* THE HON’BLE SRI JUSTICE B. PRAKASH RAO AND *THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + W.A.NO. 227 OF 1998 W.A.No. 227 of 2006: % 25.07. 2006 #The Environment Protection Training & Research Institute rep.,by it’s A.P.Chairman & Chief Secretary to Govt. A.P. Secretariat, Hyderabad and another. ….. Petitioners Vs. 1. $ P.B.B. Narasimha Rao. ….Respondent. ! Counsel for the Appellants: Sri D.V. Sitaram Murthy ^ Counsel for the Respondent: Sri M. Surender Rao < Gist: >Head Note ? Citations: [1] 1997(2) SLR 433 2 2000(2) SLR 392 (Calcutta High Court) 3 1999(4) SLR 623 (Rajasthan High Court) 4 1999(5) ALD 60 5 AIR 1977 SC 456 6 AIR 1985 SC 703 7 1996(1) ALD 528 8 (2006) II SLT 192 9 AIR 1964 SC 364 10 (1996) 1 SCC 327 11 (1998) 8 SCC 1 12 (2003) 1 SCC 692 13 (2005) 11 SCC 451 14 AIR 1955 SC 425 15 AIR 1964 SC 1419 16(1976) 2 SCC 82 17 (2002)4 SCC 638 THE HON’BLE SRI JUSTIE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.A.No. 227 of 2006 ORDER: (per Hon’ble Sri Justice Ramesh Ranganathan) This Appeal is against the order in W.P.No.27159 of 2005 dated 14.2.2006 whereby the proceedings dated 07.12.2005, issued by the Appellants herein calling upon the respondent-writ petitioner to submit his representation to the charges held proved and asking him to show cause as to why the penalty specified in Section 4, Rule 4.2 of the Staff Rules and Service Regulations of EPTRI should not be imposed, was quashed, the report of the enquiry officer set aside and the enquiry officer was directed to resume proceedings from the stage where the petitioner raised his objection to the competence of the Presenting Officer. Facts, to the extent necessary, are that the petitioner, an Administration and Accounts Officer in the Appellant – Institute, was placed under suspension vide proceedings dated 6.6.2005. A charge sheet dated 17.6.2005 was issued calling upon him to submit his explanation. The petitioner submitted his explanation, to the charge sheet, vide letter dated 21.7.2005. Sri K.Kumar was appointed as the enquiry officer and Sri T.V.Satish Babu, Administration Incharge of the Institute was appointed as the presenting officer. The petitioner, vide letter dated 29.10.2005, contended that, under the prescribed procedure, the presenting officer must be superior in rank to the charged employee and since the presenting officer Sri T.V. Satish Babu was subordinate to him, he could not have been appointed as the presenting officer. This objection was over-ruled by the enquiry officer on 10.11.2005. The enquiry officer proceeded with the enquiry and submitted his report holding that the charges framed against the petitioner was established. The disciplinary authority issued show cause notice dated 7.12.2005 calling upon the petitioner to explain as to why punishment should not be imposed on him. It is this show cause notice, dated 7.12.2005, which was the subject matter of challenge in W.P.No. 27159 of 2005. The learned Judge framed two questions for consideration (1) Whether the Presenting Officer was not qualified to be appointed as such and (2) Whether the impugned show cause notice suffered from any infirmity. On the first question, the learned Judge referred to Clause 14 of the conditions of service of the Institute and held that government orders were not per se applicable to the service in the institute and it was only when they were accepted and authenticated by the Board that such government orders became applicable. The learned Judge held that since the petitioner was not able to place any proceedings or orders through which the Board of the Institute had adopted the Memo dated 1.5.1993, and in view of the clear legal and factual position, the necessity to delve into the rival contentions as to the equation of the status of the petitioner on the one hand and of the Presenting Officer on the other was obviated. The learned Judge held this question against the petitioner. On the second question, the learned Judge took note of the fact that the petitioner had submitted an appeal to the 1st appellant herein on 16.11.2005, against the order of the enquiry officer dated 10.11.2005, that he had also brought this fact, of an appeal being preferred, to the notice of the enquiry officer, vide letter dated 16.11.2005, despite which the enquiry officer had proceeded to examine the witnesses and to record his findings without participation of the petitioner. The learned Judge held that, even assuming that the appeal preferred by the petitioner was either not maintainable or did not merit consideration, fairness required that the enquiry proceedings were deferred till the appeal itself was disposed of one way or the other. The learned judge held that, in disciplinary proceedings, fairness in procedure was an important protection guaranteed to an employee and since the appellate authority did not pronounce upon the objection raised, the petitioner was entitled to await such an outcome and his non- participation in the enquiry proceedings could not be said to be without basis. The learned Judge held that the proceedings in the enquiry, subsequent to the order of the enquiry officer dated 10.11.2005, became unilateral in nature and the procedural safeguards stood denied to the petitioner. Taking note of the contention, urged on behalf of the appellants herein, that the petitioner did not suffer any detriment and it was not necessary to given him an opportunity afresh, much less to set at naught the show cause notice, the learned Judge held that once it emerged that the petitioner was denied the opportunity to participate in the enquiry proceedings he should not be made to suffer and that prejudice was apparent. The learned Judge held that submission of the enquiry report without participation of the petitioner in the enquiry, particularly when the appeal preferred by the petitioner was pending, and the resultant show cause notice issued on the basis of such report would defeat the very element of fairness which were embedded at various stages of the disciplinary proceedings and that the petitioner deserved to be given an opportunity. The learned Judge set aside the report of the enquiry officer and the show cause notice and directed the enquiry officer to resume proceedings from the stage where the petitioner raised objection as to the competence of the presenting officer. The learned Judge directed that the petitioner appear before the enquiry officer within one week from the date of the order by himself or together with his defence assistant, that examination or cross-examination of witnesses should be completed by the petitioner within one week from the date of his first appearance, that a fresh report should be submitted and that further proceedings would depend on the outcome of the enquiry. Sri D.V.Sitaram Murthy, learned counsel for the Appellants, would submit that this Court, in proceedings under Article 226 of the Constitution of India, would interfere with a show cause notice only if it was passed by an incompetent authority or was without jurisdiction and since, in the present case, both these requirements were absent, no interference was called for and the petitioner should have been relegated to raise all objections by way of his reply to the show cause notice. Learned counsel would submit that no appeal is provided under the Rules, against the ruling of the enquiry officer during the course of enquiry proceedings, that the appeal filed by the petitioner on 16.11.2005 was not an appeal under the Rules and that it was not open to the charged employee to abstain from participating in the enquiry on the specious plea that he had submitted a representation to the disciplinary authority. Learned counsel would contend that the disciplinary authority was not obligated to consider and pass orders on each and every representation of the delinquent employee. Learned counsel would state that, despite being specifically informed during the course of the enquiry proceedings itself that the enquiry would continue the petitioner had, on his own accord, chosen to abstain and he could not, therefore, take advantage of his own wrong and seek a fresh opportunity to be given to him and that the enquiry be held afresh from the stage of his abstinence. Learned counsel would submit that principles of natural justice cannot be stretched to such an extent as to hold that a delinquent employee was entitled to abstain from the departmental enquiry or that the enquiry officer should defer the enquiry proceedings till each and every representation of his was decided by the disciplinary authority. Learned counsel would state that, even in judicial proceedings, unless the appellate court grants stay, mere filing of an appeal would not preclude the lower court from continuing with the proceedings pending before it. Learned counsel would submit that this Court, in proceedings under Article 226 of the Constitution of India, would not interdict a disciplinary enquiry since all these questions could be gone into, if need be, after final orders are passed by the disciplinary authority, or the appellate authority, as the case may be. Learned counsel would rely on R a e Bareli Kshetriya Gramin Bank v. Bhola Nath Singh[1] in support of his submission that this Court, under Article 226 of the Constitution of India, would not act as an appellate authority and would interfere only when the procedure, prescribed under the rules for conducting a departmental enquiry, was violated. Learned counsel would submit that, in the instant case, no such procedural rule has been violated necessitating interference under Article 226 of the Constitution of India. He would rely on Garfa Co-operative Stores Ltd v. Ld. Second Industrial Tribunal, West Bangal[2] and Bhanwar Singh v. State of Rajasthan[3] in support of his submission that where the delinquent employee remains absent and does not participate in the enquiry despite having knowledge thereof, he cannot contend later that the enquiry proceedings are vitiated. Learned counsel would rely on J. Pullaiah v. A.P.S.R.T.C[4] to contend that this Court, under Article 226 of the Constitution of India, at the stage of the final show cause notice and at the fag end of the enquiry, would not interdict disciplinary proceedings. In support of his submission that a show cause notice is not an order affecting anyone’s right and that this Court would interfere only when it is issued by an incompetent authority or is without jurisdiction, learned counsel would place reliance on Geep Flashlight Industries Ltd v. Union of India[5], Chief of the Army Staff v. Major Dharam Pal Kukrety[6] and Adapa Goverdhana Rao v. Deputy Registrar of Cooperative Societies, Machilipatnam[7]. Sri M.Surender Rao, learned counsel for the respondent – writ petitioner, on the other hand, would submit that since it is not in dispute that the petitioner had preferred an appeal to the disciplinary authority, even if it is considered to be a representation and not an appeal, fairness required the enquiry officer to either adjourn the enquiry or at least inform the petitioner of his intention not to do so, in which event the petitioner would have participated in the enquiry. Learned counsel would submit that as there was no intimation from the enquiry officer, and since the respondent-writ petitioner was not aware of the subsequent date of enquiry, his absence on the next date of hearing could not be said to be deliberate. Learned counsel would submit that principles of natural justice required the enquiry officer, at least, to inform the petitioner of his intention to proceed with the enquiry and the next date of hearing. Learned Counsel would contend that, since the enquiry proceedings were continued in his absence, the petitioner was deprived of his right to cross-examine witnesses and to adduce evidence in his defence. Learned counsel would submit that since the jurisdiction of this Court, under Article 226 of the Constitution of India, is discretionary, and as the learned Judge had exercised his discretion and had passed an equitable order in the writ petition, such exercise of discretion did not call for interference by an appellate court. Learned counsel would submit that the impugned show cause notice was a mere ritual, an empty formality and that its result was a foregone conclusion. According to the learned counsel, the opportunity which the petitioner may have to question the validity of the enquiry proceedings, after final orders are passed by the disciplinary authority/appellate authority, would result in his remaining out of employment during the pendency of the writ petition. Learned counsel would submit that, as the enquiry proceedings as held was in violation of principles of natural justice, it was open to the delinquent employee to question those proceedings without being required to submit his reply to the show cause notice. Learned counsel would place reliance on South Bengal State Transport Corporation v. Swapan Kumar Mitra[8] in this regard. The enquiry officer holds the enquiry, against the delinquent employee, as a delegatee of the disciplinary authority. The object of the enquiry is to enable the employer to hold an investigation, into the charges framed against the delinquent employee, so that the employer can, in due course, consider the evidence adduced and decide whether the said charges are proved or not. The interposition of the enquiry, which is held by a duly appointed enquiry officer, does not alter the true legal position that it is the employer who is empowered to decide whether the evidence on record is sufficient to hold the charges as established and on the nature of punishment to be imposed on the delinquent employee. (Union of India Vs. H.C. Goel[9]). Since questions, as to whether the charges leveled against a delinquent employee are established or not, whether the findings of the enquiry officer require acceptance and the nature and extent of the punishment to be imposed on a delinquent employee for proved misconduct, are all matters for the disciplinary authority to decide, it is only after a decision has been taken in this regard, and after the departmental remedies of an appeal are exhausted, would a challenge thereto be, normally, entertained by this Court in proceedings under Article 226 of the Constitution of India. Since matters relating to conduct and discipline of employees are in the employer’s realm this Court would, normally, not interdict disciplinary proceedings till its culmination in the imposition of a punishment and on such punishment being confirmed or modified in appeal. In the case on hand, the proceedings under challenge is a notice calling upon the petitioner to show cause as to why punishment should not be imposed on him. The grievance which the petitioner has, of the enquiry being proceeded without giving him an opportunity of cross-examining the witnesses and adducing evidence in his defence, could have been ventilated by him in his reply to the show cause notice. Unless the notice, to show cause, is issued by an incompetent authority or is without jurisdiction this Court would not, normally, interfere and would relegate the petitioner to the submission of a reply thereto. Now the judgments in this regard. In Geep Flashlight Industries Ltd5, a notice, given to the Appellant under Section 131(3) of the Customs Act for revision of the earlier order, was impeached. The appellant invoked the jurisdiction of the Delhi High Court under Article 226 of the Constitution of India and sought for a writ of prohibition restraining the authorities from conducting proceedings pursuant to the impugned notice. The appellant also sought for a writ of certiorari to quash the notice and a writ of mandamus not to withhold the excess duty paid and for an order that the earlier amount paid be refunded. The Delhi High Court held that all the objections which the appellant wished to raise to the notice, including the objections raised in the writ petition, should be raised before the Central Government. Challenge thereto, was rejected by the Supreme Court holding:- “….The appellant’s prayers for writs of certiorari and mandamus are misconceived. There is no order either judicial or quasi-judicial which can attract certiorari. No mandamus can go because there is nothing which is required to be done or forborne under the Act. The issue of the notice in the present case requires the parties to represent their case. There is no scope for mandamus to do any duty or act under the statute. A writ of prohibition cannot be issued for the obvious reason that the Central Government has jurisdiction to revise……”(emphasis supplied) In Major Dharam Pal Kukrety6, the Supreme Court observed:- “……We will first deal with the appellants’ preliminary objection that the respondent’s writ petition was not maintainable as being premature. It was the respondent’s case that the Chief of the Army Staff had no jurisdiction to issue the impugned show-cause notice after he had been again found not guilty by the court-martial on revision. The said notice expressly stated that the Chief of the Army Staff was of the opinion that the respondent’s misconduct as disclosed in the proceedings rendered his further retention in service undesirable and asked him to submit his explanation and defence, if any, to the charges made against him. If the respondent’s contention with respect to the jurisdiction of the Chief of the Army Staff to issue the said notice were correct, the respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services. Were the said notice issued without jurisdiction, the respondent would have then suffered a grave, prejudicial injury by an act which was without jurisdiction. Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the court’s protection. If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not be open to the respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature. This was, however, not a contention which could have been decided at the threshold until the court had come to a finding with respect to the jurisdiction of the Chief of the Army Staff to issue the impugned notice. Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the respondent’s writ petition was not premature and was maintainable………” (emphasis supplied) The Apex Court, in Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh[10], held:- “…….. We are concerned in this case, with the entertainment of the writ petition against a show-cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 notice is ex facie a ‘nullity’ or totally “without jurisdiction” in the traditional sense of that expression — that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show-cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India…….” (emphasis supplied) I n Whirlpool Corpn. v. Registrar of Trade Marks[11], the Supreme Court held thus:- “……..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. 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”……..” The Apex Court, in Bhaiji v. Sub-Divisional Officer, Thandla[12] laid down:- “……..The petition filed by the writ petitioner before the High Court was entirely misconceived and, in a way, premature. The show-cause notice issued by the Sub-Divisional Officer cannot be said to be without jurisdiction. The appellant should have participated in the enquiry after showing cause. Instead he chose to rush post-haste to the High Court. The High Court rightly turned down the writ petition……” (emphasis supplied) I n State of U.P. v. Anil Kumar Ramesh Chandra Glass Works[13], the Supreme Court observed:- “……….In any event, this Court had repeatedly held that Article 226 should not be permitted to be invoked in order to challenge show- cause notices unless accepting the fact in the show-cause notices to be correct, either no offence is disclosed or the show-cause notices are ex facie without jurisdiction. That could not be said as far as the eight show- cause notices in question are concerned. The High Court, therefore, should not have interfered and should have left the respondents to pursue their remedy by way of an appeal under Section 9 of the Act from the order of assessment which, according to the High Court, had admittedly been passed before the writ petition had been filed by the respondent……..” (emphasis supplied) In Adapa Goverdhana Rao7, this Court held:- “…….The petitioner has also alleged that the impugned action was taken by the first respondent at the behest of the third respondent Minister for collateral and extraneous considerations and therefore the action is tainted by mala fide. I do not find any necessity to go into those allegations at this stage inasmuch as the petitioner has approached this curt against the show cause notice issued by the first respondent under Section 34(1) of the Act. The petitioner has an opportunity to show cause against the impugned notice and if the first respondent is satisfied that the objections that may be put forth by the petitioner are valid and well founded, the first respondent may drop further proceedings in pursuance of the impugned notice. In that view of the matter I think that the consideration of plea of mala fide at this stage is premature. The said plea is kept open to be agitated and considered if an occasion arises in future……….” (emphasis supplied) The extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India maybe invoked, to question the validity of a notice to show cause, if the authority has no power or jurisdiction to enter upon the enquiry in question. If the authority has the power to issue the notice, the writ petition filed challenging the said notice would be premature. In such cases, the only remedy is to show cause by submitting a reply there to, and in the event of an adverse decision to assail the same in appeal and thereafter, if need be, invoke the jurisdiction of this Court under Article 226 of the Constitution of India. Since the notice issued is only to enable the delinquent employee to show cause, no mandamus can be issued to have such proceedings