Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1254 (PAT)

Dasgupta Rupashree v. State Of Bihar

2012-09-06

NAVIN SINHA

body2012
ORAL ORDER Heard learned counsel for the petitioner and the Indira Gandhi Institute of Medical Sciences (hereinafter referred to as “IGIMS”). 2. The petitioner, appointed as Associate Professor (Reader ) is aggrieved by the order dated 24.8.2012 contending that it demotes her to the post of Assistant Professor, a post for which she had never applied. She was an applicant for the post of Associate Professor only. It is next contended that the order has civil consequences and has been passed without opportunity to show cause. Reliance is placed on AIR 1987 SC 1627 (Hussain Sasan Saheb Kaladgi v. State of Maharashtra ). Learned Counsel for the petitioner next submits that the impugned order though purports to be a show cause notice is in fact a conclusive opinion with a finding couched in the form of a show cause issued with a closed mind. He relies upon (2010) 13 SCC 427 ( Oryx Fisheries Private Limited v. Union of India). 3. Learned Counsel for the IGIMS submits that the writ application is premature. The language of the impugned order may not be very happily worded. It is but a show cause notice only. The petitioner had to be told the grounds that she was required to meet, otherwise it may rightly have been objected that unless the grounds are made known, she may not be able to defend her appointment properly. The show cause notice is not without jurisdiction and therefore the writ application is not maintainable. 4. A show cause notice is not a final order. It only indicates a unilateral tentative opinion. Such opinion may be right or wrong. Objections are invited to arrive at a decision after considering all pros and cons of the matter including fulfillment of the basic principles of law that no one can be condemned unheard. It is therefore necessary that the show cause notice must contain a minimum of the necessary materials informing the concerned what she is required to answer. A cryptic show cause notice not enabling the concerned to understand what she has to answer may itself be bad. Conversely a show cause notice must not reflect that the authority issuing it has made up its mind and was only performing ritualistic formality with a closed mind. 5. A cryptic show cause notice not enabling the concerned to understand what she has to answer may itself be bad. Conversely a show cause notice must not reflect that the authority issuing it has made up its mind and was only performing ritualistic formality with a closed mind. 5. A show cause notice issued without jurisdiction, a show cause notice containing no grounds or the grounds mentioned itself not disclosing sufficient materials for formation of any opinion or issued with a predetermined mind shall not bar maintainability of a writ application. But if it is not so and a final decision is yet to be taken, the writ application shall be premature and the stage for judicial review shall not arise. It is possible that after cause is shown the matter may be dropped. A writ petition therefore shall not lie against a show cause notice. 6. In (2006) 12 SCC 28 (Union of India, v. Kunisetty Satyanarayana) it was observed as follows:- “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. 15. 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. 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.” 7. The impugned order states that the petitioner was appointed on the post of Associate professor and had joined on 14.10.2011. On 19.5.2012 a High Level Committee examined her certificates and other connected documents. It was found that the petitioner did not possess the requisite qualifications for the post of Associate professor and that her qualifications stood at a lower level. She did possess qualifications for the post of Assistant professor. Therefore she should be considered for demotion to the post of Assistant Professor and the excess salary paid be recovered from her. She was required to reply within five days failing which it would be presumed that she had nothing to say in the matter. It is not the case of the petitioner that the show cause notice has been issued by an authority incompetent to do so. The advertisement was for five posts including that of Assistant Professor and Associate professor. If a person was appointed on a post, she has a right to continue on the same in accordance with law. If a bonafide error was committed in appointing her on a post for which he may not have possessed the requisite qualification but was eligible for a lower post, merely because she may have been appointed on a higher post and had joined, shall not fetter the hands of the appointing authority in any manner to hold that irrespective of the qualifications, once appointed a vested right had accrued to continue. That may amount to perpetuating an illegality. Therefore the respondents are well within their jurisdiction to re-examine matters and take a fresh decision in accordance with law. 8. The Court does not find any infirmity in the show cause notice. It is not expression of a conclusive opinion that the petitioner did not possess the requisite qualifications for the post of Associate Professor. Therefore the respondents are well within their jurisdiction to re-examine matters and take a fresh decision in accordance with law. 8. The Court does not find any infirmity in the show cause notice. It is not expression of a conclusive opinion that the petitioner did not possess the requisite qualifications for the post of Associate Professor. On the contrary the Court is of the opinion that it is a speaking show cause notice disclosing the mind of the respondents completely why they were of the opinion that the petitioner did not possess the requisite qualifications for the post of Associate Professor. In absence of the same the petitioner may not have been able to appreciate why the respondents were of the opinion to the contrary. The significance of the words in the third paragraph cannot be lost sight of. It does not demote her but states why she should not be deemed to have been appointed on the post of Assistant Professor, referring to demotion in that context. 9. In Hussain Sasan Saheb Kaladgi (supra) the facts were entirely different. It related to a case of direct recruitment as different from appointment by promotion. A concession was made by the Government Pleader that he was a direct recruit and not a departmental promotee. In that context considering the concession it was held that a direct recruit cannot be reverted and only a departmentally promoted employee can be reverted. The petitioner is not sought to be reverted. It is a case where the respondents are opining that she came to be appointed on a wrong post. In Oryx Fisheries Private Limited ( supra) relied upon on behalf of the petitioner the crucial words in the show cause notice at paragraph 22 of the judgement are as follows:- “22…………….At the meeting it was convincingly proved that the cargo shipped by you to the abovementioned buyer was defective and you have not so far settled the complaint. Therefore…………… I hereby call upon you to show cause why the Certificate of Registration as an exporter granted to you should not be cancelled for reasons given below: 1. It has been proved beyond doubt that you have sent sub-standard material to M/s Cascade Marine Foods, LLC, Sharjah. 2. Therefore…………… I hereby call upon you to show cause why the Certificate of Registration as an exporter granted to you should not be cancelled for reasons given below: 1. It has been proved beyond doubt that you have sent sub-standard material to M/s Cascade Marine Foods, LLC, Sharjah. 2. You have dishonoured your written agreement with M/s Cascade Marine Foods, LLC, Sharjah to settle the complaint made by the buyer as you had agreed to compensate to the extent of the value of defective cargo sent by you and have now evaded from the responsibility. 3. This irresponsible action have brought irreparable damage to India's trade relation with UAE.” 11. It was therefore urged that the language used made it apparent that the authorities had completely made up their mind and reached a definite conclusion about the alleged guilt of the appellant. This rendered the subsequent proceedings an empty ritual and an idle formality. The power was being exercised in quasi judicial capacity. It was observed at para 24 that “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”. It was observed at para 27 as follows:- “27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show-cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony.” 12. The language used in the show cause notice as considered in Oryx Fisheries Private Limited (supra) is fundamentally different from that in the present show cause notice as discussed above. 13. In fact that the present show cause notice fulfils the requirements of the law is apparent from para 31 of the judgement as follows:- 31. It is of course true that the show-cause notice cannot be read hypertechnically and it is well settled that it is to be read reasonably. 13. In fact that the present show cause notice fulfils the requirements of the law is apparent from para 31 of the judgement as follows:- 31. It is of course true that the show-cause notice cannot be read hypertechnically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show-cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially……..” 14. It may only be observed that it is not a subjective opinion of the person issued a show cause notice which is conclusive. If it is challenged judicial review shall have to be confined to an objective consideration. The Court finds no infirmity in the show cause notice. The petitioner is stated at the Bar to have subsequently filed her reply. Issues whether she is to be continued as Associate professor or appointed as Assistant professor are left for the authorities to deliberate. 15. To that extent the Court finds no merit in the writ application. 16. A supplementary affidavit has been filed today that the authorities were pressurizing the petitioner to withdraw the writ petition and that she has been roughed up leading to institution of a police case also. The Director has declined to meet her for considering her grievances. The petitioner apprehends that she may not be given a fair deal by the respondents even while considering the reply to the show cause. The fears of the petitioner on the latter aspect are allayed by the fair submission made by the learned Additional Advocate General No. I on behalf of the IGIMS that it shall consider the cause that may be shown impartially and with an open mind on all aspects. The fears of the petitioner on the latter aspect are allayed by the fair submission made by the learned Additional Advocate General No. I on behalf of the IGIMS that it shall consider the cause that may be shown impartially and with an open mind on all aspects. Learned Additional Advocate General also agreed that the employees of the Institution constitute a family and that if anyone of them has any grievance it is the duty of the Director to lend an ear to the employee and consider grievances appropriately in accordance with law. If the petitioner appears before the Director along with a copy of the present order in accordance with the assurance given on his behalf it is expected that the Director shall act on the latter aspect. 17. The writ application is dismissed.