Supreme Court of India
SUNIL SIKRIversusGURU HARKRISHAN PUBLIC SCHOOL & ANR.
- Citation
- 2022 INSC 764
- Decided
- 28 July 2022
- Disposal
- Dismissed
- Bench
- K M JOSEPH
Holding
Sections 8 and 11 of the Delhi School Education Act do not give the Tribunal express authority to award back wages, and Rule 121 is a valid, mandatory provision that obliges the Managing Committee—not the Tribunal—to determine salary and allowances upon reinstatement.
Summary
The appeal concerned Sunil Sikri, a former teacher of Guru Harkrishan Public School, who challenged a Tribunal order directing his reinstatement with 50% back wages. The key issues were whether Sections 8 and 11 of the Delhi School Education Act, 1973 empower the Tribunal to award back wages, whether Rule 121 of the Delhi School Education Rules is ultra vires, and whether the Managing Committee, not the Tribunal, must decide salary and allowances upon reinstatement. The Court held that the Act’s sections do not contain an express power to award back wages and that Rule 121 is a valid, mandatory duty for the Managing Committee, not an ultra‑vires rule. Consequently, the Tribunal cannot grant back‑wage relief; the Managing Committee must conduct an inquiry and determine pay under Rule 121. The appeal was dismissed.
Issues considered
- Does Sections 8 and 11 of the Delhi School Education Act, 1973 confer an express power on the Tribunal to award back wages?
- Is Rule 121 of the Delhi School Education Rules, 1973 ultra vires the parent Act?
- Does Fundamental Rule 54 apply to the present case?
- Does the Tribunal have incidental and ancillary power to direct payment of salary and allowances after reinstatement?
Legislation cited
- Code of Civil Procedure, 1908s. 107
- Delhi School Education Act, 1973s. 11, s. 8
Subjects
Delhi School Education Actback wagestribunal powersRule 121express poweremployment terminationreinstatementManaging CommitteeCivil Procedureultra vires
Judgment
[2022] 11 S.C.R. 505 505
SUNIL SIKRI A
v.
GURU HARKRISHAN PUBLIC SCHOOL & ANR.
(Civil Appeal No. 5562 of 2017)
JULY 28, 2022 B
[K. M. JOSEPH AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Delhi School Education Act, 1973 – ss. 8 & 11 – Whether
there is any express power under Sections 8 and 11 to order back
wages – Held: Having regard to the words used in Section 11(6) of C
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 – Therefore, 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. D
Delhi School Education Act, 1973 – ss. 8 & 11 – Delhi
Education Rules, 1973 – rr. 115, 117, 120 & 121 – Is Rule 121
ultra vires to ss. 8 and 11 – Held: 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
E
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 F
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 –
The order of the appellate authority in an appeal directing
reinstatement may not be final as it can be impugned in the higher
forum – Therefore, it may not be appropriate or apposite to find
G
that Rule 121 is in any manner ultra vires Sections 8 and 11 of the
Act.
Delhi School Education Act, 1973 – ss. 8 & 11 – Delhi
Education Rules, 1973 – rr. 115, 117, 120 & 121 – Is there any
conflict between Sections 8 and 11 on the one hand and Rule 121
H
505
506 SUPREME COURT REPORTS [2022] 11 S.C.R.
A on the other hand – Held: 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 – 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 – There is no inconsistency between
B
Section 8 read with Section 11 on the one hand and Rule 121 on the
other.
Delhi School Education Act, 1973 – ss. 8 & 11 – Delhi
Education Rules, 1973 – rr. 115, 117, 120 & 121 – Whether the
tribunal has incidental and ancillary power to direct payment of
C pay and allowance on setting aside the order of termination – Held:
Rule 121(1)(a) contemplates that the Managing Committee must
consider and pass an order and provide for salary and allowances
to be paid to the reinstated employees – Tribunal is not clothed with
specific powers to grant relief of payment of the allowances –
D 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 Full Bench of
the High Court in the impugned judgment declared that The Manager
E Arya Samaj Girls Higher Secondary School & Anr. v. Sunrita Thakur
correctly lays down the law regarding rule 121 – No fault with the
view taken by the Full Bench of the High Court.
Dismissing the appeal, the Court
F HELD: 1. The first question, 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 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.
G 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 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
H statute to one who has been dismissed, removed or reduced in
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 507
& ANR.
rank to file an appeal before the Tribunal constituted under A
Section 11. We have already noticed the view taken by this court
in Shashi Gaur 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
B
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 C
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 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
D
may appeal to the Tribunal. [Paras 12 & 14][524-A-B, E-H; 525-
A-B]
2. 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 E
us. The purport of the provisions in Section 107 is to only 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 F
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 G
which has been interpreted by this Court in Shashi Gaur 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 H
508 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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 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
B
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
C 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.[Para 16][525-C-
H; 526-A-B]
D
3. 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
E 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 when it was the civil court which
F 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 beyond dispute that the lawgiver has contemplated an appeal
G only to the Tribunal constituted under Section. In other words,
unlike the position in Devendra Pratap Narain Rai Sharma, 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-
H instatement necessitated by an order of the Tribunal under Section
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 509
& ANR.
11 in an appeal. In other words, a departmental appeal under A
fundamental Rule 54 is to be conflated to an appeal under Section
11 in the case of Rule 121.[Para 24][530-B-F]
4. 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 B
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. 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 C
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 D
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 E
from the deliberate choice of the word ‘shall’. Far from the 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 F
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 re- instated,
then it is not merely an enabling provision which undoubtedly it G
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.
H
510 SUPREME COURT REPORTS [2022] 11 S.C.R.
A Any other view would put the employee at the mercy of the
employer.[Para 25 & 27][530-F-H; 531-G-H; 532-A-E]
5. 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
B provide for salary and allowances 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
C 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
D 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
E Managing Committee to come to a conclusion that the employee
is guilty of delaying the proceedings instituted against him. It
can be done only 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
F 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). 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
G 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
H
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 511
& ANR.
of the Tribunal becomes final. In other words, if the order of the A
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.[Para
28 & 29][532-E-H; 533-A-E]
6. Section 8(3) as also Rule 120(3) provide for a right of B
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 C
upon the Tribunal. The Tribunal is not clothed with specific powers
to grant relief of 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 D
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 . 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 E
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 F
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 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 G
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
H
512 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
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 re-
instatement may not be final as it can be impugned in the higher
C forum. Therefore, it may not be appropriate or apposite to find
that Rule 121 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.[Para 31][534-B-H; 535-A-C]
D 7. 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
E 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 re- instatement 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
F contemplated under Rule 121(1)(a) and (b). The presence of the
words “in its opinion” do indicate 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
G 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
H
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 513
& ANR.
opportunity, the Managing Committee must provide for the A
matters which are provided therein, namely Rule 121.[Para
32][535-D-H]
8. 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 B
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 C
best exercised by the Managing Committee. 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 D
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, E
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 F
the parent enactment and the subordinate legislation not been
present, full play should not be given to the latter. 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, G
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
H
514 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
and positioned to be performed by the Managing Committee.[Para
34-36][536-C-H; 537-A-C]
9. 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
C 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
D the Tribunal would have the said power, in cases not covered by
Rule 121. This creates an anomalous position, it is contended. 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
E respect of any termination in the light of the Judgment of this
Court in Shashi Gaur (supra). 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, This court is not
F in a position to find fault with the view taken by the Full
Bench.[Para 38 & 39][537-D-G; 538-F-G]
Shashi Gaur v. NCT of Delhi and others (2001) 10 SCC
445 – relied on.
Bharathidasan University and another v. All-India
G Council for Technical Education and others (2001) 8
SCC 676 : [2001] 3 Suppl. SCR 253; State of A.P. v. P.
Narasimha and another (1994) 4 SCC 453; Karnataka
Bank Ltd. v. State of Andhra Pradesh and others (2008)
H
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 515
& ANR.
2 SCC 254 : [2008] 1 SCR 986; Deepali Gundu A
Surwase v. Kranti Junior Adhyapak Mahavidyalaya
(D.Ed.) and others (2013) 10 SCC 324 : [2013] 9
SCR 1; Devendra Pratap Narain Rai Sharma v. State
of Uttar Pradesh and others AIR 1962 SC 1334 : [1962]
1 Suppl. SCR 315; Union of India v. Madhusudan
B
Prasad (2004) 1 SCC 43 : [2003] 4 Suppl. SCR 1026;
Smt. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC
1621 : [1963] 1 SCR 778; Shanmugam v. Commissioner
for Registration (1962) 3 LR 200 PC - referred to.
Case Law Reference
C
[2001] 3 Suppl. SCR 253 referred to Para 8
(1994) 4 SCC 453 referred to Para 8
[2008] 1 SCR 986 referred to Para 8
(2001) 10 SCC 445 relied on Para 8 D
[2013] 9 SCR 1 referred to Para 8
[1962] 1 Suppl. SCR 315 referred to Para 8
[2003] 4 Suppl. SCR 1026 referred to Para 8
[1963] 1 SCR 778 referred to Para 9 E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.5562
of 2017.
From the Judgment and Order dated 14.05.2015 of the High Court
of Delhi at New Delhi in Writ Petition (C) No.8058 of 2011.
F
Anuj Aggarwal, Vipin Kumar Jai, Advs. for the Appellant.
A. P. S. Ahluwalia, Sr. Adv., Abinash Kumar Mishra, Ms.
Aakanksha Kaul, Bhakti Vardhan Singh, Aman Shukla, B. V. Balaram
Das, B. Krishna Prasad, Advs. for the Respondents.
The Judgment of the Court was delivered by G
K. M. JOSEPH, J.
1. The Delhi School Education Act 1973 (hereinafter referred to
as “the Act”) was promulgated on 9th April, 1973. In the very same year
on the 31st December, 1973, the Delhi School Education Rules, 1973
H
516 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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:
“8. Terms and conditions of service of employees of recognised
B 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
C 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
D 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.
E
(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.
F
(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:
Provided that the managing committee may suspend an
G 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:
H
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 517
& ANR. [K. M. JOSEPH, J.]
Provided further that no such immediate suspension shall A
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 B
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 C
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
D
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 E
this Act.
(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 F
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 G
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 H
518 SUPREME COURT REPORTS [2022] 11 S.C.R.
A (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 (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
C employee of the school; or
(e)where he is charged with misbehaviour towards any parent,
guardian, student or employee of the school; or
(f) where he is charged with the breach of any other code of
conduct.
D
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
E 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
F 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.”
G
3. Rule 117 deals with penalties and disciplinary authority. Under
the category of major penaltiesare 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:
H
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 519
& ANR. [K. M. JOSEPH, J.]
“121. Payment of pay and allowances on reinstatement - A
(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 B
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 C
(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 D
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
E
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 F
the period of such delay only such 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 G
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: H
520 SUPREME COURT REPORTS [2022] 11 S.C.R.
A “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
B
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
C 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 January 23, 1994 before it could be acted upon. He also
D
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 ofthe 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
E 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
F
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.
G 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.
6. The Full Bench, by the impugned Judgement, proceeded to
H answer the reference in the following manner:
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 521
& ANR. [K. M. JOSEPH, J.]
“45. We answer the reference as under: - A
(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 B
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 C
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 D
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 Court. In this context, he relies upon the Judgment of E
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, F
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. G
The Lawgiver intended to create a Specialised Tribunal.Being a
Specialised Tribunal, it has all the power of an Appellate Court. The
1
(2001) 8 SCC 676
2
(1994) 4 SCC 453
3
(2008) 2 SCC 254
H
522 SUPREME COURT REPORTS [2022] 11 S.C.R.
A statutory Rule cannot be inconsistent or repugnant with the parent Act.
Rule 121 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,
B
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
C 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;
otherwise, there is no provision for any departmental appeal.The appellant
D
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
E 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
F 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 render Rule 121 redundant and superfluous. The Managing
Committee would decide the matter after an inquiry and it is even stated
G after recording evidence.The Tribunal may award damages in an arbitrary
manner without determining relevant facts relating to gainful employment,
4
(2001) 10 SCC 445
5
(2013) 10 SCC 324
6
AIR 1962 SC 1334
7
(2004) 1 SCC 43
H 8
AIR 1962 SC 1621
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 523
& ANR. [K. M. JOSEPH, J.]
running of any business or joining some other school during the period of A
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? B
(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 C
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 D
the decision in 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:
E
“8. In this view of the matter, we are persuaded to take the view
that under sub-section (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
F
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.” G
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
H
524 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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.
B
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;
C (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.
D (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.
E 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 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,
F 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
G Office as District Judge or any equivalent Judicial Officer.Any indication
aboutpower 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
H the court of appeal by the Code of Civil Procedure and shall also have
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 525
& ANR. [K. M. JOSEPH, J.]
the power to stay operation of the order.We may incidentally also notice A
that Rule 120(3) declares that 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 B
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 C
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 D
the provisions in Section 107 is to only 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 E
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 F
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 G
equated with the Trial Court. Therefore, there is power to award back
wages. The comparison between anAppellate 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
H
526 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
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
C Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and
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
providedfor an appeal before the Tribunal under the said Act. Section 10
D 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
E 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 thatprovisions similar to Rule 121 is not seen reflected
in the said judgment,what makes the Judgment relevant is that this court
F had before it a law which 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
provisionsthat this Court proceeded to lay down the principles in regard
to the award of the back wages. This Court,inter alia, laid down follows:
G
“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
10
H (2013) 10 SCC 324
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 527
& ANR. [K. M. JOSEPH, J.]
the employee/workman, the financial condition of the employer A
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 B
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 C
of a 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 D
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 E
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 F
“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. G
The applicability, however of the provision under discussion to the
present case 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
11
(1962) 3 LR 200 PC H
528 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
language used and not be inference therefrom. The argument
fails.”
(Emphasis supplied)
19. The decision in Nalla Karumburu Kayambu Shanmugam
C (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
D application of the appellant was made in July, 1951. The provision relating
to the residence of the wife was, according to the applicant, inapplicable
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
E 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
F 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
G 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
H there had been no such repeal.”
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 529
& ANR. [K. M. JOSEPH, J.]
21. We would think that it may not be apposite to draw any support A
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 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
B
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 C
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 D
that Fundamental Rule 54 has no application as the said Rule contemplates
departmental appeal whereas Rule 121 deals with an appeal to the
Tribunal.
23. In this regard the appellant seeks support from the decision of
this Court in Devendra Pratap Narain Rai Sharma (supra). Therein E
theCourt considered the case which involved the question as to whether
Fundamental Rule 54 stood in the way of decree of the civil court (that
isthe 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 F
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 G
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 H
530 SUPREME COURT REPORTS [2022] 11 S.C.R.
A deemed to have been lawfully dismissed from service and the
order of reinstatement was superfluous. The effect of the
adjudication of 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
B
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
C 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
D 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 beyond dispute that the lawgiver has
contemplated an appeal only to the Tribunal constituted under Section
E 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
F 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
G 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 as to whether
H
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 531
& ANR. [K. M. JOSEPH, J.]
Regulations (Subordinate Legislation) framed by AICTE could oblige A
even a university to obtain prior approval. The contention of the appellant-
University 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
B
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 C
said case, this Court held that it may not be necessary to specifically
challenge subordinate legislation. The decision must notbe understood
as laying down the principle that the court may lightly depart from the
ordinary rule that when a law is questioned as ultra vires and, therefore,
unconstitutional, a proper challenge must be mounted against the same.
D
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 E
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 F
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 procedure for imposing the penalty. Against the major penalty G
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
H
532 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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 withduty. 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
B
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 context providing any material to the contrary, the
C 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
D
be understood as an appeal to the Tribunal constituted under Section 11
of the Act and he is re-instated, then it is not merely an enabling provision
which undoubtedly it is, in the sense that it confers a power on the
ManagingCommittee but we would go further and hold that it becomes
the duty of the Managing Committee to consider and pass an order. Any
E 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 to be paid to the reinstated employees. The salary and
F 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
G 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
H find whether the Tribunal has fully exonerated the employee in question.
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 533
& ANR. [K. M. JOSEPH, J.]
If it is so found, the employee is to be paid full salary and allowances. A
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 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
B
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 C
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 D
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 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. E
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 F
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 G
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 appellant about the availability of
power under Section 11 to order back wages. In a case where H
534 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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
B
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
C 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 payment of the allowances. The Tribunal is also not
D 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
E 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
F 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 order obtained by the Management
in the superior court. What is relevant is the actual re-instatement under
G 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.
H
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 535
& ANR. [K. M. JOSEPH, J.]
The Lawgiver has conferred a power with the management. The use of A
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
B
establish that he was fully exonerated. We have noticed that the order
of the appellate authority in an appeal directing re-instatement 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 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 C
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- D
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 re- E
instatement 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 a certain amount of
authority with the Managing Committee. This however, is not to be F
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 G
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
H
536 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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 found and the
consequences that ensue dissuade us from vesting such implied powers.
B
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
C 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
D involve the Tribunal being called upon to exercise the duty and the power,
which is best exercised by the Managing Committee.
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
E 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
F 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
G irrespective of irreconcilable differences between the parent enactment
and the subordinate legislation not been present, full play should not be
given to the latter.
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
H Judgment, we are of the view that, though attractive, the argument must
SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL 537
& ANR. [K. M. JOSEPH, J.]
fail. While we would not be loath to place an interpretation, which is in A
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
B
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 C
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 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. D
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 E
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.
F
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 in Shashi Gaur (supra). In the
case of penalty of reduction in rank (which is also a major penalty), the G
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 H
538 SUPREME COURT REPORTS [2022] 11 S.C.R.
A 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.
B
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
C 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
D of the employee therein was ordered as he was not possessed of the
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.
E 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
F 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.
G 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.
Ankit Gyan Appeal dismissed.
(Assisted by : Rahul Rathi, LCRA)
H
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