Mr. Sanjay Kumar, Adv. v. SMT. MAHESHWARI & ANR. .....

1. Whether reporters of Local papers may Not necessary be allowed to see the judgment?

2. To be referred to the reporter or not? Not necessary

3. Whether the judgment should be reported Not necessary in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 25.04.2008 of the Delhi School Tribunal allowing the appeal of the respondent No.1 and setting aside the order dated 17.11.1999 of the petitioner School dismissing the respondent No.1from service and directing the petitioner School to decide the question 2011:DHC:4570 of salary and allowances to be paid to the respondent No.1 as provided under Rule 121 of the Delhi School Education Rules, 1973.

2. Notice of the petition was issued and vide order dated 25.07.2008 the operation of the impugned order stayed. Notices of the petition sent to the respondent No.1 were received back with the report that she was not residing at the address given. Vide order dated 25.01.2010, the respondent No.1 was directed to be served by publication and was so served. None appeared for the respondent No.1 inspite of publication. None has appeared for the respondent No.1 today also. The stay of the order of the Tribunal has continued for the last over three years; as a consequence thereof, the respondent No.1 has not been able to avail any benefit of the order of the Tribunal in her favour; notwithstanding the same, the respondent No.1 has not appeared before this Court. The respondent no.1 is proceeded against ex parte. The counsel for the petitioner and counsel for respondent no.2 DOE have been heard.

3. The counsel for the petitioner has contended that the respondent No.1 was employed as an ‘Aya’ with the Nursery Wing of the petitioner School; that she was placed under suspension on 27.10.1994 and after holding an inquiry was dismissed from service on 17.11.1999. It is further contended that the Nursery Wing of the petitioner School was unrecognized at the time of initial employment of the respondent No.1. The School from classes I to VIII only was granted recognition on 30.05.1989 and the Nursery Wing of the School in which the respondent No.1 was employed was granted recognition only with effect from 23.03.1999. It is thus contended that the provisions of the Delhi School Education Act, 1973 and the Rules were not applicable to the employment of the petitioner on 27.10.1994 when she was placed under suspension and it is further contended that the petitioner School even thereafter being an unaided School was not required to obtain any approval from the Directorate of Education before terminating the services of the respondent No.1 and on which ground the Tribunal has held the termination to be illegal. Reliance is placed on TMA Pai Foundation Vs. State of Karnataka AIR 2003 SC 335.

4. The Tribunal has held that there was nothing on record to show that the respondent No.1 was an employee of the Nursery Wing of the School which was unrecognized and has further held that the principles of natural justice had not been complied with in the matter of termination of employment of the respondent No.1.

5. I may notice that the Division Bench of this Court in Kathuria Public School Vs. Director of Education 123 (2005) DLT 89 has held that the Rules requiring prior and ex post facto approval for disciplinary proceedings against employees have no application to private unaided Schools. Even though the Full Bench of this Court in judgment dated 27th August, 2010 in O.Ref.1/2010 titled Presiding Officer, Delhi School Tribunal Vs.

GNCTD has disagreed with another part of Kathuria Public School (supra) but not with the aforesaid aspect. The Tribunal has unfortunately failed to notice the said judgment and has relied upon judgment in Frank Anthony Public School Employee Association Vs. Union of India (1986) 4 SCC 707 which is no longer a good law after the judgment in Kathuria Public School.

6. Moreover, from the conduct of the respondent No.1 of inspite of stay by this Court of the order of the Tribunal directing the petitioner School to reinstate the respondent No.1, having chosen to not appear, it appears that the respondent No.1 is no longer interested in her employment with the petitioner School.

7. The writ petition therefore succeeds. The order of the Delhi School Tribunal impugned in this petition is set aside / quashed. Resultantly, the order of the petitioner School dismissing the respondent No.1 from employment shall remain in force. The petition is disposed of. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 06, 2011 ‘gsr’