Judgment:
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE20H DAY OF JANUARY, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.50406/2018 (S – R) BETWEEN SMT.N.S.NAGALAKSHMI W/O SRI.K.NARASIMHASWAMY, AGED ABOUT69YEARS, EX-PRINCIPAL, V.V.S. PRE-UNIVERSITY COLLEGE FOR WOMEN, RESIDING AT NO.73, 7TH CROSS, 4TH MAIN, AGS LAYOUT, NEW BEL ROAD, BENGALURU – 560 054. ... PETITIONER (BY SRI M.S.BHAGWAT, ADVOCATE (PHYSICAL HEARING)) AND1 VIDYA VARDHAKA SANGHA REPRESENTED BY ITS SECRETARY, RAJAJINAGAR1T BLOCK, BENGALURU – 560 010.
2. SRI S.R.SUNDARAM ENQUIRY OFFICER AND ADVOCATE, NO.22, EAST PARK ROAD, 18TH CROSS, MALLESWARAM, BENGALURU – 560 055.
3. THE DIRECTOR DEPARTMENT OF2PRE-UNIVERSITY EDUCATION, PADAVI POORVA SHIKSHANA BHAVAN, MALLESWARAM, BENGALURU – 560 003.
4. THE DEPUTY DIRECTOR DEPARTMENT OF PRE-UNIVERSITY EDUCATION, PADAVI POORVA SHIKSHANA BHAVAN, MALLESWARAM, BENGALURU – 560 003.
5. THE STATE OF KARNATAKA DEPARTMENT OF EDUCATION, REPRESENTED BY ITS SECRETARY, M.S.BUILDING, BENGALURU – 560 001. ... RESPONDENTS (BY SRI C.V.KRISHNAN, ADVOCATE FOR R1 (VIDEO CONFERENCING); R2 SERVED AND UNREPRESENTED; SMT.SHARADAMBA A.R., AGA FOR R3 TO R5 (PHYSICAL HEARING)) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN M.A.(EAT) NO.2/2006 ON THE FILE OF THE III ADDL. CIVIL AND SESSION JUDGE, BANGALORE CITY (CCH25 AS ALSO THE
ORDEROF REMOVAL DATED0404.2005; SET ASIDE THE IMPUGNED
ORDERDATED1106.2018 PASSED IN M.A.(EAT) NO.2 OF2006BY THE III ADDL. CIVIL AND SESSION JUDGE, BANGALORE CITY (CCH25 ANNEXURE-A AND ALSO THE UNNUMBERS
ORDER/LETTER OF REMOVAL DATED0404.2005 (ANNEXURE-B) ISSUED BY THE R-1 AND ALSO THE IMPUGNED CHARGE MEMO DATED0904.2004 AND0107.2004 (ANNEXURE-C & D) ISSUED BY THE R-2 AND ETC., THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON0401.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 3
ORDERThe petitioner in this writ petition calls in question the order dated 11.06.2018, passed in M.A.(EAT) No.2/2006 by the III Addl. Civil and Session Judge, Bangalore City, affirming the order of removal of the petitioner from service of the respondent – Vidya Vardhaka Sangha Pre-University College for Women and the order of removal dated 04.04.2005, on the basis of the charge sheets dated 09.04.2004 and 01.07.2004.
2. Shorn of unnecessary details, the material facts necessary for appreciation of the controversy are as follows:- The petitioner was appointed as a Lecturer in Kannada with effect from 22.08.1974 in the respondent – Vidya Vardhaka Sangha Pre-University College for Women (hereinafter referred to as ‘the College’ for short). The Managing Committee of the College on 28.10.1997, resolved to appoint the petitioner as the Principal of the College. Accordingly, the first respondent - College issued an order promoting and appointing the petitioner as the Principal of the College w.e.f. 29.10.1997. As required in 4 law, the third respondent – the Director of the Department of the Pre-University Education approved the appointment of the petitioner as the Principal of the first respondent - College.
3. During the tenure of the petitioner as the Principal, animosities developed between the teachers, staff and the petitioner, which lead the College resolving to authorize one Sri K.N.Shrihari, the Secretary of the College to appoint an Enquiry Officer to conduct a domestic enquiry regard interse dispute between the petitioner and other staff. In furtherance of this resolution, the second respondent, an advocate was appointed as the Enquiry Officer who issued a charge sheet against the petitioner on 09.04.2004 and further on 01.07.2004, an additional charge memo was also issued. Petitioner by causing a legal notice sent a reply to the Enquiry Officer against the charge memo. Challenging the charge sheet and the additional charge memo, the petitioner approached this Court in W.P.No.46496/2004 and this Court by its order dated 22.03.2005, dismissed the writ petition. The petitioner 5 challenged the said order in writ appeal No.2443/2005. The appeal also came to be dismissed by the learned Division Bench on 10.08.2005, directing the petitioner to file an appeal before the Educational Appellate Tribunal under Section 94 of the Karnataka Education Act, 1983 (hereinafter referred to as ‘the said Act’ for short). Against the judgment of the learned Division Bench, a Special Leave Petition was filed by the petitioner before the Apex Court, which also came to be dismissed by an order dated 09.12.2005. After all these proceedings, the petitioner later filed an appeal before the III Additional City Civil & Sessions Judge, Bengaluru City (hereinafter referred to as ‘the Tribunal’ for short) questioning the order of dismissal dated 04.04.2005, in M.A.(EAT) No.2/2006.
4. During the pendency of all the aforesaid proceedings before this Court, by a communication dated 29.07.2004, the petitioner informed the Enquiry Officer that she has filed an appeal before the competent authority against the initiation of domestic enquiry against her and sought to postpone at the 6 hands of the Appellate Authority. The very next day, the Enquiry Officer submitted his report stating that the charges are proved against the petitioner without recording any evidence. Enclosing the report of the Enquiry Officer, a second show cause notice was issued on 24.03.2005, to the petitioner seeking her reply. The petitioner submitted a detailed reply to the second show cause notice and on 24.03.2005 itself, the first respondent without considering any of the submissions made by the petitioner in the reply, imposed a penalty of dismissal from service invoking the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978 (hereinafter referred to as ‘the Rules’ for short).
5. Against the said order of penalty, the petitioner filed an appeal before the Tribunal on 19.01.2006. The Tribunal after recording evidence of several teachers, dismissed the appeal by its order dated 11.06.2018. It is this order of the Tribunal that is called in question in the writ petition. 7
6. Heard Sri M.S.Bhagwat, learned counsel for petitioner, Sri C.V.Krishnan, learned counsel for first respondent and Smt. Sharadamba A.R., learned Additional Government Advocate for third to fifth respondents.
7. Learned counsel appearing for the petitioner has raised the following contentions: a. The charge sheet is issued by the Enquiry Officer and not by the Disciplinary Authority, which is in violation of Rule 17 of the Karnataka Private Educational Institutions (Discipline and Control) Rules, 1978 (hereinafter referred to as ‘the Rules, 1978’ for short), who has acted as a Judge in his own cause. b. The charge memo was vague and did not accompany list of documents and witnesses. c. The resolution to hold domestic enquiry against the petitioner was not preceded by a decision of the Managing Committee, who alone was competent to 8 initiate domestic enquiry / disciplinary proceedings against the petitioner. d. The order of the Tribunal is passed without considering the grounds urged by the petitioner erroneously importing inapplicable rules to justify the action of the Management.
8. On the other hand, learned counsel appearing for the College would submit that the petitioner right from the date of assumption of the charge as the Principal has had problems with the staff. It became unbearable and the proceedings had to be initiated. He would further contend that in the enquiry proceedings, all opportunity was given to the petitioner to participate but the petitioner refused to appear and the Enquiry Officer, left with no choice, the Enquiry Officer had to hold and conclude the proceedings exparte. He would contend that the Tribunal by its elaborate reasoning had considered every ground that is pleaded by the petitioner and had rendered its judgment which does not warrant any interference at the hands of this 9 Court. He would submit that even if interference is called for, matter has to be remitted back to the Tribunal for a fresh consideration.
9. I have given my anxious consideration to the submission made by the learned counsel for the parties and perused the material on record. In furtherance where of, the following points arise for my consideration: i. Whether the initiation and conduct of disciplinary proceedings are vitiated on account of bias, malafides and being contrary to law?. ii. Whether the penalty imposed stands vitiated on account of the charges framed against the petitioner being vague?. iii. Whether the order of the Tribunal warrants interference?. Re. Point i. : Whether the initiation and conduct of disciplinary proceedings are vitiated on account of bias, malafides and being contrary to law?.
10. To consider the said point, the commencement of disciplinary proceedings from the issuance of the charge sheet is 10 required to be noticed. In the case at hand, the Disciplinary Authority did not frame the charges. A Secretary of the College appointed an Advocate to be an Enquiry Officer who frames the charges and conducts an enquiry against the petitioner. The cause of framing the charge is brought up by the Enquiry Officer who acted as a judge and conducted an enquiry against the petitioner on the charges framed by him. The Enquiry Officer appointed was not a Layman; he was a Lawman, an attorney completely aware of the cardinal principles of law and conduct of proceedings, despite complete knowledge has framed the charges himself and conducted the proceedings. Therefore, he has acted as a judge of his own cause.
11. One of the cardinal principles of natural justice is nemo debet esse judex in propria causa (no man shall be a judge in his own cause). The deciding authority must be impartial and without bias. The rule that bias vitiates the findings of enquiry proceedings is a rule of natural justice. It is trite law that personal bias or bias of the subject matter is one of those limbs 11 of bias. To appreciate the said principle on the touchstone of personal bias or bias to the subject-matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place. It is apposite to refer De Smith in his Judicial Review of Administrative Action, (1980 Edn) at page 262, wherein, the author observes that a real likelihood of bias means at least substantial possibility of bias. In Halsbury's Laws of England, 4th Edn., Vol. 2, para 551, it has been indicated that the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. The Divisional Court of the Kings Bench, in R.v.Sunderland Justices, (1901) 2 KB357 373, has held that the Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business. Later, the Divisional Court of the Kings Bench, in R.v.Sussex Justices, 1923 All ER233 has again held in answer to the question whether there was a real likelihood of 12 bias depends not upon what actually was done but upon what might appear to be done. The aforesaid principle is reiterated in acceptance by the Apex Court in MANAK LAL V. DR PREM CHAND reported in AIR1957SC425 wherein the Hon’ble Apex Court has held that the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done. The aforesaid principles with regard to bias are considered, iterated and elaborated by the Hon’ble Apex Court in the subsequent judgment in the case of K. PARTHASARATHI VS. STATE OF ANDHRA PRADESH, reported in (1974) 3 SCC459 wherein the Apex Court at paragraphs 14, 15, 16 and 17, has held as follows: “14. The test of likelihood of bias which has been applied in a number of cases is based on the 13 “reasonable apprehension” of a reasonable man fully cognizant of the facts. The courts have quashed decisions on the strength of the reasonable suspicion of the party aggrieved without having made any finding that a real likelihood of bias in fact existed (see R. v. Huggins [(1895) 1 QB563 ; R. v. Sussex, JJ., ex. p. McCarthy [(1924) 1 KB256 ; Cottle v. Cottle [(1939) 2 All ER535 ; R. v. Abingdon, JJ.
ex. p. Cousins [(1964) 108 SJ840 .) But in R. v. Camborne, JJ.
ex. p Pearce [(1955) 1 QB41at 51]. the Court, after a review of the relevant cases held that real likelihood of bias was the proper test and that a real likelihood of bias had to be made to appear not only from the materials in fact ascertained by the party complaining, but from such further facts as he might readily have ascertained and easily verified in the course of his inquiries.
15. The question then is: whether a real likelihood of bias existed is to be determined on the probabilities to be inferred from the circumstances by court objectively, or, upon the basis of the impressions that might reasonably be left on the minds of the party aggrieved or the public at large. 14
16. The tests of “real likelihood” and “reasonable suspicion” are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord Denning, H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [(1968) 3 WLR15694 at 707]. ]. We should not, however, be understood to deny that the Court might with greater propriety apply the “‘reasonable suspicion” test in criminal or in proceedings analogous to criminal proceedings.
17. As there was real likelihood of bias in the sense explained above, we think that the inquiry and the orders based on the inquiry were bad. The decision of this Court in the State of Uttar Pradesh v. Mohammad Nooh [AIR1958SC86:
1958. SCR595:
1958. SCJ242 makes it clear that if an inquiring officer adopts a procedure which is contrary to the rules of natural justice, the ultimate decision based on his report of inquiry is liable to be quashed. We see no reason for not applying the same principle here as we find that the inquiring officer was biased.” (emphasis supplied) The facts obtaining in the case at hand qua the proceedings before the Enquiry Officer is to be considered on the bedrock of the principles enunciated by the Apex Court in the afore-extracted judgments as to whether the Enquiry Officer could have acted as a judge of his own cause and the 16 proceedings vitiated on account of personal bias or bias to the subject matter on the part of the Enquiry Officer.
12. The charge sheet was issued by the Enquiry Officer on 09.04.2004, after which the petitioner sought time on the ground that she has filed an appeal before the government; the Enquiry Officer conducted and continued the proceedings. All the documents against the petitioner were taken on record without marking them through any witnesses, taking those documents on record, after such strange procedure, issued an additional charge memo on 01.07.2004. The petitioner again informed the Enquiry Officer by way of reply on 29.07.2004, that she has filed an appeal before the Appellate Authority against initiation of proceedings and sought that the enquiry be adjourned. Despite this, the Enquiry officer directed that the proceedings would be held on 02.08.2004 and again on 02.08.2004, the petitioner requested to postpone the enquiry in view of pendency of the appeal. The request of the petitioner reads as follows:
17. “From N.S.Nagalakshmi Principal VVS PU College for Women Rajajinagar Bangalore To Sri S R. Sundar Ram Advocate No.22, East Park Road 18th Cross, Malleswaram Bangalore - 560 055 Sir, Sub: Enquiry against the Principal VVS PU College For Women, 1st Block, Rajajinagar, Bangalore – 10. Ref: My Objection Statement dated:
16. 07.2004 sent by speed post and also same filed with you personally on 18.07.2004.-.----- In continuation of my references cited above I am to intimate that I have filed an appeal petition with the Appellate Authority viz The Director of Pre-University Education, Bangalore vide No.P.U. Appeal No.60/2004 dated :
24. 07.2004. This is for your kind information with a request not to proceed with the enquiry as intimated in your letters dt:
09. 04.2004, 18.04.2004 and 1st July 2004 in the interest of natural justice and fair play, since the 18 very enquiry contemplated is not being conducted according to the rules and procedures of conducting an enquiry. Under the circumstances explained supra I am not bound by any action of yours in the matter. Therefore, your proceedings further with enquiry is bad in law and not binding on me. Thanking you, Yours faithfully,. Sd/- 29/7/04 (N.S. NAGALAKSHMI)” The second request of the petitioner reads as follows: “From N.S. Nagalakshmi Principal VVS PU College for Women Rajajinagar Bangalore – 560 010. To Sri. S. R. Sundar Ram, Advocate No.22, East Park Road 18th Cross, Malleswaram Bangalore - 560 055. Sir, Sub: Enquiry against the Principal V.V.S.P.U. College For Women, 1st Block, Rajajinagar, Bangalore. 19 In the proceedings recorded by you on 01.08.04 it is stated in the last sentence “Hence it is taken no objection to the changes framed”. In this connection I have to state that this sentence is not acceptable to me as neither you asked me on this point nor I replied. I have impleaded that this sentence is not acceptable to me. In spite of this you refused to delete this last sentence. I further requested you to record my objection to the introduction of this last sentence in the proceedings dt :
1. 8.04. But my request was not conceded by you and you required me to sign the proceedings. I have sufficient grounds and evidences to disprove the allegations at the appropriate time. My main objection on the proceedings of the enquiry have been communicated in my letter to you dated 16.7.2004 which is also referred at “ANNEXURE G” in my Appeal petition No.Appeal 60/2004 dt :
24. 7.04 with the Director of Pre- University Education, Bangalore. Therefore I once again reiterate my objection to the last sentence in the proceedings dt :
1. 8.2004 in view of all the objections 1 to 5 communicated to you in my letter dt :
16. 7.2004 and further request that further proceedings may kindly be discontinued in view of my appeal pending before the Appellate Authority viz The Director of Pre-University Education, Bangalore. Thanking you, Yours faithfully, Sd/- 2/8/04 (N.S. NAGALAKSHMI)” 20 The Enquiry Officer not acceding to the afore-extracted requests of the petitioner held, conducted, concluded the enquiry on 03.08.2004 and submitted a report on that very day holding that the petitioner was guilty of the allegations. The report of the Enquiry Officer reads as follows: “There would not have been series of representations to the management against the Principal, but for her vindictive, non- cooperative, indifferent autocratic way of conducting the affairs of the institution. The Principal by her recalcitrant attitude has not only caused damage to herself but also to the institution and student community at large and the same is also exhibited in her non- participation in the enquiry proceedings before me raising frivolous objections for holding of enquiry proceedings. Ultimately, I hold Smt. N. S. Nagalakshmi guilty of charges 1, 2, 3, 5, 6, 7, 8 and also additional memo of charges for the aforestated reasons. As she is guilty of the aforesaid 21 charges it is but natural that in the implementation, so also execution of the programme of the institution she has created unnecessary hurdles and obstacles lacking coordination amongst staff of the institution, Accordingly, charge No.9 is also proved. The management is at liberty to initiate disciplinary action / measures as open to it under the rules against Principal, Smt. N. S. Nagalakshmi.” (emphasis added) In terms of the narration of dates, events and findings of the Enquiry Officer, at every stage, the Enquiry Officer deliberately adopts a strange procedure unknown to law, observes all the documents in his report, none of which were marked as no witnesses were examined. In terms of the above findings, it cannot but be concluded that the Enquiry Officer conducted the proceedings in a hottest haste without marking any documents or recording any evidence and exparte, as the petitioner was not a party in the proceedings before the Enquiry Officer, which would clearly mean that the Enquiry Officer 22 wanted to hold the petitioner guilty by justifying the charges that he had himself framed against the petitioner. It can be without a shadow of a doubt concluded that the Enquiry Officer acted as a judge of his own cause and saw to that the petitioner was held guilty of the charges with a malafide intention. The decision of the Enquiry Officer would be unmistakably vitiated on account of personal bias or bias of the subject matter, which is one of the limbs of bias, as any right minded person looking at the conduct of the Enquiry Officer in conclusion of the enquiry without following any canon of law, would think that circumstances did exist to hold that the Enquiry Officer was biased against the petitioner and in favour of his own cause. It is not on the basis surmise or conjecture that this finding is arrived at but on the afore-narrated facts. The Enquiry Officer did not sit with an open mind to hold an impartial enquiry which is an essential part of principles of natural justice. The bias in favour of the department had so badly effected the Enquiry Officer’s whole faculty of reasoning as he holds the petitioner guilty in such a coarse manner that it becomes apparent that he was merely 23 carrying some command from the Management, who perhaps had directed ‘FIX HER UP’.
13. It is for this reason, the Enquiry Officer is made a party by the name and malafides have been attributed to him and he remains served and unrepresented in these proceedings.
14. The other factor that vitiates the act of the Enquiry Officer framing the charges is, it being in violation of the rules under which the disciplinary proceedings are initiated and conducted against the petitioner. The applicable Rules are the Rules of 1978, as the petitioner is an employee of a Private aided Educational Institution. Rule 17 of the Rules, 1978, which deal with procedure for imposing major penalties, mandates that the Disciplinary Authority shall frame the charge sheet under Rule 17(3) of the Rules, 1999, which is extracted hereunder for the purpose of ready reference: “17. Procedure for imposing major penalties : (1) xxx (2) xxx (3) xxx 24 (4) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. Such charges, together with a statement of allegations on which they are based shall be communicated in writing to the employee and he shall be required to submit within such time as may be specified by the Enquiry Committee, a written statement of his defense and also to state whether he desires to be heard in person.” (emphasis supplied) The aforesaid mandate of the Rule indicates that the Disciplinary Authority shall frame the charges. This mandate of the Rule is not delegatable. The charge sheet framed by the Enquiry Officer is thus, in violation of the afore-extracted rule as well. In view of the preceding analysis the entire proceedings initiated against the petitioner stands vitiated from the word go. Therefore, I answer point No.i in favour of the petitioner holding that the enquiry proceedings conducted against the petitioner right from the word go is vitiated on account of bias and malafides and is contrary to law. 25 Re. Point No.ii. : Whether the penalty imposed stands vitiated on account of the charges framed against the petitioner being vague?.
15. The rules under which the disciplinary proceedings are to be initiated against the petitioner are the Rules, 1978. Sub- rule 4 of Rule 17, reads as follows: “(4) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. Such charges, together with a statement of allegations on which they are based shall be communicated in writing to the employee and he shall be required to submit within such time as may be specified by the Enquiry Committee, a written statement of his defense and also to state whether he desires to be heard in person.” (emphasis supplied) The mandate of the Rule is that, the Disciplinary Authority shall frame definite charges together with statement of allegations on which they are based. It is trite that the charge sheet is the charter against an employee for initiation of 26 disciplinary proceedings and it commences on issuance of such charge sheet. It is therefore mandatory on the part of the Disciplinary Authority to draw up a definite catalogue of charges and to inform the delinquent clearly, precisely and accurately what are the statement of allegations / imputations against such employee. The charges framed should not be indefinite, vague or unintelligible. The fact that the delinquent knows all the charges against him / her will not absolve the employer to follow the mandate of the Rule by framing definite and precise charges along with statement of imputations / allegations against the employee. On the touchstone of the said principle, the charge sheet issued against the petitioner will have to be considered and it is therefore extracted for the purpose of quick reference: “MEMO OF CHARGES1 It is complained by the teaching and non-teaching staff of V.V.S. Pre – University College for Women that you are in the habit of giving pinpricks for all and sundry reasons. It is alleged that your conduct as a Principal is one of a dictator type than an Administrator and Academician. 27
2. It is alleged that you deliberately withhold and delay the submission of salary bills of teaching and non – teaching staff to see that they too your line.
3. It is alleged that you have deliberately sent false recommendations to the Director of Pre-University Education in regard to grant of “automatic time bound advancement pay scale” to Lectures, namely, Sri. C. Ganapathi and Smt. C. N. Bhavaneshwari disregarding their seniority and ment by recommending the juniors in their place against the rules of service conditions.
4. It is alleged that the C.E.T. Exam bill payments have not been made till date and by that you are harassing the staff for no fault on their part.
5. It is alleged that for sanctioning of leave entitled to by the staff you carryout the threat of with holding the salary and unnecessarily harass the staff in sanctioning the leave.
6. It is alleged that you conduct yourself in an inhuman way in day-to-day affairs of the institution with teaching and non-teaching staff 28 and denigrate them in presence of students and other staff members.
7. It is alleged that you flout the directions of management creating unnecessary complication in smooth running of the institution giving room for administrative hitches to the management in its dealings with Pre – university Board, you are in the habit of bypassing the management in all your correspondence, actions etc., with P. U. Board thereby creating unnecessary hassles to the management with P. U. Board.
8. It is also alleged that if staff members do no toe your line of though and actions it would result in victimization by you by making adverse remarks in their service records.
9. It is alleged by the teaching and non-teaching staff that you create unnecessary hurdles and obstacles in implementation, execution of the programmes of the institution so also routine official work lacking co-ordination and our conduct does not befit of the a Principal.” 29 “ADDITIONAL MEMO OF CHARGES The management in its statement to the enquiry proceedings initiated against you has alleged that throughout your service-career in their institution you have been a consistent trouble creator on various occasions, more so after you assumed charge as Principal and in that regard time and again Complained by teaching and non-teaching staff by its various representations to the management. It is alleged that the repeated attempts of management to charge your attitude and behaviour to ensure smooth functioning of the college has proved futile and has now reached alarming proportions of degeneration affecting the very existence of college its staff and students. It is alleged that you have disobeyed the orders and directives of the management, despite the management’s reminders to you on 22.1.2004, 1.3.2004, so also, 16.3.2004 and on various occasions both academic and official and that your suo-motto clandestine arrogant and unauthorized acts have endangered the very existence of the 30 institution and also caused desperate to the institution. It is alleged that without the concurrence of the management you have suo-motto dealt with the CET Cell in regard to cancellation of CET Examination Centre, so also regarding posting of sitting squad for examinations arrogating to yourself the powers of the management.” A cursory perusal at the afore-extracted charges would in unmistakable terms indicate that there is no particularization of the misconduct said to have been committed by the petitioner and it did not even contain the statement of allegations / imputations as is required in law. The allegation in the memo of charges is that, the petitioner is in the habit of giving pinpricks for all sundry reasons and behaves like a dictator. It is further alleged that the petitioner would deliberately withhold and delay the salary bills of teaching and non-teaching staffs and has deliberately made false recommendation with regard to two staffs for grant of time bound advancement. The fourth allegation is that the CET bill payments are not paid. The fifth 31 allegation is that the petitioner threatens withholding of salary when staff would seek leave. The sixth allegation is that the petitioner was behaving in inhuman way in day to day affairs. The seventh allegation is that the petitioner would flout the directions of the Management and the other allegations concerns victimizing other staff. The additional memo of charges also is that the petitioner is a constant trouble creator to the Management and has disobeyed the directions of the Management. None of the charges quote any incident in support of the same. There are no statements of imputations to the charges. No list of documents and witnesses annexed to the charge sheet upon which the Management would want to establish the charges against the petitioner. Such a catalogue of charges cannot but be held to be vague and in violation of the afore-extracted Rule and issued with an intention which suffers from want of bonafides. It is apposite to refer to the judgment of the Apex Court in the case of TRANSPORT COMMR. V. A. RADHA KRISHNA MOORTHY reported in (1995) 1 SCC332 wherein the Apex Court has held as follows:
32. “9. Insofar as the vagueness of the charges is concerned we find that it deserves acceptance. It is asserted by Shri Vaidyanathan, learned counsel for the respondent that except the memo of charges dated 4-6-1989, no other particulars of charges or supporting particulars were supplied. This assertion could not be denied by the learned counsel for the appellant. A reading of charges would show that they are not specific and clear. They do not point out clearly the precise charge against the respondent, which he was expected to meet. One can understand the charges being accompanied by a statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The charges are general in nature to the effect that the respondent along with eight other officials indulged in misappropriation by falsification of accounts. What part did the respondent play, which account did he falsify or help falsify, which amount did he individually or together with other named persons misappropriate, are not particularised. The charge is a general one. It is significant to notice 33 that respondent has been objecting to the charges on the ground of vagueness from the earliest stage and yet he was not furnished with the particulars. It is brought to our notice that respondent's name was not included in the schedule appended to GOMs 928 dated 25-4-1988 mentioning the names of officials responsible for falsification of accounts and misappropriation and that he is also not made an accused in the criminal proceedings initiated in that behalf.
10. We are, therefore, of the opinion that the judgment of the Tribunal is right insofar as it holds that the charges communicated to the respondent are vague. In the ordinary course we would have directed the disciplinary authority or the authority which framed the charges to particularise the charges and then to proceed with the enquiry but it appears that the respondent has hardly about seven or eight months to go for retirement. Having regard to the facts and circumstances of the case, we are of the opinion that the matter should end.” (emphasis supplied) 34 Later, the Honble Apex Court in the case of ANANT R. KULKARNI V. Y.P. EDUCATION SOCIETY reported in (2013) 6 SCC515 has held as follows: “16.Where the charge-sheet is accompanied by the statement of facts and the allegations are not specific in the charge-sheet, but are crystal clear from the statement of facts, in such a situation, as both constitute the same document, it cannot be held that as the charges were not specific, definite and clear, the enquiry stood vitiated. Thus, nowhere should a delinquent be served a charge-sheet, without providing to him, a clear, specific and definite description of the charge against him. When statement of allegations are not served with the charge-sheet, the enquiry stands vitiated, as having been conducted in violation of the principles of natural justice. The evidence adduced should not be perfunctory; even if the delinquent does not take the defence of, or make a protest that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair play in action, particularly in respect of an order involving adverse or penal 35 consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges. (Vide State of A.P. v. S. Sree Rama Rao [AIR1963SC1723, Sawai Singh v. State of Rajasthan [(1986) 3 SCC454:
1986. SCC (L&S) 662 : AIR1986SC995, U.P. SRTC v. Ram Chandra Yadav [(2000) 9 SCC327:
2001. SCC (L&S) 79 : AIR2000SC3596, Union of India v. Gyan Chand Chattar [(2009) 12 SCC78: (2010) 1 SCC (L&S) 129]. and Anil Gilurker v. Bilaspur Raipur Kshetriya Gramin Bank [(2011) 14 SCC379: (2012) 2 SCC (L&S) 926]..) 17. The purpose of holding an enquiry against any person is not only with a view to establish the charges levelled against him or to impose a penalty, but is also conducted with the object of such an enquiry recording the truth of the matter, and in that sense, the outcome of an enquiry may either result in establishing or vindicating his stand, and hence result in his exoneration. Therefore, fair action on the part 36 of the authority concerned is a paramount necessity.” (emphasis supplied) Therefore, the charges leveled against the petitioner would fall foul of the mandate of the rule and the law laid down by the Apex Court in the aforesaid cases. Since the charge sheet itself was vague the entire proceedings instituted against the petitioner on such vague charges would become a fatal defect which vitiates the entire proceedings. In view of the preceding analysis, I hold point No.ii in favour of the petitioner. Re. Point No.iii : Whether the order of the Tribunal warrants interference?.
16. The Tribunal, though records evidence and marks all documents through witnesses, in its order embarks upon philosophy and relies on the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as ‘the KCS(CCA) Rules’ for short), notwithstanding its inapplicability of the service conditions of the petitioner and the disciplinary proceedings initiated. At paragraph No.7, the 37 Tribunal holds that the entire case of the petitioner is analyzed as under: “7. I have carefully gone through the entire case file as well as the provisions of The Karnataka Education Act, 1983 and the Karnataka Private Educational Institutions (Discipline & Control) Rules, 1978.” At paragraph No.13, the Tribunal invokes KCS CCA Rules, which reads as follows: “13. It is not in dispute that the respondent no.1 is running the said Women College on Government aid and this appellant was the employee of the said aided institution. So in this back ground it can be very well said that The Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 are not only applicable to the Government employees even they are applicable to the employees of aided institutions. As per Rule-11(3) of said KCS Rules when the disciplinary authority proposes to hold enquiry, it must draw up or cause to be drawn up the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge, a statement of 38 the imputations of misconduct, list of documents and list of witnesses, by which the said articles of charge are proposed to be sustained. Therefore combined reading of Rule-11(4) of KPEI Rules and Rule- 11(3) of the KCS Rules reveal that it is inevitable for the disciplinary authority not only to furnish the articles of charges, it must be accompanied by the annexures like substance of imputation of misconduct, list of documents and list of witnesses. ………… However as rightly contended by the appellant throughout in her appeal there is no indication that the said charge memos were accompanied by statement of imputations of misconduct, list of documents and list of witnesses. First of all if one reads impugned charges, as rightly submitted by the appellant in her appeal memo as well as in her written synopsis, the said charges are too vague, indefinite and from reading them it is not possible to gather how these charges were going to be established by the disciplinary authority and by relying what documents and who would 39 be examined by the disciplinary authority in support of the said charges…….
16. As I said earlier from bare reading of the charges certainly one will have an impression that they are vague, uncertain and it is not possible to gather regarding which incident/incidents the said charge is leveled. Further it is also not possible for any delinquent to comprehend what exactly is the nature of charge and what it comprises. When I make this observation I cannot loose sight of the series of allegations, trivial and serious, made by the different cadre of officials and staff. ………………….As can be seen from the members of teaching staff shown on page no.6 of that book, including the appellant who was the Principal then, there were 14 teaching staff, two temporarily employed lecturers and one physical education instructor were working. On page no.7 names of members of the office staff are shown and according to which totally 11 non-teaching staff were there, including one librarian, one Head Clerk cum Accountant, SDAs, Attendars, Peons and Watchman, There is purpose in referring to the total staff strength 40 of the said college. It is quite natural that all human beings will not be of same character and stature. Every individual will have his own distinct character, if one finds fault in everybody or when he/she criticizes majority of the staff and colleagues with whom he/she works, it is definite that there is some lapse in that person only. I am saying this with all my consciousness that no man is perfect. Here is a case, out of the teaching and non-teaching staff I cited above, five teaching staff, who are examined as RW1 to RW5 and eight non-teaching staff revolt against this appellant. The eight non-teaching staff are examined before this tribunal as RW6 to RW13. The sum and substances of their grievance is that, this appellant use to extract work from the non-teaching staff viz; Peons and attenders for preparation of centers for CET exams, but she never used to disburse the amount paid by the CET Cell to the said staff. It is stated that she did it again in the year 2003 and regarding which there was a complaint by RW10 to RW12, it is at Ex.R133. From the said document it is not possible to gather the date on which that complaint was filed by them to the Deputy Director, PU Board, Bangalore endorsing a copy of it to the Secretary, Vidya Vardhaka Sangha (Regd), Rajajinagar. It is alarming 41 that the said non-teaching staff directly vented their grievance to the PU Board by-passing the management.” (emphasis added) The afore-extracted observations of the Tribunal would leave none in doubt that the Tribunal suo motu invokes KCS (CCA) Rules to justify the action of the enquiry officer himself framing the charges and conducting the enquiry as it is in rule 11 of the KCS (CCA) Rules which permits the Disciplinary Authority or any other authority appointed by it to frame the charges. The said Rule is inapplicable to the service conditions of the petitioner and the facts of the case and there is no rule obtaining in the relevant statutes permitting the Disciplinary Authority to delegate framing of charges to any other authority. On the other hand, it is the mandate of the Rule which is applicable to the facts situation that the Disciplinary Authority shall frame the charges. It is also to be noticed that the Tribunal accepts every plea of the petitioner that the charge sheet could not have been framed by the Enquiry Officer and the charge sheet was vague as it did not contain any statement of 42 imputations and did not accompany any list of documents and witnesses. After accepting all these, the Tribunal could not have dismissed the appeal filed by the petitioner on reasons contrary to its own acceptance. Therefore, the reasoning of the Tribunal to dismiss the appeal filed by the petitioner is far from being cogent in the teeth of such glaring illegalities analysed supra.
17. In the normal circumstance, this Court would have remitted the matter to the Tribunal for consideration afresh in accordance with law. The charge sheet is of the year 2004, the petitioner now has retired on attaining the age of superannuation and is aged 72 years and is not in dispute that she is bedridden due to Cancer. Remitting the matter for fresh consideration at this juncture at this age and status of the petitioner, is unacceptable, that too, for the glaring follies of the Management. Therefore, for the aforementioned reasons, the order of the Tribunal warrants appropriate interference. I answer point No.iii in favour of the petitioner.
18. For the praefatus reasons, the following:
43.
ORDERa. The writ petition is allowed. b. The order dated 11.06.2018, passed by the Tribunal in M.A.(EAT) No.2/2006 is quashed. c. The Charge memo dated 09.04.2004 and additional charge memo dated 01.07.2004 are quashed. Consequentially, the order of penalty dated 04.04.2005 is also quashed. d. The petitioner would be entitled to 50% back wages and all other terminal benefits that would flow from quashing the impugned order of penalty. e. The order shall be complied with by the respondents within one month from the date of receipt of a copy of the order. Sd/- JUDGE nvj CT:MJ * vide Chamber order dated 09.02.2021, page No.43 is replaced.