IN THE HIGH COURT OF DELHI AT NEW DELHI
W. P. (C) 2869/1994 & CM 5450, 5557, 8389/1994
575/1997 and 3052/97
Reserved on: August 3, 2011
Decision on: September 5, 2011
RAJENDRA SINGH ..... Petitioner
Through: Mr. Kailash Vasdev, Senior Advocate
with Mr. R.S. Hegde and
Mr. Prakash Chandra, Advocates.
versus
DIRECTOR OF EDUCATION & ORS. ..... Respondents
Through: Mr. Rakesh Aggarwal, Advocate
for R-4 to 6.
Ms. Sangeeta Sondhi, Advocate for R-1 to 3.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported in Digest? No
JUDGMENT
05.09.2011
1. The Petitioner seeks the quashing of an order dated 9th March 1994, passed by the
Manager of the D.C. Arya Senior Secondary School („the School‟), Respondent No. 4
herein, compulsorily retiring the Petitioner from service under Rule 117 (b) (ii) of the
Delhi School Education Rules 1973 („DSER‟). The Petitioner also seeks the quashing
of a charge sheet dated 7th February 1990 and for a consequential order to reinstate the
Petitioner with full back wages. The further prayer is for a direction to the School to
release the amount of general provident fund („GPF‟) accrued to the Petitioner.
2. The Petitioner joined Respondent No. 4 School on 20th August 1964 as Teacher
Grade-II. At the time of his appointment he was a qualified graduate in Drawing.
Subsequently he completed a post-graduate degree in Sociology. He claims that
between 20th August 1964 and 7th February 1990, he worked satisfactorily and
W.P. (C) No. 2869 of 1994 Page 1 of 11
produced good results in the School. Copies of the commendation certificates issued to
the Petitioner have been enclosed with the writ petition.
3. On 7th February 1990 a charge sheet was issued to the Petitioner listing out nine
articles of charge pertaining to acts of omission and commission by the Petitioner
between 1965 and 1990. The Petitioner challenges this charge sheet on various
grounds including, staleness, vagueness and mala fides of the Management Committee
(„MC‟) of the School, in particular of the then Principal, who was arraigned as
Respondent No. 6. The Petitioner in a letter dated 12th February 1990 to the Chairman
of the Disciplinary Committee („DC‟) objected to its constitution as not being in
conformity with Rule 118 DSER. Writ Petition (Civil) No. 1679 of 1990 was filed by
the Petitioner in this Court seeking the quashing of the charge sheet. However, the
said writ petition was dismissed on 24th May 1990 by a Division Bench of this Court
essentially on the ground that the writ petition was premature. It was observed that
after the charge sheet is issued, and a regular enquiry held and if an adverse order was
passed against him, then the Petitioner could file an appeal before the tribunal
constituted under the Delhi School Education Act, 1973 („DSEA‟). Thereafter in July
1990, the Petitioner filed a detailed reply to the charge sheet.
4. Respondent No. 3 Mr. R.G. Gupta, who was a member of the Government Boys
Senior Secondary School in Lodhi Colony, and was also the Deputy Education Officer
(„DEO‟) of Zone-18 under which Respondent No. 4 School fell, was appointed as the
Enquiry Officer („EO‟). Mr. Gupta after holding the enquiry proceedings for some
time expressed his inability to continue. Consequently, on 13th September 1993, Mrs.
K. Upadhayay who happened to be the Principal of the Government Girls Senior
Secondary School, Lodhi Colony was appointed as the EO. In the meanwhile, on 3rd/
4th August 1993, Respondent No. 4 School informed the Petitioner that he was placed
under suspension with effect from 3rd August 1993. On 16th August 1993, the
Petitioner was informed by the School that the Directorate of Education („DoE‟) had
granted approval to the suspension of the Petitioner.
5. The Petitioner acknowledges that he received a letter dated 13th September 1993
from Mrs. Upadhyaya, the EO, who informed him that she had been appointed as such
W.P. (C) No. 2869 of 1994 Page 2 of 11
and required him to reach the School on 23rd September 1993 to attend the enquiry
proceedings. The Petitioner states that he could not have attended the enquiry since
there were orders of the Principal, Respondent No. 5, directing him not to enter the
School premises. The EO again wrote to the Petitioner on 25th September 1993 asking
him to attend the enquiry in the School on 27th September 1993. On 27th September
1993, the Petitioner submitted a letter dated 23rd September 1993 to the EO expressing
an apprehension of bias against the EO and demanded that a person equivalent to the
rank of Deputy Director of Education („DDE‟) or a higher post should be appointed as
the EO. A similar apprehension was expressed in another letter of the same date to the
DoE.
6. The enquiry proceeded with the Petitioner not participating in it. The EO submitted
a detailed report which found the Petitioner guilty of each article of charge. The
Petitioner claimed that he was not supplied with a copy of the report at that stage.
7. On 18th October 1993 the DC accepted the report of the EO and recommended that
the Petitioner be awarded the major penalty of dismissal from service in terms of the
Rule 117(b)(iv) DSER and that he should be disqualified from employment in any
aided school. According to the Respondent No. 4 School, a copy of the report of the
EO was sent to the Petitioner by Registered Post which he declined to receive. On 21st
October 1993, when the Petitioner visited the School, he was again sought to be
served with the show cause notice preceding the award of punishment but he refused
to accept it. The Petitioner then came to the School on 26th October 1993 and
delivered a letter stating that he had vacated his house and was looking for a
permanent address, and correspondence may be sent at 196-D, Gautam Nagar, New
Delhi. Accordingly, a copy of the show cause notice was sent at the fresh address
which was received by him. However, he did not reply to the same. The Petitioner
states that he in the meanwhile made representations on 26th October 1993 and 27th
December 1993 regarding the appointment of a higher ranking officer as the EO. On
23rd December 1993, the DC met to consider the next course of action. Since no reply
had been received from the Petitioner, it was decided to affirm the earlier decision
taken on 18th October 1993 dismissing the Petitioner from service and declaring him
disqualified from employment in any aided school. The DC requested the
W.P. (C) No. 2869 of 1994 Page 3 of 11
Chairman/Manager to seek the approval of the DoE. This meeting was not attended by
the staff representative and the EO. By a separate letter dated 24th December 1993 the
staff representative gave his approval. On 9th March 1994, Mr. R.G. Gupta, the DEO,
wrote to the School conveying the approval of the DoE to the punishment of
compulsory retirement, and not dismissal as proposed by the DC. It appears that
thereafter the Petitioner contacted the DoE and informed him verbally that he had not
received any show cause notice or copy of the enquiry report. The DoE then informed
the DEO to withdraw the order dated 9th March 1994. On 11th March 1994, a letter
was written by the DoE withdrawing the order dated 9th March 1994. However, by a
further order dated 21st April 1994, the DoE clarified that the earlier order dated 11th
March 1994 was void and restored the approval granted by the letter dated 9th March
1994. Consequently the order of compulsory retirement of the Petitioner was
confirmed.
8. This Court has heard the submissions of Mr. Kailash Vasdev, learned Senior
counsel appearing for the Petitioner, Mr. Rakesh Aggarwal, learned Advocate for
Respondents 4 to 6 and Ms. Sangeeta Sondhi, learned counsel for Respondents 1 to 3.
9. A preliminary objection has been taken both by the School as well as Respondents 1
to 3 that the Petitioner ought to have first approached the Delhi School Tribunal („the
Tribunal‟) before filing the present writ petition under Article 226 of the Constitution.
Indeed in the order dated 24th May 1990 passed by the Division Bench of this Court
dismissing the Petitioner‟s earlier Writ Petition (Civil) No. 1679 of 1990, this Court
permitted the Petitioner, if aggrieved by the result of the enquiry, to approach the
Tribunal first. However, since this writ petition has been pending since 8th July 1994,
this Court did not consider it expedient to relegate the Petitioner to the Tribunal after
so many years. The Court proceeds to examine the submissions on merits.
10. One ground of challenge is that the entire enquiry was vitiated in law as the
Petitioner was not served with any notice of the enquiry proceedings; he was denied
an opportunity of participating in the enquiry. The submission is that the Petitioner
intimated the School of the change of his address from Govindpuri to 39/1340, DDA
Flats, Madangir, New Delhi, on 12th April 1993. However, even prior thereto a notice
W.P. (C) No. 2869 of 1994 Page 4 of 11
of the enquiry dated 17th October 1992 was sent to the Petitioner there. It is submitted
that the subsequent notices of 10th December 1992, 15th December 1992 and 28th
December 1992 were also alleged to have been sent to the address at Madangir which
was not yet the address of the Petitioner since he shifted there only in April 1993. The
Petitioner shifted again his address in October 1993 to 196-D, Gautam Nagar, New
Delhi but on 18th October 1993, a sealed envelope was sought to be served on the
Petitioner at Madangir.
11. Placed on record by the School is a letter dated 17th October 1992 of Rajesh
Sharma, an employee, in which it is stated that the Petitioner refused to receive the
notice when it was sought to be served upon him. The Petitioner informed the notice
bearer that he would meet the EO on 21st October 1992. The EO made a note of this in
the proceedings on 21st October 1992. The EO also recorded in the proceedings that
on that date a peon was sent to look for the Petitioner. The peon returned stating that
the Petitioner had left the School without any intimation or permission from the
Principal. This was around 12 noon and the school timings were up to 1.15 pm. The
relevant notings in this regard have also been placed on record. On 10th December
1992 the EO issued a notice for the hearing on 15th December 1992. When the
Petitioner was approached at the address at Madangir, he again refused to accept the
notice stating that he would meet the EO himself. This was recorded in the
proceedings on 15th December 1992. On that date, the Petitioner again did not
participate in the proceedings. He was again issued a notice for the proceedings on
18th December 1992 and thereafter on 31st December 1992. He was again issued a
notice of hearing on 1st May 1993. There is a noting of the teacher to the effect that the
Petitioner refused to accept the notice. On 1st May 1993 the proceedings recorded the
presence of the Petitioner. The proceedings read as under:
“Sub: Departmental Enquiry against Sh. Rajendra
Singh, Drg. Tr./TGTPresent : Sh. B.L. Singhal, Principal.
Notice was again sent to the residence of Sh. Rajendra Singh for
today‟s hearing and my man Sh. J.D. Malkani was also
accompanied by Sh. Rajesh Sharma, teacher of D.C. Arya Sr. Sec.
School, Lodhi Colony, New Delhi, to serve the notice on 27-04-93
at his residence, 31/14, DDA Flats, Madangir, New Delhi.
W.P. (C) No. 2869 of 1994 Page 5 of 11
Although he took the notice, but refused to give any
acknowledgement as per report submitted by the above-named two
persons.
Mr. Rajendra Singh came to the enquiry. Statement of Sh. B.L.
Singal, Principal was recorded in his presence and he confirmed
his remaining documents pertaining to him. However, he refused
to participate and submitted half days leave application and left the
school.
The notice of the next hearing would be sent in due course.”
12. The documents on record show that every attempt was made to serve the Petitioner
with the notices of the hearings of the enquiry. It does appear that the Petitioner
deliberately avoided participation in the enquiry. The proceedings of the enquiry
drawn up by Mr. Gupta when he was the EO have also been placed on record. A
number of teaching and non-teaching staff of the School gave their statements to Mr.
Gupta complaining about the unbecoming behavior and conduct of the Petitioner. It is
not possible to draw a conclusion that Mr. R.G. Gupta acted mala fide or did not
follow the fair procedure in conducting the enquiry proceedings. On 4th May 1993,
Mr. Gupta was asked to be relieved as the EO on account of administrative reasons.
On 7th May 1993, the Principal wrote to the DEO to appoint Mrs. K. Upadhyaya, the
Principal of the Government Girls Senior Secondary School, Lodhi Road as the EO.
Mrs. Upadhyaya immediately informed the Petitioner by a letter of her appointment as
EO. On the letter dated 21st September 1993 written by her asking him to attend the
enquiry, there is a handwritten endorsement of the Petitioner dated 22nd September
1993 stating that he could not enter the school premises on account of his being placed
under suspension with effect from 4th August 1993. In her letter dated 25th September
1993, the EO made it clear that this was not a valid excuse since it was the MC itself
which had constituted the DC which in turn had appointed her to enquire into the
charges and therefore, he should now attend the enquiry on 27th September 1993. The
Petitioner then raised allegations of bias against Mrs. Upadhyaya stating that she had
been working under Mrs. U. Menon, Deputy Director (South), who according to the
Petitioner was showing “undue interest in the matter relating to charge sheet issued
against me”. This clearly is a baseless allegation and was rightly ignored by the EO.
W.P. (C) No. 2869 of 1994 Page 6 of 11
13. The record of the School in relation to the entire enquiry has been placed before
the Court and has been perused. It contains the originals of the documents relied upon
by the MC of the School. There is no basis to doubt the various notings made by the
persons who were authorised to serve the copies of the notices and the reports on the
Petitioner. There is confirmation from the Post Master, Lodhi Road that the letter
dated 20th October 1993 sent to the Petitioner at the address in Madangir was in fact
delivered on 21st October 1993.
14. This Court is not convinced by the submissions on behalf of the Petitioner about
his not having been given a fair opportunity of participating in the enquiry. The
allegations of bias made sweepingly against Mrs. Upadhyaya and Mrs. U. Menon were
entirely without any basis. There was no justifiable reason for the Petitioner to stay
away from the enquiry proceedings. It was not that the Petitioner was not aware of the
dates of enquiry. He was finding excuses to not attend them. He cannot now be heard
to complain that the enquiry was in violation of the principles of natural justice.
15. As regards the report of the enquiry itself, it is an exhaustive one which has
examined every piece of evidence in great detail. While it is correct that some of the
articles of charge relate back to the year 1968 and many to the year 1982, it cannot be
said that they are entirely without any basis whatsoever or that the findings on these
articles of charge are based on no evidence. Had the Petitioner chosen to participate in
the enquiry proceedings, he could have sought to cross-examine the witnesses on
behalf of the School management; he could have questioned the veracity of the
documents placed on record by the School; he could have examined his own witnesses
and exhibited documents to substantiate his defence. With the Petitioner choosing not
to participate in the enquiry, it is difficult to doubt the sanctity of the procedure
adopted in the enquiry and the conclusions arrived at by the EO. All the charges
cannot be dismissed as being vague and unsubstantiated. Some of them relate to the
period of 1986-87 and some even to 1989-90. In any event, in exercise of its
jurisdiction under Article 226 of the Constitution, this Court is not expected to
minutely examine each and every finding arrived at by the EO by re-appreciating the
evidence.
W.P. (C) No. 2869 of 1994 Page 7 of 11
16. It is submitted that the non-participation of the teacher representative in the
proceedings of the DC vitiates the entire proceedings. Reliance is placed on the
decision of this Court in Managing Committee DC Arya Sr. Sec School v.
Administrator, Delhi 1996 Lab IC 1999. The original file of the case with the School
has been produced before the Court. It shows that the proceedings of the DC of 18th
October 1993 where the report of the EO was accepted and the major penalty of
dismissal was proposed was attended by the staff representative and the minutes were
signed by him. As regards the subsequent meeting of the DC held on 23rd December
1993 it was in confirmation of the decision taken on 18th October 1993. Although the
staff representative was not present on that date he accorded his approval the very next
day. There is therefore no merit in this objection.
17. It is submitted that the Petitioner is a victim of harassment by the management of
the School. Reference is made to the fact that for grant of selection grade the
Petitioner had to file CW No. 2121 of 1986 in this Court. The said writ petition came
to be allowed after contest by an order dated 16th February 1987. This Court is unable
to perceive any link between the said proceedings and the disciplinary proceedings
which commenced nearly three years thereafter. It is not possible to hold that they
were a counterblast to the Petitioner succeeding in getting his selection grade through
court proceedings.
18. The next point urged on behalf of the Petitioner has been recorded in the order
dated 4th February 2010 of this Court and reads as under:
“W. P. (C) No. 2869/1994
Mr. Kailash Vasudev, Senior Advocate appearing for the petitioner at the
outset has submitted that the necessary approval to the decision of the
Management to compulsory retire the petitioner was not accorded by the
Director of Education in terms of Rule 120 of the Delhi School Education
Rules. Counsel has drawn attention of this court to the letter dated
09.03.1994 whereby the said approval was conveyed by one Mr. R.G.
Tupta (sic `Gupta‟), the then Deputy Education Officer, to the Chairman
of the D.C. Arya Senior Secondary School but just after a gap of two days
the same very officer conveyed to the Chairman of the School that the said
letter according approval stands withdrawn due to some procedural
deficiencies. Again the same very officer vide letter dated 21.04.1994
wrote back to the Chairman of the School not to give any cognizance to
the letter dated 11.3.1994 and the same be treated as null void.
W.P. (C) No. 2869 of 1994 Page 8 of 11
Ms. Meenakshi, counsel appearing for the respondent Nos. 1 to 3 submits
that Mr. R.G. Gupta was not the competent authority to have withdrawn
the said approval which was granted by the Director Education. If that is
the situation then let the counsel on instructions explain as to whether any
action against the said officer was taken by the Director of Education or
not. Let an affidavit in this regard be filed by the respondent Nos. 1 to 3
within a period of two weeks.”
19. Pursuant to the above order, an affidavit has been filed by Mrs. Anita Setia,
Deputy Director of Education, on 11th March 2010 placing on record the fact of the
approval granted by the DoE regarding the withdrawal and restoration of the approval
of the award of major penalty. However, since the documents enclosed with this
affidavit were incomplete this Court asked to be shown the original file. The file of the
DoE contains a detailed note dated 3rd January 1994 prepared by Mr. R.G. Gupta on
the case without expressing any opinion of his own. The matter was then placed before
the DoE, Mr. Shakti Sinha who then decided to place it before the OSD who prepared
a very detailed note dated 7th February 1994 raising certain queries. Mr. Gupta then
prepared a further detailed note on 9th February 1994. The ALA then prepared a note
on 17th February 1994 in which he proposed alternative courses of action. It is not,
therefore, that Mr. R.G. Gupta himself has played any role in causing the ultimate
decision of the DoE regarding the penalty to be imposed. It is apparent that the DoE
did concur with the proposal for imposing the penalty of compulsory retirement.
Accordingly, on 9th March 1994 the approval was communicated to the School. There
is a noting of 11th March 1994 of Mr. R.G. Gupta referring to a telephonic message
received from the DoE asking him to withdraw the approval granted on 9th March
1994 regarding the award of major penalty. There is also a separate noting of DoE
enquiring whether the legal requirement of having to furnish a copy of the enquiry
report to the Petitioner, giving him a notice about the proposed action and calling upon
him to submit his response was complied with. On 16th March 1994 there is a noting
to the effect that there were two registered letters sent to the charged official and the
postal authorities had given a certificate confirming service of the said notices. This
Court has also examined the documents placed on record including the certificate
issued by the postal authorities.
20. The sequence of events as can be reconstructed from the notings on the file of the
W.P. (C) No. 2869 of 1994 Page 9 of 11
DoE is that after detailed deliberations, the Chairman of the School was informed on
9th March 1994 that the DoE had granted approval to the imposition of the penalty of
compulsory retirement under Rule 117 (b) (ii) DSER. Then came the telephonic
conversation between the DoE and Mr. Gupta which was as a result of the verbal
representation made by the Petitioner. This led to the letter dated 11th March 1994
written by the DoE to the School stating that the earlier letter stood withdrawn. The
School then made a detailed representation on 24th March 1994 pointing out that there
was no provision in law to withdraw an approval already granted. This was, in fact,
the correct legal position. The matter was then once again examined exhaustively. The
file went up to the Minister of Education. The noting on file is that he was of the
view: “let the justice takes its course”. The DoE was informed that the steps of
furnishing the Petitioner with a copy of the enquiry report and providing him an
opportunity to represent against the proposed action had indeed been taken.
Accordingly, it was finally concluded that the punishment of compulsory retirement
would stand. It was on this basis that on 21st April 1994 a letter was written to the
School stating that the earlier approval granted on 19th April 1993 will stand and the
subsequent letter dated 11th March 1994 stood withdrawn. The confusion created by
the withdrawal of the approval on 11th March 1994 was avoidable. Clearly, it was
without the authority of law. The detailed notings on file make it clear that the
procedure followed was in accordance with law. It was out of abundant caution that
the letter dated 11th March 1994, followed by the further letter dated 21st April 1994,
came to be issued. Consequently, even as regards the imposition of major penalty of
compulsory retirement on the Petitioner, the procedure in accordance with law has
been duly followed.
21. Consequently, this Court is satisfied that there is no merit in the contentions of the
Petitioner about any procedural irregularity or illegality having been committed in the
conduct of the enquiry proceedings or the award of punishment to the Petitioner. As
regards the non-payment of the PF dues there is a dispute as to whether the Petitioner
refused it when offered. Be that as it may, if there are still any PF dues owing to the
Petitioner then the DoE should help him to recover the same in accordance with law if
he makes a request in that regard.
W.P. (C) No. 2869 of 1994 Page 10 of 11
22. The writ petition is dismissed, but in the circumstances, with no order as to costs.
All pending applications are disposed of.
S. MURALIDHAR, J.
SEPTEMBER 5, 2011
akg
W.P. (C) No. 2869 of 1994 Page 11 of 11