2023 (8) TMI 1007 - HC - Indian Laws

Enhancement of minor penalty - seeking direction to respondents to issue No Objection Certificate to enable him to join as Professor (Energy Engineering) in North Eastern Hill Central University, Shillong - HELD THAT - From the perusal of reply as well as arguments of learned counsel for the respondents, it is evident that there is no provision which empowers Appellate Authority to enhance quantum of penalty imposed by original authority. In the case in hand, appellate order dated 16.12.2022 has been passed by Joint Secretary to Government of India and it has been passed in terms of Central Civil Services (Classification Control Appeal) Rules 1965. Neither reply nor arguments of learned counsel for the respondents are disclosing power of Appellate Authority to enhance penalty, thus, penalty has been enhanced without jurisdiction. It is settled proposition of law that Appellate Authority can enhance penalty if there is specific provision and in the absence of provision, Appellate Authority cannot enhance penalty. A Division Bench of this Court in M/S NIRVAIR SINGH VERSUS FINANCIAL COMMISSIONER TAXATION 2017 (3) TMI 1423 - PUNJAB HARYANA HIGH COURT has adverted with this issue and has held that Appellate Authority cannot enhance penalty in the absence of specific power. From Clause VII of paragraph 2 of Office Memorandum dated 28.09.2022, it is evident that it is applicable for Vigilance Clearance whereas petitioner is not seeking Vigilance Clearance. The petitioner is not asking for certificate without disclosing factum of penalty whereas petitioner is seeking No Objection Certificate to join another department. The case of the petitioner is not covered by aforesaid clause, thus, reliance placed by respondent is misplaced. The respondent is hereby directed to issue No Objection Certificate within one week from today - petition disposed off.

Summary

Issues Involved:
The issues involved in the judgment are the setting aside of an order enhancing a minor penalty, seeking a direction for the issuance of a No Objection Certificate (NOC) for joining another department.

Setting Aside of Order Enhancing Minor Penalty:
The petitioner sought to set aside an order enhancing a minor penalty imposed earlier. The petitioner was appointed as Scientist-D in 2009 and was promoted to Scientist-E in 2016. Following an enquiry and disciplinary proceedings, a minor penalty of 'Censure' was imposed, which was later enhanced to 'Demotion to a Lower Rank' by the Appellate Authority. The petitioner contended that the Appellate Authority exceeded its jurisdiction by enhancing the penalty without specific power to do so. Citing a relevant case law, the court held that in the absence of a provision enabling the Appellate Authority to enhance penalties, such actions are without jurisdiction. Consequently, the impugned order enhancing the penalty was quashed.

Direction for Issuance of No Objection Certificate (NOC):
The petitioner also sought a direction for the issuance of a No Objection Certificate (NOC) to enable joining as a Professor at another university. The respondents relied on an Office Memorandum stating that NOC cannot be granted for a specific period after the imposition of penalties. However, the court noted that the petitioner was not seeking Vigilance Clearance but an NOC to join another department, making the clause inapplicable. The court directed the respondents to issue the NOC within one week, as the petitioner's case did not fall under the mentioned clause.

Conclusion:
The judgment addressed the issues of setting aside an order enhancing a minor penalty and seeking a direction for the issuance of a No Objection Certificate. It emphasized the lack of jurisdiction for the Appellate Authority to enhance penalties without specific provisions and directed the respondents to issue the NOC to the petitioner for joining another department.