1. Heard on application for extension of time to comply with order dated 29.08.2022 passed by this Court in WPS No. 798 of 2019 (Mukesh Pratap Singh Vs. School of Pharmacy & others).
2. Learned counsel for the applicants prays for further time to comply with the order passed by this Court on 29.08.2022.
3. On due consideration, the prayer is allowed.
4. Respondent No. 1/applicant is granted further within three weeks from today to comply with the order passed by this Court on 29.08.2022 in WPS No. 798 of 2019.
5. In view of the above, the instant petition stands disposed of.
6. A copy of this order be kept in the order dated 29.08.2022 passed by this Court in WPS No. 798 of 2019.
7. The petitioner who is working as an Assistant Professor with respondent No.1 was charge sheeted on 22-2019 alleging certain misconduct. He has filed this writ petition questioning the authority of the Principal to issue the charge sheet and also challenged the continuation of suspension order dated 16-5-2018.
8 .Learned counsel for the petitioner would submit that the Principal is not the competent authority to issue the charge sheet and as per Statutes of the Chhattisgarh Swami Vivekanand Technical University, Statute No.19 (College Code) governs the appointment and service conditions of Teacher, Professor, Assistant Professor and Reader appointed in the private college which are affiliated to the University. Clause (7) of the Statutes deals with suspension, penalty and disciplinary authority. Relevant Clauses 32 an 33 are extracted as under:
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“32
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(1)
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The appointing authority may by an order place an employee, including a teacher, of the college, under suspension:-
Or
N.B.: In case of teachers the Governing Body and in case of other employees the Principal shall be deemed to be the appointing authority. |
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(2) |
An employees of the college shall be deemed to have been placed under suspension by an order of the appointing authority.
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(3) |
An order of suspension made or deemed to have been made shall continue to remain in force until it is modified or revoked by the appointing authority, but in cases other than criminal proceedings it shall not operate for more than six months. |
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(4) |
During the period of suspension, the employees shall be paid subsistence allowance equal to fifty percent of the emoluments last drawn by him. |
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(5) |
If the employee is exonerated from the charge or charges are subsequently withdrawn he shall be reinstated in his post and shall be paid full salary for the period of his suspension after deduction the subsistence allowance already paid to him. |
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33. |
(1) |
The appointing authority may, for good and sufficient reasons, impose on an employee of the College (including a teacher) the following penalties:
Besides the above, the penalty of fine not exceeding Rupees Five may be imposed on a Class IV employee of the college for petty carelessness, unpunctuality, idleness or similar misconduct of a minor nature. |
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(2) |
The appointing authority may institute disciplinary proceedings against an employee of the college. |
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(3) |
No order imposing any of the penalties specified in sub-paragraph (1) above than fine shall be made except in accordance with the procedure for imposing penalties on Government servant prescribed by the Madhya Pradesh Government and in force at the time the appointing authority orders an inquiry against the college employee concerned.
Provided that no proposal to reduce in rank or pay a teacher confirmed in the Service of the College or to remove or dismiss him from Service or to retire him compulsorily shall be deemed to have been passed by the Governing Body unless it is supported by a majority of two-thirds of the members present at the meeting of the Governing Body in which it comes up for consideration and where a decision is duly taken it shall not be given effect to unless it is approved by the Executive Council. |
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(4) |
Following lapses would constitute misconduct on the part of teacher of the College, including the Principal:
(I) Failure to perform his academic duties such as lecturers, demonstrations, assessment, guidance, invigilation etc.
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9. He would further submit that a bare perusal of the Statutes, it is evident that the governing body is the competent authority to issue the charge sheet and the charge sheet has not been issued by the Principal who is not authorised to issue the charge sheet, therefore, continuation of suspension order is bad-in-law and deserves to be set aside.
10. On the other hand, learned counsel for Respondent No.1 would submit that before issuance of charge-sheet, approval has been granted by the governing body and to demonstrate the averments, he has annexed the documents ie., Minutes of Meeting dated 13-5-2018, Extract of the Resolution dated 13-5-2018 and subsequent Minutes of Meeting dated 13- 1-2019 and demonstrated that the governing body has approved the same, therefore, the objection raised by the petitioner has lost its significance.
11. This court while hearing the writ petition on 24-4-2019 has passed the order directing the petitioner to participate in the departmental enquiry, but no final order shall be passed. In pursuance of the direction given by this court the enquiry is continued, but not final order has been passed. Only ground raised by the petitioner with regard to validity of the charge sheet has lost its significance in view of the reply filed by the respondents No. 1 and 2 wherein they have demonstrated that the governing body has granted approval before issuance of the charge-sheet.
12. It is well settled position that intermittent intervention in the disciplinary proceeding is not preferable and only on exceptional circumstances, the Court can issue a direction against the proceedings. It is also well settled position that judicial review cannot extend to the examination of the correctness or reasonableness of the decision as a matter of fact. The purposes of judicial review is to ensure that the individual receive fair treatment and judicial review is not an appeal from decision but a review of the manner in which the decision is taken. The reason why ordinarily a writ petition should not be entertained a mere show cause 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 effects the right of an“10. Ordinarily a writ application does not lie against a charge-sheet 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, charge-sheet 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. The Hon’ble Supreme Court in case of Secretary Ministry of Defence vs Prabhash Chandra Mirdha (2012) 11 SCC 565) [LQ/SC/2012/514] has observed in paragraphs No. 10, 11 and 12 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, AIR 1987 SC 943 [LQ/SC/1987/250] ; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327 [LQ/SC/1995/1185] ; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 [LQ/SC/2000/1090] (2); Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., AIR 2004 SC 1467 [LQ/SC/2004/40] ; and Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906 [LQ/SC/2006/1136] ).
12. In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311, [LQ/SC/2010/1123] 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 & Ors. v. Upendra Singh, (1994) 3 SCC 357) [LQ/SC/1994/236] .
13. 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."
13. In view of the above, it is directed that respondent No.1 shall conduct enquiry in accordance with law, principle of natural justice giving sufficient m opportunity to the petitioner to take all his defence available to him, thereafter, they will pass the order and will make an attempt to conclude disciplinary proceeding within outer limit of six weeks from the date of receipt of a copy of this order.
14. With the aforesaid observation and direction, the instant writ petition is disposed of.
15. Interim relief granted earlier shall stand vacated.
