Sunil Sikri vs Guru Harkrishan Public School

SUNIL SIKRI … APPELLANT(S)

VERSUS

GURU HARKRISHAN PUBLIC SCHOOL & ANR. … RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. The Delhi School Education Act 1973 (hereinafter

referred to as “the Act”) was promulgated on 9th April,

1973. In the very same year on the 31st December, 1973,

the Delhi School Education Rules, 1973 were

promulgated. The said Rules are referred to as “the

Rules”. Chapter IV of the Act deals with the terms and

conditions of Service of Employees of recognised Signature Not Verified

Private Digitally signed by NIRMALA NEGI Date: 2022.07.28 Schools. What is relevant to the lis are 17:05:51 IST Reason:

Sections 8 and 11 of the Act, and they read as follows:

1 “8. Terms and conditions of service of employees of recognised private schools.—

(1) The Administrator may make rules regulating the minimum qualifications for recruitment, and the conditions of service, of employees of recognised private schools:

Provided that neither the salary nor the rights in respect of leave of absence, age of retirement and pension of an employee in the employment of an existing school at the commencement of this Act shall be varied to the disadvantage of such employee:

Provided further that every such employee shall be entitled to opt for terms and conditions of service as they were applicable to him immediately before the commencement of this Act.

(2) Subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director.

(3) Any employee of a recognised private school who is dismissed, removed or reduced in rank may, within three months from the date of communication to him of the order of such dismissal, removal or reduction in rank, appeal against such order to the Tribunal constituted under section 11.

(4) Where the managing committee of a recognised private school intends to suspend any of its employees, such intention shall be communicated to the Director and no such suspension shall be made except with the prior approval of the Director:

2 Provided that the managing committee may suspend an employee with immediate effect and without the prior approval of the Director if it is satisfied that such immediate suspension is necessary by reason of the gross misconduct, within the meaning of the Code of Conduct prescribed under section 9, of the employee:

Provided further that no such immediate suspension shall remain in force for more than a period of fifteen days from the date of suspension unless it has been communicated to the Director and approved by him before the expiry of the said period.

(5) Where the intention to suspend, or the immediate suspension of an employee is communicated to the Director, he may, if he is satisfied that there are adequate and reasonable grounds for such suspension, accord his approval to such suspension.

11. Tribunal. —

(1) The Administrator shall, by notification, constitute a Tribunal, to be known as the “Delhi School Tribunal”, consisting of one person:

Provided that no person shall be so appointed unless he has held office as a District Judge or any equivalent judicial office.

(2) If any vacancy, other than a temporary absence, occurs in the office of the presiding officer of the Tribunal, the Administrator shall appoint another person, in accordance with the provisions of this section, to fill the vacancy and the proceedings may be continued before the Tribunal from the stage at which the vacancy is filled.

(3) The Administrator shall make available to the Tribunal such staff as may be necessary in the discharge of its functions under this Act.

3 (4) All expenses incurred in connection with the Tribunal shall be defrayed out of the Consolidated Fund of India.

(5) The Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it shall hold its sittings.

(6) The Tribunal shall for the purpose of disposal of an appeal preferred under this Act have the same powers as are vested in a court of appeal by the Code of Civil Procedure, 1908 (5 of 1908) and shall also have the power to stay the operation of the order appealed against on such terms as it may think fit.”

2. Next, we may notice the provisions in the Rules.

Rule 115 deals with suspension. We need notice only

Rule 115(1) and 115(4), inter alia:

“115. Suspension (1) Subject to the provision of sub-sections (4) and (5) of section 8, the managing committee may place an employee of a recognised private school, whether aided or not, under suspension: —

a) where a disciplinary proceeding against such employee is contemplated or pending; or

(b) where a case against him in respect of any criminal offence is under investigation or trial; or

(c) where he is charged with embezzlement; or

(d) where he is charged with cruelty towards any student or other employee of the school; or

(e) where he is charged with misbehaviour towards any parent, guardian, student or employee of the school; or

4

(f) where he is charged with the breach of any other code of conduct.

xxx xxx xxx

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon an employee is set aside or rendered void, in consequence of or by, a decision of a court of law or of the Tribunal; and the disciplinary authority on a consideration of the circumstances of the case decides to hold further inquiry against such employee on the same allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, such employee shall be deemed to have been placed under suspension by the managing committee from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:

Provided that no such further enquiry shall be ordered unless it is intended to meet a situation where the court has passed an order purely on technical grounds without going into the merits of the case.”

3. Rule 117 deals with penalties and disciplinary

authority. Under the category of major penalties are

reduction in rank, compulsory retirement, removal from

service and dismissal from service. Rule 120 deals with

procedure for imposing major penalty. Rule 121 which

is at the centre stage of the controversy provides as

follows:

5 “121. Payment of pay and allowances on reinstatement -

(1) When an employee who has been dismissed, removed or compulsorily retired from service is reinstated as a result of appeal or would have been so reinstated but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, as the case may be, the managing committee shall consider and make a specified order: -

(a) with regard to the salary and allowances to be paid to the employee for the period of his absence from duty, including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and

(b) whether or not the said period shall be treated as the period spent on duty. (2) Where the managing committee is of opinion that the employee who had been dismissed, removed or compulsorily retired from service had been fully exonerated, the employee shall be paid the full salary and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired from service or suspended prior to such dismissal, or compulsory retirement from service, as the case may be:

Provided that where the managing committee is of opinion that the termination of the proceedings instituted against the employee had been delayed due to reasons directly attributable to the employee, it may, after giving a reasonable opportunity to the employee to make representations and after considering the representation, if any, made by the employee, direct, for reasons to be recorded by it in writing, that the employee shall he paid for the period of such delay only such

6 proportion of the salary and allowances as it may determine.

(3) The payment of allowances shall be subject to all other conditions under which Midi allowances are admissible and the proportion of the full salary and allowances determined under the proviso to sub-rule (2) shall not be less than the subsistence allowance and other admissible allowances.”

4. Having set out the statutory framework, the time

is now ripe to notice the relevant facts which led to

the litigation. We may notice the facts as set out in

the impugned judgment:

“The second respondent was appointed as a PGT (Chemistry) by the Guru Harkishan Public School, admittedly a minority institution, on July 02, 1984. As per the school, on January 22, 1994 the respondent No.2 not only misbehaved but even molested a newly married employee of the school in full public view and when the tormented lady complained to the principal of the school, on being summoned the said respondent 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; and thus ceased the employer-employee relationship between the school and the second respondent. The respondent No.2 disputes the version and claims that the resignation was the result of coercion and that the letter of resignation was withdrawn the next day on

7 January 23, 1994 before it could be acted upon.

He also questions the competence of the Chairperson of the Managing Committee of the school to accept the same. It is in this backdrop that appeal No.14/1994 fell in the lap of the Delhi School Education Tribunal for decision. Unfortunately, the appeal came to be decided after 17 years of it being filed. Vide order dated August 18, 2011 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. The Tribunal has also held that the Chairperson of the Managing Committee was not the Competent Authority to accept the resignation. As a result, the termination of the second respondent's service has been held to be illegal. The said respondent has been directed to be reinstated in service: 50% back wages have been directed to be paid. The writ petition challenges the award granting 50% back wages.”

5. The Learned Single Judge noting the conflicting

opinions between two learned Judges referred the matter

to the Larger Bench. The point of controversy is this.

The writ petitioner contended that the Tribunal did not

have the power to decide on the issue of back wages.

The said question is squarely covered by provisions of

Rule 121. Under Rule 121, it is the Managing Committee,

which is to take a decision.

8

6. The Full Bench, by the impugned Judgement,

proceeded to answer the reference in the following

manner:

“45. We answer the reference as under: -

(i) The law declared by the learned Single Judge of this Court in the decision reported as 43 (1991) DLT 139 The Manager Arva Samaj Girls Higher Secondary School & Anr. Vs. Sunrita Thakur correctly lays down the 1aw concerning the interpretation of Rule 121 of the Delhi School Education Rules, 1973 and the view taken by the learned Single Judge in the decision dated January 17, 2006 in W.P.(C) No.7617/2000 The Managing Committee Heera Lal Jain Vs. Shri Chander Gupt Sharma & Ors. is overruled.

(ii) Rule 121 of the Delhi School Education Rules, 1973 would apply to minority unaided schools recognized under the Delhi School Education Rules, 1973.”

7. The appellant before us is the second respondent

in the writ petition. We have heard learned counsel for

the appellant Anuj Agrawal and Shri A.P.S. Ahluwalia,

learned Senior Counsel appearing on behalf of the

respondent.

8. The appellant would dub Rule 121 as ultra vires.

He would point out that it would be open to this Court

to pronounce the Rule unconstitutional despite the fact

that the Rule has not been challenged before the High

9 Court. In this context, he relies upon the Judgment of

this Court in Bharathidasan University and another v.

All-India Council for Technical Education and others1.

It is the appellant’s further case that the Tribunal

under Section 7 has the same power as are vested in the

court of appeal under the Code of Civil Procedure. The

Appellate Court has the power as the court of original

jurisdiction possesses. It is pointed out that the

court of original jurisdiction is the Managing

committee, and therefore, the power of the Tribunal

extends to awarding back wages. It is further contended

that the Tribunal already has incidental and ancillary

powers to make the express statutory powers effective. He relies upon the judgment of this Court in State of

A.P. v. P. Narasimha and another2 and Karnataka Bank

Ltd. v. State of Andhra Pradesh and others3. The

Lawgiver intended to create a Specialised Tribunal.

Being a Specialised Tribunal, it has all the power of

an Appellate Court. The statutory Rule cannot be

inconsistent or repugnant with the parent Act. Rule 121

1 (2001) 8 SCC 676 2 (1994) 4 SCC 453 3 (2008) 2 SCC 254 10 is confined to cases of dismissal, removal and

compulsory retirement. In Shashi Gaur v. NCT of Delhi

and others4, this court has taken the view that an

aggrieved employee can challenge all kinds of

termination of service. If that is so, in cases not

falling within the ambit of Rule 121, it would empower

the Tribunal to award back wages, whereas it would be

prevented from doing so in regard to cases falling

under Rule 121. It is contended that the Tribunal has

the power to award back wages. The Tribunal must have

the power to decide the issue of back wages in all

cases in view of the factors and guidelines laid down

in Deepali Gundu Surwase v. Kranti Junior Adhyapak

Mahavidyalaya (D.Ed.) and others5. The correctness of

the impugned judgment in regard to the finding that

Rule 121 applies to all institutions, including

minority institutions, is not questioned. It is

contended that Fundamental Rule 54 applies only to a

departmental appeal. In the case of a complaint about

subsistence allowance, a departmental appeal lies;

4 (2001) 10 SCC 445 5 (2013) 10 SCC 324 11 otherwise, there is no provision for any departmental

appeal. The appellant relies on Devendra Pratap Narain

Rai Sharma v. State of Uttar Pradesh and others6 and

Union of India v. Madhusudan Prasad7.

9. Per contra, the contention of the respondent is as

follows, inter alia. The Tribunal under Section 8 read

with Section 11 of the Act does not possess any express

power. Reliance is placed on the judgment of this Court

in Smt. Ujjam Bai v. State of Uttar Pradesh8. It is

further pointed out that the view taken in the impugned

Judgment by the Full Bench has been followed in a large

number of cases. It is contended that if a judgment has

been consistently followed for a long time, the

principle of certainty of law requires that it should

not be disturbed. The spirit of the law is that after

the Tribunal directs re-instatement it would direct the

Managing Committee to conduct an inquiry under Rule

121. An aggrieved employee can challenge the

proceedings in the appropriate forum and clothing the

Tribunal with the power to award back wages would

6 AIR 1962 SC 1334 7 (2004) 1 SCC 43 8 AIR 1962 SC 1621 12 render Rule 121 redundant and superfluous. The Managing

Committee would decide the matter after an inquiry and

it is even stated after recording evidence. The

Tribunal may award damages in an arbitrary manner

without determining relevant facts relating to gainful

employment, running of any business or joining some

other school during the period of absence. In our view,

the following points would arise:

“(I) Whether there is any express power under Sections 8 and 11 to order back wages?

(II) Whether Fundamental Rule 54 fortifies the contention of the respondent?

(III) Is there any conflict between Sections 8 and 11 on the one hand and Rule 121 on the other hand? Is Rule 121 ultra vires to parent enactment?

(IV) Whether the tribunal has incidental and ancillary power to direct payment of pay and allowance on setting aside the order of termination?”

ANALYSIS

10. We have noticed that Section 8 provides for an appeal limited to dismissal, removal or compulsory

retirement. However, this Court in the decision in

13 Shashi Gaur v. NCT of Delhi and others9 held that an

appeal lies under Section 8(3) also against termination

otherwise. The only exception carved out is termination

of service upon the service having come to an end by

efflux of time. We may in this context, no doubt, notice

what this Court noticed in Paragraph 8. It reads as

under:

“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 comes 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 ousts the jurisdiction of the court under Article 226 of the Constitution.”

11. We will proceed further on the basis that the provisions will apply across the board as found by the

full Bench, which includes minority institutions.

9 (2001) 10 SCC 445 14

12. The first question, we must decide is, 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 we must also bear in

mind 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. Section

107 of the Code of civil Procedure, reads as follows:

“(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.”

13. The appellant lays store by the said provision.

14. 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

15 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 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 (supra) 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

16 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.

15. As far as Section 107 of the Code of civil

Procedure is concerned, it declares that subject to

such conditions and limitations that may be prescribed,

the appellate court has the power to determine a case

finally. It is also blessed with the power to remand a

case. It can also frame issues and refer the issues for

trial. It is also authorised to take additional

evidence or permit the evidence to be taken. Section

107(2) declares that the appellate court would have the

same power and perform nearly the same duty as are

conferred and imposed on the courts of original

jurisdiction in respect of suits instituted therein.

16. 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 17 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 (supra) 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

18 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.

17. Before we proceed further, we must pause and enquire as to whether the lawgiver elsewhere has been

more expressive in the matter of grant of specific

power in the area of dispute. In Deepali Gundu Surwase

v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and

19 Others10, this Court had the occasion to deal with a

case that arose under the Maharashtra Employees of

Private School (Conditions of Service) Regulation Act,

1977. It is worthwhile to notice that Section 9

provided for an appeal before the Tribunal under the

said Act. Section 10 purported to set out the general

power and procedure of the Tribunal. It, inter alia,

declared that the Tribunal would have the same power

as are vested in Appellate Court under the Code of

Civil Procedure. This is besides any other power

conferred on it by or under the Act. Section 11

provided for the powers of the Tribunal to give

appropriate reliefs and directions. Section 11(2)

expressly provided that the Tribunal, may inter alia,

direct the management to give arrears of emoluments to

the employee for such period as it may specify. It was

also provided further with the power to give such other

reliefs to the employee, inter alia. Apart from the

fact that provisions similar to Rule 121 is not seen

reflected in the said judgment, what makes the Judgment

relevant is that this court had before it a law which

10 (2013) 10 SCC 324 20 provided for the right of appeal before the Tribunal

and which expressly conferred power on the Tribunal to

grant the relief of arrears of emoluments. Such a

provision is conspicuous by its absence in Section 11

of the Act. It is on the conspectus of the said

provisions that this Court proceeded to lay down the

principles in regard to the award of the back wages.

This Court, inter alia, laid down follows:

“38.2. The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

38.3. Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service.

This is so because it is settled law that the burden of proof of the existence of a 21 particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.”

18. We are conscious of the fact that the

jurisdiction of an appellate court is not to be

construed in a pedantic manner. In fact, the effort

of the Court must be to not abridge the power of the

appellate court. In Shanmugam v. Commissioner for

Registration11 , no doubt, the Privy Council held as

follows:

“It is argued that the Act does not contain the “express provision” required by the Interpretation Ordinance to make it applicable. Their Lordships do not agree. Upon the meaning of the words “express provision” counsel relied upon in re Meredith and stated that it must be provision the applicability of which did not arise by inference. He argued that there was no “express provision” as no reference had been made to pending proceedings. Their Lordships are of the view that it is correct to state that expression provision is provision the applicability of which does not arise by inference. The applicability, however of the provision under discussion to the present case

11 (1962) 3 LR 200 PC

22 does not arise by inference; it arises directly from the language used. The fact that the language used is wide and comprehensive and covers many points other than the one immediately under discussion does not make it possible to say that its application can arise by inference only. To be “express proivision” with regard to something it is not necessary that that thing should be specially mentioned;

it is sufficient that it is directly covered by the language however broad the language may be which covers it so long as the applicability arises directly from the language used and not be inference therefrom. The argument fails.”

(Emphasis supplied)

19. The decision in Nalla Karumburu Kayambu

Shanmugam (supra), arose as an appeal from the Supreme

Court of Ceylon, dismissing an appeal from an Order of

the Commissioner, refusing to register the appellant

as a citizen of Ceylon. The relevant law insisted upon

certain conditions to be fulfilled. The refusal was

based on the appellant’s wife not having resided in

Ceylon as required and the appellant had not satisfied

the requirement that he was permanently settled in

Ceylon. The application of the appellant was made in

July, 1951. The provision relating to the residence of

the wife was, according to the applicant, inapplicable

23 as it was made in the year 1952. However, it was given

retrospective effect as follows.

“The amendments effected by the preceding sections of this Act shall be deemed to have come into force on the date appointed under Section 1 of the principal Act; and accordingly, but subject to the provisions of Sub-section (3) of this section, the principal Act shall be deemed on and after that date to have had effect, and shall have effect, in like manner as though it had on that date been amended in the manner provided by this Act.”

20. The applicant therein sought support from the

following provision which formed the basis for the

discussion we have referred to:

“6(3) Whenever any written law repeals either in whole or part a former written law, such repeal shall not, in the absence of any express provision to that effect, affect or be deemed to have affected –

(c) any action, proceeding, or thing pending or incompleted when the repealing written law comes into operation, but every such action, proceeding, or thing may be carried on and completed as if there had been no such repeal.”

21. We would think that it may not be apposite to draw any support from the said decision. It is clear that

in the facts and on a conspectus of the provisions

involved therein, the principle, as to whether there

is an express provision, was applied, it is a matter

24 to be decided on the inevitable effect flowing from the

width of the words used. It is not a case where the

court countenanced presence of express provisions on

the basis of an inference which method is expressly

frowned upon. In this case, we are dealing with the

case of express powers with a Statutory Tribunal. We

are of the view that having regard to the words used

in Section 11(6) of the Act, it may not be appropriate

to describe the provision as conferring express power

with the Tribunal to pass an award of back wages. We

feel reinforced in our findings by noticing how, in a

similar legislation, a Lawgiver has expressly conferred

such powers on the Tribunal. We would, therefore,

conclude that we cannot but find that the respondent

is right in contending that Section 8 read with Section

11 of the Act do not confer an express power with the

Tribunal to order back wages.

22. In this regard, we may at once notice the case of the appellant that Fundamental Rule 54 has no

application as the said Rule contemplates departmental

appeal whereas Rule 121 deals with an appeal to the

Tribunal.

25

23. In this regard the appellant seeks support from the decision of this Court in Devendra Pratap Narain

Rai Sharma (supra). Therein the Court considered the

case which involved the question as to whether

Fundamental Rule 54 stood in the way of decree of the

civil court (that is the High Court in an appeal in the

suit which held that the appellant therein was not

afforded the opportunity to defend him before he was

visited with the punishment of dismissal) being

effectuated. The High Court declared the dismissal to

be void and that the appellant therein must be deemed

to be in service. Fundamental Rule 54 is essentially

in substance pari materia with Rule 121 with which we

are dealing with. In the facts, this Court held as

follows:

“..This rule has no application to cases like the present in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated. This rule, undoubtedly enables the State Government to fix the pay of a public servant whose dismissal is set aside in a departmental appeal. But in this case the order of dismissal was declared invalid in a civil suit. The effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous. The effect of the adjudication of

26 the civil courts is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.”

24. 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

(supra) 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

27 beyond dispute that the lawgiver has contemplated an

appeal only to the Tribunal constituted under Section

11. In other words, unlike the position in Devendra

Pratap Narain Rai Sharma (supra), 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 re-instatement necessitated by an order

of the Tribunal under Section 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.

25. 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. In this regard, he sought support

from Bharathidasan University and another (supra). In

the said case, this Court was dealing with the question

28 as to whether Regulations (Subordinate Legislation)

framed by AICTE could oblige even a university to

obtain prior approval. The contention of the appellant-

University was that the AICTE Act in question made a

distinction between Technical Institution and

Universities. The offensive Regulations, were found to

be specifically violative of the power conferred under

Section 23 to make regulations subject to the

limitations which were contained in specific and

unambiguous language. The definition of the word

“Technical Institution” excluded a university. Special

care was made whenever the University was within the

contemplation of the lawgiver. It was in clear

violation of the limitation on the power to make

regulations, namely, that the AICTE could not make any

regulation to bind Universities, inter alia, the

regulation in question was made and it was while

dealing with the said case, this Court held that it may

not be necessary to specifically challenge subordinate

legislation. The decision must not be understood as

laying down the principle that the court may lightly

depart from the ordinary rule that when a law is

29 questioned as ultra vires and, therefore,

unconstitutional, a proper challenge must be mounted

against the same. The maker of the law must be a party

before the court. We may notice in this regard that

under the Act, the rule-making power is conferred on

the Administrator under Section 28. A perusal of the

party array would reveal that the Administrator is

conspicuous by his absence. In fact, in the decision

relied upon by the appellant- Bharathidasan University

and another (supra), the Authority, which made the

regulation, which was found to be ultra vires, was the

respondent.

26. Even otherwise, it may be difficult to find that

this is a case where we could hold in the absence of

express and exclusive power which is conferred on the

Tribunal to make an order for payment of emoluments

that Rule 121 which clothes the Managing Committee with

the said power, is ultra vires.

27. Let us now analyse Rule 121 and also the context

provided by the neighbouring provisions. As we have

already noticed Rule 117 provides for penalties which

includes the four major penalties. Rule 120 lays the 30 procedure for imposing the penalty. Against the major

penalty of dismissal, removal or compulsory retirement,

the law contemplates an appeal before the Tribunal

constituted under Section 8 read with Section 11. 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 Rule-maker 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

31 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.

28. 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

32 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

33 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).

29. 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 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. We

34 are not diluting for a moment the duty to implement the

order in the absence of an order from the competent

court permitting it being suspended.

30. At this juncture, we may notice the impact of Rule 115(4). Under Rule 115(4), the Lawgiver has

contemplated as follows:

If the penalty of dismissal, removal or compulsory

retirement is set aside or rendered void by a

decision of the court of law or Tribunal, it is

provided that the disciplinary authority on a

consideration of the case may decide to hold

further inquiry against the employee on the same

allegations on which the original penalty was

imposed. The Rule provides that in such an

eventuality, the employee shall be deemed to have

been placed under suspension from the original

order of dismissal, removal or compulsory

retirement. The proviso mandates that the

disciplinary authority cannot order further

inquiry unless the penalty has been set aside

purely on technical grounds. Now let us see the

impact of this Rule qua the argument of the

35 appellant about the availability of power under

Section 11 to order back wages. In a case where

Tribunal sets aside the penalty and it is done on

a technical ground, the disciplinary authority

becomes entitled to launch further enquiry. Can

the Tribunal order the payment of back wages

without giving an opportunity to the disciplinary

authority to take a decision? Would Rule 115(4)

then become ultra vires Section 11? We would think

it would not be a reasonable interpretation to

place on the Act and the Rules.

31. Now, let us consider the matter from another perspective. 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

36 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 (supra). 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 re-instatement does not become final. The

employee remains absent undoubtedly on the basis of the

37 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 re-

instatement may not be final as it can be impugned in

the higher forum. We would, therefore, find that it may

not be appropriate or apposite to find that Rule 121

38 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.

32. There is no express power with the Tribunal of the kind which is present in the Maharashtra Act which fell

to be decided in Deepali Gundu (supra). 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

39 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 opportunity, the Managing Committee must provide

for the matters which are provided therein, namely Rule

121.

33. We cannot on a conspectus of the provisions and the discussion about the context, object and

consequences that would flow, agree with the appellant,

that the Appellate Tribunal must be ceded implied

powers to assume the specific powers ceded to the

Managing Committee. While we are not averse to adopting

a liberal view when it comes to clothing an appellate

body to deal with matters arising in the proceeding in

a fair and effective manner, the scheme that we have

40 found and the consequences that ensue dissuade us from

vesting such implied powers. It involves rendering Rule

121 otiose and redundant. It would have been a

different matter if the rule did not exist and more

importantly, we did not unravel a distinct scheme and

purpose.

34. 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.

41

35. We are inclined to take the view that 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.

42

36. 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.

37. We cannot be unmindful of the principle canvassed by the learned Senior Counsel for the respondent that

the view of the Full Bench, in the impugned Judgment,

is a view which upholds a line of reasoning, which has 43 largely held the field for a long period of time. While

it is not a ground to not overturn a view, which is

palpably erroneous, the view taken, if it is otherwise

a plausible view, must receive deference.

38. 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.

39. 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 44 in Shashi Gaur (supra). In the case of penalty of

reduction in rank (which is also a major penalty), the

High Court has brought out the following distinction:

“23. The learned Single Judge has reasoned that it would be anomalous to hold that the Delhi School Tribunal would have the power to direct full wages to be paid to an employee who has been reduced in rank but has been restored to the original rank but would have no power to pass such an order if an employee is reinstated in service. The reasoning by the learned Single Judge overlooks a very vital and critical fact which clearly distinguishes cases of a penalty of reduction in rank being set aside and the rank being restore.cl vis-a-vis a penalty of dismissal 1 removal or compulsory retirement being set aside and reinstatement ordered. In the former situation the employee would be working in the school, albeit at a lower post and there would be no case warranting an inquiry to be held of the kind contemplated by Rule 121 of the Delhi School Education Rules, 1973 i.e. whether the employee was gainfully employed somewhere else. But where a penalty of a kind where secession takes place is passed, the employee has not to report to the employer and may be gainfully employed somewhere else.”

We would take the example of a termination of

service, which was explicitly before this Court in

Shashi Gaur (supra). The termination of the employee

therein was ordered as he was not possessed of the

45 requisite qualification. We proceed further that in

such a case, the employee is placed under suspension.

An inquiry is also held and the services are

terminated. We further proceed on the basis that in

terms of what is permitted under Shashi Gaur (supra),

he files an appeal before the Tribunal under Section 8

and obtains an order for reinstatement. In the

meantime, we further take it that it is a case where

he is gainfully employed. The question would arise in

his case also as to the pay and allowances to be

granted. The question would further arise as to whether

his period of absence should be treated as duty. This

situation arises in view of the interpretation placed

in the case of Shashi Gaur (supra). 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, we are not in a position to find fault with

the view taken by the Full Bench.

46 40. The upshot of the above discussion is that we find no merit in the Appeal and the Appeal stands dismissed

with no order as to costs.

………………………………………………………………………J. [K.M. JOSEPH]

………………………………………………………………………J. [PAMIDIGHANTAM SRI NARASIMHA]

NEW DELHI;

DATED: JULY 28, 2022.

47