Deepika Sabharwal vs Sanatan Dharm Senior Secondary School

Sudershan Kumar Misra, J.

CM No. 12538/2006

This application has been filed by the petitioner praying that the order passed by the Inquiry Officer on 27th September, 2006 be stayed. By that order, the Inquiry Officer, who is arrayed as respondent No. 2 in the petition, has rejected the petitioner''s reply to his notice dated 18th September, 2006 directing the petitioner to appear with her defence statement along with documents. In the said notice, it was also stated that in the absence of written statement, the Inquiry Officer shall submit his findings to the Disciplinary Authority who may take stern action her. By the impugned communication dated 27th September, 2006, the Inquiry Officer has stated that the reply submitted by the petitioner, is vague and not acceptable to the undersigned...." And that, "the other issues raised by her...is not related to the inquiry." It also states, "the language used by her in reply to the notice shows her intention and shows that testimonials submitted by her are fake, which has been established by the Crime Branch of the Delhi Police." It then goes on to state that, "the matter is closed finally and it is for her information." In her petition, the petitioner has also impugned the aforesaid notice dated 18th September, 2006 placing the petitioner under suspension and directing her to appear before the Inquiry Officer on 27th September, 2006.

On 9th October, 2006, this Court had also heard some preliminary arguments with regard to stay and passed the following order:

Till then the disciplinary inquiry is hereby stayed because it is stated that the criminal case and the allegations made in the inquiry are identical" and that, "action be not taken till further orders.

After completion of pleadings, this application seeking interim relief was taken up for disposal.

The following relevant facts have emerged. The petitioner was appointed on 9th December, 1997 as a Teacher in the Sanatan Dharm Senior Secondary School, Dayanand Colony, Lajpat Nagar-IV, New Delhi. She was selected by the Selection Committee as PGT (Hindi) w.e.f. 01.07.1999. Admittedly, there is serious conflict between the current Managing Committee of the respondents and the petitioner''s father who the respondents allege had grabbed the powers of Manager of the Managing Committee of the School, and that a number of complaints came to be instituted against the petitioner''s father in this regard. Whilst they state that the petitioner came to be selected as a Teacher, "due to coercion exerted by the father of the petitioner who was managing the affairs of the school at the relevant time." ; it is also admitted that even now there is litigation between the School Managing Committee and the petitioner''s father. There, her father has alleged that the present Managing Committee of the respondent school has no locus standi, that it is illegally constituted, and has taken over the school without authority of law. While the respondents have taken the position that the petitioner came to be appointed without submitting the original certificates due to her father''s influence'', the petitioner states that the current Managing Committee is determined to dismiss her with a view to settling scores with her father. It has also emerged that on 3rd October, 2002, after her father was ousted, and the current Managing Committee assumed control of the affairs of the school, an FIR came to be lodged against the petitioner under Sections 120(b), 420, 467, 468 and 471 IPC on a report, said to have been made by an informer, that forged certificates have been submitted by the petitioner with a view to obtaining her employment with the school. As a result of this, the petitioner was arrested on 26th November, 2002 and remained in jail till 4th December, 2002, when she was enlarged on bail. Significantly, the petitioner was permitted to rejoin her duties on 5th December, 2002 and continued in her job till 10th April, 2003, when she was placed under suspension. It appears that the precursor to her suspension was a legal notice sent by the petitioner on 5th February, 2003 demanding her salary and allowances which were not being paid from October, 2002.

After the School Management passed an order dated 10th April, 2003 placing the petitioner under suspension, the petitioner resorted to WP(C) No. 5223/2003 wherein the petitioner limited her grievance to her dues and the quantum of subsistence allowance admissible to her in terms of the Delhi Schools Act and Rules.

On 3rd April, 2003, a challan was filed in court by the police in the aforesaid criminal case against the petitioner. In the said challan, it was stated that the certificates and marksheets produced by the petitioner before the Investigating Officer were found to be authentic on investigation. At the same time, it was stated that the petitioner''s father has prepared a forged Class-IX school leaving certificate. In addition, the Investigating Officer also claims to have found some discrepancy in the date of birth of the petitioner as entered in different school leaving certificates. After this challan came to be filed in the Criminal Court on 3rd April, 2003, the School Management decided to appoint respondent No. 2 as an Inquiry Officer. This was done on 27th January, 2004 and a chargesheet dated 26th April, 2005 was served upon the petitioner. On 8th May, 2005 itself, the petitioner sent a reply stating that, "the fact that the matter involves the issue which is subject matter of the proceedings in the criminal case as well and if I am required to divulge all my defence in the DE. The same shall cause prejudice to my defence in the criminal case and this is not permissible in the eye of law." She also stated that,:all the certificates are with the Hon''ble Court and the same has not been returned to the undersigned till date. The undersigned feels that by raising such issues in this memorandum is just to harass me and also to settle score with my father." She prayed that, under the circumstances, this memorandum be withdrawn. However, on 23rd July, 2005, respondent No. 2 came to be appointed as the Inquiry Officer. The Inquiry Officer then issued a notice on 18th September, 2006 i.e. after more than one year, to the petitioner calling upon her to present her defence statement along with documents, and that this notice may be treated as the last notice. It was further stated that in the absence of any written statement, the Inquiry Officer shall submit his findings to the Disciplinary Authority Committee who may take stern action against her. In reply, the petitioner sent a letter dated 23rd September, 2006 where she relied upon her earlier reply of 8th May, 2005 and also stated that, "As far as the documents in question are concerned, a trial in respect of the same issue is pending before the Hon''ble MM, Patiala House Courts, New Delhi and the evidences are pending yet to be recorded. The enquiry may therefore, be kept in abeyance till the finalisation of the trial in the criminal court, as it would adversely affect the outcome of the trial, in case I am compelled to disclose my defence in this enquiry proceedings." She also pointed out that the School Management is biased against her because of on-going tussle with her father, and the question of the School Management is also pending before the Delhi High Court. Finally, she stated that, "However, at this stage I reserve my right to participate in the D.E. after the final outcome of the criminal trial pending before Hon''ble Court of M.M. Patiala House." It is in these circumstances that respondent No. 2 issued the impugned Memorandum dated 27th September, 2006. There the petitioner''s aforesaid reply dated 23rd September, 2006 has been termed as, "vague and not acceptable...." Furthermore, the impugned memorandum also goes on to state that, "the language used by her in reply to the notice shows her intention and shows that testimonials submitted by her are fake which has been established by the Crime Branch of the Delhi Police." Prima facie, this shows that respondent No. 2 is proceeding as if the allegations brought against the petitioner by the Investigating Officer in the challan filed before the Criminal Court in themselves constitute proof of the allegations made therein against her. By this, it also obvious that the scope of the inquiry and the allegations made against the petitioner in the chargesheet issued to her by the respondents, is identical to the accusation for which the petitioner is facing a criminal trial. As a matter of fact, counsel for the respondent fairly conceded before me that the scope of the disciplinary proceedings pending against her is identical to the criminal proceedings which the petitioner is facing, and that the evidence and witnesses in both would be the same. At the same time, in the impugned order, respondent No. 2 has also concluded that the petitioner''s reply dated 23rd September, 2006 while showing, "her intention", also shows that testimonials submitted by her are fake, and that the fact that the testimonials are fake has also, "been established" by the Crime Branch of the Delhi Police. It is quite obvious that respondent No. 2 is acting under the impression that the challan filed by the Delhi Police which, as is well known, constitutes only an accusation which is required to be established, in the trial before it can be said to be proved, have been misunderstood by the Inquiry Officer/respondent No. 2 who has obviously concluded that nothing further is required in the matter.

Counsel for the petitioner has relied on the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, whereby while holding that normally proceedings in a criminal case and departmental proceedings can proceed simultaneously, the exception, "may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance". In that case, in paragraph 22 thereof, the Supreme Court has concluded, inter alia ;

...(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

The Supreme Court had also concluded that ;

Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.

On the other hand, counsel for the respondent has relied upon a case of Noida Entrepreneurs Assn. Vs. Noida and Others, and in particular paragraph 16(v) thereof which states that "if the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with...." He relies upon this observation of the Supreme Court that in this case also enquiry proceedings are unduly delayed and therefore as an exception, the departmental proceedings ought to be allowed to be continued. In this context, some facts are relevant. To begin with, after the FIR was registered against the petitioner on 3rd October, 2002, she was arrested on 26th November, 2002 and remained in jail for seven days. After her release on bail, she rejoined her duties on 5th December, 2002. These facts could not have been gone unnoticed. Despite this, she continued in her job upto 10th April, 2003 till she decided to agitate the question of her salary and allowances which were not being paid to her. Her suspension on 10th April, 2003 by the respondents appears to have been motivated by this demand Before this, the respondents were obviously content with withholding her salary and allowances. It was only after writ petition was filed by her demanding her dues and also seeking revocation of her suspension order that the School Authorities decided to appoint an Inquiry Officer on 23rd July, 2005 i.e. more than 21/2 years after the facts, upon which the disciplinary inquiry is based, came to light. Then again, the Inquiry Officer appears to have done nothing for over a year. On the other hand, in the case of NOIDA Entrepreneurs Association (supra), the matter involved serious allegations of violation of public duty and misuse of official power by a senior official of the State Govt. in an arbitrary, colorable or malicious manner. In that case, it was also found that the State Govt. which had control of the disciplinary proceedings, was out to help the delinquent officer at all cost. It was in those circumstances that the Supreme Court was compelled to appoint a Commission to go into the decisions taken by the State Govt. to first keep the enquiry in abeyance pending the outcome of the CBI enquiry investigating the matter and thereafter to dispense with the enquiry altogether. Here there is no such allegation. The factual matrix is quite different. The matter revolves around the allegation of the petitioner having submitted fake and forged certificates with a view to obtaining employment in the Govt. aided school. There is no allegation of any violation of public duty or misuse of official power; or that the authorities are out to subvert the whole process with a view to helping her at all costs. Furthermore, the conclusions reached by the Enquiry Officer in impugned memo of 27th September, 2006 are ex facie quite startling. When the allegations are identical, for the Enquiry Officer to conclude that her guilt stands established by the Crime Branch of the Delhi Police without any further trial in the matter, is to undermine the entire process by which relevant facts that go to make up the guilt of the accused person are required to be proved. To my mind, the observations of the Supreme Court in para 35 of Capt. M. Paul Authority''s case (supra) apply to this case also.

Under the circumstances, the interim order dated 9th October, 2006 directing that further action be not taken pursuant to the impugned order dated 27th September, 2006 is made absolute.

The application is disposed of.