Saturday, September 2, 2023

Termination of service of teachers working in a private unaided school without obtaining prior approval from the Director of Education is bad in law – Delhi High Court

18.08.2023

Delhi High Court

In the year 2014, Dapinder Kaur and Komal Panwar were appointed as Primary Teachers by DAV Public School, Masjid Moth, Delhi. DAV Public School is a private recognized unaided school in Delhi and runs under the aegis of DAV College Trust and Managing Society. DAV Public School is recognized by the Municipal Corporation of Delhi.

In the year 2016, both the teachers were confirmed by the school. In the year 2018, the service of both the teachers were illegally terminated.

Being aggrieved by the illegal termination of service, the teachers filed Appeals [Appeal No. 33/2018 and Appeal No. 43/2018] before the Delhi School Tribunal, Delhi. The Delhi School Tribunal vide Order dated 28.02.2019, allowed the Appeals and directed the DAV Public School to reinstate the teachers.

DAV Public School, instead of implementing the Order dated 28.02.2019, as passed by the Delhi School Tribunal, challenged the same by filing the writ petitions [W.P. (C) No. 3352/2019 and W.P. (C) No. 3362/2019] before the Hon’ble Delhi High Court.

Vide Order dated 18.08.2023, the Hon’ble Delhi High Court dismissed the writ petitions, as filed by the DAV Public School, and upheld the Order dated 28.02.2019, passed by the Delhi School Tribunal. The directive paragraphs of the Order dated 28.02.2019 are reproduced below for ready reference: -

24. The language of the above said provision clearly lays down that a private school, whether aided or unaided is required to formulate a disciplinary committee. The said provision is also supplemented by the Rule 120 of the DSEAR, which mandates that a major penalty cannot be imposed upon an employee by the school prior to an inquiry conducted by the disciplinary committee in a manner specified under the said Rule. The aforementioned Rule is reproduced hereunder:

“120. Procedure for imposing major penalty-

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28. Furthermore, the Hon’ble Supreme Court in Raj Kumar vs. Director of Education and Others, (2016) 6 SCC 541, has held that the termination of an employee, will be bad in law if it is obtained without prior approval of the Director of Education. Section 8 (2) of DSE, is a procedural safeguard enacted by the legislature with a clear intent to provide security of tenure to employees and to regulate the terms and conditions of their employment. It further ensures that an employee is not terminated in an arbitrary or unreasonable manner without the approval of the Director, even by a private school. The relevant paragraphs of the aforementioned judgement are reiterated herein:

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29. In the instant case, this Court has taken into consideration the facts and documents placed on record and observes that the service of respondent teacher is clearly recorded as that of a permanent employee by the petitioner school. Furthermore, the observation laid down by the learned Tribunal are also been considered, wherein, the learned Tribunal placed reliance on the counter affidavit of the petitioner school in the Appeal bearing no. 44/2018, which stated that the petitioner school accepted the respondent teacher as a permanent employee w.e.f. 9th August 2015. Thus, proving that the respondent teacher was terminated in contravention of the provisions of Rule 118 and 120 of the DSEAR. Therefore, this Court is of the view that the respondent teacher was a permanent employee of the petitioner School.

 

30. Now, delving into a peculiar question raised in this petition, in regard to the entitlement of back wages. This Court is of the view that based on the observations mentioned herein above, the respondent teacher is entitled to back wages as directed vide the impugned order dated 28th February 2019, passed by the learned Tribunal. The Hon’ble Supreme Court in the judgment of Sunil Sikri vs Guru Harkrishan Public School & Anr., 2022 SCC OnLine SC 926, held that when an appeal to the Delhi School Tribunal is filed under Section 11 of the DSE, and the employee is reinstated, then the provision is not merely an enabling one since it confers upon the Managing Committee of the school, a power that becomes a duty to consider and any other view would put the employee at the mercy of the employer, which is not the intent of the DSE.

31. Therefore, in light of the observations made by this Court in the foregoing paragraphs, it is held that the respondent teacher is entitled to reinstatement as held by the learned Tribunal. This Court finds no infirmity in the impugned order passed by the learned Tribunal and hence, upholds the impugned order 28th February 2019, passed by the learned Tribunal in Appeal bearing No. 44/2018.

32. In view of the above discussion of facts and law, this Court discerns no material in the propositions put-forth by the petitioner school and thereby, the instant writ petition is dismissed.

33. Accordingly, pending applications, if any, also stand dismissed.

 

[DAV Public School & Anr. Vs. Dapinder Kaur & Anr., W.P. (C) No. 3352/2019, decided on – 18.08.2023; DAV Public School & Anr. Vs. Komal Panwar, W.P. (C) No. 3362/2019, decided on – 18.08.2023]

 

https://advocateanujaggarwal.com/home.php

 

https://advocateanujaggarwal.com/advocateadmin/img/Finalist/2023090116935696072023%20Del%20Single%20-%20DAPINDER%20KAUR.pdf

 

https://advocateanujaggarwal.com/advocateadmin/img/Finalist/2023090116935696402023%20Del%20Single%20-%20KOMAL%20PANWAR.pdf

 

Anuj Aggarwal

Advocate

D-26/A, First Floor, Jangpura Extension,

New Delhi - 110014

 

483, Block-2, Lawyers Chambers,

Delhi High Court, New Delhi-110003

Mobile – 9891403206

Landline – 011 - 35554905

Email – anujaggarwal1984@gmail.com

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