Bombay High Court
Mr. Vernon Coelho vs Institute Of Hotel Management on 29 October, 2013
Bench: S.J. Vazifdar, K.R. Sriram
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1344 OF 2013
]
1) Mr. Vernon Coelho, ]
Age 57 years, Occupation - Service, ]
Residing at Flat No.11, ]
Phil-Haven, Junction of St. Paul & Perry Road, ]
Bandra (W), Mumbai 400 050 ]..Petitioner
V/s.
1) Institute of Hotel Management, ]
Catering Technology and Applied Nutrition ]
Through its Principal, ]
Veer Savarkar Marg, Dadar (West), ]
Mumbai 400 028 ]
]
2) Union on India ]
Through the Secretary Ministry of Tourism ]
Government of India, ]
Transport Bhavan, 1, Sansad Marg, ]
New Delhi 110 001. ]..Respondents
Mr. Basil Menezes for Petitioner.
Ms. N.V. Masurkar for Respondents.
CORAM : S.J. VAZIFDAR &
K.R. SHRIRAM, JJ.
DATE : 29TH OCTOBER, 2013.
Shraddha Talekar PA 1/9
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JUDGMENT (PER K.R. SHRIRAM, J.) :-
1 Rule. By consent of the parties, Rule made returnable
forthwith and heard finally.
2 Since 1986 the petitioner has been the Head of the
Department, Food Production with respondent No.1.
3 The first respondent issued a memorandum dated 1 st June
2010 (1st memo) to the petitioner along with a statement of imputation
of misconduct or misbehaviour based on which it was proposed to take
action against the petitioner under Central Civil Services
(Classification, Control and Appeal) Rules, 1965 (for brevity referred
to as 'CCS(CCA), Rules'). The petitioner was also called upon to
submit his representation in response to the memorandum. The
allegation in the statement of imputation against the petitioner was that
the petitioner took leave for foreign visits giving reasons "vacation or
personal" but actually participated in cookery shows launched by
foreign organizations one of which was in Germany. It is alleged that
the petitioner thereby engaged in private trade or employment. It is
also alleged that while applying for leave, the petitioner had given an
undertaking not to engage in private trade or employment which he
Shraddha Talekar PA 2/9
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had breached and by the said acts the petitioner has acted in a manner
unbecoming of a government servant. The petitioner replied to the
said memorandum and denied that he had violated any provisions of
CCS (Conduct) Rules, 1964. The respondent no.1 did not proceed
further with the 1st memo.
4 Thereafter, the petitioner received another memorandum
dated 1st July 2010 (2nd memo) by which the petitioner was informed
that the respondents proposed to hold an enquiry against the petitioner
under Rule 14 of CCS (CCA) Rules. Rule 14 provides for procedure
for major penalties. The petitioner was also given a statement of
articles of charge containing the imputation of misconduct /
misbehaviour. These charges were similar to the one imputed against
the petitioner in the 1st memo of June 2010. The only difference
between both the memos were the period during which the alleged
misconduct / misbehavior was allegedly committed. In the 2 nd memo
it was from 13th may 2007 to 18th June 2007 and 11th August 2007 to
20th August 2007 ( almost three years ago) whereas in the 1 st memo the
dates were from 23rd March 2010 to 26th March 2010. The petitioner
replied denying the charges. Thereafter, nothing transpired for over a
year.
Shraddha Talekar PA 3/9
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5 Sometime in the end of September 2011, the petitioner
received a copy of the prosecution brief from the Presenting Officer of
the first respondent, addressed to the Enquiry Officer. Enquiry was
conducted under rule 14 (major penalty) by the Enquiry Officer who
submitted a detailed report dated 31st October 2011 in which the
petitioner was held guilty of all charges levelled against him. On 1 st
November 2011, the petitioner was served a copy of the said report by
the first respondent and the petitioner was called upon to submit his
representation, if any, on the enquiry report. The petitioner gave his
representation dated 14th November 2011 and denied the findings of
the Enquiry Officer.
6 After a silence of about five months, the petitioner received
a letter dated 9th April 2012 from the first respondent stating that the
Board of Governors had resolved that a fresh enquiry be conducted
against the petitioner under Rule 16 of CCS (CCA) Rules. It is
necessary to clarify here that the earlier charges that were levelled
against the petitioner under Rule 14, as mentioned above, was for
"imposing major penalties" whereas the latest enquiry under Rule 16 is
for "imposing minor penalties" though the charges were similar.
Shraddha Talekar PA 4/9
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7 The petitioner by his reply dated 2nd May 2012 stated that
since an enquiry had already been conducted as contemplated by the
respondent no.1 and called upon the respondent no.1 to withdraw its
letter dated 9th April 2012.
8 The respondent no.1, however, proceeded to issue a
memorandum dated 18th May 2012 informing the petitioner that it was
proposed to take action against the petitioner under Rule 16 of CCS
(CCA) Rules. The petitioner was also given a statement of imputation
of misconduct and misbehaviour on which action was proposed to be
taken against the petitioner.
The petitioner by his reply dated 28 th May 2012 denied
charges and called upon the respondent No.1 to withdraw the said
letter.
9 This was followed by yet another memorandum dated 29th
October 2012 (3rd memo) from the first respondent with a statement of
imputation of misconduct and misbehaviour and the charges levelled.
The charges levelled against the petitioner were similar to the charges
levelled when the earlier enquiry was held. In other words the charges
of alleged misconduct / misbehavior in all the 3 memos, i.e., 1 st memo,
Shraddha Talekar PA 5/9
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2nd memo and 3rd memo are similar. The petitioner gave a detailed
reply once again denying the allegations and called upon the
respondent no.1 to withdraw the memo.
10 The petitioner, thereafter, received an order dated 10th
December 2012 from the respondent no.1 by which the petitioner was
informed that an enquiry officer was being appointed to enquire into
the charges framed against the petitioner. It is necessary to observe
here that the Enquiry Officer was the same person, who was the
Enquiry Officer earlier following the 2 nd memo, whose report and
conclusions were abandoned by the respondent no.1. The Enquiry
Officer issued notice dated 11 th February 2013 calling upon the
petitioner to remain present for preliminary hearing.
11 Against this last salvo from the respondent no.1, petitioner
has approached to this Court for a writ quashing the same and
prohibiting the respondent no.1 from conducting any fresh enquiry. It
is the case of the petitioner that this is nothing but witch-hunting by the
respondent no.1 and the petitioner is being harassed by the respondent
no.1 for inexplicable reasons.
Shraddha Talekar PA 6/9
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12 We have considered the reply filed by the respondent no.1
in which apart from mere denials the only stand taken is that the
petitioner has an alternative remedy and that the petitioner should
approach the Central Administrative Tribunal. Even during the course
of arguments, the counsel for the respondent no.1 kept stating that the
petitioner should go to the Central Administrative Tribunal and this
Court should not entertain the petition. On other contentions raised by
the petitioner in the petition and during the course of the arguments the
counsel for the respondent no.1 had nothing to say.
13 It is quite obvious from the facts mentioned above that there
has been a witch-hunt against the petitioner by the respondent no.1 and
the petitioner is being harassed for inexplicable reasons. The
respondent no.1 has been issuing one memo after another, holding
enquiry after enquiry for the same charge of misconduct / misbehavior.
Moreover, it is over six years since the alleged misconduct /
misbehavior. This is nothing but illegal exercise of authority by the
respondent no.1. In such situation, a writ petition challenging the
second enquiry for the same charge of misconduct / misbehavior,
which were once enquired into and the report and conclusions
abandoned, is maintainable.
Shraddha Talekar PA 7/9
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13 The petitioner, we are told, has less than two years in
service. In this case, the petitioner was first issued a memorandum (1 st
memo) to which he replied. This was abandoned. Thereafter, another
memorandum (2nd memo) was issued. Both were for imposing major
penalties. A detailed enquiry was held and report was issued by the
Enquiry Officer. This was abandoned and after about five months, a
fresh enquiry is being commenced by issuing a 3 rd memo and this time,
for "imposing minor penalties".
ig In both the cases under major
penalties and under minor penalties, the charges are identical. It is also
necessary to note that the misconduct/misbehaviour is alleged to have
been committed sometime in mid 2007. It is rather obvious that the
intention of the powers that be in the offices of respondent no.1 is
nothing but to harass the petitioner. We find no reason to make the
petitioner go to the Central Administrative Tribunal, agitate his case
there and if the order is against the petitioner to come thereafter to the
High Court. This would be unfair to the petitioner.
14 We are also satisfied that there is no fresh cogent reason or
material before respondent No.1 to commence any fresh enquiry. The
fact that the first enquiry for the same charge of misconduct and
misbehaviour was alleged to be "major" and the subsequent proposed
Shraddha Talekar PA 8/9
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enquiry for the same charge is alleged to be "minor" is not reason
enough to justify the victimization of the petitioner.
15 It is in these exceptional circumstances that we have
invoked our extraordinary jurisdiction under Article 226 of the
Constitution of India instead of relegating the petitioner to the
alternative remedy before the Central Administration Tribunal. Added
to this is the fact this the learned counsel for respondent No.1, apart
from contending that the petitioner, has an alternate remedy did not
attempt to furnish any reason for the successive memorandum issued
to the petitioner.
16 In the circumstances, the petition is certainly maintainable
and is hence allowed and rule is made absolute in terms of prayers (a),
(b) and (c). No order as to costs.
(K.R. SHRIRAM, J.) (S.J. VAZIFDAR, J.)
Shraddha Talekar PA 9/9
