Delhi High Court - Orders
Sunitha Raju vs Union Of India & Ors on 24 January, 2023
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 925/2023 & CM APPLs. 3608/2023, 3609/2023,
3610/2023, 3611/2023
SUNITHA RAJU ..... Petitioner
Through: Mr. Shadan Farasat, Ms.
Hrishika Jain, Advocates
(M:9620242313, 9818009824)
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms. Shiva Lakshmi, CGSC
with Ms. Srishti Rawat, Ms.
Geetanjali, Advocates for R-1
(M:9873527771)
Ms. Ginny J. Rautray, Mr.
Navdeep Singh, Advocates for
R-2 & 3 (IIFT)
(M:9811287117)
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 24.01.2023 [Physical Hearing/ Hybrid Hearing] [This matter has been received on transfer from the Court of Hon'ble Ms. Justice Jyoti Singh.] CM APPL. 3609/2023 (u/s 151 CPC seeking exemption from filing certified/true-typed/translated copies of annexures
1. The present is an application under Section 151 CPC for exemption from filing certified/true-typed/translated copies of annexures.
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:542. Recording the undertaking on behalf of the petitioner that the defects shall be cured within a period of four weeks, exemption is allowed.
3. Application is disposed of.
CM APPL. 3610/2023 (u/S 151 CPC seeking permission to file a length synopsis and list of dates)
4. This is an application under Section 151 CPC for permission to file a length synopsis and list of dates.
5. Considering the submissions made before this Court, the exemption is allowed and the lengthy synopsis and list of dates with supporting affidavit is taken on record.
6. Application is disposed of.
CM APPL. 3611/2023 (u/S 151 CPC seeking exemption from filing clear copies of dim documents, unmarked copies of documents and leave to place on record documents with inadequate margins and small font)
7. This is an application on behalf of the petitioner seeking exemption from filing clear copies of dim documents, unmarked copies of documents and leave to place on record documents with inadequate margins and small font.
8. Recording the undertaking on behalf of the petitioner that the defects shall be cured within a period of four weeks, exemption is allowed.
9. Application is disposed of.
W.P.(C) 925/2023 & CM APPL. 3608/2023
10. The present petition has been filed with a prayer for quashing the impugned charge memorandum dated 17.01.2023 issued against Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:54 the petitioner by respondent No.3 as well as initiation of the disciplinary proceedings against the petitioner. There is a further prayer for declaration that minutes of meeting dated 12.12.2022 of Board of Management of Respondent No.2 Institute, in so far as the same purports to delegate any disciplinary functions to the Director of Respondent No.2 Institute, shall become operative only on receipt of approval of the Department of Commerce, Ministry of Commerce and Industry.
11. It is the case of the petitioner that memorandum of charges dated 25.03.2021 had been issued against the petitioner despite the fact that respondent No.3 was not a disciplinary authority under the memorandum of association of the institute. It is submitted that the said memorandum of charges was quashed by Division Bench of this Court vide order dated 09.01.2023 in LPA No. 361/2021 on the ground that the erstwhile Director was not the disciplinary authority and therefore, could not have issued the charge sheet.
12. By way of the order dated 09.01.2023, Division Bench had granted liberty to the respondents to issue fresh charge sheet to the petitioner. Thus, it is submitted that immediately thereafter on 17.01.2023 the respondent No.3, who is also a professor of the respondent No.2 Institute and is currently holding additional charge of the post of Director as a stop-gap arrangement, issued charge memorandum against the petitioner, which is exactly similar to the previous memorandum that was quashed by the Division Bench vide order dated 09.01.2023 in LPA No. 361/2021.
13. It is submitted that respondent No.3 is also an applicant for the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:54 post of Director at the respondent No.2 institute and is directly competing with the petitioner for the post of Director in respondent No.2 Institute. Thus, it is submitted that due to the intervention on the part of respondent No.3, the officials of respondent No.2 have refused to issue any vigilance clearance to the petitioner, which is necessary to consider for appointment as Director of respondent No.2 Institute. Thus, the present writ petition has been filed on behalf of the petitioner.
14. Ld. Counsel for the petitioner has drawn the attention of this Court to Annexure P - 9, which is an email dated 18.02.2020 received from Prof. Manoj Pant, Director of respondent No.2 Institute. By way of the said email dated 18.02.2020, the Director had categorically stated that any representation/grievance should be sent to the appropriate Division head, who is fully empowered to deal with any issues that may be raised by the students. Thus, it is submitted that pursuant to the aforesaid letter dated 18.02.2020, it was the stand of the Director of the respondent No.2 Institute itself that the heads of the department were fully empowered to take decision with respect to any issues that may be raised before them.
15. It is submitted that since petitioner was the Head of Department of the Graduate Studies in Management Division at that point of time, the petitioner issued a letter dated 15.03.2020, Annexure P - 12, in terms of her power as Head of the Graduate Studies in Management, in consonance with the letter dated 18.02.2020 issued by the Director. By way of the letter dated 15.03.2020, it was stated by the petitioner herein that remaining 5 exams will be conducted in June, when the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:54 students would return to campus after the summer placement. This letter was issued keeping in view the raging corona virus pandemic at that point of time.
16. After the issuance of the letter dated 15.03.2020 by the petitioner, the petitioner received office order of even date, i.e., 15.03.2020 attached as Annexure P - 13, wherein it was stated that as per the instructions of the competent authority, the petitioner was relieved of her duties as Chairperson of Graduate Studies in Management (GSM).
17. Attention of this Court has been drawn to the memorandum dated 25.03.2021, Annexure P - 27, wherein 2 charges have been levied against the petitioner. The said charges pertained to the postponement of examinations till June by the petitioner and instructing the students to leave hostel the next day. The charges also pertained to the representation dated 24.04.2020 having been made by the petitioner to the Commerce and Industries Minister without informing the institute.
18. It is submitted that though charges have been issued against the petitioner on the ground that the petitioner postponed the exams and also allowed the students to leave the hostel next day, by office order dated 16.03.2020, which is Annexure P - 15, the respondent institute itself postponed the exams owing to the corona virus pandemic. Thus, it is submitted that the charge sheet issued against the petitioner is totally frivolous, especially in view of the fact that the respondent No.2 Institute itself by office order dated 16.03.2020 has taken similar decision of postponement of the examinations.
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:5419. It is further submitted that after the quashing of the first charge sheet by the Division Bench of this Court, the second charge sheet has been issued against the petitioner by respondent No.3, who has been granted the charge of Director only as an additional charge. It is submitted that respondent No.3 not being a regular Director, does not have any authority to issue any charge sheet against the petitioner.
20. Attention of this Court has been drawn to the office order dated 05.12.2022 issued by the Indian Institute of Foreign Trade (IIFT), Annexure P - 4, wherein it is recorded that respondent No.3 herein has been given the additional charge to the post of Director of IIFT.
21. Ld. Counsel for petitioner has also handed over the copy of the letter dated 05.09.2022, issued by the respondent, IIFT, wherein the petitioner herein was given No Objection to appear in the interview for the post of Director of IIFT, despite issuance of charge sheet against the petitioner. Thus, it is contended that even now the petitioner has taken the interview for the post of Director on 19.01.2023. It is submitted that now petitioner is required to deposit the vigilance certificate, as has been directed to be submitted by way of letter dated 20.01.2023 issued by the Government of India, Ministry of Commerce and Industry, Department of Commerce. By way of the said letter dated 20.01.2023, the petitioner has been requested to submit certificate relating to her education qualification, experience as well as cadre clearance and vigilance clearance from the Cadre Controlling Authority. It is submitted on behalf of the petitioner that petitioner is not being issued the vigilance clearance, due to which the petitioner has been forced to approach this Court.
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:5422. Ld. Counsel appearing for the petitioner further submits that the charge sheet that has been issued to the petitioner post the decision of the Division Bench dated 09.01.2023, has been done in haste, despite the fact that respondent No.3 is not a regular or full time Director. It is submitted that issuance of charge sheet by respondent No.3 is vitiated as she does not have any authority to issue such charge sheet. Ld. Counsel for petitioner has contended that where the person who is given only additional charge and is not a substantive appointee, then disciplinary action cannot be initiated by such person. It is submitted that such person cannot discharge any statutory functions assigned to the post and can merely perform day to day office duties. In support of the aforesaid submission, ld. Counsel for petitioner has relied upon the judgment in the case of B.N. Dhotrad Vs. The Board of Directors/cum-Appellate Authority & Ors., ILR 2006 KAR 3163.
23. Ld. Counsel for petitioner has also drawn the attention of this Court to the charge sheet which has been issued to the petitioner. Reference has been made to Annexure P - 1, which is memorandum dated 17.01.2023, issued to the petitioner afresh after passing of the judgment dated 09.01.2023 by the Division Bench of this Court. Attention of this Court is drawn to the list of documents at page No. 80 of the writ petition to show that reliance is placed by respondents upon certain documents only and that there is no witness in support. Thus, it is contended that where documents in a charge sheet are not accompanied by any witness, then such a charge sheet as such is liable to be quashed. Ld. Counsel for petitioner has relied upon the judgment in the case of Union of India and Others Vs. Than Singh, 2019 SCC Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:54 Online Del 12023, wherein it has been held that mere production of a document is not sufficient even in a disciplinary inquiry, there has to be some witness to prove such a document.
24. Ld. Counsel for petitioner has also relied upon the order dated 06.07.2021 in SLP (Civil) diary No. 2898/2021 to contend that the aforesaid judgment as passed by Division Bench of this Court has not been interfered by the Supreme Court. He submits that charge sheet as such is liable to be quashed. Thus, there is a prayer that vigilance clearance may be issued to the petitioner.
25. Ld. Counsel for petitioner has also drawn the attention of this Court to Annexure P - 2 (Colly), which is document pertaining to delegation of powers to the Vice Chancellor/Director by the Board of Management. Ld. Counsel submits that delegation of powers to the Vice Chancellor/Director by the Board of Management does not in any manner makes reference to a person holding any additional charge. Thus, he submits that charge sheet in question has been issued by the authority who was not entitled to issue any such charge sheet.
26. It is contended that respondent No.3, who is acting Director and under whose signatures the charge sheet in question has been issued, is also one of the participants in the interview that was conducted on 09.01.2023 for appointment of Director. Thus, it is contended that the act of the respondents in not issuing the vigilance clearance to the petitioner is an act of malafide.
27. On the other hand, ld. Counsel appearing for the respondent Nos. 2 & 3 has strongly objected to the submissions made on behalf of the petitioner. She submits that the charge sheet has been issued Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:54 pursuant to the liberty as granted by the Division Bench of this Court vide order dated 09.01.2023. She further submits that respondent No.3 was holding the additional charge at the time of passing of the order dated 09.01.2023 by the Division Bench. Thus, she submits that it is not a fresh action that has been initiated by respondent No.3, but there is history to this case, due to which the charge sheet has been issued against the petitioner.
28. She further submits that petitioner was always aware that the vigilance clearance would be required by the petitioner, however, no such issue was raised before the Division Bench. Ld. Counsel for petitioner has further drawn the attention of this Court to Office Memorandum dated 28.09.2022, Annexure P - 48, wherein it is clearly recorded that vigilance clearance shall not be withheld unless a charge sheet has been issued against an officer in a disciplinary proceedings and proceedings have been pending. Thus, relying upon the said Office Memorandum dated 28.09.2022 issued by the Ministry of Personnel & Public Grievances & Pensions, Department of Personnel & Training, Government of India, it is contended that petitioner is not entitled to issuance of any vigilance clearance since charge sheet has been issued against the petitioner.
29. Ld. Counsel for respondent further submits that charge sheet as issued afresh is similar to the charge sheet that had been issued against the petitioner earlier. Thus, she submits that there is no question of any imputation of malafide against the respondent No.3.
30. Ld. Counsel for respondent further submits that petitioner had applied for the post in question way back in October 2022 and was Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:54 aware that vigilance clearance would be required by the petitioner. She further submits that the power as exercised by respondent No.3 has been exercised only as a delegated power and that respondent No.3 shall be reporting to the Board whenever next meeting is held.
31. I have heard ld. Counsels for parties.
32. In view of the submissions made before this Court, issue notice to the respondents. Notice is accepted by ld. Counsels for respondents.
33. This court has noted the fact that the charge sheet issued afresh to the petitioner has been issued by respondent No.3, who is also one of the persons who is competiting for appointment to the post of regular Director, for which interviews were held on 19.01.2023. The petitioner herself has also participated in the said interview dated 19.01.2023. Thus, considering the aforesaid facts, it is directed that vigilance clearance may be issued to the petitioner forthwith for the purposes of being considered for appointment as Director of respondent No.2 Institute. It is clarified that vigilance clearance to be issued to the petitioner, shall be subject to the outcome of the present writ petition.
34. Further, in view of the submissions made hereinabove, status quo shall be maintained by the respondents as regards the disciplinary proceedings against the petitioner.
35. List for hearing on 01.03.2023 before Roster Bench.
MINI PUSHKARNA, J JANUARY 24, 2023/au Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:27.01.2023 09:05:54