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Smart Summary

Factual and Procedural Background

The opinion concerns a writ petition challenging an order dated 22.2.2008 passed by the Delhi School Tribunal. The petitioners (one identified as the petitioner and another named Amar Nath) were employed as the junior-most drivers by DAV Public School. Following a directive of the Hon'ble Supreme Court that only CNG-run buses should operate within the Union Territory of Delhi, the school was unable to convert its fleet to CNG and declared certain employees surplus due to non-availability of work. The petitioners were retrenched by notice dated 7.1.2003 and retrenchment compensation under Section 25F of the Industrial Disputes Act, 1947 was paid. The petitioners challenged the retrenchment on two principal grounds: (1) that the Industrial Disputes Act, 1947 was not applicable to employees of a school recognized under the Delhi School Education Act, 1973; and (2) that the retrenchment was mala fide and a camouflage intended to deprive the petitioners of salary/arrears owed under the recommendations of the Fifth Pay Commission. The court (Pradeep Nandrajog, J.) heard counsel and dismissed the writ petition in limine, upholding the Delhi School Tribunal's order.

Legal Issues Presented

  1. Whether the order of termination could validly have been passed with reference to the provisions of the Industrial Disputes Act, 1947.
  2. Whether the order of termination was a camouflage (mala fide) intended to deprive the petitioners of salary/arrears payable in accordance with the recommendations of the Fifth Pay Commission.

Arguments of the Parties

Petitioner's Arguments

  • The Industrial Disputes Act, 1947 is not applicable to employees of a school recognized under the Delhi School Education Act, 1973; accordingly, the retrenchment was not legally maintainable under that Act.
  • The retrenchment was mala fide and a camouflage to deprive the petitioner of pay and allowances as per the recommendations of the Fifth Pay Commission; the petitioner alleged arrears of approximately Rs. 70,000 and Rs. 80,000 in a legal notice dated 10.1.2003 and described the notices of retrenchment as "illegal, unjust, arbitrary" and "fully smacks of malafide intentions."

School's Arguments

  • The school denied the allegations in para 3 of the legal notice and stated that pay and allowances were being paid in accordance with the recommendations of the Fifth Pay Commission as accepted by the Government.
  • The school provided specific figures for the petitioners' remuneration: basic pay of Rs. 3,500 per month and Dearness Allowance of Rs. 1,435 per month, and denied that sums of Rs. 70,000 or Rs. 80,000 were being withheld.
  • The school denied that the notices of retrenchment were illegal, unjust, arbitrary or mala fide.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court began by noting the two contentions pressed before it: (i) that the termination could not have been effected by reference to the Industrial Disputes Act, 1947; and (ii) that the termination was a camouflage to deprive the petitioners of Fifth Pay Commission-related salary.

On the first contention, the court observed that the petitioners' posts were abolished because the school could not operate non-CNG buses after the Supreme Court's directive. The court applied a rule of service jurisprudence: where a post itself is abolished, the holder of the post loses lien. The court treated this principle as dispositive and held that, even disregarding whether the Industrial Disputes Act applied to a school recognized under the Delhi School Education Act, 1973, the petitioners had no case because their posts were abolished.

The court also noted that the petitioners were workmen under the school and found that the procedure under Section 25F of the Industrial Disputes Act had been followed; accordingly, the retrenchment compensation procedure was correctly applied.

On the mala fide contention, the court characterized the petitioner's allegations as bald assertions. The court reviewed the petitioner's legal notice (dated 10.1.2003) asserting unpaid arrears and the school's contemporaneous response denying those claims and providing concrete pay figures. Finding the petitioner's assertions unsubstantiated in light of the school's denial and particulars, the court held there was no basis for alleging that the termination was a camouflage.

Summarily, the court found no infirmity in the view taken by the Delhi School Tribunal and concluded that there was no ground to interfere with the impugned order dated 22.2.2008.

Holding and Implications

DISMISSED IN LIMINE

Holding: The writ petition challenging the Delhi School Tribunal's order dated 22.2.2008 was dismissed in limine; the court found no reason to interfere with the impugned order.

Direct implications for the parties: the retrenchments of the petitioners (dated 7.1.2003) stand; retrenchment compensation under Section 25F of the Industrial Disputes Act, 1947 had been paid and the procedure was held to be correctly followed; the court found no evidence of mala fide action to deprive the petitioners of pay/arrears due under the Fifth Pay Commission. The opinion does not announce or rely upon any new legal precedent.

    Raj Kumar Petitioner v. Director Of Education Govt. Of N.C.T Of Delhi And Ors. S

    Pradeep Nandrajog, J.:— Having heard learned counsel for the parties no case is made out to interfere with the impugned order dated 22.2.2008 passed by the Delhi School Tribunal.

    2. 2 points are urged at the hearing today. It is firstly urged that the order of termination could not have been passed with reference to the provisions of Industrial Disputes Act, 1947. Second contention urged is that the order was a camouflage, real intention being to deprive petitioners from salary as per recommendations of the Vth Pay Commission.

    3. I note that the petitioner and one Amar Nath were employed as drivers under the DAV Public School. They were the junior most drivers. With a view to clean the area of Delhi, Hon'ble Supreme Court directed that no bus other than run on CNG would operate within the Union Territory of Delhi.

    4. The school was unable to convert its fleet into CNG run fleet resulting in certain employees being declared surplus on account of non-availability of job.

    5. Petitioner and Amar Nath, being the junior most drivers were retrenched vide notice dated 7.1.2003 Being workmen, retrenchment compensation under Section 25(F) of the Industrial Disputes Act, 1947 was paid. Retrenchment was challenged urging that under the Delhi School Education Act 1973 the concept of retrenchment does not exist. Second point urged was that the retrenchment was mala fide intended to deprive the petitioner his due salary as per recommendation of the Vth Pay Commission.

    6. Qua the plea that pertaining to employees of a school recognized under the Delhi School Education Act the Industrial Disputes Act is not applicable, suffice would it be to state that under said circumstances, on abolition of post the services of the petitioners could be dispensed with for it is a rule of service jurisprudence that where a post itself is abolished, the holder of the post loses lien. Thus de-hors the applicability of the Industrial Disputes Act 1947, the petitioner has no case.

    7. I may note that the petitioner was working as a workman under the school and therefore procedure under Section 25(F) of the Industrial Disputes Act was rightly followed.

    8. On the plea of mala fide, suffice would it be to state the petitioner made bald allegations that he was not being paid full pay and allowances as per the recommendations of the V Pay Commission. This was the stand in the legal notice dated 10.1.2003 (page 27-28) of the writ petition. In para 3 of the notice the petitioner stated as under:-

    “3. That the school has not paid my clients their full Pay and Allces as per Fifth Pay Commission. There arrears as per record comes to approximately Rs. seventy thousand and eighty thousand respectively which the school authorities are holding back and have not paid them. That the above mentioned notices addressed to both of my clients are illegal, unjust arbitrary, against law and fully smacks of malafide intentions.”

    9. The response of the school to para 3 of the notice reads as under:-

    “That the contents of para 3 of your said Notice, being false, are denied. The school has been paying pay and allowances to each of your clients in accordance with the recommendations of the Fifth Pay Commission as accepted by the Government. They are in receipt Rs. 3,500/- p.m as basic pay and Rs. 1435/- p.m as, Dearness Allowance. It is denied that the school has held back Rs. 70,000/- due to your client, Shri Raj Kumar; and Rs. 80,000/- due to your client, Shri Amar Nath. It is also denied that the Notices given to your clients are illegal, unjust, arbitrary and mala fide.”

    10. Under the circumstances I hold that there is no basis for the petitioner to allege that the order of termination was a camouflage.

    11. I find no infirmity in the view taken by the Delhi School Tribunal.

    12. The writ petition is dismissed in limine.

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    Comments

    Raj Kumar Petitioner v. Director Of Education Govt. Of N.C.T Of Delhi And Ors. S
    (Jul 28, 2008)