AI Drafter 
TaxTMI 
TaxTMI 
2010 (2) TMI 1248
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....Delhi. Respondent No.2 is a private linguistic minority school established by respondent No.1 and is aided by the Government of Delhi to the extent of 95%. The appellant was appointed as Upper Division Clerk (UDC) by respondent Nos. 1 and 2 w.e.f. 25.1.1988. Her appointment was approved by the Director of Education, Delhi (hereinafter referred to as 'the Director'). In January, 1992, the appellant was granted permission by the management for doing Postgraduate Diploma in Human Resources Development Programme. After some time, the appellant applied for study leave for attending the training programme and also for preparing for the examination. She reported for duty after three days of the expiry of leave period, but the management of respondent No.2 refused to accept her joining and initiated an inquiry against her on the charges of neglecting duties as UDC, availing leave without prior permission, absence from duty, misplacing the office records, failure to submit important office records/registers to the superiors and flouting the directions given by the management of the school. Shri Y.S. Rao, who was appointed as inquiry officer, submitted report dated 4.7.1995 with the findings....
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....ning of Section 8(2) of the Delhi School Education Act, 1973, is required or contemplated and as such quash/set aside the order dated 24.7.2001 passed by Respondent No.1 in the appeal filed on behalf of Respondent No.3 and uphold the decision of petitioners thereby terminating the services of the respondent No.3." 5. The Division Bench of the High Court briefly noticed the factual matrix of the case and the provisions of the Act, referred to the judgments of this Court in State of Kerala v. Very Rev. Mother Provincial Etc. 1970 (2) SCC 417, DAV College Etc. Etc. v. State of Punjab and others 1971 (2) SCC 269, Ahmedabad St. Xavier's College Society and another v. State of Gujarat and another 1974 (1) SCC 717, Lily Kurian v. Sr. Lewina and others (supra), All Saints High School, Hyderabad and others v. Government of Andhra Pradesh and other 1980 (2) SCC 478, Frank Anthony Public School Employee's Association v. Union of India and others (supra), Y. Theclamma v. Union of India (supra), Anjuman-e-Mishbul Muslemin v. State of Bihar 1988 PLJR 1107, Association of Teachers in Anglo-Indian School v. The Association Aids Anglo-Indian School in India and others AIR 1995 Calcutta 194, All ....
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...., therefore, are of the opinion that sub- section (2) of Section 8 cannot be held to have any application so far as minority institutions are concerned. In the instant case, no guidelines have also been provided by reason of Rule 120 of the Rules." The Division Bench finally declared that Section 12 of the Act insofar as it restricts the applicability of the Act to unaided minority institutions is ultra vires and set aside the order passed by the Tribunal. 6. Shri P.P. Rao, learned senior counsel appearing for the appellant argued that negative declaration made by the High Court on the constitutionality of Section 12 was totally uncalled for because this Court has already held in Frank Anthony Public School Employees' Association's case that Section 12, which excludes the applicability of Chapter IV of the Act to unaided minority institutions except Section 8(2), is violative of Article 14 of the Constitution. Learned senior counsel submitted that even though in Frank Anthony Public School Employees' Association's case, the two-Judge Bench did not notice an earlier Constitution Bench judgment in Lily Kurian's case, the legal position has been clarified in Y. Theclamma's case.....
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....tion 8(2) cannot be treated applicable to aided minority institutions and Section 8(3) cannot be read as providing an effective remedy to the management of the school against an order passed by the Director. He submitted that if Section 8(2) is not applicable to unaided minority institutions then its applicability to aided minority institutions would result in violation of Article 14. Shri L.N. Rao also relied upon the larger Bench judgment in T.M.A. Pai Foundation's case and submitted that right of the private aided minority institutions to regulate the discipline cannot be curtailed by a provision like one contained in Section 8(2) of the Act. 9. We have considered the respective submissions. Sections 8 and 12 of the Act and Rule 120 of the Rules which have bearing on the decision of this appeal read as under: 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 pensio....
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.... shall frame definite charges on the basis of the allegation on which the inquiry is proposed to be held and a copy of the charges together with the statement of the allegations on which they are based shall be furnished to the employee and he shall be required to submit within such time as may be specified by the disciplinary authority, but not later than two weeks, a written statement of his defense and also to state whether he desires to be heard in person; (b) on receipt of the written statement of defence, or where no such statement is received within the specified time, the disciplinary authority may itself make inquiry into such of the charges as are not admitted or if considers it necessary so to do, appoint an inquiry officer for the purpose; (c) at the conclusion of the inquiry, the inquiry officer shall prepare a report of the inquiry regarding his findings on each of the charges together with the reasons therefor; (d) the disciplinary authority shall consider the record of the inquiry and record its findings on each charge and if the disciplinary authority is of opinion that any of the major penalties should be imposed, it shall- (i) ....
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....n 8(1). The objection of the respondents is really to Section 8(2), 8(3), 8(4) and 8(5) whose effect is (1) to require the prior approval of the Director for the dismissal, removal, reduction in rank or other termination of service of an employee of a recognised private school, (2) to give a right of appeal to a Tribunal consisting of a single member who shall be a District Judge or who has held an equivalent judicial office, (3) to require prior approval of the Director if it is proposed to suspend an employee unless immediate suspension is necessary by reason of the gross misconduct of the employee in which case the suspension shall remain in force for not more than 15 days unless approval of the Director is obtained in the meanwhile. In the Nine-Judge Bench case Ray, C.J. and Palekar, J. took the view that Section 51-A of the Gujarat Act which provided that no member of the staff of an affiliated college shall be dismissed, removed or reduced in rank except with the approval of the Vice-Chancellor was violative of Article 30(1) as it conferred arbitrary power on the Vice- Chancellor to take away rights of the minority institutions. Similarly, Section 52-A which contemplated refe....
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....ision for the appointment of Umpire by the Vice-Chancellor. Those defects have been cured in the provisions before us. Similarly, the provision for an appeal to the Syndicate was considered objectionable in State of Kerala v. Very Rev. Mother Provincial as it conferred the right on the University. Section 8(4) would be inapplicable to minority institutions if it had conferred blanket power on the Director to grant or withhold prior approval in every case where a management proposed to suspend an employee but we see that it is not so. The management has the right to order immediate suspension of an employee in case of gross misconduct but in order to prevent an abuse of power by the management a safeguard is provided to the employee that approval should be obtained within 15 days. The Director is also bound to accord his approval if there are adequate and reasonable grounds for such suspension. The provision appears to be eminently reasonable and sound and the answer to the question in regard to this provision is directly covered by the decision in All Saints High School where Chandrachud, C.J. and Kailasam, J. upheld Section 3(3)(a) of the Act impugned therein. We may also....
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....n 12 of the Delhi School Education Act which makes the provisions of Chapter IV inapplicable to unaided minority institutions is discriminatory and void except to the extent that it makes Section 8(2) inapplicable to unaided minority institutions. We, therefore, grant a declaration to that effect and direct the Union of India and the Delhi Administration and its officers, to enforce the provisions of Chapter IV [except Section 8(2)] in the manner provided in the chapter in the case of the Frank Anthony Public School. The management of the school is directed not to give effect to the orders of suspension passed against the members of the staff." (emphasis added) 11. In Y. Theclamma's case, the issue considered by this Court was whether the suspension of the appellant pending departmental inquiry was legally correct and justified. The Court referred to earlier judgments including the Constitution Bench judgment in Lily Kurian's case and observed: "It is not necessary to go through all the cases relied upon by the Court in Frank Anthony Public School case for the view taken that the provisions of Chapter IV of the Act were of a regulatory nature and therefore did ....
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....affairs but it was uncanalised and unguided in the sense that no restrictions were placed on the exercise of the power. It was further said that in the absence of any guidelines it could not be held that the power entrusted to the Vice-Chancellor under Ordinance 33(4) was merely a check on maladministration." The Court rejected the argument that the decision in Frank Anthony Public School Employees' Association's case was in conflict with the Constitution Bench judgment in Lily Kurian's case. Paragraphs 11 and 12, which contain discussion on this issue, read thus: "11. It would be seen that the decision of the Court in Frank Anthony Public School case with regard to the applicability of sub-section (4) of Section 8 of the Act to the unaided minority educational institutions is based on the view taken by the majority in All Saints High School case which, on its turn, was based on several decisions right from In re the Kerala Education Bill, 1957 down to St. Xavier, including that in Lily Kurian. It is therefore difficult to sustain the argument of learned counsel for the respondents that the decision in Frank Anthony Public School case holding that sub-section (4) of Sec....
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.... (i) Section 8(1), (3), (4) and (5) of the Act do not violate the right of the minorities to establish and administer their educational institutions. However, Section 8(2) interferes with the said right of the minorities and is, therefore, inapplicable to private recognized aided/unaided minority educational institutions. (ii) Section 12 of the Act, which makes the provisions of Chapter IV of the Act inapplicable to unaided private recognized minority educational institutions is discriminatory except to extent of Section 8(2). In other words, Chapter IV of the Act except Section 8(2) is applicable to private recognized aided as well as unaided minority educational institutions and the concerned authorities of the education department are bound to enforce the same against all such institutions. 13. We shall now deal with the question whether the Division Bench of the High Court was justified in setting aside the direction given by the Tribunal for reinstatement of the appellant with consequential benefits. Shri Y. S. Rao, who conducted inquiry against the appellant submitted report dated 4.7.1999 with the findings that all the charges except charge No.4 have been p....
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....val from service imposed upon the appellant was disproportionate to the misconduct found against her or the action taken by the management was wholly arbitrary or unjust but keeping in view the fact that the appellant was removed from service more than 13 years ago, we do not consider it proper to adopt that course. In Superintendent (Tech.I) Central Excise I.D.D. Jabalpur and others v. Pratap Rai, 1978 (3) SCC 113, this Court held that if an order passed by the disciplinary authority is annulled on a technical ground, the concerned authority is free to pass fresh order but, at the same time, the Court declined to give such liberty to the administration on the ground that a period of 15 years had elapsed since the framing of charge. In Shri Bhagwan Lal Arya's case, a somewhat similar approach was adopted by this Court by recording the following observations: "Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent th....