Full Text
HIGH COURT OF DELHI
Date of Decision: 06th April, 2023
AJAY SINGH ..... Petitioner
Through: Mr. Praveen Alok, Advocate.
Through: Mr. Manish Gupta, Mr. Neelmani Guha, Ms. Harshal Gupta, Mr. Aryank Panchal, Advocates for R-1.
Mrs. Avnish Ahlawat, Standing Counsel with Mr. N.K. Singh, Ms. Laavanya Kaushik and Ms. Aliza Alam, Advocates for R-2.
JUDGMENT
1. Present writ petition has been filed by the Petitioner seeking the following reliefs:- “i. Set aside the order dated 20.12.2018; ii. Direct the Respondents to pass an appropriate order regarding payment of full back wages/salary along with all allowances, increments, MACPs, continuity of pay scale, etc. in time bound manner, with effect from the date of suspension i.e. 31.01.2002 along with interest @ 12% per annum from the date the full back wages/salary along with all allowances, increments, MACPs, continuity of pay scale, etc. were due till the date of final payment. iii. Direct the Respondents to forthwith deposit the Petitioner's share of gratuity, provident fund, etc. in the requisite accounts with effect from the date of suspension i.e. 31.01.2002;”
2. The matter has a chequered history and the facts to the extent necessary and relevant are as follows:- (A) Petitioner was appointed to the post of PGT (Physics) vide letter dated 24.07.1997 on probation for one year extendable at the discretion of Respondent No. 1/Delhi Police Public School (hereinafter referred to as the ‘School’). Services of the Petitioner were confirmed w.e.f. 01.08.1998 as PGT (Physics) by the School. (B) By an order dated 30.01.2002, services of the Petitioner were terminated without any inquiry or show cause notice and without the mandatory approval of the Director of Education (DoE) on grounds of alleged negligent conduct in performing his duties, neglecting classes, misbehaviour, etc. with three months’ salary in lieu of notice period from 01.02.2002 to 30.04.2002.
(C) Petitioner filed an appeal bearing Appeal No. 3/2002 before the Delhi School Tribunal (hereinafter referred to as the ‘Tribunal’) on the ground that the termination had been effected without any inquiry as required under Rules 117 to 120 of the Delhi School Education Rules, 1973 (hereinafter referred to as the ‘1973 Rules’) and without approval from DoE. The Tribunal, vide judgment dated 09.01.2003, allowed the appeal of the Petitioner and set-aside the order dated 30.01.2002 terminating his services. Against the order of the Tribunal, School preferred a writ petition before this Court in C.W.P. 1509/2003, which was disposed of as withdrawn by the School, without reserving any right or seeking liberty to conduct an inquiry into the allegations.
(D) For reasons best known to the School, an order was issued on 06.10.2003 placing the Petitioner under suspension in terms of Rule 115(4) of 1973 Rules, with retrospective effect from 31.01.2002. On 07.11.2003, a letter was issued by the School placing the Petitioner under suspension from the date of his original termination i.e. 31.01.2002 till further orders. On 05.12.2003, DoE accorded approval for suspension of the Petitioner and soon thereafter, on 03.01.2004, School issued a Memorandum of Charge to the Petitioner and informed him that an inquiry would be held against him under Rule 118 of 1973 Rules. (E) In the meanwhile, Petitioner filed a writ petition being W.P.(C) 8613/2003, challenging the order dated 06.10.2003 placing him under suspension. Vide order dated 04.01.2005, this Court allowed the writ petition and issued directions to the School to pay to the Petitioner his salary, emoluments and other dues from 01.02.2002 till the date of suspension, holding that suspension could only be prospective. (F) The inquiry proceedings held pursuant to the charge sheet dated 03.01.2004, culminated into order of penalty of ‘removal from service’ on 13.07.2005. Petitioner assailed the penalty imposed on him in Appeal No. 31/2005 and the Tribunal vide order dated 11.01.2011, quashed the penalty order and directed the School to reinstate the Petitioner with full back wages. (G) School challenged the order of the Tribunal dated 11.01.2011 before this Court in W.P.(C) 3423/2011. By a judgment dated 17.09.2018, Court affirmed the order of the Tribunal to the extent of quashing the penalty order, however, insofar as the direction of back wages was concerned, the same was set-aside, directing the Managing Committee of the School to decide in accordance with Section 11(6) of the Delhi School Education Act, 1973 (hereinafter referred to as the ‘1973 Act’). (H) Pursuant to the directions of this Court, the School Management decided the issue of grant of salary and allowances and vide order dated 20.12.2018 rejected the claim of the Petitioner for back wages for the period 30.01.2002 to 13.07.2011. It is this order which is impugned in the present writ petition.
3. Before proceeding to record the respective contentions of the parties, it is important to extract the concluding part of the impugned order hereunder, for ready reference:- “…….. After going through the above facts of the case, this House comes to the conclusion in the following manner:-
1. Delhi Police Public School is a School run for the welfare of wards of Delhi Police personnel and is charging very low fee from these students. The financial position of School is not sound and as such School will not be in the position to bear the burden of payment of back wages to Sh. Ajay Singh.
2. This is also the fact of the case that during the absence of the said employee, the School has hired/engaged the services of other teachers and had paid their salary and allowances in order to complete the syllabus/course. As at present, the school is facing financial-constraints and difficulties, and thus, to pay the extraamount to an employee, particularly for the period in which the said employee had not actually worked, is neither justified, nor appropriate one.
3. On the issue of reinstatement, the said employee was reinstated on technical grounds, and not on merit, which is evident from the bare reading of the Judgement and Order dated 17.09.2018 passed by the Hon’ble High Court of Delhi at New Delhi as the Hon'ble High Court has not differed the findings from the Enquiry- Committee Report, who has held guilty of five charges out of 7 charges levelled against him.
4. No change was found in the work and conduct of the Respondent even after assuming his services. Even till date, his behaviour with his colleagues and staff is not good. But as the civilians do get afraid from Courts, and not want to get indulged in such matters, no written action was taken against him. Only verbal complains have been made against him, which were ignored since decision of the Hon’ble Court was pending.
5. Since the said employee was not actually working in the school, and thus, he should not be entitled to any salary or back wages by applying the rule of “No Work, No Pay”. DECISION Keeping in view the above, the School Management Committee, Delhi Police Public School, Safdarjung Enclave, New Delhi decides that Mr. Ajay Singh, PGT (Physics) is not to be paid back wages for his termination period w.e.f. 30.01.2002 to 13.07.2011 on the basis of principle of the rule of “No Work, No Pay”.”
4. At the outset, counsel for the School candidly and fairly states that he does not contest grounds (1) and (2) of the impugned order as even according to him, these are unsustainable in law i.e. financial crunch of the School and the factum of another employee being hired in the absence of the Petitioner. Learned counsel, however, lays stress on the other grounds and submits that back wages cannot be granted to the Petitioner since he was not actually working in the School in the relevant period and is not entitled to back wages on the principle of ‘no work no pay’. It is further contended that Petitioner was not exonerated on merits and his reinstatement was a result of the Tribunal quashing the penalty order on a technical ground and in the absence of a finding that Petitioner is not guilty of the charges, back wages cannot be granted, in exercise of powers under Rule 121 of the 1973 Rules.
5. Learned counsel for the Petitioner, on the other hand, assails the impugned order and submits that the principle of ‘no work no pay’ cannot be invoked by the School in the present case, as it was not the Petitioner who was unwilling to work and was instead forced to stay out of the School, on account of the suspension order, followed by penalty of removal from service, both of which were declared to be illegal by the Courts and the Tribunal. Insofar as the argument that Petitioner was not fully exonerated is concerned, learned counsel submits that once the charge sheet itself was held to be illegal and invalid by the Tribunal and the order is upheld by this Court, it is not open to the School to raise a ground that the reinstatement of the Petitioner was on technical grounds.
6. I have heard learned counsels for the parties and examined their respective contentions.
7. Broadly understood, Petitioner’s claim for back wages and other consequential reliefs such as MACP, etc. has been rejected on two-fold grounds, viz., (a) ‘no work no pay’; and (b) penalty of removal is set aside on technical grounds and it is not a case of full exoneration.
8. Insofar as the first ground is concerned, in my considered view, the mere invocation of the principle of ‘no work no pay’ in the present case is wholly fallacious. On a factual score, services of the Petitioner were terminated on 30.01.2002 and this was followed by a spate of orders including suspension, charge sheet, penalty of removal, order of the Tribunal as well as this Court and it was only after the Tribunal passed the order on 11.01.2011, quashing the penalty of removal from service that Petitioner was reinstated w.e.f. 14.07.2011 albeit without back wages and other consequential benefits. Therefore, it is clearly a case where the Petitioner was always willing to work but was kept out due to the actions of the School, which were ultimately declared illegal by judicial orders. It is a settled law that where an employee is willing to work but the employer keeps him out, principle of ‘no work no pay’ cannot be invoked by the employer. In this context, I may allude to the judgment of the Supreme Court in Union of India and Others v. K.V. Jankiraman and Others, (1991) 4 SCC 109, relevant passages of which are as follows:-
9. The Division Bench of the Allahabad High Court in M.P. Rawat v. Union of India Through General, Service Bench NO. 1259/201, decided on 01.11.2017, held as follows:-
10. In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, (2013) 10 SCC 324, the Supreme Court held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. It was also held if the employer wants to avoid payment of full back wages, then he has to plead and also lead cogent evidence to prove that the employee was gainfully employed and getting wages equal to the wages he/she was drawing prior to the termination. In view of this position of law, it cannot be asserted by the School that Petitioner can be lawfully denied the back wages since he was not working for the period in question.
11. The second ground taken by the School and which is strenuously urged by the learned counsel is that Petitioner was never exonerated on merits of the charge and penalty imposed on him was quashed only on technical grounds and thus a conscious decision was taken by the Managing Committee to deny back wages, which it was empowered to do. It is true that under Rule 121(1) of the 1973 Rules, it is open to the Managing Committee of the School to take a decision with respect to the salary and allowances to be paid to an employee for the period of his absence from duty including the period of suspension preceding his removal, when such an employee is reinstated as a result of an appeal. Under Rule 121(2) where the Managing Committee is of the opinion that the employee who was dismissed, removed or compulsorily retired has been fully exonerated, the employee shall be paid full salary and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired, as the case may be. The moot question that arises for consideration is whether it can be said that the Petitioner has been reinstated merely on technicalities or otherwise and if the discretion has been judiciously exercised.
12. The expose of facts, aforementioned, reveals that Petitioner was initially terminated without any inquiry or show-cause notice and the action was rightly found to be violative of the mandatory procedure prescribed in Rules 118 to 120 of the 1973 Rules. This was the first illegal step taken by the School, warranting interference. School challenged the order in C.W.P. 1509/2003, however, withdrew the writ petition without reserving any right or seeking liberty to initiate inquiry proceedings against the Petitioner and purely unconditionally. At this stage, it was known to the School or would be deemed to be in its knowledge that no charge sheet could be issued since no liberty sought from or given by the Court, while withdrawing the writ petition. Yet, for reasons best known to the School, Petitioner was placed under suspension by an order dated 06.10.2003 with retrospective effect from 31.01.2002. This was the second wrong step. This order was challenged by the Petitioner in W.P.(C) 8613/2003 and vide judgment dated 04.01.2005, the Court directed the School to pay the salary, emoluments, etc. for the period 01.02.2002 till 07.11.2003 and quashed the order.
13. In the meantime, charge sheet was issued by the School on 03.01.2004. This was the third illegal step. Inquiry proceedings culminated into a penalty of ‘removal from service’ and in the Appeal, the Tribunal again quashed the penalty and directed reinstatement with back wages. This order of the Tribunal was challenged in this Court in W.P.(C) 3423/2011 and the observations of this Court, while upholding the order of the Tribunal to the extent it quashed the penalty, are very significant. Court examined the aspect of legality of the charge sheet and came to a conclusion that the School could not have initiated the inquiry at all. Court recorded the concession of the counsel for the School that the allegations against the Petitioner, on the basis of which he was terminated on 31.01.2002, were the same as those which constituted subject matter of the charge sheet dated 03.01.2004. Court then dealt with the contention of the School that no inquiry was conducted prior to the first order of termination and therefore, the charge sheet could be issued as this was the first instance when inquiry was initiated. Dealing with this, Court held that the argument though ingenious, could not be accepted. It would be useful and profitable to extract the observations and findings of the Court, for the purpose of deciding the second contention of the School, as follows:-
17. I may note, even at this stage, that the issue of whether reinstatement of the respondent would, or would not, be in the interests of the students, has really paled into significance as, during the pendency of these proceedings, the respondent was, in fact, reinstated by the School, and has been teaching in the School for around seven years as on date. Though learned counsel for the petitioner seeks to submit that his conduct continues to be abominable, he is unable to point out any action that has been taken against the respondent during these seven years, during which he has served the School after passing of the impugned order by the learned Tribunal. Insofar as the award of back wages to the respondent is concerned, there is substance in the contention of the petitioner that the learned Tribunal did not possess the jurisdiction to pass orders to that effect, its jurisdiction being limited to sitting in appeal over the order of punishment passed by the Disciplinary Authority. This issue is no longer res integra, as it stands concluded by the judgment of the Full Bench of this Court in Guru Harkrishan Public School v. Directorate of Education, 151 (2015) DRJ 24, (FB) which held Sunrita Thakur (supra) to be lying down the correct law. As such, the impugned order of the learned Tribunal, insofar as it awards back wages to the respondent, would necessarily have to be set aside.
18. Proceeding to the aspect of the legality of the charge-sheet dated 3rd January, 2004, issued by the petitioner to the respondent, and the inquiry and other proceedings which followed thereupon, however, I am of the view that petitioner really has no case. Irrespective of whether the charge-sheet dated 3rd January, 2004 is to be construed as a “further inquiry” or as a “fresh inquiry”, it is clear, from the facts, that the School could not have initiated it at all.
19. Learned counsel for the petitioner candidly concedes the fact that the allegations against Respondent No. 1, on the basis whereof he had been terminated on 31st January, 2002, were the same as those which constituted subject matter of the charge-sheet dated 3rd January, 2004. He however, contends that no inquiry had taken place prior to passing of the order of termination dated 31st January, 2002 and that, therefore, the charge-sheet dated 3rd January, 2004 was the first instance when an inquiry into the said charges was initiated. As such, he would submit, there was no embargo on such a charge-sheet being issued. He seeks to contend that the termination of the services of the Respondent No. 1 on 31st January 2002 was, in fact, effected in exercise of the express stipulation, in the contract between the School and Respondent No. 1, which permitted the service of Respondent No. 1, even after his confirmation, to be terminated on payment of three months’ salary.
20. He draws my attention to the fact that, in fact, three months’ salary was disbursed to Respondent No.1 at the time of his termination on 31st January, 2002. He would, therefore, seek to contend that the findings of the DST, to the effect that the inquiry, which was initiated on 3rd January, 2004, violated Rule 115(4) of the DSE Rules, was fundamentally vitiated by the misconception that this was a “further inquiry” whereas, in actual fact, it was the first inquiry initiated into the charges against Respondent No. 1.
21. Though the submission of learned counsel is undoubtedly ingenious, I am of the opinion that the express contents of the Resolution dated 7th January, 2002 of the minutes of the Managing Committee, which constituted the foundation of the order dated 30th January, 2002, terminating the services of Respondent No. 1, belie this submission. It is clear, from the said Resolution, of the Managing Committee, that the termination of Respondent No. 1 was punitive in nature, based on the very same allegations which constituted the subject matter of the charge-sheet later issued to him on 3rd January, 2004.
22. Two wrongs, it is well settled, cannot make a right. Having erred in terminating the services of Respondent No. 1, on the basis of the said allegation in 2002, without holding any inquiry, it would hardly be open to the petitioner-school to piggyback on its own lapse and now subject Respondent No. 1 to a protracted inquiry on the very same charges, as there is no law, known to me, which would permit termination of an employee, on a set of charges, without holding an inquiry and, thereafter, once the said termination was set aside, holding an inquiry and again proceeding against the employee on the same charge, unless and until leave is obtained, from the Court, to do so.
23. This, in my view, is a clear case of double jeopardy of the employee concerned. The situation is compounded in the present case by the fact that the School itself withdrew WP (C) 1509/2003 filed by it, challenging the order, 9th January, 2003, of the DST, which had set aside the termination of the services of Respondent No.1 on 31st January, 2002, without seeking any liberty to initiate a fresh inquiry. As such, the initiation of the fresh inquiry, on the same allegations, on the basis whereof Respondent No. 1 had once been terminated on 31st January, 2002, after he succeeded in getting the termination set aside by the learned Tribunal, and the writ petition against the said order of the Tribunal having been withdrawn by the School, cannot in my view, be sustained either on facts or in law.
24. Given the fact that the manner in which the Respondent has proceeded, in issuing the charge-sheet on 3rd January, 2004 and continuing with the inquiry thereafter, is totally alien to the law, and clearly contrary to the provisions of the DSE Act and the DSE Rules, I am of the view that nothing can be gained by entering into the thicket of the allegations against Respondent No. 1 howsoever serious the allegations may appear to be. We live in a land governed by the rule of law, which does not permit any citizen to be proceeded against, save and except in the manner prescribed by the law for the said purpose. That, if the law prescribes a particular manner in which a thing has to be done, that thing must be done in that manner or not done at all, is an adage which stands fossilized in legal lore, starting from Taylor v. Taylor, (1875) 1 Ch D. 426 proceeding through Nazir Ahmad v. King Emperor, AIR 1936 PC 253 and reiterated, perhaps most recently, in Kameng Dolo v. Atum Welly,
25. That apart, it is a matter of fact that Respondent No. 1 has, in fact, being discharging his duties as teacher in the School for about seven years after passing of the order by the DST, with no complaint and, apparently, no further action being taken against him, giving rising to a legitimate interference that he has been discharging his duties satisfactorily. No purpose would, in these circumstances, be served by examining the contentions of learned counsel for the petitioner that the seriousness of the charges against Respondent NO. 1 rendered him unfit to function as a teacher in the School.”
14. Reading of the aforesaid judgment shows that the penalty was quashed against the Petitioner not on any technicality, as sought to be argued by the School, but on a substantive law point that the charge sheet was a non-est and invalid charge sheet in the eyes of law, having been issued on the same allegations, on which the earlier termination order was passed and set aside. The School may have had a case if the earlier termination order was challenged in the writ petition and either the School would have succeeded in having the order of the Tribunal set aside or would have withdrawn the writ petition reserving the right to initiate inquiry proceedings. However, as noted in the above judgment, School followed none of the two paths and therefore, the issuance of the charge sheet without seeking liberty from the Court was illegal. Court also observed that we live in a land governed by rule of law and no citizen can be proceeded against, save and except, in the manner prescribed by law and that this was a clear case of double jeopardy of the employee concerned. Reading of the aforesaid judgment makes it palpably clear that the charge sheet was a nonstarter and void-ab-initio and thus quashed. This cannot be placed on a pedestal of technical exoneration and the second contention of the School is hereby rejected.
15. For all the aforesaid reasons, Court holds that both the grounds on which the claim of the Petitioner was rejected are untenable in law and the impugned order dated 20.12.2018 is hereby quashed and set aside, directing the School to release the entire back wages to the Petitioner for the relevant period i.e. 30.01.2002 to 13.07.2011, along with all other consequential benefits including financial upgradations, if any, in accordance with law.
16. Needless to state that if the Petitioner has been paid any subsistence allowance or any other allowance in the meantime, which requires to be adjusted, adjustments can be made by the School. While paying the outstanding dues to the Petitioner, School shall also furnish the calculations of the amounts being disbursed and it is open to the Petitioner to point out discrepancies, if any, and take recourse to legal remedies in case of any surviving grievance(s).
17. Learned counsel for the School, at this stage, submits that pursuant to the interim order dated 06.09.2011 in W.P.(C) 3423/2011, a sum of Rs.4,00,000/- was deposited with the Registry of this Court and the School may be permitted to withdraw the said amount.
18. Insofar as the amount of Rs.4,00,000/- is concerned, it is directed that after the School clears all the outstanding payments to the Petitioner towards back wages, etc., it would be at liberty to move an application in the present writ petition, enclosing the acknowledgements of the payments made and seek release of the said amount.
19. Writ petition is allowed in the aforesaid terms and disposed of.