Kerala High Court

Dr.Radhakrishna Pillai vs The Union Of India on 5 August, 2021

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
   THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                              &
         THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                   WA NO. 704 OF 2021
AGAINST THE JUDGMENT DATED 09.04.2021 IN WP(C) 8615/2021
                 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:

         DR.RADHAKRISHNA PILLAI,S/O. N.GOPALA PILLAI,
         AGED 57 YEARS, ASSISTANT PROFESSOR, DEPARTMENT
         OF LIFE SCIENCES, UNIVERSITY OF CALICUT, CALICUT
         UNIVERSITY P.O., THENJIPALAM, MALAPPURAM
         DISTRICT.
         BY ADVS.
         GEORGE POONTHOTTAM (SR.)
         SMT.NISHA GEORGE

RESPONDENTS/RESPONDENTS:

    1    THE UNION OF INDIA,
         REPRESENTED BY THE SECRETARY TO GOVERNMENT,
         MINISTRY OF HOME AFFAIRS, JAI SINGH MARG,
         HANUMAN ROAD AREA,
         CONNAUGHT PLACE, NEW DELHI-110001.
    2    THE UNION OF INDIA,
         REPRESENTED BY THE SECRETARY TO GOVERNMENT,
         MINISTRY OF EXTERNAL AFFAIRS, JAI SINGH MARG,
         HANUMAN ROAD AREA, CONNAUGHT PLACE, NEW DELHI-
         110001.
    3    THE UNIVERSITY OF CALICUT,CALICUT UNIVERSITY
         P.O., THENJIPALAM, MALAPPURAM DISTRICT-673635,
         REPRESENTED BY ITS REGISTRAR.
    4    THE CHANCELLOR,THE UNIVERSITY OF CALICUT,
         KERALA RAJ BHAVAN, KERALA GOVERNOR'S CAMP P.O.,
         THIRUVANANTHAPURAM-695009,
         E-MAIL: [email protected]
         THE VICE CHANCELLOR,
 W.A.No.704 of 2021            2

     5      UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
            THENJIPALAM, MALAPPURAM DISTRICT-673635.
     6      THE SYNDICATE,UNIVERSITY OF CALICUT,
            CALICUT UNIVERSITY P.O., THENJIPALAM,
            MALAPPURAM DISTRICT-673635,
            REPRESENTED BY ITS CHAIRMAN.
     7      THE UNIVERSITY GRANTS COMMISSION (UGC),
            BAHADUR SHAH ZAFAR MARG, NEW DELHI-110002,
            REPRESENTED BY ITS CHAIRMAN.


            R7 BY ADV SRI.S.KRISHNAMOORTHY, CGC
            R3, R5 & R6 BYSC SRI. P.C SASIDHARAN
            R1 & R2 BY ASG SRI.P.VIJAYAKUMAR
            R4 BY ADV. SMT.M.U.VIJAYALEKSHMI




THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.08.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.704 of 2021                   3

       A.K.JAYASANKARAN NAMBIAR & GOPINATH P., JJ.
      -----------------------------------------
                      W.A. No.704 of 2021
      -----------------------------------------
              Dated this the 5th day of August, 2021

                               JUDGMENT

A.K.Jayasankaran Nambiar, J.

The petitioner in W.P.(C) No.8615 of 2021 is the appellant

before us aggrieved by the judgment dated 09.04.2021 of the learned

single Judge.

2. The brief facts, necessary for the disposal of the writ

appeal, are as follows: The appellant/writ petitioner, who is an OCI card

holder, states that he had been continuously engaged by the 3 rd

respondent University. Based on a complaint allegedly made by a

fictitious person before the Chancellor of the 3rd respondent University,

the University issued notices to the appellant asking him to show cause

as to why the University would not be justified in terminating his

services under the University on the ground that he had breached the

provisions of Section 7B(2)(a) and (i) of the Indian Citizenship Act, 1955.

The appellant while having replied to Ext.P15 communication, as also

Ext.P17 notice that was subsequently issued to him, through Exts.P16

and P18 letters respectively, approached this Court through the writ

petition inter alia on the contention that the notices issued by the 3 rd

respondent University had already determined the guilt of the appellant.

It was his contention therefore that albeit the fact that Exts.P15 and P17

were in the nature of show cause notices, inasmuch as the University

had already made up its mind to proceed against the petitioner, there

was no point in pursuing the matter with the University as the end result

was a foregone conclusion. In support of this contention the appellant

relied on the decisions of the Supreme Court that hold that in cases of

such show cause notices the theory of useless formality would require

this Court to entertain the writ petition notwithstanding that what was

impugned was only a show cause notice.

3. The Learned single Judge, who considered the matter,

found that the writ petition filed against Exts.P15 and P17 show cause

notices was premature. Thereafter, taking note of the apprehensions

raised by the learned counsel for the appellant, the learned single Judge

directed that the appellant/petitioner be granted 15 days time for

submitting his explanation to Exts.P15 and P17 show cause notices and

that the affidavit insisted by the University could be attested by an

Advocate or a Notary in lieu of an attestation by a Judicial Magistrate as

originally insisted upon by the University. The appellant's interest was

also safeguarded by making it clear that after the explanation from the

appellant was received and considered if adverse action was to be taken

against him, he would be put on notice and heard before such action

was concluded.

4. In the appeal preferred before us against the aforesaid

judgment of the learned single Judge the contention of the learned

Senior Counsel Shri George Poonthottam is primarily with regard to the

alleged futility of pursuing a show-cause notice before the University

authorities. He would reiterate the contention based on the judgments

of the Supreme Court referred above, and emphasize the past history of

the relationship between the appellant and the University, to point out

that there would be no point in replying to the show-cause notices and

prosecuting the matter before the University since the latter had already

taken a decision to proceed against the appellant. In short, what the

learned Senior Counsel points out is that the proceedings pursuant to

the show cause notices would not be fair and hence, any order passed by

the University would automatically be vitiated on account of the

inherent lack of fairness in administrative action.

5. The learned Senior Counsel also points out an irregularity

in the procedure currently adopted by the University in that while the

proceedings against him had originated from the office of the

Chancellor, who had asked the University authorities to submit their

comments on the alleged fictitious complaint received in the office of the

Chancellor, the University authorities had proceeded to initiate

independent action against the appellant. It is pointed out that this was

an improper procedure adopted by the University authorities and one

that was ultra vires the powers of the University under the relevant

statute.

6. We have considered the submissions of the learned Senior

Counsel, but, we find ourselves disinclined to interfere with the

impugned judgment of the learned single Judge. While it may be a fact

that in appropriate cases, where it is established that the proceedings

initiated against an employee by the employer are farcical and an empty

formality inasmuch as the employer has already decided on a particular

course of action, notwithstanding any explanation offered by the

employee, we do not see the instant as a case where those principles

will necessarily apply. On a perusal of Exts.P15 and P17 show-cause

notices, we find that the University had only communicated to the

appellant a proposal for taking action against him, and the opportunity

for the appellant to explain the circumstances under which he acted as

also the relevant provisions in law by which he can absolve himself from

the said allegations, had not been foreclosed. The learned single Judge

too had taken note of the said aspects and had in fact safeguarded the

interest of the appellant by directing the University to offer him

sufficient time to prefer his explanation and thereafter afford him an

opportunity of hearing before taking any adverse action against him if so

found necessary by the University. These procedural safeguards, in our

opinion, are sufficient to ensure fairness in any administrative action

that is contemplated against the appellant.

7. We may in this connection notice some precedents on the

point. In Oryx Fisheries (P) Ltd. v. Union of India , (2010) 13 SCC

427 it was held: -

".......It is well settled that a quasi-judicial authority, while acting in exercise of its statutory power must act fairly and must act with an open mind while initiating a show-cause proceeding. A show-cause proceeding is meant to give the

person proceeded against a reasonable opportunity of making his objection against the proposed charges indicated in the notice."

Similarly, in Union of India v. Kunisetty Satyanarayana , (2006) 12 SCC 28 it was held: -

13. It is well settled by a series of decisions of this Court 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 : JT (1995) 8 SC 331] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] , Ulagappa v. Divisional Commr., Mysore [(2001) 10 SCC 639] , State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , etc.

14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held 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 which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge- sheet.

16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.

In essence therefore, recourse to proceedings under Article 226 of the

Constitution of India against mere show cause notices calling for an

explanation from an employee, should not ordinarily be entertained even

if the employee has a case that the notice is vitiated by an error of

jurisdiction. In our view, even in such cases, the employee must first

appraise the employer of the lack of jurisdiction and it is only if the

employer passes an adverse order notwithstanding the lack of

jurisdiction that the employee should be permitted to approach this

Court under Article 226 of the Constitution of India. We are, therefore,

not inclined to interfere with the judgment of the learned single Judge,

and for the reasons stated in the impugned judgment, as supplemented

by the reasons in this judgment, the writ appeal is dismissed.