D.A.V. College Managing Committee vs Dr. S.K. Sood and Another

T.H.B. Chalapathi, J.—The only controversy in this writ petition is as to whether the enquiry officer has been validly appointed.

A brief narration of facts is necessary for the disposal of this writ petition. The respondent was employed as a Lecturer in Sanskrit in DAV College, Jalandhar. In Sept., 1979, he was transferred from Jalandhar to Batala. Challenging the orders of his transfer he filed a suit which was dismissed. The appeal was also dismissed. Even then the respondent did not join at Batala. Thereafter, the petitioner issued a charge sheet to the respondent for his wilful absence from duty. Since the said charge sheet was not delivered to the respondent, a news item in the Daily Tribune is also issued. Thereafter, Justice Tek Chand was appointed enquiry officer who submitted an ex parte report. On the basis of the report, the petitioner was dismissed and the Director Public Instructions, by his order dated February 3, 1992, accorded approval for the dismissal of the services on the respondent. Challenging the same, the respondent filed an appeal to the District Judge, Gurdaspur u/s 4(4) of the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974. The learned District Judge allowed the appeal mainly on the ground that the enquiry officer has not been appointed by the competent authority. Challenging the order of the District Judge dated 18.5.1983, the petitioner filed this writ petition.

No order appointing Justice Tek Chand as the enquiry officer has been placed on record. The same was also not placed even before the District Judge. Under Rule 3(4) of the Punjab Affiliated Colleges (Security of Services of Employees) Rules, 1978, the managing committee shall deliver a copy of the articles of charges to his employee with the statement of imputation of misconduct or misbehaviour and require the employee to submit written statement of his defence within the specified time. Under sub rule (4), on receipt of the defence, the managing committee may itself enquire into article of charges or appoint an inquiring authority to go into the truth of the imputation of misconduct or mis-behavior against an employee. Thus, under the rules it is only the managing committee which is empowered to appoint an inquiring authority to conduct an enquiry if the managing committee decides not to make an enquiry by itself. In this case, inquiry officer has been appointed. In the grounds of appeal before the District Judge, 1st respondent has taken a specific ground that the managing committee has not appointed the enquiry officer. It is also one of the grounds that the charge sheet was not signed by the managing committee or the competent person representing the managing committee and the person who singed the charge sheet was not competent to sign the same and there was no delegation of authority. The learned District Judge came to the conclusion that the managing committee did not appoint an enquiry officer.

Admittedly, the charge sheet and the order appointing the enquiry officer were not personally served on the respondent. The record must be in the possession of the managing committee. The failure on the part of the managing committee to produce the record which in the ordinary course should be in their custody will certainly enable the court to draw an adverse inference that the appointment of the enquiry officer was not made by the managing committee as required by sub rule (4) of Rule 3 of the afore-mentioned Rules. The learned counsel for the petitioner contends that the record was missing and, therefore, the managing committee was not in a position to produce the record. It does not lie in the mouth of the managing committee that the record is not available. Nothing has been placed on record to show that any action has been taken against any employees of the managing committee for misplacing or for loss of the record. From the non-production of the record, the court is within its limitation to draw an adverse inference that the appointment of the enquiry officer has not been done in accordance with the rules. When there is a violation of the rules then the order of termination cannot be sustained. In this view of the matter, I do not find any ground warranting interference with the order of the District Judge, Gurdaspur, dated 18.5.1983.

The learned counsel for the petitioner relied upon the ratio of the Supreme Court decision in Director General, E.S.I. and another Vs. T. Abdul Razak, etc., and contended that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority who can be held to be the controlling authority and who may be an officer subordinate to the appointing authority. There cannot be any dispute with the general proposition of law laid down by the Supreme Court. But therein this case we are governed by the statutory rules which specifically provide that the managing committee itself has to make an inquiry and if the managing committee thinks it appropriate to appoint inquiry authority. The committee must itself appoint the inquiring authority. It has been specifically held by the apex Court in P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others, that in the absence of a rule, any superior authority who can be held to be the controlling authority can initiate a departmental proceeding. When there is a specific rule to that effect, the general principle shall not apply. I am, therefore, of the view that the placing of reliance on the decision of the apex court is not tenable.

In the result, the writ petition is dismissed. There will, however, be no order as to costs.