Madras High Court
Dr.R.Gowrishankar vs The Secretary on 8 April, 2019
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :08.04.2019
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.12812 of 2018
W.M.P.No.15041 of 2018
Dr.R.Gowrishankar ..Petitioner
vs
1.The Secretary,
Higher Educational Department,
Government of Tamil Nadu,
Fort St.George,
Secretariat,
Chennai-600 009.
2. The Director of Collegiate Education,
Government of Tamil Nadu,
E.Ve.Ke.Sampath Building,
Chennai-600 006.
3. The Joint Director of
Collegiate Education(Planning & Development)
E.Ve.Ke.Sampath Building,
Chennai-600 006.
4. Regional Joint Director of Collegiate Edn
Chennai Region
IASE Campus
Saidapet
Chennai-600 015.
5. The Principal,
Presidency College,
Chennai-600 005.
http://www.judis.nic.in
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6. Dr.R.Sethulatha Assistant Professor,
Presidency College,
English Department,
Chennai-600 005.
7.Dr.S.Kamatchi Assistant Professor,
Presidency College,
English Department,
Chennai-600 005. .. Respondent
Prayer: Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the
records of the impugned charge memo dated 28.03.2018 in Charge
Memo No.14424/C2/2017 of the 2nd respondent and quash the same
and consequently direct the respondents 1 to 5 to conduct enquiry
with respect to the experience certificate of respondents 6 and 7 and
the academic certificate (Ph.D) of respondent 7.
For Petitioner : Mr.V.Neethidurai
For Respondent : Mr.V.Kadhirvelu
Special Government Pleader for RR1 to 5
Mr.T.Thiageswaran
for M/s.Waran and Sai Rams for R6.
Mr.V.Ajoykhose for R7.
ORDER
The charge memo dated 28.03.2018 is under challenge in the present writ petition.
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2. The charge against the writ petitioner is extracted here under:
gpd; ,izg;g-[ I bghd;ndhp cyfehj ehuhazrhkp muR fiyf; fy;Y[}hpapd; M';fpy cjtpg; nguhrphpah; Kidth; uh/bfshpr';fh; mth;fSf;bfjpuhf fUjg;gl;Ls;s Fw;wr;rhl;od; rhuk; Fwpj;j ml;ltid gpd;tUkhW bghd;ndhp. cyfehj ehuhazrkp muRf; fiyf; fy;Y}hpapy; M';fpy cjtpg; nghuhrphpauhfg; gzpg[hpa[k; Kidth;/uh/bfshpr';fh; vd;gth; brd;id=5. khepyf; fy;Y}hpapy; gzpg[hpe;j nghJ mf;fy;Y}hpapd; M';fpyg; nguhrphpah;fs; Kidth; r/fhkhl;rp kw;Wk; Kidth;/jpUkjp//,uh/nrJyjh MfpnahUf;F ghypay; bjhe;jut[ bfhLj;jjhft[k;. gzpg[hpa[k; ,lj;jpy; gzpg[hpa[k; neuj;jpy;. gzpg[hpa[k; neuj;jpw;Fk; mg;ghYk; bjhiyngrp K:ykhft[k; neuoahft[k; ghypay; hPjpahf bjhlh;e;J bjhy;iy bfhLj;J te;Js;sPh;fs;/
3. Annexure-II to the charge memo enumerates the statement of allegations and imputation of misconduct.
4. Annexure-III denotes the list of documents relied upon.
5. Thus, there is no infirmity as such, in respect of the charge memo against the writ petitioner.
6. The contentions raised in the writ petition is that the charge http://www.judis.nic.in 4 memo has been issued with malafide intention.
7. The complainants are impleaded as respondents 6 and 7 in the present writ petition. In fact, respondents 6 and 7 are the complainants and they have given the complaint of sexual harassment against the writ petitioner long back.
8. The learned counsel appearing on behalf of the 7th respondent as well as the 6th respondent made a submission that the charge memo was framed pursuant to the complaint given by the respondents 6 and 7 long back and on earlier occasion, the 5th respondent had not initiated appropriate action in consonance with the Sexual Harrassment of Women at Workplace(Prevention, Prohibition & Redressal) Act,2013 (In short “Sexual Harassment Act”) and the 6th respondent filed W.P.No.18130 of 2017 and this Court passed a detailed order on 25.07.2017 directing the competent authorities to constitute committee under Section 4 of the Act and proceed in accordance with law. Thus, the action was initiated pursuant to the directions of this Court as well as in consonance with the provisions of the Sexual Harassment Act.
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9. The present writ petition is filed in order to escape the enquiry. The writ petitioner has to face the enquiry by submitting his documents and by adducing the evidence, if required. Contrarily, charge memo cannot be quashed merely on the ground that the complainant has given a false complaint in the present writ petition.
10. It is contended by the writ petitioner that the complaint itself is erroneous. However, the issue can never be adjudicated under Article 226 of the Constitution of India. Such complex disputes are to be adjudicated by the respective parties by submitting documents and adducing evidence. It is left open to the writ petitioner to participate in the process of enquiry in order to establish his innocence or otherwise. He cannot seek quashing of the charge memo by impleading the complainant itself.
11. The writ petitioner was placed under suspension for sometime and thereafter the order of suspension was quashed and he is now working as Assistant Professor in English, Presidency College, Chennai. Thus, the writ petitioner has to face enquiry by attending the enquiry proceedings.
12. On a perusal of the entire affidavit filed in support of the writ petition, it is apparent that the writ petitioner is attempting to http://www.judis.nic.in 6 adjudicate the issues on merits, with reference to the allegations set out in the charge memo. Such an effort can never be entertained by this Court. Contrarily, it is for the writ petitioner to prove his ignorance or innocence before the Competent Authority, at the time of conducting enquiry by the Competent Authority.
13.Therefore, this Court is of the opinion that there is no infirmity in the charge memorandum framed against the writ petitioner. A charge memo can be challenged on a limited ground and a judicial review against the charge memo is certainly limited. A charge memo can be challenged on limited grounds and the Court can entertain a writ petition on exceptional circumstances. A charge memo can be challenged if the same was issued by an incompetent authority having no jurisdiction, an allegation of mala fides is raised if the same is in violation of statutory rules. Even in case of raising the allegation of mala fides, the authority against whom such an allegation is raised, has to be impleaded as a party respondent in the writ proceedings in his personal capacity. In the absence of any such legal grounds, no charge memo can be entertained by way of writ petition.
14.Intermittent intervention in the disciplinary proceedings is not preferable. However, only on exceptional circumstances, this Court http://www.judis.nic.in 7 can issue a direction against the proceedings and not in a routine manner. Mere issuance of a call letter to the writ petitioner directing him to participate in the domestic enquiry will not give any cause of action to move this writ petition under Article 226 of the Constitution of India. Thus, the writ petition is absolutely misconceived and the grounds raised in this writ petition cannot be considered.
15. The Honourable Supreme Court of India in the case of Union of India and others Vs. Upendra Singh, reported in (1994) 3 SCC 357 and the paragraph 6 which is extracted hereunder:
“6.In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the http://www.judis.nic.in 8 disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Kamal v. Gopi Nath & Sons. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317, para 8) "Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process.
Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."
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16.In the case of Secretary, Ministry of Defence and Others Vs. Prabhash Chandra Mirdha [Civil Appeal No.2333 of 2007, Decided on May 29, 2012], the Apex Court of India held that normally, a Charge sheet is not liable to be quashed as it does not adversely affect the rights of an employee and does not give rise to any cause of action. A writ lies only when some right of a party is infringed. The charge sheet does not infringe the right of a party. It is only when a final order imposing punishment or otherwise, it may have a cause of action. Hence, writ petition challenging charge sheet by itself is not maintainable. However, it can be quashed on the ground that issuing authority being not competent to issue the same.
17.In the case of Union of India vs. Kunishetty Satyanarayana [(2006) 12 SCC 28], it was held that writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not be ordinarily exercised by quashing a charge sheet. No doubt, in some very rare and exceptional cases, the High Court can quash a charge sheet if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. http://www.judis.nic.in 10
18. In the case of Secretary, Ministry of Defence and others Vs. Prabhash Chandra Mirdha, reported in 2012 11 SCC 565, the Apex Court observed as follows:-
“10. Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. (Vide State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327] , Ulagappa v. Commr. [(2001) 10 SCC 639 : AIR 2000 SC 3603 (2)] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 :
2004 SCC (Cri) 826 : AIR 2004 SC 1467] and Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28 : (2007) 2 SCC (L&S) 304] .)
11. In State of Orissa v. Sangram Keshari Misra [(2010) 13 SCC 311 : (2011) 1 SCC (L&S) 380] (SCC pp. 315-16, para 10) this Court held that normally a http://www.judis.nic.in 11 charge-sheet is not quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that to determine correctness or truth of the charge is the function of the disciplinary authority. (See also Union of India v. Upendra Singh [(1994) 3 SCC 357 : 1994 SCC (L&S) 768 : (1994) 27 ATC 200] .)
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 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.”
19. In the case of Union of India and another Vs. Kunisetty Satyanarayana, reported in 2006 12 SCC 28, the Hon'ble Supreme Court of India, held as follows:-
http://www.judis.nic.in 12 “13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327 : JT (1995) 8 SC 331] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] , Ulagappa v. Divisional Commr., Mysore [(2001) 10 SCC 639] , State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , 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 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 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.” http://www.judis.nic.in 13
20. In view of the legal principles settled, writ petition against the charge memo cannot be entertained in a routine manner and judicial review against the charge memo is certainly limited.
21. This being the factum, the writ petitioner has to participate in the process of enquiry and it is for the competent authorities to take steps for an early disposal of the disciplinary proceedings as prolonged pendency is also against the delinquent officials.
22. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
08.04.2019 ssb Index:Yes/No Internet:Yes/No Speaking Order/Non-Speaking Order:Yes/No To
1.The Secretary, Higher Educational Department, Government of Tamil Nadu, Fort St.George, Secretariat, Chennai-600 009.
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2. The Director of Collegiate Education, Government of Tamil Nadu, E.Ve.Ke.Sampath Building, Chennai-600 006.
3. The Joint Director of Collegiate Education(Planning & Development) E.Ve.Ke.Sampath Building, Chennai-600 006.
4. Regional Joint Director of Collegiate Edn Chennai Region IASE Campus Saidapet Chennai-600 015.
5. The Principal, Presidency College, Chennai-600 005.
6. Dr.R.Sethulatha Assistant Professor, Presidency College, English Department, Chennai-600 005.
7.Dr.S.Kamatchi Assistant Professor, Presidency College, English Department, Chennai-600 005.
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