IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 15948 of 2008 Date of Decision : 06.01.2009. Narinder Kumar …Petitioner versus State of Punjab and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. Sameer Sachdeva, Advocate, for the petitioner. Mr. R.S. Bajaj, Advocate, for the Respondents No. 2, 4, 5, and 6. M.M. KUMAR, J. The petitioner has approached this Court with a prayer for quashing the order dated 22.06.2007(Annexure-P-17) passed by the Managing Committee Guru Nanak National College-2nd respondent and the order dated 02.06.2008 (Annexure-P-24) passed by the Director Public Instructions-3rd respondent. He has also claimed consequential relief of quashing the incidental proceedings as violative of statutory provisions contained in the Punjab Affiliated Colleges (Security of Service of Employees) Act 1974. C.W.P. No. 15948 of 2008 2. The case of the petitioner is as follow : The petitioner has been working as a Lecturer in the Private Affiliated College known as Guru Nanak National College, Nakodar-2nd respondent since 05.08.1971. He was to attain the age of superannuation on 06.10.2008. A chargesheet was issued against him on 18.10.2004 (Annexure-P-3) with the allegation that during the summer vacation from 16.05.2004 to 26.06.2004, he went abroad without proper sanction of leave which is an act of indiscipline, insubordination and it has caused loss to the College. The petitioner has alleged that the Managing Committee of the College is bogus. The petitioner vide letter dated 05.11.2004 (Annexure-P-4) submitted his reply asserting that he did not commit any wrong by going out of country only during summer vacation when the College was closed and he was on leave without pay. The Managing Committee is totally illegal and unauthorised without any right/competence to interfere in the service conditions of the petitioner. The so called Managing Committee infact has been declared to be illegal by the Civil Courts and the aforesaid decision has been upheld by the High Court. The Civil Court vide Judgment dated 17.01.2005 (Annexure-P-5) appointed Additional Deputy Commissioner as Receiver to manage the affairs of the College by holding that Pritam Singh Sarih who is a self styled President of the College could not be allowed to run its affairs and such a management was restrained from interfering in the affairs of the College. The aforesaid decree of the Civil Court is in operation till date. The self styled President Pritam Singh Sarih has continued interfering in the peaceful working of the College inspite of civil court -2- C.W.P. No. 15948 of 2008 decree against the self styled President Shri Pritam Singh Sarih who had written an unofficial letter dated 15.04.2005 (Annexure-5/A) to the Receiver-cum-Additional Deputy Commissioner to take action against the petitioner for going abroad during summer vacation without sanction of leave from the College. On 28.03.2006, the petitioner was called upon to appear before the Assistant Commissioner (Grievances) Jalandhar, who was nominated as Inquiry Officer by the Additional Deputy Commissioner, Jalandhar, to inquire into the chargesheet dated 18.10.2004. He submitted his reply before the Inquiry Officer on 28.03.2006 and 17.04.2006 (Annexures-P-8 and P-9). The Inquiry Officer submitted his inquiry report dated 05.05.2006 (Annexure-P-10) holding that although the petitioner was on sanctioned leave without pay during the period from 09.07.2004 to 31.08.2004. He went abroad without taking proper sanction for Ex-India leave. The allegation of insubordination or any loss to the College or students were not found proved. 3. On 21.08.2006 (Annexure-P-11), the petitioner was placed under suspension with the observation that the requisite chargesheet and show cause notice were not followed by the so called President. The increments due to the petitioner were not granted to him which were stopped w.e.f. 01.02.2006. The petitioner had represented on 01.04.2006 (Annexure-P-12). On 20.09.2006, President Pritam Singh Sarih appointed one Tejinder Pal Singh, Advocate of Nakodar as Inquiry Officer for the second time to inquire into the alleged chargesheet dated 18/28.10.2004. The petitioner replied stating therein that no chargesheet dated 28.10.2004 was -3- C.W.P. No. 15948 of 2008 pending against him (Annexures-P-13 and P-14). The Inquiry Officer Tejinder Pal Singh called upon the petitioner on 16.10.2006 to attend the inquiry proceedings (Annexure-P-15) regarding chargesheet dated 18.10.2004 instead of 28.10.2004. The petitioner refused to surrender before this Enquiry Officer on 24.04.2007 (Annexure-P-16), the Inquiry Officer submitted his ex-parte inquiry report without a single witness and held that the petitioner went abroad without proper sanction and had used abusive language against the Managing Committee which is an act of insubordination. Thereafter, the 2nd respondent purporting to act as Managing Committee and after issuing show cause notice dated 02.05.2007 to the petitioner, terminated his services by forfeiting his entire suspension allowance (Annexure-P-17). 4. The petitioner has contended that he has been a victim of gross illegality and is subjected to act of vandalism by the so called Managing Committee. He immediately approached D.P.I. (C) - the 3rd respondent by making representations on 13.09.2007, 27.09.2007, 31.10.2007, 21.11.2007 and 05.12.2007 (Annexures-P-18 to P-22). The final arguments were heard by the D.P.I. on 12.03.2008 when the orders were reserved. On 02.06.2008, he pronounced his order (Annexure-P-24) and approved the action of the Managing Committee- 2nd respondent. He held that the findings of the Inquiry Officer were proper and he accorded his approval for his compulsory retirement. On 12.08.2008, the petitioner filed an appeal before the State Education Tribunal which could not be heard as the Tribunal has been working without any Member since February, 2008. It is in these -4- C.W.P. No. 15948 of 2008 circumstances that the petitioner has approached this Court with a prayer for quashing the order dated 22.06.2007 (Anneuxre-P-17) passed by the 2nd respondent, terminating his services and the order dated 02.06.2008 (Annexure-P-24) passed by the 3rd respondent granting approval to the proposed termination of the petitioner. 5. In reply to the notice of motion, respondents No. 2,4,5, and 6 have filed their joint reply. A preliminary objection has been raised that an appeal lies before the College Tribunal, Punjab, without any comment on the non availability of its Members because of non appointment. The other broad facts have not been disputed. It has been highlighted that the petitioner has gone abroad earlier in June, 2003 without proper sanction from the Managing Committee and on that account he was placed under suspension on 11.08.2003. Thereafter, he was issued a chargesheet on 28.10.2003. The petitioner is alleged to have used wrong and derogatory letter against the Managing Committee and subsequently stated to have tendered apology vide his letter dated 08.12.2003. The Managing Committee took a sympathetic view and revoked his suspension by withdrawing the chargesheet. A true copy of the order has been placed on record (Annexure-R-5/1). The allegation that the respondent No. 6 is not authorised and is a self styled President of the Managing Committee have been controverted by asserting that the petitioner has tendered his apology on 08.12.2003 before the respondent No. 6. It is claimed that the validity of the Managing Committee headed by respondent No. 6 is sub judice before the Civil Courts, Nakodar. However the petitioner went abroad again in June, 2004, without taking prior permission of -5- C.W.P. No. 15948 of 2008 the Managing Committee from 16.05.2004 to 26.06.2004. As such he was rightly issued the chargesheet dated 18.10.2004 (Annexure-P-3) . It has further been pointed out that initially vide order dated 17.01.2005, respondent No. 6 was restrained from managing the affairs of the College, however, on appeal filed before the Additional District Judge, Jalandhar, respondent No. 6 was allowed vide order dated 15.09.2006, and the Additional District Judge set aside the order of the Trial Court dated 17.01.2005. It has been clarified that the Assistant Commissioner (Grievances), Jalandhar, was appointed as Inquiry Officer by the Receiver to hold preliminary inquiry who submitted his report concluding that the charge is proved against the petitioner that he went abroad without sanction from the competent authority. It was on the basis of the preliminary inquiry that the petitioner was placed under suspension. The petitioner did not appear before the Inquiry Officer and levelled allegations against him that he was acting in collusion with the College authorities to cause mental torture to the petitioner with a malafide intention. Thereafter, the Inquiry Officer held ex-parte inquiry and it was concluded that the charges levelled against him was proved and then he was issued show cause notice dated 02.05.2007 alongwith copy of the inquiry report and instead of sending reply to the show cause notice, the petitioner levelled false and frivolous allegations. As a consequence the 2nd respondent decided to terminate his services subject to approval of the D.P.I. The respondents have claimed that there is no illegality in the order passed by them. Thereafter, the D.P.I. converted his termination into that of compulsory retirement vide order dated 02.06.2008 (Annexure-P-24). -6- C.W.P. No. 15948 of 2008 6. We have heard learned counsel for the parties at a considerable length and find that the instant petition deserves to be allowed. The petitioner was issued a chargesheet dated 18.10.2004 by Shri Pritam Singh Sarih-respondent No. 6. There has been a serious dispute about his status to act as President of the Managing Committee of Guru Nanak National College where the petitioner has been working as a Lecturer in English. It has come on record that on 07.09.1974 a compromise was entered which resulted in appointing Sardar Hazara Singh as the President to watch and ward the interests of the College. The other four members were Dr. Chanan Singh, Sardar Kishan Singh, Shri Sachida Nand Bhalla and Sardar Resham Singh. The previous Managing Committee was dissolved and the five persons named above were to act as the Managing Committee till the election of the new Managing Committee. With regard to 4th respondent, observation has been made in order dated 19.12.1978 passed by Sub Judge 1st Class, Nakodar, when one Balwant Singh an Ex-Principal of the College had filed a suit. In its order dated 19.12.1978, Shri H.P. Handa, Sub Judge 1st Class, Nakodar, has observed that Pritam Singh Sarih-respondent No. 6 is not a Member of the Managing Committee. It is only the Managing Committee approved by the court which could interfere in the affairs of the College. The aforementioned order of the Sub Judge 1st Class was affirmed on 02.11.1979 by Shri K.C. Dewan, Additional District Judge, Jalandhar holding that respondent No. 6 did not have any concern with the College and cannot interfere into its affairs. In yet another suit filed against 6th respondent vide order dated 17.01.2005, the Civil Judge (Junior Division), Nakodar, held that 6th -7- C.W.P. No. 15948 of 2008 respondent has to be restrained from posing himself as President of the Managing Committee of Guru Nanak National College, Nakodar, and he was restrained from interfering in its business and functioning. Paras 13 and 14 passed by the court read as follow : “13. In view of my above discussion, prima facie case, balance of convenience is made out in favour of the plaintiff being permanent member of college council who alongwith General Public would suffer an irreparable loss, if defendant No. 1 is not injuncted and accordingly application under consideration is hereby allowed restraining defendant No. 1 from posing himself as President of Managing Committee of Guru Nanak National College, Nakodar, and Guru Nanak National College for Women, Nakodar, from interfering into its business and functioning and in the affairs of College Council by spending money out of the valuable funds/management grants of both the institutions in any manner whatsoever, till the final disposal of this case or till the election of the Managing Committee, which ever is earlier. 14. Now the question arises for consideration is as to how both the institutions are to run, because neither plaintiff nor defendant No. 1 has any legal sanction to run the same. Keeping in view the spirit of the order dated 07.09.1974 passed by the then learned Sub Judge 1st Class, Nakodar, which is base on a compromise arrived -8- C.W.P. No. 15948 of 2008 at between members of the College Council and other respectables, who have immensely contributed to set up the institutions. I am of the considered view that both the institutions are to be run by duly elected body under the constitution. However, a stop gap arrangement till the election is held, is required to be made to run both the institutions in fair and transparent manner. Accordingly Additional Deputy Commissioner, Jalandhar is appointed as a Receiver to run both the institutions in alentia with assistance of Principal Guru Nanak National College for Boys, Nakodar, Sub Divisional Magistrate, Nakodar and Sub Divisional Magistrate, Shakol an Ex-officio members for smooth functioning till the disposal of the present case or till the election of the Managing Committee, whichever is earlier. However this injunction order would not be an embargo against enquiry proceedings, if any, pending or to be initiated against Smt. Gurmit Kaur Atwal, Principal of Guru Nanak National College for Women, Nakodar, for alleged misusing of funds. Additional Deputy Commissioner will also explore the possibility of early election of the Managing Committee in accordance with the constitution. Copy of this order be brought to the notice of the Additional Deputy Commissioner, Jalandhar, immediately for smooth day to day functioning of both the institutions.” -9- C.W.P. No. 15948 of 2008 7. Despite the aforementioned order passed by the Court, 6th respondent has not stopped interfering in the working of the institution. 8. The chargesheet initiated against the petitioner on 18.10.2004 (Annexure-P-3) has been duly replied on 05.11.2004 (Annexure-P-4) by placing on record the decision of the Civil Courts of 1974 and 1978 which are to the effect that 6th respondent has nothing to do with the affairs of the Managing Committee of the Guru Nanak National College, Nakodar. On 14.04.2005, the 6th respondent despite the order dated 17.01.2005 (Annexure-P-5) passed by the Civil Judge (Junior Division), Nakodar, addressed a letter to the Additional Deputy Commissioner-cum-Receiver levelling allegations against the petitioner and then the petitioner was asked to submit reply once again to the chargesheet. He again replied on 12.05.2005 (Annexure-P-7) asserting that the aforementioned chargesheet was issued by 6th respondent who is now restrained by the court and was not entitled to issue any chargesheet to him. He again placed on record the orders dated 07.09.1974 and 19.12.1978. He also brought to the notice of the Receiver the order dated 02.11.1979 passed by the Additional District Judge, Jalandhar, to which reference has already been made in the preceding para. The petitioner requested for arrears of salary w.e.f. 01.10.2002 to 31.01.2003, arrears for the period of suspension from 11.08.2003 to 07.12.2003, annual increment due from 02.11.2004. 9. The Assistant Commissioner (Grievances), who was entrusted by the Additional Deputy Commissioner, Jalandhar, to hold inquiry against the petitioner has come to the conclusion that the -10- C.W.P. No. 15948 of 2008 petitioner had remained on foreign tour from 16.05.2004 to 26.06.2004 for which he did not avail any station leave or Ex-India leave although he was on leave without pay duly sanctioned. The Inquiry Officer recorded the version of the petitioner that he had gone abroad on account of some family problem during the period when the College was closed. He also claimed that the College did not suffer any loss. It has been found that the petitioner attended the College after the vacations. The Inquiry Officer went on to record the findings which reads as follow : “ After the above inquiry, I have come to the conclusion that Sh. Narinder Kumar neither got his leave sanctioned from the Principal of the College nor he applied for any leave for going abroad. The delinquent employee had got his leave without pay alongwith station leave sanctioned from President, Managing Committee for the period from 09.07.2001 to 31.08.2004 on 16.01.2006 upon which the Principal has signed on 13.06.2001, from which it transpires that the leave of the delinquent employee was forwarded by the Principal to the President, managing Committee for further action. Only charge to this extent is proved against the delinquent employee that the while going abroad did not get sanction from the competent authority, though during this period he remained on leave or college was closed. The report is presented for further proceedings. Sd/- 05.05.2006 Assistant Commissioner (Grievances), Jalandhar.” -11- C.W.P. No. 15948 of 2008 10. We are of the view that no second enquiry could have been held by resorting to suspension once the enquiry was completed by the Assistant Commissioner (Grievances) who was appointed by the Additional Deputy Commissioner - the Court Receiver. There is nothing on record to justify suspension of the petitioner on 21.08.2006 (Annexure-P-11) which stated that the requisite chargesheet and show cause notice were to follow. Thereafter, another inquiry has been held against the petitioner and in the ex-parte inquiry report dated 24.04.2007, he has been found guilty. On the basis of the aforesaid inquiry report, an order of termination was passed on 22.06.2007 (Annexure-P-17), terminating the services of the petitioner w.e.f. 23.10.2007 (F.N.). The petitioner made a representation to the 3rd respondent on 13.09.2007 and on various other dates (Annexures-P- 18, P-19, P-20, P-21 and P-22). He has vide his order dated 02.06.2008 (Annexure-P-24) has accorded approval by modifying the order of termination to that of compulsory retirement. 11. It is beyond comprehension that once a detailed chargesheet dated 18.10.2004 (Annexure-P-3) and after the reply of the petitioner, the Assistant Commissioner (Grievances) has held the inquiry then there was no justification for holding another inquiry. The proper course for the respondents was not to re-open the inquiry. The respondents should have accepted the findings recorded by the Assistant Commissioner (Grievances) in his inquiry report dated 05.05.2006. Therefore, the suspension of the petitioner vide order dated 21.08.2006 (Annexure-P-11) is wholly un-warranted and further proceedings of appointing any inquiry officer, holding of inquiry, -12- C.W.P. No. 15948 of 2008 seeking of approval and the order passed by the 3rd respondent retiring the petitioner compulsorily are without jurisdiction. Firstly, the chargesheet dated 18.10.2004 was issued by President who was not authorised by either the Court of Law or elected by the Members. There has been a specific declaration about his status that he has no locus standi. Likewise the court orders dated 17.01.2005 appointing the Receiver has worked itself out. It was the Additional Deputy Commissioner-cum-Receiver who has appointed the Assistant Commissioner (Grievances) as the Inquiry Officer and he has recorded the finding that the petitioner had got his leave without pay sanctioned alongwith station leave from President for the period from 09.07.2001 to 31.08.2004. The charge has been proved only to the extent that the petitioner while going abroad did not get sanction from the competent authority although he remained on leave while the College was closed. By no stretch of imagination, the aforesaid inquiry could be regarded as a preliminary inquiry which is ordinarily held before the issuance of detailed chargesheet which has already been issued in the instant case on 18.10.2004. Moreover, the findings recorded by the Assistant Commissioner (Grievances) have not been set aside and therefore, appointment of second Inquiry Officer is wholly un-warranted. 12. In view of the above, the writ petition is allowed, the impugned order dated 22.06.2007 (Annexure-P-17) terminating the services of the petitioner is set aside alongwith appointment of Inquiry Officer, inquiry report and consequential proceedings taken thereon. We also set aside the order dated 02.06.2008 (Annexure-P-24) passed by the 3rd respondent according approval to the findings recorded by -13- C.W.P. No. 15948 of 2008 the Second Inquiry Officer and modifying the order to that of compulsory retirement. 13. A piquant situation has been presented by this case because during the pendency of the instant petition, the petitioner has retired from service on 31.10.2008. One course open to us is to send back the case for further consideration of the respondents but on account of superannuation of the petitioner, it would not be conducive. Therefore, it would be in fitness of things to pass a concluding order finishing the controversy. The enquiry report dated 05.05.2006 by the Assistant Commissioner (Grievances) must be taken to its logical end which indict the petitioner to have gone abroad from 16.05.2004 to 26.06.2004 when he was sanctioned leave without pay with permission to leave station. He had no sanction for ex-India leave. Hence, we deem it just, equitable and fair to impose punishment of stoppage of one increment without cumulative effect on the petitioner which is to remain in force from 01.02.2004 to 01.02.2005. The petitioner is held entitled to all consequential benefits including pay for the whole of the period and other retiral benefits admissible to him under the law. Let the aforesaid benefits be calculated and paid to the petitioner within two months from the date of receipt of certified copy of this order. 14. The present writ petition is disposed of in above terms. (M.M. KUMAR) JUDGE (JORA SINGH) JUDGE January 06th,2009. sjks -14-