SONALI SHARMA  Vs RISING STAR ACADEMY SR SEC SCHOOL & ORS. -Judgment by Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: January 23, 2023

REVIEW PET. 108/2022 & CM APPL. 18369/2022
IN
+ W.P.(C) 14709/2021
SONALI SHARMA
….. Petitioner
Through: Mr. Anuj Aggarwal, Mr. Shubham Pundhir and Ms. Shradha Adhikari, Advs.
versus
RISING STAR ACADEMY SR. SEC. SCHOOL & ORS.
….. Respondents
Through: Mr. Vikas Tomar, Adv. for R-1
Mr. Zoheb Hossain, ASC for R-3/DOE with Mr. Vivek Gurnani, Adv.

CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO

V. KAMESWAR RAO, J. (ORAL)
1. This review petition has been filed by the petitioner seeking review of the order dated March 24, 2022 whereby this Court has disposed of writ petition by stating as under:-
�3. I have been informed by Ms. Mini Pushkarna, learned counsel appearing for respondent DOE and Mr.Vikas Tomar, Adv. appearing of respondent No.1 School that Dr. Meghavi Malik has been replaced with Mr. Sanjay Bharti, Principal, Nav Bharti Public School, Deepali, Pitampura, Delhi and Mr. Arun Upadhyay is replaced by Ms. Preeti Goel, a teacher in the respondent No.1 School itself.
4. Insofar as the presence of Manager Pradeep Kumar as a member of disciplinary authority is concerned, the objection is, the petitioner is not in good terms with him and his presence would vitiate the outcome of the proceedings.
5. Having heard the submission of the counsels on the presence of Pradeep Kumar in Disciplinary Committee for some time, it is agreed by the counsel for the School that the Manager Pradeep Kumar shall not participate in the proceedings of the disciplinary proceedings, henceforth.
6. In view of the aforesaid, Mr. Anuj Aggarwal contends, direction be issued to conduct the proceedings do-novo. I am not inclined to accede to the said prayer for the simple reason that the petitioner had approached this Court by way of this writ petition only after the proceedings have been started against her, that too the same were at the stage of recording of evidence which means, the petitioner herself allowed the proceedings by the Inquiry Officer to go on without any effective challenge. Further, the apprehension of the petitioner has been taken care of with the substitution of two members in the Disciplinary Committee and also in view of the submission made by the counsel for the respondent School that Pradeep Kumar shall not take part in the proceedings of the Disciplinary Committee.
7. Taking the stand of the School on record, the petition is disposed of.�

2. The submission of Mr. Anuj Aggarwal is primarily two fold. According to him, as the constitution of the Disciplinary Committee has undergone a change as is seen from paragraph 3 of the order dated March 24, 2022, this Court should have allowed the conduct of the proceedings de-novo, at least a direction should have been given for the new Disciplinary Committee to apply their own mind on the charges framed against the petitioner and take a decision whether charge sheet need to be continued.
3. The second submission is that the Defence Assistant of the petitioner was forced to cross examine the management witness in the absence of the petitioner herein. In this regard, he has drawn my attention to Annexure P-15 which is the evidence of the M-1 as cross examined by the Defence Assistant on December 01, 2021. He has also drawn my attention to the representation made by the petitioner after two days on February 03, 2021 wherein the petitioner has stated despite request for adjourning the enquiry proceedings the Enquiry Officer has rejected the request of the petitioner vide email dated December 04, 2021. In support of his both the submissions, Mr. Aggarwal has relied upon the judgment passed by this Court in the case of The Managing Committee of the Pinnacle School v. Directorate of Education & Ors., W.P.(C) 10050/2021 decided on July 18, 2021 to contend that this Court has on a finding that the Disciplinary Committee was not constituted as per Rule 118 and a new DAC having been reconstituted should have decided the aspect of issuance of charge sheet first then proceed in the matter. On the other hand, the learned counsel for the respondent would justify the order dated March 24, 2022 by stating that the objection of the petitioner was primarily with regard to three members of the DAC and those three members having been replaced it can be said that the DAC has been rightly constituted and also the Court has rightly rejected the request of the petitioner to hold a do-novo enquiry. In this regard he has relied upon Usha Bhandari v. New Green Field School & Ors., W.P.(C) 4483/1996 and Pawan Jashial v. Khalsa Middle School & Ors., W.P.(C) 2854/2016 of this Court.
4. Having heard the learned counsel for the parties, I have already reproduced the order dated March 24, 2022. The grievance of the petitioner as urged by Mr. Aggarwal is primarily with regard to paragraph 6 of my conclusion above.
5. I have rejected the request of Mr. Aggarwal for de-novo by holding that the petitioner has approached the Court by way of writ petition only after the proceedings have started against her and that too at the stage of recording of the evidence which means that she herself has allowed the proceedings by the Enquiry Officer to go on, without any effective challenge. The said finding has been contested by Mr. Aggarwal by referring to the proceedings dated December 01, 2021 wherein she has raised an objection with regard to the constitution of the DAC by stating that the same has not been properly constituted. The said representation which was address to the Enquiry Officer was decided by the Enquiry Officer stating that he is not competent to decide such an issue.
6. Be that as it may, it is a fact that vide order dated March 24, 2022 constitution of the Disciplinary Committee has undergone a change. The question is whether the new Disciplinary Committee need to consider the charges and pass a formal order to continue with the disciplinary proceedings. This Court in the case of Pinnacle School (supra), has in paragraph 27 held as under:-
�27. ����. No doubt, a new DAC was constituted as shown in paragraph 8 above, replacing the three members, but by that time, the Inquiry Officer had already submitted his report. The new DAC has ratified the appointment of the Inquiry Officer and proceeded to act on the inquiry report as submitted by the Inquiry Officer. The objection of the respondent No. 2 is that after the constitution of the new DAC, it is the new DAC which should have decided the aspect of issuance of charge sheet without acting on the inquiry report already submitted. This submission of respondent No. 2 is appealing as I find that the Inquiry Officer has held the charges 1, 2, 3, 4, 5 and 7 to be proved on the basis of the deposition of the said two witnesses in the inquiry proceedings. That apart, I find that the fact that Mrs. Rita Sinha, Teacher Representative had presented the case of the Management before the Inquiry Officer after being part of the very DAC that issued/framed the charges against the respondent No. 2 is tantamount to her acting as judge and prosecutor at the same time, which is clearly impermissible in law.�

7. The above conclusion of mine is on an identical submission made that after constitution of a new DAC, it is a new DAC which has to decide the aspect of issuance of charge sheet. As this Court has already taken such a view and the limited submission of Mr. Aggarwal is that the DAC may formally consider the charge sheet and take a decision whether to go ahead with the same. I deem it appropriate to accept such a plea and direct that the charge sheet shall be placed before the new DAC to formally pass an order whether to proceed with the charge sheet or not.
8. Insofar as reliance paced by learned counsel for the respondent on the case of Usha Bhandari (supra) is concerned, the said judgment has no applicability to the facts of this case as the issue which arose for consideration was that whether there was a likelihood of bias on the part of the Disciplinary Authority which has vitiated the order. The Co-ordinate Bench of this Court has held that the order of the Disciplinary Authority has not been vitiated on the ground of likelihood of bias. In other words, the issue was not whether, when a new DAC is constituted; the proceeding must be held de-novo.
9. Insofar the judgment in the case of Pawan Jashial (supra) is concerned there is a clear finding in the said judgment that the Disciplinary Committee has been rightly constituted under Rule 118. Hence, the issue was not that when a new DAC is constituted; the proceedings need to be held de-novo. Hence, both the judgments are not applicable.
10. Insofar as the second submission of Mr. Aggarwal that Defence Assistant having been forced by the Enquiry Officer was made to cross examine the management witness and as such the petitioner must be permitted to further cross examine the said witness is concerned, suffice to state, the petitioner�s representation dated December 03, 2021, on this aspect reads as under:-
�Mr. Kumar Utkarsh, my Defense Assistant was supposed to assist me in the proceeding while I was there, he proceeded with inquiry without informing me or taking any prior permission to do so and for that reason I have removed Mr. Kumar Utkarsh for presenting me as Defense Assistant. I shall look for the services of a new defense assistant.�

11. From the representation, it is clear that the plea of Mr. Aggarwal that the Enquiry Officer has forced the Defence Assistant to cross examine the management witness is incorrect. In fact, the Defence Assistant appointed by the petitioner having cross examined the management witness and the Enquiry Officer having closed the M-1 evidence, I do not see any reason to now allow the petitioner to cross examine the M-1. So this plea of Mr. Aggarwal is liable to be rejected.
12. Accordingly, review petition is allowed to the extent stated in paragraph 7 above.
CM APPL. 18369/2022
Dismissed as infructuous.

V. KAMESWAR RAO, J.

JANUARY 23, 2023/ds

Neutral Citation Number: 2023/DHC/000490

REVIEW PET. 108/2022 in W.P.(C) 14709/2021 Page 7