Madras High Court
The Commissioner, Kendriya Vidyalaya ... vs N. Kalavathy And The Registrar, Central ... on 10 June, 2008
Author: K. Chandru
Bench: F.M. Ibrahim Kalifulla, K. Chandru
ORDER K. Chandru, J.
1. Heard the arguments of Mr. M. Vaidyanathan, learned Counsel appearing for the petitioners, Mr. P.V.S. Giridhar, learned Counsel appearing for the first respondent and have perused the records.
2. Aggrieved by the order dated 29.8.2006 passed by the Central Administrative Tribunal [for short, 'CAT'] in O.A. No. 233 of 2006, the present writ petition has been filed by the Commissioner, Kendriya Vidyalaya Sangathan (for short, 'KVS') at New Delhi.
3. While the first respondent was working at KV School at Trichy, she was arrested on 24.10.2003 vide FIR No. 15/2003 under Sections 420, 498(A), 406, 342 and 323 IPC r/w Section 4 of the Dowry Prohibition Act and was in police custody for more than 48 hours. Therefore, she was suspended by an order dated 03.11.2003. She filed an Original Application being O.A. No. 230 of 2004 before the CAT. The said O.A. was disposed of by an order dated 05.3.2004 directing the petitioner to consider her representation. The said representation was considered by the petitioner and was rejected by a detailed order dated 21.4.2004.
4. In the meanwhile, the petitioner approached this Court with Crl. O. P. No. 16414 of 2004 challenging the criminal proceedings and also obtained an interim order on 05.5.2004 restraining the police authorities from proceeding with the criminal case.
5. A charge-memo under Rule 14 of the CCS (CCA) Rules was issued to her on 11.02.2005. The Annexure I to the charge-memo reads as follows:
THAT Smt. N. Kalavathy, Principal while functioning at Kendriya Vidyalaya No. 2, Tiruchirappalli during the year 2003 was arrested on 24.10.2003 vide FIR No. 15/2003 dated 24.10.2003 under Section 420, 498(A), 406, 342, 323 I.P.C. & Section 4 of D.P. Act by the Sub-Inspector of Police, W-4 All Women Police Station, Ashok Nagar, Chennai - 600 083 and was in police custody exceeding 48 hours in connection with dowry case based on the written complaint lodged by her daughter-in-law which is unbecoming of a Government servant under Rule 3(1)(i) and (iii) of CCS (Conduct) Rules, 1964.
6. The first respondent in the meanwhile moved the CAT with O.A. No. 303 of 2005 challenging the order dated 21.4.2004 confirming the suspension order. The CAT, by its judgment dated 26.7.2005, allowed the O.A. and restored the first respondent in service. It was held that the pendency of the criminal case need not be a bar in her continuing in service and discharging her duties as Principal of the School. The CAT also observed that the period of suspension shall be regularised only after the outcome of the disciplinary proceedings and the criminal case. In the meanwhile, the first respondent was posted as Principal in Kendriya Vidyalaya, Edumaliram, Medak Dist., Andhra Pradesh.
7. An enquiry was directed to be conducted against the first respondent. It was stated that in the enquiry, the first respondent denied the charges. After the enquiry, the Presenting Officer gave a written brief stating that the first respondent was arrested and was kept in jail in connection with the dowry offence was an admitted fact and, therefore, she was guilty of the charges. After the receipt of the written brief from the Presenting Officer, the first respondent did not submit any reply to the same but rushed to the CAT once again with O.A. No. 233 of 2006 and challenged the charge-memo dated 11.02.2005.
8. A reply statement was filed by the petitioners in June 2006. The CAT, by its order dated 29.8.2006, allowed the O.A. In paragraph 4 of the order, the CAT observed as follows:
A reading of the charge shows that the misconduct alleged is Police Custody of the applicant exceeding 48 hours. A mere custody on the basis of a criminal complaint perse cannot be construed as a misconduct under Rule 3(1) CCS (Conduct) Rules, 1964. The two clauses referred to under Rule 3(1)(i) and (iii) relate to the maintenance of absolute integrity and acting unbecoming of a Government servant. They by themselves would not be a basis of charge. The written complaint is now the subject matter of a criminal trial. Incidentally criminal proceedings were stayed by the Hon'ble High Court in criminal O.P. 590/2004. The police custody for more than 48 hours could be a ground for suspension but it cannot be stretched for the purpose of framing a charge as has been done in this case. The only document relied upon is the certified copy of the FIR and the list of witnesses provide by Sub-Inspector of Police and the final report filed by the police. There is complaint made to the higher authorities or engaging so as to frame charges in departmental proceedings. We find that the reading of charge itself does not make out grounds for proceeding for violation of Conduct Rules. For these reasons the Memorandum of Charges is liable to be set aside and accordingly the same is quashed. This will be without prejudice to the respondent proceed against the applicant in accordance with law and rules if they so decide.
9. One factual correction has to be made in relation to the criminal case. This Court in Criminal M.P. No. 5907 of 2004, by an order dated 06.9.2006, dismissed the petition filed by the first respondent after holding that there was a prima facie case against the first respondent.
10. The petitioner filed the present writ petition against the order of the CAT and also obtained an interim stay on 26.9.2007. It is only when the first respondent took out an application in M.P. No. 1 of 2008 for vacating the interim order, the matter came to be posted before this Court and with the consent of the parties, the main writ petition itself was taken up for final hearing.
11. Mr. M. Vaidyanathan, learned Counsel for the KVS submitted that the CAT was wrong in quashing the charge-memo even before the final order could be passed in the enquiry. The first respondent having participated in the enquiry, cannot, at this stage, turn back and question the charge-memo. He also submitted that subsequent to the order of CAT, the stay granted against the criminal proceedings was vacated by this Court. He further submitted that the action of the first respondent in getting involved is a serious criminal case under the Dowry Prohibition Act, which is a social evil and it cannot be overlooked by K.V. The pendency of a criminal case cannot be a bar in taking action against the first respondent. That a School Principal herself getting involved in a serious criminal case and being detained in jail, can by itself a misconduct. Apart from that, it was also stated in the charge-memo that the written complaint lodged by the daughter-in-law of the first respondent discloses a serious crime committed by her even though the offence may be unrelated to the duties discharged by her.
12. Per contra, Mr. P.V.S. Giridhar, learned Counsel for the first respondent submitted that in a matter of this nature, the petitioner cannot proceed with any independent enquiry. Being detained in a Police custody by itself cannot be a misconduct and the charge-memo as well as the written brief given by the Presenting Officer in the enquiry do not disclose any misconduct committed by the first respondent. He also submitted that allowing the petitioners to pass final orders without there being any allegation of misconduct proved with credible evidence in an enquiry held for this purpose will cause grave prejudice to her. He further submitted that the power under Article 226 of the Constitution vested on this Court need not be extended to set aside the order of the CAT, which order is legally correct. The fact that the first respondent had participated in the enquiry will not preclude her from challenging the charge-memo on the ground of its being vague.
13. We have given our anxious consideration to the rival submissions made by the parties. It is well settled that this Court, in the absence of any mala fide or want of jurisdiction, cannot interfere with a charge-memo at the threshold. The first respondent having given her explanation and participated in the enquiry, had to necessarily wait for the outcome of the enquiry. At this stage, this Court need not go into the sufficiency or otherwise of the materials placed by the petitioners in the departmental enquiry.
14. The Supreme Court in its decision [State of U.P. v. Brahm Datt Sharma and Anr.] dealt with the power of the Court in dealing with a charge memo at the show-cause stage. The following passage found in paragraph 9 will make the position clear.
Para 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.
15. The Supreme Court further vide its decision in [Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr.], in paragraph 5 observed as follows:
Para 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 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 petitioners 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.
16. Again, the Supreme Court in the judgment reported in (2006) 12 Supreme Court Cases 28 [Union of India and Anr. v. Kunisetty Satyanarayana] in paragraphs 13 to 16 held as follows:
Para 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 , Special Director v. Mohd. Ghulam Ghouse , Ulagappa v. Divisional Commissioner Mysore (2001) 10 SCC 639, State of U.P. V. Brahm Datt Sharma , etc. Para 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 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.
Para 15: Writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
Para 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.
17. Since Mr. P.V.S. Giridhar, learned Counsel very much emphasised in assailing the charge-memo as not being specific with reference to any misconduct set out in the Government Servants' Conduct Rules, it is necessary to deal with the said submission.
18. The Supreme Court dealt with a case where similar arguments were addressed about non-mentioning of specific misconduct enumerated in the Government Servants' Conduct Rules. The Supreme Court after referring to A.K. Kalra v. Project and Equipment Corporation of India Ltd. and Ranjit Thakur v. Union of India , made the following observations in paragraph 9 of its judgment in Secretary to Government and Anr. v. A.C.J. Britto :
Para 9: "The Rules applicable in this case do not specify acts of misconduct for which a delinquent officer can be punished. Rule 2 empowers the competent authorities to impose upon members of the Service penalties specified therein 'for good and sufficient reason'. Therefore, the decision of this Court in A.L. Kalra case is clearly distinguishable. Before holding that there was no justification to initiate disciplinary proceeding against the respondents, the Tribunal ought to have considered whether there was 'good and sufficient reason' for initiating such proceedings against him. It was not justified in taking that view on the ground that such an act of delinquency has not been specified in the Rules as an act of misconduct.
19. Therefore, it cannot be said that the petitioner Department was wrong in framing the charge-memo and the attack made by the first respondent against the charge-memo will have to necessarily fail. It is for the first respondent to submit her written brief in response to the brief made by the petitioner KVS and wait for the outcome of any final order to be passed in the enquiry. If any adverse order is passed, it is always open to her to pursue the remedy in the manner known to law.
20. Further, a careful reading of the charge memo, dated 11.2.2005 disclose the following facts:
a. The arrest of the first respondent on 24.10.2003 was in pursuance of FIR No. 15 of 2003, dated 24.10.2003.
b. The FIR containing allegations against the first respondent falling under Sections 420, 498(A), 406, 342, 323 I.P.C. and Section 4 of Dowry Prohibition Act on the file of the Sub Inspector of Police, W-4 All Women Police Station, Ashok Nagar, Chennai.
c. The first respondent was in police custody exceeding 48 hours with reference to the dowry case launched against her based on the written complaint lodged by her daughter-in-law.
d. The CCS (Conduct) Rules 1964, contain specific provision under Rule 3(1)(i) and (iii) where-under a government servant can be proceeded against for an unbecoming conduct.
When the above factors contained in the charge memo are considered, we are not impressed by the submission of the learned Counsel for the first respondent that there was no specific misconduct that was alleged against the first respondent in the charge memo, dated 11.2.2005 in order to interfere with the same. We are not, therefore, inclined to countenance such a submission made on behalf of the first respondent.
21. In the light of the above, the writ petition will stand allowed and the order of the CAT dated 29.8.2006 made in O.A. No. 233 of 2006 will stand set aside. However, there will be no order as to costs. Connected Miscellaneous Petitions will stand closed.