In CIVIL APPEAL NO. 5562 OF 2017-SC- Rule 121 of Delhi School Education Rules, 1973 is not in any manner ultra vires Sections 8 and 11 of Delhi School Education Act; Provisions of parent Act & subordinate legislation can be harmonized : SC Justices K.M. Joseph & Pamidighantam Sri Narasimha [28-07-2022]

Read Order: SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL & ANR 

Mansimran Kaur

New Delhi, July 29, 2022: Referring to Rule 121 of the Delhi School Education Rules, 1973 which speaks about the employee who had been dismissed, removed or compulsory retired being reinstated by the Management, the Supreme Court has opined that it may not be appropriate to find that Rule 121 is in any manner ultra vires Sections 8 and 11 of the Delhi School Education Act 1973.

Adding that the provisions of the parent Act and the subordinate legislation can be harmonized, the Division Bench of Justice K.M. Joseph and Justice Pamidighantam Sri Narasimha dismissed the appeal instituted by the appellant assailing the impugned judgment passed by the Full bench. 

Relevant facts leading to the adjudication of the present litigation were that the second respondent was appointed as a PGT (Chemistry) by the Guru Harkishan Public School, admittedly a minority institution, on July 2, 1984. As per the school, on January 22, 1994 the second respondent not only misbehaved but even molested a newly married employee of the school in full public view. When the tormented lady complained to the principal of the school, the said respondent, on being summoned, not only profusely apologized but to save his honour and respect so that no stigma was cast tendered a voluntary resignation on January 22, 1994 and requested the principal of the school to accept the same forthwith.

The principal forwarded the letter of resignation to the Chairperson of the Managing Committee of the School who accepted the same. The second respondent disputed the version and claims that the resignation was the result of coercion and that the letter of resignation was withdrawn the next day on January 23, 1994 before it could be acted upon. He also questioned the competence of the Chairperson of the Managing Committee of the school to accept the same.

In pursuance of the same, the appeal of 1994 fell in the Court of the Delhi School Education Tribunal for decision. The Tribunal held that the letter of resignation submitted by the said respondent was withdrawn before it was accepted and thus could not be acted upon. As a result, the termination of the second respondent’s service was held to be illegal.

 The Single Judge noting the conflicting opinions between two Judges referred the matter to the Larger Bench. The writ petitioner contended that the Tribunal did not have the power to decide on the issue of back wages.The appellant before this Court was the second respondent in the writ petition.

After hearing the submissions of the parties at length, the Court noted that Section 8 provides for an appeal limited to dismissal, removal or compulsory retirement. The first question before the Bench was if the argument of the respondent that Sections 8 and 11 do not contain any express provision for ordering back wages, was correct.

To deal with the same, the Court noted that any employee, whose service is terminated except as declared therein and not limited to what is provided in the statute, can challenge the termination before the Tribunal constituted under Section 11. Reliance was placed on the case of Shashi Gaur v. NCT of Delhi and others. 

Any indication about power of the Tribunal is to be found in Sections 11(5) and 11(6), the Court further noted.  Section 11(5) purports to empower the Tribunal to regulate its own procedure. Section 11(6) is perhaps more apposite and declares that the Tribunal for the purpose of disposal of an appeal has the power vested in the court of appeal by the Code of Civil Procedure and shall also have the power to stay operation of the order, the Court remarked.

It was further noted  that Rule 120(3) declares that an employee of a recognized private school who is aggrieved by any order imposing on him the penalty of compulsory retirement or any minor penalty may appeal to the Tribunal.  Further reliance was placed on 107 of the Code of Civil Procedure . The purpose of the provisions in Section 107 is to only declare that the Appellate Court has a wide range of options, which include the power to finally decide the case. This should be understood to only mean that there is also a power to remand the case or to grant other relief, which may not result in the final disposal of the case, the Court stated. 

This cannot be understood as meaning that the Appellate Court has the express power to grant the relief of back-wages or to decide upon the question as to whether the period of absence should be treated as duty.

The right of appeal under Section 8 is given with respect to the order of termination which was interpreted by this Court in the case of  Shashi Gaur v. NCT of Delhi and others, to include all kinds of termination except for termination which occurs by efflux of time, the Court further noted. 

The comparison between an Appellate Court and the Trial Court and the vesting of powers on the Appellate Court in terms of the power available to the Trial Court may not be an appropriate and apposite analogy when it comes to the Tribunal considering an appeal against the order of disciplinary authority under Section 8. The tribunal will no doubt have the power to pronounce on the legality of the original order, the impugned order of termination and also order reinstatement. 

In the present case of the appellant the Fundamental Rule 54 has no application as the said Rule contemplates departmental appeal whereas Rule 121 deals with an appeal to the Tribunal, the Court opined.  The next question which was posed for consideration was whether there was merit in the argument of the appellant that Rule 121 is to be found as ultra vires the Section 11 of the Act.

In view of the same, the Court noted that perusal of Rule 121 would reveal that the power coupled with the duty will come into play only after the order of the Tribunal directing reinstatement is accepted by the Management.  The same was stated bearing in mind that Rule 121 speaks about the employee who had been dismissed, removed or compulsory retired being reinstated by the Management. Of course, Rule 121 would also apply if but for his retirement or superannuation, the employee would have been reinstated. Both these consequences will follow only if the order of reinstatement of the Tribunal becomes final.

In other words, if the order of the Tribunal is under challenge and the stage has not arrived where the Managing Committee actually reinstates or would have reinstated but for his retirement, Rule 121 would not apply, the Court observed. 

In such circumstances, in view of the interpretation placed by this Court creating the situation, by which an appeal is permitted against an order of termination, other than specifically mentioned in, both Section 8(3) and Rule 121, this Court was of the view that it was not  in a position to find fault with the view taken by the Full Bench. In light of these observations, the appeal was dismissed on account of being meritless.