Karnataka High Court
Sri G S Krishnamurthy vs Kuvempu University on 31 January, 2017
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION No.60383 OF 2016(S-DIS)
BETWEEN :
Sri G.S.Krishnamurthy,
S/o.Sanneeraiah,
Age: 49 years,
Working as Superintendent,
Sahyadri Science College,
Shivamogga - 577 203. ... Petitioner
(By Sri K.Manjunath Rao Bhonsle, Advocate)
AND:
1. Kuvempu University,
Rep. by its Registrar,
Jnanasahyadri,
Shankaraghatta,
Bhadravati Taluk,
Shivamogga District,
Pin code - 577 451.
2. The Principal,
Sahyadri Science College,
Shivamogga - 577 203. ...Respondents
(By Sri T.P.Rajendrakumar Sungay, Advocate for R1:
R2 served)
This writ petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the suspension order
dated 6.7.2016 vide Annexure-E the articles of charges/notice
2
dated 24.09/20.10.2016 vide Annexure-K the endorsement
dated 28.10.2016 vide Annexure-J passed/issued by R1, etc.
This writ petition, coming on for orders, this day, the Court
made the following:
ORDER
The petitioner who was working as a Superintendent in the second respondent College has raised the challenge to the order, dated 06.07.2016 (Annexure-E), suspending him from service and the notice, dated 24.09/20.10.2016 (Annexure-K), calling upon him to file his defence statement to the articles of charges and the endorsement, dated 28.10.2016 (Annexure-J), turning down the petitioner's request for revoking the suspension.
2. Sri K.Manjunatha Rao Bhonsle, learned counsel for the petitioner submits that the petitioner was suspended on 06.07.2016. He submits that the suspension period comes to an end on 05.10.2016. He relies on the Hon'ble Supreme Court's judgment in the case of AJAY KUMAR CHOUDHARY vs. UNION OF INDIA, THORUGH ITS SECRETARY AND ANOTHER reported in (2015) 7 SCC 291. Para 21 of the said decision, read out by him, is as follows:
"21 We, therefore, direct that the currency of a suspension order should not extend beyond three 3 months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the Memorandum of charges/ charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."4
3. He submits that the order continuing the suspension ought to have been passed within 05.10.2016; on the other hand, it is passed on 28.10.2016.
4. He submits that the suspension is continued on the ground that certain documents are yet to be received from the Police Department. He submits that all the documents are already obtained by the respondents, as is evident from the list of documents accompanying the impugned show cause notice, dated 24.09.2016. He submits that the petitioner is suspended from service based on a private complaint, the allegations of which are not true. Therefore he submits that there is no legal impediment in revoking the petitioner's suspension order, as the charge-sheet is filed and as the enquiry is not being hampered by the petitioner in any way.
5. Sri T.P.Rajendra Kumar Sungay, learned counsel for the respondent No.1 submits that the petitioner has taken the bribery ranging from `20,000/- to `1.00 lakh from six persons promising them/their children that he would get the appointment for them by using his proximity 5 to the Registrar of the University. He submits that the five cheques issued by the petitioner towards the return of the bribe-amount are also dishonoured. He submits that if such delinquents are reinstated without completing the enquiry, it would not be in public interest.
6. He submits that the facts of the present case and of the reported case are entirely different. In the reported case, the concerned employee was on suspension for three years from 2011 to 2014. He also brings to my notice that even in the reported case, the suspension of the party who approached the Court was not revoked on noticing that he is served with the charge-sheet. In support of his submissions, he read out para 22 of the said decision. The same is extracted hereinbelow:
"22. So far as the facts of the present case are concerned, the appellant has now been served with a charge-sheet, and, therefore, these directions may not be relevant to him any longer. However, if the appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the respondents will be subject to judicial review."6
7. The submissions of the learned counsel have received my anxious consideration. At the very outset, it is to be noticed that the suspension order, dated 06.07.2016 was challenged by the petitioner by filing W.P.No.43021/2016. This Court disposed of the said petition with the observation, inter alia, that this Court will not interfere in the matter where the order of suspension pending disciplinary enquiry is under challenge. The challenge to the same order in this writ petition is hit by the doctrine of res-judicata.
8. I am nextly left with the examination of the articles of charges/notice, dated 20.10.2016 (Annexure-K). It is trite that mere issuance of the show cause notice or the articles of charges do not give any firm cause of action to the delinquent to approach this Court. In saying so, I am fortified by the Apex Court's judgment in the case of UNION OF INDIA & ANOTHER vs. KUNISETTY SATYANARAYANA reported in AIR 2007 SC 906. The portion under Head-Note A of the reported decision reads as follows:
7
"Ordinarily no writ lies against a charge-sheet or show cause notice. 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 show cause 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 lies when some right of any party is infringed. A mere show cause notice or charge-sheet does not infringe the right of any one. 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. 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."8
9. I may usefully refer to the Apex Court's judgment in the case of SECRETARY, MINISTRY OF DEFENCE AND OTHERS v. PRABHASH CHANDRA MIRDHA reported in (2012) 11 SCC
565. The Apex Court has this to say in para Nos. 8 and 12 of the said judgment, which are extracted hereinbelow:
"8. The law does not permit quashing of charge- sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge- sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance.
................
12. Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it 9 is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
10. As held in the afore-extracted decisions, the gravity of alleged misconduct is the relevant factor to be taken into account while considering the request for quashing the proceedings. The petitioner is facing the grave charges of taking bribery from six persons. Further, the case of the respondents is that in five cases, the petitioner returned the bribery-amounts by way of cheques but that those cheques are also dishonoured.
11. I am nextly left with examining the endorsement, dated 20.10.2016 (Annexure-K), turning down the petitioner's request for revoking his suspension. As the charge-sheet is already served on the petitioner, the Hon'ble Supreme Court's 10 decision in AJAY KUMAR's case (supra) does not come to the rescue of the petitioner in any way. In the reported case, the delinquent had not made the mutation entries in the revenue records. In the instant case, the petitioner is facing the grave charge of demanding and accepting the illegal gratification. It is to be noted that the Hon'ble Supreme Court did not interfere in the matter on noticing that the charge-sheet was served on him. In the instant case also, the charge-sheet is served on the petitioner. The enquiry proceedings have already begun.
12. Besides, the delinquent involved in the reported case was a Government servant. His mere transfer to some other place could ensure that he did not tamper with evidence in the on-going enquiry. In the instant case, the delinquent is not a Government servant. He is an employee of the University, whose offices are only in and around Shivamogga.
13. If there is two weeks' delay in passing the order continuing the suspension, the delinquent does not get the right to demand that the suspension be revoked. The demand to revoke the suspension cannot be treated, as if it is the accused's 11 right to get the statutory bail on the failure of the Police to file the charge-sheet within 60/90 days.
14. It may not be out of context to refer to what the Hon'ble Supreme Court had to say in para 68 of its decision in the case of SUBRAMANIAN SWAMY v. MANMOHAN SINGH AND ANOTHER reported in (2012) 3 SCC 64. The Apex Court has this to say in paragraph No.68 of its decision:
"68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision. Therefore, the duty of the court is that any anti- corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court 12 has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it."
15. Emphasizing the right of the citizens to have the corruption-free Government, the Hon'ble Supreme Court in the case of VINEET NARAIN AND OTHERS v. UNION OF INDIA AND ANOTHER reported in (1998) 1 SCC 226 has this to say in paragraph No.55 of its decision:
"55. These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law."13
16. In the result, I dismiss this petition. No order as to costs.
17. At this juncture, Sri Bhonsle requests that a direction be issued to the respondents to complete the on-going enquiry proceedings expeditiously. His prayer is acceded to. The respondents are directed to complete the on-going enquiry against the petitioner in accordance with law and as expeditiously as possible and in any case within three months from the date of the issuance of the certified copy of today's order.
Sd/-
JUDGE Cm/-