S.Vasudevan v. The Secretary,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.11.2019

CORAM

THE HON'BLE MR.JUSTICE M.DHANDAPANI W.P.No.32148 of 2019 and W.M.P.No.32432 & 32433 of 2019 S.Vasudevan ... Petitioner Vs.

1.The Secretary, Jaigopal Garodia National Higher Secondary School, East Tambaram, Chennai - 600 059 2.Girija Seshadri 3.R.Vijaya 4.The Chief Educational Officer, Kancheepuram District, Kancheepuram 5.The District Educational Officer, St.Thomas Mount at Chrompet, Chennai - 600 044 ... Respondents Prayer:- Writ petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned charge memo issued by the first respondent in DP.No.1/2019-20 dated 22.10.2019 and quash the same and consequently to direct the District Educational Officer to conduct a free and fair enquiry on the allegations levelled against the petitioner which are nothing but harassment of the management against the Scheduled Caste Community Teacher, apparently for various other reasons, which they are unable to meet in a justified and legal manner.

For Petitioner : Mr.T.Ranganathan For Respondents : M/s.P.Kavitha, Government Advocate(Edn.)

O R D E R

By consent, the writ petition is taken up for final disposal at the admission stage itself.

2.The case of the petitioner is that the petitioner is working as P.G.Assistant in Geography subject in the first respondent school from 1999. He is the senior most PG Assistant in the school having 13 years of B.T.Assistant service and seven years of PG Assistant service. While being so, the management appointed one, R.Vijaya, who was appointed as PG Assistant, thereby she is possessing only 15 years of service.

Aggrieved by the objections raised by the petitioner, the said R.Vijaya in connivance with the second respondent created evidences and placed the petitioner under suspension on 20.09.2019, which is against the provisions of law. Under Section 23(3) (a) of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, a preliminary enquiry should be conducted before placing the petitioner under suspension. However without following the procedures, the petitioner was placed under suspension and thereafter charge memo dated 22.10.2019 was issued alleging certain charges against the petitioner. Challenging the said charge memo, the present petition has been filed.

3.Heard both sides.

4.The learned counsel appearing for the petitioner would submit that the School Committee is the competent authority to take disciplinary action against the erred teacher. In the present case, the School Committee passed the charge memo without conducting enquiry and further in a partial manner, the School Committee passed the impugned order and with a malafide intention, the impugned charge memo was issued.

5. On perusal of the impugned charge memo, the petitioner misbehaved with 11th std girl and based on the complaint, he was placed under suspension on 20.09.2019 and on the same day, the suspension order was implemented and thereafter in order to conduct enquiry, the present charge memo was issued on 22.10.2019 alleging four charges including the above said charge. It is not appropriate to discuss the charges elaborately on merits and the disciplinary authority has to consider whether the charges levelled against the petitioner are correct or not. As this Court cannot render any opinion on the same, challenging the impugned order at the initial stage is not maintainable. To that effect, the following decisions are relied upon.

6. In this regard, the Supreme Court in its decision in State of U.P. v. Brahm Datt Sharma reported in (1987) 2 SCC 179 dealt with the power of the Court in dealing with a charge memo at the show cause stage and the following passage found in paragraph 9 will make the position clear:

"9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to

a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. 'The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice."

7.The Supreme Court vide judgment in Special Director v. Mohd. Ghulam Ghouse reported in (2004) 3 SCC 440 in para 5 observed as follows:

"5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition.

Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted."

8.Further, the Supreme Court in the judgment relating to Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 in paras 13 to 16 held as follows:

"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a chargesheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440, Ulagappa v. Divisional Commr., Mysore (2001) 10 SCC 639, State of U.P. v. Brahm Datt Sharma(1987) 2 SCC 179, etc.

14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or showcause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.

16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."

9. In the decision in Dy. Registrar, Co-op. Societies v. Sachindra Nath Pandey reported in (1995) 3 SCC 134, the Supreme Court held that the delay in framing charge cannot be a ground to interfere with the charge memo and the relevant passage found in paragraph 7 of the said judgment is extracted below:

"7. On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay......"

10.Further, in Secretary to Government, Prohibition & Excise Department v. L. Srinivasan reported in (1996) 3 SCC 157, the Supreme Court has held that the charge cannot be quashed only on the ground of delay and any finding recorded by the Court will prejudice the enquiry. The Supreme Court has also pulled up the member of the Administrative Tribunal for having interfered with the charge memo as if the Tribunal is the appellate authority. The following passage found in paragraph 3 of the said judgment makes the position very clear:

"3.....We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial.

Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied."

11.Very recently, the Supreme Court in Govt. of A.P. v. V. Appala Swamy reported in (2007) 14 SCC 49 held the parameters of interfering with a charge sheet on the ground of delay in paragraphs 12, 14 and 15 which read as follows: "12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:

(1) where by reason of the delay, the employer condoned the lapses on the part of the employee;

(2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.

.......

14. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V. Bijlani v. Union of India (2006 (5) SCC 88). That case was decided on its peculiar facts. In that case, even the basic material on which departmental proceedings could be initiated was absent. The departmental proceedings were initiated after 6 years and continued for a period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced."

15. Bijlani, therefore, is not an authority and, in fact, as would appear from the decision in P.D. Agrawal4 for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor.

12.Therefore, the writ petition cannot be entertained and the same is liable to be dismissed. Accordingly, the writ petition is dismissed. Consequently, connected miscellaneous petitions are closed. No costs.

Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar lok To 1.The Chief Educational Officer, Kancheepuram District, Kancheepuram.

2.The District Educational Officer, St.Thomas Mount at Chrompet, Chennai - 600 044.

+1cc to Mr.T.Ranganathan, Advocate SR.95021 +1cc to the Government Pleader SR.96841 W.P.No.32148 of 2019 GMR(CO) CB(08/01/2020)