Dr. Radhakrishna Pillai v Union of India and others

## **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 5[TH] 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 DELHI110001.** - **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: KERALARAJBHAVAN@GMAIL.COM.** **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 5[th] 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 3[rd] 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 W.A.No.704 of 2021 4 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 W.A.No.704 of 2021 5 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 6 ## W.A.No.704 of 2021 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 W.A.No.704 of 2021 7 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 chargesheet. **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 8 W.A.No.704 of 2021 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. 8. Taking note of the fact that this Court had granted a stay of further proceedings pursuant to the impugned judgment while admitting this appeal, we make it clear that the 3[rd] respondent University shall extend the time that was granted by the learned single Judge to the appellant to prefer his explanation and take a decision only after complying with a fair procedure in accordance with law and after hearing the appellant. **Sd/-** ## **A.K.JAYASANKARAN NAMBIAR** **JUDGE** **Sd/GOPINATH P. JUDGE** cks