C.Ramesh vs Director , Vallabhbhai Patel ...
2014 Latest Caselaw 567 Del

*                   THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment delivered on: 29.01.2014

+      W.P.(C) 2110/2013 and CM No.4012/2013 (directions) and
       CM No.4013/2013 (stay)
       C.RAMESH                                       ..... PETITIONER

                           VERSUS



       DIRECTOR , VALLABHBHAI PATEL
       CHEST INSTITUTE AND ORS     ..... RESPONDENTS

ADVOCATES WHO APPEARED IN THIS CASE:

For the Petitioner: Mr. Yog Verdhan, Advocate For the Respondents: Mr. Ankur Chibber and Mr. Aashish Gupta, Advocates for R-1 Mr. Mohinder J.S. Rupal, Advocate for R-2 Mr. Rajat Malhotra, Advocate for R-3 & 4

CORAM :-

HON'BLE MR JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J

1. This writ petition seeks to assail the order of dismissal dated 18.02.2013 issued by the Director of Vallabhbhai Patel Chest Institute (in short VPCI) on behalf of the Governing Body.

2. The case set up by the petitioner is that apart from the fact that the impugned order passed is illegal, it is also tainted with malafides and is in breach of principles of natural justice.

2.1 The learned counsel for the petitioner though at this stage confines his arguments only to one singular issue. To be noted, the

petitioner is present in court and, the counsel, has taken instructions in that behalf from the petitioner.

3. The sole argument, therefore, of the learned counsel for the petitioner is that the impugned order is illegal on account of the following :-

3.1 The learned counsel for the petitioner says that the letter of appointment dated 09.06.2001 issued to him clearly say that he would be governed by the University Non-teaching Employees (Terms and Conditions of Service) Rules, 1971 (in short the Rules) as amended from time to time and other rules applicable to VPCI. The learned counsel for the petitioner says that the power to institute disciplinary proceedings vests either in the Executive Council or, any other authority, empowered by general or special order in that behalf by the Executive Council. Reliance in this behalf was placed on Rule 69.

3.2 It is the case of the petitioner that in the present case, the disciplinary proceedings were initiated by the Governing Body and, the order of termination, was also passed at the behest of the Governing Body, without any authority being conferred upon the said body by the Executive Council.

3.3 As against this, both Mr. Chibber and Mr. Rupal, the learned counsels for respondent nos.1 and 2 respectively, take a common stand on this issue.

3.4 It is their stand that Ordinance XX, clause 2(1)(2)(f), specifically, gives the power of management of affairs of VPCI to the Governing Body subject to the general control and supervision of the Executive Council. The learned counsels submit that, amongst other powers of

management conferred on VPCI, the power to appoint, suspend or terminate the services of the administrative and other non-academic staff of VPCI, in respect of whom powers have been delegated by the Executive Council, is conferred on the Governing Body.

3.5 It is, therefore, the submission of the learned counsel for the respondents, that since the Governing Body was the appointing authority, it is that body, which would have the power to terminate the services of the petitioner. The learned counsels stress that the petitioner at the time of seeking appointment took no objection to the power being delegated in favour of the Governing Body and, therefore, at the stage of termination, he could not have taken the objection that since the power was not delegated to the Governing Body, it was not authorized to either institute the disciplinary proceedings or, follow it up with the order of termination.

3.6 I am also informed by Mr. Rupal that an additional affidavit has been filed on behalf of respondent no.2 yesterday i.e., 28.01.2014 vide diary no.17140. Additional affidavit, however, is not on record. Mr. Rupal has, however, furnished a copy of the additional affidavit.

3.7 Along with the additional affidavit, the said respondent, has filed a photocopy of the record of proceedings before the Lok Sabha. It appears that an unstarred question was raised with regard to whether or not the Executive Council had delegated the power to appoint, suspend or terminate the services of the administrative and other non academic staff to the Governing Body of VPCI.

3.8 In answer to the said question, respondent no.2 clearly indicated to the Parliament that there was no explicit / specific resolution passed

by the Executive Council delegating such powers to the Governing Body of VPCI. Respondent no.2, however, went on to state that in respect of other colleges (i.e., apart from VPCI), the Governing Body has been vested with powers to take disciplinary action against non teaching staff, being their appointing authority and, therefore, by the impugned logic so to say the Governing Body of VPCI appoints non teaching staff and takes disciplinary action against them wherever necessary. The learned counsel for the respondents submitted that Rule 69 would have to be read in consonance with Clause 2(1)(2)(f) of Ordinance XX.

3.9 The sum and substance of the arguments addressed by the learned counsels for respondent nos.1 and 2 is that, since there is no delegation of power by the Executive Council in favour of the Governing Body and, because, the Governing Body is the appointing authority, it should also necessarily follow that it has the power to take disciplinary action against administrative and non teaching staff.

4. I must only note that no counter affidavit has been filed on behalf of respondent nos.3 and 4. The learned counsel for respondent nos.3 and 4 says that he has instructions to state that they would follow the stand taken by respondent no.1.

5. I have heard the learned counsel for the parties. It is not in dispute that the petitioner falls in the category of non teaching staff / administrative staff. He had joined the services of the VPCI on 10.07.2001, as an Assistant Registrar. Major penalty proceedings were initiated against the petitioner on 21.01.2011 by the Governing Body of VPCI under Rule 70. The petitioner ,was charge-sheeted and, thereafter

terminated from service. As indicated above, the challenge is based on a singular ground. No other ground is pressed before me, by the counsel for the petitioner.

6. The question which arises for consideration is, whether the power exercised by the Governing Body to terminate the services of the petitioner, who is admittedly, a non-teaching staff / administrative staff, is legally sustainable.

7. On perusal of clauses 2(1) and 2(1)(2)(f) of the said Ordinance, it emerges that the said clauses would provide for the following :-

7.1 Clause 2(1), provides the manner in which the Governing Body has to be constituted for management and administration of VPCI. The Director of VPCI, under clause (2)(1)(3), is the ex-officio Member Secretary of the Governing Body. Clause 2(1)(2), confers the power on the Governing Body to manage the affairs of VPCI in respect of the functions detailed out in sub clauses (a) to (h) subject to general control and supervision of the Executive Council.

7.2 Clause 2(1)(2)(f) provides for the following :-

"..(f). to appoint, suspend or terminate the services of the administrative and other non-academic staff of the Institute in respect of whom such powers may have been delegated by the Executive Council and to determine the emoluments and conditions of service.."

(emphasis is mine) 7.3 A bare perusal of the said clause would show that in so far as the administrative and non academic staff is concerned, the Executive Council is empowered to delegate the power to appoint, suspend or terminate their services.

7.4 The additional affidavit filed by respondent no.2 clearly indicates that no such "explicit / specific" resolution was passed by the Executive Council delegating such power to the Governing Body of VPCI. The learned counsels for the respondents have submitted before me that in the absence of a specific resolution, normal principle should apply, which is that, the appointing authority, should have the power to terminate, the services of an employee.

7.5 As indicated above, their argument is that having not questioned the power of appointment of the Governing Body, surely, the petitioner cannot now be heard on the question of power of termination. Perhaps, this argument may have been accepted by me, in the absence of rules, to which, the petitioner has been made subject to, at the stage of appointment itself. A perusal of the appointment letter dated 09.06.2001 would show that one of the terms and conditions of his appointment was that, he will be governed by the aforementioned rules as amended from time to time and, other rules, as applicable to the institute. Clearly, Rule 69 provides that only the Executive Council or any other authority empowered by the general or special order may institute disciplinary proceedings against the employee. The relevant provisions of the said rule are extracted hereinafter : -

"..69. Authority to institute proceedings :-

1. The Executive Council or any other authority empowered by it by general or special order may :-

(a). institute disciplinary proceedings against any employee;

(b). direct a disciplinary authority to institute disciplinary proceedings against, an employee on whom that disciplinary

authority is competent to impose under these rules any of the penalties specified in rule 67.."

(emphasis is mine) 7.6 Therefore, it is quite clear that the appointment was governed by Rule 69. The learned counsel for the respondents have argued that the expression "as applicable to institute" would mean that it would have to go back to Ordinance XX clause 2(1)(2)(f). I have read that clause. It does not improve the case of the respondents.

7.7 In the middle of the dictation, counsels for the respondents again got up to argue the matter and attempted to draw my attention to page 231 of the paper book. Mr. Rupal at this stage referred me to page 202 of the paper book, which is a extract of the minutes of the meeting held by the Governing Body on 27.05.2000. Mr. Rupal says that in that meeting, the Chairman of the Governing Body put up a proposal that the : appointing authority, the disciplinary authority and the appellate authority for the non teaching staff, under the aforementioned rules, should be the Governing Body. This proposal based on the said extract, I am told, was approved. According to me, this argument begs the question : quite clearly, the Governing Body on its own cannot hold a meeting and, thereby, confer a power upon itself, which the Executive Council, has not conferred on it.

8. In view of the above, the writ petition has to be allowed on this short ground. The order of termination has to be set aside. It is ordered accordingly. The respondents, however, shall be empowered to continue the disciplinary proceedings, if so permissible in law, subject to necessary powers being conferred upon it by either a specific or

general resolution of the Executive Council. There shall, however, be no orders as to costs.

9. With the aforesaid observations in place, the writ petition and the pending applications are disposed of.

10. Dasti.

RAJIV SHAKDHER, J JANUARY 29, 2014 yg