{"id":180279,"date":"2011-08-17T00:00:00","date_gmt":"2011-08-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jitender-kumar-goel-vs-director-directorate-of-on-17-august-2011"},"modified":"2017-11-01T12:20:19","modified_gmt":"2017-11-01T06:50:19","slug":"jitender-kumar-goel-vs-director-directorate-of-on-17-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jitender-kumar-goel-vs-director-directorate-of-on-17-august-2011","title":{"rendered":"Jitender Kumar Goel vs Director, Directorate Of … on 17 August, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Jitender Kumar Goel vs Director, Directorate Of … on 17 August, 2011<\/div>\n
Author: S. Muralidhar<\/div>\n
                IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n\n        W. P. (C) 5772\/1998 & CMs 11029\/1998 (for stay), 2530\/1999 (for stay),\n                            8682\/2000 (release of salary)\n\n                                                        Reserved on: July 21, 2011\n                                                        Decision on: August 17, 2011\n\n\n        JITENDER KUMAR GOEL                          ..... Petitioner\n                       Through: Mr. Ajay Kumar Tandon, Advocate\n\n                         versus\n\n\n        DIRECTOR,\n        DIRECTORATE OF EDUCATION & ORS           ..... Respondents\n                       Through: Mr. Vinay Sabharwal with\n                       Ms. Neha Sabharwal, Advocates for R-3\n                       Mr. Aditya Madan, Advocate for R-1.\n\n        CORAM: JUSTICE S. MURALIDHAR\n\n          1.   Whether Reporters of local papers may be\n               allowed to see the judgment?                                 No\n          2.   To be referred to the Reporter or not?                       Yes\n          3.   Whether the judgment should be reported in Digest?           Yes\n\n                                  JUDGMENT\n<\/pre>\n
                                   17.08.2011<\/p>\n
1. The Petitioner, who was working as a Superintendent in the D.A.V. Public School,
\nPaschim Vihar, New Delhi (\u201eSchool\u201f), Respondent No. 3, has challenged in this writ
\npetition an order dated 30th April 1998 placing him under suspension pending
\ndisciplinary proceedings. He also challenged an order dated 7th August 1998 issued by
\nthe School rejecting his allegation of bias against the Inquiry Officer (\u201eIO\u201f).\n<\/p>\n
2. While directing notice to issue in this petition on 11th November 1998 an interim
\norder was passed by this Court restraining the IO from making any final report. On the
\nnext date, i.e., 12th February 1999 this Court was informed that the IO had prepared a
\nfinal report on 26th October 1998. On 25th February 1999 an order was issued by the
\nChairman of the School removing the Petitioner from service with immediate effect.\n<\/p>\n
W.P. (C) No. 5772\/1998                                                        Page 1 of 9<\/span><\/p>\n
 The Petitioner filed CM No. 2530 of 1999 seeking stay of the operation of the order
\ndated 25th February 1999. He also prayed for a direction to the Respondents to
\nconstitute an independent disciplinary committee (\u201eDC\u201f) and appoint an impartial IO.
\nIn reply it was stated by the Respondents that despite numerous opportunities the
\nPetitioner had failed to participate in the enquiry proceedings. On 26th October 1998
\nthe IO had submitted his final enquiry report holding the Petitioner guilty of the
\ncharges against him. On 2nd November 1998 a tentative decision on the proposed
\npenalty was taken by the DC and on 3rd November 1998 a copy of the enquiry report
\nwas sent to the Petitioner by registered AD post, under postal certificate (\u201eUPC\u201f) and
\nthrough courier. While the registered AD came back with the postal remark \u201erefused\u201f,
\nthe cover dispatched UPC was not returned undelivered and the one sent through
\ncourier was accepted by the Petitioner\u201fs mother and returned back after reopening and
\nrestapling the envelope. It is stated that the statutory approval of the Director of
\nEducation (\u201eDoE\u201f) was given on 22nd February 1999. Thereafter the penalty of the
\nPetitioner from service became final and was communicated to the Petitioner by the
\nSchool by a letter dated 25th February 1999. No orders were passed by this Court in
\nthe above application CM No. 2530 of 1999.\n<\/p>\n
3. Meanwhile, the Petitioner filed CM No. 7081 of 2000 stating that the Education
\nOfficer (`EO\u201f) Zone 14 had by a letter dated 4th October 1999 conveyed to the School
\nthe decision of the DoE, on the representation of the Petitioner at a public hearing,
\ndirecting reinstatement of the Petitioner with the rider that he should not be assigned
\nany financial responsibility till the finalisation of the enquiry proceedings to be
\nconducted on the internal audit report dated 27th March 1998. In response thereto on
\n8th October 1999 the School informed the DoE that there was no provision under the
\nDelhi School Education Act, 1972 (\u201eDSEA\u201f) or the Delhi School Education Rules
\n1973 (\u201eDSER\u201f) permitting withdrawal of the approval granted on 22nd February 1999.
\nTherefore, the said letter dated 4th October 1999 could not be implemented by the
\nSchool. On 17th January 2000 the DoE wrote to the School reiterating its order dated
\n4th October 1999 and requiring the School to forthwith comply with the said order.
\nPursuant thereto on 3rd July 2000 the Petitioner wrote to the School stating that he was
\nreporting for duty. However, the Petitioner states that he was not permitted to. Again
\non 10th July 2000 he made a request to the Secretary of the DAV Managing
\nCommittee (\u201eMC\u201f) to direct the Principal to permit him to join duty. In the<\/p>\n
W.P. (C) No. 5772\/1998                                                      Page 2 of 9<\/span>
\n circumstances, it was prayed that the Respondent should be directed to reinstate the
\nPetitioner. On 16th August 2000 rule was issued in this petition.\n<\/p>\n
4. On 21st August 2000 CM No. 7081 of 2000 was dismissed by this Court by the
\nfollowing order:\n<\/p>\n
         “The Petitioner seeks implementation of the orders of the Director of
\n         Education.\n<\/p><\/blockquote>\n
         This Court is not supposed to execute the orders of the Director of
\n         Education.\n<\/p><\/blockquote>\n
         Dismissed.”\n<\/p><\/blockquote>\n
5. The Petitioner then filed CM No. 8682 of 2000 pointing out that the cheque for the
\nPetitioner\u201fs salary for the period 25th February 1999 to 6th May 1999 was lying with
\nthe Registry of this Court and should be released to him. When this application was
\nlisted for hearing on 25th September 2000 notice was directed to issue to Respondents.
\nFinal opportunity was granted on 4th January 2001 to file a reply to the said
\napplication.\n<\/p>\n
6. Meanwhile, the Petitioner filed CM No. 1626 of 2001 on 30th January 2001 for a
\ndirection to the Respondent to allow the Petitioner to join duty during the pendency of
\nthe writ petition. Once again the order of the DoE directing the School to take back the
\nPetitioner was enclosed with the application. This Court dismissed the application
\nstating that similar application had already been dismissed on 21st August 2000 and
\nthe Petitioner was asked to deposit Rs. 1,000\/- as costs.\n<\/p>\n
7. At the time of his suspension by a letter dated 30th April 1998 the Petitioner had
\nserved more than 19 years. The said letter stated that disciplinary proceedings against
\nthe Petitioner were contemplated. It appears that the charges against the Petitioner
\nwere read out at the meeting of the Local Managing Committee (\u201eLMC\u201f) in which it
\nwas alleged that the Petitioner was guilty of temporary embezzlement of funds,
\ndemanding and getting illegal gratification from the contractor working for the School.
\nThe Petitioner then made a detailed representation to the President of the MC of
\nRespondent No. 2 on 4th May 1998 inter alia pointing out that the DC in terms of the
\nDSEA consists of the Chairman of the LMC (Mr. Baldev Raj Jindal), the Manager of
\nthe School, the Principal of the School, a teacher nominated by the LMC Chairman
\nand a nominee of the Education Department. Of the above five members, the Manager
\nW.P. (C) No. 5772\/1998                                                      Page 3 of 9<\/span>
\n of the School as well as the Principal of the School was the same person, one Mrs. S.
\nChawla. According to the Petitioner, the Chairman Mr. Baldev Raj Jindal and the
\nmanager of the School Mrs. Chawla were trying to harm him. He referred to certain
\nunpleasant incidents involving the said two persons and adverted to the alleged illegal
\nwithdrawal of funds by Mrs. Chawla which according to him had been brought out in
\na report of one Mr. Satija, the Head of the Internal Audit party. In the circumstances,
\nhe requested that Mr. Jindal, Mrs. Chawla and the teacher nominated by the MC be
\nnot allowed to sit in the DC constituted to consider his case. He also wrote a letter to
\nthe DoE on 14th May 1998 reiterating the representation dated 4th May 1998.\n<\/p>\n
8. A memorandum was issued on 10th July 1998 by the Chairman of the School to the
\nPetitioner listing out the charges and imputations of misconduct. The first article of
\ncharge was that the Petitioner had drawn a sum of Rs. 5,000\/- as advance on 3rd
\nFebruary 1992 for getting a new water connection for the school. It was not utilized
\nfor the purpose for which it was drawn but was shown as adjusted in the accounts
\nhaving been paid to the contractor on 24th December 1993. The contractor, Hukum
\nSingh, had stated that he did not receive the cash of Rs. 5,000\/-. Consequently, the
\ncharge against the Petitioner was that he had embezzled the said sum. The second
\narticle of charge was that on 25th October 1994 and 4th November 1996 the Petitioner
\nhad withdrawn an advance of Rs. 5,000\/- and Rs. 10,000\/- respectively and against the
\nsaid amounts had adjusted the amounts of Rs. 7,289\/- unauthorizedly without valid
\nsupporting documents. This amounted to embezzlement of the School funds by
\nmanipulating the records. The third article of charge was that on 10th June 1991 he
\nwithdrew a sum of Rs. 15,000\/- for making payment to Mr. Hukum Singh. Instead he
\npaid Mr. Hukum Singh a sum of Rs. 5,000 and unauthorisedly retained the balance
\namount of Rs. 10,000 which was later paid to Mr. Hukum Singh in two instalments of
\nRs. 5,000\/- each. The charge was that he had unauthorizedly retained the school funds
\nwith him for his personal use. The fourth article of charge related to payment made of
\nRs. 500 to a part-time night chowkidar on 10th July 1997 for which he had prepared a
\nreceipt forging signature of the said person. The fifth article of charge was about the
\nPetitioner not forwarding the names of the students for two examinations. The sixth
\narticle of charge was about his refusing to sign the instructions issued to him by the
\nPrincipal. The seventh article of charge was that during the months of May 1996 to
\nJuly 1996 he unauthorizedly took money from the contractor Mr. Chattar Pal Singh<\/p>\n
W.P. (C) No. 5772\/1998                                                      Page 4 of 9<\/span>
\n each time he handed over a cheque to the contractor for the work done by him. The
\neighth charge pertained to the Petitioner not attending to a case before the Labour
\nCourt concerning one Mr. Babu Lal. The ninth charge pertained to his not attending
\nthe Labour Court in connection with Smt. Kailash in the year 1996.\n<\/p>\n
9. In the reply filed on behalf of Respondent No. 3 it is pointed out that approval of the
\nDoE was sought for the suspension of the Petitioner. By a letter dated 2nd May 1998,
\nthe DoE was also requested to nominate a person to be on the DC. By a letter dated
\n27th May 1998 the DoE conveyed its approval to the suspension of the Petitioner and
\nconveyed the name of Mr. V.K. Anand, Principal, Government Boys Senior
\nSecondary School, Mundka to be on the DC. The DC met on 25th June 1998 to discuss
\nthe draft charges and on 9th July 1996 framed the definite charges against the
\nPetitioner. According to the Respondents, the memorandum was furnished to the
\nPetitioner on 10th July 1998 at his residential address. A modification to the said
\ncharges was also notified to the Petitioner. Significantly, the name of the Principal
\nMrs. Chawla was omitted from the list of witnesses. The Petitioner replied to the
\ncharge sheet on 20th July 1998.\n<\/p>\n
10. The DC which met on 27th July 1998 comprising Mr. Jindal, Mrs. Chawla, a
\nteacher\u201fs representative Mrs. Neera Khera and Mr. V.K. Anand appointed a retired
\nlegal officer of the DoE was appointed as IO. An order to this effect was issued on 27th
\nJuly 1998. The IO issued a letter to the Petitioner on 1st August 1998 at the School
\naddress asking him to appear in the enquiry proceedings on 10th August 1998. In his
\nrepresentations dated 5th and 6th August 1998 the Petitioner stated that the IO had
\nintimate friendly relationship with the husband of Mrs. Chawla and therefore was not
\ncompetent to act as the IO. He mandated that the IO was biased, mala fide and illegal.
\nHe stated that he was withdrawing from participating in the disciplinary proceedings.\n<\/p>\n
11. The disciplinary authority which met on 7th August 1998 rejected all the
\nallegations and sent him intimation to his residential address, i.e., C-577, Saraswati
\nVihar, New Delhi. A copy of the communication to this effect by one of the
\nemployees of the School has been enclosed as Annexure-XVI to the reply. The IO
\nwho held the proceedings on 10th August 1998 postponed it to 17th August 1998. On
\nthat date, i.e., 17th August 1998, the Petitioner wrote to the Chairman of the DC stating<\/p>\n
W.P. (C) No. 5772\/1998                                                        Page 5 of 9<\/span>
\n that the letter dated 7th August 1998 was delivered by the postman on 10th August
\n1998 at 4 pm, therefore, the Petitioner could not attend the meeting on that date. The
\nPetitioner then sent a medical certificate stating that he was unwell. On 27th August
\n1998 he informed the School that he had been advised one week\u201fs rest. Meanwhile, he
\nfiled an appeal to the DoE complaining against the DC and sought reinstatement. The
\nabove complaint was rejected and a memorandum was issued to him on 26th August
\n1998 asking him to cooperate in the inquiry. This memorandum was received by the
\nPetitioner on 27th August 1998. The DC which met on 9th September 1998 took note
\nof the fact that the Petitioner had not participated in the five hearings of the enquiry
\nproceedings in August-September 1998. It was decided that the IO should proceed
\neven if the Petitioner chose not to participate thereafter. This decision was
\ncommunicated to the Petitioner by a letter dated 9th\/10th September 1998.\n<\/p>\n
12. The IO proceeded to hold the enquiry in the absence of the Petitioner and held him
\nguilty of all the charges. The IO\u201fs report dated 26th October 1998 was considered by
\nthe DC in its meeting on 2nd November 1998. A copy of the report was sent to the
\nPetitioner on 3rd November 1998 asking him to make his submissions thereon within
\nfifteen days. Thereafter, at the meeting of the DC held on 23rd November 1998 the
\ninquiry report was accepted and a tentative decision was taken to remove the
\nPetitioner from service “which shall not ordinarily be disqualification for his re-
\nemployment in any other private recognized school.” On this basis, an approval was
\nsought from the DoE by the School on 27th November 1998. On 22nd February 1999
\nthe DoE granted approval to the penalty of removal from service being given to the
\nPetitioner. However, it was made subject to final outcome of the present writ petition.
\nThereafter, on 25th February 1999 the Chairman of the DC conveyed to the Petitioner
\nthat he had been removed from service. However, this was followed by the
\ncommunication dated 4th October 1999 from the EO conveying the direction of the
\nDoE to reinstate him. When the School then wrote to the EO on 8th October 1999
\nstating that such withdrawal of approval was without the authority of law, the DoE by
\nits letter dated 17th January 2000 reiterated the direction contained in the letter dated
\n4th October 1999.\n<\/p>\n
13. Mr. Ajay Kumar Tandon, learned counsel for the Petitioner submitted that the
\nconstitution of the DC was vitiated by bias. It was submitted that the internal audit<\/p>\n
W.P. (C) No. 5772\/1998                                                       Page 6 of 9<\/span>
\n report had found that serious financial irregularities had been committed by the
\nPrincipal. The Petitioner was made a scapegoat by the Principal as a result thereof.
\nThe presence on the DC of the Principal who was the person responsible for the
\nfinancial irregularities vitiated the entire enquiry proceedings. Likewise the presence
\nin the DC of the Chairman who was inimical to the Petitioner was also objected to. It
\nwas pointed out that the School disobeyed with impunity the direction of the DoE
\nrequiring the Petitioner to be reinstated. The charges were vague and stale and
\nreflected the mala fides of the Principal of the School and the Chairman.\n<\/p>\n
14. Countering the above submissions Mr. Vinay Sabharwal, learned counsel for the
\nRespondent No. 3 submitted that after the judgment of the Division Bench of this
\nCourt in Kathuria Public School v. Director of Education<\/a> 123 (2005) DLT 89 (DB) it
\nwas not necessary for a recognised private unaided school to obtain approval of the
\nDoE either for suspending or removing from service an employee. In any event, such
\napproval was in fact granted by the DoE by the letter dated 22nd February 1999. The
\nsubsequent letter dated 4th October 1999 of the EO was entirely without the authority
\nof law and was therefore rightly ignored by the School. He pointed out that
\ninterestingly the earlier approval granted on 22nd February 1999 was not expressly
\nwithdrawn by the DoE in its letter dated 4th October 1999. He further states that the
\nPetitioner\u201fs applications filed in the present writ petition seeking implementation of
\nthe order dated 4th October 1999 of the DoE were dismissed by this Court, one of them
\nwith costs of Rs. 1,000. It was submitted that the Principal acting in her official
\ncapacity and had no personal mala fides against the Petitioner. Rule 118 required her
\nto be part of the DC. The allegations of bias against the IO and the Chairman were
\nvague and unsubstantiated. Moreover there was in the DC a nominee of the DoE. The
\nPetitioner did not avail of the numerous opportunities of participating in the enquiry
\nand, therefore, could not be permitted to challenge the report of the IO. Mr. Sabharwal
\nrelied on the decisions of this Court in V.K. Sabharwal v. N.P.T.I. 2006 1 AD (Delhi)
\n45 and L.N. Karamakar v. Chairman-cum-Managing Director, M\/s. Indraprastha
\nPower Generation Company Limited 138 (2007) DLT 484.\n<\/p>\n
15. The above submissions have been considered. The report of internal audit was
\ninitially communicated to the Principal on 3rd April 1998 and comments were sought
\nfrom her on various aspects of the said report. It appears that the decision to initiate<\/p>\n
W.P. (C) No. 5772\/1998                                                      Page 7 of 9<\/span>
\n proceedings against the Petitioner was taken thereafter on 30th April 1998. A
\ncomparison of the letter addressed to the Principal by the MC on the irregularities
\npointed out in the internal audit report with the charge sheet issued to the Petitioner
\nshows that the latter was concerned with only some of the issues mentioned in the
\ninternal audit report. Also, the report of internal audit covered the period from 1992-93
\nto 1995-96. It is, therefore, evident that the internal audit report formed the basis of the
\nenquiry against the Petitioner and the articles of charge were not drawn up mala fide to
\nsomehow shift the blame on to the Petitioner. The ground of staleness is also without
\nmerit since the audit report covered the period during which the events for which the
\nPetitioner was proceeded against occurred.\n<\/p>\n
16. The Petitioner\u201fs allegations of bias against the Principal, the EO and the Chairman
\nremain unsubstantiated. The Petitioner could have participated in the enquiry
\nproceedings before the IO and placed whatever materials that he may have had to
\nsubstantiate such allegations. The Respondent has placed on record documents to
\nshow that the Petitioner did receive notice of every hearing. On this aspect the facts of
\nthe present case are distinguishable from those in Tilak Chand Magatram Obhan v.
\nKamala Prasad Shukla<\/a> 1995 (5) SLR 809. This Court does not find any force in the
\nsubmission of learned counsel for the Petitioner that the IO or the DC were biased
\nagainst the Petitioner. This Court is also satisfied that there was no violation of
\nprinciples of natural justice as far as the conduct of the enquiry proceedings was
\nconcerned. The report of the IO reveals a detailed recording and analysis of the
\nevidence tendered in support of each article of charge. There is no scope for
\ninterference with the findings recorded in the inquiry report.\n<\/p>\n
17. The DoE on 22nd February 1999 initially granted approval to the removal of the
\nPetitioner from service. The subsequent letter dated 4th October 1999 of the EO
\nappears to have been issued on a representation made by the Petitioner at a public
\nhearing conducted by the DoE. There is no provision in the DSEA or the DSER which
\npermits the DoE to unilaterally \u201ereverse\u201f its decision to grant approval. The letter
\ndated 4th October 1999, reiterated on 17th January 2000, issued by the DoE requiring
\nthe School to reinstate the Petitioner was without the authority of law. The Petitioner
\ncan take no advantage of such orders.\n<\/p>\n
W.P. (C) No. 5772\/1998                                                         Page 8 of 9<\/span><\/p>\n
 18. For all the aforementioned reasons, this Court finds no merit in this writ petition
\nand it is dismissed as such. The interim order is vacated. The applications are disposed
\nof. In the facts and circumstances, there shall be no order as to costs.\n<\/p>\n
                                                                  S. MURALIDHAR, J.\n<\/p>\n
AUGUST 17, 2011
\nrk<\/p>\n
W.P. (C) No. 5772\/1998                                                      Page 9 of 9<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Jitender Kumar Goel vs Director, Directorate Of … on 17 August, 2011 Author: S. Muralidhar IN THE HIGH COURT OF DELHI AT NEW DELHI W. P. (C) 5772\/1998 & CMs 11029\/1998 (for stay), 2530\/1999 (for stay), 8682\/2000 (release of salary) Reserved on: July 21, 2011 Decision on: August 17, 2011 JITENDER KUMAR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-180279","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nJitender Kumar Goel vs Director, Directorate Of ... on 17 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jitender-kumar-goel-vs-director-directorate-of-on-17-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jitender Kumar Goel vs Director, Directorate Of ... on 17 August, 2011 - 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