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SUPREME COURT OF INDIA
K.M. JOSEPH, PAMIDIGHANTAM SRI NARASIMHA, JJ.
Sunil Sikri – Appellant
VERSUS
Guru Harkrishan Public School & Anr. – Respondents
CIVIL APPEAL NO. 5562 OF 2017
Decided On : 28-07-2022
(A) Delhi School Education Act, 1973 – Sections 8 and 11 – Delhi School Education Rules, 1973 – Rules 115 and 121 – Reinstatement in service – Power to order back wages – Tribunal is not clothed with specific powers to grant relief of payment of allowances – Tribunal is also not empowered to deal with question as to whether employee must be treated as on duty for period when employee remains absent on account of both absence, whether or not, on account of suspension before termination and compelled absence after penalty is imposed – Power coupled with duty will come into play only after order of Tribunal directing reinstatement is accepted by Management – If order of Tribunal is under challenge and stage has not arrived where Managing Committee actually reinstates or would have reinstated but for his retirement, Rule 121 would not apply – Employee must be afforded opportunity to point out that he was not employed elsewhere. (Paras 29 and 31)
(B) Delhi School Education Rules, 1973 – Rules 115 and 121 – Delhi School Education Act, 1973 – Sections 8 and 11 – Reinstatement in service – Power to order back wages – Rule 121 is part of a scheme which consists of both Sections 8 and 11 of Act as also Rules 115(4) and 121 – There should not be any room for needless and unjustifiable delay on part of Management in concluding proceedings under Rule 121 – Managing Committee is duty bound to look into all inputs including orders which are finally passed which led to re-instatement of employee – It is duty bound to act fairly – There is no inconsistency between Section 8 read with Section 11 on one hand and Rule 121 on other – View taken by Full Bench approved. (Paras 31, 32, 35, 36, 39 and 40)
(C) Civil Procedure Code, 1908 – Section 107 – Powers of Appellate Court – Appellate court has power to determine a case finally – It is also blessed with power to remand a case – It can also frame issues and refer issues for trial – It is also authorised to take additional evidence or permit evidence to be taken – Appellate court would have same power and perform nearly same duty as are conferred and imposed on courts of original jurisdiction in respect of suits instituted therein – Appellate Court has no express power to grant relief of back-wages or to decide upon question as to whether period of absence should be treated as duty – This is power coupled with a duty which is squarely vested with Management. (Paras 15 and 16)
(D) Statute Law – Subordinate Legislation – While subordinate legislation cannot control interpretation to be placed on parent enactment, it is not the same as holding irrespective of irreconcilable differences between parent enactment and subordinate legislation not been present, full play should not be given to latter – Properly appreciated and implemented, provisions of parent Act and subordinate legislation can be harmonized. (Para 35)
Facts of the case:
Point of controversy is this. Writ petitioner contended that the Tribunal did not have power to decide on issue of back wages. Said question is squarely covered by provisions of Rule 121. Under Rule 121, it is Managing Committee, which is to take a decision.
Findings of Court:
In view of 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.
Result : Appeal dismissed.
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 Private Schools. What is relevant to the lis are Sections 8 and 11 of the Act, and they read as follows:
“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:
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.
(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)
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