# SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL & ANR

- **Citation:** [2022] 11 S.C.R. 505
- **Court:** Supreme Court of India
- **Decided:** 2022-07-28
- **Case number:** Civil Appeal No. 5562 of 2017
- **Bench:** K. M. Joseph, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sunil-sikri-v-guru-harkrishan-public-school-anr-35680
- **Pages:** 34

## Headnote

Delhi School Education Act, 1973 - ss. 8 & 11 - Whether
there is any express power under Sections 8 and 11 to order back
wages - Held: Having regard to the words used in Section 11(6) of
the Act, it may not be appropriate to describe the provision as
conferring express power with the Tribunal to pass an award of
back wages - Therefore, the respondent is right in contending that
Section 8 read with Section 11 of the Act do not confer an express
power with the Tribunal to order back wages.
Delhi School Education Act, 1973 - ss. 8 & 11 - Delhi
Education Rules, 1973 - rr. 115, 117, 120 & 121 - Is Rule 121
ultra vires to ss. 8 and 11 - Held: The management is given the
powers coupled with the duty to hold an inquiry and to pass an
order as to whether the employee must be found to be on duty or
not and for what period during his absence - The Lawgiver has
conferred a power with the management - The use of the words "in
its opinion" indicates that the Managing Committee must apply its
mind and consider all aspects and take a view - This must,
undoubtedly, be done after putting the employee on notice - The
employee must be afforded an opportunity - The employee would
be in a position to point out that he was not employed elsewhere -
He would also be able to establish that he was fully exonerated -
The order of the appellate authority in an appeal directing
reinstatement may not be final as it can be impugned in the higher
forum - Therefore, it may not be appropriate or apposite to find
that Rule 121 is in any manner ultra vires Sections 8 and 11 of the
Act.
Delhi School Education Act, 1973 - ss. 8 & 11 - Delhi
Education Rules, 1973 - rr. 115, 117, 120 & 121 - Is there any
conflict between Sections 8 and 11 on the one hand and Rule 121
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on the other hand - Held: Rule 121 is part of a scheme, which
consists of both Sections 8 and 11 of the Act as also Rules 115(4)
and 121 - The Rules have been enacted in the same year within
eight months - The Administrator, who has authored the Rules under
Section 28 of the Act, has produced the Rules, which are found to
be in harmony with the Act - There is no inconsistency between
Section 8 read with Section 11 on the one hand and Rule 121 on the
other.
Delhi School Education Act, 1973 - ss. 8 & 11 - Delhi
Education Rules, 1973 - rr. 115, 117, 120 & 121 - Whether the
tribunal has incidental and ancillary power to direct payment of
pay and allowance on setting aside the order of termination - Held:
Rule 121(1)(a) contemplates that the Managing Committee must
consider and pass an order and provide for salary and allowances
to be paid to the reinstated employees - Tribunal is not clothed with
specific powers to grant relief of payment of the allowances -
Tribunal is also not empowered to deal with the question as to whether
the employee must be treated as on duty for the period when the
employee remains absent on account of both the absence, whether
or not, on account of suspension before the termination and
compelled absence after the penalty is imposed - The Full Bench of
the High Court in the impugned judgment declared that The Manager
Arya Samaj Girls Higher Secondary School & Anr. v. Sunrita Thakur
correctly lays down the law regarding rule 121 - No fault with the
view taken by the Full Bench of the High Court.
Dismissing the appeal, the Court
HELD: 1. The first question, whether the argument of the
respondent that Sections 8 and 11 do not contain any express
provision for ordering back wages is correct? In this context the
contention of the appellant that the law giver has created a right
of appeal before the Tribunal and it is to act armed with the wide
powers of the court of appeal under the Code of Civil Procedure.
As far as Section 8(2) is concerned, the provision proscribes
dismissal, removal or reduction in rank or the termination
otherwise of an employee except with the prior approval of the
Director. This is indeed to safeguard the

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 [2022] 11 S.C.R. 505
505
SUNIL SIKRI
v.
GURU HARKRISHAN PUBLIC SCHOOL & ANR.
(Civil Appeal No. 5562 of 2017)
JULY 28, 2022
[K. M. JOSEPH AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Delhi School Education Act, 1973 - ss. 8 & 11 - Whether
there is any express power under Sections 8 and 11 to order back
wages - Held: Having regard to the words used in Section 11(6) of
the Act, it may not be appropriate to describe the provision as
conferring express power with the Tribunal to pass an award of
back wages - Therefore, the respondent is right in contending that
Section 8 read with Section 11 of the Act do not confer an express
power with the Tribunal to order back wages.
Delhi School Education Act, 1973 - ss. 8 & 11 - Delhi
Education Rules, 1973 - rr. 115, 117, 120 & 121 - Is Rule 121
ultra vires to ss. 8 and 11 - Held: The management is given the
powers coupled with the duty to hold an inquiry and to pass an
order as to whether the employee must be found to be on duty or
not and for what period during his absence - The Lawgiver has
conferred a power with the management - The use of the words "in
its opinion" indicates that the Managing Committee must apply its
mind and consider all aspects and take a view - This must,
undoubtedly, be done after putting the employee on notice - The
employee must be afforded an opportunity - The employee would
be in a position to point out that he was not employed elsewhere -
He would also be able to establish that he was fully exonerated -
The order of the appellate authority in an appeal directing
reinstatement may not be final as it can be impugned in the higher
forum - Therefore, it may not be appropriate or apposite to find
that Rule 121 is in any manner ultra vires Sections 8 and 11 of the
Act.
Delhi School Education Act, 1973 - ss. 8 & 11 - Delhi
Education Rules, 1973 - rr. 115, 117, 120 & 121 - Is there any
conflict between Sections 8 and 11 on the one hand and Rule 121
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on the other hand - Held: Rule 121 is part of a scheme, which
consists of both Sections 8 and 11 of the Act as also Rules 115(4)
and 121 - The Rules have been enacted in the same year within
eight months - The Administrator, who has authored the Rules under
Section 28 of the Act, has produced the Rules, which are found to
be in harmony with the Act - There is no inconsistency between
Section 8 read with Section 11 on the one hand and Rule 121 on the
other.
Delhi School Education Act, 1973 - ss. 8 & 11 - Delhi
Education Rules, 1973 - rr. 115, 117, 120 & 121 - Whether the
tribunal has incidental and ancillary power to direct payment of
pay and allowance on setting aside the order of termination - Held:
Rule 121(1)(a) contemplates that the Managing Committee must
consider and pass an order and provide for salary and allowances
to be paid to the reinstated employees - Tribunal is not clothed with
specific powers to grant relief of payment of the allowances -
Tribunal is also not empowered to deal with the question as to whether
the employee must be treated as on duty for the period when the
employee remains absent on account of both the absence, whether
or not, on account of suspension before the termination and
compelled absence after the penalty is imposed - The Full Bench of
the High Court in the impugned judgment declared that The Manager
Arya Samaj Girls Higher Secondary School & Anr. v. Sunrita Thakur
correctly lays down the law regarding rule 121 - No fault with the
view taken by the Full Bench of the High Court.
Dismissing the appeal, the Court
HELD: 1. The first question, whether the argument of the
respondent that Sections 8 and 11 do not contain any express
provision for ordering back wages is correct? In this context the
contention of the appellant that the law giver has created a right
of appeal before the Tribunal and it is to act armed with the wide
powers of the court of appeal under the Code of Civil Procedure.
As far as Section 8(2) is concerned, the provision proscribes
dismissal, removal or reduction in rank or the termination
otherwise of an employee except with the prior approval of the
Director. This is indeed to safeguard the right of the employee.
Section 8(3) gives the right to an employee limited under the
statute to one who has been dismissed, removed or reduced in
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rank to file an appeal before the Tribunal constituted under
Section 11. We have already noticed the view taken by this court
in Shashi Gaur that any employee whose service is terminated
except as declared therein and not limited to what is provided in
the statute can challenge the termination before the Tribunal
constituted under Section 11. The Tribunal is to consist of a person
who has held the Office as District Judge or any equivalent Judicial
Officer. Any indication about power of the Tribunal is to be found
in Sections 11(5) and 11(6). Section 11(5) purports to empower
the Tribunal to regulate its own procedure. Section 11(6) is
perhaps more apposite and declares that the Tribunal for the
purpose of disposal of an appeal has the power vested in the
court of appeal by the Code of Civil Procedure and shall also
have the power to stay operation of the order. We may incidentally
also notice that Rule 120(3) declares that an employee of a
recognised private school who is aggrieved by any order imposing
on him the penalty of compulsory retirement or any minor penalty
may appeal to the Tribunal. [Paras 12 & 14][524-A-B, E-H; 525A-B]
2. Reliance placed on Section 107 of the CPC, if inspiration
is sought to be drawn to the emphasis supplied to the words "may
decide the case finally", to find that there is express power to
decide on the question of emoluments as well, does not appeal to
us. The purport of the provisions in Section 107 is to only declare
that the Appellate Court has a wide range of options, which include
the power to finally decide the case. This should be understood
to only mean that there is also a power to remand the case or to
grant other relief, which may not result in the final disposal of the
case. This cannot be understood as meaning that the Appellate
Court has the express power to grant the relief of back-wages or
to decide upon the question as to whether the period of absence
should be treated as duty. This is the power coupled with a duty
which is squarely vested with the Management. The right of appeal
under Section 8 is given with respect to the order of termination
which has been interpreted by this Court in Shashi Gaur to include
all kinds of termination except for termination which occurs by
efflux of time. The argument of the appellant is that the disciplinary
authority is to be treated as the original authority and, therefore,
the tribunal in terms of Section 107(2) of the Code of the Civil
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Procedure must be likened to an Appellate Court and what is
more, the disciplinary authority must be equated with the Trial
Court. Therefore, there is power to award back wages. The
comparison between an Appellate Court and the Trial Court and
the vesting of powers on the Appellate Court in terms of the
power available to the Trial Court may not be an appropriate and
apposite analogy when it comes to the tribunal considering an
appeal against the order of disciplinary authority under Section
8. The tribunal will no doubt have the power to pronounce on the
legality of the original order, the impugned order of termination
and also order reinstatement. The events subsequent to the
termination which have been recognized as relevant in cases
including Deepali Gundu (supra) which decision has been relied
upon by the appellant himself may not strictly be the subject matter
of the appeal for reasons, which we will more elaborately dwell
upon. We repel the argument of the appellant.[Para 16][525-CH; 526-A-B]
3. The contention of the appellant is that the respondent
cannot be permitted to rely upon Rule 121 for the reason that no
departmental appeal is contemplated under the Rules and what
is contemplated is only an appeal to the Tribunal. We are unable
to accept the contention of the appellant. What Rule 54
undoubtedly contemplates is a re-instatement on the basis of an
order passed in an appeal or other remedy under the Service
Rules. We may describe them as a departmental remedy.
Fundamental Rule 54 has been found inapplicable in Devendra
Pratap Narain Rai Sharma when it was the civil court which
declared the dismissal as non est for non-compliance with natural
justice. Rule 121, in fact, specifically contemplates re-instatement
of the employee whose services are terminated on the basis of
the decision in an appeal and what is most important is the very
premise of the re-instatement is the decision in an appeal and it
is beyond dispute that the lawgiver has contemplated an appeal
only to the Tribunal constituted under Section. In other words,
unlike the position in Devendra Pratap Narain Rai Sharma, where
the court had to deal with the decree of a civil court, which was
outside the scope of Rule 54, in a case covered by Rule 121, the
Managing Committee is to act thereunder only when there is reinstatement necessitated by an order of the Tribunal under Section
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11 in an appeal. In other words, a departmental appeal under
fundamental Rule 54 is to be conflated to an appeal under Section
11 in the case of Rule 121.[Para 24][530-B-F]
4. The next question which would arise is whether there is
merit in the argument of the appellant that Rule 121 is to be
found as ultra vires the Section 11 of the Act. It is not in dispute
that the appellant has not laid any challenge to Rule 121. However,
he would contend that this Court is armed with necessary power,
even in the absence of any challenge, to hold that Rule 121 is
ultra vires. What Rule 121 provides for, is the authority with the
Managing Committee to consider and make two specific orders.
Now the question will arise is, at what stage is the said orders to
be passed and what is the nature of the order to be passed apart
from how it is to be passed. The question will further arise as to
whether it is a discretionary power or whether the law
contemplates a mandatory duty. In our view, Rule 121 enshrines
the principle of power coupled with duty. This conclusion is
inevitable on account of two reasons. In the first place, the Rulemaker has employed language that the Managing Committee
'shall' consider and pass specific order. The use of the word 'shall'
is crucial. It would require strong circumstances provided by the
context, the purpose of the law, the consequences that would
follow to dilute the mandatory consequences that ordinarily flow
from the deliberate choice of the word 'shall'. Far from the context
providing any material to the contrary, the setting of Rule 121,
the purpose of the Rule and the consequences of not giving a
mandatory flavour overwhelmingly indicate that the lawgiver has
made it an inflexible duty on the part of the Managing Committee
to pass an order if the elements declared in Rule 121 are present.
In other words, where an employee, who has been dismissed,
removed or compulsory retired challenges his termination in an
appeal which must be understood as an appeal to the Tribunal
constituted under Section 11 of the Act and he is re- instated,
then it is not merely an enabling provision which undoubtedly it
is, in the sense that it confers a power on the Managing
Committee but we would go further and hold that it becomes the
duty of the Managing Committee to consider and pass an order.
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Any other view would put the employee at the mercy of the
employer.[Para 25 & 27][530-F-H; 531-G-H; 532-A-E]
5. Now coming to what would constitute the subject matter
of the order to be passed, Rule 121(1)(a) contemplates that the
Managing Committee must consider and pass an order and
provide for salary and allowances to be paid to the reinstated
employees. The salary and allowances is to be provided for the
period the employee remained absent from duty. This would
include his absence from duty caused by his suspension prior to
his dismissal, removal or compulsory retirement. The next
specific matter which should engage the attention of the Managing
Committee is as to whether the reinstated employees must be
treated as on duty during the period of absence. Rule 121(2)
confers a power with the Managing Committee to consider the
question as to whether 'in its opinion', the employee has been
fully exonerated. The plain meaning of this provision is that when
the order passed by the Tribunal directing reinstatement, is
implemented, the Managing Committee is duty bound to look
into the proceeding culminating in the order of the Tribunal and
find whether the Tribunal has fully exonerated the employee in
question. If it is so found, the employee is to be paid full salary
and allowances. The proviso to Rule 121(2) empowers the
Managing Committee to come to a conclusion that the employee
is guilty of delaying the proceedings instituted against him. It
can be done only after giving a reasonable opportunity to make a
representation, and after considering the version of the employee.
It can direct that the employee need be paid only such allowances
as it finds supported by reasons in writing for the period of such
delay. This is subject to the limitations which are carved out in
Rule 121(3). A perusal of Rule 121 would reveal that the power
coupled with the duty will come into play only after the order of
the Tribunal directing reinstatement is accepted by the
Management. This we say for the reason that Rule 121 speaks
about the employee who had been dismissed, removed or
compulsory retired being reinstated by the Management. Of
course, Rule 121 would also apply if but for his retirement or
superannuation, the employee would have been reinstated. Both
these consequences will follow only if the order of reinstatement
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of the Tribunal becomes final. In other words, if the order of the
Tribunal is under challenge and the stage has not arrived where
the Managing Committee actually reinstates or would have
reinstated but for his retirement, Rule 121 would not apply.[Para
28 & 29][532-E-H; 533-A-E]
6. Section 8(3) as also Rule 120(3) provide for a right of
appeal which right must be understood in the light of the law
declared by this Court as expanded to include all cases of
termination except termination brought about by the efflux of
time. [See Shashi Gaur judgment]. The appeal is not filed against
the order of a Trial Court as such. No doubt, the power available
to the civil court under the Code of Civil Procedure are showered
upon the Tribunal. The Tribunal is not clothed with specific powers
to grant relief of payment of the allowances. The Tribunal is also
not empowered to deal with the question as to whether the
employee must be treated as on duty for the period when the
employee remains absent on account of both the absence, whether
or not, on account of suspension before the termination and
compelled absence after the penalty is imposed. The appellant
relies on the judgment of Deepali Gundu . One of the questions,
which would fall for consideration, is the question as to whether
the employee was gainfully employed elsewhere during the period
of compelled absence. The Tribunal is called upon to decide the
legality and correctness of the penalty. It is certainly entitled to
act as an appellate body and come to the conclusion that there
was no basis either for reasons which are technical or on the
basis that no case is made out even on merits to impose the
penalty against the employee. Should the Tribunal set aside the
penalty covered by Rule 121, it is always open to the management
to take recourse to remedies open to it. The order of reinstatement does not become final. The employee remains absent
undoubtedly on the basis of the order obtained by the
Management in the superior court. What is relevant is the actual
re-instatement under Rule 121 which would set the stage for
holding the inquiry thereunder. The inquiry, it must be noticed is
not merely limited to the question of pay and allowances. The
management is given the powers coupled with the duty to hold
an inquiry and to pass an order as to whether the employee must
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be found to be on duty or not and for what period during his
absence. The Lawgiver has conferred a power with the
management. The use of the words "in its opinion" indicates that
the Managing Committee must apply its mind and consider all
aspects and take a view. This must, undoubtedly, be done after
putting the employee on notice. The employee must be afforded
an opportunity. The employee would be in a position to point out
that he was not employed elsewhere. He would also be able to
establish that he was fully exonerated. We have noticed that the
order of the appellate authority in an appeal directing reinstatement may not be final as it can be impugned in the higher
forum. Therefore, it may not be appropriate or apposite to find
that Rule 121 is in any manner ultra vires Sections 8 and 11 of the
Act. Properly appreciated and implemented, the provisions of
the parent Act and the subordinate legislation can be
harmonized.[Para 31][534-B-H; 535-A-C]
7. There is express power with the Managing Committee
to be exercised at a particular point of time which arrives when
re-instatement is effected or re-instatement would have followed
but for retirement of the employee. Rule 121, in our view, while
being an enabling provision must also be interpreted as a case of
power coupled with a duty. The power must be exercised promptly
and without fail by the Managing Committee immediately following
the re-instatement of the employee which would be the result of
any voluntary order of re- instatement or re-instatement, which
is inevitable following the binding orders of the court. The
management is duty bound to conduct an inquiry to pass the orders
contemplated under Rule 121(1)(a) and (b). The presence of the
words "in its opinion" do indicate a certain amount of authority
with the Managing Committee. This however, is not to be
confused with any right to act with arbitrariness or caprice. In
other words, it is duty bound to look into all the inputs including
the orders which are finally passed which led to the re-instatement
of the employee. It is duty bound to act fairly. The question about
the employee being gainfully employed and the amount received
till the stage of reinstatement, is aptly gone into under Rule 121.
After putting the employee on notice and giving him an
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opportunity, the Managing Committee must provide for the
matters which are provided therein, namely Rule 121.[Para
32][535-D-H]
8. The power coupled with duty takes life not only upon
there being an order of reinstatement in an appeal but upon the
Managing Committee proceeding to implement the direction to
reinstate, issued by the Tribunal. If the power is to be exercised
by the Tribunal apart from the fact that there would be situations,
such as, contemplated in Rule 115 of the Rules, which would
render both the Rule and right given to the Management under
the said Rule, meaningless and futile, it would involve the Tribunal
being called upon to exercise the duty and the power, which is
best exercised by the Managing Committee. Rule 121 is part of
a scheme, which consists of both Sections 8 and 11 of the Act as
also Rules 115(4) and 121. The Rules have been enacted in the
same year within eight months, as noticed by the High Court.
The Administrator, who has authored the Rules under Section
28 of the Act, has produced the Rules, which are found to be in
harmony with the Act. We are unable to cull out any inconsistency
between Section 8 read with Section 11 on the one hand and Rule
121 on the other. While we are not maintaining for a moment that
the Court is rendered powerless or not bound by a duty to unravel
the mind of the Legislature and strike at a subordinate Legislation,
where it is ultra vires, we do not find any scope for applying the
said principle in the facts. In this regard, while we are conscious
of the view taken that subordinate legislation cannot control the
interpretation to be placed on the parent enactment, it is not the
same as holding irrespective of irreconcilable differences between
the parent enactment and the subordinate legislation not been
present, full play should not be given to the latter. As far as the
question of the delay in the employee getting relief on the
interpretation placed by the Full Bench in the impugned
Judgment, we are of the view that, though attractive, the argument
must fail. While we would not be loath to place an interpretation,
which is in agreement with the appellant's appeal to us, we feel
that for the reasons, which we have given, the argument of the
appellant is in the teeth of a scheme, which is intended to be
worked in accordance with a value judgement, which reaches
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justice to both sides. Undoubtedly, we make it clear that there
should not be any room for needless and unjustifiable delay on
the part of the Management in concluding the proceedings under
Rule 121. This is different from saying, however, that such
proceedings can be dispensed with or the Tribunal can or should
be burdened with the task, which is aptly and appropriately timed
and positioned to be performed by the Managing Committee.[Para
34-36][536-C-H; 537-A-C]
9. No doubt, the appellant has a case that in view of the fact
in Shashi Gaur (supra), this Court enlarged the scope of the
appellate remedy under Section 11 to cases of termination other
than, what is provided in the Rule 121 and, what is more, Section
8 itself. He would submit that as Rule 121 is not applicable to
cases which are not enumerated in Rule 121, it would create a
situation where, in cases of termination not covered by Rule 121,
the Tribunal would have the power to grant back-wages. Whereas
the Tribunal would have the said power, in cases not covered by
Rule 121. This creates an anomalous position, it is contended. In
the impugned Judgment, the High Court has proceeded to hold
that in view of the expanded right of appeal based on the
Judgment of this Court in Shashi Gaur (supra), the Managing
Committee would have the power to make the specific order in
respect of any termination in the light of the Judgment of this
Court in Shashi Gaur (supra). In view of the interpretation placed
by this Court creating the situation, by which an appeal is
permitted against an order of termination, other than specifically
mentioned in, both Section 8(3) and Rule 121, This court is not
in a position to find fault with the view taken by the Full
Bench.[Para 38 & 39][537-D-G; 538-F-G]
Shashi Gaur v. NCT of Delhi and others (2001) 10 SCC
445 - relied on.
Bharathidasan University and another v. All-India
Council for Technical Education and others (2001) 8
SCC 676 : [2001] 3 Suppl. SCR 253; State of A.P. v. P.
Narasimha and another (1994) 4 SCC 453; Karnataka
Bank Ltd. v. State of Andhra Pradesh and others (2008)
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2 SCC 254 : [2008] 1 SCR 986; Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya
(D.Ed.) and others (2013) 10 SCC 324 : [2013] 9
SCR 1; Devendra Pratap Narain Rai Sharma v. State
of Uttar Pradesh and others AIR 1962 SC 1334 : [1962]
1 Suppl. SCR 315; Union of India v. Madhusudan
Prasad (2004) 1 SCC 43 : [2003] 4 Suppl. SCR 1026;
Smt. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC
1621 : [1963] 1 SCR 778; Shanmugam v. Commissioner
for Registration (1962) 3 LR 200 PC - referred to.
Case Law Reference
[2001] 3 Suppl. SCR 253
referred to
Para 8
(1994) 4 SCC 453
referred to
Para 8
[2008] 1 SCR 986
referred to
Para 8
(2001) 10 SCC 445
relied on
Para 8
[2013] 9 SCR 1
referred to
Para 8
[1962] 1 Suppl. SCR 315
referred to
Para 8
[2003] 4 Suppl. SCR 1026
referred to
Para 8
[1963] 1 SCR 778
referred to
Para 9
CIVIL APPELLATE JURISDICTION : Civil Appeal No.5562
of 2017.
From the Judgment and Order dated 14.05.2015 of the High Court
of Delhi at New Delhi in Writ Petition (C) No.8058 of 2011.
Anuj Aggarwal, Vipin Kumar Jai, Advs. for the Appellant.
A. P. S. Ahluwalia, Sr. Adv., Abinash Kumar Mishra, Ms.
Aakanksha Kaul, Bhakti Vardhan Singh, Aman Shukla, B. V. Balaram
Das, B. Krishna Prasad, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. The Delhi School Education Act 1973 (hereinafter referred to
as "the Act") was promulgated on 9th April, 1973. In the very same year
on the 31st December, 1973, the Delhi School Education Rules, 1973
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were promulgated. The said Rules are referred to as "the Rules". Chapter
IV of the Act deals with the terms and conditions of Service of Employees
of recognised Private Schools. What is relevant to the lis are Sections 8
and 11 of the Act, and they read as follows:
"8. Terms and conditions of service of employees of recognised
private schools.-
(1) The Administrator may make rules regulating the minimum
qualifications for recruitment, and the conditions of service, of
employees of recognised private schools:
Provided that neither the salary nor the rights in respect of
leave of absence, age of retirement and pension of an employee
in the employment of an existing school at the commencement of
this Act shall be varied to the disadvantage of such employee:
Provided further that every such employee shall be entitled
to opt for terms and conditions of service as they were applicable
to him immediately before the commencement of this Act.
(2) Subject to any rule that may be made in this behalf, no employee
of a recognised private school shall be dismissed, removed or
reduced in rank nor shall his service be otherwise terminated
except with the prior approval of the Director.
(3) Any employee of a recognised private school who is dismissed,
removed or reduced in rank may, within three months from the
date of communication to him of the order of such dismissal,
removal or reduction in rank, appeal against such order to the
Tribunal constituted under section 11.
(4) Where the managing committee of a recognised private school
intends to suspend any of its employees, such intention shall be
communicated to the Director and no such suspension shall be
made except with the prior approval of the Director:
Provided that the managing committee may suspend an
employee with immediate effect and without the prior approval of
the Director if it is satisfied that such immediate suspension is
necessary by reason of the gross misconduct, within the meaning
of the Code of Conduct prescribed under section 9, of the
employee:
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Provided further that no such immediate suspension shall
remain in force for more than a period of fifteen days from the
date of suspension unless it has been communicated to the Director
and approved by him before the expiry of the said period.
(5) Where the intention to suspend, or the immediate suspension
of an employee is communicated to the Director, he may, if he is
satisfied that there are adequate and reasonable grounds for such
suspension, accord his approval to such suspension.
11. Tribunal. -
(1) The Administrator shall, by notification, constitute a Tribunal,
to be known as the "Delhi School Tribunal", consisting of one
person:
Provided that no person shall be so appointed unless he has
held office as a District Judge or any equivalent judicial office.
(2) If any vacancy, other than a temporary absence, occurs in the
office of the presiding officer of the Tribunal, the Administrator
shall appoint another person, in accordance with the provisions of
this section, to fill the vacancy and the proceedings may be
continued before the Tribunal from the stage at which the vacancy
is filled.
(3) The Administrator shall make available to the Tribunal such
staff as may be necessary in the discharge of its functions under
this Act.
(4) All expenses incurred in connection with the Tribunal shall be
defrayed out of the Consolidated Fund of India.
(5) The Tribunal shall have power to regulate its own procedure
in all matters arising out of the discharge of its functions including
the place or places at which it shall hold its sittings.
(6) The Tribunal shall for the purpose of disposal of an appeal
preferred under this Act have the same powers as are vested in a
court of appeal by the Code of Civil Procedure, 1908 (5 of 1908)
and shall also have the power to stay the operation of the order
appealed against on such terms as it may think fit."
2. Next, we may notice the provisions in the Rules. Rule 115
deals with suspension. We need notice only Rule 115(1) and 115(4),inter
alia:
"115. Suspension
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL
& ANR. [K. M. JOSEPH, J.]
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(1) Subject to the provision of sub-sections (4) and (5) of section
8, the managing committee may place an employee of a recognised
private school, whether aided or not, under suspension: -
a) where a disciplinary proceeding against such employee is
contemplated or pending; or
(b) where a case against him in respect of any criminal offence is
under investigation or trial; or
(c) where he is charged with embezzlement; or
(d)where he is charged with cruelty towards any student or other
employee of the school; or
(e)where he is charged with misbehaviour towards any parent,
guardian, student or employee of the school; or
(f) where he is charged with the breach of any other code of
conduct.
xxx
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xxx
(4) Where a penalty of dismissal, removal or compulsory retirement
from service imposed upon an employee is set aside or rendered
void, in consequence of or by, a decision of a court of law or of
the Tribunal; and the disciplinary authority on a consideration of
the circumstances of the case decides to hold further inquiry against
such employee on the same allegations on which the penalty of
dismissal, removal or compulsory retirement was originally
imposed, such employee shall be deemed to have been placed
under suspension by the managing committee from the date of
original order of dismissal, removal or compulsory retirement and
shall continue to remain under suspension until further orders:
Provided that no such further enquiry shall be ordered unless it is
intended to meet a situation where the court has passed an order
purely on technical grounds without going into the merits of the
case."
3. Rule 117 deals with penalties and disciplinary authority. Under
the category of major penaltiesare reduction in rank, compulsory
retirement, removal from service and dismissal from service. Rule 120
deals with procedure for imposing major penalty. Rule 121 which is at
the centre stage of the controversy provides as follows:
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"121. Payment of pay and allowances on reinstatement -
(1) When an employee who has been dismissed, removed or
compulsorily retired from service is reinstated as a result of appeal
or would have been so reinstated but for his retirement on
superannuation while under suspension preceding the dismissal,
removal or compulsory retirement, as the case may be, the
managing committee shall consider and make a specified order: -
(a) with regard to the salary and allowances to be paid to the
employee for the period of his absence from duty, including the
period of suspension preceding his dismissal, removal or
compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as the period
spent on duty.
(2) Where the managing committee is of opinion that the employee
who had been dismissed, removed or compulsorily retired from
service had been fully exonerated, the employee shall be paid the
full salary and allowances to which he would have been entitled
had he not been dismissed, removed or compulsorily retired from
service or suspended prior to such dismissal, or compulsory
retirement from service, as the case may be:
Provided that where the managing committee is of opinion
that the termination of the proceedings instituted against the
employee had been delayed due to reasons directly attributable to
the employee, it may, after giving a reasonable opportunity to the
employee to make representations and after considering the
representation, if any, made by the employee, direct, for reasons
to be recorded by it in writing, that the employee shall he paid for
the period of such delay only such proportion of the salary and
allowances as it may determine.
(3) The payment of allowances shall be subject to all other
conditions under which Midi allowances are admissible and the
proportion of the full salary and allowances determined under the
proviso to sub-rule (2) shall not be less than the subsistence
allowance and other admissible allowances."
4. Having set out the statutory framework, the time is now ripe to
notice the relevant facts which led to the litigation. We may notice the
facts as set out in the impugned judgment:
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL
& ANR. [K. M. JOSEPH, J.]
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"The second respondent was appointed as a PGT (Chemistry) by
the Guru Harkishan Public School, admittedly a minority institution,
on July 02, 1984. As per the school, on January 22, 1994 the
respondent No.2 not only misbehaved but even molested a newly
married employee of the school in full public view and when the
tormented lady complained to the principal of the school, on being
summoned the said respondent not only profusely apologized but
to save his honour and respect so that no stigma was cast tendered
a voluntary resignation on January 22, 1994 and requested the
principal of the school to accept the same forthwith. The principal
forwarded the letter of resignation to the Chairperson of the
Managing Committee of the School who accepted the same; and
thus ceased the employer-employee relationship between the
school and the second respondent. The respondent No.2 disputes
the version and claims that the resignation was the result of
coercion and that the letter of resignation was withdrawn the next
day on January 23, 1994 before it could be acted upon. He also
questions the competence of the Chairperson of the Managing
Committee of the school to accept the same. It is in this backdrop
that appeal No.14/1994 fell in the lap ofthe Delhi School Education
Tribunal for decision. Unfortunately, the appeal came to be decided
after 17 years of it being filed. Vide order dated August 18, 2011
the Tribunal held that the letter of resignation submitted by the
said respondent was withdrawn before it was accepted and thus
could not be acted upon. The Tribunal has also held that the
Chairperson of the Managing Committee was not the Competent
Authority to accept the resignation. As a result, the termination of
the second respondent's service has been held to be illegal. The
said respondent has been directed to be reinstated in service: 50%
back wages have been directed to be paid. The writ petition
challenges the award granting 50% back wages."
5. The Learned Single Judge noting the conflicting opinions
between two learned Judges referred the matter to the Larger Bench.
The point of controversy is this. The writ petitioner contended that the
Tribunal did not have the power to decide on the issue of back wages.
The said question is squarely covered by provisions of Rule 121. Under
Rule 121, it is the Managing Committee, which is to take a decision.
6. The Full Bench, by the impugned Judgement, proceeded to
answer the reference in the following manner:
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"45. We answer the reference as under: -
(i) The law declared by the learned Single Judge of this Court in
the decision reported as 43 (1991) DLT 139 The Manager Arva
Samaj Girls Higher Secondary School & Anr. Vs. Sunrita
Thakur correctly lays down the 1aw concerning the interpretation
of Rule 121 of the Delhi School Education Rules, 1973 and the
view taken by the learned Single Judge in the decision dated
January 17, 2006 in W.P.(C) No.7617/2000 The Managing
Committee Heera Lal Jain Vs. Shri Chander Gupt Sharma &
Ors. is overruled.
(ii) Rule 121 of the Delhi School Education Rules, 1973 would
apply to minority unaided schools recognized under the Delhi School
Education Rules, 1973."
7. The appellant before us is the second respondent in the writ
petition. We have heard learned counsel for the appellant Anuj Agrawal
and Shri A.P.S. Ahluwalia, learned Senior Counsel appearing on behalf
of the respondent.
8. The appellant would dub Rule 121 as ultra vires. He would
point out that it would be open to this Court to pronounce the Rule
unconstitutional despite the fact that the Rule has not been challenged
before the High Court. In this context, he relies upon the Judgment of
this Court in Bharathidasan University and another v. All-India
Council for Technical Education and others1. It is the appellant's further
case that the Tribunal under Section 7 has the same power as are vested
in the court of appeal under the Code of Civil Procedure. The Appellate
Court has the power as the court of original jurisdiction possesses.It is
pointed out that the court of original jurisdiction is the Managing committee,
and therefore, the power of the Tribunal extends to awarding back wages.
It is further contended that the Tribunal already has incidental and ancillary
powers to make the express statutory powers effective.He relies upon
the judgment of this Court in State of A.P. v. P. Narasimha and another2
and Karnataka Bank Ltd. v. State of Andhra Pradesh and others3.
The Lawgiver intended to create a Specialised Tribunal.Being a
Specialised Tribunal, it has all the power of an Appellate Court. The
1 (2001) 8 SCC 676
2 (1994) 4 SCC 453
3 (2008) 2 SCC 254
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statutory Rule cannot be inconsistent or repugnant with the parent Act.
Rule 121 is confined to cases of dismissal, removal and compulsory
retirement. In Shashi Gaur v. NCT of Delhi and others4, this court
has taken the view that an aggrieved employee can challenge all kinds
of termination of service. If that is so, in cases not falling within the
ambit of Rule 121, it would empower the Tribunal to award back wages,
whereas it would be prevented from doing so in regard to cases falling
under Rule 121. It is contended that the Tribunal has the power to award
back wages. The Tribunal must have the power to decide the issue of
back wages in all cases in view of the factors and guidelines laid down
in Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others5. The correctness of the impugned
judgment in regard to the finding that Rule 121 applies to all institutions,
including minority institutions, is not questioned. It is contended that
Fundamental Rule 54 applies only to a departmental appeal. In the case
of a complaint about subsistence allowance, a departmental appeal lies;
otherwise, there is no provision for any departmental appeal.The appellant
relies on Devendra Pratap Narain Rai Sharma v. State of Uttar
Pradesh and others6 and Union of India v. Madhusudan Prasad7.
9. Per contra, the contention of the respondent is as follows,inter
alia. The Tribunal under Section 8 read with Section 11 of the Act does
not possess any express power. Reliance is placed on the judgment of
this Court in Smt.