Uttarakhand High Court
Rajveer Singh vs State Of Uttarakhand And Others on 29 April, 2019
Author: N.S. Dhanik
Bench: Ramesh Ranganathan, N.S. Dhanik
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 391 of 2019
Rajveer Singh ...Appellant
Vs.
State of Uttarakhand and others ...Respondents
Mr. M.C. Pant, learned counsel for the appellant-writ petitioner.
Mr. S.S. Chaudhary, learned Brief Holder for the State of Uttarakhand-respondent
nos. 1, 8 and 9.
Mr. Rakesh Thapliyal, learned counsel with Mr. Prateek Tripathi, learned counsel
for respondent nos. 3, 4, 5 and 7.
Dated: 29th April, 2019
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble N.S. Dhanik, J.
Ramesh Ranganathan, C.J. (Oral) This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 3357 of 2017 dated 02.04.2019. Writ Petition (S/S) No. 3357 of 2017 was filed seeking the following reliefs:
"(i) Issue writ rule or direction in the nature of certiorari quashing the impugned chargesheet dated 04.09.2017 in league with order dated 19-09-2017, office memorandum dated 10-11-2017 and also to quash the order dated 05-
08-2017 and 16.09.2017 along with its effects and operation also and further issue writ rule or direction in the nature of prohibition or mandamus by restraining the respondents not take any action against the petitioner which will affect his services, service conditions and also his cause before the court as well as his defense in the pending criminal case keeping in view the facts highlighted in the body of the writ petition after calling the entire record from the respondents along with its effect and operation also.
(ii) Issue writ rule or direction in the nature of mandamus commanding and directing to the respondents to treat the petitioner in service along with all consequential benefits had it been the impugned orders were never in existence.
2(iii) Issue writ rule or direction in the nature of mandamus commanding and directing to the respondent no. 2 the Director IIT who is Patron to the ABN School to consider and take a decision on the pending representation of the petitioner dated 10.08.2017 and till such decision is taken the Manager of the society be restrained to take any action regarding the service conditions of the petitioner and also any decision as a Manager of the School keeping in view the facts highlighted in the body of the writ petition.
(iv) Issue writ rule or direction in the nature of declaration to declare that the issuance of the chargesheet and all consequential actions of the respondents including appointing of the enquiry officer and every act conducted by him as an enquiry officer is against the law and rules and a nullity and nonest in the eyes of law and void ab- initio.
(v) Issue writ rule or direction in the nature of mandamus commanding and directing to the respondent no. 1 to take all necessary steps for the compliance of the terms of the no objection certificate obtained by any institution who are running school and also direct the respondent no.5 to make any effort for the compliance of their byelaws and terms of NOC and proper composition of a committee of Management of every school, so the staff and teachers will not be victimized or deprived from their lawful rights due to illegal act of the such committee and also to direct the State Govt. for taking all steps for the purpose of implementation of School Education Act and Right to Education Act and reddressal forums for the teaching and non teaching staffs of every school irrespective of aided of non aided school in view of the facts highlighted in the body of the writ petition and as per the object of the aforesaid act and constitutional mandate.
(vi) Issue writ rule or direction appropriate in nature for awarding the suitable compensation in tune of Rs.5.00 Crore from the Manager and other persons who are instrumental for such type of tortuous and illegal act and the same be recovered from their property or such amount which this Hon'ble court may deem fir and proper in the circumstances of the case.
2. Before taking note of the contents of the order under appeal, it is useful to note the relevant facts. The appellant-writ petitioner, the 3 Vice Principal of Adarsh Bal Niketan, Senior Secondary School, IIT, Roorkee, was suspended by proceedings dated 05.08.2017, and the order of suspension was extended by proceedings dated 16.08.2017. A charge-memo was issued to the appellant-writ petitioner on 04.09.2017 and 19.09.2017. An inquiry officer was appointed, and he submitted a report pursuant to which proceedings dated 10.11.2017 were issued by the Manager of the Institution informing the appellant- writ petitioner that the inquiry officer had submitted his report in which all the charges were sustained, and the inquiry report was accepted by the School Management Committee on 09.11.2017. The said memo further records that the disciplinary authority, after considering the inquiry report and the gravity of the transgression, had proposed to impose major penalty on the appellant-writ petitioner; and a copy of the inquiry report was being forwarded to the appellant-writ petitioner for his representation/reply, if any, in terms of bye-law 47 of the CBSE Bye-laws. The petitioner was directed to submit his reply by 17.11.2017 failing which it would be considered that he had nothing to say and appropriate action, as deemed fit, would be taken. Questioning the charge-sheet issued to him and the other proceedings, including the memo dated 10.11.2017, the appellant-writ petitioner invoked the jurisdiction of this Court.
3. In the order under appeal, the learned Single Judge observed that, by means of the writ petition, the appellant-writ petitioner had challenged the charge-sheet issued to him by the Committee of Management on 04.09.2017; it transpired that the employer i.e. the Committee of Management had decided to hold departmental inquiry against the appellant-writ petitioner in respect of certain allegations against him; it is settled position of law that a charge-sheet cannot be challenged before a judicial forum unless the same has been issued by an authority who is not competent to issue the same; it was not the case here; in the present case, a charge-sheet was issued by the Manager of the Adarsh Bal Niketan, Senior Secondary School, which was competent for the purpose; and, therefore, he was not inclined to 4 entertain the writ petition. While dismissing the writ petition, liberty was granted to the appellant-writ petitioner to challenge the punishment order after conclusion of the departmental inquiry. Aggrieved thereby, the present appeal.
4. Mr. M.C. Pant, learned counsel for the appellant-writ petitioner, would submit that, from the proceedings dated 10.11.2017, it is evident that the School Management Committee (disciplinary authority) had already accepted the inquiry report; no useful purpose would, therefore, be served in permitting the Committee of Management to consider the appellant-writ petitioner's reply to the inquiry report; the very fact that the Committee of Management has not been properly constituted is evident from the proceedings of the Deputy Registrar of Societies; the appellant-writ petitioner had pointed out various irregularities, including bias of the Manager against him, by way of a representation to the Director of the Institution; even without the appellant-writ petitioner's representation being considered by the second respondent, the inquiry was being proceeded post-haste; the appellant-writ petitioner has sought a mandamus to the first respondent to take steps to comply with the terms of the no objection certificate obtained by any institution which is running a school, to ensure implementation of School Education Act and the Right to Education Act, and to provide reddressal forums for teaching and non-teaching staff; this specific prayer has not even been considered by the learned Single Judge in the order under appeal; the action taken by the respondents to proceed with, and complete the disciplinary proceedings, is contrary to the law laid down by the Supreme Court in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others : (1993) 4 SCC 727, Union of India Vs. H.C. Goel : AIR 1964 SC 364, and Nand Kishore Prasad Vs. State of Bihar and others : (1978) 3 SCC 366; the judgment of the Division Bench of the Punjab High Court in Joti Parshad Vs. Superintendent of Police and others :
AIR 1958 PUNJAB 327; and the judgment of a Division Bench of 5 this High Court in Mahesh Chandra Gupta Vs. State of Uttarakhand and others : WPSB 133 of 2015.
5. As has been noted by the learned Single Judge in the order under appeal, this Court would, ordinarily, interdict a charge-sheet only if it suffers from lack of jurisdiction. While we may not be understood to have held that in no other case would interference be justified, for it cannot be visualized or enumerated as to which class of cases, wherein a charge-sheet is impugned, should be interdicted, suffice it to observe that, ordinarily, a charge-sheet would be interdicted by this Court, in proceedings under Article 226 of the Constitution of India, if the authority, which issued the charge-sheet, lacked jurisdiction to do so, for all other contentions can as well be urged by the delinquent employee in reply to the charge-memo.
6. In the present case, the averment with regards lack of jurisdiction is stated to have been made in paragraph 7 of the writ petition, wherein the appellant-writ petitioner has stated that the Adarsh Bal Niketan, Senior Secondary School, IIT, Roorkee (for short "ABN school") was framed/formed by a Society/Trust/School Managing Committee framed/formed by the IIT Roorke through its Board of Governors and the Director; the IIT Roorkee is a Central Government organization, and the ABN School was situated on its land in its campus; the ABN School was, therefore, not absolutely a private institution and it was taking grants from IIT Roorkee, when required; as per the constitution of the Society/Trust/SMC of the ABN School, a 15 member Executive Committee was to be formed with the members referred to therein; in Section (i) and (ii), two members may be outsiders, and new office bearers would be elected, in the first meeting of the new members, for three years; the composition of the School Management Committee is in dispute; and the Deputy Registrar of Societies has also found an anomaly in the same.
67. In reply thereto, the Honorary Manager of the ABN School, in his counter affidavit dated 04.01.2018, stated that the ABN School is an unaided private school run by a Society registered under the Societies Registration Act, and it is a separate entity in the eye of law; the land on which the school is run is leased out by IIT Roorkee since its inception; and lease rent is paid to the IIT by the School.
8. In paragraph 19 of the rejoinder affidavit, filed in reply thereto, the appellant-writ petitioner stated that the Deputy Registrar, Firms, Societies and Chits, Haridwar, had issued renewal certificate for five years in the interests of students, and not on the basis of the validity of the composition of the School Management Committee; and copies of the letter dated 29.04.2016 and 30.04.2016 and noting dated 04.03.2017 were being filed. Since reliance was placed in the rejoinder affidavit, on the proceedings dated 29.04.2016 issued by the Registrar of Firms and Societies, it is necessary to make a brief reference thereto. While the Deputy Registrar of Societies has, no doubt, pointed out certain anomalies therein, it is evident from a reading thereof that it is merely a show-cause notice calling upon the School Management Committee to submit its reply to the allegations made therein. It would be wholly inappropriate for us, in proceedings under Article 226 of the Constitution of India, to take note of the tentative conclusions of the Deputy Registrar of Societies, in the show-cause notice dated 29.04.2016, to hold that the School Management Committee is not of the prescribed composition, or that the charge-sheet issued by them is without jurisdiction.
9. Since it is the only contention urged regarding the jurisdiction of the competent authority, to issue a charge-sheet, and as we are satisfied that this contention is not tenable, we shall proceed on the premise that the authority, who issued the charge-memo, was competent to do so. In this context, it is also necessary to note that the charge-memo, issued to the appellant-writ petitioner on 04.09.2017, contains three charges. The first charge is that the appellant-writ 7 petitioner had demonstrated cruelty towards students by giving corporal punishments, which is contrary to the provisions of the Right to Education Act (RTE Act, 2009). The second charge is that he had touched a student inappropriately against his will. This is said to be in violation of Section 42(2) of the CBSE Bye-laws and Section 18.0 of the ABN Service Rules. The third charge is that the appellant-writ petitioner had mentally harassed a child by lowering his dignity in front of his peers, and this was contrary to the provisions of the Right of Children to Free and Compulsory Education (RTE) Act, 2009 and contrary to the Code of Conduct prescribed under Section 42(1)(ii) of the CBSE Bye-laws and Section 17.0(b) of the ABN Service Rules.
10. While we do not wish to express any views on the aforementioned allegations, since the disciplinary inquiry against the appellant-writ petitioner is still in progress, we cannot lose sight of the fact that the allegations leveled against the appellant-writ petitioner are, undoubtedly, serious in nature; and would necessitate an inquiry to be conducted in this regard.
11. As reliance is placed by Mr. M.C. Pant, learned counsel for the appellant-writ petitioner, on the judgment of the Supreme Court, in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others : (1993) 4 SCC 727, it is necessary to note the law laid down therein. In Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others : (1993) 4 SCC 727, the Supreme court observed thus:
".....In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (AIR 1991 SC 471) (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are 8 silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question
(iv) is answered accordingly....."
(emphasis supplied)
12. The law declared by the Supreme Court in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others :
(1993) 4 SCC 727 is that, whenever the Rules require an inquiry to be held for inflicting punishment, the employee shall have the benefit of the report of the inquiry officer before the inquiry officer records its finding on the charges leveled against him. This, Mr. M.C. Pant, learned counsel for the appellant-writ petitioner, contends has been violated in the present case since, even before the appellant-writ petitioner had submitted his reply to the inquiry report, the said report was accepted by the Committee of Management. We must express our inability to agree. The law declared by the Supreme Court, in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others : (1993) 4 SCC 727, is that, on receipt of the report from the inquiry officer, the delinquent employee should be furnished a copy of the inquiry report and his objections should be called thereto, before inflicting any punishment on him. While the delinquent employee has no right to be heard on the quantum of punishment, he is entitled to file his objections to the findings recorded in the inquiry report as also to the manner in which the inquiry was held.
13. On receipt of the inquiry report, the disciplinary authority is either entitled to agree or differ with the findings recorded therein. The use of the words "accepted the report", in the impugned proceedings, would only mean that the Committee of Management has tentatively chosen not to differ therefrom. That does not, however, justify the submission that the Committee of Management 9 has already made up its mind, and furnishing a reply to the inquiry report is now an empty formality. The inquiry report merely contains the findings of the inquiry officer, the findings recorded therein are tentative in character, and it is always open to the appellant-writ petitioner to put forth all such contentions as are available to him in law, in his reply/objections to the inquiry report, and satisfy the competent authority that the inquiry report cannot form the basis of imposition of any punishment on him. The competent authority shall, undoubtedly, consider the reply to the inquiry report submitted by the appellant-writ petitioner on its merits, and shall pass a reasoned order dealing with the objections raised by him. Reliance placed by the appellant-writ petitioner, on Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others : (1993) 4 SCC 727, is therefore misplaced.
14. In Joti Parshad Vs. Superintendent of Police and others :
AIR 1958 PUNJAB 327, the Division Bench of the Punjab High Court was examining the case of an Superintendent of Police, who had been dismissed from service, and the validity of such order of dismissal was examined on the touchstone of Article 311(2) of the Constitution of India since the Superintendent of Police was, undoubtedly, a government servant. The appellant-writ petitioner is not a government servant and is, therefore, not entitled to the protection of Article 311 of the Constitution of India. In any event the said judgment is of no avail since no order of punishment has, as yet, been passed against the appellant-writ petitioner. Reliance placed on the observations of the Supreme Court, in Union of India Vs. H.C. Goel : AIR 1964 SC 364, is also misplaced since, even in the said case, the delinquent employee had been dismissed from service. In Nand Kishore Prasad Vs. State of Bihar and others : (1978) 3 SCC 366 also the delinquent employee was removed from service, and the said order of removal from service was questioned by the petitioner therein before the High Court and then the Supreme Court.10
15. In Mahesh Chandra Gupta Vs. State of Uttarakhand and others (judgment in WPSB 133 of 2015 dated 20.04.2015) a Division Bench of this Court, relying on the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others : (1993) 4 SCC 727, observed that, before the disciplinary authority takes a decision on the inquiry report and decides to proceed to take further action on the basis of the inquiry, it was incumbent upon the inquiry officer to supply a copy of the inquiry report to the delinquent. The Division Bench, thereafter, extracted paragraphs 26 to 29 and 30(iv) of the judgment in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others : (1993) 4 SCC 727, and held that the said judgment was binding on this Court under Article 141 of the Constitution, and it would apply irrespective of the Rules, which hold the field, and irrespective of whether the employee is a government servant or the employee is a non-governmental servant, public or private. The Division Bench, thereafter, held that, since the disciplinary authority had considered the inquiry report and proposed to visit the delinquent with the major punishment of removal from service, only thereafter the inquiry report was made available, and thereafter a show-cause notice was issued for securing an explanation against the proposed removal, the said procedure was in the teeth of the law laid down by the Supreme Court.
16. While the Division Bench of this Court, in Mahesh Chandra Gupta Vs. State of Uttarakhand and others (judgment in WPSB 133 of 2015), has no doubt faulted the authority, in indicating the punishment of removal in the show-cause notice issued prior to the inquiry report, it had granted liberty to the authority to issue a fresh notice seeking reply of the petitioner therein on the inquiry report, and had provided him further time to do so. In the case on hand, the appellant-writ petitioner claims to have already submitted his objections/reply to the inquiry report. Instead of quashing the notice whereby the appellant-writ petitioner was called upon to submit his 11 reply to the show cause notice, and permitting the competent authority to issue a notice afresh calling upon the appellant-writ petitioner to submit his objections to the inquiry report, we direct that the reply submitted by the appellant-writ petitioner, to the inquiry report, shall be considered by the competent authority ignoring its earlier observation, in the impugned proceedings, that a major penalty was proposed to be imposed, for, if the authority is satisfied with the appellant-writ petitioner's reply to the show-cause notice, then the disciplinary proceedings would itself necessitate being dropped, and no punishment being imposed upon him.
17. The appellant-writ petitioner claims to have submitted a representation to the Director of IIT highlighting the irregularities in the inquiry conducted, and completed, against him. The appellant- writ petitioner contends that the said representation has not been considered till date. While we see no reason to interdict the inquiry proceedings merely on the ground that the appellant-writ petitioner had submitted a representation to the Director of IIT, suffice it to make it clear that, neither the order now passed by us nor the order under appeal, shall disable the second respondent from considering the representation of the appellant-writ petitioner, and passing an order thereupon in accordance with law.
18. With regards the relief sought for, of a mandamus directing the first respondent to take action in terms of relief no. 5, we consider it appropriate to permit the appellant-writ petitioner to make a detailed representation in this regard to the first respondent, who shall examine the said representation and pass orders thereupon in accordance with law at the earliest and, in any event, not later than four months from the date of production of a certified copy of this order, along with the appellant-writ petitioner's representation. Needless to state that all contentions available to the appellant-writ petitioner in law can always be taken by him, after conclusion of the disciplinary proceedings, in appropriate legal proceedings 12
19. Subject to the aforesaid observations, the appeal fails and is, accordingly, dismissed. No costs.
(N.S. Dhanik, J.) (Ramesh Ranganathan, C.J.)
29.04.2019 29.04.2019
Rahul