Research › Search › Judgment

Himachal Pradesh High Court · body

2010 DIGILAW 1246 (HP)

Bansi Ram v. H. P. University

2010-11-30

DEEPAK GUPTA

body2010
JUDGMENT : Deepak Gupta, J. Both these petitions are being disposed of by a common judgement since the petitioner in both the petitions is same and most of the facts are identical. 2. By means of CWP(T) No. 6224 of 2008, which was originally filed in the erstwhile H.P. State Administrative Tribunal in the year 1999 and was registered therein as O.A. No. 3331 of 1999, the petitioner had prayed that the University be directed to promote him to the post of Senior Assistant in accordance with the rules. The stand of the respondent was that a charge-sheet had been issued against the petitioner on 7th January, 2000 wherein it was alleged that he had interpolated the record of the University and increased the marks of his daughter. It was also alleged that he had taken bribe of Rs. 3,000/- from one Shri Om Prakash with a view to manipulate his marks sheet. The main challenge of the petitioner is that on the date when the promotion took place on 10th September, 1999 no charge-sheet had been issued against him and therefore, he could not have been excluded from the field of consideration. 3. The second petition being CWP(T) No.10384 of 2008 was originally filed in the Tribunal in the year 2004 whereby the petitioner challenged the order of the Executive Council. In respect of the aforesaid charge-sheet referred to above, the petitioner was found guilty by the Inquiry Officer and thereafter the Vice Chancellor of the University imposed penalty of withholding two increments with cumulative effect upon the petitioner. The petitioner preferred an appeal to the Executive Council. The Executive Council on going through the facts found that the penalty imposed upon the petitioner was grossly inadequate and proposed that penalty of removal from service be imposed upon the petitioner. Thereafter, the petitioner was given a show cause notice. He replied to the same. After considering all the facts and circumstances the Executive Council on 20th August, 2003 took a decision to remove the petitioner from service. Thereafter, the petitioner filed the present petition and in this petition, interestingly, his ground of challenge is that his appeal itself was misconceived. No appeal lay to the Executive Council and therefore, the Executive Council did not have the powers to either hear his appeal or enhance the penalty imposed upon him. 4. Thereafter, the petitioner filed the present petition and in this petition, interestingly, his ground of challenge is that his appeal itself was misconceived. No appeal lay to the Executive Council and therefore, the Executive Council did not have the powers to either hear his appeal or enhance the penalty imposed upon him. 4. It is not disputed before me that the petitioner fell in the "C" category of the employees. As per Ordinance 35.7 of the H.P. University the competent authority to pass an order of appointment, suspension, removal from service or any other disciplinary order in respect of category "C" is the Vice Chancellor. The only provision of appeal in this behalf is Ordinance 35.52-A which provides that notwithstanding anything else contained in the Rules/Regulations/Statutes/Ordinances, an official, on whom a major penalty has been imposed by the Executive Council, may appeal to the Chancellor against such order. As far as the disciplinary orders passed by the Vice Chancellor are concerned there is no provision of appeal under the Act and Ordinances. 5. No doubt, the CCS(CCA) Rules have been made applicable to the respondent-University but obviously these rules can be made applicable only to the extent the provisions of the Act, Regulations, Ordinances and instructions of the University are silent. If there is specific provision in the Act and Ordinances of the University itself obviously the CCS(CCA) rules cannot replace the same. In any event, the appellate authority had to be prescribed and no appellate authority is prescribed under the Act and Ordinance against a disciplinary order passed by the Vice Chancellor. In fact, to the contrary, the first statute of the H.P. University framed under the H.P. University Act provides that no appeal shall lie against a disciplinary order passed by the Vice Chancellor. The relevant portion of Statute 11 (10) which deals with the powers of the Executive Council reads as follows:- "to entertain, adjudicate upon and if it thinks fit, to redress, any grievances of the salaried officers, the teaching staff and other employees of the University who may for any reason feel aggrieved; Provided that in matters of discipline and punishment, where the final power has been vested in the Vice-Chancellor or any other officer of the University, no appeal shall lie to the Executive Council." 6. Therefore, though the Executive Council has been given the powers to entertain, adjudicate upon and redress the grievances of the officers and other employees of the University but the provision specifically lays down that in matters of discipline and punishment where the final power is vested with the Vice Chancellor or any other Officer of the University, no appeal shall lie to the Executive Council. It is, therefore, obvious that the Executive Council has no appellate powers in regard to a disciplinary order passed by the Vice Chancellor and therefore, it could not have either entertained the appeal of the petitioner or issued notice for enhancement of the penalty. 7. Having held so, I cannot loose sight of the fact that the petitioner has been found guilty of having changed the marks of his daughter and also taking a bribe to increase the marks of another student. Even I feel the penalty imposed is highly inadequate but since no appeal lies against the order of the Vice Chancellor to the Executive Council, the order of the Executive Council is illegal and therefore, has to be quashed and set-aside. 8. Now, I take up the earlier petition wherein the petitioner claims promotion. No doubt, at the time when he sought promotion, technically charge-sheet had not been issued. If the charge sheet is read as a whole it is apparent that these allegations were known to the University at that time and it was contemplated to take action against the petitioner. As I have held above, the petitioner has already been let off very leniently and in view of this I do not think that he is in equity or good conscience entitled to any relief. 9. In view of the above discussion O.A. No. 3331/1999 (CWP (T) No.6224 of 2008 is dismissed and O.A. No. 790 of 2004 (CWP(T) No. 10384 of 2008 is allowed in the aforesaid terms. No order as to costs.