C.W.P.No.10795 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.10795 of 2009 Date of Decision: 03.05.2011 Pawan Kumar s/ Sh.Kasturi Lal …..Petitioner(s) vs. The State of Punjab and others …..Respondent(s) *** CORAM: HON’BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Puneet Jindal , Advocate, for the petitioner. Ms.Sudeepti Sharma, DAG, Punjab, for respondent No.1. Mr.Anil Kshetarpal, Advocate, for respondents No.2 and 3. *** AUGUSTINE GEORGE MASIH, J. Challenge in this writ petition is to the communication dated 4.11.2008 (Annexure P-18) vide which the Managing Director had conveyed the decision/resolution of the Board (hereinafter referred to as 'the Board') of the Punjab Tourism Development Corporation Ltd. (hereinafter referred to as Corporation) in its 124th Meeting held on 19.9.2008 rejecting the representation dated 8.9.2008 of the petitioner vide which he had claimed benefits of pay and allowances as well as arrears for the period 1.4.1994 to 20.9.2004 and order dated 10.11.2008 (Annexure P-19) vide which the petitioner was informed that the decision taken on his appeal in the 116th Meeting of the Board of the Corporation held on 7.11.2006 has been reviewed/recalled in the 124th Meeting of the Board held on C.W.P.No.10795 of 2009 -2- 19.9.2008, on the ground that there was no power of review with the Board and, therefore, could not have reviewed the earlier decision taken. It has further been prayed that a direction may be issued to the respondents to comply with the earlier order/decision taken by the Appellate Authority i.e. the Board which had delegated its powers to the Chairman in its 112th Meeting dated 14.3.2006 authorizing the Chairman to decide the appeal, who had passed the order dated 16.3.2006, which order was confirmed by the Board in its 116th Meeting dated 7.11.2006 and to make payment of subsistence allowance and other arrears along with suitable interest for the period the petitioner had made his claim. Counsel for the petitioner has pressed into service clause 20 of the Service Bye-laws of the Punjab Tourism Development Corporation Ltd. (hereinafter referred to as 'Bye-laws'') which provide for an appeal to the Board and Clause 21, according to which the Board may, by resolution confer all or any of its powers to the Chairman, the Managing Director or any other Officer of the Corporation under the Bye-laws. He submits that the only rider which has been put therein is that these delegated powers shall be exercised subject to such restrictions, conditions and limitations as may be prescribed in the resolution or authorization by the Board. He accordingly, submits that once the Board had authorized the Chairman in its 112th meeting to decide the appeal filed by the petitioner and the delegatee i.e., the Chairman, in exercise of the powers of the Appellate Authority proceeded to accept the appeal and set aside the order of the Disciplinary Authority dated 29.6.2004 depriving the petitioner of all financial benefits with effect from 1.4.1994 till the date of his rejoining, could not have been reviewed by the Board in its subsequent meeting i.e. 124th meeting dated C.W.P.No.10795 of 2009 -3- 19.9.2008, especially when after reconsideration of the matter, a specific decision with regard to the appeal of the petitioner was taken in 116th meeting of the Board held on 7.11.2006 approving the order dated 16.3.2006 (Annexure P-11) passed by the Chairman accepting the appeal of the petitioner. He submits that appeal is a creation of a statute and the appellate Authority while exercising its power, delegates its power to decide an appeal and the delegatee, who in the light of the authorization, proceeds to decide the matter, can only review the decision in case such an authority is provided under the statute itself. In support of this contention, counsel for the petitioner has placed reliance on the judgments of the Supreme Court in the cases of Kalabharati Advertising vs. Hemant Vimalnath Narichania and others, 2011(1) RCR (Civil) 216 and Smt.Kuntesh Gupta vs. Management of Hindu Kanya Mahavidhyalaya, Sitapur (U.P.), AIR 1987 SC 2186 and also a Division Bench judgment of this Court in the case of Managing Committee, Banwari Lal Jindal, Suiwala College, Tosham vs. State of Haryana, 2001 (4) SCT 699. Accordingly, he prays for quashing of the impugned orders. His further submission is that during the period of his suspension till the date of termination i.e. from 15.6.1994 to 6.3.1995, no subsistence allowance has been paid despite order dated 28.10.1995 passed by the Managing Director (Annexure P-21). He, thus, prays for allowing this writ petition by quashing the impugned orders and prays for payment of subsistence allowance to the petitioner along with other consequential benefits with interest. On the other hand, counsel for the respondents has raised an objection with regard to the maintainability of the writ petition wherein the C.W.P.No.10795 of 2009 -4- petitioner has claimed the benefits of arrears of salary and other allowances which had already been declined to the petitioner by the Civil Court in the civil suit preferred by him challenging his removal from service dated 6.3.1995. He submits that the trial Court vide its judgment and decree dated 17.2.2001 although had set aside the order of removal dated 6.3.1995 yet had declined the declaration prayed for by the petitioner for his entitlement of pay and other allowances as well as increments for the period of his termination from service. Referring to the order passed by the Appellate Court also, he submits that the petitioner is not entitled to the said benefit wherein the appeal preferred by the petitioner and the cross appeal preferred by the respondent-Corporation stood dismissed. He contends that the judgment passed by the first Appellate Court has attained finality as none of the parties has challenged the same and in the light of this, the present writ petition is barred by the principle of res judicata disentitling the petitioner to the claim of arrears of pay and other allowances. His further contention is that the appellate Authority is the Board as per clause 20 of the Bye-laws and as per clause 21 of the Bye- laws, the appellate Authority can delegate its powers but there is no clause debarring the power of review by the Board. If the decision taken by a delegatee is incorrect and the same has been reconsidered by the Board, there is no illegality in doing the same especially when the material fact with regard to the decision of the Civil Court disentitling the petitioner to payment of such wages and other consequential benefits on the principle of 'no work no pay' is already there. Had this fact come to the notice of the Board, the decision granting the same very benefit in appeal could not have been taken by the Board being not in consonance with law. C.W.P.No.10795 of 2009 -5- Counsel has brought another fact to the notice of the Court that the respondent-Corporation had since been closed which was fully financed and controlled by the Government of Punjab and now skeleton staff and that too on contract basis is working. He submits that after the rejoining of the petitioner on 29.9.2004 and till the date he had worked with the respondent, all claims stood settled. The period for which the petitioner is claiming arrears of pay and other allowances is more than 10 years to which he cannot be held entitled to in the light of the fact that he had not worked on the said post and in the light of the specific finding given by the Civil Court that the petitioner had made no effort to rejoin his duty after expiry of his sanctioned leave. Counsel for the petitioner does not dispute that apart from the claim which the petitioner has made in the writ petition, all other dues have been duly paid to him and he has nothing more to claim from the respondent-Corporation. Counsel for the respondent has, therefore, pressed that the present writ petition deserves to be dismissed primarily on the ground of its maintainability as also the findings of the Civil Court disentitling the petitioner to the claim which he has made in the present writ petition. I have heard counsel for the petitioner as also for the respondent in detail and with their able assistance have gone through the records of the case. On the basis of the pleadings of the parties, the facts which emerge when summarised are that the petitioner was appointed as a Refrigerator Mechanic on permanent basis on 8.5.1979 by the respondent- Corporation and was performing his duties at International Hotel, Amritsar. C.W.P.No.10795 of 2009 -6- He proceeded on leave for a short duration of 15 days which ended on 27.3.1994. He applied for extension of leave for 5 days’ which was rejected and the petitioner was informed telegraphically. According to the petitioner, he was assured that he would be granted more leave in case he needed it as the ground for proceeding on leave was due to illness of his aged and infirm father. However, the petitioner did not report back for duty. Due to his absence from duty, he was placed under suspension vide order dated 15.6.1994 pending charge-sheet. Charge-sheet dated 4.7.1994 was served on the petitioner according to which the Deputy General Manager, International Hotel, Amritsar, had filed a complaint against the petitioner dated 11.6.1994 that he had been absenting from duty with effect from 1.4.1994 without any information or sanctioned leave. The petitioner was issued a show cause notice dated 11.11.1994 as to why his services be not terminated to which the petitioner filed a reply. Petitioner was advised to appear before the Chairman-cum-Managing Director for personal hearing on 9.4.1994, 9.1.1995, 6.2.1995 and 28.2.1995 but he chose not to appear. He was, thus, removed from service vide order dated 6.3.1995 from retrospective date i.e. 1.4.1994 (Annexure P-3). According to the petitioner, he preferred an appeal against the order of removal which was kept by the office of the Managing Director on the plea that the same was not maintainable and was not presented before the Board for decision, which was the Appellate Authority. Aggrieved against the action of the respondents, petitioner filed a civil suit No.121 of 1996 on 5.8.1996 in the Court of Civil Judge, Amritsar which was partly decreed in favour of the petitioner on 17.2.2001. The Court held that the order dated 6.3.1995 passed by the Chairman-cum- C.W.P.No.10795 of 2009 -7- Managing Director of the Corporation whereby the plaintiff was removed from service on 1.4.1994 is illegal, arbitrary, unconstitutional and against the principles of natural justice and declaration to this effect was made. It was further declared that the petitioner is deemed to be in employment of the Corporation with effect from 1.4.1994. However, the petitioner was held not entitled to any consequential benefits of pay, allowances, increments and any interest as claimed by him on the principle of ‘no work, no pay’ on the ground that the petitioner had not worked after 1.4.1994 till the date of decree and he had failed to place on record any document to show that he actually approached the Corporation to join duty but was not permitted to do so. Petitioner preferred an appeal and the respondent-Corporation filed a cross-appeal. Both these appeals were heard and decided by the learned Additional District & Sessions Judge, Amritsar vide judgment dated 13.3.2003. The appellate Court dismissed both the appeals but in para 8 thereof, while considering the claim of the petitioner for award of arrears of salary and other allowances for the period he had not performed his duties, the appellate Court proceeded to observe that ever since 1.4.1994, the petitioner had not reported at his duties, not even after the order of his removal from service was set aside by the trial Court on 17.2.2001. No evidence had been led by the plaintiff or even claimed that he was prevented by the defendants from joining duties. The appellate Court further observed that since the order of removal had been set aside on technical ground only which did not amount to exonerating the petitioner for his absence, the respondent-Corporation would be at liberty to start enquiry proceedings afresh against the petitioner. The petitioner was directed to C.W.P.No.10795 of 2009 -8- appear in the office of the Chairman-cum-Managing Director of the Corporation on 2.5.2003 at 11.00 a.m. to submit his reply to the charge- sheet and thereafter the punishing Authority would be at liberty to deal with the matter further as per law. In compliance with the order passed by the appellate Court, Inquiry Officer was appointed on 30.7.2003. On completion of enquiry, report dated 12.2.2004 was submitted. According to the said report, the charges against the petitioner were not found to be proved. The report of the Inquiry Officer was sent to the official along with show cause notice dated 25.3.2004 calling upon him to show cause as to why penalty under clauses 17 and 19 of the Bye-laws be not imposed upon him as the punishing Authority did not agree with the report of the Inquiry Officer. Petitioner submitted reply to the show cause notice on 31.3.2004. Personal hearing was given to him on 15.6.2004 and thereafter vide order dated 17.6.2004 passed by the Managing Director, petitioner was ordered to be taken back in service with immediate effect and posted at Amritsar International Hotel, Amritsar. However, on the principle of ‘no work no pay’, the petitioner was held not entitled to any financial benefits towards earned leave, gratuity, continuity of service and any other notional benefits with effect from 1.4.1994 to the date of his joining. He rejoined his duties on 21.9.2004 and thereafter has been paid all his pay and allowances till he continued with his employment which fact is admitted by the counsel for the petitioner in Court. Petitioner preferred an appeal against the order dated 17.6.2004 before the appellate Authority which is the Board under clause 20 of the service Bye-laws claiming therein all consequential benefits as would have C.W.P.No.10795 of 2009 -9- accrued to the petitioner during the period of suspension i.e. from 15.6.1994 to 6.3.1995, the date of suspension to his termination and thereafter till his reinstatement in the light of the findings given by the Inquiry Officer wherein he was exonerated of all the charges. The appeal of the petitioner was taken up for consideration by the appellate Authority in its 112th meeting held on 14.3.2006 wherein the Chairman of the Board was authorized to decide the appeal of the petitioner by exercising the powers conferred under clause 21 of the Bye-laws wherein all or any of the powers of the Board could be delegated to the Chairman or the Managing Director or any other officer of the Corporation under the Bye-laws. The Chairman of the Board in exercise of these delegated powers passed an order dated 16.3.2006 (Annexure P-11) accepting the appeal of the petitioner and setting aside the order of the disciplinary Authority dated 17.6.2004 to the extent it deprived the petitioner of all financial benefits with effect from 1.4.1994. The petitioner was ordered to be deemed to have continued in service of the Corporation without any break and entitled to all the consequential benefits such as arrears of pay with effect from 1.4.1994, fixation in the revised pay-scale and continuity of service so as to entitle him to get the entire service counted towards pensionary benefits/service benefits. The Board in its 115th Meeting held on 24.8.2006 again considered the matter and also the order dated 16.3.2006 passed by the Chairman in favour of the petitioner and constituted a Committee comprising of three members to review the orders of the Chairman as regards the grant of consequential benefits to the petitioner with effect from 1.4.1994. When the minutes of the 115th meeting of the Board were C.W.P.No.10795 of 2009 -10- circulated, Chairman of the Board addressed a letter to the Managing Director of the Corporation dated 19.10.2006 stating therein that the Board is not vested with any power to review its own order and that too by constituting a Committee. The Board cannot review the order passed by the Chairman who had been duly delegated the powers to the Board to decide the claim of the petitioner and in consequence thereof, order dated 16.3.2006 was passed by him. He stated that the Board is not vested with any power to review its own order and that too by constituting a Committee subsequently. The matter was taken up for consideration by the Board in its 116th Meeting dated 7.11.2006 wherein the Board decided to implement the decision taken by the Chairman on 16.3.2006 with regard to the appeal of the petitioner. During the interregnum, office orders dated 22.5.2006 and 7.11.2006 were passed and the arrears of the petitioner were worked out. As the arrears were not released to the petitioner, he served a legal notice through an Advocate for release of arrears of pay and consequential benefits flowing from the order dated 16.3.2006 passed by the Chairman within a period of 15 days. The matter was considered and the Managing Director passed an order dated 22.8.2007 that arrears may be released immediately to avoid any legal complication. An objection was raised when the sanction was sought for making payment of the amount so calculated, by the Department of Finance and it was observed that a person is not entitled to wages for the period for which he had not worked and the proposal sent by the Administrative Department for the sanction of arrears amounting to ` 10,38,000/- approximately, was not agreed to. The petitioner preferred a representation dated 8.9.2008 claiming the payment of arrears as per the earlier decision of the Board. C.W.P.No.10795 of 2009 -11- The matter was again placed before the Board wherein the agenda apart from the objection raised by the Department of Finance, the details of the civil litigation was also referred to and order of the Court reinstating the petitioner in service but without backwages on the principle of no work no pay was also mentioned. The Board in its 124th meeting held on 19.9.2008 reviewed and recalled its decision taken on the appeal of the petitioner in its 116th meeting held on 7.11.2006 and decided that the petitioner shall not be entitled to any wages for the period during which he had not worked i.e. 1.4.1994 to 20.9.2004. In the light of this decision, the petitioner was informed vide communication dated 4.11.2008 (Annexure P-18) about the rejection of his representation dated 8.9.2008 regarding payment of arrears and vide communication dated 10.11.2008 (Annexure P-19) about the decision of the Board reviewing/recalling the decision with regard to his earlier allowed appeal meaning thereby that his appeal stood rejected. These are the two orders which are under challenge in the present writ petition. The first issue which requires consideration of this Court is whether the Board, which is the appellate Authority under the Bye-laws, can exercise the powers of review when there is no such provision under the Bye-laws. For resolving this issue, Clauses 20 and 21 of the Bye-laws need reproduction which read as follows:- “Clause 20. Appeal (i) An appeal against an order of the appointing authority imposing any penalty, shall lie to the Board within one month of the date of service of the order and the Board's decision on such appeal shall be final. C.W.P.No.10795 of 2009 -12- Provided that a joint appeal shall not be entertained. Provided further that where a penalty has been imposed by the Board or by the appointing authority with the approval of the Board, the person on whom the penalty has been imposed may apply to the Board for revision of its decision within one month of the date of service of the order. ii) The appeal against the order of appointing authority imposing any penalty shall lie with the next higher authority within one month of the date of service of the order and the order of such authority in such appeal shall be final. The next higher authority in the case of General Manager shall be the Managing Director and in case of the Managing Director, the chairman provided further that where the penalty, with the approval of the Board appeal of revision petition against the decision shall be made to the Board. CONSTITUTION OF APPELLATE AUTHORITY iii) The Board considered agenda item No.64.9 on dated 10.7.95 for considering appeals of the dismissed employees. It was reported that the authority for the termination of services of employees is the Managing Director and it will be in the fairness of providing justice, if a committee consisting of Chairman of PTDC, Secretary, Deptt. of Tourism and Chief Architect, Pb. as C.W.P.No.10795 of 2009 -13- Director be constituted as the final Appellate Authority, which after consideration was approved. CHAPTER VI DELEGATIONS 21. Delegation of Powers : The Board may by resolution confer upon the Chairman, the Managing Director or any other officer of the Corporation all or any of its powers under the Bye-Laws. The Managing Director may confer on any officer of the Corporation all or any of his powers including powers delegated to him by the Board. Delegated powers shall be exercised subject to such restrictions, conditions and limitations as may be prescribed in the resolution or authorization by the Board, or the Managing Director, as the case may be.” Clause 20 deals with the appeal which undisputedly, in the case of the petitioner, would lie to the Board and has been so preferred by the petitioner. The matter was considered by the Board in its 112th meeting held on 14.3.2006 wherein the Chairman of the Board was authorised to decide the appeal. This authorization was in exercise of powers of delegation as provided under Clause 21 of the Bye-laws. The Chairman of the Board in exercise of these powers, passed order dated 16.3.2006 (Annexure P-11) accepting the appeal of the petitioner and setting aside the order of the disciplinary Authority dated 29.6.2004 to the extent it deprived the petitioner of financial benefits with effect from 1.4.1994. Once such a decision has been taken by the delegatee, the same would be of the Board. C.W.P.No.10795 of 2009 -14- There is nothing on record to suggest that while authorizing the Chairman of the Board to decide the appeal of the petitioner, there was a rider or limitation imposed that the said decision would be subject to the approval of the Board. Admittedly, there is no power of review under the Bye-laws and thus, the decision of the Chairman of the Board dated 16.3.2006 (Annexure P-11) is the final order of the appellate Authority on the appeal preferred by the petitioner. The Hon'ble Supreme Court in the case of Kalabharti Advertising's case (supra) has also held that unless the Statute/Rules so permit, the power of review cannot be exercised by the quasi judicial Authorities as the power of review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision of the Act/Rules, review of an earlier order is impermissible as review is a creation of the Statute. Jurisdiction of review can be derived only from the Statute and, thus, any order of review in the absence of any statutory provision for the same is a nullity being without jurisdiction. In the light of this, the contention as raised by the counsel for the petitioner may appear to carry weight but the question in the first place which would need to be probed into is whether the appeal was at all maintainable which was preferred by the petitioner against the order passed by the Managing Director of the Corporation dated 17.06.2004 (Annexure P-6) to the Board claiming therein the monetary benefits with effect from 1.4.1994 till the date of his rejoining the service i.e. 21.9.2004 in the light of the judgment of the Civil Judge, Amritsar dated 17.2.2001 passed in the Civil Suit preferred by the petitioner and the judgment dated 13.3.2003 passed by the Additional