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2019 Supreme(Del) 2524
IN THE HIGH COURT OF DELHI AT NEW DELHI
C. HARI SHANKAR, J.
Meena Oberoi – Petitioner
Versus
Cambridge Foundation School and Ors. – Respondents
WP (C) 1363 of 2013
Decided On : 05-12-2019
For the Petitioner: Mr. Mukesh Anand, Adv.
For the Respondent: Mr. Pramod Gupta, Adv. with Ms. Manogya Singh and Ms. Ankita Khanna, Advs., Ms. Latika Choudhary, Adv.
Termination of employment without prior approval from the Director of Education, as mandated by Section 8(2) of the DSE Act, and without due retrenchment compensation under Section 25F of the ID Act is illegal.
Headnote:(A) Delhi School Education Act, 1973 - Section 8(2) - Industrial Disputes Act, 1947 - Sections 2(oo) and 25F - Termination of service - The petitioner's disengagement from service as Office Assistant was ruled unlawful due to lack of prior approval from the Director of Education as mandated by the DSE Act - There was an infringement of Section 25F because retrenchment compensation was not paid at the time of her removal, rendering the termination void ab initio. (Paras 57, 69, 70)
(B) Employment and Labor - Retrenchment - Service of employee could not be terminated on grounds of her position as surplus without fulfilling legal procedural safeguards as outlined in the DSE Act and the ID Act. (Paras 28, 62, 65)
Facts of the case:
The petitioner was appointed as Office Assistant in a school and later terminated on grounds of surplus due to changes in fee collection procedures, which she contested as unjustified and retaliatory against her pay fixation representations. (Paras 1-5)
Findings of Court:
Termination of the petitioner was found to be in violation of DSE Act and ID Act as necessary approvals and compensations were not provided. The order of the Tribunal dismissing the petitioner's appeal was quashed, leading to her reinstatement along with back wages. (Paras 68-70)
Issues: Whether the disengagement of the petitioner from service was justified under the applicable laws, and if all procedural requirements were met for such a termination. (Paras 6, 28, 37)
Ratio Decidendi: Prior approval from the Director of Education is mandatory for the termination of service as stipulated under the DSE Act, and failure to provide retrenchment compensation violates Section 25F of the ID Act, rendering such termination illegal. (Paras 57, 62)
Result: Writ petition allowed; reinstatement ordered, along with payment of 50% of back wages. (Para 70)
| Table of Content |
|---|
| 1. employee's appointment and removal process. (Para 1 , 2 , 3 , 4 , 5) |
| 2. legal grounds for termination of employment. (Para 6 , 7) |
| 3. arguments on employee surplus status. (Para 8 , 10 , 11 , 12 , 13) |
| 4. importance of prior approval for termination. (Para 14 , 28 , 29 , 30 , 31) |
| 5. interpretation of 'termination' and related terms. (Para 32 , 33 , 34 , 35 , 36) |
| 6. supreme court's interpretation on autonomy of schools. (Para 45 , 46 , 47 , 48) |
| 7. legislative power of the state over educational institutions. (Para 49 , 50 , 51) |
| 8. procedural safeguards for employee termination. (Para 53 , 54 , 55 , 56) |
| 9. court's ruling on violation of statutory provisions. (Para 58 , 59 , 60 , 61) |
| 10. final judgment and order for reinstatement. (Para 68 , 69 , 70 , 71 , 72) |
JUDGMENT :
1. The petitioner was appointed as Office Assistant, in the Respondent No.1 School (hereinafter referred to as “the School”), on 4th July, 1991, and was confirmed, on the post, in 1993.
2. Consequent on the acceptance, of the recommendations of the 6th Central Pay Commission (hereinafter referred to as “the 6th CPC”) by the Central Government, and the extension, thereof, to teachers, the petitioner represented, on 21st April, 2009, to the School, objecting to the fixation of her pay without extending, to her, the benefit of the said recommendations. This was followed by reminders, dated 5th May, 2009 and 26th May, 2009.
3. On 26th May, 2009, the School wrote to the petitioner, stating that an error had been committed, while fixing her pay, at the time of her initial appointment in 1991, which had been rectified by the School. Chagrined, the petitioner protested, vide representation dated 30th June, 2009. This communication, avers the petitioner, elicited no response.
4. On 21st July, 2009, an Office Order was issued by the School, stating that it had been decided to discontinue the earlier existing system of collection of fee and charges, in cash, from parents of students studying in the School, w.e.f. 1st June, 2009. This change, the Order went on to state, rendered the petitioner surplus, and her continuance in the School “un-productive, un-utilized, financial burden on the school”. Citing an Order, dated 11th February, 2009, issued by the Director of Education (hereinafter referred to as “the DoE”), requiring the School to find out ways to minimise passing on of its financial burden onto the parents of the students enrolled with it, the Order dispensed with the services of the petitioner, with immediate effect. Two cheques, for Rs.55,731/–, and Rs.11,420/–, representing the petitioner‘s pay for the month of July, 2009, were also enclosed with the Order.
5. After representing, unsuccessfully, against the aforesaid Order, dated 21st July, 2009,vide communication, dated 4th August, 2009, the petitioner preferred a statutory appeal, under Section 8 (3) of the Delhi School Education Act, 1973 (hereinafter referred to as “the DSE Act”), before the Delhi School Tribunal (hereinafter referred to as “the Tribunal”) thereagainst.
6. Before the Tribunal, the petitioner advanced, principally, five submissions. Firstly, it was contended that her disengagement, by the School, was by way of retaliation to her repeated representations, seeking extension, to her, of the benefit of revised pay fixation, as recommended by the 6th CPC. Secondly, the petitioner contended that the decision, to treat her as surplus, was unjustified on facts as well as in law. Thirdly, the petitioner sought to invoke Rule 46 of the DELHI SCHOOL EDUCATION RULES , 1973 (hereinafter referred to as “the DSE Rules”), which did not entitle the Management of a School, to close down the school or any existing class, therein, without prior approval of the DoE. Fourthly, it was submitted that the impugned decision was issued in violation of Section 8 (2) of the DSE Act, which required prior approval, of the DoE, to be obtained by the School before terminating the services of any its employees. Fifthly, the p
