SUNIL SIKRI VERSUS GURU HARKRISHAN PUBLIC SCHOOL & ANR

SUNIL SIKRI VERSUS GURU HARKRISHAN PUBLIC SCHOOL & ANR


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5562 OF 2017
SUNIL SIKRI … APPELLANT(S)
VERSUS
GURU HARKRISHAN PUBLIC SCHOOL & ANR. … RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. The Delhi School Education Act 1973 (hereinafter
referred to as “the Act”) was promulgated on 9
th April,
1973. In the very same year on the 31st December, 1973,
the Delhi School Education Rules, 1973 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:
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“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:
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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:
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.
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(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
(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
5
(f) where he is charged with the breach of any
other code of conduct.
xxx xxx 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 penalties are
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
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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:
“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
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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
of the 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.
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6. The Full Bench, by the impugned Judgement,
proceeded to answer the reference in the following
manner:
“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
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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 statutory Rule cannot be
inconsistent or repugnant with the parent Act. Rule 121
1 (2001) 8 SCC 676
2 (1994) 4 SCC 453
3 (2008) 2 SCC 254
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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;
4 (2001) 10 SCC 445
5 (2013) 10 SCC 324
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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. Ujjam Bai v. State of Uttar Pradesh8. It is
further pointed out that the view taken in the impugned
Judgment by the Full Bench has been followed in a large
number of cases. It is contended that if a judgment has
been consistently followed for a long time, the
principle of certainty of law requires that it should
not be disturbed. The spirit of the law is that after
the Tribunal directs re-instatement it would direct the
Managing Committee to conduct an inquiry under Rule
121. An aggrieved employee can challenge the
proceedings in the appropriate forum and clothing the
Tribunal with the power to award back wages would
6 AIR 1962 SC 1334
7 (2004) 1 SCC 43
8 AIR 1962 SC 1621
13
render Rule 121 redundant and superfluous. The Managing
Committee would decide the matter after an inquiry and
it is even stated after recording evidence. The
Tribunal may award damages in an arbitrary manner
without determining relevant facts relating to gainful
employment, running of any business or joining some
other school during the period of absence. In our view,
the following points would arise:
“(I) Whether there is any express power under
Sections 8 and 11 to order back wages?
(II) Whether Fundamental Rule 54 fortifies the
contention of the respondent?
(III) Is there any conflict between Sections 8
and 11 on the one hand and Rule 121 on the
other hand? Is Rule 121 ultra vires to parent
enactment?
(IV) Whether the tribunal has incidental and
ancillary power to direct payment of pay and
allowance on setting aside the order of
termination?”
ANALYSIS
10. We have noticed that Section 8 provides for an
appeal limited to dismissal, removal or compulsory
retirement. However, this Court in the decision in
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Shashi Gaur v. NCT of Delhi and others9 held that an
appeal lies under Section 8(3) also against termination
otherwise. The only exception carved out is termination
of service upon the service having come to an end by
efflux of time. We may in this context, no doubt, notice
what this Court noticed in Paragraph 8. It reads as
under:
“8. In this view of the matter, we are
persuaded to take the view that under subsection (3) of Section 8 of the Act, an appeal
is provided against an order not only of
dismissal, removal or reduction in rank, which
obviously is a major penalty in a disciplinary
proceeding, but also against a termination,
otherwise except, where the service itself
comes to an end by efflux of time for which
the employee was initially appointed.
Therefore, we do not find any infirmity with
the order of the High Court not entertaining
the writ application in exercise of its
discretion though we do not agree with the
conclusion that availability of an alternative
remedy ousts the jurisdiction of the court
under Article 226 of the Constitution.”
11. We will proceed further on the basis that the
provisions will apply across the board as found by the
full Bench, which includes minority institutions.
9 (2001) 10 SCC 445
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12. The first question, we must decide is, 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 we must also bear in
mind 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. Section
107 of the Code of civil Procedure, reads as follows:
“(1) Subject to such conditions and limitations
as may be prescribed, an Appellate Court shall
have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require
such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court
shall have the same powers and shall perform
as nearly as may be the same duties as are
conferred and imposed by this Code on Courts
of original jurisdiction in respect of suits
instituted therein.”
13. The appellant lays store by the said provision.
14. 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
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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 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 (supra) 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
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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.
15. As far as Section 107 of the Code of civil
Procedure is concerned, it declares that subject to
such conditions and limitations that may be prescribed,
the appellate court has the power to determine a case
finally. It is also blessed with the power to remand a
case. It can also frame issues and refer the issues for
trial. It is also authorised to take additional
evidence or permit the evidence to be taken. Section
107(2) declares that the appellate court would have the
same power and perform nearly the same duty as are
conferred and imposed on the courts of original
jurisdiction in respect of suits instituted therein.
16. 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
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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 (supra) 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
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
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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.
17. Before we proceed further, we must pause and
enquire as to whether the lawgiver elsewhere has been
more expressive in the matter of grant of specific
power in the area of dispute. In Deepali Gundu Surwase
v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and
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Others10, this Court had the occasion to deal with a
case that arose under the Maharashtra Employees of
Private School (Conditions of Service) Regulation Act,
1977. It is worthwhile to notice that Section 9
provided for an appeal before the Tribunal under the
said Act. Section 10 purported to set out the general
power and procedure of the Tribunal. It, inter alia,
declared that the Tribunal would have the same power
as are vested in Appellate Court under the Code of
Civil Procedure. This is besides any other power
conferred on it by or under the Act. Section 11
provided for the powers of the Tribunal to give
appropriate reliefs and directions. Section 11(2)
expressly provided that the Tribunal, may inter alia,
direct the management to give arrears of emoluments to
the employee for such period as it may specify. It was
also provided further with the power to give such other
reliefs to the employee, inter alia. Apart from the
fact that provisions similar to Rule 121 is not seen
reflected in the said judgment, what makes the Judgment
relevant is that this court had before it a law which
10 (2013) 10 SCC 324
21
provided for the right of appeal before the Tribunal
and which expressly conferred power on the Tribunal to
grant the relief of arrears of emoluments. Such a
provision is conspicuous by its absence in Section 11
of the Act. It is on the conspectus of the said
provisions that this Court proceeded to lay down the
principles in regard to the award of the back wages.
This Court, inter alia, laid down follows:
“38.2. The aforesaid rule is subject to the
rider that while deciding the issue of back
wages, the adjudicating authority or the court
may take into consideration the length of
service of the employee/workman, the nature of
misconduct, if any, found proved against the
employee/workman, the financial condition of
the employer and similar other factors.
38.3. Ordinarily, an employee or workman whose
services are terminated and who is desirous of
getting back wages is required to either plead
or at least make a statement before the
adjudicating authority or the court of first
instance that he/she was not gainfully employed
or was employed on lesser wages. If the
employer wants to avoid payment of full back
wages, then it has to plead and also lead
cogent evidence to prove that the
employee/workman was gainfully employed and
was getting wages equal to the wages he/she was
drawing prior to the termination of service.
This is so because it is settled law that the
burden of proof of the existence of a
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particular fact lies on the person who makes a
positive averment about its existence. It is
always easier to prove a positive fact than to
prove a negative fact. Therefore, once the
employee shows that he was not employed, the
onus lies on the employer to specifically plead
and prove that the employee was gainfully
employed and was getting the same or
substantially similar emoluments.”
18. We are conscious of the fact that the
jurisdiction of an appellate court is not to be
construed in a pedantic manner. In fact, the effort
of the Court must be to not abridge the power of the
appellate court. In Shanmugam v. Commissioner for
Registration11 , no doubt, the Privy Council held as
follows:
“It is argued that the Act does not contain
the “express provision” required by the
Interpretation Ordinance to make it
applicable. Their Lordships do not agree.
Upon the meaning of the words “express
provision” counsel relied upon in re Meredith
and stated that it must be provision the
applicability of which did not arise by
inference. He argued that there was no
“express provision” as no reference had been
made to pending proceedings. Their Lordships
are of the view that it is correct to state
that expression provision is provision the
applicability of which does not arise by
inference. The applicability, however of the
provision under discussion to the present case
11 (1962) 3 LR 200 PC
23
does not arise by inference; it arises directly
from the language used. The fact that the
language used is wide and comprehensive and
covers many points other than the one
immediately under discussion does not make it
possible to say that its application can arise
by inference only. To be “express proivision”
with regard to something it is not necessary
that that thing should be specially mentioned;
it is sufficient that it is directly covered
by the language however broad the language may
be which covers it so long as the applicability
arises directly from the language used and not
be inference therefrom. The argument fails.”
(Emphasis supplied)
19. The decision in Nalla Karumburu Kayambu
Shanmugam (supra), arose as an appeal from the Supreme
Court of Ceylon, dismissing an appeal from an Order of
the Commissioner, refusing to register the appellant
as a citizen of Ceylon. The relevant law insisted upon
certain conditions to be fulfilled. The refusal was
based on the appellant’s wife not having resided in
Ceylon as required and the appellant had not satisfied
the requirement that he was permanently settled in
Ceylon. The application of the appellant was made in
July, 1951. The provision relating to the residence of
the wife was, according to the applicant, inapplicable
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as it was made in the year 1952. However, it was given
retrospective effect as follows.
“The amendments effected by the preceding
sections of this Act shall be deemed to have
come into force on the date appointed under
Section 1 of the principal Act; and
accordingly, but subject to the provisions of
Sub-section (3) of this section, the principal
Act shall be deemed on and after that date to
have had effect, and shall have effect, in like
manner as though it had on that date been
amended in the manner provided by this Act.”
20. The applicant therein sought support from the
following provision which formed the basis for the
discussion we have referred to:
“6(3) Whenever any written law repeals either
in whole or part a former written law, such
repeal shall not, in the absence of any express
provision to that effect, affect or be deemed
to have affected –
(c) any action, proceeding, or thing pending
or incompleted when the repealing written law
comes into operation, but every such action,
proceeding, or thing may be carried on and
completed as if there had been no such repeal.”
21. We would think that it may not be apposite to draw
any support from the said decision. It is clear that
in the facts and on a conspectus of the provisions
involved therein, the principle, as to whether there
is an express provision, was applied, it is a matter
25
to be decided on the inevitable effect flowing from the
width of the words used. It is not a case where the
court countenanced presence of express provisions on
the basis of an inference which method is expressly
frowned upon. In this case, we are dealing with the
case of express powers with a Statutory Tribunal. We
are of the view that 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. We
feel reinforced in our findings by noticing how, in a
similar legislation, a Lawgiver has expressly conferred
such powers on the Tribunal. We would, therefore,
conclude that we cannot but find that 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.
22. In this regard, we may at once notice the case of
the appellant that Fundamental Rule 54 has no
application as the said Rule contemplates departmental
appeal whereas Rule 121 deals with an appeal to the
Tribunal.
26
23. In this regard the appellant seeks support from
the decision of this Court in Devendra Pratap Narain
Rai Sharma (supra). Therein the Court considered the
case which involved the question as to whether
Fundamental Rule 54 stood in the way of decree of the
civil court (that is the High Court in an appeal in the
suit which held that the appellant therein was not
afforded the opportunity to defend him before he was
visited with the punishment of dismissal) being
effectuated. The High Court declared the dismissal to
be void and that the appellant therein must be deemed
to be in service. Fundamental Rule 54 is essentially
in substance pari materia with Rule 121 with which we
are dealing with. In the facts, this Court held as
follows:
“..This rule has no application to cases like
the present in which the dismissal of a public
servant is declared invalid by a civil court
and he is reinstated. This rule, undoubtedly
enables the State Government to fix the pay of
a public servant whose dismissal is set aside
in a departmental appeal. But in this case
the order of dismissal was declared invalid in
a civil suit. The effect of the decree of the
civil suit was that the appellant was never to
be deemed to have been lawfully dismissed from
service and the order of reinstatement was
superfluous. The effect of the adjudication of
27
the civil courts is to declare that the
appellant had been wrongfully prevented from
attending to his duties as a public servant.
It would not in such a contingency be open to
the authority to deprive the public servant of
the remuneration which he would have earned had
he been permitted to work.”
24. 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
(supra) 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
28
beyond dispute that the lawgiver has contemplated an
appeal only to the Tribunal constituted under Section
11. In other words, unlike the position in Devendra
Pratap Narain Rai Sharma (supra), 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 re-instatement necessitated by an order
of the Tribunal under Section 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.
25. 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. In this regard, he sought support
from Bharathidasan University and another (supra). In
the said case, this Court was dealing with the question
29
as to whether Regulations (Subordinate Legislation)
framed by AICTE could oblige even a university to
obtain prior approval. The contention of the appellantUniversity was that the AICTE Act in question made a
distinction between Technical Institution and
Universities. The offensive Regulations, were found to
be specifically violative of the power conferred under
Section 23 to make regulations subject to the
limitations which were contained in specific and
unambiguous language. The definition of the word
“Technical Institution” excluded a university. Special
care was made whenever the University was within the
contemplation of the lawgiver. It was in clear
violation of the limitation on the power to make
regulations, namely, that the AICTE could not make any
regulation to bind Universities, inter alia, the
regulation in question was made and it was while
dealing with the said case, this Court held that it may
not be necessary to specifically challenge subordinate
legislation. The decision must not be understood as
laying down the principle that the court may lightly
depart from the ordinary rule that when a law is
30
questioned as ultra vires and, therefore,
unconstitutional, a proper challenge must be mounted
against the same. The maker of the law must be a party
before the court. We may notice in this regard that
under the Act, the rule-making power is conferred on
the Administrator under Section 28. A perusal of the
party array would reveal that the Administrator is
conspicuous by his absence. In fact, in the decision
relied upon by the appellant- Bharathidasan University
and another (supra), the Authority, which made the
regulation, which was found to be ultra vires, was the
respondent.
26. Even otherwise, it may be difficult to find that
this is a case where we could hold in the absence of
express and exclusive power which is conferred on the
Tribunal to make an order for payment of emoluments
that Rule 121 which clothes the Managing Committee with
the said power, is ultra vires.
27. Let us now analyse Rule 121 and also the context
provided by the neighbouring provisions. As we have
already noticed Rule 117 provides for penalties which
includes the four major penalties. Rule 120 lays the
31
procedure for imposing the penalty. Against the major
penalty of dismissal, removal or compulsory retirement,
the law contemplates an appeal before the Tribunal
constituted under Section 8 read with Section 11. 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 Rule-maker 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
32
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 reinstated, 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. Any
other view would put the employee at the mercy of the
employer.
28. 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
33
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
34
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).
29. 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 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. We
35
are not diluting for a moment the duty to implement the
order in the absence of an order from the competent
court permitting it being suspended.
30. At this juncture, we may notice the impact of Rule
115(4). Under Rule 115(4), the Lawgiver has
contemplated as follows:
If the penalty of dismissal, removal or compulsory
retirement is set aside or rendered void by a
decision of the court of law or Tribunal, it is
provided that the disciplinary authority on a
consideration of the case may decide to hold
further inquiry against the employee on the same
allegations on which the original penalty was
imposed. The Rule provides that in such an
eventuality, the employee shall be deemed to have
been placed under suspension from the original
order of dismissal, removal or compulsory
retirement. The proviso mandates that the
disciplinary authority cannot order further
inquiry unless the penalty has been set aside
purely on technical grounds. Now let us see the
impact of this Rule qua the argument of the
36
appellant about the availability of power under
Section 11 to order back wages. In a case where
Tribunal sets aside the penalty and it is done on
a technical ground, the disciplinary authority
becomes entitled to launch further enquiry. Can
the Tribunal order the payment of back wages
without giving an opportunity to the disciplinary
authority to take a decision? Would Rule 115(4)
then become ultra vires Section 11? We would think
it would not be a reasonable interpretation to
place on the Act and the Rules.
31. Now, let us consider the matter from another
perspective. 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
37
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 (supra). 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 re-instatement does not become final. The
employee remains absent undoubtedly on the basis of the
38
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 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. We would, therefore, find that it may
not be appropriate or apposite to find that Rule 121
39
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.
32. There is no express power with the Tribunal of the
kind which is present in the Maharashtra Act which fell
to be decided in Deepali Gundu (supra). 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 reinstatement 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
40
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 opportunity, the Managing Committee must provide
for the matters which are provided therein, namely Rule
121.
33. We cannot on a conspectus of the provisions and
the discussion about the context, object and
consequences that would flow, agree with the appellant,
that the Appellate Tribunal must be ceded implied
powers to assume the specific powers ceded to the
Managing Committee. While we are not averse to adopting
a liberal view when it comes to clothing an appellate
body to deal with matters arising in the proceeding in
a fair and effective manner, the scheme that we have
41
found and the consequences that ensue dissuade us from
vesting such implied powers. It involves rendering Rule
121 otiose and redundant. It would have been a
different matter if the rule did not exist and more
importantly, we did not unravel a distinct scheme and
purpose.
34. 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.
42
35. We are inclined to take the view that 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.
43
36. 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 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.
37. We cannot be unmindful of the principle canvassed
by the learned Senior Counsel for the respondent that
the view of the Full Bench, in the impugned Judgment,
is a view which upholds a line of reasoning, which has
44
largely held the field for a long period of time. While
it is not a ground to not overturn a view, which is
palpably erroneous, the view taken, if it is otherwise
a plausible view, must receive deference.
38. 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.
39. 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
45
in Shashi Gaur (supra). In the case of penalty of
reduction in rank (which is also a major penalty), the
High Court has brought out the following distinction:
“23. The learned Single Judge has reasoned
that it would be anomalous to hold that the
Delhi School Tribunal would have the power
to direct full wages to be paid to an
employee who has been reduced in rank but
has been restored to the original rank but
would have no power to pass such an order
if an employee is reinstated in service. The
reasoning by the learned Single Judge
overlooks a very vital and critical fact
which clearly distinguishes cases of a
penalty of reduction in rank being set aside
and the rank being restore.cl vis-a-vis a
penalty of dismissal 1 removal or compulsory
retirement being set aside and reinstatement
ordered. In the former situation the
employee would be working in the school,
albeit at a lower post and there would be
no case warranting an inquiry to be held of
the kind contemplated by Rule 121 of the
Delhi School Education Rules, 1973 i.e.
whether the employee was gainfully employed
somewhere else. But where a penalty of a
kind where secession takes place is passed,
the employee has not to report to the
employer and may be gainfully employed
somewhere else.”
We would take the example of a termination of
service, which was explicitly before this Court in
Shashi Gaur (supra). The termination of the employee
therein was ordered as he was not possessed of the
46
requisite qualification. We proceed further that in
such a case, the employee is placed under suspension.
An inquiry is also held and the services are
terminated. We further proceed on the basis that in
terms of what is permitted under Shashi Gaur (supra),
he files an appeal before the Tribunal under Section 8
and obtains an order for reinstatement. In the
meantime, we further take it that it is a case where
he is gainfully employed. The question would arise in
his case also as to the pay and allowances to be
granted. The question would further arise as to whether
his period of absence should be treated as duty. This
situation arises in view of the interpretation placed
in the case of Shashi Gaur (supra). In such
circumstances, 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, we are not in a position to find fault with
the view taken by the Full Bench.
47
40. The upshot of the above discussion is that we find
no merit in the Appeal and the Appeal stands dismissed
with no order as to costs.
 ………………………………………………………………………J.
[K.M. JOSEPH]
………………………………………………………………………J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
DATED: JULY 28, 2022.

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