C.W.P. No.17014 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
C.W.P. No.17014 of 2011
Date of Decision: 12.09.2011
Dr. (Mrs.) Saroj Kumari
....Petitioner
Versus
State of Haryana etc.
...Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. R.S. Sahota, Sr. Advocate
with Mr. Subhash Ahuja, Advocate
for the petitioner.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J. (ORAL)
The petitioner, herein, is seeking the writ of certiorari quashing
the Agenda Item No.13 (Annexure P-8) and all other consequential
proceedings yet to be taken by the Governing Body of Guru Nanak Khalsa
College, Yamuna Nagar in pursuance to its meeting scheduled to be held
on 13.09.2011.
While praying for the said relief, learned Senior Counsel
contended that the action is being taken against the petitioner on the basis
of two proceedings held by the Enquiry Committee on two dates and a
secret report based on expert opinion of an Advocate/Handwriting Expert
who was never produced in the Enquiry nor even cross examined. It is
further contended that the petitioner has not even been issued any charge
sheet nor she has been made aware of the specific charge so as to call for
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her comments/reply what to talk of holding a regular enquiry and producing
all witnesses/evidence against her. No reasonable opportunity to lead her
defence evidence has been granted. The said action is in violation of the
specific provisions of Section 7 of the Haryana Affiliated Colleges (Security
of Service) Act, 1979.
Heard.
Section 7 of the Haryana Affiliated Colleges (Security of
Service) Act, 1979 (here-in-after referred to as “the Act”) reads as under :-
"7. Procedure to be observed before
dismissal, removal, reduction in rank or
withholding of annual increment of pay with
cumulative effect.- (1) No employee shall be
dismissed, removed, reduced in rank or no annual
increment or increments of pay of any employee
shall be withheld with cumulative effect except after
an enquiry in which he has been informed of the
charge against him and given a reasonable
opportunity of being heard in respect of those
charges :
Provided that this section shall not apply where
an employee is dismissed, removed, reduced in rank
or where the annual increment or increments of pay
of any employee is or are withheld with cumulative
effect on the ground of conduct which has led to his
conviction on a criminal charge.
(2) The penalty of dismissal, removal from
service, reduction in rank and withholding of annual
increment or increments of pay with cumulative effect
shall not be imposed unless the same is approved by
the Director.
(3)Where after the enquiry is referred to in sub-section
(1) it is proposed to impose the penalty of dismissal,
removal from service, reduction in rank or withholding
of annual increment or increments of pay with
cumulative effect, the proposal along with the
relevant record shall be referred to the Director and
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the employee concerned shall be informed.
(4)The employee may, within a period of thirty days of
the receipt of the intimation referred to in sub-section
(3), make a representation against the proposed
penalty to the Director who may, after examining the
record and giving the parties an opportunity of being
heard, by an order in writing, approve the proposed
penalty or reduce it or refuse to approve it, if the
proposal is found to be mala fide or by way of
victimisation or not warranted by the facts and
circumstances of the case.
7-A. Continuous of suspension beyond six
months.-(1) In case the Managing Committee of an
affiliated college considers it expedient to keep an
employee under suspension beyond the period of six
months, it shall submit a detailed report to the
Director at least one month before the expiry of the
period of six months specifying reasons warranting
the extension of the suspension period of the
employee beyond six months.
(2) After considering the report under sub-
section (1), the Director shall pass an order whether
the extension be granted or not. In the event of his
refusal to grant the extension, the Managing
Committee shall reinstate the employee within a
fortnight from the date of receipt of the order, failing
which the employee concerned shall be deemed to
have been reinstated on the expiry of the aforesaid
period.”
It is evident from the perusal of the sub-section (2) of Section 7
of the Act that the penalty of dismissal, removal from service, reduction in
rank and withholding of annual increment or increments of pay with
cumulative effect can be imposed only after the same is approved by the
Director. Further sub-section (3) of Section 7 of the Act makes it incumbent
upon the Management to send the entire proceedings along with the
relevant record to the Director with further information to the employee. As
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per sub-section 4 of Section 7 of the Act, the employee shall have an
opportunity to file representation against the proposed penalty to the
Director who after examining the record may or may not approve the
proposed penalty.
It is evident that as of now only an Agenda has been issued to
take disciplinary action against the petitioner. No penalty has been
imposed as yet. It is not evident as to what disciplinary action has been
proposed by the Management. No such proposal has been sent to the
Director. In case, any such proposal of punishment as referred to in
Section 7 of the Act is sent for approval to the Director, the petitioner shall
have a remedy to file his representation before the Director.
In view of the above, the present petition is disposed of as
pre-mature. However, in case, the matter is referred by the Management to
the Director for approval of the proposed punishment, the petitioner shall
have the liberty to raise all the pleas before the Director.
(NIRMALJIT KAUR)
12.09.2011 JUDGE
gurpreet
