Full Text
HIGH COURT OF DELHI
Date of order : 17th August, 2023
AMAR JYOTI BRAHMACHARI ..... Petitioner
Through: Mr.R.K.Aggarwal, Ms.Ayushi Bansal and Mr.Vinay Padam, Advocates
Through: Ms.Ekta Mehta and Ms.Zainab Zaya Khan, Advocates for R-1
Ms.Laavanya Kaushik, Mr.N.K.Singh and Ms.Aliza Alam, Advocates for R-
2/DoE
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant writ petition under Article 226 of the Constitution of India has been filed on behalf of petitioner seeking the following reliefs:- “a). A writ of Certiorari calling for the record of the case for perusal; b). A Writ in the nature of certiorari quashing the action of the Respondents in not paying the retiral dues of the petitioner viz.
(i) leave encashment of 288 days and (II) gratuity admissible as per Payment of Gratuity Act, 1972 In respect of service rendered by him, being Illegal, arbitrary, discriminatory, unjust and In violation of the Delhi School Education Act & Rules, 1973, the principles of equity, justice and good conscience. c). A writ of mandamus commanding the Respondent No.1 & 2 to forthwith pay the retiral dues of the petitioner with Interest @ 12% till the actual day of payment, viz.
(I) leave encashment of 288 days and (II) gratuity admissible as per Payment of Gratuity Act, 1972 in respect of service rendered by him d). A Writ of Mandamus commanding the Respondent to pay the costs of this petition to the Petitioner; e). Any other writ order or direction as this Hon'ble Court may deem fit in the nature and circumstances of the case and in the interest of justice.”
2. The factual matrix is reproduced herein below: a) The petitioner is a teacher (‘petitioner Teacher’ hereinafter), who had been working at respondent No.1 school i.e. Convent of Jesus & Mary School (‘respondent School’ hereinafter). The respondent School is an unaided recognized Christian minority school imparting education upto class XII and is governed by the provisions of Delhi School Education Act & Rules, 1973 (‘DSEAR Act, 1973’ hereinafter) and managed by the Jesus & Mary Delhi Educational Society. The respondent No.2 (‘respondent Director’ hereinafter) is the Directorate of Education, Government National Capital of Territory of Delhi. b) The petitioner Teacher had joined the respondent School as a temporary Tabla Teacher on 1st September, 1981 and was later confirmed to the post on 1st July, 1983 as per the Service Book. The petitioner superannuated on 31st August, 2015 from the post of Senior P.R.T/ PST in the scale of Rs. 9300-34,8000/- plus Grade pay of Rs. 4800/-. c) The respondent Directorate vide circular dated 25th June, 2008 directed the managing committee of all the unaided recognized schools to make payment of terminal benefits to their employees as per Section 10 (1) of DSEAR, Act 1973, wherein it is stated that the scales of pay and allowances, retiral benefits provided to an employee of a recognized private school shall not be less than those of employees of the corresponding status in schools run by the appropriate authority. d) The respondent School has not paid any retiral benefits like leave encashment dues or gratuity to the petitioner Teacher. As per the leave record of the petitioner, he had 288 days’ earned leave on the date of his retirement, hence, was entitled for leave encashment. e) Aggrieved by the actions of the respondent School and Directorate, the petitioner filed the instant Writ Petition seeking directions for payment of the retiral dues payable to the petitioner with 12% interest by the respondent School.
3. Learned counsel appearing on behalf of the petitioner submitted that by virtue of Section 10(1) of the DSEAR, Act 1973, employees of private unaided schools are entitled to have the same benefits as given to employees in Government school.
4. It is submitted that the retirement benefits like Gratuity, leave encashment, or other benefits payable at the time of retirement is to be made on the day of retirement or within a stipulated time period, failing which interest is applicable on delayed payments.
5. It is also submitted that non-payment of retirement benefits is violative of the fundamental right to livelihood of employees as retiral benefits acts as a means of survival for the retired employees.
6. It is submitted that the Leave Account of the petitioner states that he had 288 days’ Earned Leave to his credit as on the date of his retirement. It is submitted that the petitioner is entitled to be encashed for the Earned Leaves.
7. It is further submitted that as per Rule 39 of the Central Civil Services (Leave) Rules, 1972, the encashment of earned leave/half pay leave standing at the credit of the retiring employee is admissible on the date of retirement to the extent of 300 days.
8. It is submitted that the petitioner has made several requests oral as well as written to the Respondent School but they have not paid any heed to the said requests.
9. Therefore, in view of the foregoing submissions, the petitioner seeks this Court be pleased to allow the present petition and the reliefs as prayed may be granted.
10. Per Contra, the learned counsel appearing on behalf of respondent School vehemently opposed the present Writ Petition submitting to the effect that the same is not maintainable since the respondent School is an unaided recognized Christian minority School and receives no grant or aid from the appropriate authority. Hence, due to financial crunch the school is not in a position to pay such retiral benefits to the petitioner teacher.
11. It is also submitted that the respondent School is covered within the ambit of Article 30(1) of the Constitution of India as the respondent school is a minority institution and has the right to establish and administer educational institute of its choice. Hence, the school has the fundamental right to govern the terms of employment of its own staff.
12. It is further submitted that respondent Directorate vide order dated 28th August, 2015 directed the respondent School to recover an amount of Rs.5,33,760/- from the petitioner Teacher on account of additional amount drawn from the School.
13. The learned counsel appearing on behalf of the respondent Directorate vehemently opposed the present Writ Petition submitting to the effect that the same is not maintainable as there is no cause of action against the respondent Directorate and the Directorate is not liable for release of any payment to the petitioner.
14. Hence, in view of the foregoing submissions, it is prayed on behalf of the respondents that this Court be pleased to dismiss the instant Writ Petition, devoid of any merit.
15. Heard the learned counsel for the parties and perused the records.
16. The grievance of the petitioner is that the employees of minority unaided schools are entitled to the same benefits as given to the employees in Government school by virtue of Section 10(1) of the DSEAR, Act 1973. It has been contended by the learned counsel for the petitioner that the petitioner is entitled to receive terminal benefits as the respondent Directorate vide its circular dated 25th June 2008 directed the Management Committee of all the unaided recognized schools to make payment of retiral benefits to their employees.
17. The respondent school submitted to the effect that the respondent School is an unaided minority school that receives no grant or aid from the appropriate authority. Therefore, the petitioner is not entitled to the leave encashment and payment of Gratuity as sought in this petition. Conversely, the petitioner is liable to refund an amount of Rs.5,33,760/- to the respondent School on account of an additional amount drawn from the respondent School.
18. In view of the abovementioned facts and circumstance, the question for adjudication before this Court is firstly, whether this Court can issue a Writ of Mandamus directing the respondents to pay retiral dues of the petitioner. Secondly, whether the Court can direct the employer to recover dues from its employees.
19. Before adjudicating on the said issues, it is imperative to discuss the relevant provisions of law.
20. It is pertinent to mention that the respondent School is recognized under the DSEAR Act, 1973 and governed by the Directorate of Education. It is an admitted fact that the respondent School is a minority unaided school, however, it is governed and administered by Directorate of Education under DSEAR Act, 1973 and is legally obliged to implement the orders or directions given by the respondent directorate. Section 10(1) of the DSEAR Act, 1973 provides that salaries of the employees of an unaided private school should not be less than their counterparts working in the government schools. The said provision is reproduced herein:
21. The language of the provision is clear and entitles the employees working in the private unaided school to get monetary benefits as per the norms passed by the Government. The said provision is also supplemented by the Rule 107 of the DSEAR which mandates the pay of the employees of a private school to be at par with the employees in the Government Schools. The said Rule is reproduced hereunder:
22. As per the aforementioned provision and Rule, it is amply clear that the same rules are applicable to both employees of minority unaided school and employees at the Government School. Treatment of the teachers of a private recognized school at par with government school teacher has been settled by this Court in a catena of judgments.
23. In Bharat Mata Saraswati Bal Mandir Senior Secondary School v Vinita Singh, 2023 SCC OnLine Del 3934, the Coordinate Bench of this Court affirmed equal treatment of employees of the private school with that of those employed in the government schools and held as under:
Act, 1973 has issued notification dated 17th October, 2017 directing that all recognized schools shall implement the recommendations of 7th CPC. In view thereof, it is the undisputed position of law that teachers of unaided private schools are entitled to the same pay and emoluments as those of government schools, in terms of the obligation enjoined upon the private recognized schools under the DSE Act, 1973. The schools cannot evade their statutory responsibility and are bound to pay the statutory dues."
24. As far as the position of minority unaided schools is concerned, the Coordinate Bench of this Court in the case of Shikha Sharma v. Guru Harkrishan Public School, 2021 SCC OnLine Del 5011, has reiterated the principle that the monetary benefits extended to the employees of the unaided minority schools cannot be less than the benefits extended to the employees of the Government Schools. The relevant portion of the said judgment is reproduced herein below-
25. In light of the aforementioned judicial precedents and Section 10 of the DSEAR Act, 1973 provides that teachers of minority unaided schools are also entitled to the same pay and benefits as those of the Government Schools. This Court, therefore, is of the considered opinion that the respondent School is bound by the provisions laid down in the DSEAR Act, 1973 and has to ensure payment of salary and allowances and also extend all terms and conditions of service to its employees at par with that of the employees of corresponding status in Government schools.
26. Now this Court will adjudicate upon the issue of whether the retiral benefits are due to the petitioner teacher. This Court has taken into account the Ministry of Labor & Employment notification dated 3rd April, 1997 which extends the applicability of Payment of Gratuity Act, 1972 to Educational Institutions with ten or more employees irrespective of being private or public. The relevant portion of the notification has been reproduced hereunder: “In exercise of the powers conferred by clause (c) of subsection (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specifies the educational institutions in which ten or more persons are employed, or were employed, on any day of the preceding 12 months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification. Provided that nothing contained in this notification shall affect the operation of the Notification of the Ministry of Labour, No. S.O.239, dated 8th January, 1982.”
27. In pursuance to the aforesaid notification, the Section 13A of the Payment of Gratuity Act, 1972 explicitly extended the payment of gratuity to employees. The said provision for the sake of convenience is reproduced herein below: “13A. Validation of payment of gratuity.- Notwithstanding anything contained in any judgment, decree or order of any court, for the period commencing on and from the 3rd day of April, 1997 and ending on the day on which the Payment of Gratuity (Amendment) Act, 2009 (47 of 2009) receives the assent of the President, the gratuity shall be payable to an employee in pursuance of the notification of the Government of India in the Ministry of Labour and Employment vide number S.O.1080, dated 3rd day of April, 1997 and the said notification shall be valid and shall be deemed always to have been valid as if the Payment of Gratuity (Amendment) Act, 2009 had been in force at all material times and the gratuity shall be payable accordingly. Provided that nothing contained in this section shall extend, or be construed to extend, to affect any person with any punishment or penalty whatsoever by reason of the nonpayment by him of the gratuity during the period specified in this section which shall become due in pursuance of the said notification.”
28. The aforesaid provision of Payment of Gratuity Act, 1972 has been implemented by the respondent Directorate vide circular dated 25th June, 2008, directing the Management Committee of all the unaided recognized schools to make payment of gratuity to their employees at par with that of the employees of corresponding status in schools that are run by the appropriate authority. The relevant portion of the circular is reproduced hereunder: “The Hon'ble Supreme Court of India in its judgment has directed the State Legislature to make provisions in their respective Act and Rules for Payment of gratuity to the teachers. The Delhi School Education Act and Rules 1973 under section 10 (1) of DESAR,1973 has made provision which reads as follows- “the scale of pay and allowances, medical facilities, pensions, gratuity, provident funds and other prescribed benefits of the employees of the corresponding status in school run by the appropriate authority” Management Committee of all the unaided recognized school are hereby directed to make payment of terminal benefits including gratuity to their employees as prescribed under Section 10(1) of DSEAR, 1973 at a rate not less than those of the employees of the corresponding status in school run by appropriate authority. This issues with prior approval of the Director of Education.”
29. The Coordinate Bench of this Court in the case of Vardhaman Shiksha Mandir Senior Secondary School & Anr v. Govt. of NCT of Delhi & Ors 2017 SCC OnLine Del 6656, reaffirmed that gratuity has to be paid to the employees of private school in view of the Payment of Gratuity Act irrespective of the nature of the school. The relevant paragraph of the abovementioned judgment is produced here below:
30. In view of the aforementioned judicial precedent, Section 13A of the Payment of Gratuity Act, 1972 read with Ministry of Labor & Employment notification dated 3rd April, 1997 and circular dated 25th June, 2008 issued by the respondent Director, it is a settled position that the School will be bound to pay gratuity to the Teacher for the services rendered by the teacher in the School.
31. Now dealing with issue whether the petitioner would be entitled to the benefit of leave encashment or not. Leave encashment refers to the translation of leaves into money. The Encashment of Earned Leave/Half Pay Leave standing at the credit of the retiring employee is admissible on the date of retirement subject to a maximum of 300 days. Rule 39 of the Central Civil Services (Leave) Rules, 1972, which deals with the Leave Encashment, which is relevant, is extracted for perusal of this Court in this regard-
and conditions of his service, or
(d) the date of his resignation from service.
(2) (a) Where a Government servant retires on attaining the normal age prescribed for retirement under the terms and conditions governing his service, the authority competent to grant leave shall suo motu issue an order granting' cash equivalent of leave salary for earned leave, if any, at the credit of the Government servant on the date of his retirement, subject to a maximum of1[300 days (including the number of days for which encashment has been allowed along with Leave Travel Concession while in service)].”
32. The aforesaid principle has been enunciated in the judgment of the Coordinate bench of this Court in Malti Dhawan v. Directorate of Education, 2017 SCC OnLine Del 6830 as follows:
33. In the instant petition, the petitioner submitted that as per the record, petitioner had 288 days’ Earned Leave to his credit as on the date of his retirement for which he is liable to be paid.
34. This Court is of the view that the Petitioner having served as an employee in the respondent School is entitled to the retirement benefit of leave encashment as Section 10 DSEAR, 1973 read along with Rule 39 of Central Civil Services (Leave) Rules, 1972 casts an obligation upon the private schools to provide the same monetary benefits to their employees as are paid by government schools. Therefore, the petitioner Teacher is entitled to receive leave encashment for 228 days as per leave account of the petitioner.
35. In view of the foregoing discussion, this Court is of the view that the petitioner is entitled to grant of retiral benefits, i.e. gratuity and leave encashments of 288 days. Accordingly, issue pertaining to retiral benefits has been decided by this Court.
36. This Court will now adjudicate upon the second issue whether the respondent school may recover an amount of Rs.5,33,760/- as per the order dated 28th August, 2015 passed by respondent Directorate.
37. It is the case of the respondent that as per the order dated 28th August, 2015, the petitioner has received an excess amount of Rs.5,33,760/- from the respondent school.
38. Under Article 226, the Court has to exercise its power of balancing the equity between parties unlike a Civil Court in which if the party proves that it is entitled to recovery of certain amount the Civil Court awards such amount to the party entitled. Under writ jurisdiction, the employer though entitled to the amount paid in excess to its employee, the Court while balancing equity may disallow such recovery to be made by the employer from the employee. The test in these cases is whether such recovery would result in a great amount of difficulty to the employee which will outweigh the equitable balance of the employer's right to recover. Hence, the Court has to balance equities in case there is a recovery to be done by employee from the employer.
39. The Hon’ble Supreme Court in State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 has enunciated the as discussed above the position of law with regard to recovery of excess amount paid to an employee. The relevant portion is reproduced below:
40. The principle laid down in the aforesaid judgment has been reiterated by the Hon’ble Supreme Court in the judgment of Sasikala Devi P. v. State of Kerala 2023 SCC OnLine SC 513
41. In view of the foregoing discussion, this Court is of the considered view that the petitioner served as an employee at the respondent School, therefore, any order passed by the school seeking recovery of monetary benefits extended to the petitioner would be unfair. It is also held that the petitioner’s rights would outbalance the right of the respondent School to recover the said amount. Accordingly, issue pertaining to recovery of amount from the petitioner teacher by the respondent school is decided.
42. To conclude, it is pertinent to reiterate that the petitioner Teacher being an employee of the respondent School is entitled to all retirement benefits including payment of gratuity and leave encashment even though respondent School is a private unaided school receiving no aid or grant from the government. Moreover, the respondent school is not entitled to recover any amount from the petitioner teacher.
43. This Court is of the view that the present petition has merit and therefore, has been allowed. The petitioner is entitled to the retiral benefits i.e. gratuity and leave encashments due to him by the respondent School.
44. This Court directs the respondent School to pay the retiral dues owed to the petitioner teacher in form of leave encashment of 288 days and gratuity as due in accordance with the Payment of Gratuity Act, 1972.
45. Accordingly, the instant petition stands allowed.
46. The order be uploaded on the website forthwith. CM APPL. 55139/2022(Early Hearing)
47. By way of the instant application, the petitioner seeks early hearing of the captioned petition
48. In view of the order passed in the captioned petition, nothing survives in the present application. Accordingly, the present application stands dismissed as infructuous.