CWP No. 8064 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8064 of 1991 Date of Decision: 27.07.2010 Baljit Singh Saini ...Petitioner Vs. Guru Nanak Dev University ...Respondent CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.R.K.Malik, Sr. Advocate, with Mr.Raman Sharma, Advocate, for the petitioner. Mr.Amrit Paul, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers 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 Digest? --- Vinod K.Sharma, J . (Oral) The petitioner has invoked the writ jurisdiction of this court under Articles 226and 227 of the Constitution of India seeking a writ in the nature of certiorari, for quashing the impugned order of punishment dated CWP No. 8064 of 1991 2 4.08.1990, attached as Annexure P.1, to this petition vide which the petitioner was reverted from the post of Senior Assistant to clerk and was also down graded in Pay Scale, by placing him at Rs.1000/-. He was also denied the seniority. Brief facts leading to the filing of the present writ petition are that the petitioner joined services of the respondent University as a clerk in the year 1972, and was promoted as Senior Clerk and thereafter as Assistant and Senior Assistant in the year 1987. The petitioner was charge- sheeted vide charge-sheet bearing No.1274/R dated 6.7.1989 on the following charges:- “1. That Sh.Baljit Singh Saini acted in a manner which is unbecoming of an employee of the University by abusing his position while helping Mrs.Ranu Sandhu in her attempt to alter the dates of submission of admission form and of depositing the fee from 25.1.89 to 25.11.88 in order to play fraud. 2. That Sh.Baljit Singh Saini managed the facilitate appearance of Mrs.Ranu Sandhu in the examination centre at Jalandhar-II with connivance of Mrs. Kamlesh Saini who was posted as Centre Superintendent there, knowing it will that her appearance at that examination centre was not legal, and that Mrs.Ranu Sandhu was under legal obligation to appear in the examination at the allotted centre Amritsar-III. 3. That Sh.Baljit Singh Saini, intentionally violated the statutory provisions and standing instructions of the University by maneuvering appearance of Mrs. Ranu Sandhu at the exam CWP No. 8064 of 1991 3 centre other than that allotted to her. 4. That Sh.Baljit Singh Saini committed serious misconduct in view of the aforesaid charges for which he is liable to be punished under the prescribed statutes governing conditions of his employment.” The petitioner denied the charges by submitting a detailed reply on 17.7.1989. University being dissatisfied with the reply submitted by the petitioner ordered departmental inquiry against the petitioner. Inquiry was conducted by Justice K.S.Tiwana, (Retired). On appreciation of evidence on the file, the Inquiry Officer exonerated the petitioner of the charges No.2 and 3, but found him guilty of charges No.1 and 4. The competent authority i.e. Vice Chancellor of the University agreed with the findings of the Inquiry Officer and issued a show cause notice, which reads as under:- “ It is to inform you that the Vice-Chancellor has agreed with the report and findings of the Enquiry Officer, Justice K.S.Tiwana (Retd.) in respect of appearance of Mrs. Ranu Sandhu, Clerk at a Centre (Jalandhar-I) other than allotted to her in B.A. Examination April, 1989, under Roll No.37128. All the charges have been proved against you. The Vice-Chancellor is of the view that there are good and sufficient reasons for imposing the penalty of dismissal from the service of the University upon you. Accordingly, he CWP No. 8064 of 1991 4 has arrived at a provisional conclusion that penalty of dismissal from the service of the University be imposed upon you. You are hereby supplied with a copy of the report of the Inquiry Officer and you are called upon to show cause within 10 days from the date of issue of this notice why the proposed penalty of dismissal from the service of the University be not imposed upon you. You may make any representation in this behalf to the Vice-Chancellor within the stipulated period, which shall be taken into consideration by him at the time of passing the final orders. If no representation is received from you by the Vice-Chancellor within the abovesaid period, it shall be presumed that you have nothing to say in this connection and the final orders will be passed by the Vice Chancellor, accordingly.” The petitioner submitted reply to the show cause notice. The Vice Chancellor taking into consideration the points raised in defence, imposed the punishment of reversion to the post of clerk in the grade of Rs.950-1800 at the Basic pay of Rs.1000/- and also placed him immediately below all the confirmed clerks in the grade of Rs.950/-. Order passed reads as under:- “ As per orders of the Vice-Chancellor dated 4.8.90, Shri Baljit Singh Saini, assistant (under suspension) has been reduced to the post of Clerk in the grade of 950-1800, at the basic pay of Rs.1000/- with immediate effect and he is placed CWP No. 8064 of 1991 5 immediately below all the confirmed Clerks in the grade of Rs.895-1800/- on the seniority list maintained by the University.” The petitioner preferred statutory appeal against the order of punishment. The appeal filed by the petitioner was also dismissed. Operative part of the order passed by the appellate authority reads as under:- “18. The matter of appeal of Shri Baljit Singh Saini, Ex- Assistant against the order of Vice Chancellor dated 4.8.90 vide which the applicant was reverted to the post of Clerk from that of Assistant was taken. It was decided/passed that there is nothing in the appeal of applicant for reconsideration filed against the orders of Vice Chancellor.” Notice of the writ petition was given. Facts mentioned herein- above were not disputed. However, stand taken in the written statement by the University is, that the charges against the petitioner were very serious and therefore, punishment awarded being adequate, does not call for any interference by this court. Mr.R.K.Malik, learned senior counsel appearing on behalf of the petitioner challenged the impugned order of punishment passed by the Vice Chancellor, as also appellate authority, by contending, that the CWP No. 8064 of 1991 6 reading of the show cause notice reproduced above would show total non- application of mind by the Vice Chancellor. Inquiry Officer had exonerated the petitioner of charge Nos.2 and 3, but show cause notice issued to the petitioner showed, that the petitioner was held guilty of all the charges, which on the face of it shows non-application of mine. The contention of the learned senior counsel for the petitioner was, that the petitioner has been prejudiced in imposing punishment because of non-application of mind. It is also the contention of the learned senior counsel for the petitioner, that though it was pointed out in the reply submitted to the show cause notice, still error was not corrected and impugned order was passed. Therefore, the order passed is arbitrary, therefore, violative of Article 14 of the Constitution of India as also principles of natural justice. The learned senior counsel challenged the order of appellate authority on the ground, that the order is non-speaking order, as it does not give any reason for rejection of the appeal though number of legal pleas were raised against impugned order of penalty, as also for the reason that University Syndicate which is the appellate authority was headed by the Vice Chancellor, who participated in the proceedings while deciding the appeal. The contention, therefore, was that the appellate order suffers from violation of basic law, that no body can be a judge of his own cause. Therefore, order passed by the appellate authority also cannot be sustained, as the Vice Chancellor participated in the proceedings and defended the CWP No. 8064 of 1991 7 order passed by him though it was not permissible in law. It is also the contention of the learned senior counsel for the petitioner, that imposition of penalty on the face of it, is not sustainable, as the respondent could not have imposed double punishment by misreading the rules. Learned senior counsel for the petitioner referred to Rule 33 of the University Rules which reads as under:- “33. (i) The following penalties may for good and sufficient reason, be imposed upon any employee of the University (a) Censure; (b) Withholding of increments or promotion, including stoppage at an efficiency bar, if any; (c) Reduction to a lower post or to a lower stage in the same post. (d) Recovery from pay or the whole or part of any pecuniary loss caused to the University by negligence or breach of orders; (e) Suspension; (f) Removal from the service of the University which does not disqualify from future employment; (g) Dismissal from the service of the University which ordinarily disqualifies from future employment.” The contention of the learned senior counsel for the petitioner was, that reading of Rule 33 (i) (c ) shows that only one punishment can be awarded i.e. either reduction to lower post or to a stage in the same post as the word used is 'or', not 'and'. CWP No. 8064 of 1991 8 It was also the contention of the learned senior counsel for the petitioner, that punishment awarded to the petitioner is not covered under the Rules as the Rules, do not prescribe the placing of the petitioner at the tail of the seniority list, by way of punishment under Rule 33 (i) (c) of the Rules. Therefore, the impugned order cannot be sustained even on this ground. Learned counsel for the respondent, however, in support of the impugned orders contended, that the order passed by the competent authority does not call for any interference, as admittedly charges No.1 and 4 were proved against the petitioner, and these were sufficient for imposing major penalty against the petitioner. Merely because the Vice Chancellor had proceeded on the presumption that charges Nos.2 and 3 have also been proved, would not make any material difference as no prejudice has been caused to the petitioner, merely because it was so mentioned in the show cause notice. Learned counsel for the respondent also argued, that the Vice Chancellor applied his mind as would be clear from the fact, that though show cause notice was given for dismissal of service, but only punishment of reversion and downgrading in pay scale was ordered. The learned counsel for the respondent/University also vehemently contended, that no fault can be found with the order passed by the appellate authority as the Vice Chancellor was to participate in syndicate under the Statute and once the appeal is provided to Syndicate the order of appellate authority cannot be set aside, merely because the Vice Chancellor participated in the proceedings being his statutory obligation. CWP No. 8064 of 1991 9 The respondent, however, has not disputed, that punishment as awarded could not have been awarded as under Rule 33 (i) (c) of the Rules, only one of the punishment was provided which could only be awarded and no punishment which is not provided under the Rules can be awarded. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. Reading of the show cause notice shows, non-application of mind by the Vice Chancellor, as in the show cause notice it has been mentioned that all the charges against the petitioner stood proved though in the inquiry report charges No.1 and 4 were only proved. While imposing punishment no mention of typographical error has been made so as to give benefit to the Vice Chancellor, that he had actually applied mind to the facts of the case. Rather on the basis of defective show cause notice punishment was imposed which was otherwise is contrary to Rules and not sustainable in law as the order passed is contrary to Rule 33 (i) (c). The view that when word used is 'or' the employer can only award one of the punishment, finds support from the judgment of Hon'ble High Court of Delhi, in the case of Nand Kishore Katyal Vs. Bank of India and Ors. 1989 (3) SLR 48, on which reliance was placed by the learned senior counsel for the petitioner. There is also force in the contention raised by the learned senior counsel for the petitioner that appellate order cannot be sustained being contrary to well settled law that no authority can decide the appeal CWP No. 8064 of 1991 10 against its own order. Merely because, the Vice Chancellor who was to head Syndicate meeting was not competent to participate in the proceedings, to consider the appeal filed against his own order. Not only this, reading of appellate order further shows, that the appeal has been treated as one of the agenda items before the Syndicate, and not a statutory appeal. The order passed does not deal with points raised by the petitioner nor any reason has been given as to why the appeal has been dismissed. Statutory appeal has to be decided by passing a speaking order and by taking into consideration the points raised. The appellate order is also required to give reasons for disagreement with the points raised in appeal. For the reasons stated, the writ petition is allowed. Impugned orders are set aside. However, University is permitted to initiate proceedings, in accordance with law from the stage of issuance of show cause notice of proposed punishment to be awarded, if so advised. No costs. (Vinod K.Sharma) 27.07.2010 Judge rp