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
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