Orissa High Court
Dr. Sasmita Kumari Padhy vs Veer Surendra Sai .... Opposite Parties on 14 May, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.34700 of 2023
In the matter of an application under Article 226 and 227 of the
Constitution of India.
..................
Dr. Sasmita Kumari Padhy .... Petitioner
-versus-
Veer Surendra Sai .... Opposite Parties
University of Technology,
Sambalpur & Others
For Petitioner : Mr. S. Roy, Adv.
For Opp. Parties : Mr.N.K. Sahu, Adv.
(for O.P. Nos.1 to 3)
PRESENT:
THE HONBLE MR.JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 05.03.2025 and Date of Judgment:14.05.2025
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Biraja Prasanna Satapathy, J.
1. The present Writ Petition has been filed challenging the impugned order of punishment passed against the Petitioner vide Office Order dt.03.10.2023 under Annexure-18. Vide the said order, while disposing the proceeding initiated against the // 2 // Petitioner on 27.04.2023 under Annexure-7, Petitioner was imposed with the punishment of compulsory retirement with immediate effect.
2. It is the case of the Petitioner that Petitioner while continuing as an Associate Professor in the Department of Computer Application in Veer Surendra Sai University of Technology, Burla (in short, VSSUT), she was directed to take over the charge of Head of Department, Computer Application for a period of three (3) years vide Office Order dt.22.07.2022 under Annexure-1 so issued by the Registrar of the University-
Opp. Party No.3
3. It is contended that on receipt of the order so issued under Annexure-1, Petitioner though time and again by making necessary application prayed for regularization of all relevant and important documents/Registers prior to her taking over the charge of H.O.D of the Department of Computer Application, but the same was never considered on the face of the applications made by the Petitioner under Annexure-2.
Page 2 of 55// 3 // 3.1. On the face of such request made by the Petitioner, when vide another letter issued on 08.08.2022 under Annexure-3, Petitioner was again asked to take over the charge of H.O.D, Department of Computer Application, Petitioner again reiterated her prayer for regularization of all the documents/records prior to her taking over the charge of the Department on 10.08.2022 under Annexure-4.
3.2. It is contended that without proper appreciation of the request made by the Petitioner under Annexures-2 & 4, Petitioner vide letter dt.21.10.2022 under Annexure-5 was directed to explain in writing as to why on the face of the letter issued by the University on 22.07.2022 under Annexure-1 and further letter issued on 08.08.2022 under Annexure-3, Petitioner has failed to take over the charge of H.O.D, Department of Computer Application.
3.3. It is contended that on receipt of the show-cause issued under Annexure-5, Petitioner also gave a detailed reply on 26.10.2022 under Annexure-6 inter alia indicating therein the ground for her not taking over the charge. However, without proper appreciation of the difficulties pointed out by the Page 3 of 55 // 4 // Petitioner in her reply under Annexure-6 and so also the earlier request made under Annexures-2 & 4, a proceeding was initiated against the Petitioner vide memorandum dt.27.04.2023 under Annexure-7 inter alia with the following charge.
Article of Charges The statement of imputation of misconduct in respect of which the inquiry is proposal to be held is set out in the statement of article of charges.
Charge No.-1 Dr. Sasmita Kumari Padhy, Associate Professor in the department of Computer Application with approval of the competent authority vide office order No.VSSUT/OOR/301 dated 22.07.2022 was appointed as HOD in the department of Computer Application w.e.f 01.08.0222 with a tenure posting of 03 years. Also it was directed thereunder to take /handover charge by 31.07.2002. Dr. Padhy neithr complied the office order No.VSSUT/OOR/301 dated 22.07.2022 nor took over charge of HOD, Computer Application.
Charge No.-2 Dr. Padhy instead of complying with office order No.VSSUT/OOR/301 dated 22.07.2022 remained complainant and did not cooperate with the administration. She wa again directed vide letter No.VSSUT/Estt/2215 dated 08.08.2022 to takeover charge and report compliance on or before 12.08.2022. However, she did not comply the instruction.
Dr. Padhy neither complied the office order NO.VSSUT/OOR/301 dated 22.07.2022 nor took over charge. Again Dr. Padhy was intimated to comply vide letter No.VSSUT/Estt/2313 dated 19.08.2022 to comply the office order NO.VSSUT/OOR/301 dated 22.07.2022 positively on or before 22.08.2022. But she did not pay any heed. Dr. Padhy neither complied the office order Page 4 of 55 // 5 // No.VSSUT/OOR/301 dated 22.07.2022 nor took over charge.
Charge No.-3
Dr. Padhy in spite of receipt of letter
NO.VSSUT/Estt/2215 dated 08.08.2022 and
No.VSSUT/Estt/2313 dated 19.08.2022 with direction to take over charge as HOD of Computer Application Department did not comply the order for which she was called upon to explain her conduct/failure vide letter NO.VSSUT/Estt/2783 dated 21.10.2022 and to submit a written reply within 07 days. In reply as her written explanation, she has taken plea to justify her inaction vide her reply dated 26.10.2022 which was found to be not satisfactory.
3.4. It is contended that such a proceeding was initiated against the Petitioner in terms of the provisions contained under Rule 15 of the OCS (CC & A ) Rules, 1962 (in short, "Rules"). Learned Counsel appearing for the Petitioner contended that on receipt of the charges, so framed against the Petitioner vide memorandum dt.27.04.2023 under Annexure-7, Petitioner vide letter dt.30.04.2023 when sought for various documents in order to enable her to file the written statement of defence under Annexure-8 as well as under Annexure-9 series, but Petitioner was never provided with such documents as prayed for. Instead vide Office order dt.04.07.2023 under Annexure-10, Opp. Party No.3 appointed the Inquiry Officer to proceed with the inquiry in the proceeding so initiated against the Petitioner.
Page 5 of 55// 6 // 3.5. It is contended that Petitioner vide another representation dt.07.07.2023 under Annexure-11 though raised objection with regard to appointment of the Inquiry Officer as well as Marshalling Officer, but no action was taken either to supply the documents in order to enable the Petitioner to submit her written statement of defence or for change of Inquiry Officer as well as the Marshalling Officer. In the alternate, Petitioner was issued with a notice on 14.07.2023 under Annexure-12 asking her to participate in the inquiry.
3.6. Learned counsel appearing for the Petitioner contended that since Petitioner was never provided with the documents as requested, nor any action was taken to change the Inquiry Officer as well as the Marshalling Officer as prayed for, Petitioner could not participate in the proceeding by taking her defence. However, vide another letter issued on 04.08.2023 under Annexure-14, Petitioner when was again asked to participate in the inquiry, Petitioner taking into account the conduct of the University, did not participate in the proceeding.
But vide letter dt.05.09.2023 under Annexure-15, Petitioner was issued with the 1st show-cause along with the inquiry Page 6 of 55 // 7 // report as provided under Rule 15 (10)(i)(a) of the Rules. The Inquiry Officer in his report enclosed to Annexure-15 gave the following finding :
12. Conglomerating the analysis and findings as discussed above it is now clearly established that the CSE by her conduct has not carried out the orders or acted according to the instruction of her superior authorities so far as her official duties are concerned and thereby has violated Rule 3 of OGS Conduct Rule-1959. She has also filed to maintain absolute integrity decorum of conduct and devotion to duty and failed to discharge duty properly amount to violation of Rule 3(b) of OGS Conduct Rule-1959. In addition, CSE has committed misconduct by disobedience to the order of superior by not carrying out their orders and not acting to the instruction of her superior Authority resulting in violation of Rule 4 OGS Conduct Rule-1959. Hence the charges on all count are established and To Sum up -
Article Misconduct Violation Findings
of as mentioned in Memo Of OGSCR-
Charge Dated 27.04.2023 1959 r/w
OCS(CA&A) Rule-
1962
1 Failure to maintain absolute Rule 3 Established
integrity decorum of conduct
and devotion to duty
2. Failure to discharge duties Rule 3(b) Established
properly and indicating absence
of loyalty
3. Disobedience of order of Rule 4 Established
higher Authority and failing
to carry out order/instruction
of superior Authority
3.7. It is contended that in the meantime, challenging the proceeding as well as appointment of the Inquiry Officer with submission of the inquiry report, Petitioner though Page 7 of 55 // 8 // approached this Court in W.P.(C ) No.31857 of 2023, but the same was permitted to be withdrawn vide order dt.29.09.2023 under Annexure-16. Petitioner thereafter vide letter dt.02.10.2023 under Annexure-17, submitted her reply to the inquiry report with a prayer to withdraw the charge-sheet so initiated against her vide memorandum dt.27.04.2023.
However, it is contended that without issuing the 2nd show-
cause as provided under Rule 15(10) (i)(b) of the Rules, Petitioner was imposed with the impugned order of punishment vide Office order dt.03.10.2023 of Opp. Party No.2, by imposing the punishment of compulsory retirement with immediate effect.
3.8. Learned counsel appearing for the Petitioner vehemently contended that since the proceeding under Annexure-7 was initiated under Rule-15 of the Rules, without issuing a 2nd show-cause, proposing the punishment to be imposed in terms of the provision contained under Rule 15(10)(i)(b) of the Rules, no order of punishment could have been imposed and that too imposing the punishment of compulsory retirement, which is a major punishment Page 8 of 55 // 9 // 3.9. It is contended that since prior to such imposition of punishment, Petitioner was never issued with the 2nd show-
cause, the same is a nullity in the eye of law. In support of the same, reliance was placed to a decision of the Hon'ble Apex Court reported in (1991) 1 SCC 588, Union of India and Others Vs. Mohd. Ramzan Khan. Hon'ble Apex Court in para 13,14 & 15 has held as follows:
13. Several pronouncements of this Court dealing with Article 311(2) of the Constitution have laid down the test of natural justice in the matter of meeting the charges. This Court on one occasion has stated that two phases of the inquiry contemplated under Article 311(2) prior to the Forty-second Amendment were judicial. That perhaps was a little stretching the position. Even if it does not become a judicial proceeding, there can be no dispute that it is a quasi-judicial one. There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-
judicial and attract the principles of natural justice. As this Court rightly pointed out in the Gujarat case [(1969) 2 SCC 128 : (1970) 1 SCR 251] , the disciplinary authority is very often influenced by the conclusions of the Inquiry Officer and even by the recommendations relating to the nature of punishment to be inflicted. With the Forty-second Amendment, the delinquent officer is not associated with the disciplinary inquiry beyond the recording of evidence and the submissions made on the basis of the material to assist the Inquiry Officer to come to his conclusions. In case his conclusions are kept away from the delinquent officer and the Inquiry Officer submits his conclusions with or without recommendation as to punishment, the delinquent is precluded from knowing the contents thereof although such material is used against him by the disciplinary authority. The report is an adverse material if the Inquiry Officer records a finding of guilt and proposes a punishment so far as the delinquent is concerned. In a quasi- judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be Page 9 of 55 // 10 // affected. Prof. Wade has pointed out: [ Administrative Law, 6th edn., p. 10] "The concept of natural justice has existed for many centuries and it has crystallised into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing.... They (the courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure, to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly."
14. This Court in Mazharul Islam Hashmi v. State of U.P. [(1979) 4 SCC 537 : 1980 SCC (L&S) 54] pointed out:
"Every person must know what he is to meet and he must have opportunity of meeting that case. The legislature, however, can exclude operation of these principles expressly or implicitly. But in the absence of any such exclusion, the principle of natural justice will have to be proved."
15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.
Page 10 of 55// 11 // 3.10. A further submission was also made that since Petitioner by the time the proceeding was initiated against her was working as against the post of Associate Professor, in terms of the provisions contained under Section 20(ix) of the VSSUT Act, 2008 (in short, "Act"), the proceeding in question should have been initiated by the Board of Management of the University. Section 20(ix) of the Act reads as follows:
20(ix) To suspend, discharge, dismiss or otherwise take disciplinary action against teachers and officers of and above the rank of Assistant Registrar.
3.11. A further submission was also made that since the Petitioner after being asked to take over the charge of H.O.D of the Department of Computer Application, Petitioner raised a genuine grievance for her to take over the charge under Annexures-2 & 4, without taking a decision on such prayer made by the Petitioner, Petitioner should not have been proceeded with, in the proceeding initiated vide memorandum dtd.27.04.2023.
3.12. It is also contended that taking into account the nature of charges framed against the Petitioner vide memorandum dt.27.04.2023 under Annexure-7, punishment of Page 11 of 55 // 12 // compulsory retirement from service is also disproportionate to the alleged mis-conduct, if any. In support of the same, reliance was placed to the following decisions.
1. AIR 1983 S.C 454, Bhagat Ram Vs. State of Himachal Pradesh and Others. (Para-13 to 16)
2. AIR 1987 S.C 2386 Ranjit Thakur Vs. Union of India and Others (para-9 & 10).
3. 2009 (1) OLR 483 Jogeswar Bagh Vs. Registrar (Admn.) Orissa High Court and others (para-9 to 31)
4. 2009 (3 ) SCC 97 Ex-Constable Rambir Singh Vs. Union of India and others (para-23).
Hon'ble Supreme Court in case of Bhagat Ram, in para 13 to 16 has held as follows:
xxx xxx xxx
13. That conclusion poses another question as to what relief we should give in this appeal. Ordinarily where the disciplinary enquiry is shown to have been held in violation of principle of natural justice, the enquiry would be vitiated and the order based on such enquiry would be quashed by issuance of a writ of certiorari. It is well settled that in such a situation, it would be open to the Disciplinary Authority to hold the enquiry afresh. That would be the normal consequence.
14. We invited Mr Talukdar, learned counsel for the respondent State to address us on the question whether the game of holding Page 12 of 55 // 13 // the fresh enquiry is worth the battle. Moreso looking to the fact that there is a very minor infraction of duty leading to a trivial charge of negligence in performance of duty which has caused no loss to the Government, we are of the opinion that it would not be fair to this low-paid Class IV government servant to face the hazards of a fresh enquiry.
15. The question is once we quash the order, is it open to us to give any direction which would not permit a fresh enquiry to be held? After all what is the purpose of holding a fresh enquiry? Obviously, it must be to impose some penalty. It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Having been influenced by all these relevant considerations, we are of the opinion that no useful purpose would be served by a fresh enquiry. What option is open to us in exercise of our jurisdiction under Article 136 to make an appropriate order. We believe that justice and fairplay demand that we make an order of minor penalty here and now without being unduly technical apart jurisdiction, we are fortified in this view by the decision of this Court in Hindustan Steels Ltd., Rourkela v.A.K. Roy [(1969) 3 SCC 513 : AIR 1970 SC 1401 :
(1970) 3 SCR 343 : (1970) 1 LLJ 228] where this Court after quashing the order of reinstatement proceeded to examine whether the party should be left to pursue further remedy. Other alternative was to remand the matter that being a case of an industrial dispute to the Tribunal. It is possible that on such a remand, this Court further observed, that the Tribunal may pass an appropriate order but that would mean prolonging the dispute which would hardly be fair to or conducive to the interest of the parties. This Court in such circumstances proceeded to make an appropriate order by awarding compensation. We may adopt the same approach. Keeping in view the nature of misconduct, gravity of charge and no consequential loss, a penalty of withholding his increments with future effect will meet the ends of justice. Accordingly, two increments with future effect of the appellant be withheld and he must be paid 50 percent of the arrears from the date of termination till the date of reinstatement.
16. Accordingly, this appeal is allowed. The Order dated May 6, 1977 removing the appellant from service and the Order dated January 31, 1978 of the Chief Conservator of Forest, Himachal Pradesh, Simla dismissing his appeal and the Order of the High Court dismissing his petition in limine are quashed and set aside. The appellant is reinstated in service. His two increments with future effect shall be withheld. He should be paid 50 per cent of the arrears of salary from the date of termination till the date of reinstatement. The period between the date of termination of service and reinstatement shall be treated for other purposes as on duty. The Order reinstating the appellant in service must be carried out within four weeks from today and the arrears shall be paid within four weeks thereafter.
Page 13 of 55// 14 // Hon'ble Supreme Court in case of Ranjit Thakur in para 9 & 10 has held as follows:
xxx xxx xxx
9. The proceedings do not indicate -- this was not disputed at the hearing -- that appellant was asked whether he objects to be tried by any officer, sitting at the court-martial. This, in our opinion, imparts a basic infirmity to the proceedings and militates against and detracts from the concept of a fair trial.
10. The "Act" constitutes a special law in force conferring a special jurisdiction on the court-martial prescribing a special procedure for the trial of the offences under the "Act" Chapter VI of the "Act" comprising of Sections 34 to 68 specifies and defines the various offences under the "Act". Sections 71 to 89 of Chapter VII specify the various punishments. Rules 106 to 133 of the Army Rules, 1954 prescribe the procedure of, and before, the summary court- martial. The Act and the Rules constitute a self-contained code, specifying offences and the procedure for detention, custody and trial of the offenders by the courts martial.
Xxx xxx xxx This Court in case of Jogeswar Bagh, in para 9 to 31 has held as follows:
9. Admittedly, the process required under Rule 15 (10)(i)(a) of the Rules, 1962 to serve the copy of the inquiry report along with proposed punishment had not been complied with. More so, the question of taking into consideration his past conduct was unwarranted and impermissible as it had never been a part of the so called show cause/charge sheet. The non-issuance of second show cause along with inquiry report may not be fatal in every case if it is established that no prejudice has been caused to the delinquent employee. But in a case like instant, where inquiry had been concluded merely taking into consideration the explanation furnished by the delinquent employee to the show cause/charge-
sheet it may be fatal. In such a fact-situation, it was unwarranted for the Inquiring Officer to make comment that delinquent employee had threatened the Presiding Officer, he was arrogant and caused a great problem for the department. More so, the Disciplinary Authority could not have considered his past conduct as such a course would violates the principles of natural justice as the Petitioner had no opportunity to furnish any explanation on those issues. It is for the Opposite Parties to establish that non-compliance of the statutory requirements has not caused any prejudice at all. Proof of prejudice is unnecessary where requirement of statutory provision is mandatory. "It will come from a person who has denied justice that the person who has been denied justice is not prejudiced." (Vide S.L.Kapoor v. Jagmohan and Ors.
Page 14 of 55// 15 // MANU/SC/0036/1980: [1981]1SCR746; and State of U.P. v. Shatrughan Lal and Anr. MANU/SC/0554/1998: [1998]3SCR939.)
10. Against the order of the Disciplinary Authority, Petitioner preferred an appeal before the Appellate Committee of this Court, but the same has been dismissed by the Committee without
11. The alleged show cause/charge sheet seems to be only a notice of holding a preliminary inquiry and the purpose of holding the preliminary inquiry is only to have a finding of fact as to whether regular disciplinary proceedings are required to be held, and no punishment can be imposed on that. A preliminary Inquiry has nothing to do with the inquiry conducted after issue of charge-sheet, unless it is to be relied upon in regular inquiry, (vide Amlendu Ghosh v. District Traffic Superintendent, North-Eastern Railway, Katiyar MANU/SC/0318/1960:
(1960) IILLJ61SC; Champak Lal Chiman La Shah v. Union of India MANU/SC/0274/1963: (1964)ILLJ752SC; Government of India Ministry of Home Affairs and Ors. v. Tarak Nath Ghosh, MANU/SC/0691/1971:
(1971)ILLJ299SC; and Narayan Dattaraya Ramteerathakhar v. State of Maharashtra and Ors. MANU/SC/0526/1997: AIR1997SC2148).
12. The scope of judicial review in such matter is limited to the process of decision making and not against the decision itself as it lies to correct the errors of law or fundamental procedural requirements which may lead to manifest injustice. The Court can interfere with the impugned order in exceptional, circumstances. In exercise of such a power, the High Court cannot trench on the jurisdiction of the statutory authority to re-appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. When the conclusion of the authority is based on evidence, the Court is devoid of power to re-appreciate the evidence. Interference is permissible provided the Court comes to the conclusion that the finding of fact recorded by the authority is not based on facts or authority falls to take into consideration the relevant facts. (Vide Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh and Ors. MANU/SC/0455/1997: (1999)ILLJ947SC The General Court Marti] and Ors. v. Col. Aniltej Singh Dhaliwal MANU/SC/0902/1998 1998CriLJ1402; N.R. Nair and Ors., v. Union of India and rs. MANU/SC/0284/2001 [2001]3SCR353; and S.J.S. Business Enterprises (P) Ltd., v. State of Bihar and Ors., MANU/SC/0236/2004: AIR2004SC2421).
13. It is equally well settled that where a quasi-judicial authority record findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the order suffers from the infirmity of non-application of mind and stands vitiated, and such a finding can be held to be perverse and hence unsustainable (vide Rajinder Kumar Kindra v. Delhi Administration MANU/SC/0285/1984).
14. In Commissioner of Income Tax, Bombay & Rs., v. Mahindra & Mahindra Ltd., and Ors. MANU/SC/0181/1983:
[1983]1441TR225(SC), the Apex Court held as under:Page 15 of 55
// 16 // It must act in good faith, must have regard to all relevant considerations, must not be swayed by irrelevant considerations, must not seek to promote purposes allen to the letter or to the spirit of the legislation that gives it power to act,and must not act arbitrarily or capriciously.
15. In Smt. Shalini Soni v. Union of India MANU/SC/0227/1980:
1980CriLJ1487, the Supreme Court held:
It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.
16. The ground for interference may be where the Court comes to the conclusion that exercise of power is manifestly arbitrary unreasonably or there is manifest error in the exercise of such power or in isolation of the statutory provision or error of law apparent the face of the record. (Vide State of U.P. & Os. v. Renusagar Power Co. and Ors.
MANU/SC/0505/1988: AIR1988SC1737); Karnataka State Industrial Investment anc Development Corporation Ltd., v. Cavalet India Ltd. MANU/SC/0234/2005: (2005)45CC456; Maharashtra State Seeds Corporation Ltd., v. Hari Prasad Drupadrao Jadhao MANU/SC/8057/2006: (2006)IILL]107SC; and Mathura Prasad v. Union o India and Ors. MANU/SC/8620/2006: (2007)ILLJ1021SC
17. In CIT (Central), Calcutta v. Daulat Ram Rawatmull MANU/SC/0290/1972: [1973]871TR349(SC), the Supreme Court held as under:
There should, in our opinion, be direct nexus between the conclusion of fact arrived at by the authority concerned and the primary facts upon which that conclusion is based. The use of extraneous and irrelevant material in arriving at that conclusion would vitiate the conclusion of fact because it is difficult to predicate as to what extent the extraneous and irrelevant material has influenced the authority in arriving at the conclusion of fact.
18. In H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal and Ors. 1992 Supp. (2) SCC 312, the Supreme Court held that "if a finding of fact is arrived at by Ignoring or excluding relevant material or by taking into consideration irrelevant material or if the findings so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the findings are rendered infirm in law."
19. The scope of judicial review against quantum of punishment is also very limited. The issue has been considered by the Hon'ble Supreme Court time and again and it has been held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary and would violate the mandate of Article 14 of the Constitution. (Vide Bhagat Ram v. State of Page 16 of 55 // 17 // Himachal Pradesh and Ors. MANU/SC/0322/1983:
(1983)IILLJ1SC; Ranjit Thakur v. Union of India and Ors MANU/SC/0691/1987: 1988CriLJ158; Union of India and Ors. v.
Giriraj Sharma MANU/SC/0058/1994: (1994)ILLJ604SC; S.K. Giri v. Home Secretary, Ministry o Home Affairs and Ors. MANU/SC/0090/1996 1995 Supp (3) SCC 519; Bishan Singh and Ors. v. State of Punjab and Anr. MANU/SC/0709/1997:
(1997)ILLJ926SC; anc B.C. Chaturvedi v. Union of India and Ors.
MANU/SC/0118/1996: (1996)ILL)1231SC).
20. In Ranjeet Thakur (supra), the Apex Court observed as under
But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the Court even" as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.
21. The said Judgment has been approved and followed by the Apex Court in Union of India and Ors. v. G. Ganayutham MANU/SC/0834/1997: (2000) IILLJ648SC, and after examining elaborately the concept of reasonableness, rationality and proportionality, the same view has been reiterated.
22. In B.C. Chaturvedi (supra), after examining various earlier decisions of Supreme Court, the Court observed that in exercise of the powers of judicial review, the court cannot "normally" substitute its own conclusion or penalty. However, if the Court penalty imposed by an Authority "shocks the conscience" of the Court, it would appropriately mould the relief either directing the Authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, Court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced him to do so, though he had no intention to do so. (Vide Giriraj Sharma (supra). The Court may further examine the effect, if order is set aside or substituted by some other penalty.
23. In G. Ganayutham (supra), the Apex Court has considered the entire law on the subject and compared the Indian Law with English, Australian and Canadian Laws, and held that in case the Court comes to the conclusion that the punishment awarded is disproportionate or the Disciplinary Authority was irrational in Page 17 of 55 // 18 // imposing the punishment, the punishment cannot be quashed as even then the matter has to be remitted back to the appropriate authority for reconsideration and it is only in very rare cases that the Court might to shorten the litigation-think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority. In Aniltej Singh Dhaliwal (supra); U.P.S.R.T.C. and Ors. v. A.K. Paru MANU/SC/0030/1999:
AIR1999SC1552; and Teri Oat Estates (P) Ltd. v. U.T., Chandigarh and Ors. MANU/SC/1098/2003: (2004)2SCC130, the Apex Court has taker the same view.
24. In v. Ramana v. A.P.S.R.T.C. and Ors. MANU/SC/0539/2005:
(2005)1IILLJ725SC the Supreme Court reconsidered the whole issue, compared the Indian Law with English Law on judicial review and after placing reliance on large number of Judgments, came to the conclusion that every administrative order should be rational and reasonable and the order should not suffer from any arbitrariness. The scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscious of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, it may, in exceptional and rare cases, itself can impose appropriate punishment by recording cogent reasons in support thereof.
25. In the case of State of Meghalaya and Ors. v. Mecken Singh N. MarakAIR 2008 SC 4726, the Supreme Court has observed that a Court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefore. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the Court, cannot be subjected to judicial review.
26. in State of Madhya Pradesh and Ors. v. Hazarilal MANU/SC/0870/2008: (2008)IILLJ715SC, the Apex Court held that issue of proportionality may always be determined by the Court and Court is clear with the order of determination. While Page 18 of 55 // 19 // deciding the said case, Apex Court placed reliance on its earlier Judgments in Coimbatore District Central Cooperative Bank v. Coimbatore District Central Co-operative Bank Employees Association and Anr. MANU/SC/2117/2007 (2007)IILLJ724SC and M.P. Gangadharan and Anr. v. State of Kerala and Ors. MANU/SC/8167/2006: AIR2006SC2360.
27. In Bharat Forge Co. Ltd. v. Uttam Manohar Nakate MANU/SC/0043/2005: (2005)ILLJ738SC the Apex Court placing reliance upon its earlier Judgments in Colour-Chem Ltd. v. A.L. Alaspurkar and Ors. MANU/SC/0096/1998: [1998]1SCR663 and Regional Manager, Rajasthan Road Transport Corporation v. Sohan Lal MANU/SC/0841/2004: (2004) IIILLJ1078SC held that in case the past conduct is not: part of the charge-sheet, punishment should not be awarded considering the same, it would amounts to violation of principle of natural justice.
28. Similar view has been reiterated by the Apex Court in Indra Bhanu v. Committee, Management of M.M. Degree College and Ors.MANU/SC/0894/2003.
29. Thus, it is evident that scope of judicial review is limited to the extent that Court may examine whether inquiry has been conducted in consonance with the statutory requirement and authority has given strict adherence to the principles of natural justice, the decision has been taken relying upon relevant materials and order is not perverse being based on irrelevant materials and the delinquent had been given a fair opportunity to meet the charge and punishment is not disproportionate to the gravity of the misconduct. In exceptional circumstances, where the punishment imposed is disproportionate to the delinquency to the extent that it shocks the conscience of the Court, the Court may interfere with the quantum of punishment also.
30. If the instant case is examined in the light of the aforesaid settled legal propositions, we are of the view that the Disciplinary Proceedings have been conducted and concluded in utter disregard to the statutory provisions. The alleged show cause/charge-sheet seems to be basically to find out a fact as to whether there was sufficient material against the delinquent on the basis of which a regular inquiry could be held. The Registrar-cum-Presiding Officer treated the reply to the said show cause as a confession/admission of guilt and recommended severe punishment so that other employees may also learn a lesson. It was further observed by him that the delinquent employee had threatened the Presiding Officer concerned and he caused a problem for the department. The said remarks in his report were unwarranted and uncalled for and could not have been made as the same has not been the case of any person nor these allegations have been mentioned in the alleged show cause/charge sheet. He made unwarranted observations without any basis and foundation. The Disciplinary Authority went further Page 19 of 55 // 20 // taking into consideration the past conduct of the employee though it was not permissible for him to do so and imposed the punishment of removal basing on the same though it has never been disclosed to the Petitioner. Copy of the Inquiry Report along with second show cause notice had never been served upon the Petitioner/delinquent. Had it been served upon him, he could have furnished explanation for the same. Thus it is not a case in which it can be safely held that cause of the Petitioner had not been prejudiced. As the inquiry had been concluded relying upon the admission of the delinquent employee and that too taking into consideration the explanation furnished by the Petitioner to the so called show cause/charge-sheet the punishment so imposed is disproportionate to the extent that it shocks the conscience of the Court.
31. In view of the above, the Writ Petition succeeds and is allowed. The order of punishment is hereby set aside. The Petitioner be reinstated in service with consequential benefits. In view of the fact that Petitioner had been out of service for a long time, he might be in gainful employment, therefore the issue of grant of back wages is considered. Learned Counsel for the Petitioner fairly conceded that he would be satisfied if 20% of the back wages are awarded to the Petitioner. In view of thereof, we direct the Opposite Parties- authorities to make the payment of 20% of the back wages from the date of removal till the date of joining. The same shall be paid within a period of three months from the date of joining. No costs.
Xxx xxx xxx Hon'ble Supreme Court in case of Ramvir Singh, in para 23 has held as follows:
xxx xxx xxx
23. However, it is well known that except the cases where the punishment is shockingly disproportionate, the superior courts would not ordinarily interfere with the quantum of punishment. In State Bank of Hyderabad v. P. Kata Rao [(2008) 15 SCC 657 :
(2008) 6 Scale 575] this Court held:
"There cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with a finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment...."
Xxx xxx xxx
Page 20 of 55
// 21 //
3.13. It is accordingly contended that since prior to imposing the order of punishment, no 2nd show-
cause was issued which is a mandatory requirement as provided under Rule 15(10)(i)(b)of the Rules and the punishment of compulsory retirement from service is shockingly disproportionate to the alleged charges, the impugned order of punishment passed vide the impugned order dt.03.10.2023 under Annexure-18 is liable for interference of this Court.
4. Mr. N.K. Sahu, learned counsel appearing for the University on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the University.
4.1. It is the main contention of the learned counsel appearing for the University that since as provided under Clause-107(2) of the VSSUT Statute, there is a remedy of appeal to the Chancellor against any order passed by the Board or the Vice-Chancellor, Petitioner since has not availed the alternative remedy of appeal so available to her, the Writ Petition is not Page 21 of 55 // 22 // maintainable. In support of the same, reliance was placed on the following decisions of the Hon'ble Apex Court
1. State of U.P. Vs. Mohd. Nooh, AIR 1958 S.C page 86
2. Baburam Prakash Chandra Maheshwari v.
AntarimZila Parish Ad Now ZilaParishad, AIR 1969 S.C 556 (Para-3).
Hon'ble Supreme Court in the case of Mohd. Nooh in Para 19 has held as follows:
19. I think it is elementary that, save in exceptional cases, the courts will not interfere under Article 226 until all normal remedies available to a petitioner have been exhausted. The normal remedies in a case of this kind are appeal and revision. It is true that on a matter of jurisdiction, or on a question that goes to the root of the case, the High Courts can entertain a petition at an earlier stage but they are not bound to do so and a petition would not be thrown out because the petitioner had done that which the Courts usually direct him to do, namely, to exhaust his normal remedies before invoking an extraordinary jurisdiction. Therefore, if this order of dismissal had been made after the Constitution, the petitioner would have been expected to pursue his remedies of appeal and revision first and could not have come to the High Court in the ordinary way until he had exhausted them; and having come at that stage he could not have been turned away unheard on the ground that he was out of time because his grievance was against the original order. The very decisions to which my Lord has referred establish that for these purposes, at any rate, the earlier orders would merge in the final one. But I am not basing on technicalities. What is plain to me is that if this order of dismissal had been made after the Constitution, the petitioner would have been entitled to wait for the final order (and in the ordinary way would have been bound to wait) before coming to the High Court. Why is the position any different because he has done before the Constitution exactly what he would have been expected, and in the ordinary course bound, to do after it?Page 22 of 55
// 23 // Hon'ble Supreme Court in the case of Baburam Prakash Chandra Maheshwari, in Para 3 has held as follows:
3. It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana [1950 SCC 221 : 1950 SCR 566] "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs" and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. In State of Uttar Pradesh v. Mohammad Nooh [1958 SCR 595, 605] , S.R. Das, C.J., speaking for the Court, observed:
"In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Edn. Vol. II, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued inspite of the fact that the aggrieved party had other adequate legal remedies. In King v. Postmaster-General Ex parte Carmichael, [1928 (1) KB 291] a certiorari was issued although the aggrieved party had an Page 23 of 55 // 24 // alternative remedy by way of appeal. It has been held that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex parte Read, [1942 (1) KB 281] is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction."
There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well-settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. -- (See the decisions of this Court in Carl Still G.m.b.H. v. State Bihar [AIR 1961 SC 1615] . and Bengal Immunity Co. Ltd. v. State of Bihar [(1955) 2 SCR 603] . In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice (See State of Uttar Pradesh v. Mohammad Nooh [1958 SCR 595, 605] ).
4.2. With regard to the challenge made by the Petitioner that the proceeding since has not been initiated by the Board and accordingly it is not maintainable, learned counsel appearing for the University contended that vide the proceeding of the 43rd meeting dt.21.11.2022, so conducted by the Board of Management under Annexure-
E/3 to the counter affidavit, the Board of Management authorized the Vice-Chancellor-Opp. Party No.2 to initiate the proceeding against the Petitioner.
Page 24 of 55// 25 // 4.3. It is contended that since in terms of the decision taken by the Board under Annexure-E/3, the proceeding in question was initiated against the Petitioner by Opp.
Party No.2, no illegality or irregularity can be found with such action of the University. It is also contended that as provided under Section 12 of the Act read with Clause 15(iv) and clause 15(x) of the VSSUT 1st Statute, 2010, Vice-Chancellor is also empowered to start disciplinary proceeding against any delinquent employee.
4.4. It is also contended that in terms of the decision taken by the Board of Management in its 45th meeting held on 30.09.2023 under Annexure-H/3, the Board permitted the Vice-Chancellor to pass appropriate order in the proceeding initiated against the Petitioner. In terms of such authority given by the Board, the impugned order of punishment was imposed by Opp.
party No.2 vide Office order dt.03.10.2023 under Annexure-18. It is accordingly contended that the impugned punishment has been imposed in conformity Page 25 of 55 // 26 // with the provisions of the Act and the Statute and it cannot be called in question.
4.5. With regard to second non-issuance of the 2nd show-
cause as contemplated by the Writ Petitioner, learned counsel appearing for the University contended that there is no such mandatory requirement to issue the 2nd show-
cause, as in terms of the 42nd amendment to the Constitution of India, the only requirement is to send a copy of the inquiry report to the delinquent employee to meet the principle of natural justice. In support of the same, reliance was placed to the following decisions.
1. ShyamLal Vs. State of U.P., 1954 SCC 369
2. ECIL. v. B. Karunakar, (1993) 4 SCC 727
3. SBI v. Mohd.Badruddin, 2019(16) SCC 69 Hon'ble Supreme Court in case of ShyamLal in para 17 & 19 has held as follows:
17. Under Article 353 of the Civil Service Regulations, no pension may be granted to an officer dismissed or removed for misconduct, insolvency or inefficiency, but to officers so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration, provided that such allowance Page 26 of 55 // 27 // shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate.
Then came the Government of India Act, 1935. Section 240 is important for our purpose. The relevant portions of that section were as follows:
"240. Tenure of office of persons employed in civil capacities in India.-- (1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.
(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.
(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."
The rest of the section is not material for the present discussion. In short, sub-section (1) reiterated the English constitutional theory, sub-section (2) reproduced the restriction introduced by Section 96- B(1) of the 1919 Act and sub-section (3) gave statutory protection to the rights conferred by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules but which prior to this Act of 1935 had been held by the Privy Council in the two last cited cases to be ineffective against the Crown's plenary power of dismissal. It will, however, be noticed that in sub-section (3) the word "removed" was not used, although that word occurred in Rule 55 and the other rules quoted above. It was, however, held in I.M. Lal case [High Commr. for India v. I.M. Lall, 1948 SCC OnLine PC 25 : (1947-48) 75 IA 225 : AIR 1948 PC 121] that removal was within Section 240(3), which conclusion implies that removal is comprised within dismissal. The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial Committee there is no distinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does not.
19. The foregoing discussion necessarily leads us to the conclusion that a compulsory retirement does not amount to dismissal or removal and therefore, does not attract the provisions of Article 311 of the Constitution or of Rule 55 and that, therefore, the order of the President cannot be challenged on the ground that the appellant had not been afforded full opportunity of showing cause against the action sought to be taken in regard to him. Both the questions under consideration must also be answered against the appellant.
Hon'ble Supreme Court in case of ECIL in para 19,25,29 & 30 has held as follows:
Page 27 of 55// 28 //
19.InMohd. Ramzan Khan case [(1991) 1 SCC 588 : 1991 SCC (L&S) 612 : (1991) 16 ATC 505] the question squarely fell for consideration before a Bench of three learned Judges of this Court, viz., that although on account of the Forty-second Amendment of the Constitution, it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the enquiry officer's report along with the notice to make representation against the penalty, whether it was still necessary to furnish a copy of the report to him to enable him to make representation against the findings recorded against him in the report before the disciplinary authority took its own decision with regard to the guilt or otherwise of the employee by taking into consideration the said report. The Court held that whenever the enquiry officer is other than the disciplinary authority and the report of the enquiry officer holds the employee guilty of all or any of the charges with proposal for any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the disciplinary authority against it and the non-furnishing of the report amounts to a violation of the rules of natural justice.
However, after taking this view, the Court directed that the law laid down there shall have prospective application and the punishment which is already imposed shall not be open to challenge on that ground. Unfortunately, the Court by mistake allowed all the appeals which were before it and thus set aside the disciplinary action in every case, by failing to notice that the actions in those cases were prior to the said decision. This anomaly was noticed at a later stage but before the final order could be reviewed and rectified, the present reference was already made, as stated above, by a Bench of three learned Judges. The anomaly has thus lent another dimension to the question to be resolved in the present case.
xxx xxx xxx
25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.
29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend Page 28 of 55 // 29 // himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
30. Hence the incidental questions raised above may be answered as follows:
[i] Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.
[ii] The relevant portion of Article 311(2) of the Constitution is as follows:
"(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."
Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority the delinquent employee will have the right to receive the enquiry officer's report notwithstanding the nature of the punishment.
[iii] Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.
[iv] In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry 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 case should apply to employees in all establishments whether Government or non-Government, public or Page 29 of 55 // 30 // 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 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 enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.
[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
Hon'ble Supreme Court in case of Mohd.Badruddin in para 23 has held as follows:
23. The previous punishments could not be subject-matter of the charge-sheet as it is beyond the scope of inquiry to be conducted by the inquiry officer as such punishments have attained finality in the proceedings. The requirement of second show-cause notice stands specifically omitted by the 42nd Amendment. Therefore, the only requirement now is to send a copy of Inquiry Report to the delinquent to meet the principle of natural justice being the adverse material against the delinquent. There is no mandatory requirement of communicating the proposed punishment. Therefore, there cannot be any bar to take into consideration previous punishments in the constitutional scheme as interpreted by this Court. Thus, the non-Page 30 of 55
// 31 // communication of the previous punishments in the show-cause notice will not vitiate the punishment imposed.
4.6. Learned counsel appearing for the University also contended that since the impugned order of punishment has been passed basing on the findings arrived at by the Inquiry Officer in his report dt.01.09.2023 and on the face of the initiation of the proceeding with issuance of the notice by the Inquiry Officer, Petitioner never participated in the inquiry, this Court has got no jurisdiction to interfere with the order of punishment. In support of the same, reliance was placed to the following decisions:
1. State of Orissa Vs. Bidyabhushan Mohapatra, AIR 1963 SC 779,
2. SBI v. Mohd.Badruddin, 2019(16) SCC 69 Hon'ble Supreme Court in case of Bidyabhushan Mohpapatra in para 9 has held as follows:
9. The High Court has held that there was evidence to support the findings on heads (c) and (d) of Charge (1) and on Charge (2). In respect of Charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of Charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed". The recommendation of the Tribunal was undoubtedly Page 31 of 55 // 32 // founded on its findings on Charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether "on the basis of those charges, the punishment of dimissal should be maintained or else whether a lesser punishment would suffice". It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on Charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on Charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Article 309 of the Constitution. But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, is not justiciable : nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were "unassailable", the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any Page 32 of 55 // 33 // finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.
Hon'ble Supreme Court in case of Mohd.Badruddin in para 28 has held as follows:
28. In view of the said judgment, the findings recorded by the Division Bench that the order of punishment passed on the basis of uncommunicated reasons of disagreement recorded in respect of Charges 1 and 5 cannot be faulted with. In fact, the argument of Mr Viswanathan is that Charge 4 alone is sufficient to maintain the order of punishment of removal from service. Though, Charge 4 may be sufficient to inflict punishment but it is not necessary that Charge 4 alone will entail punishment of removal from service. While exercising the power of judicial review, it will not be within our jurisdiction to maintain the order of punishment of removal from service in view of findings recorded on Charge 4 itself. It is for the disciplinary authority to inflict punishment as it may consider appropriate after finding Charge 4 proved against the delinquent 4.7. It is also contended that since on the face of the letter issued under Annexures-1 & 3, Petitioner never took over the charge of the Department as its H.O.D and disobeyed direction of the University, the punishment imposed against the Petitioner is not disproportionate to the alleged mis-conduct. Reliance was placed to a decision of the Hon'ble Apex Court reported in the case of Indian Oil Page 33 of 55 // 34 // Corporation Ltd. Vs. Rajendra D. Harmalkar, 2022 SCC Online SC 486, Hon'ble Apex Court in para 18,19 & 20 has held as follows:
18. On the question of judicial review and interference of the courts in matters of disciplinary proceedings and on the test of proportionality, a few decisions of this Court are required to be referred to.
19. In Om Kumar [Om Kumar v. Union of India, (2001) 2 SCC 386 :
2001 SCC (L&S) 1039] , this Court, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority to order and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability of one or other of the well-known principles known as "Wednesbury principles". In Wednesbury Case [Associated Provincial Picture Houses Ltd. v. WednesburyCorpn., (1948) 1 KB 223 (CA)] , it was said that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.
20. In B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] , in para 18, this Court observed and held as under : (SCC p. 762) "18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."Page 34 of 55
// 35 // 4.8. Making all these submissions, learned counsel appearing for the University contended that taking into account the nature of charges framed against the Petitioner and non-participation of the Petitioner in the proceeding in spite of due opportunity being given to her, no illegality or irregularity can be found with the impugned order of punishment. Accordingly, it is contended that the Writ Petition is liable for dismissal.
5. To the stand taken by the University, learned counsel appearing for the Petitioner made further submissions taking into account the stand taken in the rejoinder affidavit.
5.1. With regard to availability of the alternative remedy to which the Petitioner has not availed, learned counsel appearing for the Petitioner contended that existence of alternative remedy is not always a bar for this Court to issue a Writ, while exercising the power under Article 226 of the Constitution of India. In support of his submission, reliance was placed to the following decisions:
Page 35 of 55// 36 //
1. A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani AIR 1961 S.C 1506.
2. Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1 Hon'ble Supreme Court in case of A.V. Venkateswaran in para 8 to 20 has held as follows:
8. The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned Solicitor-General was that the existence of an alternative remedy was a bar to the entertainment of a petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est. In all other cases, he submitted, Courts should not entertain petitions under Article 226, or in any event not grant any relief to such petitioners. In the present case, he urged, the High Court in appeal had expressly dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the Customs officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon. Nor was there any complaint in this case that the order had been passed without an opportunity to the importer to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor-General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respondent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the Rule as to a petitioner under Article 226 having to exhaust his remedies before he approached the Court would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed.Page 36 of 55
// 37 //
9. We see considerable force in the argument of the learned Solicitor-General. We must, however, point out that the Rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a Rule which Courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases : In Union of India v.
T.R. Varma [(1958) SCR 499 at pp. 503-504] VenkataramaAyyar speaking for the Court said:
"It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana 'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs'. Vide also K.S. Rashid and Son v. Income Tax Investigation Commission. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor."
There is no difference between the above and the formulation by Das, C.J., in State of Uttar Pradesh v. Mohammad Nooh [(1958) SCR 595 at pp. 605-607] where he observed;
"... It must be borne in mind that there is no Rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this Rule requiring the exhaustion of statutory remedies before the writ will be granted is a Rule of policy, convenience and discretion rather than a Rule of law and instances are numerous where a writ Page 37 of 55 // 38 // of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief Justice added:
"It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari."
In the result this Court held that the existence of other legal remedies was not per se a bar to the issue of a writ of certiorari and that the Court was not bound to relegate the petitioner to the other legal remedies available to him.
10. The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General formulated to the normal Rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible Rules which should be applied with rigidity in every case which comes up before the Court.
11. The question that we have now to consider is has the discretion which undoubtedly vested in the Court been so improperly exercised as to call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C.J. that the order of the Assistant Collector of Customs in assessing duty at 78¾ per cent or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of placing the resulting order beyond their jurisdiction. Secondly, as we have already indicated, we Page 38 of 55 // 39 // must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to exhaust his statutory remedies before invoking the jurisdiction of the High Court under Article 226 of the Constitution. If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the Court dealing with his petition under Article 226 to exercise its discretion in his favour. Indeed, the second passage extracted from the judgment of the learned C.J. in Mohammed Nooh case [(1958) SCR 595 at pp. 605-607] with its reference to the right to appeal being lost "through no fault of his own" emphasizes this aspect of the Rule.
12. The question, however, still remains whether in the circumstances of this case we should interfere with the decision of the High Court. In considering this, we cannot lose sight of three matters : (1) that the levy of the duty at 78¾ per cent was manifestly erroneous and cannot be supported on any reasonable construction of the items in the Tariff Schedule, (2) it was stated by the Customs authorities in answer to the writ petition, in the grounds of appeal to the High Court under the Letters Patent, as also in the statement of case before us, that the Central Board of Revenue had issued a ruling to the effect that fountain-pens with nibs or caps which were gold-plated fell within Item 61(8). This might be some indication that the adjudication by the Assistant Collector of Customs and by the Customs Collector on appeal was in pursuance of a settled policy of the entire heirarchy of the department. Without going so far as to say that a Revision to the Central Government might in the circumstances be a mere futility, we consider that this is not a matter which would be wholly irrelevant for being taken into account in disposing of the appeal before us. After all, the basis of the Rule by which Courts insist upon a person exhausting his remedies before making application for the issue of a prerogative writ is that the Court's jurisdiction ought not to be lightly invoked when the subject can have justice done to him by resorting to the remedies prescribed by statutes. (3) Lastly, the learned Solicitor-General does not dispute the correctness of the principle of law as enunciated by Chagla, C.J., his complaint is that the law as laid down by the learned Chief Justice has not been properly applied to the facts of the case before him. If the challenge to the judgment of the High Court were of the former type, this Court might have to interfere to lay down the law correctly lest error creep into the administration of justice.
Page 39 of 55// 40 // But where the error is only in the application of the law correctly understood to the facts of a particular case, we should be persuaded that there has been a miscarriage of justice in the case before us before being invited to interfere; and this the learned Solicitor-General has not succeeded in doing. It would be remembered that the question is not whether if the respondent's application were before us, we should have directed the writ to issue, but whether the learned Judges of the High Court having in their discretion which they admittedly possessed made an order, there is justification for our interfering with it. The two matters set out earlier should suffice to show that no interference could be called for in this appeal.
13. We consider, therefore, on the whole and taking into account the peculiar circumstances of this case that the High Court has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no case for interference by us in an appeal under Article 136 of the Constitution has been made out. The appeal fails and is dismissed with costs.
14. A.K. Sarkar, J.-- In this case the respondent had imported a certain number of fountain-pens plated with gold. The goods were assessed to import duty by an assessing officer of the Indian Customs under Item 61(8) of the first schedule to the Customs Tariff which dealt with "Articles, other than cutlery and surgical instruments, plated with gold or silver" and provided for a duty of 78¾ per cent ad valorem. The respondent appealed from this assessment to the Collector of Customs under Section 188 of the Sea Customs Act, 1878, on the ground that the assessment should have been under Item 45(3) of that schedule which dealt with "Fountain-pens, complete" and provided for a duty of 30 percent, ad valorem. He did not dispute that the fountain-pens imported by him were gold-plated. His appeal was dismissed. The respondent then moved the High Court at Bombay for a writ to quash the order of assessment under Item 61(8). The application was allowed by Tendolkar, J. who issued a writ of mandamus directing the Collector of Customs to release the goods upon payment of the duty specified in Item 45(3). The appeal by the Collector of Customs from the order of Tendolkar, J. to an Appellate Bench of the High Court was dismissed. The Collector has therefore filed the present appeal.
15. The first question is, whether the writ should have been refused on the ground that the respondent had another remedy, namely, an application to the Central Government under Section 191 of the Sea Customs Act to revise the order Page 40 of 55 // 41 // of the Collector. Tendolkar, J. held that the writ could issue though the other remedy had not been pursued, as the order of assessment under Item 51(8) was without jurisdiction. This was clearly wrong. The Collector had ample jurisdiction to decide under which item in the schedule the fountain-pens had to be assessed to duty, and if he made a mistake in his decision that did not make his order one without jurisdiction :
cp. Gulabdas& Co. v. Assistant Collector of Customs [AIR 1957 SC 733] . The learned Judges of the appellant Bench held that the writ was properly issued, not because the assessing authority had no jurisdiction to assess the goods under Item 61(8), but because at the date the matter had come before them, the other remedy had become barred. This again is, in my view, plainly erroneous for a party who by his own conduct deprives himself of the remedy available to him, cannot have a better right to a writ than a party who has not so deprived himself. Normally -- and the present has not been shown to be other than a normal case -- a writ of mandamus is not issued if other remedies are available. There would be stronger reason for following this Rule where the obligation sought to be enforced by the writ is created by a statute and that statute itself provides the remedy for its breach. It should be the duty of the courts to see that the statutory provisions are observed and, therefore, that the statutory authorities are given the opportunity to decide the question which the statute requires them to decide.
16. The fact that the Central Government had on a prior occasion decided, as appears in this case to have happened, that fountain-pens of the kind which the respondent had imported, were liable to duty under Item 61(8) cannot furnish any reason justifying a departure from the normal Rule or the issue of a writ without that Government having been moved under Section 191. This prior decision of the Central Government could be a reason for such departure only on the presumption that it would not change its view even if that view was shown to be incorrect. I cannot imagine that a court can ever make such a presumption. Therefore, it seems to me that it would have been proper to refuse the writ on the ground that the respondent had another remedy available to him which he had not pursued. On the present occasion, however, I do not wish to decide the case on that ground.
17. Next, I feel the gravest doubt if the case is one for the issue of a writ of mandamus. It is of interest to observe that the respondent had in his petition to the High Court himself asked for a writ of certiorari. A writ of mandamus issues in respect of a ministerial duty imposed by a statute; it cannot issue where the duty to be performed is of a judicial nature, Page 41 of 55 // 42 // except for the purpose of directing that the judicial duty should be performed, that is, a decision should be given on the question raised. In John Shortt's book on Informations, Mandamus and Prohibition it is stated at p. 256:
"If the duty be of a judicial character a mandamus will be granted only where there is a refusal to perform it in any way; not where it is done in one way rather than another, erroneously instead of properly. In other words, the Court will only insist that the person who is the judge shall act as such; but it will not dictate in any way what his judgment should be.
If, however, the public act to be performed is of a purely ministerial kind, the Court will by mandamus compel the specific act to be done in the manner which to it seems lawful."
18. It does not seem to me that the duty which the Sea Customs Act created and the performance of which was sought to be enforced by a writ in the present case, can properly be said to be a ministerial duty. That duty was to decide which item in the Customs Tariff was applicable to the respondent's goods and to realise the customs duty specified in that item. Insofar as the statute required the officer to realise the Customs levy, I find it difficult to see how it can be said to be a public duty to the performance of which the respondent had a legal right and without this right he was not entitled to the mandamus : see Ex party Napier [1852 18 QB 692] . Insofar again, as the Act required the Customs officer to choose the proper item in the Customs Tariff for assessment of the customs levy on goods, it in my view involves performance of work of a quasi-judicial nature. The observation of Das, J. in Province of Bombay v. K.S. Advani [1950 SCC 551 : (1950) SCR 621, 725] which I am about to read, fully fits this case:"If a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially". Now the Sea Customs Act empowers the Customs authorities to impose a certain duty on goods imported and this no doubt prejudicially affects the importer. The Act further clearly requires the authorities to proceed judicially in imposing that duty when a dispute arises, that is, after giving a hearing to the party affected : see Sections 29, 31 and 32 of the Act. In this case a hearing was in fact given to the respondent. This Page 42 of 55 // 43 // taken with the provisions as to a right of appeal from the decision of the first assessing officer and as to the right to move the Government in revision from the decision in the appeal, would clearly indicate that the authorities have to act judicially. In Gulabdas& Co. v. Assistant Collector [AIR 1957 SC 733] this Court proceeded on the basis that the duty of assessing the customs levy was of a judicial nature. Therefore I feel the gravest doubt, if the present is a case where a mandamus could at all issue.
19. No doubt if a mandamus could not issue because the act which the statute required to be performed was not a ministerial one but judicial in its character, the case might be a fit one for the issue of a writ of certiorari. But that writ cannot, in any event, issue unless the proceedings disclosed an error apparent on their face. In issuing a certiorari again, the Court does not examine the judicial act questioned as if it was hearing an appeal in respect of it : see SatyanarayanLaxminarayanHegde v.
MallikarjunBhavanappaTirumale [(1960) 1 SCR 890, 901] . I do not propose to discuss this question further in the present case, for it was not considered by the High Court nor raised at our Bar. I proceed on the basis that it was a case where an application for a mandamus lay.
20. The respondent, in substance, asked for and obtained a writ directing the Customs authorities to release the goods on payment of duty at the rate of 30 per cent ad valorem as prescribed by Item 45(3). This was on the basis that the duty should have been levied under that item and not under Item 61(8) as the Customs authorities had done.
Hon'ble Supreme Court in case of Whirlpool Corpn. In para 14 to 21 and 28 to 30 has held as follows:
14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held Page 43 of 55 // 44 // by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.
16.Rashid Ahmed v. Municipal Board, Kairana [1950 SCC 221 : AIR 1950 SC 163 : 1950 SCR 566] laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission [AIR 1954 SC 207 : (1954) 25 ITR 167] which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances.
17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh [AIR 1958 SC 86 : 1958 SCR 595] as under:
"But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. RamchandSobhrajWadhwani [AIR 1961 SC 1506 : (1962) 1 SCR 753] and was affirmed and followed in the following words:
"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."Page 44 of 55
// 45 //
19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. ITO, Companies Distt. I [AIR 1961 SC 372 : (1961) 41 ITR 191] laid down:
"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act."
20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "Tribunal".
Xxx xxx xxx
28. Now, the principle is that all statutory definitions have to be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statutes generally begin with the qualifying words, similar to the words used in the present case, namely "unless there is anything repugnant in the subject or context". Thus there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in the definition section, namely "unless there is anything repugnant in the subject or context". In view of this qualification, the court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words "under those circumstances". (see Vanguard Fire and General Insurance Co. Ltd. v. Fraser & Ross [AIR 1960 SC 971 : (1960) 3 SCR 857] )
29. Before considering the contextual aspect of the definition of "Tribunal", we may first consider its ordinary and simple meaning. A bare look at the definition indicates that the High Court and the Registrar, on their own, are not "Tribunal". They Page 45 of 55 // 46 // become "Tribunal" if "the proceeding concerned" comes to be pending before either of them. In other words, if "the proceeding concerned" is pending before the High Court, it will be treated as "Tribunal". If, on the contrary, "the proceeding concerned" is pending before the Registrar, the latter will be treated as "Tribunal".
30. Since "Tribunal" is defined in Section 2 which, in its opening part, uses the phrase "Unless the context otherwise requires", the definition, obviously, cannot be read in isolation. The phrase "Unless the context otherwise requires" is meant to prevent a person from falling into the whirlpool of "definitions" and not to look to other provisions of the Act which, necessarily, has to be done as the meaning ascribed to a "definition" can be adopted only if the context does not otherwise require.
5.2. It is contended that since it is not disputed by the university that on the face of the application made by the Petitioner under Annexures-2 & 4, no action was ever taken and Petitioner was never provided with the documents in order to enable her to file her written statement of defence and no 2nd show-cause was ever issued to the Petitioner as provided under Rule 15(10)(i)
(b) of the Rules, in view of such non-compliance of the statutory provisions so contained under Rule 15 of the Rules, the impugned order of punishment is liable for interference of this Court.
5.3. It is also contended that since the proceeding under Annexure-7 was initiated under Rule-15 of the Rules, the Page 46 of 55 // 47 // University is required to follow the provisions contained under Rule-15. But as found and which is not disputed as provided under Rule 15(3) of the Rules, Petitioner was never provided with the documents. Secondly as provided under Rule 15(10(i)(b) of the Rules, Petitioner was never issued with the 2nd show-cause, proposing the punishment to be imposed. Therefore, in view of such non-compliance of the statutory provisions, contained under Rule 15(3) and 15(10(i)(b) of the Rules, the impugned order of punishment is not sustainable in the eye of law.
5.4. It is also contended that taking into account the nature of charges framed against the Petitioner under Annexure-7, punishment of compulsory retirement from service is completely disproportionate to the alleged misconduct.
5.5. Making all these submissions, it is contended that the impugned order of punishment is not sustainable in the eye of law and liable to be set aside by this Court in exercise of the power of judicial review in matters involving Page 47 of 55 // 48 // judicial proceedings. In support of the power of judicial review, reliance was placed on the following decisions:
1. State of Andhra Pradesh V. S. Sree Rama Rao, 1963 SCC Online SC 6
2. B.C. Chaturvedi V. Union of India & Others, (1995) 6 SCC 749
3. Deputy General Manager(Appellate Authority) & Others V. Ajai Kumar Srivastava, (2021) 2 SCC 612 : (2021) 1 SCC (L&S) 457 : 2021 SCC OnLine SC 4 (page 626)
4. State of Karnataka Vs. Umesh (2022) 6 SCC 563, (2022) 2 SCC (Cri) 655 : (2022)2 SCC (L & S ) 321 : 2022 SCC OnLIne SC 345(page 574) Hon'ble Supreme Court in case of S. Sree Rama Rao In para 7 has held as follows:
xxx xxx xxx
7. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds.
Hon'ble Supreme Court in case of B.C. Chaturvedi in para 12 has held as follows:
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.Page 48 of 55
// 49 // When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
Hon'ble Supreme Court in case of Ajai Kumar Srivastava in para 24 has held as follows:
24.The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence.
Hon'ble Supreme Court in case of Umesh In para 22 has held as follows:
xxx xxx xxx
22. The Court in the exercise of judicial review, the Court does not act as an appellate forum over the findings of the disciplinary authority. The court does not reappreciate the evidence on the basis of which the finding of misconduct has been arrived at in the course of a discipline ary enquiry. The Court in the exercise of judicial review must restrict its review to determine whether:
(i) the rules of natural justice have been complied with;
(ii) the finding of misconduct is based on some evidence;Page 49 of 55
// 50 //
(iii) the statutory rules governing the conduct of the disciplinary enquiry have been observed; and
(iv) whether the findings of the disciplinary authority suffer from perversity; and
(v) the penalty is disproportionate to the proven misconduct.
6. I have heard Mr. S. Roy, learned counsel appearing for the Petitioner and Mr. N.K. Sahu, learned counsel appearing for the University. On consent of the learned counsel appearing for the parties and with due exchange of the pleadings, the matter was heard at the stage of admission and dispose of by the present order.
7. Having heard learned counsel appearing for the parties, considering the submission made and the materials available on record, this Court finds that the Petitioner while continuing as an Associate Professor in the Department of Computer Application, vide Office Order dt.22.07.2022 under Annexure-1, she was directed to take over the charge of H.O.D of the Department of Computer Application.
7.1. As found, petitioner on being communicated with the order dt.22.07.2022, she filed a representation on 25.07.2022 before Opp. Party No.3 under Annexure-2 with Page 50 of 55 // 51 // a prayer to regularize the records and documents of the Deptt. prior to her taking over the charges of the Department as its H.O.D. However, on the face of such representation made by the Petitioner under Anexure-2 vide letter dt.08.08.2022 under Annexure-3, Petitioner when once again was directed to take over the charge, Petitioner made a representation on 10.08.2022 under Annexure-4, with a request to the previous H.O.D of the Department to apprise her on various aspects, prior to her taking over the charge. Copy of the said representation was also provided to Opp. party No.3.
7.2. As found, without taking a decision on the request made by the Petitioner under Annexures-2 & 4, Petitioner when was issued with a show-cause on 21.10.2022 under Anneuxre-5 by Opp. Party No.3 vide order of Opp. Party No.1, Petitioner again submitted a reply to the show-cause reiterating her prayer to regularize the records and documents for her to take over the charge on 26.10.2022 under Annexure-6. However, without taking a decision either way on the request made by the Petitioner under Page 51 of 55 // 52 // Annexures-2,4 & 6, the proceeding in question was initiated against the Petitioner vide memorandum dt.27.04.2023 under Annexure-7. As found, the said proceeding was initiated under Rule-15 of the OCS (CC& A ) Rules, 1962.
7.3. On such initiation of the proceeding, Petitioner vide letter dt.30.04.2023 under Annexure-8 though requested Opp. party No.3 for supply of the documents in order to enable her to file her written statement of defence and further request was also made on 02.05.2023, 05.05.2023 and 10.05.2023 under Annexure-9 series, but without providing the Petitioner with the documents as prayed for, Inquiry Officer was appointed vide Office order dt.04.07.2023 under Annexure-10, Petitioner though raised her objection to such appointment of the Inquiry Officer by making a representation before Opp. party No.1 on 07.07.2023 under Annexure-11, but no decision was taken on such request of the Petitioner.
7.4. As found without taking any decision with regard to supply of documents and change of the Inquiry Officer, Page 52 of 55 // 53 // Petitioner vide notice dt.14.07.2023 under Annexure-12 and further notice issued on 02.08.2023 under Annexure-13 was asked to participate in the proceeding. Thereafter, Petitioner was issued with the 1st show-cause along with the inquiry report dt.01.09.2023 as provided under Rule 15(10(1)(a) of the Rules on 05.09.2023 under Annexure-15.
7.5. Petitioner though submitted a reply to the 1st show-
cause on 02.10.2023 before Opp. Party No.1 under Annexure-17, but without issuance of the 2nd show-cause notices provided under Rule 15(10)(i)(b) of the Rules, the impugned order of punishment was passed, by imposing the punishment of compulsory retirement from service vide Order dt.03.10.2023 under Annexure-18.
7.6. Since it is not disputed that without issuance 2nd show cause as provided under Rule 15(10)(i)(b) of the Rules, the impugned order of punishment has been passed, placing reliance on the decision in the case of Whirlpool Corporation as cited (supra) it is the view of this Court that alternate remedy of appeal is not a bar for this Court to interfere with the order of punishment, as the impugned order of Page 53 of 55 // 54 // punishment has been passed in total non-compliance of the principle of natural justice.
7.7. This Court on the face of the decision in the case of Mohd. Ramzan Khan as cited ( supra), is also of the view that without issuing the 2nd show-cause notice proposing the punishment to be imposed, no order of punishment could have been imposed against the Petitioner.
This Court is unable to accept the decisions relied on by the learned counsel appearing for the University with regard to availability of alternative remedy and non-issuance of the 2nd show-cause notice.
7.8. This court after going through the records and taking into account the nature of charge framed against the Petitioner in the memorandum and placing reliance in the case of Bhagat Ram as well as Ranjit Thakur, is also of the view that punishment of compulsory retirement from service is shockingly disproportionate to the alleged charges.
7.9. Therefore, in view of the aforesaid analysis, this Court while exercising the power of review in matters Page 54 of 55 // 55 // relating to disciplinary proceedings and placing reliance on the decisions in the case of S.Sree Rama Rao, B.C. Chaturvedi, A.K. Srivastav and Umesh as cited (supra) is inclined to quash the order of punishment so passed against the Petitioner vide order dt.03.10.2023 under Annexure-18.
While quashing the said order, this Court directs Opp. Party No.1 to re-instate the Petitioner in her services with passing of an appropriate order within a period of two (2) weeks from the date of receipt of this order.
7.10. However, this Court taking into account the nature of order passed by the University under Annexures-1 & 3 directs the Petitioner to take over the charge of the Department as and when the University will comply her request so made under Annexures-2 & 4.
7.11. The Writ Petition accordingly stands disposed of with the aforesaid observation and direction.
(Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Orissa High Court, Cuttack Signed by: SANGITA PATRA Dated the, 14th May 2025/Sangita Reason: authentication of order Location: high court of orissa, cuttack Date: 15-May-2025 11:15:30 Page 55 of 55