IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 16741 of 2011 Date of Decision: 18.10.2011. Administrator, Union Territory, Chandigarh through Advisor & others. --Petitioners. Versus Sanjeev Kumar & others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA. Present:- Mr. Sanjay Kaushal, Standing Counsel for U.T., Chandigarh with Mr. Sanjiv Ghai, Advocate for petitioners. Mr. S.S. Pathania, Advocate for respondents. *** PERMOD KOHLI.J (ORAL) This petition has been preferred by the Administrator, U.T of Chandigarh and other officials of the Chandigarh Administration calling in question the orders passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter referred to as the Tribunal) in O.A. No.678/CH/2010 dated 11.3.2011 and dated 1.6.2011 passed in Review Application No.40 of 2011. Precisely, facts leading to the filing of this petition are that the respondent no.1, who was serving as an Assistant Professor in Sculpture was reported against for the period 8.12.2003 to 8.12.2004. These remarks were communicated to him. He represented against these remarks vide representation dated 29.12.2006. These adverse remarks were followed by two more adverse reports for the period 2004-05 and 2005-06 communicated to the respondent no.1 vide memo dated 27.11.2009. Respondent no.1 again represented against these two adverse reports vide CWP No. 16741 of 2011 -2- his second representation dated 21.12.2009. Both these representations were addressed to the Administrator, U.T. Administration, Chandigarh. These representations were decided by the Secretary, Home vide order dated 9.6.2010. Since the representations filed by respondent no.1 were rejected vide the aforesaid order, respondent no.1 approached the Tribunal challenging the order dated 9.6.2010 primarily on the ground that the Secretary, Home is not the competent authority to decide the representations. It was contended before the Tribunal that the representations are required to be decided by the cadre controlling authority, who is the Administrator, U.T., Chandigarh, however, the representations of respondent no.1 have been decided by an incompetent authority. Further prayer was made for a direction to decide the representations by the competent authority. The Tribunal vide the impugned order dated 11.3.2011 allowed this prayer. It was held by the Tribunal that the Secretary, Home was the accepting authority for the purposes of A.C.Rs and he should not have decided the representations of the respondent no.1, which were otherwise addressed to the Administrator, U.T., Chandigarh. The Tribunal, accordingly, remitted the matter to the Administrator, U.T., Chandigarh with a direction to decide the representation by a reasoned and speaking order as per law after giving opportunity of being heard to respondent no.1, within a period of two months from the date of receipt of the copy of the order. Respondent no.1 was further permitted to supplement his representations with additional documents. Petitioners herein aggrieved of the direction to the Administrator, U.T., Chandigarh, who also happens to be the Governor of the State of Punjab filed a Review Application seeking review of the order CWP No. 16741 of 2011 -3- dated 11.3.2011 on the ground that the representations needs to be considered by the Advisor to the Administrator, U.T., Chandigarh under the rules. Review Application dated 14.5.2011 filed before the Tribunal, however, came to be rejected vide the second impugned order dated 1.6.2011. While rejecting the Review Application, direction for compliance of the direction was extended by another two months. Both these orders are under challenge before us. Mr. Sanjay Kaushal, learned counsel appearing for the petitioners herein has taken us to the standing guidelines issued by the State of Punjab, Deptt. Of Personnel as adopted by the Chandigarh Administration as also the notification dated 25.2.1988 issued by the Chandigarh Administration, Deptt. of Home Affairs in exercise of the powers conferred by sub section (1) of section 3 of the Chandigarh (Delegation of Powers) Act, 1987 (No.2 of 1988). In so far as the guidelines dealing with the A.C.Rs are concerned, para (vii) contain provisions for rejection and acceptance of the representation against adverse remark(s) and reads as under:- “(vii) For the purposes of rejection and acceptance of representation against adverse remark(s), there should be one authority and it should be the highest administrative authority.” Note appended to the aforesaid paragraph defines the expression “highest administrative authority”. This note reads as under:- “ (Note:- The 'highest administrative authority' means 'the appointing authority' or the authority to whom representation against the punishment of censure lies under the existing rules or the department concerned for a particular officer/official, whichever higher. If such authority whose adverse remarks are communicated, the term 'highest CWP No. 16741 of 2011 -4- administrative authority' should mean the next higher authority.” Based upon the aforesaid guidelines particularly the definition of the 'highest administrative authority' as contained in the note, it is sought to be argued on behalf of respondent no.1 that the highest administrative authority contemplated under the note means the appointing authority or the authority to whom representation against the punishment of censure lies under the existing rules or the department concerned for a particular officer/official, whichever is higher. The submission in short is that the appointing authority in so far the Chandigarh Administration is concerned is the Administrator and thus he is deemed to be the highest administrative authority in case of Class-I officers to deal with the question of acceptance or rejection of the A.C.Rs. To the contrary Mr. Kaushal has referred to the subsequent part of the note which inter alia further clarifies the expression “highest administrative authority” to mean the next higher authority whose adverse remarks are communicated. It is the acknowledged principle of interpretation of the statute that the statutory provision or the regulatory guidelines, which are in the nature of statute are to be read and considered as a whole. Taking into consideration the note as a whole and its true purport and object, it seems that the highest administrative authority would also include the next higher authority of the official, whose remarks are impugned in a particular case. Thus, any authority, who is higher than the Secretary, Home also becomes the competent authority for purposes of clause (vii) of the above mentioned guidelines. Apart from the above guidelines, there is a statutory notification issued under sub section (1) of section 3 of the Chandigarh CWP No. 16741 of 2011 -5- (Delegation of Powers) Act, 1987 (No.2 of 1988). The relevant extract of the same is reproduced hereunder:- “ CHANDIGARH ADMINISTRATION HOME DEPARTMENT Notification The 25th February, 1988. No.LD-88/1302-In exercise of the powers conferred by sub- section (1) of section 3 of the Chandigarh (Delegation of Powers) Act, 1987 (No.2 of 1988), the Administrator, Union Territory, Chandigarh is pleased to direct that any power, authority or jurisdiction or any duty which the Administrator may exercise or discharge by or under the provisions of any law, rules or regulations as are applicable in the Union Territory, Chandigarh on the date of this notification shall be exercised or discharged by the Adviser to the Administrator except in cases or class of cases (as mentioned in the Schedule annexed hereto) which shall be submitted to the Administrator for final orders.” From the perusal of the above mentioned notification, it is crystal clear that the administrative authority vested in the Administrator, U.T., Chandigarh has been delegated to the Advisor for all intents and purposes except the cases enumerated in the schedule appended thereto. We have carefully gone through the schedule appended to the above mentioned notification and we find that the issue relating to consideration of the representation does not fall within the purview of the schedule. Thus, by virtue of the notification relating to delegation of the administrative powers, the Advisor to the Administrator, U.T. Chandigarh is deemed to be the competent authority to decide the representation against the adverse A.C.Rs. CWP No. 16741 of 2011 -6- On consideration of the above statutory provisions, the guidelines and the factual background of the present case, we are of the considered opinion that the orders passed by the Tribunal dated 11.3.2011 in O.A. No. 678/CH/2010 and dated 1.6.2011 passed in R.A. No.40 of 2011 are unsustainable in law. This petition, accordingly succeeds. Orders impugned are hereby set aside. While setting aside the orders passed by the Tribunal we are also of the view that order rejecting the representations of respondent no.1 passed by the Secretary, Home is also not sustainable in law. The same is also hereby set aside. A further direction is issued to the Advisor to the Administrator, U.T. Chandigarh to decide the representations filed by the respondent no.1 against all his adverse reports for the period 8.12.2003 to 8.12.2004 and adverse A.C.Rs for the period 2004-05 and 2005-06, within a period of three months from today. Needless to say that the Advisor shall afford an opportunity of personal hearing to respondent no.1 for which the date shall be communicated to him, within a period of two weeks. (PERMOD KOHLI) JUDGE (TEJINDER SINGH DHINDSA) JUDGE 18.10.2011. lucky