P.K. BANSAL Vs. U.O.I. & ORS.

JUDGEMENT

(1.) By virtue of this writ petition brought under Art. 226 of the Constitution of India, the petitioner seeks quotient of orders dated Jan. 31, 1986, of respondent No. 3 and Feb. 11 1986 of respondent No. 4 and decision of Delhi School Tribunal dated Aug. 12 1987 on the ground that the same are illegal, arbitrary and without jurisdiction and void ab initio. He has also sought directions to respondents 3 & 4 for taking back the petitioner on duty with full back wages and continuity of service.

(2.) The facts, in brief, are that the petitioner was working as Head-clerk-cum-Assistant in the scale of Rs. 425-750 with effect from April 1, 1976, in Nava Hind Girls Senior Secondary School, New Rohtak Road, New Delhi, Respondent No. 4, which is a recognised aided school under Director of Education, Delhi Administration Respondent No 3, under the Delhi School Education Act, 1973 (for short 'the Act'). The petitioner was charge-sheeted on April 6, 1983. The Enquiry Officer after recording some evidence submitted her report to the Disciplinary Authority which is stated to have taken a decision that eleven charges out of thirteen stood proved A show-cause notice under Sub-rule (ii) of Rule 120(1)(d) of the Delhi School Education Rules, 1973 (for short 'the Rules') proposing the penalty of removal from service was served on the petitioner who made his representation. Ultimately, the petitioner is stated to have tendered an apology before the Disciplinary Authority. The Disciplinary Authority in its meeting held on Nov. 9, 1985, decided to drop the inquiry proceedings against the petitioner on accepting his apology and directed that the petitioner be reinstated in his job and the petitioner joined the duty on Nov. 11, 1985. It appears that the Deputy Director of Education, who received some communication from the Manager of the School, directed that the services of the petitioner be terminated. The petitioner filed an appeal against such direction under Sec. 8(3) of the Act before the Delhi School Tribunal. The appeal came to be dismissed vide order dated Aug. 10, 1987. Various other points have been raised in this writ petition which are not necessary to be referred to because on a very short point this writ petition appears to have a merit and the impugned orders are liable to be quashed.

(3.) It has been averred in the petition that there is no provision under the Delhi School Education Rules or under the Delhi School Education Act, 1973, which empowers the Director or Deputy Director of Delhi Administration to review the order of the Disciplinary Authority and pass an order terminating the services of the petitioner. Shri Y.P. Purang, Deputy Director of Education in Delhi Administration, has filed a counter affidavit opposing the writ petition. On the question whether such a power exists or not in the Director or Deputy Director of Education, reference has been made to the well-known principle that if a particular authority has a power to make an appointment then by inference the said authority would be deemed to have power to terminate the service of such an appointee. Reference has been made to various rules framed under the Act in support of the contention that the order made by the Deputy Director of Education and the decision given by the Delhi School Tribunal are valid and legal. In short, we have to see whether the provisions of the Act and the. Rules give such a power of imposing the penalty of removal from service of an employee in the aided recognised school, to the Director of Education or not ? Admittedly, no provision of the Act gives any such power to the Director of Education. Reference is only made to Rules 115 to Rule 120 by both the parties in support of their respective contentions. Rule 115 recognises the power of the Managing Committee to place an employee of a recognised private school under suspension and Rule 115(2) proviso lays down that if the suspension is to be continued beyond a period of six months, the Director may revoke the order of suspension if he is of the opinion that the same is being unreasonably prolonged. Sec. 116 provides for grant of subsistence allowance to a suspended Employee. This Sec. also gives a right to the employee to file an appeal to the Director if Managing Committee fails to pay any subsistence allowance within 30 days from the date from which the payment becomes due. These two sections incorporate the role of Director only to see that a suspended employee is not dealt with unfairly by the Managing Committee and Director can provide relief to an aggrieved employee as contemplated in the said provisions. Sec. 117 lays down the minor and major penalties which could be imposed on an employee by the employer. Rule 118 lays down the constitution of the disciplinary committee in respect of every recognised school. Rule 119 makes it clear that no order imposing a minor penalty shall be made except after informing the employee in writing of the proposal to take action against him and provides for an opportunity to the employee to make a representation against the proposed action. Rule 120 is the most important rule which deals with the procedure for imposing major penalty and it needs to be noticed in order to see whether this rule gives any power to the Director of Education for imposing any penalties on the employees of such a school. So, the same is reproduced below :