*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th April, 2011
+ W.P.(C) No.9119-29/2006
MANGAL MOHAN & ORS ..... Petitioners
Through: Mr. K.C. Dubey, Advocate.
versus
DIRECTOR OF EDUCATION & ANR ..... Respondents
Through: Mr. R.K. Vats & Mr. Keshav Ranjan,
Advocates for R-2.
AND
CONT. CAS(C) No.1016/2006
SHEEL KUMAR ..... Petitioner/Relator
Through: Mr. K.C. Dubey, Advocate.
versus
V.K. PANDEY & ORS. ..... Respondents/Contemnors
Through: Mr. R.K. Vats & Mr. Keshav Ranjan,
Advocates for R-1&2.
AND
CONT. CAS(C) No.1210/2006
CHIRANJILAL ..... Petitioner/Relator
Through: Mr. K.C. Dubey, Advocate.
versus
V.K. PANDEY & ANR. ..... Respondents/Contemnors
Through: Mr. R.K. Vats & Mr. Keshav Ranjan,
Advocates for R-1&2.
AND
W.P.(C) No.9119-29/2006, CONT. CAS(C) No.1016/2006 , CONT. CAS(C) No.1210/2006 & CONT. CAS(C) No.1019/2006
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CONT. CAS(C) No.1019/2006
RAVINDER GAURA ..... Petitioner/Relator
Through: Mr. K.C. Dubey, Advocate.
versus
V.K. PANDDY & ANR. ..... Respondents/Contemnors
Through: Mr. R.K. Vats & Mr. Keshav Ranjan,
Advocates for R-1&2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No.
be allowed to see the judgment?
2. To be referred to the reporter or not? No.
3. Whether the judgment should be reported No.
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The eleven petitioners claiming to be employees of the respondent
no.2 Manav Bharti India International School have filed this petition
claiming the following reliefs:-
“a) Direct the respondents to grant the prevailing pay scale of the
posts on which the petitioners are working.
b) Direct the respondents to pay the revised pay scale as per Fifth
Pay Commission Report.”
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2. It is the case of the petitioners that by virtue of Section 10 of Delhi
School Education Act, 1973, the respondent no.2 School being an aided
recognized school is liable to pay to its employees wages not less than those
of the employees of the corresponding status in the schools run by the
Government of NCT of Delhi and which were not being paid to them.
3. Notice of the petition was issued. The respondent no.1 Directorate of
Education in its counter affidavit has affirmed that the petitioners are entitled
to scales of pay and allowance, pension, gratuity and other prescribed
benefits under the aforesaid provision of law.
4. The counsel for the respondent no.2 School invites attention to the
affidavit dated 11th October, 2007 filed by the respondent no.2 School in
which it is stated that the respondent no.2 School has been paying the
salaries/wages and prescribed benefits in terms of Section 10 (supra) from
the month of September, 2007.
5. The counsel for the petitioners also does not controvert so. He
however states that the eleven petitioners were employed with the
respondent no.2 School on dates varying from in the year 1991 till the year
2003 and they are entitled to the emoluments in accordance with Section 10
with effect from the date of their appointment, and which have not been paid
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so.
6. The counsel for the respondent no.2 School contends that the first
representation by the petitioners to the respondent no.1 Directorate of
Education in this regard was only in the month of March, 2006. The counsel
for the petitioners is unable to show any representation of a date prior thereto
but states that even without the petitioners making such a representation the
respondent no.2 School was obliged under the law to pay emoluments in
accordance with law to the petitioners.
7. The second proviso to Section 10 (supra) provides that the default by
the respondent no.2 School in paying the emoluments as provided therein
can lead to withdrawal of recognition. Now that the respondent no.2 School
has been paying the emoluments in accordance with law for the last atleast
four years and soon after filing of the petition, it is not deemed expedient to
entertain this writ petition qua the arrears. The writ remedy is not to be a
substitute for the remedy of the petitioners to recover the arrears. Moreover
the prayer of the petitioners in the writ petition also was with respect to the
prevalent scales only and not with respect to the arrears. The petitioners
having not made any grievance since the date of their appointment, cannot
now claim a mandamus to the respondent no.1 Directorate of Education to
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de-recognize the respondent no.2 School for non-payment of arrears and
which de-recognition would affect the students and the others employed
therein also.
8. The three contempt petitions were filed averring the respondent no.2
school to be in disobedience of the interim order dated 24 th May, 2006 in the
writ petition. Though the writ petition, as aforesaid was claiming only the
relief of granting the pay scale in accordance with the law but the petitioners
filed CM.No. 6751/2006 seeking interim relief. It was the case of the
petitioners in the said application that the petitioners apprehended that owing
to their having preferred the present petition, the respondent no.2 School
may become vindictive towards them. The petitioners thus sought to
restrain the respondent no.2 School from terminating, degrading or
transferring their services from their then position.
9. On the aforesaid application of the petitioners for interim relief, vide
order dated 24th May, 2006 the respondents were directed to maintain status
quo with respect to the petitioner’s employment. The said order has
continued in force, though not confirmed till now.
10. CM.No.5/2008 has been filed by the respondent no.2 school for
vacation of the said order.
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11. It is the case of the petitioners/relators in the contempt petitions that
notwithstanding the order of status quo, departmental proceedings were
commenced against them.
12. The counsel for the respondent no.2 School states that departmental
proceedings, as far as contempt case No. 1016/2006 is concerned were
commenced prior to the filing of the writ petition and as far as the other two
cases are concerned, the departmental proceedings were commenced, though
after the order dated 24th May, 2006 but prior to service thereof on the
respondent no.2 School. It is further informed that on receipt of notice of
contempt, further proceedings were not undertaken and vacation of the
interim order was sought.
13. The counsel for the petitioners / relators with reference to reports of
service of the notice of the petition and the interim order on the respondent
no.2 School has contended that the respondent no.2 School first evaded to
receive the service and thereafter the process server was not permitted to
enter the school and the notice of the interim order received at the gate of the
school by the watchman. It is thus contended that the commencement of the
disciplinary proceedings was after the service of the interim order and thus it
is disobedience of the order of the status quo.
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14. It has been enquired from the counsel for the petitioners/relators as to
whether there can be a blanket stay on any proceeding against an employee
merely because the employee has raised a dispute against the employer.
15. Though the counsel for the petitioners/relators initially admitted that
there can be no such blanket stay but subsequently contends that in the
present case since this Court had passed an order directing the status quo to
be maintained and which order is in the nature of the order under Section
33(2)(b) of the ID Act, 1947, not only could the terms of employment of
petitioner be not changed but even the disciplinary proceedings could not
have been initiated. He further informs that the petitioner in Cont Cas(C)
1210/2006 has since been allowed to rejoin the duty but relief is however
sought by the said petitioner qua his claim from the respondent no.2 School
of his seniority and backwages etc.
16. I am of the view that initiation of disciplinary proceedings against the
workman cannot be said to be in violation of the interim order. The status
quo in the context in which it was sought cannot be construed as restricting
the right of respondent no.2 School of commencing the disciplinary
proceedings also. Taking the parity of Section 33(2)(b), relied upon by the
counsel for the petitioners himself, the same also requires only approval of
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the order of punishment ultimately passed and not the approval of initiation
of the disciplinary proceedings. No case of contempt is thus made out.
17. The counsel for the petitioners/relators however states that since the
petitioners/relators did not participate in the disciplinary proceedings
initiated against them claiming protection of the interim order, they should
now be permitted to participate in the disciplinary proceedings.
18. The counsel for the respondent no.2 School has stated that the final
order in the disciplinary proceeding has not been passed owing to the
pendency of the present proceedings. He further states that the
petitioner/relator in Cont.Cas1210/2006 was allowed to rejoin his duty
without prejudice to the pending disciplinary proceedings. In the
circumstances, it is deemed expedient to direct that the Disciplinary
Authority/Inquiry Officer before concluding the proceedings gives a fresh
notice to the petitioner/relator and gives an opportunity to the
petitioner/relator to putforth their defence.
19. The writ petition is therefore disposed of with liberty to the petitioners
to agitate their claims if any for arrears before the appropriate Fora. It is
clarified that the respondent no.2 School shall be entitled to take all defences
available to it in opposition to the said claim if any made by the petitioners.
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20. Interim order stands vacated.
21. The three contempt cases are therefore dismissed save for the
aforesaid direction.
22. No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
19th April, 2011
m/pp
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