Sri. n.j. Palaksha Naik Vs. The Kuvempu University - Court Judgment

1 R W.P.58201/14 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE18H DAY OF DECEMBER, 2014 BEFORE THE HON'BLE MR.JUSTICE RAM MOHAN REDDY WRIT PETITION NO.58201/2014 (S-DIS) BETWEEN SRI. N.J.

PALAKSHA NAIK S/O JEMALA NAIK, AGED ABOUT44YEARS, ASSISTANT REGISTRAR, (NOW UNDER ORDER

OF REVERSION) KUVEMPU UNIVERSITY, KUVEMPU CENTENARY BUILDING, JNANASAHYADRI, SHANKARAGHATTA-577451 SHIMOGA DISTRICT R/AT NO.1, JNANA SAHYADRI, KUVEMPU UNIVERSITY, SHIMOGA DISTRICT. ... PETITIONER (By Sri. A NAGARAJAPPA, ADV.,) AND1 THE KUVEMPU UNIVERSITY KUVEMPU CENTENARY BUILDING, JNANASAHYADRI, SHANKARAGHATTA-577451 SHIMOGA DISTRICT. REP BY ITS REGISTRAR.

2. THE VICE CHANCELLOR KUVEMPU UNIVERSITY, KUVEMPU CENTENARY BUIDLING, JNANASAHYADRI, SHANKARAGHATTA-577451 SHIMOGA DISTRICT. 2 W.P.58201/14 3. THE APPELLATE AUTHORITY-CHANCELLOR HIS EXCELLENCY THE GOVERNOR OF KARNATAKA RAJ BHAVAN, BENGALURU-560001 ... RESPONDENTS (By Sri. T.P. RAJENDRA KUMAR SUNGAY, ADV., FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES226& 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER

DTD.2.6.2014 (ANNEX-N) PASSED BY THE R-1 AND SET ASIDE THE ORDER

DTD.11.12.2014 PASSED THE APPELLATE AUTHORITY IN APPEAL NO.GS/09/KPM/2014 (ANNEX-R) WITH ALL CONSEQUENTIAL BENEFITS & ETC., THIS WRIT PETITION COMING ON FOR PRL.HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

Petitioner, when discharging duties as ‘Assistant Registrar, Examination’ in the respondent/Kuvempu University, was allegedly involved in examination malpractice, a misconduct, in respect of which disciplinary proceeding was initiated by issuing Articles of Charge, appointing a Retired District & Sessions Judge, who held a domestic inquiry, by extending reasonable opportunity of hearing to the petitioner and submitted a report, holding the Charge proved. The ‘Disciplinary Authority’ on an independent assessment 3 W.P.58201/14 of the material on record held the petitioner guilty of the charge and proposed imposition of the punishment of reduction in rank from ‘Assistant Registrar’ to ‘Superintendent’ and accordingly placed the matter before the Syndicate, who resolved to confirm the same, leading to the order dated 2.6.2014 Annexure-N. That order, when called in question in WP No.26887/2014, a learned Single Judge by order dated 17.6.2014, Annexure-P, disposed of the petition, reserving liberty to the petitioner to prefer an appeal. Whereafterwards the appeal preferred before the Appellate Authority when dismissed by order dated 11.12.2014 Annexure-R, hence this petition.

2. The only contention advanced by the petitioner as aired by his learned Counsel is that he was not extended the benefit of a second show cause notice, by furnishing a copy of the report and opinion of the Disciplinary Authority over proposed punishment, so as 4 W.P.58201/14 to enable petitioner to put forth his explanation over the findings of the Enquiry Officer and the proposed punishment. Learned Counsel places reliance upon opinion of the Apex Court in ‘UNION OF INDIA AND OTHERS v. MOHD. RAMZAN KHAN’1.

3. Learned Counsel hastens to add that the opinion of the Apex Court in ‘CHAIRMAN, GANGA YAMUNA GRAMIN BANK AND OTHERS v. DEVI SAHAI’2, recording a finding that a second show cause notice is not part of common law principle of natural justice, is without noticing the view of a larger Bench of the Apex Court in RAMZAN KHAN’s case supra, wherein it is observed that supply of copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment would be within the rules of natural justice and the Delinquent would, therefore, be entitled to the supply of a copy thereof. 1 AIR1991SC4712 AIR2009SC21265 W.P.58201/14 4. Per contra, Sri. T.P. Rajendra Kumar Sungay, learned Counsel for respondent university, submits that petitioner did not advance the plea of second show cause notice and it is for the first time raised before this Court. Even otherwise, it is submitted that in the light of GANGA YAMUNA GRAMIN BANK’s case, the Appellate Authority, justifiably dismissed the appeal.

5. In the circumstances, the question for decision making is “Whether the order dated 02.06.2014 imposing punishment of reversion of the petitioner from the post of ‘Assistant Registrar’ to ‘Superintendent’, suffers from the vice of violation of principles of natural justice in not furnishing the petitioner with a copy of the report of the enquiry officer and the proposed punishment by the disciplinary Authority and extend an opportunity to represent?. and if so whether the Order in Appeal is not sustainable?. 6 W.P.58201/14 6. The three Judge Bench of the Apex Court in RAMZAN KHAN’s case, while considering the deletion of second opportunity from the scheme of Article 311[2]. of the Constitution, declared that, [i]. it has nothing to do with providing a copy of the report to the ‘Delinquent’ in the matter of making his representations; [ii]. although second stage of inquiry in Article 311[2]. was abolished by amendment, nevertheless, ‘Delinquent’ was entitled to represent against the conclusion of the Inquiry Officer, holding that some of the charges are established and holding the ‘Delinquent’ guilty of such charges. The Apex Court observed thus: “ 13 xxx In a quasi – judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching his conclusion, rules of natural justice would be affected. Prof. Wade has pointed out:

7. W.P.58201/14 “The concept of natural justice has existed for many centuries and it has crystallised into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing. They(the Courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly.” “15. xxx For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has 8 W.P.58201/14 been done by the 42nd Amendment which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry is not affected by the 42nd Amendment. Therefore, supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty- Second Amendment has not brought about any change in this position.” [emphasis supplied].

7. The aforesaid opinion of the larger Bench of the Apex Court is not referred to by the two learned Judges of the Apex Court in GANGA YAMUNA GRAMIN BANK’s case, while the factual matrix therein is the Disciplinary Authority forwarded a report of the Inquiry Officer to the ‘Delinquent’, calling upon him to submit 9 W.P.58201/14 his comments within one week from the date of receipt of the letter, to which there was no response and therefore ‘Delinquent’ was granted yet another opportunity and thereafterwards the penalty of dismissal was imposed on the ‘Delinquent’. Therefore the observation that a second show cause notice is not part of common law principle of natural justice in contra distinction with the larger Bench decision in RAMZAN KHAN’s case, is inapplicable to the facts of the case on hand, since fair procedure requires such a notice.

8. The binding nature of precedents cannot be better expressed than in the words of the Apex Court in ‘DIRECTOR OF SETTLEMENTS, A.P. AND OTHERS v. M.R. APPARAO & ANOTHER’3 which runs thus: “So far as the first question is concerned, Article 141 of the Constitution unequivocally indicates that the law declared by the 3 2002 [2]. SCR66110 W.P.58201/14 Supreme Court shall be binding on all Courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has 'declared law' it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An 'obiter dictum' as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case 11 W.P.58201/14 before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision. The decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (see AIR1970SC1002and AIR1973SC794. When Supreme Court decides a principle it would be the duty of the High Court or a subordinate Court to follow the decision of the Supreme Court. A judgment of the High Court which refuses to follow the decision 12 W.P.58201/14 and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (See 1984(2) SCC402and 1984 (2) SCC324. We have to answer the first question bearing in mind the aforesaid guiding principles. We may refer to some of the decisions cited by Mr. Rao in elaborating his arguments contending that the judgment of this Court dated 6th February, 1986 cannot be held to be a law declared by the Court within the ambit of Article 141 of the Constitution. Mr. Rao relied upon the judgment of this Court in the case of Pandit M.S.M. Sharma vs. Shri Sri Krishna Sinha and Others 1959 Suppl.(1) Supreme Court Reports 806, wherein the power and privilege of the State Legislature and the fundamental right of freedom of speech and expression including the freedom of the press was the subject matter of consideration. In the aforesaid judgment it has been observed by the Court that the decision in Gunupati Keshavram Reddy vs. Nafisul Hasan - AIR1954SC636 relied upon by the counsel for 13 W.P.58201/14 the petitioner which entirely proceeded on a concession of the counsel cannot be regarded as a considered opinion on the subject. There is no dispute with the aforesaid proposition of law.” 9. In ‘PURBANCHAL CABLES & CONDUCTORS PVT. LTD., v. ASSAM STATE ELECTRICITY BOARD’4, the Apex Court considered the following reported opinions over binding precedent or sub-silentio: [a]. ‘MUNICIPAL CORPORATION, DELHI v. GURNAM KAUR’ [AIR1989SC38 [b]. ‘STATE OF U.P. v. SYNTHETICS AND CHEMICALS LTD., [1991]. 4 SCC139 [c]. ‘ARNIT DAS v. STATE OF BIHAR’ [AIR2000SC2264 [d]. ‘TIKA RAM v. STATE OF UTTAR PRADESH’ [(2009) 10 SCC689 4 AIR2012SC316714 [e]. ‘WAMAN RAO v. UNION OF INDIA’ [AIR1981SC W.P.58201/14 271]. [f]. [g]. [h]. [i]. [j]. ‘UNION OF INDIA v. RAGHUBIR SINGH’ [AIR1989SC1933 ‘KRISHENA KUMAR v. UNION OF INDIA’ [AIR1990SC1782 ‘MISHRI LAL v. DHIRENDRANATH’ [AIR1999SC2286 ‘CENTRAL BOARD OF DAWOODI BOHARA COMMUNITY v. STATE OF MAHARASHTRA’ [AIR2005SC752 ‘SHANKER RAJU v. UNION OF INDIA’ [(2011) 2 SCC132and more appropriately, the opinion in ‘UNION OF INDIA v. PARAS LAMINATES [P]. LTD.,’5, which in the circumstances is apposite: “9. It is true that a bench of two members must not lightly disregard the decision of another bench of the same 5 AIR1991SC69615 W.P.58201/14 Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger bench. The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of Tribunals or courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters. Classification of particular goods adopted in earlier decisions must not be lightly disregarded in subsequent decisions, lest such judicial inconsistency should shake public confidence in the administration of justice…” 10. It is settled position of law that a decision on the peculiar facts of the case cannot be treated as a precedent and courts should not mechanically apply the decision, without discussing as to how the facts fits into the factual matrix in the decisions relied upon. In that view of the matter the Appellate Authority without 16 W.P.58201/14 noticing the facts of the case in “GANGA YAMUNA GRAMIN BANK’s” case and the law declared in RAMZAN KHAN’S case, mechanically held that the case on hand is fully covered by the decision in GANGA YAMUNA GRAMIN BANK’s” case, to dismiss the appeal filed by the petitioner herein, by the order impugned, calling for interference.

11. The questions formulated supra are answered accordingly.

12. In the result, this petition is allowed. The order dated 2.6.2014 Annexure-N of the ‘Disciplinary Authority’ imposing the punishment of reversion of the petitioner and the order dated 11.12.2014 Annexure-R of the Appellate Authority are quashed.

13. Proceeding is remitted for consideration afresh. Petitioner is extended fifteen days time to file his representation to the Inquiry Report as well as the 17 W.P.58201/14 proposed punishment of reversion whereafterwards, the Disciplinary Authority to consider the same and submit his recommendation and proposed punishment, if any, for consideration by the syndicate, and to pass orders in accordance with law. AN/- Sd/- JUDGE