I N THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.O.C.P. No. 1037 of 2008 Date of Decision : February 5, 2009 Anek Chand ....Petitioner Versus KBS Sidhu and another .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. G.S.Bal, Advocate for the petitioner. Mr. M.C.Berry, Addl. Advocate General, Punjab, for the respondents. T.P.S. MANN, J. (Oral) On 16.9.2004, an order was passed by the Principal, Government College, Gurdaspur, awarding punishment to the petitioner under Rule 5 of the Punjab Civil Services (Punishment & Appeal) Rules, 1970, of stoppage of two increments with cumulative effect. It was mentioned in the said order that it had been passed in compliance with the memo dated 26.4.2004 issued by DPI (Colleges), Punjab. The order of punishment was followed by order dated 6.12.2004, again passed by Principal, Government College, Gurdaspur, in reference to memo dated 16.11.2004 issued by DPI(Colleges), Punjab, that the period of absence of the petitioner from 8.7.1998 to 10.9.2001 be treated as leave without pay. The petitioner, accordingly, preferred an appeal against the aforementioned orders dated 16.9.2004 and 6.12.2004. However, as according to the petitioner, the aforementioned orders had been passed in compliance with C.O.C.P. No. 1037 of 2008 -2- the memos issued by DPI(Colleges), Punjab, he addressed his appeal dated 13.12.2004 (Annexure P.4) to the Education Secretary, Punjab Government, Chandigarh. As his appeal was not decided, the petitioner filed CWP No. 19752 of 2006, wherein he prayed for quashing the aforementioned orders dated 16.9.2004 and 6.12.2004. The said writ petition came up for hearing before a Division Bench of this Court on 14.12.2006 when after hearing learned counsel for the petitioner, the Bench disposed of the petition with a direction to the Appellate Authority, to take a final decision on the appeal preferred by the petitioner on 13.12.2004 by passing a well reasoned speaking order. According to the petitioner, inspite of the above directions, the appeal of the petitioner was not decided by the Appellate Authority. Thinking that necessary directions had been issued by a Division Bench of this Court, the petitioner made two requests (Annexure P.6 and P.7) for the release of his salary. When those requests were not heeded to, the petitioner then sent a notice dated 24.1.2008 (Annexure P.8) to the Secretary to Government of Punjab, Department of Higher Education, Chandigarh, and along with the same he attached copies of Annexures P.6 and P.7 aforementioned. To the utter surprise of the petitioner, he was informed vide order dated 24.1.2008 (Annexure P.9) that his appeal stood dismissed by DPI(Colleges), Punjab. According to the petitioner, his appeal had to be decided by the Secretary to Government of Punjab, Department of Higher Education, Chandigarh, and not by DPI(Colleges), Punjab, as according to him, the orders dated 16.9.2004 and 6.12.2004 impugned therein, were passed by the Principal, Government College, Gurdaspur, in compliance with the directions issued by C.O.C.P. No. 1037 of 2008 -3- DPI(Colleges), Punjab, vide two memos dated 26.4.2004 and 16.11.2004, respectively. Accordingly, the petitioner filed the present petition with a prayer for initiating contempt proceedings against the respondents. Reply has been filed on behalf of the respondents and it has been stated therein that as per the directions issued by this Court on 14.12.2006, the appeal preferred by the petitioner has already been dismissed by DPI(Colleges), Punjab, by passing a speaking order and copy of the same has been attached as Annexure R.1 with the reply. Accordingly, it has been prayed that the petition be dismissed. It may be mentioned here that Annexure R.1 is the same as Annexure P.1 attached by the petitioner with the contempt petition. Learned counsel for the petitioner states that once the appeal had been preferred by the petitioner against the orders dated 16.9.2004 and 6.12.2004 passed by Principal, Government College, Gurdaspur, to the Secretary to Government of Punjab, Department of Higher Education, Chandigarh, the DPI(Colleges), Punjab, was not competent to decide his appeal. The aforementioned two orders were passed by the Principal, Government College, Gurdaspur, after receiving memos dated 26.4.2004 and 16.11.2004 from DPI(Colleges), Punjab. If DPI(Colleges), Punjab, was to hear the appeal of the petitioner that would have been rendered the appeal as an exercise in futility as in all probabilities the DPI(Colleges), Punjab, was to uphold the two orders as they have been passed in compliance of the instructions/memos issued by him. C.O.C.P. No. 1037 of 2008 -4- Learned State counsel submits that as per the Punjab State (Class- IV) Service Rules, 1963, the head of the office concerned is appointing authority and the appointing authority was empowered to impose penalties, whereas the head of the Department is Appellate Authority. Therefore, it was DPI(Colleges), Punjab, who was the Appellate Authority and, therefore, competent to decide the appeal preferred by the petitioner. Moreover, it was observed by the Division Bench that the Appellate Authority should take effective decision on the appeal preferred by the petitioner and there were no directions that it was Secretary to Government of Punjab, Department of Higher Education, Chandigarh, who was to decide the appeal. There is no dispute that against the orders dated 16.9.2004 and 6.12.2004, the petitioner had preferred an appeal dated 13.12.2004(Annexure P.5) by addressing it to the Education Secretary, Punjab Government, Chandigarh. It is also not in dispute that the aforementioned orders were passed by the Principal, Government College, Gurdaspur, in compliance with the instructions received by him from DPI(Colleges), Punjab, vide memos dated 26.4.2004 and 16.11.2004. Although, against the orders passed by the Principal, Government College, Gurdaspur, the appeal was to be filed to DPI (Colleges), Punjab, yet in the facts and circumstances of the present case, it was the Secretary to Government of Punjab, Department of Higher Education, Chandigarh, who was to decide the appeal and not DPI(Colleges), Punjab. In case, the appeal was to be decided by the DPI(Colleges), Punjab, he would have decided the appeal as a mere formality as under no circumstances the DPI (Colleges), Punjab, was going to set-aside the orders passed by the Principal, C.O.C.P. No. 1037 of 2008 -5- Government College, Gurdaspur, on 16.9.2004 and 6.12.2004 as they had been passed in pursuance to the memos dated 26.4.2004 and 16.11.2004 earlier issued by him. Only an independent authority was competent to decide the appeal. It was under these circumstances that the petitioner had preferred the appeal dated 13.12.2004(Annexure P.4) to the Education Secretary, Punjab Government, Chandigarh. In view of the above, the present petition is disposed of with a direction to the Secretary, Government of Punjab, Department of Higher Education, Chandigarh, to consider and dispose of the appeal dated 13.12.2004 (Annexure P.4) withi`n three months from the date of receipt of a certified copy of this order. While doing so, the Secretary, Government of Punjab, Department of Higher Education, Chandigarh, shall also take into consideration the notice dated 24.1.2008 (Annexure P.8), which has already been served by the petitioner upon the respondent. ( T.P.S. MANN ) February 5, 2009 JUDGE ajay-1