IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.549 of 2009 Date of decision: 13.01.2010 Tara Singh and another ....Petitioners versus Punjabi University, Patiala and others. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Ms. Preeti Khanna, Advocate, for the petitioner. Mr.Sukhdip S. Brar, Advocate, for respondent No.1. Mr. Anil Kumar Sharma, Additional Advocate General, Punjab, for respondents 2 and 3. Mr.Pawan Kumar, Senior Advocate, with Mr.Saqib Ali Khan, Advocate, for respondent No.4. ----- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. Through the writ petition, the petitioners have sought for a direction against the State Education machineries that the 4th respondent conforms to law with reference to payment of salary and other dues and allow the petitionesr to continue to discharge the duties as Lecturers in the light of orders passed by the Director Public Instructions, 2nd respondent herein. The principal contest is entered by the College management, which is the respondent herein. The response on behalf of the College was fairly simple that the order that the petitioner seeks for Civil Writ Petition No.549 of 2009 - 2 - enforcement, has since been set aside by the Education Tribunal and the matter has been sent back to the 2nd respondent for fresh consideration and disposal on merits. As regards the second part of the prayer contained in the petition for payment of salary and other dues, the response would be that the same may be considered by the 2nd respondent before whom the matter now stands for adjudication. 2. Between the loud wails of the petitioners claiming the salary and other dues and the distancing from the enforcement aspect immediately by consigning the issue for consideration before the 2nd respondent himself, there is many a story. I would have normally felt inclined to leave the case only to the 2nd respondent to consider the whole issue in the light of the matter having been remitted by the Education Tribunal for consideration, but the 2nd respondent himself has caused in some way the deepening of the poignancy of the situation for the petitioners. The petitioners, who while working as Lecturers in the College came under the scanner of the 4th respondent for some alleged improprieties committed by them and pursuant to an enquiry against the misconduct, they were suspended from service on 28.02.2005. The enquiry yielded to a finding of guilt and the management had taken a decision to remove them from service. The provisions of the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 and the rules framed thereunder dictated a procedure that required an approval from the Director of Public Instructions to give effect to their decision. The teachers are also governed by the Service Conduct Rules in Non- Governmental Colleges framed by the Punjab University and published Civil Writ Petition No.549 of 2009 - 3 - through its calendar in Volume-III, Part-II, Chapter XX. The rule provided that the period of suspension of an employee shall not exceed 6 months and during the period of suspension, the employee shall be paid allowances equal to half of the amount of the salary even during the period of suspension. The subsistence allowance as provided under the rules had not been given and after sending the matter for approval with the 2nd respondent, the management was only expecting its decision. 3. Although the enquiry and the decision had been taken by the 4th respondent within a period of 6 months, the 2nd respondent did not take any decision, driven perhaps by a perception that a decision on merit would sour the relationship between the teachers and the management and had attempted in his own way mediation between the parties. In the meanwhile, the teachers appeared to have also petitioned to the Vice Chancellor of the University through their Union into certain misdeeds of the College namely the victimization and non-payment of gratuity and other allowances even to retired teachers. An Enquiry Committee had been set up by the Vice Chancellor. Representatives of the Union and of the College had been examined and the Committee gave a report on the representation that included also a reference to the fact that the suspension of the petitioner was not justified and there was no substance in any of the allegations levelled by the College management against them. The parleys for peaceful resolution of dispute had gone side by side and in a meeting held on 07.03.2007 before the Dean of the College Development Council, the representative of the management through the president of the Managing Committee and the affected teachers had Civil Writ Petition No.549 of 2009 - 4 - taken part, when the Managing Committee had conceded that they would reinstate the teachers and allow them to join w.e.f. 15.03.2007. It appears that the teachers also reported for duty on 19.03.2007 and expected that they would be served with reinstatement orders with retrospective effect from 15.03.2007 as promised by them. The College management appeared to have some rethink on the whole process and a fresh representation had therefore been given by the petitioner and other persons to the representative of the University who was a part of the College Development Council apprising them of the fact that the peace parlays that seemed to end had taken a back-track and they could not resume there duties. 4. What followed subsequently is rather surprising, when through a letter dated 30.10.2007, the Principal of the College had sounded to the 1st petitioner that a College employee had been sent to his residence on 30.10.2007 and that he was found absent at home. The Principal had expressed surprise that he had left the house without taking permission from the College and he had demanded to know where he had gone. This was a response to a request by the petitioner that he had not been paid a subsistence allowance. If the College had not permitted the petitioners to do the work in the College and they had by their own conduct prevented the petitioners to report for duty, it is incomprehensible as to how when a request was made for payment of their salary, the College had the impertinence to suggest that if they did not come to College, they were bound to stay at home and they were bound to report where they had gone. The College was literally trying to Civil Writ Petition No.549 of 2009 - 5 - act like a big brother, as George Orwell's all seeking leader of the dystopian oceania. They had even sent an earlier communication on 27.08.2007 that during the College hours instead of staying at home, they were engaging in political activities and anti-College activities which were in violation of service rules. 5. Having found that the peace parlays did not work and having found that the College administration was still not taking them in or assigning to them any work to do, the 2nd respondent passed an order on 24.09.2008 which is in the manner of disposal of the request for approval to remove them from the service. The order dated 24.09.2008 recited that the petitioners must be deemed to have joined the service on 29.03.2007 for all intents and purposes and they were entitled to the salaries from 29.03.2007 even though they were not able to mark themselves present. It was this order which the petitioners sought for enforcement but in the appeal before the Tribunal, the order was set aside on 12.11.2009 and the Tribunal had directed the 2nd respondent to consider the request for approval for the decision of the management to terminate the services on merits. When the petitioners now make their plea that they should be paid their wages, 4th respondent contends through their counsel that even the prayer for the salary shall be considered only by the 2nd respondent. 6. It must be seen that in the whole exercise, the basic principle of not allowing the suspension period to continue beyond a period of 6 months has been flouted. Even the obligation to pay the subsistence allowance for the period of 6 months for the suspension period has not Civil Writ Petition No.549 of 2009 - 6 - been complied with. If the rules limit even the period of suspension by not taking a decision for nearly 4 years and keeping the matter alive by a direction to the 2nd respondent to consider the case afresh, the petitioners have arrived nowhere. They are worse off than how they began. If the rules provided for subsistence allowance during the suspension period, which could not have lasted for more than 6 months, they could not be worse off being denied all the payments by the only fact that the request would be considered only by the 2nd respondent. What is involved in this case is infraction of the fundamental right to light under Article 21. Anything can wait but not even a right to carry on a living; the suspension of it only means an annihilation of life itself. If the delay in the decision of the 2nd respondent has been occasioned by his attempt to negotiate for the settlement which did not fructify and by the decision of the Education Tribunal to remit the matter to consider the approval sought for by the management, it only means that the decision for dismissal has not been approved yet. For all this period beyond a period of 6 months, the teachers must be deemed to have been in duty and the Government and the 4th respondent shall take the responsibility jointly to pay the salaries which are due to them as though they continued in duty. I have not been shown through any particular provision that allows extension of period of suspension beyond a period of 6 months. The liability to pay the teacher is primarily on the management of the College and it will be no answer to them to contend that being an institution that obtains 95% aid, the amount could be only recovered from the Government and paid. This point has been elicited by the judgment of Civil Writ Petition No.549 of 2009 - 7 - the Hon’ble Supreme Court in Anandi Mukhta Sadguru Versus V.R.Rudani-1989 S.C. 1607.. The teacher shall be paid at 50% of the wages for the first 6 months commencing from 28.02.2005 upto the end of August, 2005 and a full salary from September, 2005 till date and continued to be paid till the final decision that the DPI may take. The payment shall be done within a period of 4 weeks from today irrespective of the ultimate outcome of the decision of the 2nd respondent. The liability is joint and several amongst the respondents. 7. The writ petition is disposed of on the above terms. (K.KANNAN) JUDGE 13.01.2010. sanjeev