The issue in this writ petition is with regard to the sustainability of disciplinary proceedings in the absence of any specific charge memo having been served on the delinquent. In other words, a show cause notice, however repeatedly or however elaborately issued, would not displace the need of serving a charge memo on the delinquent, thereby calling for his or her objections before proceeding with the disciplinary proceedings. 2. The facts in brief are that the petitioner, presently the Principal of the 3rd respondent Training College, was initially appointed in a college of the 2nd respondent on 26.02.1993 as a Lecturer; later, she was promoted on 01.04.2011 to her present position, the Principal.
3. On 21.04.2014, the first respondent Manager served on the petitioner Exts.P1 and P5 show cause notices - one on the issue of letting out the hall of the college for a seminar involving college alumni and another on the issue of the petitioner keeping with herself the demand draft drawn in favour of the 2nd respondent towards EMD for a civil work.
4. Through Exts.P2 and P7, the petitioner submitted her explanations; nevertheless, the Management placed the petitioner under suspension on 05.05.2014 through Ext.P8 order. Yet again, the 2nd respondent issued another show cause notice in Ext.P11 on 15.07.2014, seeking explanation from the petitioner. In turn, the petitioner through Ext.P12 submitted her explanation. As can be seen from the record, evidently not satisfied with the explanation submitted by the petitioner, the 2nd respondent through Ext.P10 appointed an enquiry officer. The enquiry officer, on his part, issued Ext.P13 notice to the petitioner calling on her to participate in the enquiry. The petitioner, however, submitted Ext.P15 representation on 13.08.2014 to the enquiry officer assailing the initiation of disciplinary proceedings against her. Consequently, the 2nd respondent management filed a response before the enquiry officer meeting the contentions raised by the petitioner in Ext.P15.
5. In fact, things have moved further with exchange of notices on issues like payment of substance allowance, filing of list of documents, list of witnesses, etc. Before the actual enquiry by way of examining the witnesses of the management could begin, the petitioner filed this writ petition. I have not referred to all the subsequent developments, since the writ petition is proposed to be disposed of based on the concession made by the learned Senior Counsel for the respondent college.
6. The writ petitioner essentially assails the continuation of the disciplinary proceedings on the twin grounds: non-issuance of charge memo and non-payment of subsistence allowance.
7. The learned Senior Counsel appearing for the learned counsel on record for the petitioner has straight away drawn my attention to Section 75 of University Statutes, 1997 and has contended that in terms of the Statutes, it is mandatory that a domestic enquiry be preceded by service of charge memo on the delinquent along with the detailed grounds of charges, thereby enabling the delinquent to file her proper defence. According to him, mere show cause notice, even its multiplication thereof, will not dispense with the need of serving a charge memo proper, as has been contemplated under Statutes, 1997. In this regard, the learned Senior Counsel has placed reliance on Surath Chandra Chakravarty v. The State of West Bengal [AIR 1971 SC 752] and Vidya Dhar Pande v. Vidyut Grih Siksha Samiti [(1988) 4 SCC 734].
8. The learned Senior Counsel has submitted that in the absence of any charge memo having been served on the petitioner, she had no proper opportunity of placing on record her defence. Expatiating on his submissions, the learned Senior Counsel has submitted that when a proper explanation is submitted by the delinquent, and only when the disciplinary authority has not been satisfied with the said explanation, will the question of initiating or continuing the disciplinary proceedings, as the case may be, arise. In support of the said proposition, the learned Senior Counsel has placed reliance on Union of India v. Anil Kumar Sarkar [(2013) 4 SCC 161], J.N.
Ganatra v. Morvi Municipality [(1996) 9 SCC 495], Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & others [(1996) 1 SCC 327] and Siemens Ltd. v. State of Maharashtra [(2006) 12 SCC 33].
9. The learned Senior Counsel has also submitted that despite the petitioner's repeated requests, the respondent management has not paid subsistence allowance. According to him, this deliberate action on the part of the respondents has caused untold misery and hardship to the petitioner, thus disabling her from effectively defending herself in the disciplinary proceedings. Summing up his submissions, the learned Senior Counsel has submitted that non-service of charge memo on the petitioner and the non-payment of subsistence allowance to her vitiates the disciplinary proceedings. Once the proceedings have become totally unsustainable, it is not necessary for the petitioner to wait until the outcome of the disciplinary proceedings to challenge them in the end. Thus, urges the learned Senior Counsel this Court to interdict the disciplinary proceedings by quashing Exts.P1, P5 and P11 show cause notices and issuing consequential directions therefor.
10. Per contra, the learned Senior Counsel, appearing for the learned Counsel representing the 2nd respondent, has strenuously opposed the claims and contentions of the petitioner. To begin with, he has submitted that the charges levelled against the petitioner are grave and cannot be lightly brushed aside. He has further submitted that though Ext.P11 was not termed a charge memo, it is in fact a charge memo containing the charges. According to the learned Senior Counsel, it is not the nomenclature that determines the nature of the document or for that matter its form. It is, asserts the learned Senior Counsel, the contents of the document that determine the nature of the document. In other words, it is the contention of the learned Senior Counsel that a perusal of Ext.P11 leaves no manner of doubt that it is, indeed, a charge memo, but not a show cause notice.
11. The learned Senior Counsel for the 2nd respondent has further submitted that insofar as the subsistence allowance is concerned, it is not the case of total denial, but it is only a case of postponing its payment in view of the fact that on account of the petitioner's suspension, there is no immediate Drawing and Disbursement Officer to ensure payment of subsistence allowance. The learned Senior Counsel has urged this Court to dismiss the writ petition.
12. At this juncture, I suggested to the learned Senior Counsel for the 2nd respondent that no charge memo in plain terms seems to have been issued to the petitioner in terms of statute 75 of the University Statutes, 1975. Whether Ext.P11 can be construed as a charge memo is a matter of interpretation, which requires the consideration of issue on merits. I have also suggested whether the 2nd respondent is willing to contest the matter on merits or is willing to roll back the proceedings to the stage of issuing a proper charge memo, calling for the defence of the petitioner, and thereafter proceeding with the rest of the enquiry in the manner provided under the University Statutes and other relevant regulations.
13. In response to my suggestion, the learned Senior Counsel has sought time to get instructions from his client. Today, the very next day, when the matter is taken up for further hearing, the learned Senior Counsel for the 2nd respondent, to his credit, has submitted that the 2nd respondent has decided to issue a charge memo afresh setting out the charges as well as the grounds in support of the charges and proceed further with the disciplinary proceedings, instead of fighting the issue on the technicalities; to wit, whether Ext.P11 could be treated as a charge memo though the nomenclature indicates it to be show cause notice.
14. In the light of the concession made by the learned Senior Counsel for the 2nd respondent, I am of the view that the discussion of the issue on merits has been obviated. Accordingly, any reference to the precedents cited at the bar by either of the learned Senior Counsel has not been undertaken.
15. When I have proposed to dispose of the writ petition with a direction to the 2nd respondent to issue a charge memo and proceed further, the learned Senior Counsel for the petitioner has made a submission to the effect that once the proceedings are declared illegal or unsustainable, it is imperative that the whole of the proceedings, including the order of suspension, are deemed to have been set aside and, as a natural corollary, the petitioner stands reinstated in service. The learned Senior Counsel in support of his submissions has also referred to sub-sections (1), (3) & (4) of section 63 of the Mahatma Gandhi University Act, 1985, as well as Rule 10(4) of the Kerala Civil Services (CCA) Rules.
16. Appealing as the submission may appear, I am afraid, the said plea cannot be sustained. To examine the issue in detail, it is apposite to extract, to the extent relevant, section 63 of the Act, 1985, which reads as follows:
“63. Disciplinary powers of Educational Agency over teachers of Private Colleges.-(1) The Educational Agency may at any time place a teacher of a Private College under suspension when any disciplinary proceedings is proposed to be taken against him or when such disciplinary proceedings are pending.
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(3). When a teacher of a private college is suspended for a peri- od exceeding fifteen days, the matter together with the reasons for the suspension, shall be reported to the Vice Chancellor.
(4). Any disciplinary proceedings against a teacher of a private college by the educational agency shall be completed within a period of three months or within such further period as may be allowed by the Vice Chancellor.”
17. A plain reading of the above extract makes it clear that the respondent college has plenary power to place a teacher under suspension at any time when any disciplinary proceedings are proposed to be taken against him or when such disciplinary proceedings are pending. Accepting that, if we examine further, it emerges that once there is any procedural infraction, the interdiction can only be with regard to those steps that have been taken subsequent to that infraction. In other words, the steps taken prior to the procedural infraction on the part of the disciplinary authority remain intact. In this case, it is not in dispute that the 2nd respondent, the disciplinary authority, has the power to place the petitioner under suspension not only during the course of disciplinary proceedings, but also on the contemplation of their initiation.
18. If we examine the chronological events, the petitioner was initially placed under suspension on 05.05.2014 and later Ext.P11 show cause notice was issued. The 2nd respondent is of the view that Ext.P11 should be treated as a charge memo. Once this Court is not inclined to accept the said plea, at best the 2nd respondent would be relegated to the position when Ext.P11 was issued. I find support to this proposition in a judgment of the Hon'ble Supreme Court rendered in Hiran May- ee Bhattacharyya v. S.M. School for Girls [(2002) 10 SCC 293]. In the said judgment, following the ratio of ECIL v. B. Karunkar [(1993) 4 SCC 727], the Hon’ble Supreme Court has held that once the enquiry is vitiated owing to any procedural infraction or owing to the negation of the principles of natural justice, the proceedings can be recommenced from the stage where the lapse has occurred, without such process resulting in automatic reinstatement of the delinquent.
19. Later, relying on Hiran Mayee Bhattacharyya & B.
Karunakar (supra), the Supreme Court in Union of India v. Y.S. Sadhu, (2008) 12 SCC 30, has held as follows:
“7. Keeping in view the aforesaid position of law indicated in the aforesaid decisions, we are of the view that the course adopted in the two cases above, is to be followed. There shall not be any reinstatement, but the proceedings shall continue from the stage where it stood before the alleged vulnerability surfaced.”
20. Going by the ratio laid down by the Apex Court, I have no manner of doubt in rejecting the contention of the learned Senior Counsel for the petitioner that interference with the disciplinary proceedings on the ground of procedural infraction should always result in the effacement of the entire proceedings resulting in the reinstatement of the delinquent.
21. In the facts and circumstances, this Court declares that the proceedings taken out by the disciplinary authority from the stage of Ext.P11 are void and unsustainable. Consequently, the parties to the disciplinary proceedings stand restored to their respective positions just prior to the date of Ext.P11. As a result, the 2nd respondent is at liberty to issue a fresh memo of charges in terms of Mahatma Gandhi University Statutes, 1997, if it desires, and proceed further with the rest of enquiry strictly in compliance with the statutory terms and complete the entire process as expeditiously as possible.
22. It is further made clear that given the difficulties expressed by the petitioner of financial stringency in facing the disciplinary proceedings while on suspension, it is made clear that the 2nd respondent shall ensure regular payment of subsistence allowance to the petitioner, lest the proceedings being initiated and continued shall stand vitiated. It is further observed that the petitioner shall extend her full co-operation to the disciplinary authority to ensure speedy conclusion of the proceedings.
With the above observations, this writ petition stands disposed of.
sd/- DAMA SESHADRI NAIDU, JUDGE.
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