LAXMI MEMORIAL PUBLIC SCHOOL vs SURESCH CHAND GUPTA AND ANR

$~3 (Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 6843/2017, REVIEW PET. 219/2021 & CM APPL. 47724/2021, CM APPL. 47725/2021, CM APPL. 24077/2022

LAXMI MEMORIAL PUBLIC SCHOOL ….. Petitioner
Through: Mr. Randhir Kumar and Mr. Keshav Pandey, Advs.

versus

SURESCH CHAND GUPTA AND ANR ….. Respondents
Through: Mr. Vivek Kumar Tandon, Ms. Prerna Tandon and Mr. Darshnik Narang, Advs. for R-1
Ms. Laavanya Kaushik, Ms. Aliza Alam, Mr. N.K. Singh & Mr. Mohnish Sehrawat, Advs. on behalf of Ms. Avnish Ahlawat Standing Counsel of GNCTD/Directorate of Education 

CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR

JUDGMENT (ORAL)
% 10.11.2023

CM 47725/2021 (Exemption)

1. Exemption allowed, subject to all just exceptions.

2. The application is disposed of.

CM 24077/2022 (condonation of delay)

3. For the reasons stated in the application, delay in filing the Review Petition is condoned.

4. The application is disposed of.

REVIEW PET. 219/2021

5. Respondent 1 instituted an appeal before the Delhi School Tribunal (“the Tribunal” hereinafter), challenging his oral termination, by the petitioner-school (“the school”, hereinafter) on 3 April 2014, without any show cause notice, charge-sheet, inquiry or prior opportunity of personal hearing. The school contended, before the learned Tribunal, that it had never appointed Respondent 1 as Assistant Teacher and that there was no employer-employee relationship between them.

6. This argument was negatived by the learned Tribunal in its order dated 26 April 2017. It was noted, in the said order, that Respondent 1 had, in support of his claim of appointment under the petitioner, produced photographs of attendance-sheets of different years in which Respondent 1’s name had been entered and which he had signed, sheet results of students which also bore his signature, photographs of Respondent 1 conducting classes and photographs of Respondent 1 with the staff of the school. The learned Tribunal also noted that the Directorate of Education had inquired into the matter and that the inquiry report had confirmed that Respondent 1 was the employee of the petitioner and, in fact, had found that the petitioner was maintaining double records. Paras 4 and 5 of the inquiry report of the DoE read thus:

“Evaluation of the documents-

From close perusal of the documents i.e. photographs of the school staff placed in the file at Page No. 39/c, copy of the Attendance Register for the month of Nov. 2011, copy of the SLC in R/o a student Akhil Shukla dt. 09/07/2009, copy of the result sheet in r/o Renu Dixit for 2005-2006 placed at Page No. 36/c to copy of the Attendance Register for the month of Feb. 2013 placed at Page No. 38/c copy of the SLC in r/o Pooja Kumari dt. 07/04/2008, copy of the salary slip in r/o Sh. S.C. Gupta placed at Page No. 33/c-34/c copy of the result sheet in r/o Sashi Diwakar, Class VIII-C student, dt. 30/03/2005, it is found that there is a signature of the said Sh. S.C. Gupta on the said document while the photograph of the staff support his claim as employee of the school.

On the other hand, the document provided by the school, there is no any sign of his being an employee of the school.

It may be seen that, copy of staff Attendance Register for the month of Feb. 2014 to April 2014 & Nov. 14 to Dec. 2014, the name of the complainant does not appear. As such statement of the students made by them before the Inquiry committee, it can not be denied that they might have been tortured not to speak the truth while the staff of the school could not affirm the truth in anticipation of losing their job.

It may be noted that the school has provided the documents, i.e. Staff Attendance Register only for 2014 but not for all the claimed session by the complainant.

From the above, it is learnt that the school is maintaining two records – one for the deptt. in black and white but the other for their own purpose. It is hard fact that no one can claim of being employee in an institution unless he is deployed by the school authority.

Hence, the records provided by the school cannot be relied upon and the committee inclined to the claim of the applicant as being employee of the school either Assistant Teacher or any other employee who used to work as teacher as and when the school desired to do so.

5. Conclusion –

On the basis of the available records and foregoing evaluation, the committee is of the opinion that the complainant had been the employee of the school either on the post of Assistant Teacher or other.”

7. Obviously dissatisfied with this inquiry report, the Deputy Director of Education instituted a second inquiry on 26 July 2016 purportedly on the instructions of the Government Counsel. This second inquiry predictably returned a finding that Respondent 1 was not the employee of petitioner. The learned Tribunal, however, expressed its reluctance to rely on this inquiry report, noting the fact that the Government Counsel, who had purportedly advised the holding of the second inquiry, subsequently filed an affidavit, specifically confirming that she had not given any such advice, and the Deputy Director of Education also filed an affidavit, stating that he had ordered the second inquiry by mistake.

8. Predicated on these findings, the learned Tribunal, relying on the first inquiry report and the material which Respondent 1 had produced in support of the fact of his having been employed by the petitioner school, held that Respondent 1 had indeed been an employee of the school and that, therefore, the act of the school in removing him from service was illegal. The appeal of Respondent 1 was, therefore, allowed with costs of ? 33,000/-.

9. The said decision was challenged by the school before this Court by means of W.P. (C) 6843/2017, which has been decided by me vide judgment dated 16 August 2018, presently under review.

10. I had, in my decision, specifically noted the findings of the learned Tribunal and had also noted the limited scope of certiorari jurisdiction to be exercised by the High Court while examining the sustainability of the said order, as set out in the following passages from Syed Yakub v. K.S. Radhakrishnan1:

“7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or in properly, as for instance, it decides a question without giving an opportunity to be heard, to the party affected by the order or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an Appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Article 226 to issue a writ of certiorari can be legitimately exercised.

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious mis-interpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases; the impugned error of law may not be obvious or patent on the of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconducted or contravened.”
(Emphasis supplied)

11. Mr. Randhir Kumar, learned Counsel for the petitioner has raised only one ground to seek review of the afore-noted judgment dated 16 August 2018, which is that, Respondent 1 was, on the date of his purported appointment as Assistant Teacher by the petitioner school in 1999, overage for the said appointment. This submission was also raised before me at the time of arguments in the writ petition and para 19 of the judgment under review notes that the order dated 26 April 2017 does not reflect any such argument having been advanced before the learned Tribunal. As such, I expressed my disinclination to entertain the said submission while exercising jurisdiction under Articles 226/227 of the Constitution of India.

12. Mr. Randhir Kumar again raises the same ground in this Review Petition. He submits that, in fact, this point had been urged before the learned Tribunal.

13. The Supreme Court has, in State of Maharashtra v. Ramdas Shrinivas Nayak2, specifically held that, if a point is argued before a judicial authority, and is not recorded in the order as having been urged before it, a party who is aggrieved thereby has to approach the same judicial authority and point out that the submission, though argued, was not recorded. No such attempt was made before the learned Tribunal. Even in the writ petition which stands dismissed by the judgment under review, there is no assertion to the effect that such an argument was raised before the Tribunal and was not recorded by it. Even in the present Review Petition, there is no assertion to the effect that the petitioner had ever urged before the learned Tribunal that Respondent 1 was overage and that the learned Tribunal had erred in failing to record the said submission or return any finding thereon.

14. The issue of whether Respondent 1 is or is not overage is a pure question of fact. An issue of fact, which was not urged before the quasi-judicial authority against whose order the petitioner has approached this Court by way of writ petition could not be permitted to be urged for the first time in the writ petition unless there was a specific assertion in the writ petition that the point had been urged and not recorded. No such assertion was contained in the writ petition and no such assertion is present in the Review Petition. Mr. Randhir Kumar’s reliance on the pleadings of the petitioner before the learned Tribunal cannot constitute a justifiable ground for review, as if a point is urged in pleadings was not argued, the learned Tribunal could not be faulted in not returning any finding on the said submission. In any event, this Court under Article 226 of the Constitution of India cannot appreciate a submission which was not argued before the learned Tribunal. Still less could such a submission be considered in a Review Petition such as this.

15. Even otherwise, the issue before learned Tribunal was whether Respondent 1 was an employee of the petitioner’s school. The petitioner had provided tangible material to support his contention that he was indeed employed by the petitioner’s school as an Assistant Teacher. This material found favour of the learned Tribunal. The learned Tribunal further noted that DoE also conducted an inquiry into the matter and found that Respondent 1 was indeed an employee of the petitioner’s school. The second inquiry which was conducted by the DoE was found to be unreliable, as it was purportedly conducted on the instructions of the Government Counsel, who herself thereafter, placed an affidavit that she had never directed holding of any such second inquiry. The DDE, too, confirmed that the holding of the second inquiry was a mistake.

16. These findings of the learned Tribunal could not possibly have been interfered with by this Court, under Article 226 of the Constitution of India.

17. If, therefore, Respondent 1 had actually succeeded in convincing the learned Tribunal, on facts, that he was employed by the petitioner’s school, then, the question of whether Respondent 1 was, or was not, overage at the time when he was appointed would cease to assume significance. Significantly, the termination of the services of Respondent 1, too, was not on the ground that his appointment was illegal or that he was overage.

18. The plea that Respondent 1 was overage was being urged as a ground to question the very fact of Respondent 1 having been employed by the petitioner’s school. On that aspect, as I have already noted, the learned Tribunal relying on cogent material found that Respondent 1 was indeed an employee of the petitioner’s school.

19. In view of the aforesaid, it is clear that there is no justification whatsoever for the filing of this Review Petition. Respondent 1, after having served the petitioner as Assistant Teacher, has had to face not only the writ petition filed by the petitioner but also the present Review Petition. I am of the opinion, therefore, that Respondent 1 would be entitled to be compensated with costs.

20. Accordingly, this Review Petition is dismissed subject to payment of costs of ? 50,000/- to be paid by the school to Respondent 1 within a period of four weeks from today by way of a crossed cheque/demand draft.

CM APPL. 47724/2021 (stay)

21. This application does not survive for consideration and stands disposed of.

C. HARI SHANKAR, J.
NOVEMBER 10, 2023
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1 AIR 1964 SC 477
2 (1982) 2 SCC 463
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W.P. (C) 6843/2017 Page 9 of 10