Punjab-Haryana High Court
Natha Singh vs Union Territory on 24 January, 2014
Author: Augustine George Masih
Bench: Sanjay Kishan Kaul, Augustine George Masih
CIVIL WRIT PETITION NO.10877 CAT 2003 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
JUDGEMENT RESERVED ON: DECEMBER 12, 2013
DATE OF DECISION: JANUARY 24th, 2014
Natha Singh
......Petitioner
Versus
Union Territory, Chandigarh and others
......Respondents
CORAM: HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH, JUDGE
Present: Mr. V. K. Sharma, Advocate,
for the petitioner.
Ms. Lisa Gill, Advocate,
Standing Counsel for Union of India-respondent Nos.1 to 3.
****
AUGUSTINE GEORGE MASIH, J.
Challenge in this writ petition is to the order dated 14.2.2002 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, rejecting the application preferred by the petitioner, by order dated 14.3.2000, Annexure P1/A, vide which major penalty proceedings against the petitioner were initiated against him by the Administrator; charge sheet dated 31.3.2000, Annexure P-2; enquiry report dated 30.6.2000, Annexure P-3, order dated 12.10.2000 passed by the Disciplinary Authority, Annexure P-4, imposing punishment of 50% cut in pension and order dated 14.2.2001 passed by the appellate Authority, Annexure P-5, reducing the penalty to 10% cut in pension. Khurmi Rakesh 2014.01.27 12:14 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.10877 CAT 2003 :{ 2 }:
Briefly, the facts are that the petitioner was working as a Superintendent Grade II, when he recommended the proposal submitted by a Senior Assistant relating to revision of pay scales of the Laboratory Assistants of the Punjab Engineering College. On the basis of the said recommendation, notification dated 17.4.1997 was issued by the Finance Department, which resulted in grant of undue benefit to the employees. It was found that the petitioner had misconducted himself by not satisfying him prior to recommending the proposal in toto as received by him, which was unbecoming of a Government servant.
A charge sheet was served on the petitioner on 24.4.1999, who filed reply to the same. The Disciplinary Authority, after considering the reply of the petitioner, dropped the charge sheet by issuing warning to him to be careful in future vide order dated 21.7.1999.
Original Application No.608-CH of 1999 (Kamal Kishore and others Vs. Chandigarh Administration and others) was pending before the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, when certain observations were made by the Tribunal, on the basis of which, the Administrator of Union Territory of Chandigarh called for the file pertaining to initiation and finalisation of disciplinary proceedings against the petitioner. While going through the file, the Administrator found that the notification, which was issued, was in total contravention of the recommendation of the Anomaly Committee, which recommendation was made by the petitioner in toto as was received by him from the Senior Assistant, resulting in loss to Government exchequer to the tune of Rs.20 lacs. On that basis, the Administrator, while exercising powers of the Khurmi Rakesh 2014.01.27 12:14 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10877 CAT 2003 :{ 3 }:
Government under Rule 21 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for short, "1970 Rules"), suo-motu reviewed the order passed by the Punishing Authority dated 21.7.1999 and set-aside the same vide order dated 14.3.2000 and remitted the case back to the Disciplinary Authority for initiating major penalty proceedings against the petitioner on the basis of charge sheet already issued to him.
This order dated 14.03.2000 was not challenged by the petitioner and he rather accepted the same.
Thereafter, departmental enquiry was held against the petitioner and after following the procedure as prescribed under the 1970 Rules, the Disciplinary Authority passed an order dated 12.10.2000, imposing a penalty of 50% cut in pension of the petitioner. On an appeal preferred by the petitioner to the Administrator, Union Territory, Chandigarh, who, after giving the petitioner personal hearing on 1.2.2001, reduced the cut in pension to 10% with prospective effect vide order dated 14.2.2001. The petitioner assailed these orders before the Central Administrative Tribunal but failed, resulting in challenging the order passed by the Tribunal dated 14.2.2003 by way of present writ petition.
Counsel for the petitioner submits that the power of review under Rule 21 of 1970 Rules can be exercised by the Appellate Authority or by any authority specified in this behalf by the Governor by general or special order within a period of six months of the date of order proposed to be reviewed. The Administrator, Union Territory of Chandigarh is the Appellate Authority under the disciplinary rules and, therefore, being an Appellate Authority, the power of review under this rule could be exercised Khurmi Rakesh 2014.01.27 12:14 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10877 CAT 2003 :{ 4 }:
only within a period of six months of passing of the order dated 21.7.1999 i.e. On or before 20.1.2000, whereas the review has been exercised vide order dated 14.2.2001, which is much beyond the period specified under 1970 Rules. His further submission is that if no period is mentioned where power is conferred on any authority by a special order, the period of six months would be applicable and not beyond that. In this regard, he places reliance upon the judgement of the Supreme Court in the case of Union of India and others Vs. Vikrambhai Maganbhai Chaudhari, (2011) 7 Supreme Court Cases 321, wherein, while dealing with paramateria rule, it has been held that period cannot exceed the original period specified for the Appellate Authority, if no further time is specified in the authorization by a general or special order. He accordingly contends that initial order of review dated 14.3.2000 passed by the Administrator, Union Territory, Chandigarh, cannot sustain and the consequential proceedings also cannot sustain and the same deserve to be set-aside. He, however, concedes that the petitioner had not challenged the order dated 14.3.2000 passed by the Administrator at that stage but has approached the Tribunal only after departmental proceedings stood finalised upto the level of Appellate Authority.
Counsel for the respondents, on the other hand, submits that power of review, as has been exercised by the Administrator of Union Territory, Chandigarh, is not as an Appellate Authority but is in the capacity of the State Government in the light of the notification No.SO3269, dated 1.11.1966 issued by the President of India. He has further placed reliance upon the notification dated 30.10.1968 issued by the Government of India, Ministry of Home Affairs, pursuant to which the Administrator of Union Khurmi Rakesh 2014.01.27 12:14 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10877 CAT 2003 :{ 5 }:
Territory, Chandigarh has been vested with the powers and functions of the State Government as also the Central Government in relation to Union Territory of Chandigarh. He, on this basis, contends that the Administrator, Union Territory of Chandigarh, exercises and enjoys dual powers i.e. of the Appellate Authority and the State Government/Governor and, therefore, is competent to exercise the power of review at any time as provided under Rule 21 of 1970 Rules.
We have considered the submissions made by counsel for the parties and with their assistance have gone through the records.
Relevant Part of Rule 21 of 1970 Rules reads as under:- "21. Review. (1) Notwithstanding anything contained in these rules,-
(i) the Governor; or
(ii) the appellate authority, within six months of the date of the order proposed to be reviewed; or
(iii) any authority, specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by rule 25 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
Khurmi Rakesh 2014.01.27 12:14 I attest to the accuracy and integrity of this document
CIVIL WRIT PETITION NO.10877 CAT 2003 :{ 6 }:
(a) .....................................
(b) .....................................
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(d) ..................................."
A perusal of the above would show that the Governor may, at any time, either on his or its own motion call for the records and review any order passed under these rules. Power to remit the case and to direct the authority to make further enquiry is also available. However, while exercising powers, the Appellate Authority can exercise such power of review within a period of six months of passing of the order proposed to be reviewed, whereas any other authority, which is specified by the Governor by a general or special order in this behalf, can review an order within the time which may be prescribed in such a general or special order. In the light of the judgement passed by the Supreme Court in the case of Vikrambhai Maganbhai Chaudhari (supra), if there is no time specified under the general or special order, limit has to be taken as six months from the date the order sought to be reviewed had been passed.
The question would be as to whether the Administrator of Union Territory Chandigarh could have exercised the powers of the Governor while passing the order dated 14.02.2001 for the period of review for an Appellate Authority or any other authority would stand expired on 20.1.2000 as the order vide which the petitioner was warned to be careful by Khurmi Rakesh 2014.01.27 12:14 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10877 CAT 2003 :{ 7 }:
the Disciplinary Authority is dated 21.7.1999.
This aspect has been dealt with by the Tribunal in detail in its judgement and while referring to the provisions as contained in Articles 239 to 242 of the Constitution of India, which deals with the administration of Union Territory, has come to a conclusion that the Union Territory shall be administered by the President acting to the extent as he thinks fit through an Administrator to be appointed by him. The President, being the executive head of the Union Territory, functions as a Head of the Union Territory under powers vested in him as per Article 239 of the Constitution of India and he occupies the position analogous to that of a Governor in a State. The Administrator although is not a Constitutional functionary like a Governor of the State being a delegatee of the President, but he would certainly be exercising the executive powers conferred on a Governor.
Under Section 88 of the Punjab Re-Organisation Act, 1966 (hereinafter referred to as "Re-Organisation Act"), powers of the State Government can be exercised by the Central Government in relation to the Union Territory of Chandigarh. In exercise of such powers by virtue of notification dated 1.11.1966 and in pursuance to Clause (1) of Article 239 of the Constitution of India, the powers and functions of the State government are conferred upon the Administrator of the Union Territory of Chandigarh under any such law. Various laws, which were in operation in the State of Punjab, the expression "State Government" occurred and wherever such laws were made applicable to the Union Territory of Chandigarh, it became necessary to vest the Administrator with the powers of the Central Government and consequently notification dated 30.10.1968 Khurmi Rakesh 2014.01.27 12:14 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10877 CAT 2003 :{ 8 }:
was issued by the Government of India, Ministry of Home Affairs. In pursuance of these two notifications i.e. Dated 1.11.1966 and 30.10.1968, the Administrator, Union Territory of Chandigarh, has been vested with the powers and functions of the State Government as well as Central Government.
By virtue of the aforesaid two notifications, the Administrator of Union Territory of Chandigarh enjoys a unique position as he administers the Union Territory on behalf of the President and also exercises the powers and functions of the Central Government. He also exercises the powers and functions of the State Government, although he is not a Governor of State. He, thus, performs dual functions and holds dual capacity. Under the 1970 Rules, he is the Appellate Authority as also the Head of the State and, thus, it is the nature of the power, which is exercised by him under Rule 21 of 1970 Rules, which determines the capacity in which the authority has been exercised. It would not be out of way to mention here that the Chandigarh Administration has adopted the 1970 Rules and there are no independent rules of its own. The expression "Governor" used in Rule 21 Clause (i) would relate to the Administrator as the powers of the Governor/Head of the State are exercised by the President and by a notification dated 1.11.1966 issued by the President, the powers and functions of the State Government have been vested in the Administrator.
It is not in dispute that power of review has been exercised by the Administrator vide order dated 14.02.2001, which order has not been challenged by the petitioner at the first instance and as a matter of fact the Khurmi Rakesh 2014.01.27 12:14 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10877 CAT 2003 :{ 9 }:
petitioner accepted the same and thereafter faced the departmental enquiry and has chosen to challenge the same only when his remedies under the statutory rules stood exhausted, which would not be permissible.
That apart, even on merits, after the departmental enquiry concluded against the petitioner, punishment of cut of 50% of pension was imposed by the Disciplinary Authority, which, on an appeal preferred by him, stands reduced to 10% cut in pension, which cannot be said to be unreasonable or unjustified. No argument has been addressed by the counsel for the petitioner suggesting that there was either violation or non- compliance of any statutory rule during the departmental proceedings. We are, therefore, of the view that the order passed by the Tribunal dated 14.2.2003, being in accordance with law, does not call for any interference by this Court.
In view of the above discussion, in our considered opinion, there is no merit in the writ petition and, therefore, stands dismissed. There shall, however, be no order as to costs.
( SANJAY KISHAN KAUL ) (AUGUSTINE GEORGE MASIH)
CHIEF JUSTICE JUDGE
January 24th, 2014
khurmi
Khurmi Rakesh
2014.01.27 12:14
I attest to the accuracy and
integrity of this document