B.S. Ahluwalia(Deceased) ... vs Indian Institute Of Technology & ...
2010 Latest Caselaw 2542 Del

                   *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P.(C) 231/1988

%                                             Date of decision: 12th May, 2010

B.S. AHLUWALIA(DECEASED) THROUGH LR                                           .....
Petitioner
                  Through: Mr. K. Venkatraman, Advocate.

                                         Versus

INDIAN INSTITUTE OF TECHNOLOGY & ORS.             ..... Respondents
                   Through: Mr. Suresh Singh, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                 YES

2.       To be referred to the reporter or not?                 YES

3.       Whether the judgment should be reported                YES
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner by this writ petition inter alia impugns the Resolution dated

23rd September, 1985 of the Assessment Committee of the respondent IIT, Delhi

not recommending the petitioner for promotion from the post of Asstt. Registrar

(Stores) to that of Dy. Registrar (Stores) under the Backlog Promotion Scheme.

The non-academic staff members of IIT were eligible for consideration under the

Backlog Promotion Scheme subject to their inter alia having "satisfactory

confidential reports for the previous three years". With respect to staff members

involved in disciplinary action and against whom punitive action had been taken,

the Scheme provided that they "will be eligible for promotion only after three

years have elapsed since the date of misconduct leading to the punitive order as

stated in the charge sheet".

2. The petitioner's case under the said Scheme was considered by the

Assessment Committee on 25th June, 1985 and 26th August, 1985. The

Assessment Committee noted that the Confidential Reports of the petitioner up to

1982 were clear; however, in May, 1981, the petitioner had been served with a

charge sheet relating to lapses during March - April, 1981 and earlier periods; the

charges were enquired into; the Inquiry Officer returned the findings that the

charges of lack of integrity were not proved but held the petitioner as careless in

certain financial and other matters. The Chairman, the Board of Governors of IIT,

Delhi agreed that in the circumstances of the case, the petitioner be warned and

asked to be careful in his work in future and while doing so, the lapses on his part

should also be brought to his notice. The said warning was issued to the petitioner

on 30th August, 1983.

3. The Assessment Committee held that conveyance of the warning aforesaid

to the petitioner after due inquiry and after due approval of the Chairman of the

Board of Governors amounted to an adverse Confidential Report for the year

1981. The petitioner was thus held to be not meeting the criteria/condition of

"satisfactory confidential reports for the previous three years"

4. The contention of the counsel for the petitioner is that the warning aforesaid

meted out to the petitioner neither constituted a punitive action in a disciplinary

proceeding nor an adverse confidential report. It is his pleading that no punitive

action of "warning" is provided nor was the procedure prescribed for imposing a

penalty followed nor was the said punitive action, if any, taken by the Disciplinary

Authority of the respondent IIT. It is contended that thus it cannot be said that the

disciplinary action against him had resulted in any punitive order. It is further his

contention that the warning aforesaid was neither directed to be recorded in his

Annual Confidential Report nor so recorded. It is urged that without the same

having been recorded in his Confidential Report for the relevant year, the

Assessment Committee erred in treating his otherwise satisfactory Confidential

Report for the relevant year, to be adverse. Reliance in this regard is placed on the

Office Memorandums dated 16th February, 1979 and 21st May, 1982 issued by the

Government of India.

5. The Office Memorandum dated 16th February, 1979 noted the prevalence of

the practice of issuing "recordable warning" to Government employees which

affects their career prospects. It was clarified that warning is an administrative

device in the hands of superior authorities for cautioning the employees with a

view to toning up efficiency and maintaining discipline; however where a copy of

the warning is also kept in the Confidential Report dossier, it will be taken to

constitute an adverse entry and the officer so warned will have the right to

represent against the same. It was further clarified in the said Memorandum that

where a departmental proceeding has been completed and it is considered that the

officer concerned deserves to be penalized, he should be awarded one of the

recognized statutory penalties and in such situation a recordable warning should

not be issued as it would for all practical purposes, amount to a "censure" which is

a formal punishment and which can only be awarded by a competent Disciplinary

Authority after following the procedure prescribed in the relevant rules. The

Office Memorandum thus advised that where, after the conclusion of disciplinary

proceedings, it is considered that some blame attaches to the officer concerned

which necessitates cognizance of such fact, the Disciplinary Authority should

award the penalty of censure at least and if the intention of the Disciplinary

Authority is not to award a penalty of censure, then no recordable warning should

be awarded.

6. The Office Memorandum of 21st May, 1982 clarifies the 16th February,

1979 Memorandum to the effect that the same did not bar issuing a warning orally

or in writing as a result of administrative action in the case of an officer against

whom no formal proceedings are taken under the disciplinary rules and such

warning should be mentioned in the Confidential Report in accordance with the

Memorandum dated 5th June, 1981.

7. The Memorandum dated 5th June, 1981 prescribes the warning to be placed

in the personal file and the decision being taken at the time of writing the

Confidential Report whether the said warning is to find mention in the

Confidential Report or not and in the event of it being decided to mention the

same in the Confidential Report, the same is required to be conveyed to the officer

to enable him to make representation thereagainst. The petitioner thus contends

that since the Assessment Committee itself found that his Confidential Reports till

the year 1982 were satisfactory, meaning that the warning meted out to him had

not found mention therein, the Assessment Committee erred in treating his

Confidential Report to be not satisfactory and on that basis denying to him

promotion to the post of Dy. Registrar.

8. Rule was issued in the petition on 5th July, 1988. The respondent IIT

contested the petition and filed a counter affidavit. In the said counter affidavit it is

admitted that there were no existing adverse reports in the petitioner's character

roll in the years 1980, 1981 and 1982. It is contended that it was open to the

authorities of IIT, Delhi to issue a warning instead of imposing punishment in a

departmental proceeding; the petitioner could have made a representation against

it but he did not do so. It is further pleaded that the warning would tantamount to a

censure and it is immaterial whether it is formally recorded in the character roll or

not in as much as it remained on the petitioner's record and was rightly considered

by the Assessment Committee. It is further pleaded that the petitioner has filed the

present writ petition after retirement, to try his luck if he can manage to get some

money from his ex-employer.

9. The petitioner filed rejoinder to the counter affidavit.

10. On 18th September, 2006, the counsel for the petitioner informed the Court

that the petitioner had died and his legal representatives were not interested to

pursue the matter. The writ petition was accordingly dismissed. However,

subsequently, after about one year the widow of the petitioner filed an application

for revoking of the order of dismissal and for her substitution. The said application

was allowed on 23rd March, 2010.

11. The counsels have been heard.

12. The counsel for the respondent IIT has contended that the deceased

petitioner retired from the service on 31st May, 1987 and instituted the present writ

petition in January, 1988 and the same should be dismissed on this ground alone.

However, I do not find any merit in the said contention of the counsel for the

respondent. The petitioner has in the writ petition impugned the minutes of 23rd

September, 1985 denying him promotion. It is further the pleading of the

petitioner that thereafter he was representing but to no avail. The time lag is not

such as to be indicative of the petitioner having given up his claim for promotion

or having accepted the decision of the Assessment Committee. The retirement of

the petitioner on 31st May, 1987 cannot come in the way of the petitioner/his

widow getting the relief, if otherwise found entitled to.

13. The counsel for the petitioner has also stated that the widow, without

prejudice to her rights and contentions, is not claiming any additional emoluments

to which the deceased petitioner would have been entitled to, if promoted. It is

contended that the petitioner only wants a declaration that her deceased husband

was entitled to be promoted and promoted as a Dy. Registrar and not as the Asstt.

Registrar and the benefit of the increase in pension on this account.

14. Though the petitioner has in the pleadings contended that the decision to

warn him was not of the Disciplinary Authority of the respondent IIT but there is

no merit in the said contention. The disciplinary proceedings were admittedly

initiated against the petitioner and inquiry conducted and the report thereof

submitted. The said report was considered by the Chairman of the Board of

Governors of the respondent IIT and the Office Memorandum dated 30 th August,

1983 warning the petitioner was issued with the approval of the Chairman of the

Board of Governors on behalf of the Board. It is inconceivable that the highest

authority of the respondent IIT was not competent to mete out the punishment to

the petitioner or that the warning aforesaid was not by the Disciplinary Authority

of the respondent IIT. It is not the case of the petitioner that the disciplinary

proceedings were abandoned after the report of the Inquiry Officer. Thus the

warning meted out to the petitioner was in pursuance to the disciplinary

proceedings against the petitioner.

15. The question which arises is, whether such warning meted out by the

Disciplinary Authority is to be not given effect to for the reason of the petitioner

having not been given an opportunity to represent against the same, as was

required to be done for meting out a penalty in a disciplinary proceeding.

16. In my opinion, no. The disciplinary proceedings against the petitioner

culminated in the warning aforesaid. The said disciplinary proceedings have

attained finality and are not under challenge in the present writ petition. The

procedural defect, if any, in meting out the punishment of warning to the petitioner

cannot make the said proceeding a nullity and it cannot be held that for this reason

the disciplinary proceeding stand obliterated and are not to be looked into at all. If

the petitioner was aggrieved by the action of being warned without being given an

opportunity to represent against the same, he ought to have represented against the

same. It is not the case of the petitioner that he represented against the action

aforesaid of the Board of Governors of the respondent IIT. The petitioner was

satisfied with the warning and allowed it to stand.

17. In the aforesaid background, it is to be seen whether the warning aforesaid,

without being entered in the Confidential Report for the relevant year of the

petitioner comes in the way of the requirement under the Scheme of "Confidential

Reports of the petitioner being satisfactory" for the purpose of the promotion

aforesaid.

18. As far as the Office Memorandums aforesaid of 16th February, 1979, 21st

May, 1982 & 5th June, 1981 aforesaid are concerned, the same deal with the

warning issued in the administrative capacity. However, as found aforesaid, the

warning in the present case to the petitioner was not in the administrative capacity

but in culmination of a disciplinary proceeding against the petitioner. The Office

Memorandums have thus no relevance except to the extent that they recommend

against such warnings being meted out in a disciplinary proceeding and give

"warning" a status of "censure", an accepted penalty in a disciplinary proceeding.

19. The Division Bench of this Court in Gopal Bhagat Vs. MCD (1995) III

AD (Delhi) 894 has held that if the warning is in writing or a recordable warning,

it is in its legal implication akin to an adverse entry in the confidential records of

the employee; though the employee was not intended to be penalized yet being a

recordable warning it goes in the personal record of the employee and becomes

relevant for the purpose of assessing the overall performance of the employee; a

recordable warning shall, therefore, have to be dealt with on lines similar to

ACRs; though no opportunity of hearing or a notice to show cause against need

precede the issuance of a warning yet the employee must have an opportunity of

making a representation against and such a representation if made shall have to be

considered and disposed of by the authority issuing the warning or its superior

authority; this alone will be consistent with the principles of natural justice and

fair play.

20. Reference was made in the aforesaid judgment to an earlier judgment of a

Single Judge of this Court in Nadhan Singh Vs. Union of India 1968 Lab IC

1364 and which judgment also formed the basis of issuance of the Office

Memorandum dated 16th February, 1979. In that case, it was held that the warning

could not have been issued without following the rules for imposing a minor

penalty. It was however held that when disciplinary proceedings have been

initiated and notice issued and the memorandum did not state that the action was

dropped and the memorandum was issued by the Disciplinary Authority it could

not be said that the procedure had not been followed. It was thus held that the

warning having been communicated, it was up to the warned officer to make

representation, if any, thereagainst but non giving of an opportunity to represent

could not efface the effect of the warning.

21. In my opinion, the facts of the present case are squarely covered by the

judgment aforesaid in Nadhan Singh (supra). The warning was issued to the

petitioner after a formal inquiry and by the appropriate authority and the warning

itself was issued formally and the mere fact that mention thereof was not made in

the Confidential Report or that it was not mentioned therein that it would be

recorded in Confidential Report of the petitioner would be of no avail. It cannot be

said that the petitioner has had no opportunity of representation thereagainst and

for this reason the reliance by the Assessment Committee on the warning was

erroneous so as to invite interference by this Court. It cannot be said that the

disciplinary proceeding against the petitioner culminating in the said warning

could not be part of the service record of the petitioner.

22. Even otherwise, I am of the opinion that the eligibility condition under the

Backlog Promotion Scheme of satisfactory Confidential Report for the previous

three years was in any case not met in the aforesaid circumstances. This Court

recently in Shri Bhaskarendu Datta Majumdar Vs. Union of India

MANU/DE/0088/2009 has held that when it is within the domain of the

Appointments Committee to adjudge the suitability of a candidate and a part of

their executive function to make the appointment and no mandamus can issue to

compel the Appointments Committee to exercise the discretion in a particular

manner or even to interfere in the exercise of such discretion unless and until the

exercise of discretion by the Appointments Committee is malafide or unreasonable

or actuated by bias. In that case also, a warning had been issued and it was held

that on the basis thereof no interference could be made in the action of the

Appointments Committee of rejecting the petitioner in that case.

23. There is, therefore no merit in the writ petition; the same is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 12th May, 2010 pp