Delhi HC orders reinstatement of private school teacher, says DoE approval mandatory before dismissal

New Delhi, June 17 (SocialNews.XYZ) The Delhi High Court has ordered the reinstatement of a private school teacher who was removed from service nearly two decades ago, holding that her dismissal was illegal for want of prior approval from the Directorate of Education (DoE) and directing a fresh disciplinary inquiry into the charges levelled against her.

A Division Bench of Justices C. Hari Shankar and Om Prakash Shukla set aside the dismissal of Rekha Sabharwal, an assistant teacher at Saai Memorial Girls School, while granting her continuity of service and 50 per cent back wages.

The Delhi High Court also ordered a de novo inquiry into the misconduct charges framed against her in 2006, including allegations of poor teaching performance, misbehaviour with colleagues, and refusal to attend a parent-teacher meeting.

The Justice Hari Shankar-led Bench held that the school, being a recognised private unaided institution, could not have removed the teacher from service without obtaining prior approval of the DoE under Section 8(2) of the Delhi School Education Act, 1973.

“The order dated 7 November 2006 dismissing the appellant from service, having been issued without the prior approval of the DOE, violates Section 8(2) of the DSE Act and is, therefore, liable to be set aside,” the judgment said.

Rejecting the school’s contention that the Supreme Court ruling mandating prior approval would apply only prospectively, the Delhi High Court said that judgments of the apex court ordinarily operate retrospectively unless specifically stated otherwise.

“It is trite that the judgments of the Supreme Court apply retrospectively unless the judgments themselves state otherwise,” the Justice Hari Shankar-led Bench observed.

The Delhi High Court further found merit in the appellant’s contention that the disciplinary committee was improperly constituted because the Principal and a Vice-Principal, who were themselves complainants and witnesses in the inquiry, also participated in the disciplinary authority that decided her case.

“We agree with Mr. Singla (the appellant’s counsel) that the DA could not have included the Principal and Ms. Jasvir Kaur as members, as that would clearly breach the nemo judex in causa sua doctrine,” the judgment said.

The Justice Hari Shankar-led Bench held that while the Principal and Vice-Principal could depose as witnesses regarding alleged misconduct, they could not simultaneously sit in on the decision over the disciplinary proceedings.

“Having done so, however, they could not have been part of the DA,” it added.

The judgment also questioned the circumstances under which allegations of the teacher’s incompetence surfaced after she was shifted from teaching Hindi to teaching English and Environmental Science (EVS).

Recording that the appellant held degrees in Hindi and History and had taught Hindi for over three years without complaint, the Justice Hari Shankar-led Bench observed that the school failed to explain why she was suddenly assigned English classes.

“Complaints surfaced only after she was, by the order dated 2 August 2006, suddenly directed to teach English and EVS to Class III students,” the Delhi High Court noted.

While refraining from making any conclusive finding on the teacher’s allegation of harassment by the school management, the Justice Hari Shankar-led Bench directed that the fresh inquiry should examine all aspects of the dispute.

“We expect the IO, in the de novo proceedings that we intend to direct, to holistically examine all aspects of the matter, including the aspect of who the oppressor is, and who the oppressed,” it said.

The Delhi High Court also found the punishment order imposing removal from service to be legally unsustainable as it was completely unreasoned.

“The order dated 29 July 2007, which cannot, therefore, be sustained in law,” the Justice Hari Shankar-led Bench held, adding that any future disciplinary decision must be “properly reasoned and speaking”.

Allowing the appeal, the Delhi High Court quashed the disciplinary authority’s order, the inquiry report, the Delhi School Tribunal’s decision and the judgment of the single-judge Bench.

“In the interregnum, the appellant would be entitled to be reinstated in service, with all benefits including continuity of service,” the Justice Hari Shankar-led Bench directed.

Expressing reservations about the manner in which the school proceeded against the teacher, the judgment granted her 50 per cent back wages for the period she remained out of service, subject to the outcome of the fresh inquiry.

At the same time, the Delhi High Court dismissed a separate appeal filed by the appellant, who alleged that the school paid her salary by cheque and subsequently recovered part of it in cash.

Observing that such a practice, if established, would be illegal, the Justice Hari Shankar-led Bench held that the allegations involved disputed questions of fact which could not be adjudicated in writ proceedings.

“Any such practice, if followed, is completely illegal, and the institution in question would be civilly and criminally liable. It would be, however, for the employee who makes such an allegation to substantiate it,” the judgment said.

Source: IANS