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IN THE HIGH COURT OF MADRAS
Elipe Dharma Rao & M.Venugopal JJ
Dr.M.Bala Soudarssanane v. Central Administrative Tribunal, Chennai & Ors.,
W.P. No.9615 & 9616 of 2011 dtd. 29.7.2011
(B)Constitution of India-Art.14, 226-Service-Disciplinary proceeding-Charge memo-Suspension-Challenge-Writ-Maintainability-Bias-Mala fide- When the impugned charge-sheet or show-cause notice has been slapped on a particular person as a result of malafide or without jurisdiction, writ petition could be filed to challenge the same.
No doubt, ordinarily no writ will lie against a charge-sheet or a show-cause notice, as has been repeatedly held by the Honourable Apex Court, like the one in Union Of India And Another vs. Kunisetty Satyanarayana [(2006) 12 SCC 28]. But, at the same time, there is no complete bar regarding filing and entertaining of such writ petitions. If the Court finds that the impugned charge-sheet or show-cause notice has been slapped on a particular person, wholly without jurisdiction or for some other reason, the writ petition is very well maintainable. In the case on hand, though the petitioner is challenging the charge-sheet issued to him, he challenges the same on the ground of bias, which is a question of fact to be gone into. If the element of bias is proved, it will cut the root of the case of the respondents, thus paving way for the petitioner to claim a clean chit. Therefore, in the facts and circumstances of the case, we have no hesitation to hold that both these writ petitions are very well maintainable. Para 26
(C)Constitution of India-Art.14-Service-Disciplinary proceeding- Bias-Mala fide-Mere leveling of general allegation by the charged officer against a particular person would not be taken as bias or mala fide on the part of such person.
At no point of time, it was the plea of the petitioner to remove the third respondent/Director from the said Committee. The Committee report was not challenged by the petitioner. In these circumstances, the question of the third respondent/Director, becoming a Judge of his own cause does not arise, because it is not the finality of the decision of the enquiry or anything of that sort that has been communicated by him, but only an order of suspension and the charge-sheet, contemplating enquiry against the petitioner with some imputations, in his official capacity as the Director of the Institute. A different person has been appointed as the Enquiry Officer. It would have been a completely different thing, had the third respondent himself was nominated as the Enquiry Officer. Only in such circumstances, the petitioner would have had the opportunity of calling the third respondent ‘a Judge of his own cause’, so as to nullify the actions of the respondents as ‘biased’ or ‘mala fide’. Para 37
2. The case of the petitioner is that over a period of time, the respondents 3 and 4 (Mr.K.S.V.K.Subbarao, Director and Dr.K.S.Reddy, Dean of JIPMER respectively) had been towing together and hatching a plan to keep the petitioner away from the Institute, so that they can do whatever they want. He further stated that he has given complaints dated 31.5.2010 and 17.6.2010 to the second respondent, who had also agreed to conduct an enquiry against the respondents 3 and 4 and though an enquiry was conducted, the minutes of the meeting were declined to be furnished to the petitioner by the third respondent and hence, the petitioner himself drew the minutes from out of his memory and sent them to the third respondent, which were not disputed by the third respondent/Director. The petitioner further states that in such circumstances, the enquiry on his petition should be conducted by the 2nd respondent, but, on pure imagination, the charge memo has been issued signed by the third respondent against whom he (the petitioner) has already preferred complaint with the second respondent. He has further stated that the respondents 3 and 4, in order to see that the issues relating to them does not crop-up, have pre-empted by engineering to issue the order of suspension and the charge memo. Thus, in a nut shell, the main ground of the petitioner in these two writ petitions is that the entire action of the respondents is vitiated on account of bias and mala fides.
3. The second respondent filed a common counter affidavit, rebutting all the allegations made by the petitioner. It is the case of the respondents that there is no bias or mala fide action on their part and this fact has been properly analysed by the Tribunal and hence, no interference of this Court is called for.
4. We heard, at length, the arguments of Ms.R.Vaigai, learned counsel appearing for the petitioner and Mr.Mohan Parasaran, learned Additional Solicitor General of India appearing for the second respondent and Mr.Parthasarathy, learned counsel appearing for the respondents 3 and 4 in both these matters.
5. As has been referred to by us supra, the prime contention of the petitioner, in challenge to the suspension order and the charge memo. issued against him, is that both the said actions of the respondents are the result of bias and mala fide intention, as the third respondent, against whom he made allegations, has signed both the suspension order and the charge memo and in fact, the order of suspension and the charge memo have emanated from the report given by Dr.V.I.Mathan Committee, in which the third respondent was also a member. It has also been argued on his behalf that Dr.V.I.Mathan Committee was primarily constituted to go into the complaint lodged by the petitioner against the third respondent and the various irregularities happening in JIPMER.
6. Ms.R.Vaigai, the learned counsel appearing for the petitioner in both the writ petitions, has argued that since the action of the respondents is a clear case of bias and mala fide intention, which has been deprecated by the upper forums of law time and again, the impugned orders of suspension and charge memo need to be quashed. In support of her arguments, the learned counsel has taken us through various documents filed in the typed set of papers, including various complaints
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