9911796707
TMI Blog2023 (8) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... im to join as Professor (Energy Engineering) in North Eastern Hill Central University, Shillong. 2. The brief facts of the case are that petitioner by way of direct recruitment on 01.07.2009 was appointed to the post of Scientist-D, in the respondent institute. He was promoted as Scientist-E on 01.01.2016. The petitioner was issued charge-sheet dated 15.10.2018, alleging violation of Government Rules and Guidelines while making purchase. The petitioner filed his reply. An enquiry came to be conducted. The Enquiry Officer after completing enquiry submitted his report dated 27.12.2019 to disciplinary authority which in turn issued show cause notice dated 11.03.2020 alongwith enquiry report. The disciplinary authority vide order dated 22.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting out reply submits that as per Office Memorandum dated 28.09.2022, the petitioner cannot be issued NOC because he has been subjected to major penalty. As per aforesaid Memorandum, NOC cannot be granted for a period of 3 years in case of minor penalty and 5 years in case of major penalty. 5. On being asked, learned counsel for the respondents expressed his inability to show any provision which enables Appellate Authority to enhance penalty. 6. I have heard the arguments of both sides and with the able assistance of learned counsel have perused the record. 7. 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 quan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a power either. Absent a power to the contrary conferred by a statute, an appellate authority cannot grant a relief in favour of the respondent. It can either confirm the order appealed against or set it aside. It can also modify the order, but not to the further detriment of the appellant except as to an order for costs. Where the Legislature intends conferring a power upon an appellate or revisional authority to enhance the relief in favour of the respondent, it does so specifically. For instance, Sections 128 and 128-A of the Customs Act, 1962 (in short the Customs Act) confer such a power. Sub-section (3) of Section 128-A of the Customs Act confers the power upon the Commissioner (Appeals) to enhance the penalty. This is evident fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is relying upon Clause VII of paragraph 2 of Office Memorandum dated 28.09.2022 which reads as: "Vigilance clearance will not normally be granted for a period of three years after the currency of the punishment, if a minor penalty has been imposed on an officer. In case of imposition of a major penalty, vigilance clearance will not normally be granted for a period of five years, after the currency of punishment. During the period, the performance of the officer should be closely watched." 10. From the perusal of afore-cited clause, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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