Delhi District Court
Jai Charan vs Don Bosco School & Ors on 17 December, 2012
Jai Charan vs Don Bosco School & Ors
IN THE COURT OF ADDITIONAL DISTRICT JUDGE03 (SOUTH),
ROOM NO.308, SOUTH DISTRICT, SAKET, NEW DELHI
In the matter of
RCA No. 14/2012
Jai Charan (Sweeper),
Don Bosco School,
Alaknanda, New Delhi
.....Appellant /
(plaintiff in the suit)
Versus
1. Don Bosco School,
Alaknanda, New Delhi.
2. The Management Committee,
Don Bosco School,
Through its Secretary,
Alaknanda, New Delhi.
3. Father Binny Issac
Principal Don Bosco School,
Alaknanda, New Delhi.
.....Respondents /
(defendants in the suit)
Appeal Presented on : 30.03.2012
Date of Institution : 31.03.2012
Date of Decision : 17.12.2012
JUDGMENT
(on appeal under section 96 CPC) 1.1 (Introduction): The appellant Sh. Jai Charan is plaintiff in suit No. 557/10/2008, for recovery of amount and declaration filed against all the RCA No. 14/12 Page 1 of 15 Jai Charan vs Don Bosco School & Ors respondents and by decree/judgment dated 24.02.2012 his suit was dismissed by the court of Ms. Manika, Civil Judge 05, South, Saket, Delhi. He assails the impugned decree in the present appeal. There were following issues for determination emerged from the pleadings of the parties:
1. Whether the suit is hit by the provisions of Delhi School Education Act, 1973? OPD
2. Whether penalty of deduction of two days pay for the month of October, 2007 and issuance of warning as minor penalty is imposed on plaintiff for acts of misconduct and unauthorized absence from duty? OPD
3. Whether plaintiffs are entitled to the relief of declaration as prayed? OPP
4. Whether plaintiff is entitled to the recovery alongwith interest, if so, at what rate and from what period? OPP
5. Relief.
1.2 In nutshell, the appellant's case that he has been serving as a sweeper with the respondent No. 1 and his two days salary for the month of October 2007 (i.e., of 23.10.2007 and 24.10.2007) was deducted by showing in salary slip, without any reason or show cause notice; whereas, the appellant had sent his leave application to respondent no.1 as well as its copy was sent by UPC. The appellant protested deduction of salary and also made presentation dated 07.11.2007 (now Ex.PW2/1), which was RCA No. 14/12 Page 2 of 15 Jai Charan vs Don Bosco School & Ors replied by the respondents by reply dated 17.11.2007 (now Ex.DW1/1), however, the deducted amount was not released. That is why the suit for recovery of Rs. 624/ with interest was filed and for declaration that the amount was deducted wrongly, illegally and against the rules and principles of natural justice. The respondent had also issued letter dated 16.07.2007 (now Ex.PW2/13) followed by another letter dated 12.11.2007 (now Ex.DW1/4), which was served as a warning, but with malafide, illegally and suit was also filed to declare them as illegal and without compliance of principle of natural justice. The appellant contends that he being denied of class IV employees benefit and he took the cause in the form of writ petition and also before the Director of Education, he was being victimized for taking such lawful means. In order to establish his case, the appellant examined PW1 Sh. George C.A., Office Superintendent of respondent No. 1 (about record his service book), appellant himself examined as PW2, he also got examined PW3 Sh. Jai Pal Singh (to prove that leave application for two days was sent on 23.10.2007 through him to the respondent), PW4 Sh. Suraj Pal (to establish that PW3 Sh. Jai Pal Singh delivered the application to respondent in the presence of PW4) and PW5 Sh. George Willson (to establish that he is electrician/plumber present for his duty on 16.07.2007 at second floor, where appellant came to inform him about defect in aquaguard and for carrying repairs ).
RCA No. 14/12 Page 3 of 15 Jai Charan vs Don Bosco School & Ors 1.3 The respondents'/defendants' case is that appellant was issued memos and show cause notices with regard to his misconduct right from the joining of job in the school. The appellant remained absent from his duties on 23.10.2007 and 24.10.2007, no leave application was received by the school from the appellant, his absence was unauthorized and he was informed of his deductions of two days wages by letter dated 17.11.2007. He was also issued warning letter dated 16.07.2007 (now Ex.PW2/3) about his misconduct as his duty was on third floor of the school building, where he was not found present during the round of school by the Principal/respondent no.3 but found at second floor, which was not place of his duties. The availing of leave/holidays are not matter of right nor the same can be availed without prior sanction. The salary was deducted, for unauthorized absence of appellant, being minor penalty, as per service rules of the respondent School.
In order to establish the case, the respondent examined DW1 Sh. Binoy P. Jose, accountant of respondent No. 1 and DW2/defendant No. 3 Father Binny Issac, Principal.
1.4 The trial court by judgment/decree dated 24.02.2012 returned findings on all the issues. The respondents had taken objections that the suit was hit by the provisions of the Delhi School Education Act, 1973, RCA No. 14/12 Page 4 of 15 Jai Charan vs Don Bosco School & Ors however, the issue No. 1 was decided against the respondents that suit is maintainable in the civil court (this issue has not been challenged in present appeal by the appellant nor there is any cross objections by the respondents, therefore, issue No. 1 is not in adjudication in the present appeal). The other issues No. 2 has been discussed in detail by splitting into parts by holding that the appellant's two days pay was deducted for his unauthorized absence vis a vis the letters were issued of warning of misconduct and appellant could not establish that he had sent his leave application to the respondent School nor the witnesses produced by him could establish it, which was onus on the appellant. The evidence/statement of appellant's witnesses was assessed beyond pleadings for want mentioning that leave applicastion was sent through a witness (PW3) or delivered in the presence of other witness (PW4). The UPC has not been proved for want of production of original. Consequently, the other issues No. 3 and 4 have been decided against the appellant, while denying him the relief claimed.
2.1 The appellant assails the impugned decree/judgment, on the points of facts and law that the material on record has not been appreciated by the trial court, while analyzing them. Thus, the judgment and decree is against facts and law. Secondly, the material facts have not been RCA No. 14/12 Page 5 of 15 Jai Charan vs Don Bosco School & Ors considered and findings have been given by ignoring oral facts and documentary record of UPC receipt and there was no reason to disbelieve the fact proved. Thirdly, the onus to prove issue No. 2 was on respondents but the trial court shifted onus on appellant, without amending/onus to prove the issue No. 2; the onus was shifted on appellant in the discussion on judgment and then it has been decided against the appellant, that too complete issue has not been adjudicated, whereas, findings ought to have been given completely. There was no show cause notice by respondent school given to appellant nor any inquiry was conducted and penalty has been imposed in violation of principles of natural justice, which is against the statutory service rules.
The appellant has sent his leave application on 23.10.2007 for two days viz. 23.10.2007 and 24.10.2007 through PW3 Sh. Jai Pal Singh who delivered it in the office of Administrator of respondent School, in the presence of wintess PW4 Sh. Suraj Pal but the trial court disbelieved them that name of Administrator was not remembered by PW3 or there was no acknowledgment asked by PW4. Whereas, statement of witnesses not only corroborate the version of each other but also UPC Ex.PW2/6, which has been proved but it was discarded and disbelieved at in judgment that original was not produced. No such objection was taken at the time of leading evidence. The respondents' witness/DW1 has also deposed that RCA No. 14/12 Page 6 of 15 Jai Charan vs Don Bosco School & Ors leave application can also be given after availing C.L, the appellant had furnished his application on prescribed format (which was not containing any column for reason of leave) after joining, but they have not given complete version about the leave application vis a vis there is also contradictory versions about directions/order for deduction of two days salary, as DW2/Principal says directions were given by Administrator with his knowledge about deduction of salary but DW1 says that directions were given by the Principal/DW2, whereas DW2 does not depose so. The Administrator has not been examined by respondents. Thus, in the absence of any show cause notice, inquiry or order the salary cannot be deducted. Similarly the appellant had gone to second floor of the school building on 16.07.2007 to inform the electrician about he fault in aqua guard, whereas there was nothing of his misconduct or to issue letters or to warn him. The warning notices have been given to him to victimize him for the cause he had taken to the appropriate forums. Further the appellant relies upon Management Committee of Ms. Secondary School vs Vijay Kumar, AIR 2005 SC 3549 - wherein it was held that in view of what has been stated in Frank Anthony's case (supra) the very nature of employment has undergone a transformation and services of the employees in minorities unaided schools governed under Chapter V are no longer contractual in nature. But they are statutory. The qualifications, leaves, salaries, age of RCA No. 14/12 Page 7 of 15 Jai Charan vs Don Bosco School & Ors retirement, pension, dismissal, removal, reduction in rent, suspension and other conditions of services are to be governed exclusively under the statutory regime provided in Chapter IV.
Lastly, appellant's evidence has not been appreciated stating that certain evidence are beyond pleading, whereas, the appellant led the evidence within the parameters of law of evidence and appellant's evidence cannot be discarded as it was not mentioned in pleading, since pleadings need not to contain evidence of witnesses PW3 and PW4. The trial court has considered respondents' evidence, which is in fact beyond facts of pleadings. Therefore, the impugned judgment is liable to be set aside and the appellant is entitled for the relief claimed.
2.2 Whereas the respondents have opposed the appeal that the appeal is without merit, as findings on all the issues have been given by considering the material on record, provisions of law inclusive of service contract, CBSE bye laws, the Delhi School Education Act and rules. The trial court had rightly discarded certain evidence, which are beyond the record/pleading. The respondents have led the evidence on the basis of their pleadings and trial court had weighed the case of both sides. Neither the appellant applied for leave of two days, either prior to absence or subsequent to the period of absence, or during his absence period nor any RCA No. 14/12 Page 8 of 15 Jai Charan vs Don Bosco School & Ors sanction was given. He could not prove UPC certificate and trial court has rightly disbelieved it. There is no convincing or proved evidence that appellant had given his leave application to PW3 or he presented it in the office of Administrator in the presence of PW4. Otherwise, PW3 and PW4 are interested witnesses. The appellant was given opportunity to explain his stand, although it was an oral explanation and after considering it unsatisfactory explanation, the penalty of deduction of two days salary was imposed, which has been found convincing and proved by the trial court and there is no flaw to set aside the findings. Clause 38 of Employee Service Rule Ex.DW1/1 prescribes that there is no provision to assume sanctioned of leave or to be taken for granted and clause 15(vi) of such rules talks about deduction from wages and it has been rightly deducted. Although there is no written order about deduction of two days wages, but it is within the parameters of rules and the appellant cannot derive any benefit with regard to version of defendants witnesses, as deduction was carried on the order of Administrator of the school with the knowledge of Principal. Under such eventuality the trial court has given the finding partly on issue No. 2 and plaintiff failed to prove that he applied for leave or it was sanctioned and under such eventuality the trial court was not required to answer remaining part of issue No. 2.
RCA No. 14/12 Page 9 of 15 Jai Charan vs Don Bosco School & Ors The appellant was issued memos/show cause notices Ex.PW2/D1 to Ex.PW2/D23 with regard to his misconduct right from the time his joining the respondent School. The warning letter (Ex.PW2/3) issued on 16.07.2007 because he was not found at the place where duty was assigned to him but he was found chit chat at other floor, he took the plea of informing the electrician about repair of aqua guard but said George Willson was neither authorized nor competent or qualified to repair the faulty aqua guard, it was not within his duties. Therefore, the findings returned are without flaw and appeal carries no merit, it is liable to be dismissed.
3.1 (Findings) The contentions of both sides are assessed in the light of material on record, provisions of law and trial court record and its findings. Firstly, the onus to prove issue no.2 was on the respondent, but the trial court has opined, that firstly the appellant was required to prove that he had applied for leave and from that point of view the issue no.2 has been considered. However, onus to prove issue no.3 & 4 lies on the appellant that he is entitled for such declaration and for release of salary deducted. The aspect of issue no.3 and 4 have been applied in assessing the issue no.2, but onus to prove issue no.2 was on the respondents. The trial court discussed the elements of issues no.3 and 4 in issue no.2, but it was not RCA No. 14/12 Page 10 of 15 Jai Charan vs Don Bosco School & Ors consolidated discussion on all the issues together, had all the three issues no.2, 3 and 4 discussed together, there would have been different situation. Thus, the trial court erred in treating the onus of issue no.2 on appellant/plaintiff. When onus to prove issues is casted upon a party, that party is required to be given an opportunity to prove it or discharge the obligation, but trial court shifted the onus, but without further opportunity to discharge it. Thus issues no.2 is to be assessed as onus was on the defendants/respondents. With these observation, now the contentions of parties are considered.
3.2 The parties have relied upon services rules or contract of services, in their contentions. The respondent no.1 has deducted the salary of two days of 23.10.2007 and 24.10.2007 as minor penalty because of unauthorized absence, being maintained throughout in the written statement, evidence and arguments. There are Employee Service Rules (Ex DW1/1) applicable and for he purposes of points involved, it is necessary to reproduce relevant rules 30,29, 24(7),and 28 which reads as follows: Rule 30 - Procedure for imposing minor penaltiesWhen it is proposed to impose any of the minor penalties on an employee, he shall be informed in writing of the allegations or charges on account of which it is proposed to impose the penalty on him and asked to submit his explanation within a RCA No. 14/12 Page 11 of 15 Jai Charan vs Don Bosco School & Ors specified period not exceeding 7 days. The explanation, if any, furnished by the employee shall be taken into consideration, if any, furnished by the employee shall be taken into consideration by the Disciplinary Authority before passing orders. No enquiry shall be necessary for imposing minor punishment.
Rule 29 - Disciplinary Authority - The appointing authority or any higher authority or any officer specially named or appointed for the purpose by the SCHOOL shall be the disciplinary authority.
Rule 24 Deductions from wages 1 to 6 - xxx 24(7) - Unauthorized absence from duties and the unauthorized absence is misconduct.
Rule 28 - Penalties for misconduct 3.3 Now the evidence on record is to be assessed in the background of rule applicable. For misconduct of employee, an inquiry is to be conducted. It is admitted case of respondent that there is no inquiry under rules or written order for imposing minor penalty of deducting two days salary. Moreover, as per statement of DW1 the orders for deductions were given by Principal, but as per DW3/Principal, the orders for deductions were made by Administrator, with the knowledge of Principal. However, no details of date of order or features has been proved nor Administrator has been examined. It is also case of parties that respondents had not issued any notice or show cause notice in writing to RCA No. 14/12 Page 12 of 15 Jai Charan vs Don Bosco School & Ors the appellant before deducting two days salary from emoluments of October 2007. Rule 30 provides procedure for imposing minor penalties and minor penalty can be imposed by Disciplinary Authority. Rule 29 is in respect of Disciplinary Authority, who can impose minor penalty or minor punishment. However, there is no specific evidence, who actually passed orders for imposing penalty, as there are contradictory versions of DW1 and DW2 vis a vis it is not known who was Disciplinary Authority. Otherwise, it is mandatory requirement of rule 30 to conduct inquiry before imposing minor penalty. No inquiry has been conducted. The respondents' case that appellant was given oral opportunity to explain before imposing penalty, does not satisfy the requirement of rule 30 for imposing minor penalty. 3.4 If deduction of salary is to be considered as minor punishment, then inquiry under rule 30 is not required, but punishment can be imposed by Disciplinary Authority after proper opportunity embodied in rule 30. However, respondents had not given any opportunity to the appellant for explaining the allegations and respondents' letter dated 17.11.2007 is not only after appellant's letter dated 7.11.2007 after deducting salary but also respondents have not proved that minor punishment was by Disciplinary Authority, as it is not made known and there are conflicting versions of defendants/respondents' witnesses.
RCA No. 14/12 Page 13 of 15 Jai Charan vs Don Bosco School & Ors 3.5 From the above discussion, it is clear that respondents could not have established issue no.2 to the extend that penalty of deduction of salary of two days because of minor penalty on account of misconduct of appellant. Issue no.2 is partly decided against the respondents. 3.6 However, it has been established in evidence that the duty of the appellant was on third floor on 16.7.2007 but he was not found there by Principal and he was present on second floor, where he had no duty. Mr. George/PW5 is simple electrician, and appellant had gone there for pointing out defect in aqua guard or for its repairs has not been proved. The respondents have succeeded to establish the remaining part of issue no.2 that warning letters were issued in respect of misconduct of the appellant qua his absence from duties on 16.7.2007. Issue no.2 is partly decided in favour of respondents and against the appellant.
3.7 Consequently, in view of findings on issue no.2 above, it is held and declared that the salary of two days of the appellant was deducted without following the procedure/rules and to that extent issue no.3 is decided in favour of appellant. However, remaining relief of issue no.3 is decided against the appellant, in respect of letters of warning dated 16.7.2007 and 12.11.2007.
RCA No. 14/12 Page 14 of 15 Jai Charan vs Don Bosco School & Ors
4. Since, the amount of salary of two days was deducted without due process of law and without opportunity to explain, therefore, in view of findings on issue no.2, the appellant is entitled for release of his salary of Rs.624/. The interest of saving bank account of 4% pa from the date of suit till realization of amount will meet both ends of justice. Accordingly findings of trial court on issue no.4 and 5 are set aside.
5. Therefore, appellant's appeal is allowed by declaring that his salary of Rs.624/ for the two days of 23.10.2010 and 24.10.2010 was deducted by the respondents without due process of procedure, therefore, appellant is suit is allowed for recovery of Rs.624/ along with interest @ 4% p.a. from the date suit till realization of amount. However, trial court findings are confirmed to the extend that respondent school issued warning letters dated 16.7.2007 and 12.11.2007 to the appellant as per circumstances. Both the parties will bear their own costs. Appeal is partly allowed. Copy of this judgment be sent to trial court along with trial court record forthwith.
Decree sheet be drawn accordingly. File is consigned to record room.
Announced in the open court (Inder Jeet Singh)
26th Agrahyana, 1934 Addl. District Judge - 03
South District, Saket, N. Delhi
17.12.2012
RCA No. 14/12 Page 15 of 15