CWP No.2862 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.2862 of 1990 Date of decision: 20.5.2010 R.C. Miglani ............Petitioner Versus The State of Haryana and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. G.S. Bal, Advocate for the petitioner. Mr. Paramjit Batta, Addl. A.G., Haryana for respondents No.1 and 2. Mr. Saurabh Goyal, Advocate for respondents No.3 and 4. 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? ALOK SINGH, J. (ORAL) 1. Petitioner has invoked writ jurisdiction of this Court under Articles 226/227 of the Constitution of India seeking writ of CWP No.2862 of 1990 -2- mandamus directing respondents No.3 and 4 to pay the arrears of of salary and other amount due to the petitioner along with 12% compound interest. Petitioner has also challenged the orders dated 4.12.1987 (Annexure P-1) and 10.02.1987 (Annexure P-2) passed by respondent Nos.1 and 2 respectively. 2. Brief facts of the present case are that the petitioner was appointed as a Lecturer in English at Hindu College, Sonepat- respondent College in the year 1965; in the year 1985, the petitioner after obtaining station leave proceeded to his home town at Panipat, however, he fell ill there and applied for medical leave telegraphically; leave was rejected by the respondent No.4, however, on getting well, the petitioner resumed his duties and submitted his medical illness/fitness certificate; respondent No.4 rejected the medical fitness certificate submitted by the petitioner on the ground that the said certificate has not been issued by the CMO, Sonepat, as such medical leave could not be granted to the petitioner; respondent No.4 issued letter dated 27.2.1986 (Annexure P-3) to the petitioner, intimating the petitioner that on the basis of the findings of an inquiry held against the petitioner, the Governing Body, respondent No.3 had formed an opinion to dismiss the petitioner with immediate effect; proposal to dismiss the petitioner was forwarded to Director, Higher Education-respondent No.2, for granting approval under the provisions of the Haryana Affiliated Colleges (Security of Service) Act, 1979 (for brevity ‘the Act’); petitioner made a representation to respondent No.4 vide his letters dated 3.3.1986/22.3.1986; CWP No.2862 of 1990 -3- respondent No.2-Director, Higher Education did not accept the proposal of dismissal of the petitioner from service on the ground that penalty of dismissal from service is too severe, however, directed to impose penalty of stoppage of two increments with cumulative effect vide order dated 10.2.1987 (Annexure P-2); petitioner preferred a revision petition before respondent No.1 vide his letter dated 17.3.1987; Management Committee of the College also preferred revision petition against the non-acceptance of the proposal and modifying the penalty of dismissal into stoppage of two increments with cumulative effect; respondent No.1 after hearing both the parties, passed order dated 4.12.1987 (Annexure P-1) enhancing the penalty from stoppage of two increments with cumulative effect to stoppage of four increments with cumulative effect; however, despite of order passed by the respondent No.1 dated 4.12.1987 imposing penalty of four increments with cumulative effect, no order of penalty was passed by the respondent No.3 and respondent No.4 as required under Rule 7 of the Rules, hence, petitioner is entitled for arrears of salary and other amount due to the petitioner along with 12% compound interest. 3. Respondents have contested the writ petition by way of filing their written statement. 4. I have heard learned Counsel for the parties and perused the record. 5. Learned Counsel for the petitioner vehemently argued that as per Section 7 of the Haryana Affiliated Colleges (Security of CWP No.2862 of 1990 -4- Service) Act, 1979 (as was applicable at the relevant time), Management Committee had to send the proposal for imposing punishment to the Director, Higher Education and the Director had to pass the order in writing to approve the proposed penalty or reduce it or refuse to approve it. According to learned Counsel for the petitioner, after the order of the Director under Section 7(4) of the Act (as it then was), Management Committee had to pass fresh order to impose the penalty under Rule 7 of the Haryana Affiliated Colleges (Security of Service) Act, 1980. Since, no order under Rule 7 was passed, hence, no penalty was ever imposed on the petitioner. 6. Learned Counsel for the respondents argued that Rules of 1980 have already been substituted by Rules 1993 and now after the Rules 1993, there was no requirement to pass formal order imposing the penalty after the approval or modification of the penalty by the Director. To understand the controversy, this Court thinks it proper to reproduce Section 7 of the Act and Rules 6 and 7 of the Rules (as stood at the relevant time). “7. Procedure to be observed before dismissal, removal or reduction in rank: 1. No employee shall be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges. Provide that this section shall not apply where an employee is dismissed or removed or reduced in rank on the ground of conduct CWP No.2862 of 1990 -5- which has led to his conviction on a criminal charge. 2. The penalty of dismissal or removal from service or reduction in rank shall not be imposed unless the same is approved by the Director. 3. Where after the inquiry referred to in sub section (1) it is proposed to impose the penalty of dismissal, removal from service, or reduction in rank, the proposal alongwith the relevant record shall be referred to the Director and the employee concerned shall be informed. 4. The employee may, within a period of thirty days of the receipt of the intimation referred to in sub section (3), make a representation against the proposed penalty to the Director, who may, after examining the record and giving the parties an opportunity of being heard, by an order in writing, approve the proposed penalty or reduce it or refuse to approve it, if the proposal is found to be malafide or by way of victimization or not warranted by the facts and circumstances of the case. Rule 6 : Action by Directors: The Director, on receipt of such proposal and representation, if any, after examining the record and giving the parties an opportunity of being heard, by an order in writing, give his approval to the imposition of the proposed punishment or refuse to give approval, if the proposal is found to be malafide by way of CWP No.2862 of 1990 -6- victimization or not warranted by the facts and circumstances of the case. Rule 7: Order by Managing Committee: On receipt of the approval of the Director, the Managing Committee shall pass an order in detail.” 7. From the perusal of Section 7 (as it then was), I have no hesitation to hold that at the relevant time Management Committee was bound to send the proposal to the Director for the approval under Section 7(3) of the Act and Director was competent to pass order under Section 7(4) of the Act either to approve the proposal or to reduce the penalty proposed or to refuse to approve the proposal. From the perusal of the Rules 6 and 7 of the Rules, I am of the opinion that after the acceptance of the proposal or modification of the proposal as directed by the Director, Management Committee had to pass a fresh order in detail imposing the penalty. Undisputedly, a proposal was sent to the Director for approval by the Management Committee imposing the penalty of dismissal on 27.2.1986. Vide letter dated 10.2.1987, respondent No.2 – Director, Higher Education, Haryana observed that penalty of dismissal from service is too severe and penalty of stoppage of two increments with cumulative effect would meet the ends of justice. Order of the Director dated 10.2.1987 (Annexure P-2) was forwarded to the State Government in a revision petition by both the parties and State Government vide impugned order dated 4.12.1987 (Annexure P-1) CWP No.2862 of 1990 -7- opined that penalty of stoppage of four increments with cumulative effect would be sufficient in the facts and circumstances of the case. Undisputedly, no order imposing penalty thereafter was passed by the Management Committee as required by Rule 7 (as it then was). 8. In view of the fact that petitioner has already stood superannuated and no order is passed by the respondent Nos.3 and 4 as required by Rule 7 and present petition is pending for last more than 20 years, hence, in the peculiar facts and circumstances of the case, now I find no justification to ask the respondents No.3 and 4 to pass fresh order as per Annexure P-1. Since no order has been passed as yet, as required by Rule 7, hence, this Court has no other option except to allow the writ petition. 9. Writ petition is allowed. Respondents No.3 and 4 are directed to pay entire arrears of salary and all the consequential mandatory benefits to the petitioner within two months from today with 6% interest thereon. No order as to costs. ( ALOK SINGH ) 20th May, 2010 JUDGE ashish