Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 27.08.2020
Pronounced on: 09.09.2020
+ W.P.(C) 4951/2020 & C.M. No.17880/2020
RITU HOODA .…Petitioner
Through Ms. Shantha Devi Raman,
Advocate
versus
DIRECTORATE OF EDUCATION & ORS. …..Respondents
Through Ms. Vibha Mahajan, Advocate for
R-1 & 2
Mr. Rohit Bhardwaj, Adv. for R-3
+ W.P.(C) 4201/2020 & C.M. No.15089/2020
PRAGYA GUPTA ……Petitioner
Through Mr. Aman Panwar, Mr. Mudit
Gupta and Mr. Harsh Gattani,
Advocates
versus
DIRECTORATE OF EDUCATION & ORS. …..Respondents
Through Mrs. Avnish Ahlawat, Standing
Counsel with Mr. N.K. Singh and
Ms. Palak Rohmetra, Advocates
for R-1 & 2
Mr. Rohit Bhardwaj, Adv. for R-3
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
WP(C) 4201/2020 and 4951/2020 Page 1 of 31
J U D G E M E N T
1. In both these petitions the Petitioners lay a challenge to the order
dated 23.06.2020 and seek a direction to the Respondents to reinstate the
Petitioners with continuity of service and consequential benefits accruing
from the same. In W.P.(C) 4951/2020, the Petitioner has additionally
assailed the order dated 25.06.2020. Due to the similitude of the issues
involved in the petitions and the impugned order being the same, the
petitions are being decided by a common judgement.
2. For the sake of convenience, the Petitioner in W.P.(C) 4951/2020
is being referred to as Petitioner No.1 and the Petitioner in W.P.(C)
4201/2020 is being referred to as Petitioner No.2 hereinafter.
3. The case as set up by the Petitioner No.1 is that on acquiring
Bachelor Degree in Physical Education and being qualified and eligible
to apply for the post of PET (Physical Education), Petitioner No.1
applied for the said post in response to an advertisement dated
09.04.2018 issued by Respondent No.3 (hereinafter referred to as
School). She was asked to remain present with her original testimonials
for verification of the documents at the School on 29.05.2018.
Certificates of the Petitioner were duly verified by the concerned
officials of the School and she was informed to appear for the interview
on 18.06.2018. On successful clearing of the interview, offer of
appointment dated 31.07.2018 was issued by the School and Petitioner
was directed to join the School on 13.08.2018.
4. As per the terms of the Offer Letter, Petitioner No.1 was to be
placed on probation for a period of one year. On receipt of the Offer
WP(C) 4201/2020 and 4951/2020 Page 2 of 31
Letter, with the hope of a bright career and future ahead, Petitioner No.1
joined the School as PET on 13.08.2018 and started discharging her
duties with utmost dedication.
5. At the time of appointment, an undertaking was taken from
Petitioner No.1 that her appointment shall be subject to approval of
Respondent Nos.1 and 2/ Director of Education (hereinafter referred to
as DOE) as this was the requisite procedure as per law and that the
formality shall be completed in a few months. However, the appointment
was not approved and Petitioner No.1 did not receive her salary for
August 2018 till October 2019. Various representations for release of
salary were of no avail.
6. It is the case of Petitioner No.1 that in August 2019 she was
informed that vide letter dated 30.07.2019 DOE had approved her
appointment. Vide letter dated 20.08.2019 Petitioner No.1 requested for
a copy of the approval letter.
7. In August 2019 itself the School informed Petitioner No.1 that
since her appointment had been approved, she should submit duly filled
up New Pension Scheme and HRA Forms. An employee ID was also
allotted to her and an online account was created. She started marking
her attendance on the online portal which was directly connected to the
official website of DOE. Finally, the salary of Petitioner No.1 pending
for 13 months was paid to her on 17.10.2019. Subsequently, however, in
December 2019 payment of salary was again stopped. This constrained
Petitioner No.1 to file a writ petition in this Court being W.P.(C)
3345/2020 and Court vide order dated 04.06.2020 directed the
Respondents to release her salary within four weeks.
WP(C) 4201/2020 and 4951/2020 Page 3 of 31
8. While Petitioner No.1, according to her, was awaiting the release
of her emoluments, on 26.06.2020, received the impugned order dated
23.06.2020, which revealed that an Enquiry Committee had been
constituted to enquire into the recruitment process. Committee submitted
its report on 08.01.2019, finding certain irregularities in the recruitment
process. As per the order, a Show Cause Notice had been issued to the
School as to why the selection should not be considered void ab initio
and after considering the reply, the Competent Authority decided that the
entire selection process and the appointment of the 5 teachers recruited
thereunder was illegal and declared the same to be void ab initio . DOE
directed the School to cancel the appointments made pursuant to the said
selection process. Consequent to the directions of DOE, the School
issued an order dated 25.06.2020, declaring the selection process and the
appointments void ab initio and discontinuing the services of Petitioner
No.1.
9. The narrative of facts as given above is same in respect of
Petitioner No.2, except for qualifications and the post on which she was
appointed and is thus not repeated for the sake of brevity. Distinct fact
that needs a mention is that Petitioner No. 2 being a Graduate in Home
Science and having a B.Ed. Degree as well as Post Graduate Diploma in
Dietetics and Public Health Nutrition was appointed with the School to
the post of TGT (Home Science) in August 2018 and continued serving
the School, till passing of the impugned order.
10. Petitioners have taken several grounds in the writ petitions
assailing the impugned orders, on merits. Counsel appearing on behalf of
the School argued that the School had received an order dated
WP(C) 4201/2020 and 4951/2020 Page 4 of 31
23.06.2020 from the DOE informing the School that the entire process of
recruitment/selection and appointments of the five directly recruited
teachers was treated as void ab initio and therefore cancelled. School
was directed that all candidates who had been issued appointment letters
as a consequence of the said selection process must be terminated and a
fresh recruitment process be held in accordance with law. Pursuant to the
said order and direction of the DOE, the School vide order dated
25.06.2020 discontinued the services of the Petitioners with effect from
23.06.2020, the date of issue of the order by DOE. He submits that the
action of the School is only a consequence of the process of selection
being declared as void ab initio and refusal to grant approval by DOE
and cannot be faulted.
11. Learned counsels Mrs. Ahlawat and Ms. Vibha Mahajan appearing
for DOE at the outset took a preliminary objection to the maintainability
of the present petitions before this Court. It was argued that the remedy
of the Petitioners to challenge the impugned orders is only by way of an
Appeal before the Delhi School Education Tribunal (hereinafter referred
to as „Tribunal‟) constituted under Section 11 of the Delhi School
Education Act and Rules, 1973 (hereinafter referred to as „Act‟). In
support of the said contention, learned counsels placed reliance on the
judgement of the Supreme Court in Shashi Gaur vs. NCT of Delhi,
[(2001) 10 SCC 445] wherein the Supreme Court has held that all kinds
of termination except where the service comes to an end by efflux of
time, are amenable to be challenged before the Tribunal. Learned
counsels further contended that in several cases, Co-ordinate Benches of
this Court, following the judgement in Shashi Gaur (supra) have
WP(C) 4201/2020 and 4951/2020 Page 5 of 31
repeatedly held that all modes of termination, excluding the exception
carved out by the Supreme Court, can only be assailed, by way of an
Appeal, before the Tribunal and that the High Court in a writ petition
under Article 226 of the Constitution of India cannot directly entertain a
challenge to the termination order. Reliance is placed on the following
judgements of this Court :-
1. Hem Singh vs. Army Public School in WP (C) No. 1184/2010
decided on 01.11.2010 .
2. Amar Nath vs. Director of Education, Govt. of NCT of Delhi
and Ors. in CWP No. 970/2003 and CM No. 1496/2003
decided on 21.07.2003 .
3. GD Goenka Public School and Ors. vs. Vinod Handa and Ors.
262 (2019) DLT 154 .
4. Maharaja Agarsain Education Society and Ors. vs. Mithlesh
Gupta and Ors. in W.P. (C) 2518/2012 and CM 5392/2012
decided on 30.09.2013.
5. Daya Nand Adarsh Vidyalaya vs. Deepa Chibber & Anr.
W.P.(C) 1009/2012 decided on 19.09.2013.
12. Controverting the preliminary objection, learned counsels for the
Petitioners contended that the preliminary objection is totally
misconceived and the Petitions are liable to be entertained and heard on
merits. Twofold arguments were raised in opposition to the argument of
maintainability.
13. The first contention was that a bare perusal of Section 8(3) of the
Act leaves no doubt that the provisions confer jurisdiction on the
WP(C) 4201/2020 and 4951/2020 Page 6 of 31
Tribunal only in cases where the action is taken or the penalty is
imposed by the „Management of the School‟ against a
„teacher/employee‟. In the present case, there exists no dispute between
the Petitioners and the Management of the School as the latter neither
took any initiative to cancel the process of selection nor imposed any
penalty pursuant to any action initiated by it. The Management has only
conveyed that it was discontinuing the services of the Petitioners on
account of a direction to do so by the DOE. The DOE passed the
impugned order dated 23.06.2020 on a complaint made by some
unsuccessful candidates and illegally held that the recruitment process
was vitiated and the appointments were void ab initio . In fact, a show
cause notice was issued to the School who had clearly explained that the
selection process was in accordance with the Rules, norms and
procedures required to be followed. Therefore, the dispute, if any, was
between the Petitioners and the DOE, which does not fall within the
purview of provisions of Section 8 (3) of the Act, so as to oust the
Petitioners from the writ jurisdiction of this Court.
14. Learned counsels placed reliance on the judgement of the Full
Bench of this Court in Presiding Officer Delhi School Tribunal vs.
GNCTD [2011 (124) DRJ 513 (FB)] wherein the Full Bench has held as
under:-
“15. To have a complete and correct picture of jurisdictional
facet of the tribunal more so after the decision rendered in
T.M.A Pai Foundation (supra) it is apposite to refer to para 64
of the said decision. It reads as follows:
“64. Where allegations of misconduct are made, it is
imperative that a disciplinary enquiry is conducted,
WP(C) 4201/2020 and 4951/2020 Page 7 of 31
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
enquiry 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 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
WP(C) 4201/2020 and 4951/2020 Page 8 of 31
number, they can hold circuit/camp sittings in
different districts to achieve this objective. Till a
specialized 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.”
15. The second contention of the learned counsels for the Petitioners
was that Section 8 (3) of the Act provides for an Appeal against an order
of dismissal, removal or reduction in rank and not against any order of
termination. It is argued that Sub-section (2) of Section 8 of the Act,
provides for obtaining prior approval of the Directorate before dismissal,
removal or reduction in rank or otherwise terminating the services of an
employee of a recognized private school. The expression „otherwise
termination‟ which occurs in Sub-section (2) is conspicuously absent in
Sub-Section (3) which demonstrates that against an order of termination,
which does not come within the expression „dismissal, removal or
reduction in rank‟, the Legislature did not intend to provide an Appeal to
the Tribunal, constituted under Section 11 of the Act.
16. Learned counsels in support of the submission relied on the
observations of the Supreme Court in The Principal and Others vs. The
Presiding Officer and Others, 1978 SCC (L&S) 70; [1978 (1) SCC 498]
where the Court had observed that for applicability of Section 11 of the
WP(C) 4201/2020 and 4951/2020 Page 9 of 31
Act, twin conditions must co-exist (1) the employee should be an
employee of a recognized private school and (2) that he should have
been visited within either of the three major penalties i.e. dismissal,
removal or reduction in rank. Relevant para reads as under:-
“8. Re Point 3: Under sub-section (3) of section 8 of the Act it
is only an employee of a recognised private school against
whom an order of dismissal, removal or reduction in rank is
passed who is entitled to file an appeal against such order to
the tribunal constituted under section 11 of the Act within three
months from the date of communication to him of the order. For
the applicability or this Provision of the Act, two conditions
must co-exist. These are (1) that the employee should be an
employee of a recognised private school: and (2) that he should
be visited with either of the three major penalties of dismissal,
removal or reduction in rank. As the school was neither a
recognised private school on the relevant date nor was the
impugned order one of dismissal, removal or reduction in rank
but was an order simpliciter of termination of service, the
aforesaid appeal filed by Respondent 2 to the Tribunal
constituted under Section 11 of the Act was manifestly
incompetent and the order passed therein by the Tribunal was
clearly without jurisdiction.”
17. Learned counsels also placed reliance on the judgement of the Full
Bench of this Court in Presiding Officer 2011 (supra) , more particularly
the questions framed by the Full Bench and paragraphs 24, 25 and 31
which are as follows:-
“2. …The questions those have been referred by the tribunal
are as follows:
"(i) As to whether this Tribunal has jurisdiction to
deal with all the grievances of school teachers and
employees including minor penalties as defined in
Rule 117 (a) of the Delhi School Education Rules,
WP(C) 4201/2020 and 4951/2020 Page 10 of 31
1973 in view of the judgment of the Hon‟ble
Supreme Court in "T.M.A. Pai foundation and
Others vs. State of Karnataka" (supra).
(ii) If your Lordships reach to a conclusion that this
Tribunal has the jurisdiction in case of all
grievances of the teachers and employees of
recognized schools, then the pending matters before
various Benches of Hon‟ble High Court of Delhi
filed by the aggrieved teachers/employees may
please be transferred to Delhi School Tribunal for
their disposal as per law; and
(iii) Either declare Delhi School Tribunal as a
“Court‟ under the Contempt of Courts Act or direct
the Administrator to frame rules for implementation
of Section 27 of the Delhi School Education Act,
1973 or to devolve power of a Civil Court under
Order XXI of Code of Civil Procedure, 1908 on this
Tribunal to enable enforcement of judgments and
orders passed by the Tribunal."
xxx xxx xxx
24. In the case at hand, if the provisions under Sections 8(3)
and 8(4) are scanned, it is luminously clear that the provision
of appeal is a restricted and constricted one. The legislature
has laid down that an employee can prefer an appeal if he is
dismissed, removed or reduced in rank. The Apex Court in
Shashi Gaur (supra) after analysing the subtle facets of
subsections 2 and 3 of Section 8 expressed the view that the
statute has provided for a tribunal to confer a remedy to the
teachers who are often taken out of service by the caprices and
whims of the management of the private institutions. Their
Lordships ruled that an appeal would lie 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.
WP(C) 4201/2020 and 4951/2020 Page 11 of 31
25. In view of the restricted provision, the right to prefer an
appeal by the particular categories of employees and relating
to the particular lis its spectrum cannot be enlarged as that
would cause violence to the provision. It is well settled in law
that where the language of the Statute is plain and clear and
does not permit any other kind of interpretation, the same has
to be strictly interpreted and we are disposed to think that the
said principle is attracted to the case at hand.
xxx xxx xxx
31. In view of our preceding analysis, we answer the question
No.(i) that Delhi School Tribunal has no jurisdiction to deal
with all the grievances of the school teachers and employees
including minor penalties as defined in Rule 120(3) of the
Rules. That apart a matter of suspension or a prolonged
suspension cannot be a matter of challenge before the tribunal
as that has not been so envisaged or in the provision of appeal.
In the absence of such engrafting, it is difficult to clothe the
appellate tribunal with such jurisdiction.”
18. Emphasis was placed on the observations of a Co-ordinate Bench
of this Court in Yenni Srinivasa Rao vs. Andhra Education Society
(regd.) & Anr. (2011) 124 DRJ 625 , wherein the Court was dealing with
a similar issue. Petitioners were discharged from service on account of
being ineligible for appointment and the appointments were cancelled as
being erroneous and under a mistaken belief. Relying on the decision of
the Full Bench in Presiding Officer 2011 (supra) , Court held that
Petitioners could not be said to be the employees of a School, who have
been dismissed or removed and therefore the remedy of an Appeal was
not available to them. Relevant paras are as follows:-
“12. I will first take up the aspect of maintainability of the writ
petitions owing to the availability of the alternative remedy of
WP(C) 4201/2020 and 4951/2020 Page 12 of 31
appeal before the Delhi School Tribunal. Section 8(3) of the
Delhi School Education Act, 1973 provides for the remedy of
appeal to any employee of a recognized private school who is
dismissed, removed or reduced in rank. Though the Division
Bench of this Court in Kathuria Public School v. Director of
Education, 123 (2005) DLT 89 (DB) : 2005 (83) DRJ 541 [DB]
had held that the said remedy of appeal is available against all
grievances of the employees but the Full Bench of this Court in
O.REF. 1/2010 titled Presiding Officer Delhi School Tribunal
v. Govt. of NCT of Delhi decided on 27th August, 2010 has held
that the remedy of appeal to the Tribunal under Section 8(3)
(supra) is available only to employees who are dismissed,
removed or reduced in rank.
13. The petitioners in the present case have been discharged
from service for the reason of being not eligible for
appointment and/or their appointment being erroneous and/or
under a mistaken belief. That being the stand of the respondents
and which is to be adjudicated, strictly speaking the petitioners
cannot be said to be employees of a school who have been
dismissed or removed, for the remedy of appeal to be available
to them. Even otherwise, I am of the opinion that the writ
petitions having been entertained and the interim relief having
been granted and arguments on merits having been heard and
entailing questions of reservation, it is not deemed expedient to
football the petitioners to the Delhi School Tribunal. Thus it is
deemed expedient to entertain the writ petitions.”
19. Learned counsels for Petitioners also placed reliance on the
judgement of this Court in Kiran Jain vs. Government of NCT of Delhi
and Others in WP(C) No. 10549/2018, decided on 01.10.2019 and
argued that in the said case the services of the Petitioner were terminated
on account of certain irregularities in the procedure of appointment and
that the petition was entertained by this Court, although it was dismissed
on merits. Reliance was also placed on another judgement of this Court
WP(C) 4201/2020 and 4951/2020 Page 13 of 31
in Chairman, Managing Committee Bhai Biba Singh Khalsa Sr.
Secondary School and Ors. vs. Director of Education, Govt. of NCT of
Delhi and Ors. in W.P.(C) No. 7733 of 2013 and a connected batch of
petitions decided on 21.03.2017, wherein DOE had rejected the
appointments of the Petitioners again on certain irregularities in the
selection process and the petitions were decided on merits by this Court.
20. In so far as the judgement in Shashi Gaur (supra) is concerned,
the same is sought to be distinguished on the ground that the action
challenged by the Petitioners in the said case was an act of termination
by the Management as is evident from reading para 7 of the judgement
and in that view of the matter, the Court had held that the Statute
provided a remedy to the teachers to approach the Tribunal when they
are taken out of service by the caprices and whims of the Management of
the private institutions. In the present case, the impugned action is the
direction of cancellation of the appointments of the Petitioners by the
DOE and the Management has only communicated the same and
discontinued the services as a consequence of the directions. On account
of this crucial difference in fact and law, the ratio of the judgement in
Shashi Gaur (supra) shall not apply to the present petitions. In view of
the judgement of the Full Bench and the Co-ordinate Bench referred to
and relied upon by the Petitioners, it is strenuously argued that the
Petitioners herein were neither dismissed nor removed from service and
therefore, they are not amenable to the jurisdiction of the Tribunal and
the appropriate remedy is a writ petition under Article 226 of the
Constitution of India.
WP(C) 4201/2020 and 4951/2020 Page 14 of 31
21. I have heard the learned counsels for the parties and examined their
rival submissions.
22. In order to decide the jurisdiction of this Court to entertain the
present petitions it is significant to examine the provisions of the Section
8 (3) of the Act. Section 8 (3) of the Act is as under:-
“8. Terms and conditions of service of employees of recognised
private schools –
(3) Any employee of a recognised private school who is
dismissed, removed or reduced in rank may, within three
months from the date of communication to him of the order of
such dismissal, removal or reduction in rank, appeal against
such order to the Tribunal constituted under section 11.”
23. Section 8 (3) on a nuance scrutiny enables an employee of a
recognized private school to appeal against an order dismissing,
removing or reducing him/her in rank, before the Tribunal constituted
under Section 11 of the Act. Fulcrum of the argument of the Petitioners
for not invoking the remedy of an Appeal before the Tribunal is that the
Legislature has restricted the scope of penalties which are subject to the
appellate jurisdiction of the Tribunal, only to dismissal or removal, as a
mode of termination. Since the services of Petitioners have been
discontinued due the selection process being declared void and they are
not dismissed or removed, the remedy of writ is the appropriate remedy.
No doubt, the argument does Appeal in the first blush, but in my view
cannot be accepted.
24. Supreme Court in the case of Shashi Gaur (supra) while
interpreting sub-Sections (2) and (3) of Section 8 observed that it would
be inappropriate to give a narrow construction to sub-Section (3),
WP(C) 4201/2020 and 4951/2020 Page 15 of 31
thereby taking the teachers whose services were terminated not by way
of dismissal or removal, but otherwise, out of the purview of the
Tribunal constituted under Section 11 of the Act. Statute has provided a
Tribunal, to confer a remedy to the teachers, who are taken out of service
on the whims of the Management of private institutions and
Governmental Authorities have been given certain control over them and
if an appeal to the Tribunal is not provided to the employee as a remedy,
he would have to approach a Court under Article 226 of the Constitution,
which is a discretionary remedy. The additional reason that weighed
with the Supreme Court, to observe so, was that the remedy of an appeal
was a more efficacious remedy. In this background, the Court held that
Section 8(3) of the Act provides an appeal for challenging any
termination except where the service comes to an end by efflux of time.
Relevant paras read as under :-
“5 . Mr. Das, the learned senior Counsel appearing for the
appellant, contends that Section 8(3) provides for an
appeal against an order of dismissal, removal or reduction
in rank and not against any order of termination as is
apparent from the provisions contained in Sub-section (2)
of Section 8, which provides for obtaining prior approval
of the Director before dismissal, removal or reduction in
rank or otherwise terminating the services of an employee
of a recognised private school. The very fact of absence of
the expression "otherwise termination" available in
Subsection (2) from the provisions of Sub-section (3)
clearly demonstrates that against an order of termination
which does not come within the expression "dismissal,
removal or reduction in rank", the Legislature has not
provided for an appeal to the Tribunal constituted under
Section 11 of the Act.
WP(C) 4201/2020 and 4951/2020 Page 16 of 31
6. In support of this contention, the Counsel also placed
reliance on Rule 117 Explanation, which indicates that
replacement of a teacher who was not qualified on the date
of his appointment by a qualified one, will not amount to a
penalty within the meaning of the said Rule [see
Explanation (c)]. The learned Counsel also placed before
us the observations made by this Court in the case of The
Principal and Ors. v. The Presiding Officer and Ors.
MANU/SC/0046/1978 : [1978] 2 SCR 507 wherein this
Court had observed that for applicability of the provisions
of Section 11 two conditions must co-exist, namely, (i) that
the employee should be an employee of a recognised
private school and (ii) that he should be visited with either
of the three major penalties, i.e., dismissal, removal or
reduction in rank.
7. This judgment and the interpretation put to the
provisions of Subsections (2) and (3) of Section 8
undoubtedly, is of sufficient force. 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 to 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 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
WP(C) 4201/2020 and 4951/2020 Page 17 of 31
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
conies to an end by efflux of time for which the employee
was initially appointed. Therefore, we do not find any
infirmity with the order of the High Court not entertaining
the Writ Application in exercise of its discretion, though
we do not agree with the conclusion that availability of an
alternative remedy out the jurisdiction of the Court under
Article 226 of the Constitution.”
25. From the aforementioned observations of the Supreme Court, it is
palpably clear that all species of termination, save and except where the
service come to an end by efflux of time, can be challenged only before
the Tribunal by invoking the provisions of Section 8(3) of the Act.
“Termination” by its plain meaning means „bring to an end‟, „conclude‟
or „cease‟. As understood in common parlance and in service
jurisprudence, once there is a cessation of an employer-employee
relationship, it can be termed as termination. Thus, broadly understood,
termination brings to an end the employment of an employee through
varied modes of termination and there is a „cause‟ and „effect‟. The
cause can be several such as misconduct, leading to disciplinary
proceedings, irregular process of selection, non-fulfilment of essential
qualifications or could be resignation, voluntary retirement, etc. but the
effect of all these causes is termination of service. Once the Supreme
WP(C) 4201/2020 and 4951/2020 Page 18 of 31
Court has by its judicial interpretation held that Section 8(3) of the Act
covers all kinds of termination, it is not open to the Petitioners herein to
contend that only because the cause of the cessation of their employment
is that the selection process has been held to be irregular and void ab
initio , the Petitioners are not amenable to the jurisdiction of the Tribunal.
The alleged irregular selection is only the causative factor but the
consequence or the effect is “termination of service” and is covered in
the ambit and scope of the provisions of Section 8(3) of the Act. In view
of the binding dicta of the Supreme Court there is no reason why the
present petition should be entertained under Article 226 of the
Constitution, without the Petitioners exhausting the remedy of Appeal
before the Tribunal.
26. I am fortified in my view by the observations of a Co-ordinate
Bench of this Court in Daya Nand (supra) , relevant paras of which are
as under :-
“3. So far as the first ground that an appeal is not
maintainable before the Delhi School Tribunal is
concerned, I may note that the Supreme Court in the case
of Shashi Gaur Vs. NCT of Delhi, MANU/SC/2349/2000 :
(2001) 10 SCC 445 has held that any and every removal of
a teacher/employee of a school has to be challenged by
means of appeal which is to be filed before the Delhi
School Tribunal……
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
WP(C) 4201/2020 and 4951/2020 Page 19 of 31
teacher or employee has resigned or not cannot mean that
Tribunal will have no 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. Surely, a
teacher/employee who is illegally removed, will naturally
approach the Tribunal as per the ratio of the Supreme
Court in the case of Shashi Gaur (supra), and surely the
defence which is laid out by the school to justify the action
of the school would not mean that the issue will not remain
that of removal of the teacher/employee from the school. In
fact, it is reiterated that it is because of the assertion of the
respondent no. 1 that she has been illegally removed from
the school, and which case has been accepted by the
Tribunal, that the impugned judgment has been passed in
favour of respondent no. 1 and against the petitioner.”
27. In Daya Nand (supra) , the Court was confronted with the question
of maintainability of the Appeal before the Tribunal in a situation where
the Petitioner had resigned from the Service and the Court held that it
was one of the modes of illegal removal from service and would be
within the purview of provisions of Section 8(3) of the Act.
28. In a recent judgement by another Co-ordinate Bench of this Court,
similar view has been taken in the case of G.D. Goenka (supra) . Here
again, the issue before the Court was whether “resignation” would be
covered within the provisions of Section 8(3) of the Act, wherein the
Legislature has referred to only dismissal or removal as mode of
termination. Court placed reliance on the judgement of the Supreme
Court in Shashi Gaur (supra) and Daya Nand (supra) and held that the
expression “removed” is wide and comprehensive in its scope and ambit
and in the absence of any restrictive definition attributed to the said
WP(C) 4201/2020 and 4951/2020 Page 20 of 31
expression under the Act, it has to be accorded its widest possible
meaning. In doing so, 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 a quasi-judicial authority, is reaffirmed.
29. I may also at this stage usefully refer to a passage from the
judgement of the Supreme Court in Chandrakant Tukaram Nikam v.
Municipal Corporation of Ahmedabad, (2002) 2 SCC 542 , though in
the context of the Industrial Disputes Act, 1947. Para 4 of the said
judgement reads as under :-
“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 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
WP(C) 4201/2020 and 4951/2020 Page 21 of 31
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 [MANU/SC/0786/1995: (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 [MANU/SC/0369/1975: (1976) 1 SCC 496: 1976 SCC
(L & S) 70] and on consideration of a large number of
decisions, it was held:
"28. ….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
WP(C) 4201/2020 and 4951/2020 Page 22 of 31
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 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 remake 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
WP(C) 4201/2020 and 4951/2020 Page 23 of 31
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.”
30. The three-Judge Bench in Rajasthan SRTC v. Krishna Kant,
(1995) 5 SCC 75 culled out certain principles which are relevant in the
present context with respect to efficacious remedy and are as under :-
“35. (1) Where the dispute arises from general law
of contract i.e. where reliefs are claimed on the
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
WP(C) 4201/2020 and 4951/2020 Page 24 of 31
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,
though it may be that the Government is entitled to
examine whether the dispute is ex facie frivolous,
not meriting an adjudication.
xxxx xxxx xxxx
(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."
31. In fact it is pertinent to observe here that in G.D. Goenka (supra) ,
the Court has followed and applied the above principles and by an
analogy held that there was no reason why the grievance of a teacher
WP(C) 4201/2020 and 4951/2020 Page 25 of 31
whose services with the School stand severed by reason of resignation
should not be permitted to be agitated by following recourse to an
expedient course of action under Section 8(3) of the Act, rather than by
any other modus which could be more inexpedient and time consuming.
The same principle was followed in the case of Maharaja Agarsain
Education Society (supra) .
32. Learned counsels for the Petitioners have taken pains to argue that
the case of the Petitioners is squarely covered by the observations of the
Full Bench of this Court in Presiding Officer 2011 (supra) and since the
services of the Petitioners have been discontinued and there is no
dismissal or removal, the remedy of appeal is not available to them. I
may only notice in this context that the Full Bench has only observed
that the provisions of Section 8(3) providing for an appeal are restricted
and constricted. The Legislature has provided an appeal to an employee
who is dismissed, removed or reduced in rank. Taking note of the
judgement of the Supreme Court in Shashi Gaur (supra) , the Full Bench
reproduced the observations made by the Supreme Court and concluded
that in view of the restricted provision, right to prefer an appeal by a
particular category of employees and relating to a particular lis cannot be
enlarged in its spectrum as that would cause violence to the provisions.
33. In my view, the said judgement does not inure to the advantage of
the Petitioners. A plain reading of paras 23 and 24 of the judgement of
the Full Bench shows that the Full Bench only observed that Section 8(3)
of the Act has to be interpreted and given its normal meaning and
reiterated the wordings of the Supreme Court in Shashi Gaur (supra) .
Once the Full Bench holds that provisions of Section 8(3) of the Act
WP(C) 4201/2020 and 4951/2020 Page 26 of 31
have to be given their normal meaning, in my view, the normal meaning
can only be the interpretation given to the words by the Supreme Court
in Shashi Gaur (supra) . The Full Bench has nowhere held that contrary
to the interpretation and meaning assigned to Section 8(3) of the Act, no
appeal shall lie where the termination of the service of an employee is
for a reason other than dismissal or removal.
34. To the same effect is the view taken by the Co-ordinate Bench in
Daya Nand (supra) and I quote the relevant passage as follows :-
“6. The Full Bench judgment of this Court in the
case of Presiding Officer(supra) also in my opinion,
does not help the petitioner because the paras which
are relied upon in the judgment on behalf of the
petitioner, being paras 23 and 24 only state that the
language of Section 8(3) has to be interpreted as per
its normal meaning, but surely that normal meaning
is the meaning which has to be ascribed by the
judgment in the case of Shashi Gaur (supra). The
Full Bench judgment of this Court in the case of
Presiding Officer (supra) has referred to the ratio in
the case of Shashi Gaur (supra). The observations
which were made in the case of Shashi Gaur (supra)
in paras 23 & 24 were with respect to whether an
order of suspension can or cannot be challenged
before the Delhi School Tribunal, although, the
word 'suspension' is not found in Section 8(3) of the
Act, and therefore, the observations of the Full
Bench in paras 23 and 24 were in aid to the
conclusion that the order of suspension cannot be
appealed before the Delhi School Tribunal under
Section 8(3) of the Act.
I therefore reject the argument that the appeal filed
by respondent no. 1 before the Delhi School
Tribunal was not maintainable.”
WP(C) 4201/2020 and 4951/2020 Page 27 of 31
35. Reliance is also placed by the Petitioners on the judgement of the
Co-ordinate Bench in Yenni Srinivasa Rao (supra) wherein the Court
was dealing with the aspect of maintainability of the writ petition on
account of an objection of the availability of the remedy of appeal before
the Tribunal, amongst other grounds assailing the discharge orders of the
petitioners. The Court relying upon the judgement of the Full Bench in
Presiding Officer 2011 (supra) held that the petitioners were discharged
from service being ineligible for appointment and since the appointment
was erroneous or under a mistaken belief, the petitioners cannot be said
to be employees of the School, who have been dismissed or removed and
cannot thus, avail the remedy of appeal before the Tribunal. With respect
to the said argument, suffice would it be to state that in the said
judgement no specific reference has been made to the binding judgement
of the Supreme Court in Shashi Gaur (supra) . While the learned
counsels for the Petitioners sought to argue that the Court has taken note
of the judgement of the Full Bench, which in turn noticed the judgement
in Shashi Gaur (supra), but the fact remains that the Court has in Yenni
Srinivasa Rao (supra) neither specifically referred to Shashi Gaur
(supra) nor its dicta and therefore there was no occasion to deal with the
observations of the Supreme Court, that all modes of termination except
the one excluded by the judgement, will be covered within the purview
of provisions of Section 8(3) of the Act. It may also be noted that in
Yenni Srinivasa Rao (supra) , the additional factor which weighed with
the Court to entertain the petition was that in the said case the petitions
had been entertained, interim relief had been granted and arguments on
WP(C) 4201/2020 and 4951/2020 Page 28 of 31
merits had been heard and it was not expedient at that stage to dismiss
the petitions and relegate the Petitioners to the remedy of an appeal. In
any case, in view of the binding dicta of the Supreme Court, the present
petitions cannot be entertained. Insofar as reliance is placed on the
judgements in the case of Kiran Jain (supra) and Chairman, Managing
Committee Bhai Biba Singh Khalsa Sr. Secondary School (supra) , it is
evident by a reading of the judgements that in neither of the two
judgements an objection was taken to the maintainability of the petition
on the ground of availability of the remedy of appeal to the Petitioners
therein under Section 8(3) of the Act and thus the Court had no occasion
to deal with the issue of maintainability. The judgements can therefore
be of no help to the petitioners.
36. In view of the above, the issue of the maintainability of the present
petitions is decided in favour of Respondent Nos.1 and 2 and the
objection of Respondent Nos.1 and 2 that the Petitioners have a remedy
of Appeal under Section 8(3) of the Act before the Tribunal is sustained.
37. The second and the only other contention of the learned counsels
for the petitioners was that the provisions of Section 8(3) of the Act shall
apply only when there is a dispute between the Management and the
employee, while in the present case there is no dispute between the
Petitioners and the Management as the impugned action is of the DOE. It
was also argued, to buttress this contention, that the School was bound
by the directions of the DOE, to discontinue the services of the
Petitioners, once DOE refused to grant approval and declared the
selection process as void. School has not, on its own accord initiated any
action and had no option in the matter after receiving the impugned order
WP(C) 4201/2020 and 4951/2020 Page 29 of 31
of DOE.
38. In my view, there is no force in this argument of the Petitioners. No
doubt it is the DOE who after holding an inquiry into the matter found
that there were some irregularities in the selection process and declared
the process void, but it cannot be overlooked that on the
recommendations of the DOE, it is the Management which decided to
discontinue the services of the Petitioners and passed an order to that
effect on 25.06.2020, which has been assailed by the Petitioner in
W.P.(C) 4951/2020. From a perusal of the said order dated 25.06.2020,
it can be deciphered that the Management has supported and endorsed
the view and recommendations of the DOE and thereby discontinued the
services of the Petitioners. It can thus hardly by argued that there is no
dispute between the Petitioners and the Management and in my view the
said order is certainly open to be challenged before the Tribunal.
39. This Court cannot agree with the contention of the Petitioners that
the Management is bound by the directions of the DOE and therefore the
action taken by the Management is only consequential and out of sheer
compulsion. It was certainly open to the Management, in law, to assail
the order of the DOE and cases are not unknown or uncommon, where
the School Managements have challenged orders passed by the DOE,
which in their perception, are illegal. Therefore, clearly the dispute has
arisen between the Petitioners and the Management and even on this
count, the remedy of the Petitioners is to approach the Tribunal, by way
of an Appeal under Section 8(3) of the Act.
40. In view of the above, the present petitions cannot be entertained
and deserve to be dismissed on the ground of maintainability, leaving it
WP(C) 4201/2020 and 4951/2020 Page 30 of 31
open to the Petitioners to approach the Tribunal and challenge the
impugned orders. It is made clear that this Court has not expressed any
opinion on the merits of the case. Arguments were heard only on the
maintainability of the present petitions and judgement was reserved on
this limited aspect.
41. Both the petitions along with the pending applications are
accordingly dismissed. No orders as to costs.
JYOTI SINGH, J
th
SEPTEMBER 9 , 2020
yg/yo
WP(C) 4201/2020 and 4951/2020 Page 31 of 31