Dipankar Datta, J.�To nip a disciplinary proceeding initiated against her in the bud, the petitioner (an Assistant Professor of the Department of English of Vidyasagar University) has presented this writ petition praying for an order as follows:
"b) A writ in the nature of mandamus directing the respondents to withdraw and/or recall and/or rescind the Show Cause dated 16.06.2014, the Suspension letter dated 21.07.2014 and the Charge-Sheet dated 23.07.2014 and allow the petitioner to join her services immediately and pay all consequential 2 benefits including arrears of pay to the petitioner."
The charge-sheet issued to the petitioner has been at the centre of debate in this litigation.
2. According to Mr. Basu, learned senior counsel for the petitioner, expressions used in the charge-sheet are such that the same provide sufficient reason for the petitioner to perceive that her disciplinary authority has pre-judged her guilt, and the enquiry and the subsequent steps to follow would be nothing but a mere ritual before she is punished. He further contended that the disciplinary authority did not apply his mind to the point as to whether the acts of omission/commission, as attributed to the petitioner and forming part of the charge-sheet, at all amount to misconduct warranting initiation of disciplinary proceeding against her in terms of the Vidyasagar University First Ordinances, 1985. There being a real danger of bias operating against the petitioner, he submitted that it would be an idle formality for her to participate in the proceeding and that imposition of penalty is a foregone conclusion.
In support of his submission that the charge-sheet ought to be interdicted, Mr. Basu placed reliance on the following decisions:
"1.
It was further submitted by Mr. Basu that the incident which seems to be the genesis of the charge sheet was a deputation that was proposed by members of a professors'' association, to which the petitioner owes allegiance, before the Vice-Chancellor of the University. Several members of such association were present in course of the deputation, 4 but the petitioner was singled out. This, according to him, is a clear example of hostile discrimination and relying on the decision reported in
Mr. Basu also submitted that the charge-sheet was preceded by a show-cause notice. The petitioner had duly replied to the allegations forming part of the show-cause notice in her attempt to explain the position and expected that no further step would be taken. To her utter dismay and disbelief, the charge sheet was issued against her levelling charges which were not even referred to in the show-cause notice. According to him, it is absolutely clear that the disciplinary authority is biased and the petitioner does not expect a fair proceeding. Mr. Basu, thus, prayed for an order as claimed, noted above.
3. The writ petition was opposed by Mr. Kar, learned senior counsel for the University. According to him, the writ petition ought not to be entertained because the same is premature. It was next submitted that no malice has been alleged 5 against the disciplinary authority by the petitioner and in the absence thereof, the Court may be loath to entertain the challenge to the disciplinary proceeding at this stage. Relying on the decision reported in
Endeavouring to impress the Court that the decision in A.L. Kalra (supra) ought not to be relied on, Mr. Kar submitted that the ratio of such decision had been explained in subsequent decisions of the Supreme Court and hence, before applying the law laid down in the cited decision the facts of the case required careful examination. He submitted that according to the Bench, a trivial matter had travelled to it for its consideration. An order of dismissal was passed against the appellant and the decision is clear manifestation that the Bench was offended at the appellant being dismissed for a trivial offence, which was ultimately set aside. However, the charges against the petitioner, prima facie, are serious and 6 not only confined to the subject deputation but also relate to remissness on her part in discharging the duties of a professor and that action as authorized by the relevant Ordinances was initiated. That apart, it was submitted that the decision in A.L. Kalra (supra) would reveal the order of dismissal being challenged before the High Court following a sham enquiry and it is not that the decision was rendered at the stage of the charge-sheet. He, therefore, urged that the decision in A.L. Kalra (supra) ought not to be followed.
Mr. Kar next pointed out that the decisions in Sunil Kumar Mukherjee (supra) and Tapan Kumar Das (supra) would reveal that the High Court was approached after culmination of the disciplinary proceedings resulting in orders of punishment being passed whereas in Khaitan (India) Limited (supra), the award of the Industrial Tribunal directing reinstatement of the workman was under challenge. He submitted that in none of the said decisions did the Court grant relief based solely on the ground that the charge-sheet disclosed a closed mind; on the contrary, ultimate relief to the perceived delinquent 7 followed on manifold grounds, including the ground that the charge-sheet expressed pre-judgment of guilt. He, accordingly, contended that this is not the proper stage for examining the point raised by the petitioner.
Referring to the decision in Vijay Singh (supra), the Court''s attention was invited to the fact that subsequent decisions of the Supreme Court which have been pronounced upon consideration of the decision in A.L. Kalra (supra) and holding that the latter decision does not lay down an inflexible rule of law of universal application, were not placed before the Bench and it is in such circumstances that the Bench observed that it cannot be left to the vagaries of the employer to say ex post facto that some acts of omission or commission, nowhere found to be enumerated in the relevant rules as misconduct, is nonetheless a misconduct. Reacting to the decision in Oryx Fisheries (P) Ltd. (supra), Mr. Kar submitted that the registration certificate of the appellant was cancelled by an order dated March 19, 2008 without giving the appellant any hearing and without citing any reason. An appeal 8 preferred against such order failed, whereafter the High Court was approached. Although the High Court declined to interfere, the Supreme Court interfered not only on the ground that the show-cause notice gave an impression that the competent authority had prejudged the guilt of the appellant at the stage of show-cause notice itself but also on the ground that the reply to the show-cause notice was not considered and a non-speaking order of cancellation was passed. Attention of the Court was drawn to paragraph 37 of the decision where it was observed that:
"the bias of the third respondent which was latent in the show-cause notice became patent in the order of cancellation of the registration certificate. The cancellation order quotes the show-cause notice and is a non-speaking one and is virtually no order in the eye of the law."
Mr. Kar urged that having regard to the nature of high office held by the petitioner, the University reasonably expects a responsible behaviour that is commensurate with her status. It was found that in course of the subject deputation, her demeanour was not proper. There were other allegations too that she may have indulged in acts of omission/commission, which are unbecoming of a professor of the 9 University. That is precisely the reason why charge has been levelled against her in respect of such incident as well as the other incidents, prima facie, giving rise to an impression that she may have committed acts of indiscipline. The mere fact that the word ''guilty'' has been used in some of the articles of charge do not vitiate the disciplinary proceeding, which is at its nascent stage, and if the petitioner is able to satisfy the disciplinary authority by replying to the charges that there has been no misconduct/misdemeanour on her part, the disciplinary authority may not even proceed to conduct an enquiry.
The decision in Sengara Singh (supra), it was also submitted by Mr. Kar, is not at all appropriate for deciding the present controversy. He referred to the facts of that case and submitted that reinstatement of the appellant was directed only upon the Court arriving at a finding that there was arbitrary picking and choosing for reinstatement after mass dismissal, which was violative of Article 14 of the Constitution. He accordingly prayed for dismissal of the writ petition.
4. In reply, Mr. Basu invited my attention to Prabhash Chandra Mirdha (supra) and submitted that no law has been laid down therein that a charge-sheet can never be questioned. The word "ordinarily" has been consciously used, which makes the position clear that in an exceptional case a Court may be justified in interfering with a charge-sheet. This being an exceptional case, he urged that the Court''s interference is warranted to set things right.
5. The parties have been heard at length. The three issues that arise for decision are:
"(i) whether the petitioner is justified in perceiving, at the stage of issuance of the charge-sheet, that her disciplinary authority has prejudged the guilt and has called upon her to respond to dispel the conclusions drawn against her;
(ii) whether the disciplinary authority could have issued the charge-sheet viewing the alleged acts of omission/commission of the petitioner as misconduct, in the absence of enumerated misconduct in the Ordinances; and
(iii) whether the charge-sheet is defective on the ground that it calls upon the petitioner to meet certain allegations, which were not there in the show-cause notice."
6. I am afraid, none of the issues can be answered in favour of the petitioner and against the University.
7. The grounds on which a charge-sheet may be interfered with even before an enquiry has commenced for unearthing the truth, is no longer res integra. In the decision reported in
"20..............That it is within the administrative domain and exclusive discretion of the disciplinary authority to commence disciplinary proceedings and to continue it after issuance of the charge-sheet cannot be doubted. Such proceedings, however, can be questioned and interdicted on grounds of proved mala fide, patent bias, manifest lack of jurisdiction and other grounds (not possible to be laid down exhaustively) which might shock the conscience of the Court."
8. In a decision of recent origin reported in
9. Apart from the decision in V.K. Khanna (supra), no authority has been cited where the Court interfered with the charge-sheet before the perceived delinquent responded thereto.
10. The facts of V.K. Khanna (supra) have been adverted to by me in some details in the decision in Purushottam Dubey (supra) and, hence are not repeated. Suffice it to note, the charge-sheet there was not challenged on the ground that it contained expressions of pre-judgment of guilt; on the contrary, the charge-sheet was challenged on the specific grounds of bias and mala fides. The biased mindset was discerned from the fact that despite the time given for responding to the charge-sheet not having expired, the Chief Minister had announced the appointment of a Judge of the High Court as the enquiry officer. The Bench took into consideration the undeniable fact arising out of the said announcement that the enquiry would proceed, irrespective of the reply. It is such challenge that succeeded before the High Court and its decision was 13 upheld by the Supreme Court. The decision in V.K. Khanna (supra), therefore, is not an authority for the proposition that a charge-sheet could be interfered with based on the expressions and terminology used therein disclosing pre-judgment of guilt. It is rather an authority for the proposition the following passage reflects:
"33. While it is true that justifiability of the charges at the stage of initiating a disciplinary proceeding cannot possibly be delved into by any court pending inquiry but it is equally well settled that in the event there is an element of malice or mala fide, motive involved in the matter of issue of a charge-sheet or the authority concerned is so biased that the inquiry would be a mere farcical show and the conclusions are well known then and in that event law courts are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official. It is not a question of shielding any misdeed that the Court would be anxious to do, it is the due process of law which should permeate in the society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High Court, in the contextual facts, has delved into the issue on that score. On the basis of the findings no exception can be taken and that has been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of the proceedings."
11. While deciding Purushottam Dubey (supra), I also examined the All India Services (Discipline and Appeal) Rules, 1969, which seemed to me to be the applicable 14 rules governing disciplinary proceedings against a member of the All India Service holding equal rank as Mr. V.K. Khanna himself. Having regard to the provisions of Rule 8 thereof, I found that it was not open to the Chief Minister to announce appointment of a Judge as the enquiry officer even before receipt of reply from the charged officer. I have no hesitation in holding that the facts in the case of V.K. Khanna (supra) are singularly singular and to attract the ratio thereof to a particular case, the facts have to bear very close resemblance or else a Court may decline to follow the law laid down therein by citing the principle laid down in
12. The decision in Tapan Kumar Das (supra) has been cited on behalf of the petitioner. It would appear from a reading thereof as well as the decisions referred to therein that two distinct sets of cases can be culled out where upon conclusion of disciplinary proceedings, this Court viewed the expressions and terminology used in the relevant charge-sheets as disclosing and not disclosing any pre-judgment of guilt. Those decisions where the Court expressed disapproval and 15 held against the expressions and terminology are reported in (1974)2 SLR 466 (Meena Janah v. Deputy Director, Tourism), 79 CWN 39 (State of West Bengal v. Sati Prosad Roy),
13. I have considered the principles of law laid down in the aforesaid decisions and my understanding thereof is as follows. It is settled law that the real purpose of initiating a disciplinary proceeding is to inquire as to whether the facts relating to delinquency, prima facie ascertained against a charged officer/staff, are correct or not. The purpose cannot be to cause a secret inquiry against him and to form a positive and firm view about his complicity in the alleged misconduct and thereafter to give him an opportunity to dispel the conclusion already drawn against him. Charges framed must be clear and must not suffer from any ambiguity or vagueness. If the charge is not expressed in clear and certain terms, then the officer/staff is likely to be misled and suffer prejudice for the vagueness in the charge-sheet, not knowing the case he has to meet. A charge-sheet has to be read in a common sense way to see that there is a plain statement of an act complained as wrong, so that the officer/staff complained against may raise effective defence. A technically and legalistically strict view would have to be eschewed. Whether of not a disciplinary authority has a closed and pre-judged mind at the inception of disciplinary proceeding cannot really be comprehended only by having a look at the expressions used in the charge sheet. Expressions used, at times, may be deceptive. A disciplinary proceeding may be ruled to have been initiated with closed and pre-judged mind if from the 17 attending circumstances such a conclusion can reasonably be drawn, even though there is a proliferation of non-injurious expression in the charge sheet like "alleged acts", "prima facie guilty", "tentative view", etc. and the charge-sheet appears to be perfectly worded; whereas, a proceeding initiated absolutely bona fide, may not be interdicted despite definite expressions in the charge-sheet which might give an impression in the mind of the charged officer/staff that nothing remains to be decided and that the same has been initiated only to complete a formality in law, unless of course surrounding circumstances are such that the Court is convinced that there has been deflection of justice. A charge-sheet has to be construed in a reasonable manner and too much legalism cannot be expected of a domestic enquiry. If apart from the inappropriately worded charge-sheet there is no other incriminating circumstance having the effect of vitiating the proceedings culminating in an order of penalty, it would be prudent exercise of judicial discretion not to interfere.
14. Bearing the above in mind, the charge-sheet impugned in the writ petition has to be considered.
15. Bare perusal of the charge-sheet would reveal that the petitioner has been charged with acts of omission/commission which, according to the disciplinary authority, amount to misconduct/misdemeanour. It is no doubt true that in the concluding paragraph of each article of charge it is recorded that the petitioner is ".... guilty of insubordination", ".... guilty of lowering the prestige of the University", ".... misconducted herself, ".... denigrated and tarnished the reputation of Vidyasagar University in the eye of the public at large", ".... guilty of dereliction of duty which is wholly unbecoming of a member of a teaching faculty....", etc. Question that would naturally arise at this stage is, whether these expressions per se are indicative of a pre-judged mind.
16. It is axiomatic that should the petitioner wish to deny the charges and her disciplinary authority is not satisfied with such response, he may in his discretion decide for or against an enquiry. If an enquiry is held, it cannot be gainsaid that the petitioner has to be afforded reasonable opportunity of defence. If at all the enquiry culminates in a report submitted by the 19 enquiry officer concluding that all or any of the charge(s) stand(s) established, the petitioner would obviously have to be extended opportunity to submit her comments in regard to the enquiry officer''s report; and before a final call is taken by the disciplinary authority, he has to apply his mind not only to the evidence collected during the enquiry but also the petitioner''s comments against the report of enquiry. In the event the petitioner is punished upon acceptance of the report of enquiry (the enquiry supposedly being conducted in compliance with principles of natural justice) and a writ petition is presented challenging the order of punishment solely on the ground that the charge-sheet contained expressions and terminology disclosing prejudgment of guilt by the disciplinary authority, would the challenge succeed only on such ground? The answer, to my mind, cannot but be in the negative. The Division Bench in Biswanath Mukherjee (supra), it is noticed, ordered a remand because in the judgment under appeal, the learned trial judge only decided the point that the charge-sheet was defective, based entirely on interpretation of two expressions "found" 20 and "giving rise to presumption" therein, without deciding the other points. The decisions cited by Mr. Basu are authorities for the proposition that if the enquiry has not been conducted in accordance with law and the disciplinary authority himself has acted in a manner demonstrating bias against the charged officer/staff, the fact that there has been deflection of justice would relate back to the date on which the charge-sheet was issued containing expressions and terminology evincing pre-judgment of guilt followed by other steps not in accordance with law, and considering the totality of the circumstances the Court may declare the proceedings to be vitiated on the ground that the petitioner had to face a disciplinary authority who was biased and partisan from the very beginning and that the proceeding was merely an eyewash.
17. It is too early for the Court to observe with conviction that the disciplinary authority in the present case has pre-judged the petitioner''s guilt and is bent upon penalising her, having made up his mind.
18. The charge-sheet does not deserve to be interfered with for the reasons as above, at this stage, on the ground 21 of the same containing expressions and terminology disclosing pre-judgment of guilt. However, I further hold that the charge-sheet is not be interdicted either on the ground of lack of authority or proved mala fide as no such case has been set up. The first issue is answered accordingly.
19. Insofar as the question as to whether the acts of omission/commission of the petitioner amount to misconduct and reliance placed by Mr. Basu on the decision in A.L. Kalra (supra) are concerned, I can do no better than refer to the decision reported in
"7. What was, however, contended on behalf of the respondent was that in absence of any rule treating non-compliance with an order of a superior police officer or non-appearance before a Medical Board as an act of misconduct no disciplinary proceedings should have been initiated against him for the said act of delinquency. In support of this submission the learned counsel relied upon the decision of this Court in A.L. Kalra v. Project and Equipment Corpn. of India Ltd. In that case, disciplinary proceedings were initiated against A.L. Kalra by the Corporation for committing an act of misconduct under Service Rule 4(1)(i) and (iii) which prescribed that every employee of the Corporation shall at all times maintain absolute integrity and do nothing which is unbecoming of 22 a public servant. Rule 5 prescribed various misconducts for which action could be taken against an employee governed by the rules. Taking note of the fact that Rule 4 was given the heading ''General'' and Rule 5 was given the heading ''Misconduct'' this Court took the view that the draftsmen of the Rules made a clear distinction about what would constitute misconduct. It was under these circumstances this Court observed that (SCC p. 330, para 22)
''failure to keep such high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct unless the specific conduct falls in any of the enumerated misconduct in Rule 5.''
Rule 4 was regarded as vague and of general nature and in that context-it was further observed that where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not be camouflaged as misconduct. Construing the rules this Court held that (SCC p. 331, para 23) ''Rule 4 styled as ''General'' specifies a norm of behaviour but does not specify that its violation will constitute misconduct.''
Rule 4 was thus construed as not specifying a misconduct. Thus the decision in that case turned upon the scheme of those rules and the construction placed upon Rules 4 and 5 of those rules. This Court in that case has not laid down as a general principle that if an act is not specified by rules to be a misconduct then it cannot be regarded as such and an employee cannot be punished for committing such an act."
20. In the decision reported in
"33. It is not and cannot be said to be a precedent on the point that the employer in no circumstances can proceed against its employee in absence of rule defining and/or specifying misconduct.
34. Alleged misconduct of Kalra was trivial. The report against him was found to be on ''ipse dixit''. The Supreme Court held that Rule 4(1)(i) did not specify that its violation will constitute misconduct.
35. It was stated therein that Rule 4 does not specify a misconduct. It was held Kalra did not commit any misconduct by violating ''Advance Rules''. The Apex Court found ''the transaction may itself provide for repayment and the consequence of failure to repay or to abide by the Rules. This has been done in this case. Any attempt to go in search of a possible other consequence of breach of contract itself appears to be arbitrary and even motivated.
36. The Supreme Court in Kalra observed ''How did the question of integrity arise passes our comprehension''. The Supreme Court found that Rule 4(1)(i) was not only attracted but no attempt was made to sustain it. It found the first head of charges to be an eye wash.
*****
39. Thus, the Supreme Court in ''Kalra'' did not lay down any inflexible rule that before a delinquent can be proceeded with by the employer ''Misconduct'' has to be defined with precision; otherwise the disciplinary proceeding shall fail."
21. It would thus appear that what this Court held in 1994 was echoed by the Supreme Court in 1997.
22. At the stage a charge-sheet is drawn up by the disciplinary authority against an officer/staff who is perceived to be a delinquent, the disciplinary authority is the sole judge of facts and whatever is stated in the charge-sheet would have to be read and considered as correct, and thereupon if a case of alleged misconduct transpires, the defence of the charge-sheeted officer/staff would not at all be material and relevant and he ought to be left free to respond to the charge-sheet. A complete answer to the submission of Mr. Basu that there has been misconduct must be traceable in the statute and in the absence thereof no proceeding can be drawn up, is provided by the decision in Probodh Kumar Bhowmick (supra) with which I respectfully agree.
23. That apart, it is evident from Ordinance 159 under Part VIII of the Ordinances that the enumerated penalties may be imposed if misconduct of the nature specified in clauses (a) to (h), etc. appear to have been committed. Some of the clauses are attracted here in view of the allegations levelled against the petitioner while the word ''etc'' is wide enough to take within its comprehension the other alleged misconduct/misdemeanour of the petitioner. The charges levelled against the petitioner, on facts, do not persuade me to hold that no misconduct/misdemeanour on her part is disclosed. There is, therefore, no reason to uphold Mr. Basu''s contention. This answers the second issue.
24. Now the third and final issue is taken up for consideration. The contention that has been urged by Mr. Basu is not at all sound. There is no law that prohibits the disciplinary authority from including additional charges in the charge-sheet, which did not form part of the show-cause notice preceding the charge-sheet. If a show-cause notice precedes a charge-sheet, its purpose is to form an opinion, bearing in mind the response to such notice, as to whether a disciplinary proceeding at all is warranted on facts or not. A disciplinary authority having 26 formed the opinion that a charge-sheet may be issued, it is open to him to include therein such other allegations of misconduct/misdemeanour which would warrant a proper investigation. There is no reason to hold that the charge-sheet suffers from a defect, as contended by Mr. Basu.
25. The writ petition, being devoid of merit, fails and is dismissed. Parties shall bear their own costs. The time for the petitioner to respond to the charge sheet is extended by 14 days from date.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
