IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.9911 of 2010 Date of Decision : July 19, 2010. Khalsa College for Women, Amritsar .....Petitioner versus The Director of Public Instructions (Colleges), Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.S.C.Nagpal, Advocate, for the petitioner. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) The petitioner-College seeks a writ of certiorari to quash the orders dated 25.9.2008 and 18.2.2010 (Annexures P-4 & P-6) passed by the Director, Punjab Instructions (Colleges), Punjab and the Educational Tribunal, Punjab, respectively. [2] In order to appreciate the contentions raised on behalf of the petitioner, it may be briefly noticed that respondent No.3 joined the petitioner-College as Gate Keeper on 13.10.1977 and got more than one promotions including as a Superintendent in the year 1996. It appears that respondent No.3 could not maintain cordiality with the Principal of the College which led to issuance of a charge-sheet dated 14.9.2007 to him C.W.P.No .9911 of 2010 2 followed by regular departmental enquiry by the Honorary Secretary of the Managing Committee of the College, who vide his enquiry report (Annexure P-1) held respondent No.3 guilty of (i) absence from duty w.e.f. 1.5.2007; (ii) failure to maintain the record/documents of the college properly and (iii) failure to get six F.D.Rs. of the College renewed thereby causing loss of interest amounting to Rs.21,831/-. [3] Based upon this findings, the petitioner-Management sought approval of the D.P.I. (Colleges) Punjab under Section 4 (3) of the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 (for short `the 1974 Act') read with the Rules framed thereunder for dismissal of respondent No.3 from service [4] The D.P.I. (Colleges) vide the impugned order dated 25.9.2008 (Annexure P-4) declined the permission after holding as follows:- “....After perusal of the record and hearing both the sides, I am of the considered view that the enquiry report is logically weak and the penalty of dismissal of the employee as proposed by the College-authorities is not commensurate with the alleged charges against him. The proposal is rejected. I allow his compulsory retirement with all the consequential benefits due to him....” [5] The petitioner-Management appealed before the Educational Tribunal, Punjab, who vide its impugned order dated 18.2.2010 (Annexure P-6) though has modified the order of the D.P.I. (Colleges), Punjab, to the extent that no infirmity in the enquiry proceedings has been found but has dismissed the petitioner-Management's appeal on the plea that the D.P.I. (Colleges) was competent under the Act to dis-agree with the C.W.P.No .9911 of 2010 3 recommendations of the Management for dismissal or removal of respondent No.3 from service and/or to recommend an alternative punishment. The Tribunal has further held that since respondent No.3 has meanwhile retired from service on attaining the age of superannuation w.e.f. 31.10.2009, no relief whatsoever can be granted to the Management and that respondent No.3 shall be entitled to all the consequential benefits including the retiral benefits. [6] Aggrieved, the petitioner-Management has approached this Court. [7] I have heard learned counsel for the petitioner at some length and perused the impugned orders. [8] Section 4 of the 1974 Act, being relevant to resolve the issue involved herein, is reproduced below:- “4. Procedure to be observed before dismissal and removal:- (1) The penalty of dismissal or removal from service shall not be imposed unless the same is approved by the Director. (2) Where after the inquiry referred to in Section 3, it is proposed to impose the penalty of dismissal or removal from service the proposal shall be referred to the Director alongwith the relevant record and intimation about the proposal having been so referred shall be sent to the (employee) concerned also simultaneously. (3) The (employee) may, within a period of thirty days of the receipt of the intimation referred to in sub-section (2), make a representation against the proposed penalty to the Director who may after examining the record and C.W.P.No .9911 of 2010 4 giving to the parties an opportunity of being heard, by an order in writing, give his approval to the imposition of the proposed penalty of dismissal or removal from service, as the case may be, or refuse to give approval if the proposal if found to be mala-fide or by way of victimization or not warranted by the facts and circumstances of the case. (4) Any party aggrieved by an order of Director under Sub-section (2) may file an appeal to the District Judge who may, after giving to the parties an opportunity of being heard, pass such order as he may deem fit.” [9] It is apparent from the plain reading of Sub-Section (3) of Section 4 reproduced above, that whenever a proposal for imposition of penalty of `dismissal' or `removal' from service is received by the Director, he is competent to refuse to give approval if the same is (i) found to be malafide; (ii) by way of victimization and (iii) not warranted by the facts and circumstances of the case. [10] The Tribunal vide its impugned order dated 18.2.2010 (Annexure P-6) has held and rightly so that the D.P.I. (Colleges) in exercise of the above noticed statutory power was competent to dis-agree with the quantum of punishment proposed by the Management and could decide to impose an alternative punishment. [11] In the case in hand, respondent No.3 had enjoyed spotless service career since the year 1977. As regard to the allegation of absence from duty, respondent No.3 has explained that he kept on visiting the College but was not permitted to mark his presence, has found favour with the D.P.I. (Colleges). C.W.P.No .9911 of 2010 5 [12] So far as causing of the loss of Rs.21,831/-, suffice it to say that respondent No.3 was not the Accountant and was not responsible for the affairs of the Accounts Branch. Be that as it may, the punishment of 'removal' or 'dismissal' from service for causing loss of Rs.21,831/- unless it is a case of embezzlement or mis-appropriation, is wholly unjustified in law as well as in equity. [13] The punishment recommended by the petitioner-Management, thus, gives some credence to the allegations made by respondent No.3 that he was being victimized at the hands of the Principal of the College due to some personal vendetta. It is pertinent to mention here that when the matter was pending consideration before the D.P.I. (Colleges), respondent No.3 offered to retire from service voluntarily but the petitioner- Management was hell bent to dismiss/remove him from service and did not agree to his request. [14] Since respondent No.3 continued in service in view of the orders passed by the D.P.I. (Colleges) till he retired from service on attaining the age of superannuation on 31.10.2009, the Tribunal has rightly held that no punishment can be imposed on respondent No.3 at this juncture and consequently he was entitled to his retiral dues as per the Rules. [15] No case to interfere with the impugned orders is made out. [16] Dismissed. July 19, 2010 (SURYA KANT) Mohinder JUDGE