Partly allowed

Davinder Singh Pannu v. Khalsa College Charitable Society and Others

Punjab & Haryana HC27 Aug 2012CWP/15000/2012

Case brief

AI extract

What is this about?

The High Court quashed an order suspending a senior lecturer due to imminent retirement. The court held the Tribunal remedy was not efficacious and noted a prior order directing the petitioner's appointment as Head was only complied with after a contempt petition.

What did the court decide?

Quashed suspension order of 23.7.2012; directed petitioner to submit application for leave till retirement.

Davinder Singh Pannu Vs Khalsa… — Pension and Retirement Benefits | Punjab & Haryana HC (2012)

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C.W.P. No. 15000 of 2012 [1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P. No. 15000 of 2012 (O&M) Date of decision: August 27, 2012

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Dr. Davinder Singh Pannu

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.. Petitioner

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The Khalsa College Charitable Society and others

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.. Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL

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Present: Mr. Rahul Sharma, Advocate for the petitioner. Mr. S. C. Nagpal, Advocate for respondents No. 1 and 3. Mrs. Amarjit Khurana, Advocate for respondents No. 2 and 4.

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Rajesh Bindal J.

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The petitioner, who was working as Head, Department of English, has impugned the order dated 23.7.2012, passed by respondent No. 1, whereby the petitioner has been placed under suspension.

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Learned counsel for the petitioner submitted that the petitioner is second senior most Lecturer working in Khalsa College, Amrtisar. He is the only Lecturer in the Department of English in the College holding Ph.D. Degree. Being senior most Lecturer in the Department of English, he was appointed as Head of the Department in July, 2007. On 13.9.2008, the petitioner applied for long leave without pay for a period of one year from 15.9.2008 to 2.10.2009, which was duly sanctioned. After availing leave, when the petitioner submitted his joining report on 3.10.2009 as Head of the Department of English, the petitioner was only permitted to join as Lecturer. He was informed that Mrs. Navneen Bawa is now Head of the Department. As the petitioner had been reduced in rank while removing from the post of Head of the Department, he raised the grievance before

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C.W.P. No. 15000 of 2012 [2]

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the Educational Tribunal, where the relief was declined to the petitioner vide order dated 24.2.2010. The same was challenged by the petitioner before this Court by filing CWP No.7043 of 2010, which was allowed on 6.1.2012, holding that taking away of the charge of Head of the Department from the petitioner despite his being senior most Lecturer in the Department amounted to reduction in rank. The order passed by the Educational Tribunal was set aside and the College was directed to allow the petitioner to hold the post of Head, Department of English forthwith. Letters Patent Appeal No. 215 of 2012 filed by the College was dismissed by this court on 17.2.2012. Even though the order was passed by this court on 6.1.2012 in the presence of counsel for the College, but still the same was not complied with. The petitioner had to approach this court again by filing contempt petition bearing COCP No. 419 of 2012. Even during the pendency of the contempt petition, the College had been able to delay grant of relief to the petitioner on one pretext or the other. Ultimately on 28.5.2012, this court observed that in case the order is not complied with before the next date of hearing, the respondents therein will be burdened with costs. The matter was adjourned to 11.7.2012. As even on the next date, no material was produced showing compliance of the order, the matter was adjourned to 16.7.2012. It was only on that date that an order passed by the Principal of the College on 10.7.2012 was produced in court. The same was not earlier supplied to the petitioner. As the copy was furnished to the petitioner in court on 16.7.2012, he could assume charge only on 17.7.2012. On the next date of hearing, i.e., 18.7.2012, the contempt petition was disposed of while recording unconditional apology by the Principal of the College for the lapse with a warning to him to be careful in future. 3. From the aforesaid facts, it was clearly established that effort of the respondents was not to permit the petitioner to assume the charge as Head of the Department or let him work as such. They had been able to delay the process to its last, when cornered during contempt proceedings only then the judgment of this court was complied with. In fact, the moment the petitioner had joined as Head of the Department, he was conveyed that he will not be permitted to work as such. Being Head of the Department,

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C.W.P. No. 15000 of 2012 [3]

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the petitioner called the meeting of the Faculty Members of the Department vide office order dated 19.7.2012 to be held on 20.7.2012 to take stock of the work load and the allotment of work for the academic session. To the embarrassment of the petitioner, none of the members of the Faculty in the Department attended the meeting. The message, which was conveyed to the petitioner on his joining was loud and clear as none was recognising him as Head though on papers he had been given the charge. Even though every one in the College knew that the petitioner is to retire on superannuation on 31.8.2012 and will be there in the College only for a period of one month and 10 days, but still as the decision was not to co-operate and somehow to teach a lesson to the petitioner for going to the Court against the College and even filing a contempt petition where the Principal had been summoned in person, a complaint was got from Prof. Deepak Devgan, Department of Commerce, regarding some alleged incident which took place on 20.7.2012 and vide impugned order dated 23.7.2012, the petitioner was placed under suspension. It was merely just within a week of petitioner's taking over the charge as Head, Department of English.

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Learned counsel further submitted that there is another background of the case on account of which the Principal of the College was having a grudge against him. About five years ago, when selection to the post of Principal was made, the petitioner was also a candidate. Though respondent No. 4 was selected, but still he was having a grudge against the petitioner having competed with him.

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Learned counsel for the petitioner, while referring to the written statement filed by the Society, submitted that though in the impugned order of suspension, only reference has been made to the complaint made by Prof. Deepak Devgan for some alleged incident which took place on 20.7.2012, whereas in the written statement, reference was also made to the complaints filed by many students. In addition thereto, it was alleged that the petitioner is also guilty of using unparliamentary and filthy language not only against the Principal but against the Members of the Managing Committee as well. Certain letters written by him prior to his taking over as Head of the Department have also been referred to with reference to the language used

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C.W.P. No. 15000 of 2012 [4]

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therein. Reference was also made to FIR No. 36 registered against the petitioner on 31.3.2011. Certain photographs have also been placed on record as Annexures R-18 to R-20 showing that in fact, the petitioner had been indulging in hooliganism, misbehaviour, indiscipline and insubordination. The aforesaid facts are totally missing in the impugned order of suspension. In fact, the impugned order is sought to be justified on the grounds which are not contained in the order. He further submitted that the photographs which have been placed on record in fact were clicked during the time Teaching Faculty was protesting against the College being converted into a University. As is evident from a perusal of the photographs, members of the Faculty present therein are being shown in happy mood. Still further, the contention is that suspension of an employee is required only in case his presence in the institution will hamper the enquiry proceedings or there is any chance of his tampering with the record. Both are missing in the present case, especially considering the fact that the petitioner is to retire on 31.8.2012. In support of his contention, reliance was placed upon a judgment of this court in C.W.P. No. 2506 of 1996— Baldev Singh v. The State of Punjab and others, decided on 31.5.1996.

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On the other hand, learned counsel for respondents No. 1 and 3, while raising preliminary objection to the maintainability of the writ petition, submitted that in terms of the provisions of the Punjab Affiliated Colleges (Security of Service of Employees) Act, 1974 (for short, 'the Act'), after the Educational Tribunal had been constituted, the petitioner has an effective alternative remedy of approaching the Tribunal for redressal of his grievance. It is well within the knowledge of the petitioner himself. Earlier also, the petitioner had approached the Educational Tribunal raising the grievance of his not being granted the charge as Head of the Department.

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As far as merits of the controversy are concerned, learned counsel submitted that in the present case, the complaint had been made against the petitioner by none else than a senior Faculty Member. In addition thereto, the students had also made complaints against the petitioner. To maintain cordial atmosphere in the College, it was considered appropriate to place the petitioner under suspension. Suspension is not a

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C.W.P. No. 15000 of 2012 [5]

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punishment. It is premature to approach the court challenging the order of suspension when enquiry is in contemplation as charge-sheet has already been issued. Any opinion expressed by this court at this stage may ultimately affect the merits of controversy. It is wrong to presume that every one in the College or in the management is against the petitioner.

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Learned counsel further referred to the civil suit filed by the petitioner prior to approaching this court, which was ultimately withdrawn by him. He submitted that the suit was withdrawn as the petitioner knew that he had alternative remedy before the Educational Tribunal. Before the Society took action against the petitioner to place him under suspension, in fact, he was afforded an opportunity to patch up the matter with Prof. Deepak Devgan, but the petitioner did not proceed in that direction being adamant. However, learned counsel for respondents No. 1 and 3 was unable to specify the place, date and time and the purpose for which the alleged meeting was held, the photographs of which have been placed on record to show the conduct of the petitioner. Learned counsel was further unable to point out as to whether any action was taken against Prof. Malkinder Singh, who was allegedly accompanying the petitioner while crossing the class being taken by Prof. Deepak Devgan, when the petitioner is alleged to have misbehaved with Prof. Deepak Devgan or any of the student, who on the alleged direction of the petitioner had crossed through the class taken by Prof. Deepak Devgan.

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In response to the submissions made by learned counsel for respondents No. 1 and 3, learned counsel for the petitioner submitted that it is wrong to state that the petitioner was ever asked to patch up the matter with Prof. Deepak Devgan. He further submitted that though in the kind of enquiry, the presence of the petitioner in the College will not affect the same, but still considering the fact that the petitioner is to retire on 31.8.2012, he can even proceed on leave till his retirement. He does not deserve to be dealt with in the manner he has been at the time of his retirement after rendering long service to the College. He further submitted that the petitioner does not have the remedy to approach the Educational Tribunal against the action of the respondents for the reason that Section 3

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C.W.P. No. 15000 of 2012 [6]

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of the Act clearly provides that it can be in the situation of dismissal, removal or reduction in rank of the employee. Even the provisions subsequent thereto in the Act also prescribes the procedure to be followed for taking aforesaid actions. In the alternative, it was submitted that considering the facts of the present case and the situation in which the petitioner stands today when he is to retire on 31.8.2012 on superannuation, the remedy before the Educational Tribunal, if any available, will not be efficacious. The availability of alternative remedy for invoking extraordinary jurisdiction of this court is otherwise also self imposed restriction, as the same does not debar entertainment of a writ petition as such.

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As far as filing of the suit in the court below is concerned, learned counsel for the petitioner submitted that the same was filed at the stage when the petitioner had not been served with the order of suspension. The prayer in the suit was for restraining the defendants therein from illegally suspending or terminating the services of the petitioner. The moment suspension order was served, the suit was withdrawn with liberty to file fresh one challenging the said order. Certified copy of the order was produced in court, which was taken on record.

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Heard learned counsel for the parties and perused the paper book.

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Firstly dealing with the preliminary objection raised by learned counsel for respondents No. 1 and 3 to the effect that the petitioner has alternative remedy of approaching the Educational Tribunal in terms of the provisions of the Act, the jurisdiction of which is wide enough to even take care of the cases where challenge is sought to be made to an order of suspension. It is settled law that availability of alternative remedy is a selfimposed restriction for entertainment of a writ petition. If the facts and circumstances of the case where the petitioner has been placed under suspension vide order dated 23.7.2012 and he is going to retire on superannuation on 31.8.2012, even if the petitioner has the alternative remedy of approaching the Educational Tribunal, the same is not considered as equally efficacious, hence, the objection raised for entertainment of the writ petition is rejected. This court is not recording any definite finding as

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C.W.P. No. 15000 of 2012 [7]

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to the availability of alternative remedy to the petitioner for challenging the order of suspension before the Educational Tribunal.

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Even the contention raised by learned counsel for respondents No. 1 and 3 regarding filing of the suit and withdrawal thereof before approaching this court is totally misconceived for the reason that the suit was filed by the petitioner for permanent injunction restraining the College as well as the Managing Committee from illegally suspending/terminating his services. The same was withdrawn on 4.8.2012 after recording the statement of counsel for the petitioner to the effect that the plaintiff having been suspended by the College, the suit had become infructuous, hence, the same was withdrawn with liberty to file fresh one challenging the suspension order. Hence to state that for the same relief earlier the suit was filed and the same was withdrawn without any liberty is totally misconceived and rejected.

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Coming to the merits of the controversy, learned counsel for the petitioner has given the background of the case in detail which, according to him, resulted in passing of the impugned order of suspension. The facts that the petitioner was given the charge of Head of English Department, being senior most Lecturer in the year 2007, and his proceeding on sanctioned leave from 15.9.2008 to 2.10.2009 are not in dispute. Further, there is no dispute about the fact that when the petitioner furnished his joining report on 3.10.2009 after availing his leave as Head of the Department, he was only permitted to join as a Lecturer, for which an order was passed by the Principal of the College on 12.10.2009 directing him to respect Mrs. Navneen Bawa, who was the Head of Department at that time. Faced with the situation, where the petitioner being senior most Lecturer in the Department, had a right to be designated as Head of the Department in terms of the rules and regulations applicable, approached the Educational Tribunal for the relief. The same was declined to him vide order dated 24.2.2010. The order was challenged before this court by filing CWP No. 7043 of 2010, which was allowed by this court vide judgment dated 6.1.2012, while recording the following findings:

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“Keeping in view the nature of duties and privileges attached

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C.W.P. No. 15000 of 2012 [8]

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to the post of the head of the department and being the senior most, he was allowed to work on the post of head of department and subsequently not allowing the petitioner being the senior most amounts to reduction in rank and order is an adverse in nature and contrary to his interest. Only in certain eventuality, the next to senior most can be allowed as the head of the department but not in the presence of senior most. The petitioner was on leave, the next senior to him was rightly appointed as head of the department but that was only till he resumed his duty but to allow in the presence of senior most lecturer like the petitioner, amounts to reduction in rank.

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In view of the facts and law position explained above, the impugned order of Tribunal is set aside and the respondents are directed to allow the petitioner to hold the post of head of the department forthwith.”

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It is also a fact that LPA No. 215 of 2012 filed against the judgment of learned Single Judge was dismissed by this court on 17.2.2012. When despite the judgment of this court the petitioner was not given charge as Head of the Department, he had no choice but to file a contempt petition in this court, which remained pending after notice of motion. The file of the aforesaid contempt petition was summoned from the record for a perusal of the proceedings therein. In the said contempt petition, on 28.5.2012, this court passed the following order:

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“On request, adjourned to 11.7.2012.

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The respondents are directed to ensure compliance of the court order before the next date of hearing failing which there shall be cost of ` 25,000/- each.”

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On the next date of hearing, as no intimation regarding compliance of the order was furnished in the court, the contempt petition was adjourned to 16.7.2012, on which date learned counsel appearing for the contemner produced in court an order dated 10.7.2012 showing compliance of the judgment of learned Single Judge while giving charge of Head of the Department to the petitioner, but the order was not

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C.W.P. No. 15000 of 2012 [9]

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communicated to the petitioner on 10.7.2012 or immediately thereafter. The petitioner came to know about the order only in court on 16.7.2012. Having come to know about the order passed, he assumed charge as Head of English Department on 17.7.2012. When the contempt petition was listed on 18.7.2012, since the judgment of this court had been complied, the same was disposed of after recording unconditional apology of the Principal of the College and warning him to be careful in future. But the fact remains that judgment of the learned Single Judge dated 6.1.2012 was complied with more than 6 months thereafter, that too after the petitioner had to file a contempt petition, despite the fact that Letters Patent Appeal filed by the College also stood dismissed on 17.2.2012. The Principal of the College had to be present in court to explain his conduct during contempt proceedings. It is despite the fact that the College authorities very well knew that the petitioner is going to retire on superannuation on 31.8.2012. He was to remain Head of the Department only for a period of about 6-7 months. Earlier also, he had been serving in the College satisfactorily with no complaint.

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After the petitioner assumed charge as Head of the Department, in due course he had to call the meeting of Faculty Members for taking stock of the work load and allotment of work for current academic session on 19.7.2012. The meeting was scheduled on 20.7.2012. The stand of the petitioner is that none of the Faculty Members attended the meeting as they had been instructed to do so by the Principal of the College. According to him, the Faculty Members had been briefed that the petitioner is going to be suspended. Even though the fact that the petitioner had issued a circular for calling the meeting of the Faculty on 19.7.2012 is not disputed by the respondents in the reply, but it has not been explained as to what followed when none of the teachers attended the meeting called by Head of the Department, as it was a kind of indiscipline. It was merely third day of the petitioner in the College after he was permitted to take charge as Head of the Department.

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Vide order dated 23.7.2012, the petitioner was placed under suspension. The base is the complaint made by Prof. Deepak Devgan for an

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C.W.P. No. 15000 of 2012 [10]

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alleged incident which took place on 20.7.2012. A copy of the alleged complaint filed by Prof. Deepak Devgan to the Principal of the College on 20.7.2012 has been placed on record by the respondents as Annexure R-2. It is stated therein that when he was taking lecture of BBA-III in Room No. 28, adjacent to English Department, the petitioner along with Prof. Malkinder Singh entered the room without asking the complainant and crossed over from the side of Political Science Department towards English Department. They were being followed by the students of some class. However, they stopped at the gate seeing that the complainant was teaching. Thereafter, some altercation allegedly took place. Though in the aforesaid complaint, Prof. Deepak Devgan had referred to even Prof. Malkinder Singh accompanying the petitioner, but there is nothing on record pointed out by the respondents that either any action was taken against him for disturbing the class of Prof. Deepak Devgan or the matter was enquired into from him regarding the fact as to whether any such incident had happened or not. Along with the aforesaid complaint, the respondents have placed on record number of documents running from Annexures R-3 to R-11, which are stated to be the complaints filed by some students, however, this court cannot take notice of them being in Punjabi, which is not the court language. Besides this, there are other documents as well placed on record by the respondents with the written statement, which are in Punjabi, as if the respondents were not aware of the official language in the court in which the pleadings or the documents are to be filed. 19. Though in the order of suspension, reference has been made to only a complaint filed by Prof. Deepak Devgan, however, in the reply, the suspension is sought to be justified by raising the plea that the petitioner had been using unparliamentary and filthy language not only against the Principal of the College but also against the members of the Managing Committee. He had used unparliamentary language in his communications with the authorities much prior even he was permitted to take over as Head of English Department. A reference was also made to one FIR registered against the petitioner and also photographs Annexures R-18 to R-20 to show the misconduct of the petitioner.

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C.W.P. No. 15000 of 2012 [11]

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Firstly, an order can be justified only for the reason contained therein. The same cannot be supplemented by filing the reply. Further, the stand of the petitioner in the replication to the written statement is that the FIR was registered on an occasion when the entire Faculty was protesting against the action of the authorities in converting the College into a University. Other Faculty Members were also named in the FIR.

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As far as photographs placed on record are concerned, firstly the respondents have not taken any categoric stand in the reply as to when the meeting in which the petitioner allegedly misbehaved, to which the photographs pertain to, was held after the petitioner had taken over as Head of the Department or even prior thereto. A perusal of photograph (Annexure R-18) shows that number of teachers were present. They were seen to be laughing and clapping. In fact, all the photographs seem to have been taken on one occasion as three of them are in one room, whereas the fourth one seems to be of outside the room. The photographs cannot be of very recent time for the reason that two of the persons present therein are wearing suites, whereas one is wearing sweater as well. Some of other persons present in the photographs were also raising some slogan. One was even carrying a newspaper in his hand. Seeing the photographs as such, prima facie, it cannot be opined that the petitioner therein was humiliating or using unparliamentary language against the Principal of the College or Members of the Managing Committee. If that was so, all the Faculty Members, present in the photographs, who were clapping and laughing, may also be equally guilty. In fact, the respondents are evasive in their reply while not taking a definite stand as to what was the occasion when the photographs were taken and as to whether it is a routine to take photographs in any meeting of the Faculty.

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It has further been stated by learned counsel for the petitioner that in case the College authorities are apprehending that in case the petitioner joins back as Head of the Department in the College the atmosphere may not be vitiated, he is even ready and willing to proceed on leave till retirement, in my opinion, considering the background of the case, as has been referred to above, this would be the right course in the present

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C.W.P. No. 15000 of 2012 [12]

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case. In fact, the petitioner could also have been asked to proceed on leave considering the fact that he had merely a month or so to his retirement, before taking action of suspending him.

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In view of the above discussion, the impugned order dated 23.7.2012, passed by respondent No. 1, suspending the petitioner is quashed, subject to the condition that the petitioner will submit his application for proceeding on leave of the kind due till his retirement. However, this order shall not be treated as an expression of definite opinion on the merits of the controversy considering the fact that the respondents are proposing enquiry against the petitioner.

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The petition stands disposed of accordingly.

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(Rajesh Bindal) Judge

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August 27 , 2012 mk

Davinder Singh Pannu v. Khalsa College Charitable Society and Others

Case brief

What is this about?

What did the court decide?

Davinder Singh Pannu v. Khalsa College Charitable Society and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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