Sunil Sikri vs Guru Harkrishan Public School & Anr.

Delhi School Education Act, 1973 – ss. 8 & 11 – Delhi Education Rules, 1973 – rr. 115, 117, 120 & 121 – Whether the tribunal has incidental and ancillary power to direct payment of pay and allowance on setting aside the order of termination – Held: Rule 121(1)(a) contemplates that the Managing Committee must consider and pass an order and provide for salary and allowances to be paid to the reinstated employees – Tribunal is not clothed with specific powers to grant relief of payment of the allowances – Tribunal is also not empowered to deal with the question as to whether the employee must be treated as on duty for the period when the employee remains absent on account of both the absence, whether or not, on account of suspension before the termination and compelled absence after the penalty is imposed – The Full Bench of the High Court in the impugned judgment declared that The Manager Arya Samaj Girls Higher Secondary School & Anr. v. Sunrita Thakur correctly lays down the law regarding rule 121 – No fault with the view taken by the Full Bench of the High Court. Dismissing the appeal, the Court

HELD: 1. The first question, whether the argument of the respondent that Sections 8 and 11 do not contain any express provision for ordering back wages is correct? In this context the contention of the appellant that the law giver has created a right of appeal before the Tribunal and it is to act armed with the wide powers of the court of appeal under the Code of Civil Procedure. As far as Section 8(2) is concerned, the provision proscribes dismissal, removal or reduction in rank or the termination otherwise of an employee except with the prior approval of the Director. This is indeed to safeguard the right of the employee. Section 8(3) gives the right to an employee limited under the statute to one who has been dismissed, removed or reduced in & ANR.

rank to file an appeal before the Tribunal constituted under Section 11. We have already noticed the view taken by this court in Shashi Gaur 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. The Tribunal is to consist of a person who has held the Office as District Judge or any equivalent Judicial Officer. Any indication about power of the Tribunal is to be found in Sections 11(5) and 11(6). 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. We may incidentally also notice that Rule 120(3) declares that an employee of a recognised 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. [Paras 12 & 14][524-A-B, E-H; 525A-B]

2. Reliance placed on Section 107 of the CPC, if inspiration is sought to be drawn to the emphasis supplied to the words “may decide the case finally”, to find that there is express power to decide on the question of emoluments as well, does not appeal to us. The purport 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. 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. This is the power coupled with a duty which is squarely vested with the Management. The right of appeal under Section 8 is given with respect to the order of termination which has been interpreted by this Court in Shashi Gaur to include all kinds of termination except for termination which occurs by efflux of time. The argument of the appellant is that the disciplinary authority is to be treated as the original authority and, therefore, the tribunal in terms of Section 107(2) of the Code of the Civil Procedure must be likened to an Appellate Court and what is more, the disciplinary authority must be equated with the Trial Court. Therefore, there is power to award back wages. 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. The events subsequent to the termination which have been recognized as relevant in cases including Deepali Gundu (supra) which decision has been relied upon by the appellant himself may not strictly be the subject matter of the appeal for reasons, which we will more elaborately dwell upon. We repel the argument of the appellant.[Para 16][525-CH; 526-A-B]

3. The contention of the appellant is that the respondent cannot be permitted to rely upon Rule 121 for the reason that no departmental appeal is contemplated under the Rules and what is contemplated is only an appeal to the Tribunal. We are unable to accept the contention of the appellant. What Rule 54 undoubtedly contemplates is a re-instatement on the basis of an order passed in an appeal or other remedy under the Service Rules. We may describe them as a departmental remedy. Fundamental Rule 54 has been found inapplicable in Devendra Pratap Narain Rai Sharma when it was the civil court which declared the dismissal as non est for non-compliance with natural justice. Rule 121, in fact, specifically contemplates re-instatement of the employee whose services are terminated on the basis of the decision in an appeal and what is most important is the very premise of the re-instatement is the decision in an appeal and it is beyond dispute that the lawgiver has contemplated an appeal only to the Tribunal constituted under Section. In other words, unlike the position in Devendra Pratap Narain Rai Sharma, where the court had to deal with the decree of a civil court, which was outside the scope of Rule 54, in a case covered by Rule 121, the Managing Committee is to act thereunder only when there is reinstatement necessitated by an order of the Tribunal under Section & ANR.

11 in an appeal. In other words, a departmental appeal under fundamental Rule 54 is to be conflated to an appeal under Section

11 in the case of Rule 121.[Para 24][530-B-F]

4. The next question which would arise is whether there is merit in the argument of the appellant that Rule 121 is to be found as ultra vires the Section 11 of the Act. It is not in dispute that the appellant has not laid any challenge to Rule 121. However, he would contend that this Court is armed with necessary power, even in the absence of any challenge, to hold that Rule 121 is ultra vires. What Rule 121 provides for, is the authority with the Managing Committee to consider and make two specific orders. Now the question will arise is, at what stage is the said orders to be passed and what is the nature of the order to be passed apart from how it is to be passed. The question will further arise as to whether it is a discretionary power or whether the law contemplates a mandatory duty. In our view, Rule 121 enshrines the principle of power coupled with duty. This conclusion is inevitable on account of two reasons. In the first place, the Rulemaker has employed language that the Managing Committee ‘shall’ consider and pass specific order. The use of the word ‘shall’ is crucial. It would require strong circumstances provided by the context, the purpose of the law, the consequences that would follow to dilute the mandatory consequences that ordinarily flow from the deliberate choice of the word ‘shall’. Far from the context providing any material to the contrary, the setting of Rule 121, the purpose of the Rule and the consequences of not giving a mandatory flavour overwhelmingly indicate that the lawgiver has made it an inflexible duty on the part of the Managing Committee to pass an order if the elements declared in Rule 121 are present. In other words, where an employee, who has been dismissed, removed or compulsory retired challenges his termination in an appeal which must be understood as an appeal to the Tribunal constituted under Section 11 of the Act and he is re- instated, then it is not merely an enabling provision which undoubtedly it is, in the sense that it confers a power on the Managing Committee but we would go further and hold that it becomes the duty of the Managing Committee to consider and pass an order. Any other view would put the employee at the mercy of the employer.[Para 25 & 27][530-F-H; 531-G-H; 532-A-E]

5. Now coming to what would constitute the subject matter of the order to be passed, Rule 121(1)(a) contemplates that the Managing Committee must consider and pass an order and provide for salary and allowances to be paid to the reinstated employees. The salary and allowances is to be provided for the period the employee remained absent from duty. This would include his absence from duty caused by his suspension prior to his dismissal, removal or compulsory retirement. The next specific matter which should engage the attention of the Managing Committee is as to whether the reinstated employees must be treated as on duty during the period of absence. Rule 121(2) confers a power with the Managing Committee to consider the question as to whether ‘in its opinion’, the employee has been fully exonerated. The plain meaning of this provision is that when the order passed by the Tribunal directing reinstatement, is implemented, the Managing Committee is duty bound to look into the proceeding culminating in the order of the Tribunal and find whether the Tribunal has fully exonerated the employee in question. If it is so found, the employee is to be paid full salary and allowances. The proviso to Rule 121(2) empowers the Managing Committee to come to a conclusion that the employee is guilty of delaying the proceedings instituted against him. It can be done only after giving a reasonable opportunity to make a representation, and after considering the version of the employee. It can direct that the employee need be paid only such allowances as it finds supported by reasons in writing for the period of such delay. This is subject to the limitations which are carved out in Rule 121(3). A 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. This we say for the reason 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 & ANR.

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.[Para

28 & 29][532-E-H; 533-A-E]

6. Section 8(3) as also Rule 120(3) provide for a right of appeal which right must be understood in the light of the law declared by this Court as expanded to include all cases of termination except termination brought about by the efflux of time. [See Shashi Gaur judgment]. The appeal is not filed against the order of a Trial Court as such. No doubt, the power available to the civil court under the Code of Civil Procedure are showered upon the Tribunal. The Tribunal is not clothed with specific powers to grant relief of payment of the allowances. The Tribunal is also not empowered to deal with the question as to whether the employee must be treated as on duty for the period when the employee remains absent on account of both the absence, whether or not, on account of suspension before the termination and compelled absence after the penalty is imposed. The appellant relies on the judgment of Deepali Gundu . One of the questions, which would fall for consideration, is the question as to whether the employee was gainfully employed elsewhere during the period of compelled absence. The Tribunal is called upon to decide the legality and correctness of the penalty. It is certainly entitled to act as an appellate body and come to the conclusion that there was no basis either for reasons which are technical or on the basis that no case is made out even on merits to impose the penalty against the employee. Should the Tribunal set aside the penalty covered by Rule 121, it is always open to the management to take recourse to remedies open to it. The order of reinstatement does not become final. The employee remains absent undoubtedly on the basis of the order obtained by the Management in the superior court. What is relevant is the actual re-instatement under Rule 121 which would set the stage for holding the inquiry thereunder. The inquiry, it must be noticed is not merely limited to the question of pay and allowances. The management is given the powers coupled with the duty to hold an inquiry and to pass an order as to whether the employee must be found to be on duty or not and for what period during his absence. The Lawgiver has conferred a power with the management. The use of the words “in its opinion” indicates that the Managing Committee must apply its mind and consider all aspects and take a view. This must, undoubtedly, be done after putting the employee on notice. The employee must be afforded an opportunity. The employee would be in a position to point out that he was not employed elsewhere. He would also be able to establish that he was fully exonerated. We have noticed that the order of the appellate authority in an appeal directing reinstatement may not be final as it can be impugned in the higher forum. Therefore, it may not be appropriate or apposite to find that Rule 121 is in any manner ultra vires Sections 8 and 11 of the Act. Properly appreciated and implemented, the provisions of the parent Act and the subordinate legislation can be harmonized.[Para 31][534-B-H; 535-A-C]

7. There is express power with the Managing Committee to be exercised at a particular point of time which arrives when re-instatement is effected or re-instatement would have followed but for retirement of the employee. Rule 121, in our view, while being an enabling provision must also be interpreted as a case of power coupled with a duty. The power must be exercised promptly and without fail by the Managing Committee immediately following the re-instatement of the employee which would be the result of any voluntary order of re- instatement or re-instatement, which is inevitable following the binding orders of the court. The management is duty bound to conduct an inquiry to pass the orders contemplated under Rule 121(1)(a) and (b). The presence of the words “in its opinion” do indicate a certain amount of authority with the Managing Committee. This however, is not to be confused with any right to act with arbitrariness or caprice. In other words, it is duty bound to look into all the inputs including the orders which are finally passed which led to the re-instatement of the employee. It is duty bound to act fairly. The question about the employee being gainfully employed and the amount received till the stage of reinstatement, is aptly gone into under Rule 121. After putting the employee on notice and giving him an & ANR.

opportunity, the Managing Committee must provide for the matters which are provided therein, namely Rule 121.[Para 32][535-D-H]

8. The power coupled with duty takes life not only upon there being an order of reinstatement in an appeal but upon the Managing Committee proceeding to implement the direction to reinstate, issued by the Tribunal. If the power is to be exercised by the Tribunal apart from the fact that there would be situations, such as, contemplated in Rule 115 of the Rules, which would render both the Rule and right given to the Management under the said Rule, meaningless and futile, it would involve the Tribunal being called upon to exercise the duty and the power, which is best exercised by the Managing Committee. Rule 121 is part of a scheme, which consists of both Sections 8 and 11 of the Act as also Rules 115(4) and 121. The Rules have been enacted in the same year within eight months, as noticed by the High Court. The Administrator, who has authored the Rules under Section

28 of the Act, has produced the Rules, which are found to be in harmony with the Act. We are unable to cull out any inconsistency between Section 8 read with Section 11 on the one hand and Rule

121 on the other. While we are not maintaining for a moment that the Court is rendered powerless or not bound by a duty to unravel the mind of the Legislature and strike at a subordinate Legislation, where it is ultra vires, we do not find any scope for applying the said principle in the facts. In this regard, while we are conscious of the view taken that subordinate legislation cannot control the interpretation to be placed on the parent enactment, it is not the same as holding irrespective of irreconcilable differences between the parent enactment and the subordinate legislation not been present, full play should not be given to the latter. As far as the question of the delay in the employee getting relief on the interpretation placed by the Full Bench in the impugned Judgment, we are of the view that, though attractive, the argument must fail. While we would not be loath to place an interpretation, which is in agreement with the appellant’s appeal to us, we feel that for the reasons, which we have given, the argument of the appellant is in the teeth of a scheme, which is intended to be worked in accordance with a value judgement, which reaches justice to both sides. Undoubtedly, we make it clear that there should not be any room for needless and unjustifiable delay on the part of the Management in concluding the proceedings under Rule 121. This is different from saying, however, that such proceedings can be dispensed with or the Tribunal can or should be burdened with the task, which is aptly and appropriately timed and positioned to be performed by the Managing Committee.[Para 34-36][536-C-H; 537-A-C]

9. No doubt, the appellant has a case that in view of the fact in Shashi Gaur (supra), this Court enlarged the scope of the appellate remedy under Section 11 to cases of termination other than, what is provided in the Rule 121 and, what is more, Section

8 itself. He would submit that as Rule 121 is not applicable to cases which are not enumerated in Rule 121, it would create a situation where, in cases of termination not covered by Rule 121, the Tribunal would have the power to grant back-wages. Whereas the Tribunal would have the said power, in cases not covered by Rule 121. This creates an anomalous position, it is contended. In the impugned Judgment, the High Court has proceeded to hold that in view of the expanded right of appeal based on the Judgment of this Court in Shashi Gaur (supra), the Managing Committee would have the power to make the specific order in respect of any termination in the light of the Judgment of this Court in Shashi Gaur (supra). 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 is not in a position to find fault with the view taken by the Full Bench.[Para 38 & 39][537-D-G; 538-F-G]

Shashi Gaur v. NCT of Delhi and others (2001) 10 SCC

445 – relied on.

Bharathidasan University and another v. All-India Council for Technical Education and others (2001) 8 SCC 676 : [2001] 3 Suppl. SCR 253; State of A.P. v. P. Narasimha and another (1994) 4 SCC 453; Karnataka Bank Ltd. v. State of Andhra Pradesh and others (2008) & ANR.

2 SCC 254 : [2008] 1 SCR 986; Deepali Gundu

Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others (2013) 10 SCC 324 : [2013] 9 SCR 1; Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and others AIR 1962 SC 1334 : [1962]

1 Suppl. SCR 315; Union of India v. Madhusudan Prasad (2004) 1 SCC 43 : [2003] 4 Suppl. SCR 1026; Smt. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621 : [1963] 1 SCR 778; Shanmugam v. Commissioner for Registration (1962) 3 LR 200 PC - referred to.