Allowed

Mahender v. Director of Education & Anr.

Delhi HC8 Jan 2016LPA/10/2016

Case brief

AI extract

What is this about?

In four Writ Petitions, employees of a private unaided recognized school challenged the abolition of their posts due to non-availability of work, arguing the Delhi School Education Act prohibits such retrenchment without following a specific procedure. The High Court held that the Act does not bar retrenchment and dismissed the appeals as premature.

What did the court decide?

Appeals allowed in limine without any order as to costs.

Mahender Vs Director of Education & Anr. — Education and Admissions | Delhi HC (2016)

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$~8 to 11

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* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: January 08, 2016

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- LPA 9/2016

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SERAZ ALI ..... Appellant Represented by: Ms.Indrani Ghosh, Advocate versus DIRECTOR OF EDUCATION & ANR ..... Respondents Represented by: Mr.Sanjoy Ghosh, Advocate + LPA 10/2016 MAHENDER ..... Appellant Represented by: Ms.Indrani Ghosh, Advocate versus DIRECTOR OF EDUCATION & ANR ..... Respondents Represented by: Mr.Sanjoy Ghosh, Advocate + LPA 11/2016

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SANSAR CHAND ..... Appellant Represented by: Ms.Indrani Ghosh, Advocate versus DIRECTOR OF EDUCATION & ANR ..... Respondents Represented by: Mr.Sanjoy Ghosh, Advocate + LPA 12/2016 BALRAM ..... Appellant Represented by: Ms.Indrani Ghosh, Advocate

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LPA No.9/2016, LPA No.10/2016, LPA No.11/2016, LPA No.12/2016

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Page 1 of 5

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versus

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DIRECTOR OF EDUCATION & ANR ..... Respondents Represented by: Mr.Sanjoy Ghosh, Advocate

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CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA

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PRADEEP NANDRAJOG, J. (ORAL)

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CM No.583/2016 in LPA No.9/2016 CM No.585/2016 in LPA No.10/2016 CM No.587/2016 in LPA No.11/2016 CM No.589/2016 in LPA No.12/2016

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Allowed subject to just exceptions.

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LPA No.9/2016, LPA No.10/2016, LPA No.11/2016, LPA No.12/2016

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The appellants in the above captioned appeals are employees of the respondent No.2 school, which is an unaided private recognized school under the provisions of the Delhi School Education Act, 1973 and the Rules framed thereunder. Citing instances of employees working as a driver, conductor or other class-IV category posts, appellants filed writ petitions pleading that since the Delhi School Education Act, 1973 or the Rules framed thereunder do not provide for termination of service by way of retrenchment, declaration be granted that the respondent No.2 school is bound to follow the procedure established by the Delhi School Education Act, 1973 and the Rules framed thereunder in connection with the service of the appellants. In other words what the appellants claim is that on the justification that the post(s) held by them has been abolished on account of

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LPA No.9/2016, LPA No.10/2016, LPA No.11/2016, LPA No.12/2016

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Page 2 of 5

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non-availability of work, their services cannot be dispensed with.

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The writ petitions filed by the appellants have been dismissed by the learned Single Judge vide impugned common order dated December 21, 2015 on the reasoning that the petitions are premature. 3. Having heard learned counsel for the parties, we are of the opinion that if the jurisprudence of remedies was correctly understood and applied by the appellants they would not be litigating at all at this stage. 4. From the pleadings in the writ petition(s) filed by the appellants it is apparent that the appellants would be workman as defined under Section 2(s) of the Industrial Disputes Act, 1947. Concededly, if the school were to resort to retrenchment on account of non-availability of work or for any other reason; and retrenchment being as defined by Section 2(oo) of the Industrial Disputes Act, 1947, should appellants raised an issue , they would be entitled to raise an industrial dispute.

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Merely because retrenchment as a concept is not statutorily enacted under the Delhi School Education Act, 1973 or the Rules framed thereunder would not mean that if there is no work is available the school cannot abolish the post(s) held by the appellants , and in such circumstance the appellants would have to leave employment. 6. The confusion in the mind of the appellants appears to be the result of misunderstanding by the counsel of the law declared by the Supreme Court in the decision reported as (2001) 10 SCC 445 Shashi Gaur vs. NCT of Delhi & Ors. The said decision concerns Section 8(3) of the Delhi School Education Act, 1973 which reads as under:-

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“ 8 . Terms and conditions of service of employees of recognized private schools-

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LPA No.9/2016, LPA No.10/2016, LPA No.11/2016, LPA No.12/2016

Page 3 of 5

(1) x x x x

(2) x x x x

(3) Any employee of a recognized 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.”

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Right of the employee to file an appeal before the Tribunal constituted under Section 11 of the Act is restricted by the language of the statute, to orders of dismissal, removal or reduction in rank. The fact before the Supreme Court was visited with service being terminated on the ground that she did not possess the requisite qualification. The termination was not as a measure of penalty. The Supreme Court held that every kind of termination would be akin to a dismissal and therefore the Tribunal constituted under the Delhi School Education Act, 1973 would have jurisdiction to try the lis.

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The ratio of law declared in the said judgment cannot be extended to mean that an employee of a recognized unaided private school, on being declared surplus, cannot be retrenched from service. 9. It would be a case where a workman would have two remedies. One to approach the Tribunal under the Delhi School Education Act, 1973 to question the termination of service by way of retrenchment. The second would be to seek an industrial dispute.

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