Sunday, 4 April 2021

Whether School tribunal has jurisdiction to decide a dispute relating to a private school teacher's resignation?

  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

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.”{Para 4}

22. In fact in the case of Daya Nand (supra) the Court was confronted

with the question of maintainability of an appeal before the Tribunal

where the Petitioner had resigned and even in that context the Court held

that since resignation was one of the modes of cessation of service, it

would be within the purview of the Tribunal under Section 8(3) of the

Act to adjudicate the issue. In a recent judgment in GD Goenka Public School and Ors. vs. Vinod Handa and Ors. 262 (2019) DLT 154, a Coordinate Bench of this Court has taken a similar view and relegated the Petitioner to the remedy of an appeal before the Tribunal, as the challenge was to an order of resignation.

 IN THE HIGH COURT OF DELHI AT NEW DELHI


 W.P.(C) 6975/2020 and CM Nos.23831/2020 and 23832/2020

SANDHYA BINDAL  Vs  STATE OF NCT OF DELHI 

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

Pronounced on: 24.11.2020

1. Challenge in the present petition is to a Termination Order dated

06.03.2020 passed by Respondent No.2 / Ramjas School (hereinafter

referred to as ‘School’). A writ of mandamus is sought for reinstatement

of the Petitioner in service with back wages, salary, seniority and arrears

in accordance with the provisions of the Delhi School Education Act and

Rules (hereinafter referred to as the ‘DSEAR’). Petitioner also prays for

declaring the inquiry proceedings held against her as well as the Inquiry

Report ultra vires the provisions of the DSEAR and CCS (CCA) Rules

and also seeks compensation for alleged harassment, defamation, mental

agony and loss of career.


2. The facts as set out in the petition and required for adjudication of

the present writ petition are that the Petitioner was appointed as PGT

(Chemistry) Teacher in the School in July, 2000. After rendering 14 years

of service, she was appointed as Officiating Principal in May, 2014 and in

this regard a Certificate dated 20.09.2016 was issued by the School

highlighting her satisfactory service as well as in appreciation of her

leadership qualities and competency. Pursuant to a Departmental

Promotion Committee (hereinafter referred to as “DPC”) held on

22.09.2016, Petitioner was promoted as a Regular Principal of the School.

3. According to the Petitioner the trouble started in her life when one

Mr. Gupta was appointed as Manager of the School with effect from

19.10.2016 and soon thereafter different sections of Respondent Nos.2

and 4 and its Trustees started running the affairs of the School and

differences of opinion emerged amongst the members of Respondent

No.4. Petitioner was pressurized to accept various unethical practices,

while discharging the official duties which she refused to do.

4. Petitioner avers that a complaint dated 03.05.2017 was made to

Respondent No.1 / Govt. of NCT of Delhi with respect to the alleged

harassment by the School, more particularly by the Chairman. A

complaint was also made on 30.06.2017 to the Delhi Commission for

Women which is self explanatory. On 20.07.2017 an order was however

passed by Respondent No.1 under Section 24(3) of the DSEAR directing

the Management of the School to take action against the Petitioner for

committing a breach of code of conduct based on an Inquiry Report dated

11.07.2017 of a Committee of 4 members.

WP(C) 6975/2020 Page 3 of 24

5. The said order was challenged by the Petitioner before this Court in

W.P.(C) No.6354/2017, which was dismissed on 26.07.2017 with an

observation that the Court would refrain itself from going into the

relevancy/sufficiency of the material available with the Inquiry

Committee. Subsequently, the Petitioner was placed under suspension

vide Suspension Order dated 25.07.2017, invoking provisions of Rule

115 of the DSEAR. On 31.08.2017 Petitioner filed an appeal bearing

LPA No.578/2017 against the order dated 26.07.2017, in which the

Division Bench issued notice on 01.09.2017.

6. In the meantime, on 04.10.2017 a Show Cause Notice was issued

by the School asking the Petitioner to respond within seven working days.

It was alleged in the Show Cause Notice that a large number of

complaints were lodged by the Teachers, parents and staff of the School

against the Petitioner which included harassment of students, illegal

suspension of students including corporal punishments, misbehaviour

with parents, etc. Petitioner submitted a response to the said notice and

sought the documents to enable her to file a detailed response. According

to the Petitioner the documents were not supplied and vide letter dated

22.12.2017 last opportunity was given to file a reply to the Show Cause

Notice, failing which Disciplinary Committee would proceed as per law.

7. Vide order dated 22.01.2018 suspension of the Petitioner was

continued. Petitioner thereafter filed a suit for mandatory injunction

before the Trial Court seeking directions to the School to supply the

documents and materials as requested by her in the letter dated

12.10.2017.

WP(C) 6975/2020 Page 4 of 24

8. A Memorandum of Charge was issued on 27.02.2018 and the same

was communicated to the Petitioner vide letter dated 01.03.2018. As per

the letter the School Management had found the reply of the Petitioner

unsatisfactory and decided to initiate disciplinary proceedings. A

Disciplinary Committee was constituted under Rule 118 of the DSEAR

which, in its meeting held on 27.02.2018, framed the chargesheet under

Rule 117(b) of the DSEAR. Petitioner was directed to submit the written

statement of defence within 15 days as also to indicate if she desired to be

heard in person. Petitioner sought time of one month to respond as the

documents were voluminous. Vide letter dated 17.03.2018 Petitioner

denied the allegations and sought statement of witnesses.

9. Vide order dated 25.07.2018 suspension was extended till

23.01.2019 or till further orders and the subsistence allowance was

reduced. When the appeal was listed before the Division Bench on

12.10.2018, it was pointed out by the School that the Inquiry Officer had

been appointed, whereupon Petitioner did not press the appeal. Petitioner,

however, sought direction to conclude the inquiry expeditiously and the

Court directed the Inquiry Officer to complete the inquiry within four

months, leaving it open to the petitioner to raise all grounds in accordance

with law as well as those raised in the appeal, before the Inquiry Officer.

10. The inquiry finally culminated into the charges being proved

against the Petitioner and passing of a Termination Order dated

06.03.2020, which is assailed in the present petition. The order has been

passed under Rules 120, 123 and 59 of the DSEAR. The period of

suspension has been treated as period not spent on duty for all purposes.

The order is assailed before this Court on several grounds from violation

WP(C) 6975/2020 Page 5 of 24

of Section 8(2) to Rule 120 of the DSEAR as well as violation of

principles of natural justice.

11. Mr. V. Balaji learned counsel appearing for Respondent No.1 as

well as Mr. Kirti Uppal learned Senior Counsel for Respondent Nos. 2 to

4 have taken a preliminary objection to the maintainability of the present

petition in this Court. It is argued that the challenge in the present petition

is essentially to a Termination Order and for which the remedy available

to the Petitioner is to approach the Delhi School Education Tribunal

(hereinafter referred to as the ‘Tribunal’). The contention is that there

cannot be a doubt on the proposition that this Court under Article 226 of

the Constitution of India has inherent powers to entertain writs even

where alternative remedies are available and the law to this effect is well

settled. However, while dealing with the specific issue of maintainability

of a writ petition in case of dismissal, removal, etc. under Section 8(3) of

the DSEAR, the Supreme Court in Shashi Gaur vs. NCT of Delhi and

Ors., (2001) 10 SCC 445 has categorically upheld the order of the High

Court declining to entertain a writ petition in view of the alternative

remedy before the Tribunal, in a case of termination, in view of the

provisions of Sub-Section (3) of Section 8 of the DSEAR. It is submitted

that the said judgment has not been overruled and still holds the field. In

fact, the said judgment has been subsequently followed by several

Benches of this Court and the Petitioners have been relegated to the

remedy of Appeal before the Tribunal. In a nutshell the argument is that

the remedy of the Petitioner is to challenge the impugned order only by

way of an appeal before the Tribunal constituted under Section 11 of the

DSEAR. Reliance is placed on the judgments of this Court in :

WP(C) 6975/2020 Page 6 of 24

(i) 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.

(ii) Daya Nand Adarsh Vidyalaya vs. Deepa Chibber & Anr.

W.P.(C) 1009/2012 decided on 19.09.2013.

(iii) Ritu Hooda vs. Directorate of Education and Ors. in W.P.

(C) 4951/2020 and Pragya Gupta vs. Directorate of

Education and Ors. in W.P.(C) 4201/2020, decided on

09.09.2020.

12. Controverting the preliminary objection, counsel for the Petitioner

vehemently argued that there is no merit in the preliminary objection and

the petition is liable to be entertained. It is contended that the present

petition has been filed under Article 226 read with Articles 14 and 21 of

the Constitution of India and this Court has the jurisdiction to entertain it.

Respondents have violated the fundamental and legal rights of the

Petitioner. The order dated 20.07.2017 itself indicates that for similar

allegations inquiries have been conducted three times against the

Petitioner. Double jeopardy is strictly prohibited by Article 20 of the

Constitution and the Court must protect the victimization and sufferings

of the Petitioner.

13. It is argued that the present petition is the fourth petition by the

Petitioner in this Court. The first petition was decided on 26.07.2017

against which the appeal was filed, which was decided on 12.10.2018

granting liberty to the Petitioner to raise all grounds before the Inquiry

Officer. Since the earlier petitions were filed in this Court and also

entertained by the Court, the present petition is maintainable. Elaborating

WP(C) 6975/2020 Page 7 of 24

the argument, learned counsel contends that the Petitioner had also filed a

petition seeking quashing of the Suspension Order and payment of

subsistence allowance, which was also entertained by this Court and is

pending. Thus, in effect the present petition is nothing but a continuation

of the earlier petitions filed in this Court.

14. The next contention of the Petitioner is that the alternate remedy of

appeal to the Tribunal is not effective and the Tribunal is not competent

to entertain and adjudicate prayer (c) of the present petition which is a

challenge to the vires of the DSEAR vis-a-vis CCS (CCA) Rules. It is

argued that the jurisdiction of this Court can never be ousted by reason of

any alternative remedy and it is a settled position of law that in three

contingencies the writ petition under Article 226 of the Constitution is

maintainable viz. (i) where the writ petition is filed for enforcement of

fundamental rights; (ii) where there is violation of principles of natural

justice; or (iii) where the order or proceedings are wholly without

jurisdiction or the vires of an Act is challenged. According to the counsel

for the Petitioner in the present case all the three conditions are fulfilled.

15. It is argued that the entire inquiry proceedings would reveal that

there is violation of principles of natural justice as no fair opportunity was

given to the Petitioner to defend herself. Provisions of the DSEAR were

violated. The counsel for the Petitioner relies on the judgment of the

Supreme Court in Satwati Deswal vs. State of Haryana, (2010) 1 SCC

126 to contend that in the said case the Supreme Court had observed that

the High Court had fallen in grave error in rejecting the writ petition on

the ground that the petitioner had an alternate remedy of appeal before the

Tribunal. Since the order of termination was found to have been issued

WP(C) 6975/2020 Page 8 of 24

without any Show Cause Notice or without initiating any disciplinary

proceedings and affording an opportunity of hearing, the Supreme Court

held that the writ petition was maintainable, even if an alternate remedy

was available. Reliance is also placed on the judgment of the Supreme

Court in Mariammaa Roy vs. Indian Bank, (2009) 16 SCC 187 where

again the Court held that even if an alternative remedy was available to

an aggrieved party, a writ could be entertained, if there are violations of

principles of natural justice, while passing the order impugned.

16. Counsel for the Petitioner emphasized that in Whirlpool

Corporation vs. Registrar of Trade Marks, (1998) 8 SCC 1, the Supreme

Court has clearly held that power to issue prerogative writs under Article

226 of the Constitution is plenary in nature and can be exercised for

enforcement of any fundamental right contained in Part-III of the

Constitution as also for ‘any other purpose’. The High Court has the

discretion to entertain or not to entertain a writ petition and the alternative

remedy cannot operate as a bar in three contingencies, which are

mentioned therein. Counsel also relies on a passage from Mayank Babu

Agrawal vs. State of U.P. and Ors., 2019 SCC OnLine All 4146 where

the Allahabad High Court entertained a writ petition despite availability

of an alternate remedy of a statutory appeal under the Rules applicable in

the said case and /or approaching the Administrative Tribunal.

17. Responding to the arguments of the learned counsel for the

Petitioner, learned Senior Counsel for Respondent Nos.2 to 4 and learned

counsel for Respondent No.1 submit that the judgment of the Supreme

Court in Satwati Deswal (supra) is clearly distinguishable. In the said

case the Court had found that there were violations of principles of

WP(C) 6975/2020 Page 9 of 24

natural justice while the present case does not fall in any of the three

categories which are exceptions to the Rule that a writ petition should not

normally be entertained if there are alternative remedies. In the instant

case all procedures have been followed. Inquiry Committee was properly

constituted and opportunity was given to the Petitioner to prove her

defence. More significantly the said judgment has not considered the

earlier judgment in Shashi Gaur (supra) and since both are judgments of

a Bench of equal strength, the latter judgment would be per-incuriam. It

is further argued that a Coordinate Bench of this Court in Arshpreet Kaur

vs. Guru Teg Bahadur Polytechnic Institute and Ors., 2017 SCC

OnLine Del 6761 has distinguished the case of Satwati Deswal (supra)

on the ground that the said judgment only lays down a general

proposition of law and where an alternate efficacious remedy exists, the

writ Court should refuse to exercise its extraordinary jurisdiction under

Article 226 of the Constitution.

18. I have heard the learned Senior Counsel for Respondent Nos.2 to 4

and the respective counsels for the Petitioner and Respondent No.1.

19. The foremost issue that needs to be decided is the maintainability

of the present petition before this Court in view of the existence of the

remedy of appeal under Section 8 (3) of the DSEAR. The provisions of

Section 8(3) would be required to be examined and the provisions are as

follows :-

“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

WP(C) 6975/2020 Page 10 of 24

of such dismissal, removal or reduction in rank, appeal

against such order to the Tribunal constituted under section

11.”

20. A close scrutiny of Sub-Section (3) of Section 8 leaves no doubt

that the provisions enable 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 DSEAR. 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), 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. If an appeal to the Tribunal is not provided to the

employee as a remedy, he / she would 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. With this

background on the canvas, the Court categorically held that Section 8(3)

of the DSEAR provides an appeal for challenging any termination except

where the service comes to an end by efflux of time. Relevant paras of

the judgment are as follows :-

“5. Mr. Das, the learned senior Counsel appearing for the

appellant, contends that Section 8(3) provides for an appeal

WP(C) 6975/2020 Page 11 of 24

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.

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

WP(C) 6975/2020 Page 12 of 24

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 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.”

21. Relying on the judgment in Shashi Gaur (supra), a Coordinate

Bench of this Court in Daya Nand (supra) held as follows :-

“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

WP(C) 6975/2020 Page 13 of 24

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 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.”

22. In fact in the case of Daya Nand (supra) the Court was confronted

with the question of maintainability of an appeal before the Tribunal

where the Petitioner had resigned and even in that context the Court held

that since resignation was one of the modes of cessation of service, it

would be within the purview of the Tribunal under Section 8(3) of the

Act to adjudicate the issue. In a recent judgment in GD Goenka Public School and Ors. vs. Vinod Handa and Ors. 262 (2019) DLT 154, a Coordinate Bench of this Court has taken a similar view and relegated the Petitioner to the remedy of an appeal before the Tribunal, as the challenge was to an order of resignation.

23. In fact in G.D. Goenka (supra), the Court has followed and applied

the principles with respect to efficacious remedy as culled out in

Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75 and observed that a

teacher, whose relationship is severed with the School, should be

permitted to agitate her grievance by following recourse to an expedient

course of action under Section 8(3) of the Act rather than other modes

which are more inexpedient and time consuming. The principles as culled

out in Rajasthan SRTC (supra) are as follows:-

“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

(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

WP(C) 6975/2020 Page 15 of 24

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, 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."

24. This Court has recently in the case of Ritu Hooda (supra) taken a

similar view where the challenge was to an order whereby the services of

the Petitioners were discontinued on account of the recruitment process

being declared void ab initio and one of the arguments raised was that the

said order did not fall within the purview of the provisions of

WP(C) 6975/2020 Page 16 of 24

Section 8(3) as the Petitioners were neither dismissed nor removed nor

reduced to rank. Following the judgment of the Supreme Court in Shashi

Gaur (supra) as well as the judgments of the Coordinate Benches, this

Court had upheld the preliminary objection of the Respondents therein

that the petitions were not maintainable and the appropriate remedy to the

Petitioners was to file an appeal before the Tribunal, constituted under the

DSEAR.

25. Having considered the above referred judgments more particularly

the binding dicta of the Supreme Court in Shashi Gaur (supra), I am

persuaded to hold that the appropriate remedy available to the Petitioner

is to approach the Tribunal by filing an appeal against the order of

termination. While there is no gain-saying that the inherent jurisdiction of

a High Court under Article 226 of the Constitution to issue prerogative

writs cannot be limited by reason of an alternative remedy being available

but this Court is equally bound by the dicta in Shashi Gaur (supra)

where the specific issue before the Court was the availability of remedy

of appeal before the Tribunal constituted under the DSEAR.

26. The judgments relied upon by counsel for the Petitioner in my

considered view are distinguishable on facts and cannot inure to his

advantage. In Satwati Deswal (supra), heavily relied upon by the

Petitioner, the undisputed facts were that no Show Cause Notice was

issued to the Petitioner and no departmental proceedings were held,

giving opportunity of hearing to the Petitioner, before terminating her

services. The writ petition was dismissed by the High Court on the

ground that the Petitioner had an alternate remedy before the Tribunal.

WP(C) 6975/2020 Page 17 of 24

The Supreme Court while examining the order of the High Court held as

follows:-

“5. In our view, the High Court had fallen in grave error in

rejecting the writ petition on the aforesaid ground. First,

such an order of termination was passed without issuing

any show cause notice to the appellant and without

initiating any disciplinary proceedings by the authorities

and without affording any opportunity of hearing. It is well

settled that a writ petition can be held to be maintainable

even if an alternative remedy available to an aggrieved

party where the court or the tribunal lacks inherent

jurisdiction or for enforcement of a fundamental right; or if

there had been a violation of a principle of natural justice;

or where vires of the act were in question.”

27. The factors which weighed with the Supreme Court in holding that

despite the availability of alternative remedy, the writ petition was

maintainable, was that there was complete violation of principles of

natural justice as well as violation of the statutory provision involved in

the said case which required the holding of an inquiry by framing a

definite charge before imposing the major penalty of termination. In such

an extreme situation, the Supreme Court quashed the order of the High

Court as well as the termination order giving liberty to the employer to

initiate disciplinary proceedings, if they so desired. Relevant paras are as

follows :-

“7. Such being the position and in view of the admitted fact

in this case that before termination of the services of the

appellant, no disciplinary proceeding was initiated nor any

opportunity of hearing was given to the appellant. It is clear

from the record that the order of termination was passed

without initiating any disciplinary proceedings and without

affording any opportunity of hearing to the appellant. In

WP(C) 6975/2020 Page 18 of 24

that view of the matter, we are of the view that the writ

petition was maintainable in law and the High Court was in

error in holding that in view of availability of alternative

remedy to challenge the order of termination, the writ

petition was not maintainable in law.

8. Apart from that, on a cursory look of the statutory

provision of the Constitution of the Parishad Working

Committees, it would be clear that before imposing any

major penalty against an employee, namely, an order of

termination of service, an inquiry must be held in the

manner specified in the statutory rules by which the

disciplinary authority shall frame definite charges on the

basis of allegations on which an inquiry shall be proposed

and opportunity must be given to the employee to submit a

written statement stating therein whether he/she desires to

be heard in person and no order of termination also can be

passed without the approval of the Managing Committee.

On this count alone, therefore, the High Court was, in our

view, in grave error in dismissing the writ petition of the

writ petitioner.”

28. In the present case it is the case of the Petitioner herself that a

Show Cause Notice was issued to the Petitioner followed by a

Memorandum of Charge. Inquiry Officer was appointed who conducted

the inquiry proceedings, in which the Petitioner participated. An inquiry

Report was rendered by the Inquiry Officer and finally the Disciplinary

Authority passed the impugned termination order. The facts of the present

case cannot be therefore placed at the same pedestal as those in the case

of Satwati Deswal (supra). Additionally, it is also required to be noted

that the Supreme Court in the said case did not consider the earlier

judgment of the Court in Shashi Gaur (supra) and there is thus force in

WP(C) 6975/2020 Page 19 of 24

the contention of the Respondents that the said judgment would be of no

avail to the Petitioner.

29. In Mariamma Roy (supra), the Supreme Court was examining the

order of the High Court which had dismissed the writ petition on the

ground of availability of an alternative remedy of appeal to the Petitioner,

under the provisions of Recovery of Debts due to Banks and Financial

Institutions Act, 1993. In the said case the admitted position was that

before passing the impugned order no notice was served on the appellant

and thus the Supreme Court finding that there was violation of principles

of natural justice interfered in the matter and set aside the impugned

order, remitting the matter back to the High Court. In Mayank Babu

Agrawal (supra) the fulcrum of the argument of the Petitioner was that

the charges framed against him were vague, unclear and did not disclose

unambiguously the nature of allegations against him to enable him to

defend herself effectively. A reading of the judgment clearly shows that

the Court dealt at length with the law on issuance of chargesheet and

posed a question if the charges were vague, indefinite/not precise i.e

beyond comprehension. This is evident from reading para 15 of the

judgment which is as follows :-

“ The question that arises for determination is as to whether

the disciplinary enquiry stands vitiated for non-compliance

of the mandatory procedure contemplated in Rule 7 of

Rules, 1999, and whether the charges are vague, not

definite/precise i.e. beyond comprehension.”

30. In fact when the Respondent therein raised a preliminary objection

with regard to the maintainability of the writ petition on the ground that

WP(C) 6975/2020 Page 20 of 24

the Petitioner had an alternative remedy of a statutory appeal under the

Rules for approaching the Tribunal, the Petitioner, in rebuttal, urged that

the Petitioner was not raising any defence on merit but was only

contending that taking the charges as they stood, it did not make out a

case of misconduct, being vague and unclear. The Court keeping in view

the vague and unambiguous chargesheet as well as having found as a

matter of fact that the Petitioner was harassed, willfully and deliberately,

with a pre-determined mind, concluded that in the given facts it would be

a futile exercise to relegate the Petitioner to an alternate remedy and thus

entertained the petition. In my view the facts involved in the two

judgments are not even remotely close to the facts of the present case so

as to persuade this Court to entertain the present petition.

31. In so far as the reliance of the Petitioner on the judgment in

Whirlpool Corporation (supra) is concerned, suffice would it be to state

that the said case related to a case where the Show Cause Notice issued

by the Registrar of Trademarks under Section 56(4) of the Trade and

Merchandise Marks Act, 1958 was challenged by way of a writ petition

on the ground that the notice was wholly without jurisdiction. In that

context the Supreme Court held that the power to issue prerogative writs

under Article 226 of the Constitution is plenary in nature and not limited

by any other provision of the Constitution. The High Court having regard

to the facts of the case has the discretion to entertain or not entertain a

writ petition. The Supreme Court, however, also observed that the High

Court has imposed upon itself certain restrictions one of which is that if

an effective and efficacious remedy is available the High Court would not

normally exercise its jurisdiction. While examining the issue of

WP(C) 6975/2020 Page 21 of 24

maintainability of a writ petition against an order of termination under the

provisions of DSEAR, the Supreme Court in Shashi Gaur (supra) has

categorically held that the remedy of an appeal before the Tribunal is

undoubtedly a more efficacious remedy to an employee whose services

stand terminated rather than knock the doors of a Court under Article 226

of the Constitution, which is a discretionary remedy. The judgment in

Whirlpool Corporation (supra) is thus of no avail to the Petitioner.

32. Coming to the argument of the learned counsel for the Petitioner

that there are violations of principles of natural justice and the provisions

of the DSEAR Act during the inquiry proceedings, suffice would it be to

state that it would be certainly open to the Petitioner to raise all

grievances regarding the conduct of the inquiry before the Tribunal. As

far as the argument that the Petitioner has challenged the vires of CCS

(CCA) Rules and therefore the petition is maintainable, is concerned, the

said argument only deserves to be rejected. Counsel for the Petitioner

during the course of the arguments had drawn the attention of the Court

to the Report of the Inquiry Officer where in the opening paragraph of the

Inquiry Report, there is a reference to the Inquiry Officer having been

appointed under Rule 14 of the CCS (CCA) Rules. Taking advantage of

the contents of this part of the Inquiry Report, counsel for the Petitioner

has very ingenuously argued that the inquiry could not have been

conducted under the CCS (CCA) Rules since the Petitioner was a

Principal in a private aided school and an inquiry could only be held

under the provisions of DSEAR.

33. I have carefully perused the entire Inquiry Report and but for a

mention of Rule 14 of the CCS (CCA) Rules in paragraph 1, there is no

WP(C) 6975/2020 Page 22 of 24

reference to the said Rules in any other part of the Report. Significant it

would be to mention that admittedly the Termination Order impugned

herein has been passed under Rule 120 of the DSEAR. Relevant para of

the Termination Order is as under :-

“NOW THEREFORE in exercise of the powers conferred by

Rule 120 of DSEAR 1973, undersigned terminate the

services of Mrs. Sandhya Bindal, Principal (under

suspension), Ramjas School Anand Parvat, New Delhi-

110005 with immediate effect i.e. 06.03.2020.”

34. In this regard I may also refer to the Suspension Order dated

25.07.2017 issued under Section 24(3) of the DSEAR wherein it is

categorically mentioned that the Directorate of Education has directed the

Management of the School to take action against the Petitioner under

Rules 115 and 117 and other connected provisions of the DSEAR, for

breach of Code of Conduct as prescribed for the employees of private

unaided schools under Rule 123 (1)(a) of the DSEAR. Relevant para is as

under :-

“Whereas, the DOE has by the said order directed the

management of school to take immediate action against Ms.

Sandhya Bindal, School Principal under Rule 115 and 117

and other connected rules/provisions of DSEAR, 1973 for

the breach of the Code of Conduct as prescribed for the

employees of Private unaided Recognized schools of Delhi

under Rule 123 (1) (a) of DSER,1973 and to ensure that the

school is being run strictly as per the provisions of DSER,

1973;”

35. The Memorandum of Chargesheet has been placed by the

Petitioner on record. It is clearly mentioned in the Memorandum that the

Managing Committee constituted a Disciplinary Committee under Rule

WP(C) 6975/2020 Page 23 of 24

118 of the DSEAR and the Committee in its meeting held on 27.02.2018

framed a chargesheet under Rule 117 (b) of the DSEAR. I may also at

this stage allude to an order dated 26.07.2017 passed by this Court in

W.P.(C) 6354/2017 where the challenge by the Petitioner was to the order

dated 20.07.2017. It was the stand of the Petitioner before the Court that

the disciplinary proceedings were initiated against the Petitioner under

the provisions of the DSEAR. It is thus obvious that the Petitioner has

been all through aware of the fact that the disciplinary proceedings were

instituted, continued and culminated under the provisions of the DSEAR

and had no connection with the CCS (CCA) Rules. The Petitioner is only

trying to take advantage of what may perhaps be called a typographical

error by the Inquiry Officer, when he refers to CCS (CCA) Rules, in the

first part of the Report. The argument of the counsel canvassed on the

challenge to the vires of the CCS (CCA) Rules as a ground to entertain

the present petition, in my opinion, is totally misconceived and deserves

to be rejected at the outset.

36. In view of the above, the objection to maintainability of the present

petition before this Court raised by the Respondents is decided in favour

of the Respondents and against the Petitioner. The petition is therefore

dismissed as not maintainable in this Court, leaving it open, however, to

the Petitioner to approach the Tribunal in accordance with law. It is made

clear that this Court has not expressed any opinion on the merits of the

case. Arguments were heard limited to the maintainability of the present

petition and the judgment was reserved on this aspect alone.

WP(C) 6975/2020 Page 24 of 24

37. All pending applications are accordingly dismissed. No orders as to

costs.

JYOTI SINGH, J

NOVEMBER 24th, 2020

yg

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