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SUPREME COURT OF INDIA
V. GOPALA GOWDA, AMITAVA ROY, JJ.
Raj Kumar – Appellant
Vs.
Director of Education & Ors. – Respondents
Civil Appeal No. 1020 of 2011
Decided on : 13-04-2016
(1978) 2 SCC 213; (1997) 5 SCC 737 – Relied upon
AIR 1964 SC 1671; (1988) 4 SCC 42 – Referred
(b) Industrial Disputes Act, 1947 – Section 25F(c) r/w Rule 76, Industrial Disputes (Central) Rules, 1957 – Submission of notice of retrenchment to appropriate authority – Clauses (a) and (b) being mandatory and legislature not indicating the clause (c) is not mandatory – Held, clause (c) is also mandatory – However it is not a condition precedent but a condition subsequent – Instantly, requirement of section 25F(c) not complied with – Notice of retrenchment and retrenchment set aside. (Para 15, 16)
(2015) 4 SCC 544 – Relied upon
AIR 1964 SC 1671 – Referred
(c) Delhi School Education Act, 1973 – Section 8(2) – Respondent school not complying – Provision struck down by High Court 2 years later – Respondent school could not have foreseen striking down the provision in future and decided not to comply – Section 8(2) valid on date of retrenchment – Ought to be complied – Not obtaining prior approval from the Director of Education for retrenchment of appellant – Vitiates the same.
AIR 1966 SC 1423; (2007) 8 SCC 559 – Relied upon
(d) Labour law – Retrenchment – Back wages – Industrial Disputes Act, 1947 – 25F r/w section 8(2), Delhi School Education Act, 1973 – Appellant retrenched without complying with section 25F and section 8(2) – Retrenchment for becoming surplus not justified by any evidence – Respondent not showing that appellant was gainfully employed after retrenchment – Held, appellant entitled to back wages and other consequential benefits. (Para 36)
(2013) 10 SCC 324 – Relied upon
Facts of the case:
The appellant was employed as a permanent driver in the DAV Public School, Pocket ‘C’, LIG Flats, East of Loni Road, Delhi.
The respondent-Managing Committee in its meeting dated 24.08.2002, passed a resolution to retrench the services of the two junior most surplus drivers, namely the appellant and one Amar Nath, for the reason that the school had two old mechanically unfit vehicles which were disposed of on 01.09.1995 and 13.06.1997, respectively and the Managing Committee had no funds to buy new buses.
On 07.01.2003, the respondent-Managing Committee issued retrenchment notice to the appellant, stating that his services were no longer required by the school and that he would be retrenched from his service on the expiry of the notice period of one month. The notice also stated that the appellant was entitled to retrenchment compensation which would be paid after the expiry of the notice period of one month.
Vide letter dated 25.07.2003, the respondent-Managing Committee retrenched the services of the appellant.
The appellant filed appeal before the Presiding officer, Delhi School Tribunal against the retrenchment notice dated 07.01.2003. The Tribunal dismissed the appeal.
The High Court dismissed the writ petition filed by the appellant in limine.
Finding of the Court:
Impugned judgment cannot be sustained.
Result: Appeal allowed.
JUDGMENT :
V. Gopala Gowda, J.
1. The present appeal arises out of the impugned judgment and order dated 28.07.2008 passed by the High Court of Delhi at New Delhi in Writ Petition (C) No.5349 of 2008, whereby the High Court dismissed the said Writ Petition filed by the appellant in limine and upheld the termination order dated 22.08.2008 passed against the appellant by the Delhi School Tribunal (hereinafter referred to as “the Tribunal”) on the ground that the appellant, who was a driver, had been retrenched from his services by the respondent-Managing Committee, DAV Public School by following the procedure laid down under Sections 25F (a) and (b) of Chapter V-A of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”).
2. The brief facts of the case required to appreciate the rival legal contentions advanced on behalf of the parties are stated as hereunder: The appellant was employed as a driver by the DAV Public School, Pocket ‘C’, LIG Flats, East of Loni Road, Delhi and became permanent on the said post in the year 1994. His terms of service are covered under Sections 2(h), 8(2), 10 and other provisions of the Delhi School Education Act, 1973 (hereinafter referred to as the “DSE Act”).
3. On 01.05.2001, the DAV College Managing Committee in its 72nd meeting of Public Schools Governing Body, passed a resolution to buy new school buses with CNG facility in compliance with the directions of this Court dated 26.03.2001 passed in the case of M.C. Mehta v. Union of India and allowed the management of the DAV Schools to raise loan from nationalized banks for the said purpose.
4. The respondent-Managing Committee in its meeting dated 24.08.2002, passed a resolution to retrench the services of the two junior most surplus drivers, namely the appellant and one Amar Nath, for the reason that the school had two old mechanically unfit vehicles namely, a Matador (registration No. DL-IV-1481) and a Maruti Van bearing registration No.DL-5C-3107 which were disposed of on 01.09.1995 and 13.06.1997, respectively. As an alternate arrangement, private buses had to be hired for the transportation of students as per instructions in the earlier resolution, but the respondent-Managing Committee could not purchase new buses due to shortage of funds, which resulted in the appellant being declared surplus on account of non-availability of job.
5. On 07.01.2003, the respondent-Managing Committee issued a notice to the appellant in accordance with Section 25F (a) of the ID Act, stating that his services were no longer required by the school and that he would be retrenched from his service on the expiry of the notice period of one month. The notice also stated that the appellant was entitled to retrenchment compensation which would be paid after the expiry of the notice period of one month.
6. On 10.01.2003, the appellant replied to the above said notice through his counsel, in which it was stated that the impugned notice is unjust and illegal, as the appellant is a permanent employee of the school under the provisions of the DSE Act. It was also stated in the notice that the school had failed to pay arrears amounting to Rs. 70,000/- to the appellant as per the recommendations of the Fifth Pay Commission. On the same date, the appellant, through his counsel, wrote a letter to the respondent No.1-Director of Education, Govt. of NCT of Delhi regarding payment of all arrears as per the Fifth Pay Commission to the appellant.
7. By way of letter dated 22.01.2003, the respondent-Managing Committee, through their counsel informed the appellant that the school has been paying pay and allowances to the appellant as per the recommendations of the Fifth Pay Commission which came to Rs.3,500/- per month as basic pay and Rs.1,435/- as Dearness Allowances. In the same letter, the respondent-Managing Committee also denied that it had held back an amount of Rs.70,000/- due to the appellant.
8. On 31.01.2003, the appellant filed Writ Petition (C) No.957 of 200
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