LPA No. 708 of 2011 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH LPA No. 708 of 2011 (O&M) Date of Decision: August 24, 2011 Managing Committee, Public School Kukar Pind …Appellant Versus Prsiding Officer, School Tribunal, Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Madan Lal Saini, Advocate for the appellant. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal preferred by Managing Committee of a Public School under Clause X of the Letters Patent is directed against judgment dated 13.12.2010 rendered by the learned Single Judge. 2. Facts in brief may first be noticed. Charan Singh Gill- respondent No.3 was employed as Master with the appellant society/ school on 01.01.1967. There was a dispute with regard to Management of Managing Committee between two rival groups. One group headed by Sh. Piara Singh and the other was headed by Sh. Didar Singh. The group headed by Sh. Piara Singh passed an order dated 16.09.1978, placing respondent No.3 under suspension and then terminating him from service vide resolution No. 24 dated 02.01.1979 As per the provisions of old Punjab Aided Schools LPA No. 708 of 2011 (O&M) -2- (Security of Services) Act, 1969 (for brevity 'the 1969 Act'), the Managing Committee referred the case to Additional Deputy Commissioner, Jalandhar, on the ground that no enquiry had been conducted as per provisions of the 1969 Act before terminating the services of respondent No.3. The Additional Deputy Commissioner set aside the order of termination vide her order dated 30.04.1979. Accordingly, respondent No.3 was directed to appear on 15.05.1979 before the Managing Committee to face an enquiry. However, respondent No.3 challenged the order of Additional Deputy Commissioner before the Commissioner Jallandhar Division, who was the appellate authority under the 1969 Act. The Commissioner in his order dated 13.11.1979 held that there was no valid constituted Committee and the dispute was pending between two rival groups. The Commissioner directed that the Director Public Instructions (School) (for brevity 'the DPI School') should conduct the enquiry through some officer. Despite the aforesaid directions, no one went to the DPI, School for getting the enquiry conducted in accordance with the directions issued by the Commissioner, Jalandhar Division. In the meanwhile, the 1969 Act was repealed and a new Act with the name of the Punjab Privately Managed Recognised School Employees (Security of Service) Act, 1979 (for brevity 'the 1979 Act') and the Rules framed thereunder came into force on 23.1.1981. Under Rule 13 of the 1979 Rules, the appointing authority was given power to place an employee under suspension in case disciplinary proceedings against such an employee is contemplated or pending or where a LPA No. 708 of 2011 (O&M) -3- case against his alleging criminal offence is under investigation, enquiry or trial. According to the provision, in case suspension was to exceed six months, then prior approval of the Director was necessary. 3. After coming into force of the 1979 Act, respondent No.3 filed an appeal on 22.03.1981 before the DPI, School against his continuous suspension beyond the period of six months. He demanded subsistence allowance for the period of his suspension. He also asserted that his earlier order of suspension, in fact had merged with the order of his dismissal which in fact was set aside on 30.04.1979, when the Additional Deputy Commissioner under the old Act has asked the Managing Committee to conduct the enquiry proceedings and the aforesaid order had also merged with the order dated 13.11.1979 passed by the appellate authority i.e. Commissioner Jalandhar Division. The DPI, School did not take any decision on the appeal filed by respondent No.3 and his claim with regard to payment of subsistence allowance was also not decided. 4. Respondent No.3 then filed CWP No. 4292 of 1989 seeking directions to the DPI, School that his appeal filed against the appellant-Managing Committee may be directed to be disposed of by the DPI, School where he has challenged the order of suspension on the post of Head Master. Accordingly, direction was issued to the DPI, School vide order dated 12.09.1989 by this Court for disposal of the appeal filed by respondent No.3. After noticing the aforesaid facts, the order of dismissal passed by the appellant- LPA No. 708 of 2011 (O&M) -4- Managing Committee on 02.05.1979 by holding that respondent No.3 has never been dismissed from service, respondent No.3 was held to be in service and was held entitled to arrears of salary from the appellant-Managing Committee. The matter was still taken in appeal before the School Tribunal. The School Tribunal vide order dated 27.03.1991 held that the appeal was not competent because it was directed against order of suspension. 5. The appellant Managing Committee filed CWP No. 10691 of 1991, relatable to the instant Letters Patent Appeal challenging the order passed by the DPI, School on 12.09.1989 as also order dated 27.03.1991 passed by the School Tribunal (P-6 and P-7). The writ petition was admitted in October 1991 and there was interim directions that respondent No.3 be paid subsistence allowance to the extent of 75% of his basic pay w.e.f. 01.10.1991. It was further directed that he was not to function as Head Master. The learned Single Judge has noticed the aforesaid fact and found that respondent No.3 has already attained the age of superannuation and it was undisputed that the appellant-Managing Committee had passed the order of dismissal without holding any enquiry. The matter had been remanded to the Managing Committee by Additional Deputy Commissioner vide her order dated 30.04.1979 on the ground that no enquiry was conducted as per the provisions of 1969 Act and therefore, the termination of respondent No.3 was bad in the eyes of law. She further directed the appellant-Managing Committee to conduct enquiry before terminating the service of respondent LPA No. 708 of 2011 (O&M) -5- No.3. She had also duly noticed the order passed by the Commissioner Jalandhar Division. The order of the Commissioner Jalandhar Division was challenged before the DPI, School under the 1969 Act and 1979 Act. The view of the DPI, School as noticed by the learned Single Judge reads as under: “The Director Public Instructions (Schools) vide the impugned order dated 9.12.1989 Annexure P-11 held that under the old Act, since order of dismissal was not approved by the Deputy Commissioner, Charan Singh Gill Headmaster continued to be employee of the School and he shall also be entitled to arrars of salary. The Managing Committee filed an appeal on 7.3.1990 under the new Act before the Presiding Officer, School Tribunal, Punjab. The appeal filed by the Managing Committee was dismissed on 27.03.1991. The Tribunal, while dismissing the appeal, held that appeal could be filed by an employee who is dismissed, removed and reduced either in rank or within a time scale, it was held that the appeal filed by the Managing Committee was not competent.” 6. Learned Single Judge also noticed the interim order passed by the Division Bench while admitting the writ petition in October 1991 and proceeded to hold as under: “Since Charan Singh Gill Headmaster had LPA No. 708 of 2011 (O&M) -6- joined service in 1961, he has already attained the age of superannuation. There is no dispute that the rival Managing Committee had passed the order of dismissal without holding an enquiry and, therefore, the Additional Deputy Commissioner, who was authorised to approve any termination under the old Act, had remanded the matter back to the Managing Committee. The Commissioner while exercising the appellate jurisdiction held that the DPI, Punjab should hold an enquiry. No such enquiry was held. Thus, it has been rightly held in Annexure P-6 that termination of the services of the respondent Charan Singh Gill Headmaster of the School was bad. Therefore, no interference is warranted so far as the writ petition filed by the Managing Committee against the order passed by Presiding Officer is concerned. The same is accordingly dismissed. In the second petition, Charan Singh Gill Headmaster has prayed that the subsistence allowance and arrears of pay by paid immediately and the State Government be directed to pay its 95% share. Since the authorities have already held that the termination of Charan Singh Gill LPA No. 708 of 2011 (O&M) -7- Headmaster was bad, needless to say that the arrears of pay shall be paid to Charan Singh Gill Headmaster, petitioner in CWP No. 12876 of 1991, within six months from today. At the first instance, payment shall be made by the School and later on, due share shall be paid by the Government.” 7. Feeling aggrieved, the Managing Committee has approached this Court. 8. We have heard learned counsel for the appellant at a considerable length. 9. Learned counsel for the appellant has not been able to controvert the findings of fact recorded by the learned Single Judge that the order of dismissal in respect of respondent No.3 was set aside on 30.04.1979. The Additional Deputy Commissioner directed respondent No.3 to appear before the Managing Committee on 15.05.1979 to face enquiry. The aforesaid order was challenged before the Commissioner Jalandhar Division as it was an appellate authority. The Commissioner Jalandhar Division in his order dated 30.04.1979 held that there was no valid constituted committee and the dispute was pending between two rival groups. Accordingly, the DPI School was asked to conduct the enquiry through some officers. However, no one approached the DPI School for getting the enquiry conducted in accordance with the directions issued by the Commissioner, Jalandhar Division. After enforcement of 1979 Act, respondent No.3 filed an appeal on 22.03.1981 before the DPI, LPA No. 708 of 2011 (O&M) -8- School on which no decision was taken. Thereafter, the respondent No.3 initiated proceedings in this Court which resulted into issuance of directions on 12.09.1989 for disposal of appeal filed by respondent No.3. DPI School held that the petitioner was deemed to be in service and was also entitled to arrears of salary from the appellant- Managing Committee. The School Tribunal refused to hear the appeal upholding the order of DPI School. The management has lost before the learned Single Judge. In these facts and circumstances, it is not possible to conclude that respondent No.3 would not be entitled to arrears of salary because there is no order showing that he has been dismissed or in any enquiry he has been held guilty of any charges. It is also not possible to permit the appellant-Managing Committee to hold enquiry at this stage when respondent No.3 has already superannuated from service. It appears that the basic reason which has resulted in victimization of respondent No.3 is in between two Committees. There is, thus, no merit in the instant appeal and the same does not warrant admission. 10. Accordingly, the appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE August 24, 2011 Atul