Delhi High Court
Sapna Jain vs University Of Delhi Through The ... on 12 August, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.9042 /2011
% 12th August, 2013
SAPNA JAIN ..... Petitioner
Through: Petitioner in person.
versus
UNIVERSITY OF DELHI THROUGH THE VICE CHANCELLOR AND
ORS ..... Respondents
Through: Mr. Amit Khemka, Advocate for
respondent Nos.1 to 4.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
+ W.P.(C) 9042/2011 and C.M. Nos.20343/2011 (stay) and 2735/2012
(interim directions)
1. There are two reliefs claimed in this writ petition. First is for
quashing of the memorandum and communication of the respondent No.1-
University dated 14.10.2011 and 13.12.2011 whereby the petitioner has been
asked to show cause as to why the departmental proceedings be not initiated
against the petitioner. Second relief is for appointing of an investigating
agency to look into the alleged tampering of the result of one student Mr.
Pradeep Kumar in M. Phil course by the respondent No.3.
2. So far as challenge to the communications dated 14.10.2011
and 13.12.2011 is concerned, the writ petition is pre-mature because no
chargesheet has been issued to the petitioner till date. These
communications only show contemplation for issuing of chargesheet. Even
if chargesheet is issued, Courts do not decide truth or falsity of the
allegations, and which are decided by the Enquiry Officer. Chargesheet can
only be quashed if there is lack of inherent jurisdiction in issuing of the
same. I have had an occasion to consider this in the judgment in the case of
Dr. Muhammad Iqbal Vs. Union of India and Ors. in W.P.(C)
No.4222/2012 decided on 8.7.2013 wherein I have held as under:-
"3. The Supreme Court in the case of State of Uttar Pradesh Vs.
Brahm Datt Sharma and Anr. (1987) 2 SCC 179 has held the following
in para 9 of its judgment:-
"9. The High Court was not justified in quashing the show cause
notice. When a show cause notice is issued to a government servant
under a statutory provision calling upon him to show cause, ordinarily
the government servant must place his case before the authority
concerned by showing cause and the courts should be reluctant to
interfere with the notice at that stage unless the notice is shown to have
been issued palpably without any authority of law. The purpose of
issuing show cause notice is to afford opportunity of hearing to the
government servant and once cause is shown it is open to the
government to consider the matter in the light of the facts and
submissions placed by the government servant and only thereafter a final
decision in the matter could be taken. Interference by the court before
that stage would be premature. The High Court in our opinion ought not
have interfered with the show cause notice." (underlining added)
A reference to the aforesaid para shows that truth or falsity of
the allegations cannot be determined by a Court before whom enquiry
proceedings are challenged at the outset and an entitlement to challenge
the enquiry proceedings arises only when there is found lack of
jurisdiction.
4. The Supreme Court in its recent judgment in the case of
Secretary, Ministry of Defence and Ors. Vs. Prabhash Chandra Mirdha
2012 (11) SCC 565 has similarly so held by referring to various earlier
judgments including the judgment in the case of Brahm Datt Sharma
(supra). Paras 10 to 12 of the said judgment read as under:-
"10. Ordinarily a writ application does not lie against a chargesheet or
show cause notice for the reason that it does not give rise to any cause of
action. It does not amount to an adverse order which affects the right of
any party unless the same has been issued by a person having no
jurisdiction/competence to do so. A writ lies when some right of a party is
infringed. In fact, chargesheet does not infringe the right of a party. It is
only when a final order imposing the punishment or otherwise adversely
affecting a party is passed, it may have a grievance and cause of action.
Thus, a chargesheet or show cause notice in disciplinary proceedings
should not ordinarily be quashed by the Court. (Vide; State of U.P. v.
Brahm Datt Sharma, Bihar State Housing Board v. Ramesh Kumar
Singh, Ulagappa and Ors. v. Div. Commr., Mysore and Ors., Special
Director and Anr. v. Mohd. Ghulam Ghouse and Anr. and Union of
India and Anr. v. Kunisetty Satyanarayana).
11. In State of Orissa and Anr. v. Sangram Keshari Misra (SCC pp.
315-16, para 10) this Court held that normally a chargesheet is not quashed
prior to the conclusion of the enquiry on the ground that the facts stated in
the charge are erroneous for the reason that correctness or truth of the
charge is the function of the disciplinary authority. (See also Union of
India v. Upendra Singh).
12. Thus, the law on the issue can be summarised to the effect that
chargesheet cannot generally be a subject matter of challenge as it does not
adversely affect the rights of the delinquent unless it is established that the
same has been issued by an authority not competent to initiate the
disciplinary proceedings. Neither the disciplinary proceedings nor the
chargesheet be quashed at an initial stage as it would be a premature stage
to deal with the issues. Proceedings are not liable to be quashed on the
grounds that proceedings had been initiated at a belated stage or could not
be concluded in a reasonable period unless the delay creates prejudice to
the delinquent employee. Gravity of alleged misconduct is a relevant
factor to be taken into consideration while quashing the proceedings."
(underlining added)
5. It is therefore clear that a Court can only interfere with
continuation of enquiry proceedings when there is complete lack of
jurisdiction in holding of the enquiry proceedings by the authority which
is holding the enquiry, or because the authority did not have the power to
initiate the enquiry or the enquiry may be barred by principle of res
judicata or double jeopardise or that on the face of the show cause notice
even if facts are accepted as correct no charges are made out or there is
no cause of action or no violation of any law or rules etc etc."
3. Therefore, the writ petition so far as challenge to the
communications dated 14.10.2011 and 13.12.2011 is concerned is dismissed
as being pre-mature inasmuch as departmental proceedings have yet not
been initiated against the petitioner and no Article of Charges are being
issued.
4. So far as the issue of an enquiry to be conducted for looking
into tampering of the result of a student is concerned, admittedly the said
student Mr. Pradeep Kumar is not a party to the writ petition. On account of
Mr. Pradeep Kumar not being a party to the writ petition, issues which are
alleged against him, including of collusion and illegal action of the
respondent No.3 cannot be decided. Therefore, so far as this aspect is
concerned, the writ petition is disposed of with liberty to the petitioner to
file a detailed representation with respect to result of Mr. Pradeep Kumar to
the respondent No.1 and the respondent No.1 will mark this representation
to the appropriate authority for decision. The appropriate authority will hear
the petitioner and thereafter decide the matter in accordance with the rules of
the respondent No.1. The entire exercise with respect to this matter be
completed within a period of three months of receipt of the representation of
the petitioner by the respondent No.1-University.
5. Writ petition is disposed of with the aforesaid observations.
VALMIKI J. MEHTA, J
AUGUST 12, 2013
Ne
