Rajendra Prasad vs C. Ramesh

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Pronounced on: 22nd August, 2016
+      LPA 155/2016
       RAJENDRA PRASAD                      ..... Appellant
                    Through: Mr.Sandeep Agarwal, Mr.M.K.Singh,
                    Ms.Meenu Agarwal and Ms.Anurag Agarwal,
                    Advocates.

                   Versus

       C. RAMESH                                        ..... Respondent
                          Through:     Mr. Yog Verdhan, Advocate.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

                                  JUDGMENT

: Ms.G.ROHINI, CHIEF JUSTICE

1. This appeal is preferred against the order of the learned Single Judge dated 05.11.2015 in Cont. Case (C) No.65/2015.

2. Brief facts of the case are that the respondent herein, who was working as the Assistant Registrar in Vallabhbhai Patel Chest Institute (for short 'VPCI') filed W.P.(C) No.2110/2013 assailing the termination of his services by order dated 18.02.2013. The learned Single Judge allowed the writ petition by order dated 29.01.2014 and set aside the order of termination holding that the Governing Body of VPCI on its own cannot hold a meeting and thereby confer a power upon itself which the Executive Council of University of Delhi has not LPA No.155/2016 Page 1 of 8 conferred on it. However, it was left open to the respondents to continue the disciplinary proceedings, if permissible in law, subject to necessary powers being conferred upon it by a specific or general resolution of the Executive Council.

3. Challenging the said order dated 29.01.2014 in W.P.(C) No.2110/2013, VPCI filed LPA No.106/2015. The said appeal was disposed of observing that the matter of disciplinary action could be considered by the Executive Council of the University of Delhi. The operative portion of the order in LPA No.106/2015 may be reproduced hereunder for ready reference:

"13. Be that as it may, learned counsel for the appellant states that the appeal may be disposed of clarifying with respect to paragraph 8 of the decision dated January 29, 2014. The clarification being in consonance with the reasoning of the decision dated January 29, 2014 passed by the learned Single Judge; since the disciplinary power is vested in the Executive Council of the University of Delhi, it may be observed that the issue of disciplinary action against the respondent could be placed before the Executive Council of the University of Delhi for its decision. The reason being, the view taken by the learned Single Judge that the power as per the rule to take disciplinary action is with the Executive Council; which power was capable of being delegated but no delegation was shown.

14. We accordingly dispose of the appeal observing that in alternative to the curative route which could be chartered as per para 8 of the impugned decision, the matter of disciplinary action could be considered by the Executive Council of the University of Delhi."

4. Against the said order, though VPCI filed SLP(C) No.2329/2016, the Supreme Court declined to grant leave and the SLP was dismissed by order dated 29.02.2016.

5. In the meanwhile, the respondent herein filed Contempt Case (C) No.65/2015 alleging that in spite of repeated representations, including the representation dated 23.01.2015, VPCI did not allow him to join services. On 05.11.2015, the learned Single Judge passed the following order in the Contempt Case:

"Since the petitioner's termination order was set aside by learned Single Judge and even in the LPA as well as the clarificatory application, the order setting aside the termination has not been modified or varied, respondents are directed to reinstate the petitioner in service within two weeks.

In the event the petitioner is not reinstated, the Acting Director of respondent-Vallabhbhai Patel Chest Institute shall be personally present in Court on the next date of hearing.

List on 2nd December, 2015.

Order dasti."

6. Aggrieved by the same, the present appeal has been filed under Clause 15 of the Letters Patent by VPCI.

7. We have heard the learned counsels for both the parties.

8. It is contended by the learned counsel for the appellant that in pursuance of the order of the Division Bench in LPA No.106/2015 dated 25.02.2015 the University of Delhi by resolution dated 28.05.2015 accepted the recommendation of the Executive Council that the powers to initiate LPA No.155/2016 Page 3 of 8 disciplinary action against its employees are delegated to the Governing Body of the VPCI in terms of Non-Teaching Employees (Terms and Conditions of Service) Rules, 2013 and the same has been in compliance with the order in W.P.(C) No.2110/2013 dated 29.01.2014 as modified by the Division Bench by order dated 25.02.2015 in LPA No.106/2015. Hence, according to the learned counsel the order under appeal dated 05.11.2015 directing reinstatement is unwarranted and is liable to be set aside.

9. On the other hand, it is vehemently contended by the learned counsel for the respondent that as the order of the learned Single Judge in W.P.(C)No.2110/2013 to the extent of setting aside the termination order has not been varied or modified by the Division Bench in any manner whatsoever in LPA No.106/2015, the appellant is bound to reinstate the respondent and therefore, the learned Single Judge has rightly directed reinstatement.

10. The learned counsel has also raised an objection regarding the maintainability of the present appeal under the Letters Patent against an order passed in a contempt case. However, placing reliance upon the judgment of this Court dated 28.10.2015 in LPA No.313/2015 titled M/s VLS Finance Ltd. vs. Southend Infrastructure Pvt. Ltd. & Anr., it is contended by the learned counsel for the appellant that the appellant is entitled to avail the intra court appeal under Clause 15 of the Letters Patent.

11. We do not enter into the issue of maintainability of the appeal since having bestowed our attention to the facts and circumstances of the case we are convinced that the appeal even on merits is liable to be dismissed.

12. In the light of the material available on record, we found that the order of the learned Single Judge in W.P.(C) No.2110/2013 dated 29.01.2014 to the extent of setting aside the termination order has not been disturbed by the order of the Division Bench in LPA No.106/2015 dated 25.02.2015. Therefore, in our considered opinion, the appellant is bound to reinstate the respondent into service and the learned Single Judge has rightly directed so. The reasons for our conclusion are as under.

13. The order of termination dated 18.02.2013 passed by the Director of VPCI on behalf of the Governing Body was challenged by the respondent herein in W.P.(C) No.2110/2013 primarily on the ground that the Governing Body was not competent either to initiate disciplinary proceedings or to pass the order of termination since no such authority was conferred upon the said body by the Executive Council of the University. After examining the relevant Service Rules, the learned Single Judge opined that as per Rule 69 of the Non-Teaching Employees (Terms and Conditions of Service) Rules, 1971, the Executive Council of the University or any other authority empowered by general or special order alone is competent to institute disciplinary proceedings against the respondent who is a non-academic staff. Since the order of termination was admittedly passed by the Governing Body which was not conferred such power by the Executive Council, the termination order was set aside by the learned Single Judge and W.P.(C) No.2110/2013 was allowed. However, it was added "the respondents however shall be empowered to continue the disciplinary proceedings if so permissible in law subject to LPA No.155/2016 Page 5 of 8 necessary powers being conferred upon it by either a specific or general resolution of the Executive Council".

14. In LPA No.106/2015 the Division Bench did not interfere with the said order dated 29.01.2014 in W.P.(C) No.2110/2013 to the extent of setting aside the order of termination. However, it was clarified that since the disciplinary power is vested in the Executive Council, the issue of disciplinary action against the respondent could be placed before the Executive Council for its decision.

15. Admittedly, the said order has become final. However, VPCI did not choose to take the respondent into service contending that the powers of the Executive Council to initiate disciplinary action against its employees have already been vested with the Governing Body of VPCI in terms of Non-Teaching Employees (Terms and Conditions of Service) Rules and the same was acknowledged by the Executive Council of the University of Delhi in its meeting dated 28.05.2015.

16. The said resolution of the Executive Council, University of Delhi dated 28.05.2015 is reproduced hereunder for ready reference:

"19/ Resolved that the following recommendation of the Disciplinary Sub-Committee of the Executive Council be accepted:

3. Pursuant order of the Hon'ble High Court dated 25.02.2015 in WP(C) No.2110/2013 and LPA No.106/2015 in the matter of C. Ramesh & Ors, the Executive Council resolved that the powers to initiate disciplinary action against its employee are delegated to the Governing Body of the VPCI in terms of Non-

Teaching Employees (Terms & Conditions of Service) Rules, 2013.

The Council also noted that such powers are already vested with the Governing Bodies of the Constituent/Affiliated Colleges, including VPCI, in terms of Non-Teaching Employees (Terms & Conditions of Service) Rules, 2013."

17. As could be seen, by virtue of the said resolution dated 28.05.2015, the powers have been delegated to the Governing Body of VPCI to initiate disciplinary action against its employees. In pursuance thereof, it may be true that the Governing Body is competent to exercise such powers w.e.f. 28.05.2015. However, nothing is placed on record to show that by the date of the order of termination dated 18.02.2013, such powers were vested with the Governing Body. It is also relevant to note that on the basis of the resolution of the Executive Council dated 28.05.2015 when VPCI filed an application seeking clarification of the order dated 25.02.2015 in LPA No.106/2015, the same was dismissed by the Division Bench by order dated 26.08.2015. Thus, it is clear that the order of the learned Single Judge in W.P.(C) No.2110/2013 dated 29.01.2014 to the extent of setting aside the order of termination stands good.

18. In the light of the order of the Division Bench in LPA No.106/2015 dated 25.02.2015 read with the consequential resolution of the Executive Council, University of Delhi dated 28.05.2015, it is clear that the delegation under the said Resolution has only enabled the VPCI/appellant herein to continue the disciplinary proceedings. So far as the order of termination is LPA No.155/2016 Page 7 of 8 concerned, since the said order was set aside by order dated 29.01.2014 in W.P.(C) No.2110/2013 and the same has attained finality, the appellant is bound by the same.

19. Therefore, the order under appeal directing reinstatement of the respondent into service cannot be held to be illegal on any ground whatsoever.

20. The appeal is devoid of merit and the same is accordingly dismissed.

CHIEF JUSTICE SANGITA DHINGRA SEHGAL, J AUGUST 22, 2016 kks LPA No.155/2016 Page 8 of 8