Summary
A teacher at a recognised private school in Delhi succeeded before the Delhi School Tribunal, which directed his reinstatement with 50% back wages. A Full Bench of the Delhi High Court held that under Rule 121 of the Delhi School Education Rules, 1973, the Managing Committee, not the Tribunal, decides pay and allowances for the period of absence. The Supreme Court agreed. Sections 8 and 11 of the Act give the Tribunal no express power to award back wages, and its CPC appellate powers do not supply one. Rule 121 is a power coupled with a duty. Once reinstatement is effected, the Committee must promptly decide, after notice, salary, treatment of the period and gainful employment. The Rule is not ultra vires. The Tribunal cannot be given implied power that would make Rule 121 otiose. The appeal was dismissed.
Issues
- Whether the Delhi School Tribunal, in an appeal under Sections 8 and 11 of the Delhi School Education Act, 1973, can award back wages to a reinstated employee.
- Whether Rule 121 of the Delhi School Education Rules, 1973, which vests that decision in the Managing Committee, is ultra vires the Act.
- Whether the Tribunal has implied or ancillary power to direct payment of pay and allowances when it sets aside a termination.
Provisions considered
- Sections 8(3) and 11(6), Delhi School Education Act, 1973The Tribunal hears appeals against termination and has CPC appellate powers, including the power to decide a case finally. That is not an express power to grant back wages or to decide how the period of absence is treated. (¶¶ 10, 14, 15, 16, 21)
- Rule 121, Delhi School Education Rules, 1973On reinstatement after an appeal, the Managing Committee 'shall' consider and pass orders on salary and allowances and on whether the period counts as duty, after giving the employee notice. It is a mandatory duty that arises when reinstatement is effected. (¶¶ 3, 27, 28, 29, 31, 32)
- Rule 115(4), Delhi School Education Rules, 1973Where a penalty is set aside on a technical ground, the disciplinary authority may hold a further inquiry and the employee is deemed to be under suspension. Back wages awarded by the Tribunal would be inconsistent with this scheme. (¶¶ 2, 30, 34, 35)
- Section 107, Code of Civil Procedure, 1908The power to 'determine a case finally' only lists an appellate court's options. It does not confer on the Tribunal an express power over emoluments. (¶¶ 12, 15, 16)
Held
- Sections 8 and 11 of the Act do not expressly empower the Tribunal to order back wages. Section 11(6) and Section 107 CPC do not supply that power. By contrast, the Maharashtra Act considered in Deepali Gundu Surwase expressly allowed the Tribunal to award arrears of emoluments. (¶¶ 16, 17, 21)
- Fundamental Rule 54, held inapplicable in Devendra Pratap Narain Rai Sharma to reinstatement under a civil court decree, is in substance pari materia with Rule 121. Rule 121 expressly applies to reinstatement following an appeal to the Tribunal, so that decision does not help the appellant. (¶¶ 23, 24)
- A challenge to the vires of a rule must ordinarily be properly raised with the rule-maker before the Court. Bharathidasan University does not hold otherwise. In any event, Rule 121 forms a harmonious scheme with Sections 8 and 11 and Rule 115(4), and is not ultra vires. (¶¶ 25, 26, 31, 35)
- Rule 121 is a power coupled with a duty. When a Tribunal-ordered reinstatement is implemented, the Managing Committee must promptly, fairly and after notice decide salary and allowances, whether the period counts as duty, and any gainful employment. It may not act arbitrarily or cause needless delay. (¶¶ 27, 28, 29, 32, 36)
- Giving the Tribunal implied power over back wages would make Rule 121 otiose and would sit badly with Rule 115(4). The long-followed view of the Full Bench was also plausible and deserved deference. Its extension of Rule 121 to terminations appealable after Shashi Gaur was upheld. (¶¶ 33, 34, 37, 39)
Result
Appeal dismissed. The Full Bench's answer that the Managing Committee decides back wages under Rule 121 of the Delhi School Education Rules, 1973, and that the Tribunal has no such power, was upheld. No order as to costs.