Punjab-Haryana High Court
The Managing Committee vs Unknown on 4 October, 2012
Author: Rajesh Bindal
Bench: Rajesh Bindal
C.W.P. No. 10171 of 2007 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.W.P. No. 10171 of 2007 (O&M)
Date of decision: October 04, 2012
The Managing Committee, Guru Gobind Singh College, Sanghera,
Barnala
.. Petitioner
v.
The College Tribunal and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Pawan Kumar, Senior Advocate with
Mr. Mohd. Shameem, Advocate for the petitioner in
C.W.P. Nos. 10171 of 2007 and 20399 of 2010 and for the
respondents in COCP No. 1927 of 2008.
Mr. Satish Bhanot, Addl. Advocate General, Punjab.
Mr. G. P. Singh, Advocate for respondent No. 3 in
C.W.P. Nos. 10171 of 2007 and 20399 of 2010 and for the
petitioner in COCP No. 1927 of 2008.
...
Rajesh Bindal J.
This order will dispose of C.W.P. Nos. 10171 of 2007 and 20399 of 2010 and C.O.C.P. No. 1927 of 2008, as all are inter-connected.
In C.W.P. No. 10171 of 2007, the Managing Committee of the College (hereinafter described as 'the Managing Committee') has challenged the order dated 7.5.2007 passed by the College Tribunal, whereby the appeal filed by the Managing Committee impugning the order dated C.W.P. No. 10171 of 2007 [2] 21.6.2004, passed by Director, Public Instructions (Colleges), Punjab [hereinafter described as 'DPI (Colleges)'] was dismissed. Vide aforesaid order, permission sought by the Managing Committee to terminate the services of respondent No. 3-Prem Kumar Sharma (hereinafter described as 'respondent No. 3'), was declined.
In C.W.P. No. 20399 of 2010, challenge is to the order dated 30.7.2010, passed by Principal Secretary, Higher Education, Punjab, whereby the direction issued by DPI (Colleges) vide communication dated 25.9.2007 for payment of salary to respondent No. 3 from 27.5.2003 to 7.10.2007, was upheld.
The contempt petition has been filed alleging violation of the order passed by this court on 12.7.2007 in CWP No. 10171 of 2007.
Learned counsel for the Managing Committee submitted that any permission granted to any of the staff member to do any work beyond his duties had been cancelled through resolution No. 17 dated 9.9.2000. The same was duly brought to the notice of all the staff members including respondent No. 3 but despite this fact, respondent No. 3 continued working as a correspondent of 'The Tribune'. On 20.5.2002, respondent No. 3 furnished an affidavit that he was not doing any work beyond his teaching assignments. A complaint was received that respondent No. 3 was working as Press Correspondent with 'The Tribune'. On the aforesaid complaint, a fact finding enquiry was held and it was found that outside the residence of respondent No. 3, a board was there on which it was written as 'The Tribune Reporter'. In the saving bank account of respondent No. 3, certain credits were there of the amount received from 'The Tribune'. Prima facie, view was taken against respondent No. 3. In terms of the aforesaid fact finding report, charge-sheet was issued on 27.5.2003, to which reply was filed by respondent No. 3 on 6.6.2003 admitting that he was working as a Press Correspondent of 'The Tribune' and for the purpose he had taken permission from the College as well as Punjab Government. Since respondent No. 3 had admitted the charge against him, no enquiry was required to be conducted. The Enquiry Officer submitted his report on 25.7.2003 indicting respondent No. 3. Show cause notice for punishment was issued along with C.W.P. No. 10171 of 2007 [3] copy of the enquiry report, to which no reply was filed by respondent No. 3. Considering the findings recorded in the enquiry report and the conduct of respondent No. 3, the Managing Committee proposed dismissal of respondent No. 3 from service. The report was sent to DPI (Colleges), where the same was disapproved opining that the procedure adopted during enquiry was faulty as the principles of natural justice were violated. In appeal filed by the Managing Committee, the order of DPI (Colleges) was upheld.
Learned counsel further submitted that even after the order of dismissal was passed by the Managing Committee on the ground that respondent No. 3 had been continuing with his activities as Press Correspondent without any permission from the authorities, he was still continuing with that work. For the purpose, reference was made to various news items as appeared in the newspapers (Annexures- P14 to P-22). The stand taken by respondent No. 3 in the written statement that he had not admitted the guilt and further he had the permission from the authorities to continue working as Press Correspondent, hence, regular enquiry was required to be made, was totally misconceived, considering the fact that there was specific admission regarding his continuation of work as Press Correspondent, for which he claimed that he had permission from the authorities. He further submitted that once the charge is admitted by an employee, no enquiry is required to be held. In support of the argument, reliance was placed upon a judgment of Hon'ble the Supreme Court in Chairman & MD V.S.P. and others v. Goparaju Sri Prabhakara Hari Babu, (2008) 5 SCC 569. Once respondent No. 3 himself had admitted the charge against him, the denial of permission to dismiss him from service on account of violation of the principles of natural justice during the course of enquiry is totally erroneous, rather, the conduct of respondent No. 3 during his service and even after he was proposed to be dismissed shows that he was more interested in continuing his career as Press Correspondent, which was having adverse affect in discharge of his duties as a teacher in the college. The order passed by the DPI (Colleges) was conditional and he did not give any direction regarding reinstatement of respondent No. 3.
C.W.P. No. 10171 of 2007 [4]Learned counsel for the Managing Committee further submitted that though DPI (Colleges) did not approve the order passed by the Managing Committee proposing dismissal of respondent No. 3 from service, however, as respondent No. 3 had been relieved of his duties, there was no direction given for payment of back wages to him. At the time of issuance of notice of motion on 12.7.2007, this court had granted status quo regarding services of respondent No. 3. As he had already been relieved by that date, he was to remain out of service.
In C.W.P. No. 20399 of 2010, the orders impugned have been passed by the State authorities directing payment of salary to respondent No. 3 for the period from 27.5.2003 to 7.10.2007. The aforesaid orders have been passed by DPI (Colleges) and the Principal Secretary, Higher Education without affording opportunity of hearing to the Managing Committee. In fact, respondent No. 3 having not worked at all during this period, was not entitled to any salary, as was directed to be paid.
On the other hand, learned counsel for respondent No. 3 submitted that the primary contention sought to be raised by the Managing Committee is that respondent No. 3 had admitted the charge against him and that the order passed by the DPI (Colleges) was conditional and further the DPI (Colleges) did not direct reinstatement of respondent No. 3. Elaborating his contentions, learned counsel submitted that in reply to the charge-sheet, respondent No. 3 had merely mentioned the fact that he had been continuing with the work as Press Correspondent with permission from the authorities. The case set up by the Managing Committee was that the permission already granted had been withdrawn. The same was required to be proved during the course of enquiry, where respondent No. 3 was at liberty to prove the fact that he had the permission to continue working as Press Correspondent. The enquiry could not be dispensed with in the circumstances by treating the reply to the charge-sheet as admission of respondent No. 3. He further submitted that DPI (Colleges) in his order rejecting permission sought by the Managing Committee for termination of the services of respondent No. 3 had mentioned that the Managing Committee can give an option to respondent No. 3 to opt either of the C.W.P. No. 10171 of 2007 [5] professions, which could be only after his reinstatement. He further submitted that removal of respondent No. 3 from service could only be after the approval is granted by the DPI (Colleges) and not otherwise. Once there was no approval, the necessary consequence was that respondent No. 3 was in service and entitled to all benefits accruing to him. The Managing Committee is an aided college, which is getting 95% grant-in-aid from the government and it had to pay merely 5% out of its own resources. Despite the fact that the Managing Committee has not been granted permission to dismiss respondent No. 3, but till date neither he is being permitted to work nor being paid any salary. He further referred to two documents (Annexures R3/1 and R3/2 dated 12.2.1985 and 6.2.1991, respectively in CWP No. 20399 of 2010) granting him permission to continue with his hobby of journalism. In fact, respondent No. 3 was continuing with journalism as a hobby and not as full time profession. He further referred to the interim order passed by this court in CWP No. 11275 of 2004 filed by the Managing Committee at the stage when the appeal was still pending before the College Tribunal, wherein while staying the impugned order, it was observed that as a consequence thereof, the suspension of respondent No. 3 revived and he was entitled to suspension allowance. He further submitted that there was nothing wrong in respondent No. 3 approaching the DPI (Colleges) for a direction for payment of salary to him as the permission sought for terminating his services was declined. As respondent No. 3 had offered to work and the Managing Committee had denied him such an opportunity, respondent No. 3 was entitled to be paid salary for the period.
As far as contempt petition is concerned, learned counsel respondent No. 3 (petitioner in the petition) submitted that he had reported for duty on 15.3.2007. The letter issued by the College to the petitioner on 12.5.2007 shows that he was asked by the Managing Committee to proceed on leave for 15 days from 12.5.2007 onwards. Once he had been taken back in service and was directed to proceed on leave, the order of status quo granted by this court will not mean that he was to be kept out of service.
On the other hand, learned counsel for the respondents in the contempt petition submitted that since respondent No. 3 (petitioner in the C.W.P. No. 10171 of 2007 [6] contempt petition) was not in service on the date when the order of status quo regarding his services was passed by this court in CWP No. 10171 of 2007, the respondents have not violated the interim order. However, still in case there is any unintentional violation of the order passed by this court, the respondents tender their unconditional and unqualified apology for the same. He further submitted that respondent No. 3 (petitioner in the contempt petition) had not been able to substantiate his plea that in fact he had been working but was not paid any salary. Had he worked in the college for any period, he should have been paid salary for that period. If not paid, he never raised an issue about the same. Letter (Annexure-P2) annexed with the contempt petition was got written under pressure.
Heard learned counsel for the parties and perused the paper books.
The primary issue which is required to be considered by this court in the present case is as to whether the order declining permission sought by the Managing Committee for dismissal of respondent No. 3, is legally sustainable or not. The Managing Committee proposed to dismiss respondent No. 3 from service. DPI (Colleges) declined the permission. The order passed by DPI (Colleges) was upheld by the College Tribunal on 7.5.2007.
The dispute in the present case is about the violation of the instructions given by the Managing Committee to the staff for not doing any work, which is not related with their job requirement. The case set up by respondent No. 3 is that he had been granted permission to carry on his work of journalism as Press Correspondent with 'The Tribune' as hobby, whereas the stand of the Managing Committee is that any such permission, which was initially granted, had been cancelled vide resolution dated 9.9.2000, which was duly communicated to all concerned, including respondent No. 3 on 11.9.2000, still respondent No. 3 did not stop his activities as Press Correspondent. A complaint was received by the Managing Committee from one Manjeet Singh stating that respondent No. 3 was continuing as Press Correspondent with 'The Tribune' on commercial terms. In the fact finding enquiry, it was noticed that the allegation against C.W.P. No. 10171 of 2007 [7] respondent No. 3 regarding his working as Press Correspondent was confirmed from the office of 'The Tribune' at Chandigarh. Even outside the residence of respondent No. 3, a board was displayed on which it was written as 'The Tribune Reporter Barnala'. From the savings bank account of respondent No. 3, it was clear that he was getting emoluments regularly from 'The Tribune'. As a consequence of the fact finding enquiry, a charge- sheet was issued to respondent No. 3 on 27.5.2003 with the following charges:
"Details of charges:-
(a) You are doing the job of press correspondent with the Tribune and in order to prove this fact the photocopy of the news items as published in the tribune and published by you, the photograph of your house gate wherein it is written "Press Correspondent" and the various amounts/bills received from the Tribune alongwith your bank statement is being attached.
(b) An affidavit dated 20.5.2002 which you have submitted to the college in which it is submitted by you on oath that you are not doing any business or job which is against the Punjab Government, Punjabi University and the Rules of the college. By submitting this false affidavit you have violated the provision of law and rules."
In reply to charge No. 1, the stand of respondent No. 3 is as under:
"Charge No. 1I am a press correspondent of the Tribune and for this purpose I had taken the college authorities permission and the permission from the Punjab Government too."
Considering the aforesaid stand taken by respondent No. 3 in reply to the charge-sheet, the Enquiry Officer, finding the same to be admission on his part, concluded that the charge against respondent No. 3 C.W.P. No. 10171 of 2007 [8] was proved. In his enquiry report, it was observed that when the charge- sheet was issued to respondent No. 3 on 27.5.2003, he was asked to submit his reply within 15 days. As no reply was received, ex-parte proceedings were initiated. Thereafter, reply was submitted on 6.6.2003 in which he had admitted charge No. 1. It was established that respondent No. 3 had been doing the work of Press Correspondent for the last about 13 years. Copy of the enquiry report dated 25.7.2003 was supplied to respondent No. 3 along with a show cause notice on 29.7.2003 to enable him to submit his response within 7 days, but no reply was received from respondent No. 3. Under the circumstances, the disciplinary authority came to the conclusion that respondent No. 3 deserved to be dismissed from service on account of violation of the service rules. As permission was required from DPI (Colleges), the matter was referred to it. The permission was declined by holding that there was procedural lapse in the enquiry, as proper opportunity was not given to respondent No. 3 to defend.
However, in my opinion, the view expressed by DPI (Colleges), while rejecting the reference made by the Managing Committee, cannot stand judicial scrutiny for the reason that respondent No. 3 had categorically admitted in reply to the charge-sheet, especially charge No. 1 that he was continuing as Press Correspondent. He tried to explain the same by stating that for the purpose he has permission from the authorities. The definite stand of the management is that any such permission granted earlier had been cancelled. It was brought to the notice of all concerned, including respondent No. 3. Averments to that effect made in paragraph 8 of the petition have not been specifically denied. Even after copy of the enquiry report was supplied to respondent No. 3, he chose to remain silent and did not raise the issue regarding violation of the principles of natural justice or violation of the established procedure for conduct of enquiry. Under the circumstances, the permission to dismiss respondent No. 3 from service deserved to be granted. As a consequence, the impugned orders (Annxures-P11 and P12) passed by DPI (Colleges) and the College Tribunal, respectively, are set aside. However, respondent No. 3 is right in contending that dismissal could not be without prior approval of the DPI C.W.P. No. 10171 of 2007 [9] (Colleges), hence, the order of dismissal shall come into effect from the date the order was passed by DPI (Colleges), rejecting such a permission.
In view of setting aside of the aforesaid orders and dismissal of respondent No. 3 from service, as a consequence all subsequent orders directing payment of salary etc. fall through. No separate order is required to be passed in the contempt petition as well.
All the petitions stand disposed of accordingly.
(Rajesh Bindal) Judge October 04, 2012 mk