Kulachi Hansraj Model School & Ors. v. Kirti Jain & Anr.

19. Considering all the facts and circumstances as discussed above this Tribunal is of considered opinion that Appellant was an employee of Kulachi Hansraj Model School and not of R-3 school. xxxxxx xxxxxx xxxxxx xxxxxx xxxxxx xxxxx

22. In these circumstances, this Tribunal is of opinion that when the Appellant was an employee of R-1 School, R-3 School can neither initiate inquiry proceedings against her nor can terminate/remove the Appellant from the service. The impugned order dated 02.11.2015 of the removal of Appellant and all other proceedings are void-ab-initio. In these circumstances, appeal of the Appellant is accepted with cost and impugned order dated 02.11.2015 hereby set aside. Cost is assessed as Rs. 33,000 to be paid by R-1 & R-2 to the Appelant. R-1 & R-2 are directed to reinstate the Appellant within one month from the date of this order. Appellant will be entitled for full salary from the date of this order. Appellant will also be entitled for all the consequential benefits.

23. With respect to the back wages, in view of Rule 121 of Delhi School Education Act and Rules 1973, the Appellant is directed to make exhaustive representation to the R-1 and R-2 within a period of 4 weeks from the date of this order, as to how and in what manner the Appellant will be entitled to complete wages. The Respondent No.1 and 2 are directed to decide the representation given by the Appellant within 4 weeks of receiving the same by a speaking order and to communicate the order alongwith the copy of the same to the Appellant. Order accordingly, File be consigned to record room.”

9. Meanwhile, the earlier writ petition [W.P.(C). 3573/2015] of the petitioner whereby she had claimed the relief of pay and allowances as per the 6th CPC also came to be decided by the learned Single Judge. The learned Single Judge vide judgment dated 01.03.2017 allowed the writ petition of the respondent no.1 and rejected the argument of the appellant no.1 / school that the petitioner was not an employee of the appellant no.1. The relevant finding of the learned Single Judge in W.P.(C). 3573/2015 and the conclusion read as under:- “…7. Therefore, in my opinion, respondent no.1/school by alleging existence of disputed question of fact only to suit the respondent no.1’s convenience cannot cast a cloud at the status of the appointment of the petitioner as a Nursery Teacher with the respondent no.1/school. I therefore reject the argument of the respondent no.1/school that petitioner was not an employee of the respondent no.1/school.”…

XXXX XXXX XXXX “10…. In view of the above, this writ petition is allowed and disposed of directing the respondent no.1/school to pay to the petitioner, as stated above, the monetary emoluments as per the 6th Pay Commission Report from three years prior to filing of the writ petition till her resignation along with interest, as stated above. Petitioner will also be entitled to costs of Rs.20,000/- for this writ petition and which costs be paid within six weeks along with the amounts payable to the petitioner by the respondent no.1/school in terms of the present judgment. Writ petition is allowed and disposed of accordingly as stated above.”

10. LPA 295/2017 entitled Kulachi Hansraj Model School & Anr vs. Kirti Jain & Anr. was preferred by the appellant no.1-School against the aforesaid judgment of learned Single Judge which was dismissed by the Division Bench of this Court vide judgment dated 19.07.2018.

11. The Supreme Court also dismissed the Special Leave Petition NO. 7894/2019 entitled Kulachi Hansraj Model School & Anr. vs. Kirti Jain & Anr. preferred by the appellant no.1 school impugning the judgment of the Division Bench, dated 19.07.2018.

12. Resultantly, the finding of the learned Single Judge that the respondent no.1 was an employee of appellant no.1 attained finality in another set of proceedings emanating from W.P (C) 3573/2015 as both, the LPA, as well as the SLP, stood dismissed.

13. In so far as the order dated 01.05.2017, passed by the Delhi School Tribunal in appeal no. 06/2016 is concerned, the same was challenged by the appellants herein in W.P.(C). 8155/2017. The learned Single Judge vide common impugned judgment and order dated 24.07.2019 dismissed the aforesaid writ petition filed by the appellant along with two other connected writ petitions. Though in the opening part of the judgment, the learned Single Judge observed that the issue involved in the three connected writ petitions was the same and only the facts of W.P.(C). 8141/2017 were being discussed, but it appears that actually the facts of the appellants’ W.P.(C).8155/2017 which pertains to the respondent no.1, have been noted and discussed in the impugned judgment.

14. The learned Single Judge affirmed the decision of the Delhi School Tribunal mainly on the ground that the issue raised in the writ petition that whether the respondent no.1 is an employee of appellant no.1 or appellant no.3 has already attained finality in the other round of litigation between the same parties arising out of W.P.(C). 3573/2015 titled as Ms. Kirti Jain vs Kulachi Hansraj Model School & Ors. The learned Single Judge, therefore, opined that the respondent no.1 was an employee of Kulachi Hansraj Model School (appellant no.1) and not of the appellant no.3; and resultantly, held that the initiation of enquiry proceedings by the appellant no. 3 and the consequent order of removal from service were without jurisdiction and void ab initio.

15. Thereafter, a review petition under Section 114 of the CPC, 1908 was filed by the appellant no.1 school seeking review of the common judgment dated 24.07.2019 of the learned Single Judge. In the review petition, the appellant brought on record the factum of resignation tendered by the respondent no.1, which admitted fact according to the appellant, was the basis of the earlier writ petition [W.P.(C) 3573/2015] filed by the respondent No. 1 and the judgment dated 01.03.2017 of the learned Single Judge passed in the said writ, that gave the benefit of 6th CPC to her. The said review petition was, however, dismissed by the learned Single Judge vide his order dated 20.09.2019, on the ground that the same amounts to re-arguing the case.

16. The judgment of the learned Single Judge dated 24.07.2019 dismissing the appellants writ petition [W.P.(C) 8155/2017] and the order dated 20.09.2019 dismissing the appellants’ Review Petition 384/2019, have been assailed in the present appeal.

17. The limited argument sought to be raised in the present appeal is that the aspect of resignation, tendered by the respondent no.1 on 24.12.2014 from the post of Assistant Teacher, has been overlooked by the learned Single Judge while deciding the writ, as well as, the review petition.

18. Elaborating on the above argument, Mr. Raj Shekhar Rao, the learned Senior Counsel appearing for the appellants, invited attention of the court to the resignation letter dated 24.12.2014 addressed by the respondent no.1 to the Principal of appellant no.1 and also referred to the prayer clause of W.P.(C). 3573/2015, the earlier writ petition filed by the respondent no.1 claiming refixation of pay in terms of the 6th CPC till the date her resignation became effective, to contend that since it is an admitted case of the respondent no.1 that she had resigned from the post of Assistant Teacher in appellant no.1 school, therefore, there was no justification for her reinstatement in service by the Delhi School Tribunal and by the learned Single Judge.

19. Per contra, Mr. Rakesh Khanna, the learned Senior Counsel for the respondent no.1, contends that the resignation of the respondent no.1 was never accepted by the appellant no.1 school, much less, in terms of Rule 114A of the Delhi School Education Rules, 1973. The learned Senior Counsel further referred to letter dated 11.04.2015 (page 435 of the paper book) filed by the respondent no. 1 before the writ court along with CM Appl. No.37729/2019, to contend that by way of the said letter the appellant no.3 / Hansvatika Day Boarding School informed the respondent no.1 that her resignation has not been formally accepted by the school, therefore, she is still on the rolls of Hansvatika Day Boarding School. Inviting the attention of the Court to para 14 of the Tribunal’s judgment dated 01.05.2017, he contends that it was the appellants consistent case before the Tribunal that the resignation of the respondent no.1 was not accepted.

20. Mr. Khanna, further submits that had the resignation dated 24.12.2014 of respondent no.1 been duly accepted, there was no need for the appellants to issue charge memo dated 15.04.2015 to her and to terminate her on 02.11.2015 i.e., much after the date of her resignation letter.

21. We have heard the learned Senior Counsels for the parties and have perused the material on record.

22. Much emphasis has been laid by Mr. Rao, the learned Senior Counsel for the appellant, on the fact that the respondent no.1 had admittedly resigned from the post of Assistant Teacher with appellant no.1 vide her resignation letter dated 24.12.2014, therefore, the Delhi School Tribunal could not have ordered for the reinstatement of respondent no.1 in the appellant no.1 school. We notice that this plea was never raised by the appellants before the Tribunal. Intriguingly, before the Tribunal the stand of the appellants was that the resignation of the respondent no.1 was not accepted. Relevant part of paragraph 14 of Tribunal’s judgment where the stand of the appellant has been noted, reads as under:

23. Even the case of the respondent no.1 before the Tribunal was that she had resigned from her post but the appellant no.1 school had not taken any decision on her resignation. The stand of the respondent no.1 has been noted by the Tribunal in paragraph 13 of its judgment, the relevant part of which reads as under:

24. In the writ petition also, the appellants have not laid challenge to the order of the Tribunal on the ground that the respondent no.1 had resigned from her post. In fact, in the entire writ petition there is no pleading referring to the respondent no.1’s resignation dated 24.12.2014. This being the position, the appellants are not entitled to agitate a ground in the intra-court appeal for which no foundation was laid in the pleadings before the Tribunal or in the writ petition. It is also settled legal proposition that as a rule, relief not founded on the pleadings should not be granted.[1]

25. To whatever extent the rigours of pleadings are relaxed, the appellants cannot be permitted to argue contrary to the stand taken by them before the Tribunal. The stand of the appellants before the Tribunal that the resignation of the respondent no.1 was not accepted, is also reinforced by a letter dated 11.04.2015 written by the appellant no. 3 to the respondent no. 1 informing that her resignation has not been accepted by the school and she continues to be on the rolls of appellant no.3 school. Plainly, the appellants have consistently maintained that the resignation of the respondent no.1 was not accepted.

26. Further, the resignation tendered by the respondent no.1 could have only been accepted in terms of the Rule 114A of Delhi School Education Rules, 1973 [in short ‘the Rules’], which stipulates the manner in which the resignation is to be accepted. At this juncture, it may be apt to refer to the said Rule 114A, which reads as under: “114A. Resignation- The resignation submitted by an employee of a recognized private school shall be accepted within a period of thirty days from the date of the receipt of the resignation by the managing committee with the approval of the Director: Provided that if no approval is received within 30 days, then such approval would be deemed to have been received after the expiry of the said period.]”

27. Rule 114A was a subject matter of a decision of this Court in Anirudh Kumar Pandey v. Management of Modern Public School, (2018) 1 1 State of Orissa & Anr vs. Mamata Mohanty (2011) 3 SCC 436, para 55 AD(Delhi) 560, wherein a Coordinate Bench of this Court, while interpreting the said Rule, observed as under:

14. The plain language of this provision clearly stipulates that whenever the resignation is submitted by an employee, it shall be accepted by the Managing Committee of a recognised private school within a period of 30 days from the date of submission of resignation letter. Thirty days is the outer limit given to the Managing Committee to accept such resignation letter. It does not mean that the Managing Committee has to defer its decision for 30 days. The Rule requires that the Managing Committee shall take its decision within 30 days. ……………... In the case of Bajaj Hindustan Limited vs. State of U.P. and Ors., (2016) 12 SCC 613, the Supreme Court has discussed the meaning of expression "approval", "prior approval", "previous approval" or "permission". The Court has held in paragraphs 11 and 12 reproduced as under: "11. In Black's Law Dictionary (Fifth Edition), the word "approval" has been explained thus: Approval-The act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another. Hence, approval to an act or decision can also be subsequent to the act or decision.

12. In U.P. Avas Evam Vikas Parishad (supra), this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinabove:

6. This Court in Life Insurance Corpn. of India v. Escorts Ltd., (1986) 1 SCC 264, considering the distinction between "special permission" and "general permission", previous approval" or "prior approval" in para 63 held that: 63...we are conscious that the word `prior' or `previous' may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29 (1) of the Act. Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act."

15. It is clear that the language used in Rule 114A of Delhi School Education Rules, 1973, is "with the approval of Director." The Rule does not require that the resignation has to be accepted by the Managing Committee "with the prior approval" nor does it require that the Managing Committee should accept it "with the permission" of DoE. It simply states that the approval of the Director has to be sought. The approval therefore has to be post acceptance of resignation letter. The act of the Managing Committee holds good till the DoE disapprove their action and if it is not so disapproved and the approval is granted, then the act of the Managing Committee hold good from the date of its decision itself. This interpretation of the Rule is further ratified by the deeming provision contained in the Proviso of the said Rule, which clearly states that if no communication is received from DoE, the approval shall be deemed to have been accorded. Consequently, it is the decision of the Managing Committee which is final and approval can be accorded ex post facto. [Emphasis Supplied]

28. Clearly, it is settled position of law that if a resignation is submitted by an employee of a recognized school, it is obligatory on the part of the Managing Committee of the school to accept the same within a period of 30 days from the receipt of the resignation letter or from such future date as may be indicated in the resignation letter. However, the approval of the Director may or may not precede the acceptance of resignation. Such approval can even be accorded ex post facto also.

29. Now reverting to the facts of the present case, there is no document on record to suggest that the Managing Committee had accepted the resignation tendered by the respondent no.1. That apart, it is not the case of the appellants that they sought approval of the Director in terms of the statutory requirement mentioned in Rule 114A, and that any such approval was received. Above all, it was the appellants own stand before the Tribunal that the resignation of the respondent no.1 was not accepted. In the circumstances, we hold that although the respondent no.1 tendered her resignation from the post of Assistant Teacher with appellant no.1, but the same was never accepted by the appellant no.1 and their employer-employee relationship continued to subsist.

30. In so far as the review petition filed by the appellants is concerned, the same was dismissed by the learned Single Judge observing that it would amount to re-arguing the case.

31. We do not find any infirmity in the order of the learned Single Judge dismissing the Review Petition of the appellants. The fact of respondent no.1’s resignation, which was sought to be brought on record in the review petition, was already within the knowledge of the appellants. It is not a case of discovery of new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of the appellants or could not be produced by them when the impugned judgment was passed, on which premise alone the review could have been sustained.[2] Therefore, the learned Single Judge rightly refused to exercise the power of review.

32. As far as the finding of the Tribunal, as well as, of the learned Single Judge that the respondent no.1 was an employee of the appellant no.1 and not of the appellant no.3 are concerned, the same have not been assailed before us and rightly so, because the said finding had already attained finality in another set of proceedings arising out of W.P (C) 3573/2015.

33. In view of the above, we do not find any reason to interfere with the impugned judgment and the order of the learned Single Judge. Accordingly, See (2000) 6 SCC 224: Lilly Thomas and Others v. UOI and Others the appeal fails and is, therefore, dismissed. All pending applications are disposed-off.

VIKAS MAHAJAN, J. NAJMI WAZIRI, J. MARCH 29, 2023