, seeking reinstatement in service, on 14 th January, 2012,
without any delay whatsoever.
21. Mr. Kumar also relies on Section 8(3) of the DSE Act, which
requires any order of termination to be communicated to the employee
concerned. There was, in the present case, he submits, no such
communication.
22. Mr. Kumar also points out that, as against the version now
being advanced by the petitioner, is contrary to the stand, taken in para
8 of the reply, filed by it to the appeal of the respondent before the
learned Tribunal, which was that the respondent had tendered his
resignation on 10th August, 2011.
W.P. (C) 2275/2016 Page 11 of 32
23. In fine, Mr. Kumar would seek to submit that the impugned
order of the learned Tribunal, does not call for any interference by this
Court, under Article 226 of the Constitution of India.
24. Mr. Aneja, arguing in rejoinder, seeks to meet the submission,
of Mr. Kumar, regarding non-compliance with Rule 114A of the DSE
Rules, by drawing attention to the judgment of this Court in
Management of Modern Public School v. Presiding Officer, Delhi
School Tribunal, 2017 SCC OnLine Del 6720 and contending, on the
basis thereof, that the petitioner had only ratified the acceptance of the
respondent's resignation on 28th March, 2012, and that the resignation
itself stood accepted on 11th March, 2011.
Analysis
25. A preliminary objection, to the very maintainability of the
appeal, preferred by the respondent before the learned Tribunal, was
raised, both before the learned Tribunal as well as before this Court.
Unfortunately, the learned Tribunal has returned no finding thereon.
The issue, however, is purely one of law, and is no longer res integra.
26. Section 8(3) of the DSE Act enables, any employee, of a
recognised private school, who is dismissed, removed or reduced in
rank, to appeal, against the order, to the learned Tribunal. The burden
of the petitioner's song, before the learned Tribunal as well as before
this Court, is that the respondent was not dismissed, or removed, or
W.P. (C) 2275/2016 Page 12 of 32
reduced in rank and that, therefore, his appeal, before the learned
Tribunal, was not maintainable.
27. This argument, is, in my view, completely devoid of substance.
The expression ―removed‖ is wide and comprehensive in its scope and
ambit, and in the absence of any restrictive definition, attributed to the
said expression in the DSE Act or the DSE Rules, has to be accorded
in its widest possible meaning. One may also be informed, in doing
so, by the principle, well settled in law, that the law is always required
to be so interpreted as to confer, rather than exclude, jurisdiction, on a
judicial or quasi-judicial authority.
28. One may also usefully refer, in this context, to the following
passages, from Chandrakant Tukaram Nikam v. Municipal
Corporation of Ahmedabad, (2002) 2 SCC 542, which was rendered
in the context of the Industrial Disputes Act, 1947. Paras 4 and 5 of
the said report read thus:
―4. ......The Court held in the aforesaid case that if a
statute confers a right and in the same breath provides for
a remedy for enforcement of such right the remedy
provided by the statute is an exclusive one. It further held
that under Section 9 of the Code, the courts have subject
to certain restrictions, jurisdiction to try suits of a civil
nature excepting suits of which their cognizance is either
expressly or impliedly barred. The Court examined the
provisions of the Industrial Disputes Act and came to the
conclusion that the Act envisages collective bargaining,
contracts between the union representing the workmen
and the management and such a matter was held to be
outside the realm of the common law or Indian law of
contract. The Court also held that the powers of the
authorities deciding industrial disputes under the
W.P. (C) 2275/2016 Page 13 of 32
Industrial Disputes Act are very extensive, much wider
than the powers of a civil court while adjudicating a
dispute which may be an industrial dispute. But under the
provisions of the Industrial Disputes Act since the
workman cannot approach the Labour Court or tribunal
directly and the Government can refuse to make a
reference even on grounds of expediency, such handicap
would lead to the conclusion that for adjudication of an
industrial dispute in connection with a right or obligation
under the general or common law and not created under
the Act, the remedy is not exclusive, and on the other
hand is an alternative, and therefore, the civil court will
have no jurisdiction to try and adjudicate upon an
industrial dispute if it concerned enforcement of certain
right or liability created only under the Act and not
otherwise. In other words it was held that if the dispute is
not an industrial dispute, nor does it relate to enforcement
of any other right under the Act, the remedy lies only in
the civil court. But if the dispute is an industrial dispute
arising out of the right or liability under the general or
common law and not under the Act, the jurisdiction of the
civil court is an alternative, leaving it to the election of
suitor concerned to choose his remedy for the relief
which is competent to be granted in a particular remedy.
It was also held that if the industrial dispute relates to the
enforcement of a right or an obligation created under the
Act, then the only remedy available to the suitor is to get
an adjudication under the Act. Mr. Ahmadi, learned
counsel appearing for the appellants strongly relied upon
the aforesaid observations for his contention that the
dispute in the case in hand cannot be held to be a dispute
arising out of a right or liability under the Act, and on the
other hand, is a dispute arising out of a right or liability
under the common law, and as such, the jurisdiction of
the civil court could not have been held to have been
barred. This decision of the Court was considered by this
Court in Rajasthan SRTC v. Krishna Kant[(1995) 5
SCC 75 : 1995 SCC (L&S) 1207 : (1995) 31 ATC 110] .
After quoting the principles enunciated by the Court
in Premier Automobiles case [(1976) 1 SCC 496 : 1976
W.P. (C) 2275/2016 Page 14 of 32
SCC (L&S) 70] and on consideration of a large number
of decisions, it was held:
―28. Now, coming back to Principle 2 and its
qualification in para 24, we must say that para 24
must be read harmoniously with the said principle
and not in derogation of it -- not so as to nullify it
altogether. Indeed, Principle 2 is a reiteration of the
principle affirmed in several decisions on the
subject including Dhulabhai [AIR 1969 SC 78 :
(1968) 3 SCR 662]. Principle 2 is clear whereas
para 24 is more in the nature of a statement of fact.
It says that most of the industrial disputes will be
disputes involving the rights and obligations
created by the Act. It, therefore, says that there will
hardly be any industrial dispute which will fall
under Principle 2 and that almost all of them will
fall under Principle 3. This statement cannot be
understood as saying that no industrial dispute can
ever be entertained by or adjudicated upon by the
civil courts. Such an understanding would not only
make the statement of law in Principle 2 wholly
meaningless but would also run counter to the
well-established principles on the subject. It must
accordingly be held that the effect of Principle 2 is
in no manner whittled down by para 24. At the
same time, we must emphasise the policy of law
underlying the Industrial Disputes Act and the host
of enactments concerning the workmen made by
Parliament and the State Legislatures. The whole
idea has been to provide a speedy, inexpensive and
effective forum for resolution of disputes arising
between workmen and their employers. The idea
has been to ensure that the workmen do not get
caught in the labyrinth of civil courts with their
layers upon layers of appeals and revisions and the
elaborate procedural laws, which the workmen can
ill afford. The procedures followed by civil courts,
it was thought, would not facilitate a prompt and
effective disposal of these disputes. As against this,
the courts and tribunals created by the Industrial
Disputes Act are not shackled by these procedural
W.P. (C) 2275/2016 Page 15 of 32
laws nor is their award subject to any appeals or
revisions. Because of their informality, the
workmen and their representatives can themselves
prosecute or defend their cases. These forums are
empowered to grant such relief as they think just
and appropriate. They can even substitute the
punishment in many cases. They can make and re-
make the contracts, settlements, wage structures
and what not. Their awards are no doubt amenable
to jurisdiction of the High Court under Article 226
as also to the jurisdiction of this Court under
Article 32, but they are extraordinary remedies
subject to several self-imposed constraints. It is,
therefore, always in the interest of the workmen
that disputes concerning them are adjudicated in
the forums created by the Act and not in a civil
court. That is the entire policy underlying the vast
array of enactments concerning workmen. This
legislative policy and intendment should
necessarily weigh with the courts in interpreting
these enactments and the disputes arising under
them.
29. Now let us examine the facts of the appeals
before us in the light of the principles adumbrated
in Premier Automobiles [(1976) 1 SCC 496 : 1976
SCC (L&S) 70]. The first thing to be noticed is the
basis upon which the plaintiff-respondents have
claimed the several reliefs in the suit. The basis is
the violation of the certified Standing Orders in
force in the appellant-establishment. The basis is
not the violation of any terms of contract of service
entered into between the parties governed by the
law of contract. At the same time, it must be said,
no right or obligation created by the Industrial
Disputes Act is sought to be enforced in the suit.
Yet another circumstance is that the Standing
Orders Act does not itself provide any forum for
the enforcement of rights and liabilities created by
the Standing Orders. The question that arises is
whether such a suit falls under Principle 3
W.P. (C) 2275/2016 Page 16 of 32
of Premier Automobiles [(1976) 1 SCC 496 : 1976
SCC (L&S) 70] or under Principle 2? We are of the
opinion that it falls under Principle 3. The words
‗under the Act' in Principle 3 must, in our
considered opinion, be understood as referring not
only to the Industrial Disputes Act but also to all
sister enactments -- [like the Industrial
Employment (Standing Orders) Act] which do not
provide a special forum of their own for
enforcement of the rights and liabilities created by
them. Thus a dispute involving the enforcement of
the rights and liabilities created by the certified
Standing Orders has necessarily got to be
adjudicated only in the forums created by the
Industrial Disputes Act provided, of course, that
such a dispute amounts to an industrial dispute
within the meaning of Sections 2(k) and 2-A of the
Industrial Disputes Act or such enactment says that
such dispute shall be either treated as an industrial
dispute or shall be adjudicated by any of the forums
created by the Industrial Disputes Act. The civil
courts have no jurisdiction to entertain such suits.
In other words, a dispute arising between the
employer and the workman/workmen under, or for
the enforcement of the Industrial Employment
Standing Orders is an industrial dispute, if it
satisfies the requirements of Section 2(k) and/or
Section 2-A of the Industrial Disputes Act and
must be adjudicated in the forums created by the
Industrial Disputes Act alone. This would be so,
even if the dispute raised or relief claimed is based
partly upon certified Standing Orders and partly on
general law of contract.‖
5. The three-Judge Bench in Rajasthan
SRTC [(1995) 5 SCC 75 : 1995 SCC (L&S) 1207 :
(1995) 31 ATC 110] summarised the principles as below:
(SCC pp. 94-95, para 35)
―35. (1) Where the dispute arises from general
law of contract i.e. where reliefs are claimed on the
W.P. (C) 2275/2016 Page 17 of 32
basis of the general law of contract, a suit filed in
civil court cannot be said to be not maintainable,
even though such a dispute may also constitute an
‗industrial dispute' within the meaning of Section
2(k) or Section 2-A of the Industrial Disputes Act,
1947.
(2) Where, however, the dispute involves
recognition, observance or enforcement of any of
the rights or obligations created by the Industrial
Disputes Act, the only remedy is to approach the
forums created by the said Act.
(3) Similarly, where the dispute involves the
recognition, observance or enforcement of rights
and obligations created by enactments like the
Industrial Employment (Standing Orders) Act,
1946 -- which can be called ‗sister enactments' to
the Industrial Disputes Act -- and which do not
provide a forum for resolution of such disputes, the
only remedy shall be to approach the forums
created by the Industrial Disputes Act provided
they constitute industrial disputes within the
meaning of Section 2(k) and Section 2-A of the
Industrial Disputes Act or where such enactment
says that such dispute shall be either treated as an
industrial dispute or says that it shall be adjudicated
by any of the forums created by the Industrial
Disputes Act. Otherwise, recourse to civil court is
open.
(4) It is not correct to say that the remedies
provided by the Industrial Disputes Act are not
equally effective for the reason that access to the
forum depends upon a reference being made by the
appropriate government. The power to make a
reference conferred upon the Government is to be
exercised to effectuate the object of the enactment
and hence not unguided. The rule is to make a
reference unless, of course, the dispute raised is a
totally frivolous one ex facie. The power conferred
is the power to refer and not the power to decide,
W.P. (C) 2275/2016 Page 18 of 32
though it may be that the Government is entitled to
examine whether the dispute is ex facie frivolous,
not meriting an adjudication.
(5) Consistent with the policy of law aforesaid,
we commend to Parliament and the State
Legislatures to make a provision enabling a
workman to approach the Labour Court/Industrial
Tribunal directly -- i.e. without the requirement of
a reference by the Government -- in case of
industrial disputes covered by Section 2-A of the
Industrial Disputes Act. This would go a long way
in removing the misgivings with respect to the
effectiveness of the remedies provided by the
Industrial Disputes Act.
(6) The certified Standing Orders framed under
and in accordance with the Industrial Employment
(Standing Orders) Act, 1946 are statutorily
imposed conditions of service and are binding both
upon the employers and employees, though they do
not amount to ‗statutory provisions'. Any violation
of these Standing Orders entitles an employee to
appropriate relief either before the forums created
by the Industrial Disputes Act or the civil court
where recourse to civil court is open according to
the principles indicated herein.
(7) The policy of law emerging from the
Industrial Disputes Act and its sister enactments is
to provide an alternative dispute resolution
mechanism to the workmen, a mechanism which is
speedy, inexpensive, informal and unencumbered
by the plethora of procedural laws and appeals
upon appeals and revisions applicable to civil
courts. Indeed, the powers of the courts and
tribunals under the Industrial Disputes Act are far
more extensive in the sense that they can grant
such relief as they think appropriate in the
circumstances for putting an end to an industrial
dispute.‖
W.P. (C) 2275/2016 Page 19 of 32
It may be borne in mind that the Industrial Disputes
Act was enacted by Parliament to provide speedy,
inexpensive and effective forum for resolution of disputes
arising between workmen and the employers, the
underlying idea being to ensure that the workmen do not
get caught in the labyrinth of civil courts which the
workmen can ill-afford, as has been stated by this Court
in Rajasthan SRTC case [(1995) 5 SCC 75 : 1995 SCC
(L&S) 1207 : (1995) 31 ATC 110]. It cannot be disputed
that the procedure followed by civil courts are too lengthy
and consequently, are not an efficacious forum for
resolving the industrial disputes speedily. The power of
the Industrial Courts also is wide and such forums are
empowered to grant adequate relief as they think just and
appropriate. It is in the interest of the workmen that their
disputes, including the dispute of illegal termination are
adjudicated upon by an industrial forum. To our query Mr
Ahmadi, learned counsel appearing for the appellants was
not in a position to tell that the relief sought for in the
cases in hand, cannot be given by a forum under the
Industrial Disputes Act. The legality of the order of
termination passed by the employer will be an industrial
dispute within the meaning of Section 2(k) and under
Section 17 of the Industrial Disputes Act, every award of
the Labour Court, Industrial Tribunal or National
Tribunal is required to be published by the appropriate
government within a period of thirty days from the date
of its receipt and such award published under sub-section
(1) of Section 17 is held to be final.‖
(Emphasis supplied)
29. This Court sees no reason why, by analogy, the grievance, of a
school teacher whose services, with a school, stand severed by reason
of a resignation which, according to her/him, never took place, should
not be permitted to be agitated by allowing recourse to the expedient
course of an application under Section 8(3) of the DSE Act, rather
W.P. (C) 2275/2016 Page 20 of 32
than by any other modus, which is bound to be more inexpedient and
time consuming.
30. The issue has earlier engaged the attention of the Supreme
Court, as well as of this Court. In Shashi Gaur v. NCT of Delhi,
(2001) 10 SCC 445, the Supreme Court specifically examined the
scope of Section 8(3) of the DSE Act. The services of the petitioner-
teacher in that case, were terminated on the ground that he did not
possess the requisite qualification to hold the post. The matter was
carried, in appeal, to the learned Tribunal and reached, in due course
of time, the Supreme Court. It was sought to be contended, by the
respondent, before the Supreme Court, therefore, that as
―termination‖, was not one of the exigencies, to which, Section 8(3) of
the DSE Act alludes, no appeal against such an order of termination,
for want of the requisite qualification to hold the post, could be
maintained before the learned Tribunal. In paras 7 and 8 of its
judgment, the Supreme Court held thus:
―7. ...But, the question for our consideration would be
that, would it be appropriate for us to give a narrow
construction to sub-section (3) of Section 8 thereby taking
the teachers whose services were terminated not by way
of dismissal, removal or reduction in rank but otherwise,
out of the purview of the Tribunal constituted under
Section 11 of the Act. The statute has provided for a
Tribunal to confer a remedy on the teachers who are often
taken out of service by the caprices and whims of the
management of the private institutions. The governmental
authorities having been given certain control over the
action of such private management, if an appeal to the
Tribunal is not provided to such an employee, then he has
to knock the doors of the court under Article 226 of the
W.P. (C) 2275/2016 Page 21 of 32
Constitution which is a discretionary one. The remedy
provided by way of an appeal to the Tribunal is
undoubtedly a more efficacious remedy to an employee
whose services stand terminated after serving the
institution for a number of years, as in the present case
where the services are terminated after 14 years.
8. In this view of the matter, we are persuaded to take
the view that under sub-section (3) of Section 8 of the Act,
an appeal is provided against an order not only of
dismissal, removal or reduction in rank, which obviously
is a major penalty in a disciplinary proceeding, but also
against a termination, otherwise except, where the
service itself comes to an end by efflux of time for which
the employee was initially appointed.‖
(Emphasis supplied)
31. The above decision was followed, by a learned Single Judge of
this Court in Daya Nand Adarsh Vidyalaya v. Deepa Chibber, 2013
SCC OnLine Del 3754, in which the court was specifically confronted
with the question of whether a case of severance of employment by
reason of resignation, by the teacher concerned, would also be
amenable to appeal, to the learned Tribunal, under Section 8(3) of the
DSE Act. This Court, first referred to the above extracted passages
from the judgment of the Supreme Court in Shashi Gaur (supra), and
proceeded, thereafter, to opine thus :
―4. In view of the aforesaid judgment of the Supreme
Court in the case of Shashi Gaur (supra), in my opinion,
there can be no doubt that once a teacher/employee of a
school takes up a case that she has been illegally
removed, this aspect very much falls within the
jurisdiction of the Tribunal. The mere fact that in
determining this issue the Tribunal has also to consider
that whether or not the teacher or employee has resigned
or not cannot mean that Tribunal will have no
W.P. (C) 2275/2016 Page 22 of 32
jurisdiction because it is only on arriving at a conclusion
that there is no valid resignation, would thereafter the
Tribunal arrive at a decision of illegal removal of a
teacher/employee of a school.‖
(Emphasis supplied)
32. This Court, therefore, held that the appeal preferred by the
respondent before it, in the above judgment, i.e. Deepa Chibber
(supra), to the learned Tribunal, was maintainable.
33. I express my complete, and respectful, concurrence, with the
said decision.
34. The objection of the petitioner, to the entertainment of the
respondent's appeal, by the learned Tribunal, on the ground that the
said appeal was not maintainable, therefore, merits rejection.
35. Proceeding now, to the merits of the dispute, it is required to be
borne in mind, at the very outset that, while exercising writ
jurisdiction, over an award of the Industrial Tribunal or, for that
matter, an order passed by the learned Tribunal, this Court acts as a
court of certiorari. The parameters of certiorari jurisdiction stand
classically expounded by the following passages, from the judgment
of the Supreme Court in Syed Yakoob v. K.S. Radhakrishnan, AIR
1964 SC 477:
―7. The question about the limits of the jurisdiction of
High Courts in issuing a writ of certiorari under Article
226 has been frequently considered by this Court and the
true legal position in that behalf is no longer in doubt. A
writ of certiorari can be issued for correcting errors of
jurisdiction committed by inferior courts or tribunals:
W.P. (C) 2275/2016 Page 23 of 32
these are cases where orders are passed by inferior courts
or tribunals without jurisdiction, or is in excess of it, or as
a result of failure to exercise jurisdiction. A writ can
similarly be issued where in exercise of jurisdiction
conferred on it, the Court or Tribunal acts illegally or in
properly, as for instance, it decides a question without
giving an opportunity to be heard, to the party affected by
the order, or where the procedure adopted in dealing with
the dispute is opposed to principles of natural justice.
There is, however, no doubt that the jurisdiction to issue
a writ of certiorari is a supervisory jurisdiction and the
Court exercising it is not entitled to act as an Appellate
Court. This limitation necessarily means that findings of
fact reached by the inferior Court or Tribunal as result of
the appreciation of evidence cannot be reopened or
questioned in writ proceedings. An error of law which is
apparent on the face of the record can be corrected by a
writ, but not an error of fact, however grave it may
appear to be. In regard to finding of fact recorded by the
Tribunal, a writ of certiorari can be issued if it is shown
that in recording the said finding, the Tribunal had
erroneously refused to admit admissible and material
evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding.
Similarly, if a finding of fact is based on no evidence,
that would be regarded as an error of law which can be
corrected by a writ of certiorari. In dealing with this
category of cases, however, we must always bear in mind
that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the
ground that the relevant and material evidence adduced
before the Tribunal was insufficient or inadequate to
sustain the impugned finding. The adequacy or
sufficiency of evidence led on a point and the inference
of fact to be drawn from the said finding are within the
exclusive jurisdiction of the Tribunal, and the said points
cannot be agitated before a writ Court. It is within these
limits that the jurisdiction conferred on the High Courts
under Article 226 to issue a writ of certiorari can be
legitimately exercised.
W.P. (C) 2275/2016 Page 24 of 32
8. It is, of course, not easy to define or adequately
describe what an error of law apparent on the face of the
record means. What can be corrected by a writ has to be
an error of law; it must be such an error of law as can be
regarded as one which is apparent on the face of the
record. Where it is manifest or clear that the conclusion
of law recorded by an inferior Court or Tribunal is based
on an obvious misinterpretation of the relevant statutory
provision, or sometimes in ignorance of it, or may be,
even in disregard of it, or is expressly founded on reasons
which are wrong in law, the said conclusion can be
corrected by a writ of certiorari. In all these cases, the
impugned conclusion should be so plainly inconsistent
with the relevant statutory provision that no difficulty is
experienced by the High Court in holding that the said
error of law is apparent on the face of the record. It may
also be that in some cases, the impugned error of law
may not be obvious or patent on the face of the record as
such and the Court may need an argument to discover the
said error; but there can be no doubt that what can be
corrected by a writ of certiorari is an error of law and the
said error must, on the whole, be of such a character as
would satisfy the test that it is an error of law apparent on
the face of the record. If a statutory provision is
reasonably capable of two constructions and one
construction has been adopted by the inferior Court or
Tribunal, its conclusion may not necessarily or always be
open to correction by a writ of certiorari. In our opinion,
it neither possible nor desirable to attempt either to define
or to describe adequately all cases of errors which can be
appropriately described as errors of law apparent on the
face of the record. Whether or not an impugned error is
an error of law and an error of law which is apparent on
the face of the record, must always depend upon the facts
and circumstances of each case and upon the nature and
scope of the legal provision which is alleged to have been
misconducted or contravened.‖
36. Relying on the principles enunciated in the above decision, a
catena of pronouncements of the Supreme Court, including
W.P. (C) 2275/2016 Page 25 of 32
Management of Madurantakam Coop. Sugar Mills Ltd. v.
S. Viswanathan, (2005), 3 SCC 193, P.G.I. of Medical Education
and Research, Chandigarh v. Raj Kumar, (2001) 2 SCC 54 and
M.P. State Electricity Board v. Jarina Bee, (2003) 6 SCC 141,
followed, which may be regarded as having laid down, authoritatively,
the following principles:
(i) The Labour Court/Industrial Tribunal is the final fact
finding authority.
(ii) The High Court, in exercise of its powers under Article
226/227, would not interfere with the findings of fact recorded
by the Labour Court, unless the said findings are perverse,
based on no evidence or based on illegal/unacceptable evidence.
(iii) In the event that, for any of these reasons, the High Court
feels that a case for interference is made out, it is mandatory for
the High Court to record reasons for interfering with the
findings of fact of the Labour Courts/Industrial Tribunal, before
proceeding to do so.
(iv) Adequacy of evidence cannot be looked into, while
examining, in writ jurisdiction, the evidence of the Labour
Court.
(v) Neither would interference, by the writ court, with the
findings of fact of the Labour Court, be justified on the ground
that a different view might possibly be taken on the said facts.
W.P. (C) 2275/2016 Page 26 of 32
37. ―Perversity‖, for its part, is attributed to a judicial/quasi-judicial
decision if the decision ignores/excludes relevant material, considers
irrelevant/inadmissible material, is against the weight of evidence, or
so outrageously defies logic as to suffer from irrationality [Refer
Damodar Lal v. Sohan Devi, (2016) 3 SCC 78; S.R. Tewari v. Union
of India, (2013) 6 SCC 602; Rajinder Kumar Kindra v.
Delhi Administration, (1984) 4 SCC 635; Kuldeep Singh v.
Commissioner of Police, (1999) 2 SCC 10; Gamini Bala Koteswara
Rao v. State of Andhra Pradesh, (2009) 10 SCC 636; Babu v. State
of Kerala, (2010) 9 SCC 189; Sunil Kumar Sambhudayal Gupta
(Dr.) v. State of Maharashtra, (2010) 13 SCC 657].
38. Damodar Lal (supra) further postulates that in examining
whether a decision is, or is not, perverse, the classic test, of the
reasonable man's conclusion on the facts before the authority
concerned would apply. The same decision also reiterates the trite
position that inadequacy of evidence, or the possibility of reading the
evidence in a different manner, would not amount to perversity.
39. This Court, therefore, has to limit its examination, of the
pregnability, or impregnability, of the impugned order of the learned
Tribunal, within the confines of certiorari jurisdiction, as explained in
the above passages.
40. In so doing, this Court has also to resist the temptation to
overturn the award, or order, of the authority below, merely because,
W.P. (C) 2275/2016 Page 27 of 32
in the opinion of this Court, another view could possibly be taken -
even if such view may appear to be more attractive at first glance.
41. Viewed thus, I am of the opinion that the impugned order, dated
27th January, 2016, of the learned Tribunal, does not call for any
interference.
42. The learned Tribunal has come to a finding, after examining the
evidence, that the purported resignation, from his service, by the
respondent, vide the letter dated 10th August, 2011, does not inspire
confidence. In so holding, this Court has noted the fact that the
petitioner has been somewhat ambivalent, regarding the date of
tendering of the said letter, stating, at one point that it was tendered on
10th August, 2011 and, at another, that it was tendered on 11th August,
2011. The learned Tribunal has also noted the fact that there is no
evidence, whatsoever, to indicate acceptance, by the petitioner, of the
purported letter of resignation, of the respondent, on 11 th August,
2011. Significantly, the petitioner, too, does not seriously dispute this
finding, inasmuch as its contention is that the resignation was ―orally‖
accepted. Such ―oral‖ acceptance of the resignation is, in my view,
totally foreign to the law and, especially, given the mandate of the
DSE Act, such a submission cannot be tolerated for an instant. Rule
114A of the DSE Rules specifically requires acceptance of the
resignation of an employee within 30 days by the managing committee
with the approval of the Director of Education. It is fossilized in law,
from the times of Taylor v. Taylor (1875) 1 Ch. D 426 and Nazir
Ahmed v. King Emperor, AIR 1936 PC 253 that, where the law
W.P. (C) 2275/2016 Page 28 of 32
requires a particular act to be done in a particular manner, it has to be
done in that manner or not at all. Where, therefore, Rule 114A of the
DSE Rules requires the resignation, submitted by an employee, to be
accepted, within 30 days by the managing committee, with the
approval of the Director, that, and that alone, is the manner in which
resignation, of an employee, could be accepted, and no other manner
of acceptance of resignation is tolerable in law. It is, apparently, in
awareness of this legal position that the school has attempted to
submit that the purported letter of resignation, dated 10th August,
2011, allegedly tendered by the respondent on 11 th August, 2011 was
accepted on the very same day. Even so, it is a conceded position,
even in the writ petition, that this acceptance was not by the managing
committee with the approval of the Director. It is no answer to the
command of Rule 114A of the DSE Rules, to contend that, because of
the extenuating circumstances in which the petitioner claimed to have
found itself, it decided, suo motu, that the resignation of the
respondent would orally be accepted by the principal, without
involving either the managing committee or the Director of Education.
Such acceptance of resignation is no acceptance in law. Inasmuch as,
within a period of 30 days from 10th August, 2011, the purported
resignation, of the respondent, was never accepted by the school, in a
manner postulated by Rule 114A of the DSE Rules, the inevitable
consequence, in law, would be that there is in fact, been no valid
acceptance of the respondent's resignation - assuming such
resignation was ever tendered - in law.
W.P. (C) 2275/2016 Page 29 of 32
43. The learned Tribunal has also expressed its discomfiture with
the submission, of the school, that the resignation, of the respondent,
stood accepted on 11th August, 2011, by referring to the certificate,
dated 12th August, 2011 (supra), issued by the school, to the effect that
the respondent had resigned his services. This, the learned Tribunal
notes, would indicate that the resignation of the respondent is being
treated as having been accepted even prior to 12th August, 2011. The
learned Tribunal has not been able to digest the submission that the
respondent had, while on leave on 10th August, 2011, drafted out and
signed the resignation letter, and had tendered it on 11th August, 2011,
on which date it was accepted by the petitioner. This Court confesses
that it is equally unable to stomach the said submission.
44. The stand, of the school, to the effect that the relationship of
employer and employee, between the respondent and the school, stood
severed by the act, of the respondent, in resigning from the services of
the school cannot, therefore, be accepted as, even if the letter dated
10th August, 2011 (supra) is to be treated as a valid letter of
resignation, which has not been accepted in the manner contemplated
by Rule 114A of the DSE Rules.
45. Mr. Aneja sought to submit, in the alternative, that the
respondent was guilty of having remained unauthorizedly absent from
work. Unauthorized absence is a misconduct in itself, and if the
services of an employee are to be discontinued on the ground of
unauthorized absence, it has to be in accordance with the law
prescribed in that regard, which would require conducting of proper
W.P. (C) 2275/2016 Page 30 of 32
disciplinary proceedings, with adequate opportunity to the employee.
The respondent in the present case has never been charged with
unauthorized absence from duty; this submission of Mr. Aneja,
therefore, does not merit any further consideration by this Court.
46. Mr. Aneja also sought to question the legitimacy of the
decision, of the learned Tribunal, to condone the delay - which,
according to him, was inordinate - on the part of the respondent in
approaching the learned Tribunal. This Court is not inclined to
interfere on this aspect of the matter either. Condonation of delay is
essentially an issue of discretion, to be exercised by the appellate
authority concerned, and, unless the exercise of such discretion suffers
from manifest arbitrariness, or like infirmity, a writ court ought not to
interfere with such exercise. In the present case, this Court cannot
subscribe to the opinion that the decision, of the learned Tribunal, to
condone the delay, on the part of the respondent, in preferring the
appeal before it, was condonable. One may also take stock, in this
context, of the well settled principle that meritorious causes ought not,
if possible, to be rejected only on the ground of delay. The findings
recorded by this Court hereinabove clearly indicate that the act of the
petitioner, in refusing to allow the respondent to join service, on the
ground that he had resigned from the service of the petitioner on 11 th
August, 2011, was unsustainable on facts and in law. In that view of
the matter, this Court is of the opinion that the learned Tribunal could
not be said to have erred in allowing the respondent's appeal and, for
the said purpose, condoning the delay occasioned in preferring the
same.
W.P. (C) 2275/2016 Page 31 of 32
Conclusion
47. For all the above reasons, this Court is of the opinion that the
impugned order dated 27st January, 2016 of the learned Delhi School
Tribunal does not warrant any interference, especially in exercise of
the certiorari jurisdiction vested in this Court under Article 226 of the
Constitution of India.
48. The writ petition is accordingly dismissed with no orders as to
costs.
C. HARI SHANKAR, J.
AUGUST 07, 2019/kr W.P. (C) 2275/2016 Page 32 of 32