(By : Justice Ferdino I. Rebello, C.J.) Admit.
2. With the consent of parties, heard finally.
3. Respondent no.3 had filed the petition before this Court, being Civil Misc. Writ Petition No. 14695 of 2010. The appellants herein were admittedly not parties to the writ petition. Respondent no.3 had sought the following reliefs:-
"(a) Call for the record of the case and may kindly be pleased to issue a writ, order rule or direction in the nature of certiorari and may kindly be pleased to quash impugned order passed by the respondent no.2 vide OM-D. No. 91/LD/Reg. dated 31.8.2007 (Annexure no.3 to the writ petition) and also the impugned order dated 11.03.2010 vide D. No. SB& PS/09-10/2695 passed by the respondent no.1 on the appeal of the petitioner (Annexure no.10 to the petition).
(b) to issue a writ, order rule or direction in the nature of Mandamus and may kindly be pleased to stay the effect, operation and consequences of the impugned order passed by respondent no.2 vide OM-D. No. 91/LD/Reg. dated 31.8.2007 (Annexure no.3 to the writ petition) and also the impugned order dated 11.03.2010 vide D. No. SB& PS/09-10/2695 passed by the respondent no.1 on the appeal of the petitioner (Annexure no.10 to the petition).
(c) to issue a writ, order rule or direction in the nature of Mandamus and may kindly be pleased to direct the respondents to reinstate the services of the petitioners with all benefits and they may further be directed to paid the arrears of the salary of the petitioners forthwith and to provide the increments etc. to the petitioners along with the seniority of service so the justice be done.
(d) to issue such other and further appropriate writ, order rule or direction which this Hon'ble Court deem fit and proper under the facts and circumstances of the case."
4. The principal contention of respondent no.3 (original petitioner) in the writ petition was that services of several other similarly situated employees were not terminated while he was singled out. He, therefore, prayed for parity in punishment insofar as his case was concerned. The services of respondent no.3, who was working as Lower Division Clerk from 02.06.2004 and earlier had worked as Daily Wager from 28.09.1992 to 26.02.1998 and thereafter as Key Punch Operator Grade-II from 27.02.1998 on temporary basis, were terminated by order dated 31.08.2007. The respondent no.3 herein preferred an appeal against the said order which is pending.
5. The learned Single Judge, when the matter came up before him, was pleased to pass various orders. On 30.03.2010, the learned Judge directed the Deputy Registrar to appear before the Court with records, noting that the allegations in the petition are that the persons who had obtained employment on the basis of forged high school certificate were terminated but subsequently without any justification, the Registrar of the University had restored them in service. Thereafter, on 20.05.2010, another order was passed by the learned Judge directing the Deputy Registrar to remain present with the investigation/enquiry report. Then on 05.07.2010, when the matter was taken up, the report of 3-Member Committee dated 24th June, 2010 was placed before the Court, as noted in the order dated 05.07.2010. The Court thereafter noted that forged documents were filed by all the persons mentioned in the report and their services were also terminated/suspended by the University earlier, but subsequently they were re-engaged by the University, which amounted to perpetuation of fraud, which can never go together with justice, and such appointees have to be shown the door immediately on the fraud being detected/noticed. A statement was made on behalf of the University that appropriate action in the matter shall be taken by the Vice Chancellor and on request being made by the counsel, matter was adjourned to 12th July, 2010 to give the Vice Chancellor last opportunity to take appropriate action and report the same to the Court.
6. Subsequent to the order dated 05.07.2010, three orders came to be passed by the Vice Chancellor of the University, as contained in three separate Office Memos dated 10.07.2010 issued by the Registrar of the University. By the first order, as contained in Office Memo No. Admin/LD//3527/NT, temporary services of 26 non-teaching employees were terminated with immediate effect. By another order of the same date, as contained in Office Memo Ref. No. D/DE/0636, disciplinary proceedings were proposed against 38 persons named therein and in the meantime they were placed under suspension and subsistence allowance was directed to be paid to them. By the third order, as contained in Office Memo issued by the Registrar of the University of the same date, it was noted that 22 persons as set out therein had been either compulsorily retired from the service of the University, either from the due date as recorded in their certificate or with immediate effect. In some other cases, punishment in the form of censure, referral to a Medical Board or stopping of one or two annual increments was awarded. They were also allowed all pensionary benefits except commutation of pension, and in a few cases, pension papers have been submitted for award of pensionary benefits. The employees at serial nos. 11 to 15 had died after sanction of minor punishment, the family pension was, accordingly, allowed to their legal heirs after their death. It is also noted in the said Memo that cases of three employees, who had entered in service without having prescribed qualifications, were put before the Executive Council of the University and it was resolved that pension/family pension in respect of these three persons be stopped with immediate effect. In respect of the employees from serial nos. 1 to 10 and 11 to 15, the Vice Chancellor has directed that pension/family pension be stopped with immediate effect, and from serial no. 16 to 22, it has been directed that no pension and other pensionary benefits be allowed to them.
Many of the appellants are covered by the said orders. The respondent no. 65 is the widow of a deceased employee.
7. During the pendency of the appeal, one Dr. Mohd. Ilyas Khan filed an application seeking his impleadment in the appeal. It was his case that he was respondent no.3 in the writ petition. We allowed the application and directed that he be impleaded as respondent no.4 in this appeal. It was brought to our attention that insofar as this respondent is concerned, the University was yet to taken action.
8. At the hearing of this appeal, on behalf of the appellants, it was submitted that the appellants were not parties to the proceedings in the writ petition. Various orders that came to be passed by the Vice Chancellor, as contained in the form of Office Memo dated 10th July, 2010 issued by the Registrar of the University, were pursuant to the direction issued by this Court on 05.07.2010, and they had not been given any opportunity of being heard. Further, it was submitted that against many of them, disciplinary proceedings had been initiated and orders passed. Once that be the case, in terms of the University Non-teaching Employees (Terms and Conditions of Service) Rules, 1972, no further action could have been taken. At any rate, it has been submitted that the orders suffer from violation of the principles of natural justice and fair play and, consequently, the orders whereby the services of these appellants have been terminated/dismissed or pension stopped/revoked, are liable to be quashed.
9. The University has framed the Rules known as University Non-teaching Employees (Terms and Conditions of Service) Rules, 1972, which hereinafter shall be referred to as the ''Rules'. Under sub-rule (v) of Rule 4 of Section II of Chapter I, an employee has been defined to be a person appointed to a non-teaching post in the University who is not an officer of the University as specified in Section 16 of the Act and Statute 4-A. Rule 67 as contained in Section III of Chapter VI of the Rules provides for penalties, which include both minor and major penalties. Rule 70 of Section IV of said Chapter provides for procedure for imposing penalties. Any employee aggrieved by an order is entitled to an appeal if it falls within Rule 79. Rule 78 of Section V sets out as to against which order no appeal shall lie.
10. Section VI of Chapter VI of the Rules, contains a provision for review. Rule 84, reads as under:-
"84. (1) Notwithstanding anything contained in these rules -
(i) The Executive Council; or
(ii) The appellate authority, within six months of the orders proposed to be reviewed may at any time, either on its own motion or otherwise call for the records of any inquiry and review an order made under these rules from which an appeal is allowed but from which no appeal has been preferred or from which no appeal is allowed and may -
(a) confirm, modify or set aside the order, or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order or impose any penalty where no penalty has been imposed: or
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other order as it may deem fit :
Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of Rule 67, or enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in these clauses no such penalty shall be imposed except after an enquiry in the manner laid down in rule 71 and after giving a reasonable opportunity to the employee concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry.
(2) An application for review shall be dealt with in the same manner as if it were an appeal under these rules."
A perusal of this Rule would show that the power to review has to be exercised by the Executive Council or the Appellate Authority within six months of the order proposed to be reviewed. Further, in case the order was to be reviewed, the procedure in the manner laid down in Rule 71 will be followed and the employee will be given a reasonable opportunity of being heard.
11. We may, at this stage, also mention that the Vice Chancellor had appointed a 3-Member Committee, which gave its report on 24.06.2010 after it was constituted on 25.05.2010. The Committee had categorised the cases in Group ''A', Group ''B', Group ''C' and Group ''D'. Group ''A' thereafter has been further categorised into five categories and the Committee has proposed punishment based on their categorisation. The Vice Chancellor, it appears, has not considered the report of the Committee and has merely proceeded on the basis of order dated 05.07.2010 of this Court and proposed action in terms of Rule 14 ((1) (b) of Section II of Chapter II of the Rules. Insofar as temporary employees are concerned, that power is conferred on the Executive Council/Appointing Authority.
The second order of the same date, whereby disciplinary proceedings were proposed and they were placed under suspension was again made purportedly pursuant to the order of this Court. The basis, it appears, was the report of the Committee.
The third order of the Vice Chancellor, as contained in the Office Memo of the same date withdrawing pension or pensionary benefits and other pensionary benefits were under consideration either stopping the pension or allowing or denying the pensionary benefits, the power has not been quoted, but again purportedly based on the order dated 5th July, 2010.
12. In all these cases, it appears that employees, obtained service on the basis of forged documents, either pertaining to their educational qualifications or pertaining to their age. In other words, the very basis of their entry into service appears to be was based on such documents. But at the same time, as noted by the Committee in respect of several employees, the post itself did not require any educational qualification at the time of appointment.
13. At the hearing of this appeal, our attention was invited to several judgments on behalf of the appellants. In V.K. Majotra Vs. Union of India & Ors., (2003) 8 SCC 40, the issue before the Supreme Court was issuance of certain directions by the High Court to non-parties and considering questions which were not raised. The Supreme Court was pleased to hold that in such matters recording a finding without appropriate pleadings and without notifying the parties concerned, who are likely to be affected, is impermissible, as this will amount to exercise of jurisdiction, which was not exercisable, as it was beyond the pleadings or the points raised in the petition by the parties during the course of argument. The Court further was pleased to hold that the writ Courts should decide the petitions on the points raised in the petition and if in a rare case keeping in view the facts and circumstances of the case any additional points are to be raised, then the concerned parties likely to be affected should be put to notice on the additional points to satisfy the principles of natural justice.
In K. Vasudevan Vs. Mohan N. Mali & Ors., (2002) 10 SCC 117, the issue before the High Court was whether a candidate was entitled to selection grade in accordance with an administration order which dispensed with higher educational qualification? The High Court instead of confining itself to the issue, examined the validity of the circular. The Supreme Court held that such a course was not permissible for the High Court particularly when there is no challenge to the circular relaxing the conditions, and that relaxation is a matter of policy.
A learned Division Bench of this Court in State of U.P. Vs. Bahuri Alp Sankhyak Balika Inter College, [2009 (6) ADJ 404 (DB)], also addressed itself to the issue as to whether a learned Single Judge could have proceeded to consider a question, which was neither in the pleadings nor required to be decided. That in fact was a gross case where the learned Single Judge proceeded to hold that Muslims are not minority in the State of U.P. contrary to the judgment of the Supreme Court in the case of T.M.A. Pai Foundation & Ors. Vs. State of Karnataka, AIR 2003 SC 356, wherein the Supreme Court was pleased to hold that a community, linguistic or religious, will have to be determined in relation to a State, and further quoted from the judgment of the Supreme Court in the case of P.A. Inamdar & Ors. Vs. State of Maharashtra & Ors., (2005) 6 SCC 537, wherein the Supreme Court has observed that the population of the entire country is not relevant for the purpose of determining the status of minority and what is relevant is the population of the State as a unit. The learned Division Bench has the judgment of the learned Single Judge.
14. It is no doubt true that the issue is of vital importance considering the ramification flowing from persons getting employment based on forged documents, but at the same time, Courts must also note the fact that when there are rules and regulations, the same have to be taken into consideration before any action is taken against an employee concerned. Apart from that, the principles of natural justice would also require that before an order is passed having civil consequences, an opportunity be given.
15. After perusing the rules, we find that once disciplinary proceedings were initiated, action taken and punishment imposed or the employee exonerated on failure to file appeal or exercise the power of review during the time specified, there is no further power in the Appointing Authority to take disciplinary action or action by way of terminating services if earlier that power was exercised and proceedings had been completed. It is no doubt true that in exercise of its extraordinary jurisdiction, the High Court, if materials are placed before it in respect of an order impugned before it that the punishment imposed is disproportionate to the misconduct alleged or not proportionate, it is always open to the High Court to issue directions to the Appointing Authority/Disciplinary Authority.
16. The question now is in a collateral proceedings where the matter was not in issue, merely because the High Court's attention was drawn to a situation and the High Court was considering the case of a solitary petitioner, not in the exercise of its PIL jurisdiction, whether it was open to the learned Judge to have issued direction as issued. In our opinion, in such matters, the High Court can draw attention of the parties concerned to the position in law and leave it to the authorities to take a decision. In the instant case, it appears that the Vice Chancellor, threatened with the direction to remain present in the Court and observations in the order, has issued the orders based on those directions.
17. It is no doubt true that insofar as temporary employees are concerned, their services can be terminated without assigning any reasons as spelt out in Rule 14 (1) (b). The only question is that if earlier action had been taken against such employees and they were allowed to continue, then whether the power could be exercised. In fact, insofar as respondent no.3 (writ petitioner) is concerned, he had made a grievance that seven other employees, who were similarly situated, were earlier terminated but subsequently they were reinstated in service whereas he was singled out. However, the University had filed a counter affidavit stating that the Vice Chancellor had withdrawn the orders of reinstatement in respect of those seven employees, as contained in Office Memo dated 22.04.2010.
18. In the grounds of memo of appeal, the appellants have raised the contention that even in cases, where disciplinary action was taken long back, the direction contained in order dated 05.07.2010 to reopen an already concluded disciplinary proceedings could not be done considering the rules in force applicable to the non-teaching employees.
Though in the order dated 05.07.2010, the learned Single Judge has not directed specific action against any employee, yet recorded a prima facie finding that forged documents had been submitted in respect of date of birth and educational qualification stand at par and all persons committing fraud of form one group and have to be treated in a similar manner. It is based on this that the Vice Chancellor was pleased to take action.
19. Considering the fact that the appellants were not parties in the petition, and action taken by the Vice Chancellor without making available a copy of the enquiry report of the three Member Committee to the appellants and without giving them any opportunity, to secure the ends of justice, we issue the following directions:-
(i) The order of the Vice Chancellor in respect of 26 employees, as contained in Office Memo No. Admin/LD/3527/NT dated 10.07.2010, is set aside. The Vice Chancellor is directed to make available to the said employees, including the appellants herein, the material against them and thereafter to pass fresh orders. The report of 3-Member Committee will also be taken into consideration. The action to be completed within three months. It is made clear that these employees will not be entitled to rejoin their duties and their rejoining will be subject to the final order that may be passed by the Vice Chancellor if he is the Appointing Authority and in case he is not the Appointing Authority, the concerned Appointing Authority. The Vice Chancellor will also take into consideration whether earlier disciplinary proceedings had been initiated against any such employees and action taken against them, and if actions have already been taken, whether fresh action can be taken in terms of the Act, Rules, Statutes and Ordinances.
(ii) Insofar as the order of the Vice Chancellor, as contained in Office Memo No. D/DE/0636 dated 10th July, 2010 suspending 38 employees, it will not be possible for this Court to interfere considering the power to suspend pending disciplinary proceedings. In respect of these employees, if disciplinary proceedings were not initiated and punishment imposed, it will be open to issue a charge sheet according to law and then complete the enquiry expeditiously. In case punishment has already been imposed and no appeal is pending or the power of review exercised, the issue of suspension be reconsidered. The further issue to be considered is as to whether, in such an event it is open to initiate a fresh enquiry as set out in direction (i). All such issues must be considered and disposed of within three months from the date of this judgment.
(iii) Insofar as the employees who have already superannuated, the Committee has recommended that their cases be referred to the Executive Council. The question that the Vice chancellor will have to consider is whether there is any power in the University after punishment was imposed and pension released, to once again review the grant of pension in terms of the relevant rules. Only in the event, if there is such a power in terms of the Rules, then the Vice Chancellor will proceed to take appropriate action after giving an opportunity to the persons aggrieved. In case there is no power, then to release the pension/family pension to those who were entitled to in accordance with law. In respect of this issue, the entire exercise will be undertaken within three months from the date of this order.
20. The orders of the Vice Chancellor, as contained in Office Memo No. Admin./LD/3527 dated 10.07.2010, and in Office Memo dated 10.07.2010 in the matter of pensionary benefits are set aside. The appeal filed by the Appellants to that extent is allowed.
21. The appeal is disposed of with the above observations and directions.