N. Kalavathy v. The Registrar Central Administrative Tribunal Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 10.6.2008Coram:The Honourable Mr.Justice F.M. IBRAHIM KALIFULLAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 31171 of 2007andM.P. Nos. 1 of 2007 and 1 of 20081.The CommissionerKendriya Vidyalaya SangathanNo. 18 Institutional AreaShaheed Jeet Singh MargNew Delhi2.The Assistant CommissionerKendriya Vidyalaya SangathanRegional Office,Chennai RegionIIT Campus, Chennai... Petitioners-vs- 1.N. Kalavathy2.The Registrar Central Administrative Tribunal Chennai ... RespondentsPetition under Article 226 of the Constitution of India prayingto issue a writ of Certiorari to call for the records pertaining tothe order dated 29.8.2006 passed by the Tribunal in O.A. No. 233 of2006 and quash the same.For Petitioners : Mr. M. VaidyanathanFor Respondent 1: Mr. P.V.S. GiridharORDERK. CHANDRU, J.Heard the arguments of Mr. M. Vaidyanathan, learned counselappearing for the petitioners, Mr. P.V.S. Giridhar, learned counselappearing for the first respondent and have perused the records. https://hcservices.ecourts.gov.in/hcservices/

2.Aggrieved by the order dated 29.8.2006 passed by theCentral Administrative Tribunal [for short, 'CAT'] in O.A. No. 233 of2006, the present writ petition has been filed by the Commissioner,Kendriya Vidyalaya Sangathan (for short, 'KVS') at New Delhi. 3.While the first respondent was working at KV School atTrichy, she was arrested on 24.10.2003 vide FIR No. 15/2003 underSections 420, 498(A), 406, 342 and 323 IPC r/w Section 4 of the DowryProhibition Act and was in police custody for more than 48 hours.Therefore, she was suspended by an order dated 03.11.2003. She filedan Original Application being O.A. No. 230 of 2004 before the CAT.The said O.A. was disposed of by an order dated 05.3.2004 directingthe petitioner to consider her representation. The saidrepresentation was considered by the petitioner and was rejected by adetailed order dated 21.4.2004. 4.In the meanwhile, the petitioner approached this Court withCrl. O. P. No. 16414 of 2004 challenging the criminal proceedings andalso obtained an interim order on 05.5.2004 restraining the policeauthorities from proceeding with the criminal case. 5.A charge-memo under Rule 14 of the CCS (CCA) Rules wasissued to her on 11.02.2005. The Annexure I to the charge-memoreads as follows:-"THAT Smt. N. Kalavathy, Principal while functioningat Kendriya Vidyalaya No. 2, Tiruchirappalli duringthe year 2003 was arrested on 24.10.2003 vide FIR No.15/2003 dated 24.10.2003 under Section 420, 498(A),406, 342, 323 I.P.C. & Section 4 of D.P. Act by theSub-Inspector of Police, W-4 All Women Police Station,Ashok Nagar, Chennai – 600 083 and was in policecustody exceeding 48 hours in connection with dowrycase based on the written complaint lodged by herdaughter-in-law which is unbecoming of a Governmentservant under Rule 3(1)(i) and (iii) of CCS (Conduct)Rules, 1964."6.The first respondent in the meanwhile moved the CAT withO.A. No. 303 of 2005 challenging the order dated 21.4.2004 confirmingthe suspension order. The CAT, by its judgment dated 26.7.2005,allowed the O.A. and restored the first respondent in service. Itwas held that the pendency of the criminal case need not be a bar inher continuing in service and discharging her duties as Principal ofthe School. The CAT also observed that the period of suspensionshall be regularised only after the outcome of the disciplinaryproceedings and the criminal case. In the meanwhile, the firstrespondent was posted as Principal in Kendriya Vidyalaya, Edumaliram,Medak Dist., Andhra Pradesh. https://hcservices.ecourts.gov.in/hcservices/

7.An enquiry was directed to be conducted against the firstrespondent. It was stated that in the enquiry, the first respondentdenied the charges. After the enquiry, the Presenting Officer gave awritten brief stating that the first respondent was arrested and waskept in jail in connection with the dowry offence was an admittedfact and, therefore, she was guilty of the charges. After thereceipt of the written brief from the Presenting Officer, the firstrespondent did not submit any reply to the same but rushed to the CATonce again with O.A. No. 233 of 2006 and challenged the charge-memodated 11.02.2005. 8.A reply statement was filed by the petitioners in June2006. The CAT, by its order dated 29.8.2006, allowed the O.A. Inparagraph 4 of the order, the CAT observed as follows:-"A reading of the charge shows that the misconductalleged is Police Custody of the applicant exceeding 48hours. A mere custody on the basis of a criminalcomplaint perse cannot be construed as a misconductunder Rule 3(1) CCS (Conduct) Rules, 1964. The twoclauses referred to under Rule 3(1)(i) and (iii) relateto the maintenance of absolute integrity and actingunbecoming of a Government servant. They bythemselves would not be a basis of charge. The writtencomplaint is now the subject matter of a criminaltrial. Incidentally criminal proceedings were stayedby the Hon'ble High Court in criminal O.P. 590/2004.The police custody for more than 48 hours could be aground for suspension but it cannot be stretched forthe purpose of framing a charge as has been done inthis case. The only document relied upon is thecertified copy of the FIR and the list of witnessesprovide by Sub-Inspector of Police and the final reportfiled by the police. There is complaint made to thehigher authorities or engaging so as to frame chargesin departmental proceedings. We find that the readingof charge itself does not make out grounds forproceeding for violation of Conduct Rules. For thesereasons the Memorandum of Charges is liable to be setaside and accordingly the same is quashed. This willbe without prejudice to the respondent proceed againstthe applicant in accordance with law and rules if theyso decide."9.One factual correction has to be made in relation to thecriminal case. This Court in Criminal M.P. No. 5907 of 2004, by anorder dated 06.9.2006, dismissed the petition filed by the firstrespondent after holding that there was a prima facie case againstthe first respondent. https://hcservices.ecourts.gov.in/hcservices/

10.The petitioner filed the present writ petition against theorder of the CAT and also obtained an interim stay on 26.9.2007.It is only when the first respondent took out an application in M.P.No. 1 of 2008 for vacating the interim order, the matter came to beposted before this Court and with the consent of the parties, themain writ petition itself was taken up for final hearing.11.Mr. M. Vaidyanathan, learned counsel for the KVS submittedthat the CAT was wrong in quashing the charge-memo even before thefinal order could be passed in the enquiry. The first respondenthaving participated in the enquiry, cannot, at this stage, turn backand question the charge-memo. He also submitted that subsequent tothe order of CAT, the stay granted against the criminal proceedingswas vacated by this Court. He further submitted that the action ofthe first respondent in getting involved is a serious criminal caseunder the Dowry Prohibition Act, which is a social evil and it cannotbe overlooked by KVS. The pendency of a criminal case cannot be abar in taking action against the first respondent. That a SchoolPrincipal herself getting involved in a serious criminal case andbeing detained in jail, can by itself a misconduct. Apart fromthat, it was also stated in the charge-memo that the writtencomplaint lodged by the daughter-in-law of the first respondentdiscloses a serious crime committed by her even though the offencemay be unrelated to the duties discharged by her. 12.Per contra, Mr. P.V.S. Giridhar, learned counsel for thefirst respondent submitted that in a matter of this nature, thepetitioner cannot proceed with any independent enquiry. Beingdetained in a Police custody by itself cannot be a misconduct and thecharge-memo as well as the written brief given by the PresentingOfficer in the enquiry do not disclose any misconduct committed bythe first respondent. He also submitted that allowing thepetitioners to pass final orders without there being any allegationof misconduct proved with credible evidence in an enquiry held forthis purpose will cause grave prejudice to her. He furthersubmitted that the power under Article 226 of the Constitution vestedon this Court need not be extended to set aside the order of the CAT,which order is legally correct. The fact that the first respondenthad participated in the enquiry will not preclude her fromchallenging the charge-memo on the ground of its being vague.13.We have given our anxious consideration to the rivalsubmissions made by the parties. It is well settled that thisCourt, in the absence of any mala fide or want of jurisdiction,cannot interfere with a charge-memo at the threshold. The firstrespondent having given her explanation and participated in theenquiry, had to necessarily wait for the outcome of the enquiry. Atthis stage, this Court need not go into the sufficiency or otherwiseof the materials placed by the petitioners in the departmentalenquiry. https://hcservices.ecourts.gov.in/hcservices/

14.The Supreme Court in its decision reported in 1987 (2) SCC179 [State of U.P. v. Brahm Datt Sharma and another] dealt with thepower of the Court in dealing with a charge memo at the show-causestage. The following passage found in paragraph 9 will make theposition clear.Para 9: "The High Court was not justified in quashing the showcause notice. When a show cause notice is issued to agovernment servant under a statutory provision callingupon him to show cause, ordinarily the governmentservant must place his case before the authorityconcerned by showing cause and the courts should bereluctant to interfere with the notice at that stageunless the notice is shown to have been issuedpalpably without any authority of law. The purpose ofissuing show cause notice is to afford opportunity ofhearing to the government servant and once cause isshown it is open to the Government to consider thematter in the light of the facts and submissionsplaced by the government servant and only thereafter afinal decision in the matter could be taken.Interference by the court before that stage would bepremature, the High Court in our opinion ought nothave interfered with the show cause notice."15.The Supreme Court further vide its decision in (2004) 3 SCC440 [Special Director and another Vs. Mohd. Ghulam Ghouse andanother], in paragraph 5 observed as follows:Para 5: "This Court in a large number of cases has deprecatedthe practice of the High Courts entertaining writpetitions questioning legality of the show causenotices stalling enquiries as proposed and retardinginvestigative process to find actual facts with theparticipation and in the presence of parties. Unlessthe High Court is satisfied that the show-cause noticewas totally non-est in the eye of the law for absolutewant of jurisdiction of the authority to eveninvestigate into facts, writ petitions should not beentertained for the mere asking and as a matter ofroutine, and the writ petitioners should invariably bedirected to respond to the show-cause notice and takeall stands highlighted in the writ petition. Whetherthe show-cause notice was founded on any legalpremises, is a jurisdictional issue which can even beurged by the recipient of the notice and such issuesalso can be adjudicated by the authority issuing thevery notice initially, before the aggrieved couldapproach the court. Further, when the court passes an https://hcservices.ecourts.gov.in/hcservices/ interim order it should be careful to see that thestatutory functionaries specially and specificallyconstituted for the purpose are not denuded of powersand authority to initially decide the matter andensure that ultimate relief which may or may not befinally granted in the writ petition is not accordedto the writ petitioner even at the threshold by theinterim protection granted."16.Again, the Supreme Court in the judgment reported in (2006)12 Supreme Court Cases 28 [Union of India and another vs. KunisettySatyanarayana] in paragraphs 13 to 16 held as follows:Para 13: "It is well settled by a series of decisions of thisCourt that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer,Bihar State Housing Board v. Ramesh Kumar Singh (1996)1 SCC 327, Special Director v. Mohd. Ghulam Ghouse(2004) 3 SCC 440, Ulagappa v. Divisional CommissionerMysore (2001) 10 SCC 639, State of U.P. V. Brahm DattSharma (1987) 2 SCC 179, etc.Para 14: The reason why ordinarily a writ petition should not beentertained against a mere show-cause notice or charge-sheet is; that at that stage the writ petition may beheld to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action,because it does not amount to an adverse order whichaffects the rights of any party unless the same hasbeen issued by a person having no jurisdiction to doso. It is quite possible that after considering thereply to the show-cause notice or after holding anenquiry the authority concerned may drop theproceedings and/or hold that the charges are notestablished. It is well settled that a writ petitionlies when some right of any party is infringed. A mereshow-cause notice or charge sheet does not infringe theright of any one. It is only when a final orderimposing some punishment or otherwise adverselyaffecting a party is passed, that the said party can besaid to have any grievance.Para 15: Writ jurisdiction is discretionary jurisdiction andhence such a discretion under Article 226 should notordinarily be exercised by quashing a show-cause noticeor charge-sheet.Para 16: No doubt, in some very rare and exceptional cases theHigh Court can quash a charge-sheet or show-cause https://hcservices.ecourts.gov.in/hcservices/ notice if it is found to be wholly without jurisdictionor for some other reason if it is wholly illegal.However, ordinarily the High Court should not interferein such a matter."17.Since Mr. P.V.S. Giridhar, learned counsel very muchemphasised in assailing the charge-memo as not being specific withreference to any misconduct set out in the Government Servants'Conduct Rules, it is necessary to deal with the said submission.18.The Supreme Court dealt with a case where similar argumentswere addressed about non-mentioning of specific misconduct enumeratedin the Government Servants' Conduct Rules. The Supreme Court afterreferring to A.K. Kalra v. Project and Equipment Corporation ofIndia Ltd. [1984 (3) SCC 316] and Ranjit Thakur v. Union ofIndia [1987 (4) SCC 611], made the following observations inparagraph 9 of its judgment in Secretary to Government and another v.A.C.J. Britto [1997 (3) SCC 387]:-Para 9:"The Rules applicable in this case do not specify actsof misconduct for which a delinquent officer can bepunished. Rule 2 empowers the competent authorities toimpose upon members of the Service penalties specifiedtherein “for good and sufficient reason”. Therefore,the decision of this Court in A.L. Kalra case isclearly distinguishable. Before holding that there wasno justification to initiate disciplinary proceedingagainst the respondents, the Tribunal ought to haveconsidered whether there was “good and sufficientreason” for initiating such proceedings against him.It was not justified in taking that view on the groundthat such an act of delinquency has not been specifiedin the Rules as an act of misconduct. 19.Therefore, it cannot be said that the petitioner Departmentwas wrong in framing the charge-memo and the attack made by the firstrespondent against the charge-memo will have to necessarily fail.It is for the first respondent to submit her written brief inresponse to the brief made by the petitioner KVS and wait for theoutcome of any final order to be passed in the enquiry. If anyadverse order is passed, it is always open to her to pursue theremedy in the manner known to law.20. Further, a careful reading of the charge memo, dated11.2.2005 disclose the following facts: a. The arrest of the first respondent on 24.10.2003 wasin pursuance of FIR No.15 of 2003, dated 24.10.2003. b.The FIR containing allegations against the first https://hcservices.ecourts.gov.in/hcservices/ respondent falling under Sections 420, 498(A), 406,342, 323 I.P.C. and Section 4 of Dowry Prohibition Acton the file of the Sub Inspector of Police, W-4 AllWomen Police Station, Ashok Nagar, Chennai. c. The first respondent was in police custody exceeding48 hours with reference to the dowry case launchedagainst her based on the written complaint lodged byher daughter-in-law. d. The CCS (Conduct) Rules 1964, contain specificprovision under Rule 3(1)(i) and (iii) where-under agovernment servant can be proceeded against for anunbecoming conduct. When the above factors contained in the charge memo areconsidered, we are not impressed by the submission of the learnedcounsel for the first respondent that there was no specificmisconduct that was alleged against the first respondent in thecharge memo, dated 11.2.2005 in order to interfere with the same. Weare not, therefore, inclined to countenance such a submission madeon behalf of the first respondent. 21.In the light of the above, the writ petition will standallowed and the order of the CAT dated 29.8.2006 made in O.A. No. 233of 2006 will stand set aside. However, there will be no order as tocosts. Connected Miscellaneous Petitions will stand closed.Sd/-Assistant Registrar/true copy/Sub Assistant RegistrargriTo1.The Registrar Central Administrative Tribunal Chennai.+ 1 cc to M/s.P.V.S.Girithar & Sai Associates Advocate SR No.28559Pre-Delivery Order inW. P. No. 31171 of 2007RA(CO)JJM(18.06.08)