The Management Committee Dev Samaj Modern School Near Sukhdev Vihar New Delhi v. Jeetendra Kumar Singh And ORS

$~28 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 2839/2016, CM No.11920/2016 THE MANAGEMENT COMMITTEE DEV SAMAJ MODERN SCHOOL NEAR SUKHDEV VIHAR NEW DELHI..... Petitioner Through: Mr. Rajinder Dhawan with Mr. B.S.

Rana, Advs.

versus JEETENDRA KUMAR SINGH AND ORS ..... Respondents Through: Mr. S.K. Singh and Mr. A.K. Singh, Advs. for R1.

Mr. Ankur Chibber and Mr. Manu Padalia, Advs. for R2, R3 and R4.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

O R D E R

% 21.07.2016 W.P.(C) 2839/2016 1.

This Petition has been filed by the Management Committee of the Dev Samaj Modern School, Sukhdev Vihar, Delhi challenging the order of the Delhi School Tribunal in Appeal No. 61/2014, whereby the learned Tribunal has allowed the application filed by respondent no.1 seeking condonation of delay in filing the Appeal.

2.

Some of the relevant facts are, the respondent no.1 was appointed by the petitioner School in the month of November, 2006 as an ad-hoc teacher. It is a conceded position that the status of the respondent no.1 continued to

be of an ad-hoc teacher till his termination on 6th March, 2014. In the year 2013, respondent no.1 filed a Writ Petition (C) no.8153/2013 inter alia seeking two reliefs, i.e., (i) for the release of arrears of his salary and; (ii) appointing him on permanent basis. During the pendency of the Writ Petition, the Petitioner School had vide order dated 6th March, 2014 terminated the services of the respondent no.1 on the ground that he was absenting from his duties. When the Writ Petition (C) 8153/2013 came up for hearing on 19th September, 2014, it was informed to the court that services of respondent no.1 have been terminated. A statement was made by the counsel for the respondent no.1 that his client proposes to approach Delhi School Tribunal to assail the order of the termination.

On such a statement, this Court had granted liberty to the respondent no.1 to approach Delhi School Tribunal for appropriate relief along with the claim of payment of outstanding dues as per law. It is also noted that the Appeal was filed by the respondent no.1 before the Delhi School Tribunal on 12th November, 2014, along with an application for condonation of delay in filing the Appeal. The petitioner did not file reply to the application, but had filed written submission before the Tribunal on the said application. The Tribunal decided the said application in favour of the respondent no.

and had condoned the delay in filing the Appeal and while deciding the said application had referred to the judgments relied upon by the Petitioner School as well as the respondent no.1. The final conclusion of the Tribunal on the said application is in Para 17 and 18 of the impugned order, which are reproduced as under:

17. I have also carefully gone through the authorities relied upon for the Ld. Counsel for R1 & R2, there is no dispute in the ratio of law laid-down in these authorities. However, the ratio of law laid-down in an authority, is to be applied according to the facts and circumstances of a particular case. In the above discussed peculiar facts and circumstances of this case, ratio of law laid-down in the authorities relied upon by Ld. Counsel for R1 &R2, is not applicable.

18. In view of the above discussion and after going through the entire facts and circumstances of this case this Tribunal is of the opinion that no malfide or illegal motive can be imputed to the Applicant/ Appellant in late filing of this appeal, hence the delay in filing of this appeal is condoned. The application is accordingly allowed subject to payment of a cost of Rs.1000/- to Respondents. Application is disposed of accordingly.

3.

Mr. Rajinder Dhawan, learned counsel for the petitioner would submit that the Writ Petition which was filed by the respondent no.1 was primarily for grant of pay-scale. He would state that on issuance of the termination order dated 6th March, 2014, the respondent no.1 should have immediately approached the Delhi School Tribunal by way of an Appeal. He states that

even after the Writ Petition (C) 8153/2013 was withdrawn, respondent no.1 took almost 2 months for filing the Appeal before the Tribunal. It is the submission of Mr. Rajinder Dhawan that there is no sufficient cause shown by the respondent no.1 for seeking condonation of delay in filing the Appeal. That apart respondent no. 1 was negligent in availing the remedy available to him. He would rely upon the following judgments in support of his contention:

a) Basawaraj and Another Vs. Special Land Acquisition Officer, 2013 (14) SCC 81 b) Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai, 2012 (SCC) 157;

c) Voyages India Pvt. Ltd. vs. Indian Hotels Co. Ltd. 2011

(178) DLT 61;

d) Balwant Sinah vs. Jagdish Singh 2010 (8) SCC 685. e) P.K.Ramachandran Vs. State of Kerala, 1997 (7) SCC 556 4.

On the other hand, learned counsel for respondent no.1 would submit that respondent no.1 has shown sufficient cause in the application seeking condonation of delay in filing the Appeal. According to him, the earlier Writ Petition being W.P.(C) 8153/2013 was filed for two reliefs, i.e., for release of arrears of Salary and appointing him on permanent basis. That apart he would state after the Writ petition was disposed of on 19th

September, 2014, respondent no.1 had applied for certified copy on the same day, which was supplied to respondent no.1 by the Registry only on 18th October, 2014. Immediately thereafter, the Appeal was prepared and filed on 12th November, 2014. In other words, it is his submission that this itself is a sufficient cause which explains the delay in filing the appeal. He also states the plea of delay in filing the appeal is an after-thought, as during the pendency of the appeal, the parties were exploring settlement. 5.

Having heard the learned counsel for the parties, it is noted that the earlier writ petition filed by the respondent No. 1 was for two reliefs; (1) for release of arrears of salary and; (2) for appointing him on permanent basis. The relief at (2) is primarily, because the appointment of the respondent No. 1 was on ad-hoc basis. It is a conceded position that during the pendency of the writ petition, the order of termination came to be passed on March 6, 2014. Even though, the application seeking condonation of delay does not give elaborate reasons, justifying the delay, surely, the facts as noted now, would reveal the bona fides of respondent No. 1 in not filing the appeal, immediately on receipt of the order dated March 6, 2014. The fact that the petitioner had filed the petition for permanent post, is a relevant fact to infer presumption on the part of the petitioner that this Court would decide the

issue of his permanency. That apart, the statement made by the counsel for the respondent No. 1 that his client is prepared to approach the Delhi School Tribunal to assail the termination order, would show the real earnest on the part of the respondent No. 1 to challenge the order of termination. The plea on behalf of the respondent No. 1 that on September 19, 2014 itself, the respondent No. 1 had applied for the certified copy of the order, which he could get only on October 18, 2014, would also explain the delay that has taken place between September 19, 2014 or at least October 18, 2014. The period beyond that must be presumed to have been spent in preparation of the appeal and filing the same before the Tribunal. The facts as noted, justify the delay in filing the appeal.

6.

That apart, the order dated March 6, 2014, is an order of termination which has effected the means of livelihood of the respondent No.1. Surely, the respondent No. 1 cannot be non-suited only on the ground of limitation. 7.

Insofar as the judgments relied by Mr. Rajinder Dhawan are concerned, the same are relatable to the proposition of law that the discretion to condone the delay has to be exercised judiciously, based on facts and circumstances of each case, including the period of delay and sufficient cause cannot be liberally interpreted if negligence, inaction or lack of bona

fides is attributed to the party. There is no dispute on the said proposition. The judgments can be differentiated on facts, which have been noted above. In view of my conclusion that the delay that has occurred, is not substantial, the challenge relates to the termination of the respondent No. 1, effecting the means of livelihood, this Court is of the view, there was a sufficient cause for the respondent to approach the Tribunal on November 12, 2014 challenging the order of termination dated March 6, 2014, I do not find any merit in the writ petition. The same is dismissed. 8.

I only note that the proceedings before the Tribunal are listed on 10th August, 2016.

9.

Dasti.

CM No.11920/2016 Dismissed as infructuous.

V. KAMESWAR RAO, J JULY 21, 2016/jg