Case details

Court: Supreme Court of India
Decided: 28 July 2022
Bench: K.M. Joseph
Citations: 2022 INSC 764[2022] 11 S.C.R. 505
Type: Judgment (Dismissed)

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Supreme Court of India

SUNIL SIKRI versus GURU HARKRISHAN PUBLIC SCHOOL & ANR. on 28 July 2022

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[2022] 11 S.C.R. 505

SUNIL SIKRI

GURU HARKRISHAN PUBLIC SCHOOL & ANR.

(Civil Appeal No. 5562 of 2017)

JULY 28, 2022

[K. M. JOSEPH AND

PAMIDIGHANTAM SRI NARASIMHA, JJ.]

Delhi School Education Act, 1973 – ss. 8 & 11 – Whetherthere is any express power under Sections 8 and 11 to order backwages – Held: Having regard to the words used in Section 11(6) ofthe Act, it may not be appropriate to describe the provision asconferring express power with the Tribunal to pass an award ofback wages – Therefore, the respondent is right in contending thatSection 8 read with Section 11 of the Act do not confer an expresspower with the Tribunal to order back wages.

Delhi School Education Act, 1973 – ss. 8 & 11 – DelhiEducation Rules, 1973 – rr. 115, 117, 120 & 121 – Is Rule 121ultra vires to ss. 8 and 11 – Held: The management is given thepowers coupled with the duty to hold an inquiry and to pass anorder as to whether the employee must be found to be on duty ornot and for what period during his absence – The Lawgiver hasconferred a power with the management – The use of the words “inits opinion” indicates that the Managing Committee must apply itsmind and consider all aspects and take a view – This must,undoubtedly, be done after putting the employee on notice – Theemployee must be afforded an opportunity – The employee wouldbe 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 directingreinstatement may not be final as it can be impugned in the higherforum – Therefore, it may not be appropriate or apposite to findthat Rule 121 is in any manner ultra vires Sections 8 and 11 of theAct.

Delhi School Education Act, 1973 – ss. 8 & 11 – DelhiEducation Rules, 1973 – rr. 115, 117, 120 & 121 – Is there anyconflict between Sections 8 and 11 on the one hand and Rule 121

505

Aon the other hand – Held: Rule 121 is part of a scheme, whichconsists 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 withineight months – The Administrator, who has authored the Rules underSection 28 of the Act, has produced the Rules, which are found tobe in harmony with the Act – There is no inconsistency betweenBSection 8 read with Section 11 on the one hand and Rule 121 on theother.

Delhi School Education Act, 1973 – ss. 8 & 11 – DelhiEducation Rules, 1973 – rr. 115, 117, 120 & 121 – Whether thetribunal has incidental and ancillary power to direct payment ofCpay and allowance on setting aside the order of termination – Held:Rule 121(1)(a) contemplates that the Managing Committee mustconsider and pass an order and provide for salary and allowancesto be paid to the reinstated employees – Tribunal is not clothed withspecific powers to grant relief of payment of the allowances –DTribunal is also not empowered to deal with the question as to whetherthe employee must be treated as on duty for the period when theemployee remains absent on account of both the absence, whetheror not, on account of suspension before the termination andcompelled absence after the penalty is imposed – The Full Bench ofthe High Court in the impugned judgment declared that The ManagerEArya Samaj Girls Higher Secondary School & Anr. v. Sunrita Thakurcorrectly lays down the law regarding rule 121 – No fault with theview taken by the Full Bench of the High Court.

Dismissing the appeal, the Court

FHELD: 1. The first question, whether the argument of therespondent that Sections 8 and 11 do not contain any expressprovision for ordering back wages is correct? In this context thecontention of the appellant that the law giver has created a rightof appeal before the Tribunal and it is to act armed with the widepowers of the court of appeal under the Code of Civil Procedure.GAs far as Section 8(2) is concerned, the provision proscribesdismissal, removal or reduction in rank or the terminationotherwise of an employee except with the prior approval of theDirector. This is indeed to safeguard the right of the employee.Section 8(3) gives the right to an employee limited under theHstatute to one who has been dismissed, removed or reduced in rank to file an appeal before the Tribunal constituted underSection 11. We have already noticed the view taken by this courtin Shashi Gaur that any employee whose service is terminatedexcept as declared therein and not limited to what is provided inthe statute can challenge the termination before the Tribunalconstituted under Section 11. The Tribunal is to consist of a personwho has held the Office as District Judge or any equivalent JudicialOfficer. Any indication about power of the Tribunal is to be foundin Sections 11(5) and 11(6). Section 11(5) purports to empowerthe Tribunal to regulate its own procedure. Section 11(6) isperhaps more apposite and declares that the Tribunal for thepurpose of disposal of an appeal has the power vested in thecourt of appeal by the Code of Civil Procedure and shall alsohave the power to stay operation of the order. We may incidentallyalso notice that Rule 120(3) declares that an employee of arecognised private school who is aggrieved by any order imposingon him the penalty of compulsory retirement or any minor penaltymay 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 inspirationis sought to be drawn to the emphasis supplied to the words “maydecide the case finally”, to find that there is express power todecide on the question of emoluments as well, does not appeal tous. The purport of the provisions in Section 107 is to only declarethat the Appellate Court has a wide range of options, which includethe power to finally decide the case. This should be understoodto only mean that there is also a power to remand the case or togrant other relief, which may not result in the final disposal of thecase. This cannot be understood as meaning that the AppellateCourt has the express power to grant the relief of back-wages orto decide upon the question as to whether the period of absenceshould be treated as duty. This is the power coupled with a dutywhich is squarely vested with the Management. The right of appealunder Section 8 is given with respect to the order of terminationwhich has been interpreted by this Court inShashi Gaur to includeall kinds of termination except for termination which occurs byefflux of time. The argument of the appellant is that the disciplinaryauthority is to be treated as the original authority and, therefore,the tribunal in terms of Section 107(2) of the Code of the Civil A

AProcedure must be likened to an Appellate Court and what ismore, the disciplinary authority must be equated with the TrialCourt. Therefore, there is power to award back wages. Thecomparison between an Appellate Court and the Trial Court andthe vesting of powers on the Appellate Court in terms of thepower available to the Trial Court may not be an appropriate andBapposite analogy when it comes to the tribunal considering anappeal against the order of disciplinary authority under Section8. The tribunal will no doubt have the power to pronounce on thelegality of the original order, the impugned order of terminationand also order reinstatement. The events subsequent to theCtermination which have been recognized as relevant in casesincluding Deepali Gundu (supra) which decision has been reliedupon by the appellant himself may not strictly be the subject matterof the appeal for reasons, which we will more elaborately dwellupon. 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 respondentcannot be permitted to rely upon Rule 121 for the reason that nodepartmental appeal is contemplated under the Rules and whatis contemplated is only an appeal to the Tribunal. We are unableto accept the contention of the appellant. What Rule 54Eundoubtedly contemplates is a re-instatement on the basis of anorder passed in an appeal or other remedy under the ServiceRules. We may describe them as a departmental remedy.Fundamental Rule 54 has been found inapplicable in DevendraPratap Narain Rai Sharmawhen it was the civil court whichFdeclared the dismissal as non est for non-compliance with naturaljustice. Rule 121, in fact, specifically contemplates re-instatementof the employee whose services are terminated on the basis ofthe decision in an appeal and what is most important is the verypremise of the re-instatement is the decision in an appeal and it is beyond dispute that the lawgiver has contemplated an appealGonly to the Tribunal constituted under Section. In other words,unlike the position in Devendra Pratap Narain Rai Sharma, wherethe court had to deal with the decree of a civil court, which wasoutside the scope of Rule 54, in a case covered by Rule 121, theManaging Committee is to act thereunder only when there is re-Hinstatement necessitated by an order of the Tribunal under Section 11 in an appeal. In other words, a departmental appeal underfundamental Rule 54 is to be conflated to an appeal under Section11 in the case of Rule 121.[Para 24][530-B-F]

4. The next question which would arise is whether there ismerit in the argument of the appellant that Rule 121 is to befound as ultra vires the Section 11 of the Act. It is not in disputethat 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 isultra vires. What Rule 121 provides for, is the authority with theManaging Committee to consider and make two specific orders.Now the question will arise is, at what stage is the said orders tobe passed and what is the nature of the order to be passed apartfrom how it is to be passed. The question will further arise as towhether it is a discretionary power or whether the lawcontemplates a mandatory duty. In our view, Rule 121 enshrinesthe principle of power coupled with duty. This conclusion isinevitable 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 thecontext, the purpose of the law, the consequences that wouldfollow to dilute the mandatory consequences that ordinarily flowfrom the deliberate choice of the word ‘shall’. Far from the contextproviding any material to the contrary, the setting of Rule 121,the purpose of the Rule and the consequences of not giving amandatory flavour overwhelmingly indicate that the lawgiver hasmade it an inflexible duty on the part of the Managing Committeeto 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 anappeal which must be understood as an appeal to the Tribunalconstituted under Section 11 of the Act and he is re- instated,then it is not merely an enabling provision which undoubtedly itis, in the sense that it confers a power on the ManagingCommittee but we would go further and hold that it becomes theduty of the Managing Committee to consider and pass an order.

AAny other view would put the employee at the mercy of theemployer.[Para 25 & 27][530-F-H; 531-G-H; 532-A-E]

5. Now coming to what would constitute the subject matterof the order to be passed, Rule 121(1)(a) contemplates that theManaging Committee must consider and pass an order andBprovide for salary and allowances to be paid to the reinstatedemployees. The salary and allowances is to be provided for theperiod the employee remained absent from duty. This wouldinclude his absence from duty caused by his suspension prior tohis dismissal, removal or compulsory retirement. The nextspecific matter which should engage the attention of the ManagingCCommittee is as to whether the reinstated employees must betreated as on duty during the period of absence. Rule 121(2)confers a power with the Managing Committee to consider thequestion as to whether ‘in its opinion’, the employee has beenfully exonerated. The plain meaning of this provision is that whenDthe order passed by the Tribunal directing reinstatement, isimplemented, the Managing Committee is duty bound to lookinto the proceeding culminating in the order of the Tribunal andfind whether the Tribunal has fully exonerated the employee inquestion. If it is so found, the employee is to be paid full salaryand allowances. The proviso to Rule 121(2) empowers theEManaging Committee to come to a conclusion that the employeeis guilty of delaying the proceedings instituted against him. Itcan be done only after giving a reasonable opportunity to make arepresentation, and after considering the version of the employee.It can direct that the employee need be paid only such allowancesFas it finds supported by reasons in writing for the period of suchdelay. This is subject to the limitations which are carved out inRule 121(3). A perusal of Rule 121 would reveal that the powercoupled with the duty will come into play only after the order ofthe Tribunal directing reinstatement is accepted by the Management. This we say for the reason that Rule 121 speaksGabout the employee who had been dismissed, removed orcompulsory retired being reinstated by the Management. Ofcourse, Rule 121 would also apply if but for his retirement orsuperannuation, the employee would have been reinstated. Boththese consequences will follow only if the order of reinstatementH

of the Tribunal becomes final. In other words, if the order of theTribunal is under challenge and the stage has not arrived wherethe Managing Committee actually reinstates or would havereinstated but for his retirement, Rule 121 would not apply.[Para28 & 29][532-E-H; 533-A-E]

6. Section 8(3) as also Rule 120(3) provide for a right ofappeal which right must be understood in the light of the lawdeclared by this Court as expanded to include all cases oftermination except termination brought about by the efflux oftime. [See Shashi Gaur judgment]. The appeal is not filed againstthe order of a Trial Court as such. No doubt, the power availableto the civil court under the Code of Civil Procedure are showeredupon the Tribunal. The Tribunal is not clothed with specific powersto grant relief of payment of the allowances. The Tribunal is alsonot empowered to deal with the question as to whether theemployee must be treated as on duty for the period when theemployee remains absent on account of both the absence, whetheror not, on account of suspension before the termination andcompelled absence after the penalty is imposed. The appellantrelies on the judgment of Deepali Gundu . One of the questions,which would fall for consideration, is the question as to whetherthe employee was gainfully employed elsewhere during the periodof compelled absence. The Tribunal is called upon to decide thelegality and correctness of the penalty. It is certainly entitled toact as an appellate body and come to the conclusion that therewas no basis either for reasons which are technical or on thebasis that no case is made out even on merits to impose thepenalty against the employee. Should the Tribunal set aside thepenalty covered by Rule 121, it is always open to the managementto take recourse to remedies open to it. The order of re-instatement does not become final. The employee remains absentundoubtedly on the basis of the order obtained by theManagement in the superior court. What is relevant is the actualre-instatement under Rule 121 which would set the stage forholding the inquiry thereunder. The inquiry, it must be noticed isnot merely limited to the question of pay and allowances. Themanagement is given the powers coupled with the duty to holdan inquiry and to pass an order as to whether the employee must A

Abe found to be on duty or not and for what period during hisabsence. The Lawgiver has conferred a power with themanagement. The use of the words “in its opinion” indicates thatthe Managing Committee must apply its mind and consider allaspects and take a view. This must, undoubtedly, be done afterputting the employee on notice. The employee must be affordedBan opportunity. The employee would be in a position to point outthat he was not employed elsewhere. He would also be able toestablish that he was fully exonerated. We have noticed that theorder of the appellate authority in an appeal directing re-instatement may not be final as it can be impugned in the higherCforum. Therefore, it may not be appropriate or apposite to findthat Rule 121 is in any manner ultra vires Sections 8 and 11 of theAct. Properly appreciated and implemented, the provisions ofthe parent Act and the subordinate legislation can beharmonized.[Para 31][534-B-H; 535-A-C]

D7. There is express power with the Managing Committeeto be exercised at a particular point of time which arrives whenre-instatement is effected or re-instatement would have followedbut for retirement of the employee. Rule 121, in our view, whilebeing an enabling provision must also be interpreted as a case ofpower coupled with a duty. The power must be exercised promptlyEand without fail by the Managing Committee immediately followingthe re-instatement of the employee which would be the result ofany voluntary order of re- instatement or re-instatement, whichis inevitable following the binding orders of the court. Themanagement is duty bound to conduct an inquiry to pass the ordersFcontemplated under Rule 121(1)(a) and (b). The presence of thewords “in its opinion” do indicate a certain amount of authoritywith the Managing Committee. This however, is not to beconfused with any right to act with arbitrariness or caprice. Inother words, it is duty bound to look into all the inputs includingthe orders which are finally passed which led to the re-instatementGof the employee. It is duty bound to act fairly. The question aboutthe employee being gainfully employed and the amount receivedtill the stage of reinstatement, is aptly gone into under Rule 121.After putting the employee on notice and giving him an H

opportunity, the Managing Committee must provide for thematters which are provided therein, namely Rule 121.[Para32][535-D-H]

8. The power coupled with duty takes life not only uponthere being an order of reinstatement in an appeal but upon theManaging Committee proceeding to implement the direction toreinstate, issued by the Tribunal. If the power is to be exercisedby the Tribunal apart from the fact that there would be situations,such as, contemplated in Rule 115 of the Rules, which wouldrender both the Rule and right given to the Management underthe said Rule, meaningless and futile, it would involve the Tribunalbeing called upon to exercise the duty and the power, which isbest exercised by the Managing Committee. Rule 121 is part ofa scheme, which consists of both Sections 8 and 11 of the Act asalso Rules 115(4) and 121. The Rules have been enacted in thesame year within eight months, as noticed by the High Court.The Administrator, who has authored the Rules under Section28 of the Act, has produced the Rules, which are found to be inharmony with the Act. We are unable to cull out any inconsistencybetween Section 8 read with Section 11 on the one hand and Rule121 on the other. While we are not maintaining for a moment thatthe Court is rendered powerless or not bound by a duty to unravelthe mind of the Legislature and strike at a subordinate Legislation,where it is ultra vires, we do not find any scope for applying thesaid principle in the facts. In this regard, while we are consciousof the view taken that subordinate legislation cannot control theinterpretation to be placed on the parent enactment, it is not thesame as holding irrespective of irreconcilable differences betweenthe parent enactment and the subordinate legislation not beenpresent, full play should not be given to the latter. As far as thequestion of the delay in the employee getting relief on theinterpretation placed by the Full Bench in the impugnedJudgment, we are of the view that, though attractive, the argumentmust fail. While we would not be loath to place an interpretation,which is in agreement with the appellant’s appeal to us, we feelthat for the reasons, which we have given, the argument of theappellant is in the teeth of a scheme, which is intended to beworked in accordance with a value judgement, which reaches A

Ajustice to both sides. Undoubtedly, we make it clear that thereshould not be any room for needless and unjustifiable delay onthe part of the Management in concluding the proceedings underRule 121. This is different from saying, however, that suchproceedings can be dispensed with or the Tribunal can or shouldbe burdened with the task, which is aptly and appropriately timedBand positioned to be performed by the Managing Committee.[Para34-36][536-C-H; 537-A-C]

9. No doubt, the appellant has a case that in view of the factin Shashi Gaur(supra), this Court enlarged the scope of theappellate remedy under Section 11 to cases of termination otherCthan, what is provided in the Rule 121 and, what is more, Section8 itself. He would submit that as Rule 121 is not applicable tocases which are not enumerated in Rule 121, it would create asituation where, in cases of termination not covered by Rule 121,the Tribunal would have the power to grant back-wages. WhereasDthe Tribunal would have the said power, in cases not covered byRule 121. This creates an anomalous position, it is contended. Inthe impugned Judgment, the High Court has proceeded to holdthat in view of the expanded right of appeal based on theJudgment of this Court in ShashiGaur(supra), the ManagingCommittee would have the power to make the specific order inErespect of any termination in the light of the Judgment of thisCourt inShashi Gaur(supra). In view of the interpretation placedby this Court creating the situation, by which an appeal ispermitted against an order of termination, other than specificallymentioned in, both Section 8(3) and Rule 121, This court is not Fin a position to find fault with the view taken by the FullBench.[Para 38 & 39][537-D-G; 538-F-G]

Shashi Gaur v. NCT of Delhi and others(2001) 10 SCC445 – relied on.

Bharathidasan University and another v. All-IndiaGCouncil for Technical Education and others (2001) 8SCC 676 : [2001] 3 Suppl. SCR 253;State of A.P. v. P.Narasimha and another (1994) 4 SCC 453;KarnatakaBank Ltd. v. State of Andhra Pradesh and others (2008)

SUNIL SIKRI v. GURU HARKRISHAN PUBLIC SCHOOL& ANR.

2 SCC 254 : [2008] 1 SCR 986;Deepali GunduSurwase v. Kranti Junior Adhyapak Mahavidyalaya(D.Ed.) and others(2013) 10 SCC 324 : [2013] 9SCR 1; Devendra Pratap Narain Rai Sharma v. Stateof Uttar Pradesh and othersAIR 1962 SC 1334 : [1962]1 Suppl. SCR 315;Union of India v. MadhusudanPrasad(2004) 1 SCC 43 : [2003] 4 Suppl. SCR 1026;Smt. Ujjam Bai v. State of Uttar PradeshAIR 1962 SC1621 : [1963] 1 SCR 778;Shanmugam v. Commissionerfor Registration(1962) 3 LR 200 PC - referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No.5562of 2017.

From the Judgment and Order dated 14.05.2015 of the High Courtof Delhi at New Delhi in Writ Petition (C) No.8058 of 2011.

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. BalaramDas, B. Krishna Prasad, Advs. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. The Delhi School Education Act 1973 (hereinafter referred toas “the Act”) was promulgated on 9[th] April, 1973. In the very same yearon the 31[st] December, 1973, the Delhi School Education Rules, 1973

Awere promulgated. The said Rules are referred to as “the Rules”. ChapterIV of the Act deals with the terms and conditions of Service of Employeesof recognised Private Schools. What is relevant to the lis are Sections 8and 11 of the Act, and they read as follows:

“8. Terms and conditions of service of employees of recognisedprivate schools.—

(1) The Administrator may make rules regulating the minimumqualifications for recruitment, and the conditions of service, ofemployees of recognised private schools:

Provided that neither the salary nor the rights in respect ofleave of absence, age of retirement and pension of an employeein the employment of an existing school at the commencement ofthis Act shall be varied to the disadvantage of such employee:

Provided further that every such employee shall be entitledto opt for terms and conditions of service as they were applicableto him immediately before the commencement of this Act.

(2) Subject to any rule that may be made in this behalf, no employeeof a recognised private school shall be dismissed, removed orreduced in rank nor shall his service be otherwise terminatedexcept with the prior approval of the Director.

(3) Any employee of a recognised private school who is dismissed,removed or reduced in rank may, within three months from thedate of communication to him of the order of such dismissal,removal or reduction in rank, appeal against such order to theTribunal constituted under section 11.

(4) Where the managing committee of a recognised private schoolintends to suspend any of its employees, such intention shall becommunicated to the Director and no such suspension shall bemade except with the prior approval of the Director:

Provided that the managing committee may suspend anemployee with immediate effect and without the prior approval ofthe Director if it is satisfied that such immediate suspension isnecessary by reason of the gross misconduct, within the meaningof the Code of Conduct prescribed under section 9, of theemployee:

Provided further that no such immediate suspension shallremain in force for more than a period of fifteen days from thedate of suspension unless it has been communicated to the Directorand approved by him before the expiry of the said period.

(5) Where the intention to suspend, or the immediate suspensionof an employee is communicated to the Director, he may, if he issatisfied that there are adequate and reasonable grounds for suchsuspension, 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 oneperson:

Provided that no person shall be so appointed unless he hasheld office as a District Judge or any equivalent judicial office.

(2) If any vacancy, other than a temporary absence, occurs in theoffice of the presiding officer of the Tribunal, the Administratorshall appoint another person, in accordance with the provisions ofthis section, to fill the vacancy and the proceedings may becontinued before the Tribunal from the stage at which the vacancyis filled.

(3) The Administrator shall make available to the Tribunal suchstaff as may be necessary in the discharge of its functions underthis Act.

(4) All expenses incurred in connection with the Tribunal shall bedefrayed out of the Consolidated Fund of India.

(5) The Tribunal shall have power to regulate its own procedurein all matters arising out of the discharge of its functions includingthe place or places at which it shall hold its sittings.

(6) The Tribunal shall for the purpose of disposal of an appealpreferred under this Act have the same powers as are vested in acourt of appeal by the Code of Civil Procedure, 1908 (5 of 1908)and shall also have the power to stay the operation of the orderappealed against on such terms as it may think fit.”

2. Next, we may notice the provisions in the Rules. Rule 115deals with suspension. We need notice only Rule 115(1) and 115(4),interalia:

“115. Suspension

(1) Subject to the provision of sub-sections (4) and (5) of section8, the managing committee may place an employee of a recognisedprivate school, whether aided or not, under suspension: —

a) where a disciplinary proceeding against such employee iscontemplated or pending; or (b) where a case against him in respect of any criminal offence isunder investigation or trial; or

(c) where he is charged with embezzlement; or (d)where he is charged with cruelty towards any student or otheremployee 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 ofconduct.

xxxxxxxxx

(4) Where a penalty of dismissal, removal or compulsory retirementfrom service imposed upon an employee is set aside or renderedvoid, in consequence of or by, a decision of a court of law or ofthe Tribunal; and the disciplinary authority on a consideration ofthe circumstances of the case decides to hold further inquiry againstsuch employee on the same allegations on which the penalty ofdismissal, removal or compulsory retirement was originallyimposed, such employee shall be deemed to have been placedunder suspension by the managing committee from the date oforiginal order of dismissal, removal or compulsory retirement andshall continue to remain under suspension until further orders:Provided that no such further enquiry shall be ordered unless it isintended to meet a situation where the court has passed an orderpurely on technical grounds without going into the merits of thecase.”

3. Rule 117 deals with penalties and disciplinary authority. Underthe category of major penaltiesare reduction in rank, compulsoryretirement, removal from service and dismissal from service. Rule 120deals with procedure for imposing major penalty. Rule 121 which is atthe centre stage of the controversy provides as follows:

“121. Payment of pay and allowances on reinstatement -

(1) When an employee who has been dismissed, removed orcompulsorily retired from service is reinstated as a result of appealor would have been so reinstated but for his retirement onsuperannuation while under suspension preceding the dismissal,removal or compulsory retirement, as the case may be, themanaging committee shall consider and make a specified order: - (a) with regard to the salary and allowances to be paid to theemployee for the period of his absence from duty, including theperiod of suspension preceding his dismissal, removal orcompulsory retirement, as the case may be; and (b) whether or not the said period shall be treated as the periodspent on duty.

(2) Where the managing committee is of opinion that the employeewho had been dismissed, removed or compulsorily retired fromservice had been fully exonerated, the employee shall be paid thefull salary and allowances to which he would have been entitledhad he not been dismissed, removed or compulsorily retired fromservice or suspended prior to such dismissal, or compulsoryretirement from service, as the case may be:

Provided that where the managing committee is of opinionthat the termination of the proceedings instituted against theemployee had been delayed due to reasons directly attributable tothe employee, it may, after giving a reasonable opportunity to theemployee to make representations and after considering therepresentation, if any, made by the employee, direct, for reasonsto be recorded by it in writing, that the employee shall he paid forthe period of such delay only such proportion of the salary andallowances as it may determine.

(3) The payment of allowances shall be subject to all otherconditions under which Midi allowances are admissible and theproportion of the full salary and allowances determined under theproviso to sub-rule (2) shall not be less than the subsistenceallowance and other admissible allowances.”

4. Having set out the statutory framework, the time is now ripe tonotice the relevant facts which led to the litigation. We may notice thefacts as set out in the impugned judgment:

“The second respondent was appointed as a PGT (Chemistry) bythe Guru Harkishan Public School, admittedly a minority institution,on July 02, 1984. As per the school, on January 22, 1994 therespondent No.2 not only misbehaved but even molested a newlymarried employee of the school in full public view and when thetormented lady complained to the principal of the school, on beingsummoned the said respondent not only profusely apologized butto save his honour and respect so that no stigma was cast tendereda voluntary resignation on January 22, 1994 and requested theprincipal of the school to accept the same forthwith. The principalforwarded the letter of resignation to the Chairperson of theManaging Committee of the School who accepted the same; andthus ceased the employer-employee relationship between theschool and the second respondent. The respondent No.2 disputesthe version and claims that the resignation was the result ofcoercion and that the letter of resignation was withdrawn the nextday on January 23, 1994 before it could be acted upon. He alsoquestions the competence of the Chairperson of the ManagingCommittee of the school to accept the same. It is in this backdropthat appeal No.14/1994 fell in the lap ofthe Delhi School EducationTribunal for decision. Unfortunately, the appeal came to be decidedafter 17 years of it being filed. Vide order dated August 18, 2011the Tribunal held that the letter of resignation submitted by thesaid respondent was withdrawn before it was accepted and thuscould not be acted upon. The Tribunal has also held that theChairperson of the Managing Committee was not the CompetentAuthority to accept the resignation. As a result, the termination ofthe second respondent’s service has been held to be illegal. Thesaid respondent has been directed to be reinstated in service: 50%back wages have been directed to be paid. The writ petitionchallenges the award granting 50% back wages.”

5. The Learned Single Judge noting the conflicting opinionsbetween two learned Judges referred the matter to the Larger Bench.GThe point of controversy is this. The writ petitioner contended that theTribunal did not have the power to decide on the issue of back wages.The said question is squarely covered by provisions of Rule 121. UnderRule 121, it is the Managing Committee, which is to take a decision.

6. The Full Bench, by the impugned Judgement, proceeded toHanswer the reference in the following manner:

“45. We answer the reference as under: -

(i) The law declared by the learned Single Judge of this Court inthe decision reported as 43 (1991) DLT 139 The Manager ArvaSamaj Girls Higher Secondary School & Anr. Vs. SunritaThakur correctly lays down the 1aw concerning the interpretationof Rule 121 of the Delhi School Education Rules, 1973 and theview taken by the learned Single Judge in the decision datedJanuary 17, 2006 in W.P.(C) No.7617/2000 The ManagingCommittee Heera Lal Jain Vs. Shri Chander Gupt Sharma &Ors. is overruled.

(ii) Rule 121 of the Delhi School Education Rules, 1973 wouldapply to minority unaided schools recognized under the Delhi SchoolEducation Rules, 1973.”

7. The appellant before us is the second respondent in the writpetition. We have heard learned counsel for the appellant Anuj Agrawaland Shri A.P.S. Ahluwalia, learned Senior Counsel appearing on behalfof the respondent.

8. The appellant would dub Rule 121 as ultra vires. He wouldpoint out that it would be open to this Court to pronounce the Ruleunconstitutional despite the fact that the Rule has not been challengedbefore the High Court. In this context, he relies upon the Judgment ofthis Court in Bharathidasan University and another v. All-IndiaCouncil for Technical Education and others1. It is the appellant’s furthercase that the Tribunal under Section 7 has the same power as are vestedin the court of appeal under the Code of Civil Procedure. The AppellateCourt has the power as the court of original jurisdiction possesses.It ispointed out that the court of original jurisdiction is the Managing committee,and therefore, the power of the Tribunal extends to awarding back wages.It is further contended that the Tribunal already has incidental and ancillarypowers to make the express statutory powers effective.He relies uponthe judgment of this Court inState of A.P. v. P. Narasimha and another2and Karnataka Bank Ltd. v. State of Andhra Pradesh and others3.The Lawgiver intended to create a Specialised Tribunal.Being aSpecialised 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

Astatutory Rule cannot be inconsistent or repugnant with the parent Act.Rule 121 is confined to cases of dismissal, removal and compulsoryretirement. In Shashi Gaur v. NCT of Delhi and others4, this courthas taken the view that an aggrieved employee can challenge all kindsof termination of service. If that is so, in cases not falling within theambit of Rule 121, it would empower the Tribunal to award back wages,Bwhereas it would be prevented from doing so in regard to cases fallingunder Rule 121. It is contended that the Tribunal has the power to awardback wages. The Tribunal must have the power to decide the issue ofback wages in all cases in view of the factors and guidelines laid down in Deepali Gundu Surwase v. Kranti Junior AdhyapakCMahavidyalaya (D.Ed.) and others5. The correctness of the impugnedjudgment in regard to the finding that Rule 121 applies to all institutions,including minority institutions, is not questioned. It is contended thatFundamental Rule 54 applies only to a departmental appeal. In the caseof a complaint about subsistence allowance, a departmental appeal lies;otherwise, there is no provision for any departmental appeal.The appellantDrelies on Devendra Pratap Narain Rai Sharma v. State of UttarPradesh and others6 and Union of India v. Madhusudan Prasad7.

9. Per contra, the contention of the respondent is as follows,interalia. The Tribunal under Section 8 read with Section 11 of the Act doesnot possess any express power. Reliance is placed on the judgment ofEthis Court in Smt. Ujjam Bai v. State of Uttar Pradesh8. It is furtherpointed out that the view taken in the impugned Judgment by the FullBench has been followed in a large number of cases. It is contendedthat if a judgment has been consistently followed for a long time,theprinciple of certainty of law requires that it should not be disturbed. TheFspirit of the law is that after the Tribunal directs re-instatement it woulddirect the Managing Committee to conduct an inquiry under Rule 121.Anaggrieved employee can challenge the proceedings in the appropriateforum and clothing the Tribunal with the power to award back wageswould render Rule 121 redundant and superfluous. The Managing

Committee would decide the matter after an inquiry and it is even statedGafter recording evidence.The Tribunal may award damages in an arbitrarymanner without determining relevant facts relating to gainful employment,4 (2001) 10 SCC 4455 (2013) 10 SCC 3246 AIR 1962 SC 13347 (2004) 1 SCC 43H8 AIR 1962 SC 1621

running of any business or joining some other school during the period ofabsence. In our view, the following points would arise:

“(I) Whether there is any express power under Sections 8 and 11to order back wages?

(II) Whether Fundamental Rule 54 fortifies the contention of therespondent?

(III) Is there any conflict between Sections 8 and 11 on the onehand and Rule 121 on the other hand? Is Rule 121 ultra vires toparent enactment?

(IV) Whether the tribunal has incidental and ancillary power todirect payment of pay and allowance on setting aside the order oftermination?”

ANALYSIS

10. We have noticed that Section 8 provides for an appeal limitedto dismissal, removal or compulsory retirement. However, this Court inthe decision in Shashi Gaur v. NCT of Delhi and others9 held that anappeal lies under Section 8(3) also against termination otherwise. Theonly exception carved out is termination of service upon the servicehaving come to an end by efflux of time. We may in this context, nodoubt, notice what this Court noticed in Paragraph 8.It reads as under:

“8. In this view of the matter, we are persuaded to take the viewthat under sub-section (3) of Section 8 of the Act, an appeal isprovided against an order not only of dismissal, removal or reductionin rank, which obviously is a major penalty in a disciplinaryproceeding, but also against a termination, otherwise except, wherethe service itself comes to an end by efflux of time for which theemployee was initially appointed. Therefore, we do not find anyinfirmity with the order of the High Court not entertaining the writapplication in exercise of its discretion though we do not agreewith the conclusion that availability of an alternative remedy ouststhe jurisdiction of the court under Article 226 of the Constitution.”

11. We will proceed further on the basis that the provisions willapply across the board as found by the full Bench, which includes minorityinstitutions.

9 (2001) 10 SCC 445

A12. The first question, we must decide is, whether the argumentof the respondent that Sections 8 and 11 do not contain any expressprovision for ordering back wages is correct? In this context we mustalso bear in mind the contention of the appellant that the law giver hascreated a right of appeal before the Tribunal and it is to act armed withthe wide powers of the court of appeal under the Code of Civil Procedure.BSection 107 of the Code of civil Procedure, reads as follows:

“(1) Subject to such conditions and limitations as may beprescribed, an Appellate Court shall have power- (a) to determine a case finally; C(b) to remand a case;

D(2) Subject as aforesaid, the Appellate Court shall have the samepowers and shall perform as nearly as may be the same duties asare conferred and imposed by this Code on Courts of originaljurisdiction 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 proscribesdismissal, removal or reduction in rank or the termination otherwise ofan employee except with the prior approval of the Director.This is indeedto safeguard the right of the employee. Section 8(3) gives the right to anemployee limited under the statute to one who has been dismissed,Fremoved or reduced in rank to file an appeal before the Tribunalconstituted under Section 11. We have already noticed the view takenby this court in Shashi Gaur (supra) that any employee whose serviceis terminated except as declared therein and not limited to what is providedin the statute can challenge the termination before the Tribunal constitutedunder Section 11. The Tribunal is to consist of a person who has held theGOffice as District Judge or any equivalent Judicial Officer.Any indicationaboutpower 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 ownprocedure. Section 11(6) is perhaps more apposite and declares that theTribunal for the purpose of disposal of an appeal has the power vested inHthe 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 noticethat Rule 120(3) declares that an employee of a recognised private schoolwho is aggrieved by any order imposing on him the penalty of compulsoryretirement or any minor penalty may appeal to the Tribunal.

15. As far as Section 107 of the Code of civil Procedure isconcerned, it declares that subject to such conditions and limitations thatmay be prescribed, the appellate court has the power to determine acase finally. It is also blessed with the power to remand a case. It canalso frame issues and refer the issues for trial.It is also authorised totake additional evidence or permit the evidence to be taken. Section107(2) declares that the appellate court would have the same power andperform nearly the same duty as are conferred and imposed on thecourts of original jurisdiction in respect of suits instituted therein.

16. Reliance placed on Section 107 of the CPC, if inspiration issought to be drawn to the emphasis supplied to the words “may decidethe case finally”, to find that there is express power to decide on thequestion of emoluments as well, does not appeal to us. The purport ofthe provisions in Section 107 is to only declare that the Appellate Courthas a wide range of options, which include the power to finally decidethe case. This should be understood to only mean that there is also apower to remand the case or to grant other relief, which may not resultin the final disposal of the case. This cannot be understood as meaningthat the Appellate Court has the express power to grant the relief ofback-wages or to decide upon the question as to whether the period ofabsence should be treated as duty. This is the power coupled with a dutywhich is squarely vested with the Management.The right of appeal underSection 8 is given with respect to the order of termination which hasbeen interpreted by this Court in Shashi Gaur (supra) to include allkinds of termination except for termination which occurs by efflux oftime. The argument of the appellant is that the disciplinary authority is tobe treated as the original authority and, therefore, the tribunal in terms ofSection 107(2) of the Code of the Civil Procedure must be likened to anAppellate Court and what is more, the disciplinary authority must beequated with the Trial Court. Therefore, there is power to award backwages. The comparison between anAppellate Court and the Trial Courtand the vesting of powers on the Appellate Court in terms of the poweravailable to the Trial Court may not be an appropriate and appositeanalogy when it comes to the tribunal considering an appeal against the A

Aorder of disciplinary authority under Section 8. The tribunal will no doubthave the power to pronounce on the legality of the original order, theimpugned order of termination and also order reinstatement. The eventssubsequent to the termination which have been recognized as relevantin cases including Deepali Gundu (supra) which decision has been reliedupon by the appellant himself may not strictly be the subject matter ofBthe appeal for reasons, which we will more elaborately dwell upon.Werepel the argument of the appellant.

17. Before we proceed further, we must pause and enquire as towhether the lawgiver elsewhere has been more expressive in the matterof grant of specific power in the area of dispute. In Deepali GunduCSurwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) andOthers10, this Court had the occasion to deal with a case that aroseunder the Maharashtra Employees of Private School (Conditions ofService) Regulation Act, 1977.It is worthwhile to notice that Section 9providedfor an appeal before the Tribunal under the said Act. Section 10Dpurported to set out the general power and procedure of the Tribunal.It,inter alia, declared that the Tribunal would have the same power asare vested in Appellate Court under the Code of Civil Procedure. This isbesides any other power conferred on it by or under the Act. Section 11provided for the powers of the Tribunal to give appropriate reliefs anddirections.Section 11(2) expressly provided that the Tribunal,may interEalia, direct the management to give arrears of emoluments to theemployee for such period as it may specify. It was also provided furtherwith the power to give such other reliefs to the employee,inter alia.Apart from the fact thatprovisions similar to Rule 121 is not seen reflectedin the said judgment,what makes the Judgment relevant is that this court

Fhad before it a law which provided for the right of appeal before theTribunal and which expressly conferred power on the Tribunal to grantthe relief of arrears of emoluments. Such a provision is conspicuous byits absence in Section 11 of the Act.It is on the conspectus of the saidprovisionsthat this Court proceeded to lay down the principles in regardto 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 decidingthe issue of back wages, the adjudicating authority or the courtmay take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against H10 (2013) 10 SCC 324

the employee/workman, the financial condition of the employerand similar other factors.

38.3. Ordinarily, an employee or workman whose services areterminated and who is desirous of getting back wages is requiredto either plead or at least make a statement before the adjudicatingauthority or the court of first instance that he/she was not gainfullyemployed or was employed on lesser wages. If the employer wantsto avoid payment of full back wages, then it has to plead and alsolead cogent evidence to prove that the employee/workman wasgainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is sobecause it is settled law that the burden of proof of the existenceof a particular fact lies on the person who makes a positiveaverment about its existence. It is always easier to prove a positivefact than to prove a negative fact. Therefore, once the employeeshows that he was not employed, the onus lies on the employer tospecifically plead and prove that the employee was gainfullyemployed and was getting the same or substantially similaremoluments.”

18. We are conscious of the fact that the jurisdiction of an appellatecourt is not to be construed in a pedantic manner. In fact, the effort ofthe Court must be to not abridge the power of the appellate court. InShanmugam v. Commissioner for Registration11, no doubt, the PrivyCouncil held as follows:

“It is argued that the Act does not contain the “express provision”required by the Interpretation Ordinance to make it applicable.Their Lordships do not agree. Upon the meaning of the words“express provision” counsel relied upon in re Meredith and statedthat it must be provision the applicability of which did not arise byinference. He argued that there was no “express provision” as noreference had been made to pending proceedings. Their Lordshipsare of the view that it is correct to state that expression provisionis provision the applicability of which does not arise by inference.The applicability, however of the provision under discussion to thepresent case does not arise by inference; it arises directly fromthe language used. The fact that the language used is wide andcomprehensive and covers many points other than the one 11 (1962) 3 LR 200 PC

Aimmediately under discussion does not make it possible to saythat its application can arise by inference only. To be “expressproivision” with regard to something it is not necessary that thatthing should be specially mentioned; it is sufficient that it is directlycovered by the language however broad the language may bewhich covers it so long as the applicability arises directly from theBlanguage used and not be inference therefrom. The argumentfails.”

(Emphasis supplied)

19. The decision in Nalla Karumburu Kayambu ShanmugamC(supra), arose as an appeal from the Supreme Court of Ceylon, dismissingan appeal from an Order of the Commissioner, refusing to register theappellant as a citizen of Ceylon. The relevant law insisted upon certainconditions to be fulfilled. The refusal was based on the appellant’s wifenot having resided in Ceylon as required and the appellant had not satisfiedthe requirement that he was permanently settled in Ceylon. TheDapplication of the appellant was made in July, 1951. The provision relatingto the residence of the wife was, according to the applicant, inapplicableas it was made in the year 1952. However, it was given retrospectiveeffect as follows.

“The amendments effected by the preceding sections of this ActEshall be deemed to have come into force on the date appointedunder Section 1 of the principal Act; and accordingly, but subjectto the provisions of Sub-section (3) of this section, the principalAct 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 dateFbeen amended in the manner provided by this Act.”20. The applicant therein sought support from the followingprovision which formed the basis for the discussion we have referred to:

“6(3) Whenever any written law repeals either in whole or part aformer written law, such repeal shall not, in the absence of anyGexpress provision to thateffect, affect or be deemed to haveaffected –

(c) any action, proceeding, or thing pending or incompleted whenthe repealing written law comes into operation, but every suchaction, proceeding, or thing may be carried on and completed as ifHthere had been no such repeal.”

21. We would think that it may not be apposite to draw any supportfrom the said decision. It is clear that in the facts and on a conspectus ofthe provisions involved therein, the principle, as to whether there is anexpress provision, was applied, it is a matter to be decided on the inevitableeffect flowing from the width of the words used. It is not a case wherethe court countenanced presence of express provisions on the basis ofan inference which method is expressly frowned upon. In this case, weare 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 conferringexpress power with the Tribunal to pass an award of back wages.Wefeel reinforced in our findings by noticing how, in a similar legislation, aLawgiver has expressly conferred such powers on the Tribunal.Wewould, therefore, conclude that we cannot but find that the respondent isright in contending that Section 8 read with Section 11 of the Act do notconfer an express power with the Tribunal to order back wages.

22. In this regard, we may at once notice the case of the appellantthat Fundamental Rule 54 has no application as the said Rule contemplatesdepartmental appeal whereas Rule 121 deals with an appeal to theTribunal.

23. In this regard the appellant seeks support from the decision ofthis Court in Devendra Pratap Narain Rai Sharma(supra). ThereintheCourt considered the case which involved the question as to whetherFundamental Rule 54 stood in the way of decree of the civil court (thatisthe High Court in an appeal in the suit which held that the appellanttherein was not afforded the opportunity to defend him before he wasvisited with the punishment of dismissal) being effectuated. The HighCourt declared the dismissal to be void and that the appellant thereinmust be deemed to be in service. Fundamental Rule 54 is essentially insubstance 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 whichthe dismissal of a public servant is declared invalid by a civil courtand he is reinstated. This rule, undoubtedly enables the StateGovernment to fix the pay of a public servant whose dismissal isset aside in a departmental appeal. But in this case the order ofdismissal was declared invalid in a civil suit. The effect of thedecree of the civil suit was that the appellant was never to be A

Adeemed to have been lawfully dismissed from service and theorder of reinstatement was superfluous. The effect of theadjudication of the civil courts is to declare that the appellant hadbeen wrongfully prevented from attending to his duties as a publicservant. It would not in such a contingency be open to the authorityto deprive the public servant of the remuneration which he wouldBhave earned had he been permitted to work.”

24. The contention of the appellant is that the respondent cannotbe permitted to rely upon Rule 121 for the reason that no departmentalappeal is contemplated under the Rules and what is contemplated is onlyan appeal to the Tribunal. We are unable to accept the contention of theCappellant.What Rule 54 undoubtedly contemplates is a re-instatementon the basis of an order passed in an appeal or other remedy under theService Rules.We may describe them as a departmental remedy.Fundamental Rule 54 has been found inapplicable inDevendra PratapNarain Rai Sharma (supra) when it was the civil court which declaredDthe dismissal as non est for non-compliance with natural justice. Rule121, in fact, specifically contemplates re-instatement of the employeewhose services are terminated on the basis of the decision in an appealand what is most important is the very premise of the re-instatement isthe decision in an appeal and it is beyond dispute that the lawgiver hascontemplated an appeal only to the Tribunal constituted under SectionE11. In other words, unlike the position inDevendra Pratap Narain RaiSharma (supra), where the court had to deal with the decree of a civilcourt, which was outside the scope of Rule 54, in a case covered byRule 121, the Managing Committee is to act thereunder only when thereis re-instatement necessitated by an order of the Tribunal under SectionF11 in an appeal. In other words, a departmental appeal under fundamentalRule 54 is to be conflated to an appeal under Section 11 in the case ofRule 121.

25. The next question which would arise is whether there is meritin the argument of the appellant that Rule 121 is to be found as ultraGvires the Section 11 of the Act.It is not in dispute that the appellant hasnot laid any challenge to Rule 121. However, he would contend that thisCourt is armed with necessary power, even in the absence of anychallenge, to hold that Rule 121 is ultra vires. In this regard, he soughtsupport from Bharathidasan University and another (supra). In thesaid case, this Court was dealing with the question as to whetherH

Regulations (Subordinate Legislation) framed by AICTE could obligeeven a university to obtain prior approval. The contention of the appellant-University was that the AICTE Act in question made a distinction betweenTechnical Institution and Universities. The offensive Regulations, werefound to be specifically violative of the power conferred under Section23 to make regulations subject to the limitations which were contained inspecific and unambiguous language.The definition of the word “TechnicalInstitution” excluded a university. Special care was made whenever theUniversity was within the contemplation of the lawgiver.It was in clearviolation of the limitation on the power to make regulations, namely, thatthe AICTE could not make any regulation to bind Universities,inter alia,the regulation in question was made and it was while dealing with thesaid case, this Court held that it may not be necessary to specificallychallenge subordinate legislation. The decision must notbe understoodas laying down the principle that the court may lightly depart from theordinary rule that when a law is questioned as ultra vires and, therefore,unconstitutional, a proper challenge must be mounted against the same.The maker of the law must be a party before the court. We may noticein this regard that under the Act, the rule-making power is conferred onthe Administrator under Section 28. A perusal of the party array wouldreveal that the Administrator is conspicuous by his absence. In fact, inthe decision relied upon by the appellant-Bharathidasan Universityand another(supra), the Authority, which made the regulation, whichwas found to be ultra vires, was the respondent.

26. Even otherwise, it may be difficult to find that this is a casewhere we could hold in the absence of express and exclusive powerwhich is conferred on the Tribunal to make an order for payment ofemoluments that Rule 121 which clothes the Managing Committee withthe said power,is ultra vires.

27. Let us now analyse Rule 121 and also the context providedby the neighbouring provisions. As we have already noticed Rule 117provides for penalties which includes the four major penalties. Rule 120lays the procedure for imposing the penalty. Against the major penaltyof dismissal, removal or compulsory retirement, the law contemplatesan appeal before the Tribunal constituted under Section 8 read withSection 11. What Rule 121 provides for, is the authority with the ManagingCommittee to consider and make two specific orders. Now the questionwill arise is, at what stage is the said orders to be passed and what is the A

CDE

Anature of the order to be passed apart from how it is to be passed. Thequestion will further arise as to whether it is a discretionary power orwhether the law contemplates a mandatory duty. In our view, Rule 121enshrines the principle of power coupled withduty. This conclusion isinevitable on account of two reasons. In the first place, the Rule-makerhas employed language that the Managing Committee ‘shall’ considerBand pass specific order. The use of the word ‘shall’ is crucial. It wouldrequire strong circumstances provided by the context, the purpose ofthe law, the consequences that would follow to dilute the mandatoryconsequences that ordinarily flow from the deliberate choice of the word‘shall’. Far from the context providing any material to the contrary, theCsetting of Rule 121, the purpose of the Rule and the consequences of notgiving a mandatory flavour overwhelmingly indicate that the lawgiverhas made it an inflexible duty on the part of the Managing Committee topass an order if the elements declared in Rule 121 are present. In otherwords, where an employee, who has been dismissed, removed orcompulsory retired challenges his termination in an appeal which mustDbe understood as an appeal to the Tribunal constituted under Section 11of the Act and he is re-instated, then it is not merely an enabling provisionwhich undoubtedly it is, in the sense that it confers a power on theManagingCommittee but we would go further and hold that it becomesthe duty of the Managing Committee to consider and pass an order. AnyEother view would put the employee at the mercy of the employer.

28. Now coming to what would constitute the subject matter ofthe order to be passed, Rule 121(1)(a) contemplates that the ManagingCommittee must consider and pass an order and provide for salary andallowances to be paid to the reinstated employees. The salary andFallowances is to be provided for the period the employee remained absentfrom duty. This would include his absence from duty caused by hissuspension prior to his dismissal, removal or compulsory retirement. Thenext specific matter which should engage the attention of the ManagingCommittee is as to whether the reinstated employees must be treated as on duty during the period of absence. Rule 121(2) confers a power withGthe Managing Committee to consider the question as to whether ‘in itsopinion’, the employee has been fully exonerated. The plain meaning ofthis provision is that when the order passed by the Tribunal directingreinstatement, is implemented, the Managing Committee is duty boundto look into the proceeding culminating in the order of the Tribunal andHfind whether the Tribunal has fully exonerated the employee in question.

If it is so found, the employee is to be paid full salary and allowances.The proviso to Rule 121(2) empowers the Managing Committee to cometo a conclusion that the employee is guilty of delaying the proceedingsinstituted against him. It can be done only after giving a reasonableopportunity to make a representation, and after considering the versionof the employee.It can direct that the employee need be paid only suchallowances as it finds supported by reasons in writing for the period ofsuch delay. This is subject to the limitations which are carved out in Rule121(3).

29. A perusal of Rule 121 would reveal that the power coupledwith the duty will come into play only after the order of the Tribunaldirecting reinstatement is accepted by the Management. This we sayfor the reason that Rule 121 speaks about the employee who had beendismissed, removed or compulsory retired being reinstated by theManagement. Of course, Rule 121 would also apply if but for hisretirement or superannuation, the employee would have beenreinstated.Both these consequences will follow only if the order ofreinstatement of the Tribunal becomes final. In other words, if the orderof the Tribunal is under challenge and the stage has not arrived wherethe Managing Committee actually reinstates or would have reinstatedbut for his retirement, Rule 121 would not apply. We are not diluting fora moment the duty to implement the order in the absence of an orderfrom the competent court permitting it being suspended.

30. At this juncture, we may notice the impact of Rule 115(4).Under Rule 115(4), the Lawgiver has contemplated as follows:

If the penalty of dismissal, removal or compulsory retirement isset aside or rendered void by a decision of the court of law orTribunal,it is provided that the disciplinary authority on aconsideration of the case may decide to hold further inquiry againstthe employee on the same allegations on which the original penaltywas imposed.The Rule provides that in such an eventuality, theemployee shall be deemed to have been placed under suspensionfrom the original order of dismissal, removal or compulsoryretirement. The proviso mandates that the disciplinary authoritycannot order further inquiry unless the penalty has been set asidepurely on technical grounds. Now let us see the impact of thisRule qua the argument of the appellant about the availability ofpower under Section 11 to order back wages. In a case where A

ATribunal 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 givingan opportunity to the disciplinary authority to take a decision?Would Rule 115(4) then become ultra vires Section 11? We wouldthink it would not be a reasonable interpretation to place on theBAct 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 rightmust be understood in the light of the law declared by this Court asexpanded to include all cases of termination except termination broughtCabout by the efflux of time.[See Shashi Gaur judgment]. The appeal isnot filed against the order of a Trial Court as such. No doubt, the poweravailable to the civil court under the Code of Civil Procedure are showeredupon the Tribunal. The Tribunal is not clothed with specific powers togrant relief of payment of the allowances. The Tribunal is also notDempowered to deal with the question as to whether the employee mustbe treated as on duty for the period when the employee remains absenton account of both the absence, whether or not, on account of suspensionbefore the termination and compelled absence after the penalty isimposed. The appellant relies on the judgment ofDeepali Gundu (supra).One of the questions, which would fall for consideration, is the questionEas to whether the employee was gainfully employed elsewhere duringthe period of compelled absence. The Tribunal is called upon to decidethe legality and correctness of the penalty. It is certainly entitled to actas an appellate body and come to the conclusion that there was no basiseither for reasons which are technical or on the basis that no case isFmade out even on merits to impose the penalty against the employee.Should the Tribunal set aside the penalty covered by Rule 121,it is alwaysopen to the management to take recourse to remedies open to it. Theorder of re-instatement does not become final. The employee remainsabsent undoubtedly on the basis of the order obtained by the Management

in the superior court. What is relevant is the actual re-instatement underGRule 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 payand allowances. The management is given the powers coupled with theduty to hold an inquiry and to pass an order as to whether the employeemust be found to be on duty or not and for what period during his absence.H

The Lawgiver has conferred a power with the management. The use ofthe words “in its opinion” indicates that the Managing Committee mustapply its mind and consider all aspects and take a view. This must,undoubtedly,be done after putting the employee on notice. The employeemust be afforded an opportunity. The employee would be in a position topoint out that he was not employed elsewhere. He would also be able toestablish that he was fully exonerated. We have noticed that the orderof the appellate authority in an appeal directing re-instatement may notbe 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 inany manner ultra vires Sections 8 and 11 of the Act.Properly appreciatedand implemented, the provisions of the parent Act and the subordinatelegislation can be harmonized.

32. There is no express power with the Tribunal of the kind whichis present in the Maharashtra Act which fell to be decided in DeepaliGundu (supra). There is express power with the Managing Committeeto be exercised at a particular point of time which arrives when re-instatement is effected or re-instatement would have followed but forretirement of the employee.Rule 121, in our view, while being an enablingprovision must also be interpreted as a case of power coupled with aduty. The power must be exercised promptly and without fail by theManaging Committee immediately following the re-instatement of theemployee which would be the result of any voluntary order of re-instatement or re-instatement, which is inevitable following the bindingorders of the court. The management is duty bound to conduct an inquiryto pass the orders contemplated under Rule 121(1)(a) and (b). Thepresence of the words “in its opinion” do indicate a certain amount ofauthority with the Managing Committee. This however, is not to beconfused with any right to act with arbitrariness or caprice. In otherwords, it is duty bound to look into all the inputs including the orderswhich are finally passed which led to the re-instatement of the employee.It is duty bound to act fairly. The question about the employee beinggainfully employed and the amount received till the stage of reinstatement,is aptly gone into under Rule 121. After putting the employee on noticeand giving him an opportunity, the Managing Committee must providefor the matters which are provided therein, namely Rule 121.

33. We cannot on a conspectus of the provisions and the discussionabout the context, object and consequences that would flow, agree with A

Athe appellant, that the Appellate Tribunal must be ceded implied powersto assume the specific powers ceded to the Managing Committee. Whilewe are not averse to adopting a liberal view when it comes to clothingan appellate body to deal with matters arising in the proceeding in a fairand effective manner, the scheme that we have found and theconsequences that ensue dissuade us from vesting such implied powers.BIt involves rendering Rule 121 otiose and redundant. It would have beena different matter if the rule did not exist and more importantly, we didnot unravel a distinct scheme and purpose.

34. The power coupled with duty takes life not only upon therebeing an order of reinstatement in an appeal but upon the ManagingCCommittee proceeding to implement the direction to reinstate, issued bythe Tribunal. If the power is to be exercised by the Tribunal apart fromthe fact that there would be situations, such as, contemplated in Rule115 of the Rules, which would render both the Rule and right given tothe Management under the said Rule, meaningless and futile, it wouldDinvolve 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 ascheme, which consists of both Sections 8 and 11 of the Act as alsoRules 115(4) and 121. The Rules have been enacted in the same yearEwithin eight months, as noticed by the High Court. The Administrator,who has authored the Rules under Section 28 of the Act, has producedthe Rules, which are found to be in harmony with the Act. We are unableto cull out any inconsistency between Section 8 read with Section 11 onthe one hand and Rule 121 on the other. While we are not maintainingfor a moment that the Court is rendered powerless or not bound by aFduty to unravel the mind of the Legislature and strike at a subordinateLegislation, where it is ultra vires,we do not find any scope for applyingthe said principle in the facts. In this regard, while we are conscious ofthe view taken that subordinate legislation cannot control the interpretationto be placed on the parent enactment, it is not the same as holdingGirrespective of irreconcilable differences between the parent enactmentand the subordinate legislation not been present, full play should not begiven to the latter.

36. As far as the question of the delay in the employee gettingrelief on the interpretation placed by the Full Bench in the impugnedHJudgment, we are of the view that, though attractive, the argument must fail. While we would not be loath to place an interpretation, which is inagreement 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 ascheme, which is intended to be worked in accordance with a valuejudgement, which reaches justice to both sides. Undoubtedly, we makeit clear that there should not be any room for needless and unjustifiabledelay on the part of the Management in concluding the proceedingsunder Rule 121. This is different from saying, however, that suchproceedings can be dispensed with or the Tribunal can or should beburdened with the task, which is aptly and appropriately timed andpositioned to be performed by the Managing Committee.

37. We cannot be unmindful of the principle canvassed by thelearned 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 nota ground to not overturn a view, which is palpably erroneous, the viewtaken, if it is otherwise a plausible view, must receive deference.

38. No doubt, the appellant has a case that in view of the fact inShashi Gaur(supra), this Court enlarged the scope of the appellateremedy under Section 11 to cases of termination other than, what isprovided in the Rule 121 and, what is more, Section 8 itself. He wouldsubmit that as Rule 121 is not applicable to cases which are notenumerated in Rule 121, it would create a situation where, in cases oftermination not covered by Rule 121, the Tribunal would have the powerto grant back-wages. Whereas the Tribunal would have the said power,in cases not covered by Rule 121. This creates an anomalous position, itis contended.

39. In the impugned Judgment, the High Court has proceeded tohold that in view of the expanded right of appeal based on the Judgmentof this Court in Shashi Gaur(supra), the Managing Committee wouldhave the power to make the specific order in respect of any terminationin the light of the Judgment of this Court inShashi Gaur (supra). In thecase of penalty of reduction in rank (which is also a major penalty), theHigh Court has brought out the following distinction:

“23. The learned Single Judge has reasoned that it would beanomalous to hold that the Delhi School Tribunal would have thepower to direct full wages to be paid to an employee who hasbeen reduced in rank but has been restored to the original rank A

Abut would have no power to pass such an order if an employee isreinstated in service. The reasoning by the learned Single Judgeoverlooks a very vital and critical fact which clearly distinguishescases of a penalty of reduction in rank being set aside and therank being restore.cl vis-a-vis a penalty of dismissal 1 removal orcompulsory retirement being set aside and reinstatement ordered.BIn the former situation the employee would be working in theschool, albeit at a lower post and there would be no casewarranting an inquiry to be held of the kind contemplated by Rule121 of the Delhi School Education Rules, 1973 i.e. whether theemployee was gainfully employed somewhere else. But where aCpenalty of a kind where secession takes place is passed, theemployee has not to report to the employer and may be gainfullyemployed somewhere else.”

We would take the example of a termination of service, whichwas explicitly before this Court inShashi Gaur (supra). The terminationDof the employee therein was ordered as he was not possessed of therequisite qualification. We proceed further that in such a case, theemployee is placed under suspension. An inquiry is also held and theservices are terminated. We further proceed on the basis that in termsof what is permitted under Shashi Gaur(supra), he files an appealbefore the Tribunal under Section 8 and obtains an order for reinstatement.EIn the meantime, we further take it that it is a case where he is gainfullyemployed. The question would arise in his case also as to the pay andallowances to be granted. The question would further arise as to whetherhis period of absence should be treated as duty. This situation arises inview of the interpretation placed in the case ofShashi Gaur(supra). In Fsuch circumstances, in view of the interpretation placed by this Courtcreating the situation, by which an appeal is permitted against an orderof 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 bythe Full Bench.

G40. The upshot of the above discussion is that we find no merit inthe Appeal and the Appeal stands dismissed with no order as to costs.

Ankit Gyan(Assisted by : Rahul Rathi, LCRA)

Appeal dismissed.