Punjab-Haryana High Court
Civil Writ Petition No.18644-Cat Of ... vs Union Of India And Others on 23 April, 2014
Bench: Sanjay Kishan Kaul, Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. Civil Writ Petition No.18644-CAT of 2006 (O&M)
DATE OF DECISION: 23.04.2014
Jaswinder Singh and others
.....Petitioners
versus
Union of India and others
.....Respondents
2. Civil Writ Petition No.4232 of 2012 (O&M)
Hari Mohan and others
.....Petitioners
versus
Chandigarh Administration and others
.....Respondents
3. Civil Writ Petition No.9836 of 2012 (O&M)
Rajinder Kumar and others
.....Petitioners
versus
Chandigarh Administration and others
.....Respondents
CORAM:- HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
Present: Mr. Puneet Bali, Senior Advocate with
Mr. Nitish K. Vasudeva, Advocate for the petitioners
Mr. I.S. Sidhu, Advocate for respondents No.1,5 & 7
Ms. Alka Chatrath, Advocate for Union Territory of
Chandigarh
..
SANJAY KISHAN KAUL, CHIEF JUSTICE: (Oral) This common order shall dispose of all the aforesaid three identical petitions and facts are noticed from CWP No.18644-CAT of 2006. Chand Parkash 2014.04.24 13:01 I attest to the accuracy and integrity of this document CWP-18644-CAT of 2006 -2-
The petitioners were all employed in different capacities with the Punjab Engineering College (PEC), Chandigarh, which was a college under the Chandigarh Administration. It is, thus, their case that they were the regular/confirmed employees of the Chandigarh Administration. A notification dated 16.10.2003 was issued granting a status of deemed University to the college under Section 3 of the University Grants Commission Act, 1956. Thereafter, it was considered expedient to vest the administration of the college in Punjab Engineering College Society vide a notification dated 8.7.2004. The initial portion of the latter notification sets out the details, which are reproduced hereinunder:
"Whereas the Ministry of Human resource Development, Department of Secondary and Higher Education, Government of India, New Delhi has notified the Punjab Engineering College (PEC) Chandigarh as Deemed to be University vide notification No.F.9-38/2001-U.3 dated the 16th October, 2003 under Section 3 of the University Grants Commission Act, 1956.
And whereas it is considered expedient to provide for conversion of the Punjab Engineering College from a Department of the Chandigarh Administration to an autonomous Institution to be governed by the Punjab Engineering College Society, which has been registered, vide notification No.3586 dated 29th September, 2003.
And whereas the Chandigarh Administration with the concurrence of Government of India, Ministry of Human Resources Development, has approved the Memorandum of Association and Bye-laws of the Punjab Engineering College Society."
The aforesaid notification thereafter set down various clauses dealing with different aspects. The employees of the College were protected in terms of Clause-6 which reads as under:
"6. Every person employed by Punjab Engineering College, Chandigarh immediately before this Notification comes into force, shall hold the Chand Parkash 2014.04.24 13:01 I attest to the accuracy and integrity of this document CWP-18644-CAT of 2006 -3- corresponding office or service in the Institute for the same tenure, at the same remuneration and upon such terms & conditions and with same rights and privileges as to pension, leave, gratuity, provident fund and other related matters as he/she would have held if the status of Punjab Engineering College, Chandigarh were not changed and shall continue so unless and until his/her employment is terminated or until such tenure remuneration and conditions are altered by any change in the Bye-Laws and/or Rules."
In order to protect the service conditions of the employees, the following clauses were also included:
"29. All other service conditions of such absorbed employees in Punjab Engineering College Society would remain the same as if they were Government servants and no service condition would be modified to the detriment of the employees.
...... ...... ...... ......
31. From the date of transfer of Government employees to the Society, the responsibility of payment of salaries, allowances, loans, advances and other admissible concessions to such transferred persons, shall be borne by the Society. The Society shall recover from such transferred persons their contribution towards G.P. Fund and Savings-cum- Group Insurance Scheme and deposit the same to the appropriate Head of Account of the Chandigarh Administration."
The employees, however, were not satisfied with the aforesaid actions and preferred Original Applications before the Central Administrative Tribunal, Chandigarh Bench. These Original Applications were disposed of by a common order dated 15.12.2005. Suffice to say that there were various apprehensions expressed by the employees qua their service conditions but the Tribunal negated the same holding that these were only apprehensions in the minds of the applicants before it rather than any reality.
Chand Parkash 2014.04.24 13:01 I attest to the accuracy and integrity of this document CWP-18644-CAT of 2006 -4-
Insofar as the present writ petitions filed under Article 226 of the Constitution of India are concerned, though there are various challenges laid including to this order of the Central Administrative Tribunal, the only issue pressed before us arises from the refusal of the Comptroller and Auditor General of India (CAG) to maintain the GPF accounts of the employees of the College as that would amount to altering their service conditions which would be detrimental to them. The modus of creation of a private trust to manage the GPF accounts has also been assailed. This creation of a private trust was a sequitur to an order passed by the Accountant General (A&E), Punjab and Union Territory, Chandigarh dated 24.7.2006 communicated under the cover of a letter dated 3.8.2006 (Annexure P-11) of the PEC.
A perusal of the aforesaid order shows that the same has been passed in pursuance to the directions issued on 5.4.2006 in CWP No.4946 of 2006 titled as Jaswinder Singh and others vs. Union of India and others by this Court calling upon the said authority to dispose of a representation. The order notices that the sole grievance of the petitioners is that the office of CAG shall cease to maintain their GPF accounts which were earlier being maintained by the CAG's office on account of the petitioners being employees of Chandigarh Administration as they were employees of the College. This was stated to be in violation of the assurance given by the Chandigarh Administration vide its communications to the effect that the service conditions of the absorbed employees would remain the same as if they were Government servants and that no service condition would be modified to the detriment of the employees (letters dated 23.11.2004 and 12.12.2004). The order is Chand Parkash 2014.04.24 13:01 I attest to the accuracy and integrity of this document CWP-18644-CAT of 2006 -5- predicated on the sole reasoning that since the petitioners ceased to be Government servants consequent upon upgradation of College to that of a deemed University, the responsibility of the CAG to maintain the GPF accounts as part of its duties in relation to maintenance of Government accounts would come to an end. The order seeks to suggest that the authority passing the order was really not even competent to decide this issue. Thus, the CAG's office seeks to wash its hands off the issue predicated on their being no legal obligation to maintain any type or class of accounts in relation to the society.
We have examined the aforesaid aspects.
It is to be kept in mind that the petitioners were employees of the Chandigarh Administration and as a sequitur the office of the CAG was duty-bound to maintain the accounts including the GPF accounts. The circumstances under which the College attained the status of a deemed University and thereafter its functioning was put under a registered society form a part of the notification dated 8.7.2004 from which we have extracted in extenso to the extent applicable to the issue in question. This notification sets out the terms and conditions qua the employees and the very essential substratum qua the employees is the continuation of their service conditions. Thus, it is really not in issue that the service conditions of the petitioners cannot be altered to their determent in view of the specific Clause-29 and other clauses. We may also refer to another clause of the same notification numbering 35, which reads as under:
"35. The PEC Society being a fully funded institution of the Chandigarh Administration, its annual audit of Chand Parkash 2014.04.24 13:01 I attest to the accuracy and integrity of this document CWP-18644-CAT of 2006 -6- accounts would be entrusted to Comptroller & Auditor General of India."
The aforesaid clause shows that the Society being a fully funded institution of the Chandigarh Administration, the audit of accounts is to be entrusted to the CAG. We really fail to appreciate how in these circumstances it is open to any of the respondents to contend before us that the CAG is absolved of the responsibility of maintaining the accounts including the accounts of GPF.
The aforesaid is not a theoretical debate, since the issue is one affecting the rights of the employees. The petitioners are not urging this issue just for the sake of it as there are serious consequences flowing from the creation of the private trust and the GPF accounts not being maintained by the CAG. Among the consequences are: (i) on maintaining by CAG, it is a part of the consolidated fund of India; (ii) the private trust may not have any security even qua shortfall in corpus; (iii) the actual prejudice which has come to pass is the approach adopted by the Income Tax Department in issuing notices to individuals seeking to add their contribution to the Provident Fund Account to their income and even threatening imposition of penalty; and (iv) the pension trust fund would depend upon its own fund alone.
It is not as if this is a unique situation which has arisen for the reason that it is not disputed before us that as per Annexure P/7 on creation of Municipal Corporation of the area, the funds continued to be managed under the Chandigarh Administration and, consequently, under the CAG avoiding these very complications.
Chand Parkash 2014.04.24 13:01 I attest to the accuracy and integrity of this document CWP-18644-CAT of 2006 -7-
We may also note the unequivocal stand of the Chandigarh Administration as well as the College that the accounts are required to be audited by the CAG and the GPF account is required to be managed by the office of the CAG.
We are, thus, unable to accept the plea of the learned counsel appearing for respondents No.1, 5 and 7 (Union of India and the CAG's office) that the CAG not being party to these notifications can wash its hands off the issue. It is not as if it is for the first time that the audit is sought to be entrusted to the CAG's office so as to invite Section 20 of the Comptroller and Auditor-General (Duties, Powers and Conditions of Service) Act, 1971, which has a proviso that such a request made qua a body which has not been entrusted to the CAG would be with the consultation of the CAG. The CAG has been carrying on the audit in the present case earlier and the conditions of the notification converting the College into a deemed University and thereafter entrusting its management to a Society registered for the said purpose itself require a continued role of the CAG.
The result of the aforesaid is that the order dated 24.7.2006 of the Accountant General (A&E), Punjab and Union Territory of Chandigarh conveyed under the cover of the letter dated 3.8.2006 of the PEC is quashed and a direction is issued that the GPF accounts of the employees of the PEC (now a deemed University) would be maintained by the office of the CAG. The respondents will take the consequent action qua transfer of funds from the private Trust to the CAG. Chand Parkash 2014.04.24 13:01 I attest to the accuracy and integrity of this document CWP-18644-CAT of 2006 -8-
The petitions are allowed in the aforesaid terms leaving the parties to bear their own costs.
( SANJAY KISHAN KAUL )
CHIEF JUSTICE
23.04.2014 ( ARUN PALLI)
parkash* JUDGE
Chand Parkash
2014.04.24 13:01
I attest to the accuracy and
integrity of this document