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Case Title:- DR. YOGANANDA A versus THE VISVESVARAYA TECHONOLOGICAL UNIVERSITY and others

Case No:-WRIT PETITION NO.21705 OF 2021 (S-RES)

Decided on:-18-03-2024

Quorum:-THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

Facts of the case:-

The case at hand concerns the Governing Council’s disciplinary proceedings against the petitioner which led to a recommendation for the petitioner’s mandatory retirement and as a result the Disciplinary Authority, respondent No. 3-Registrar has sent out a second show-cause notice signaling the imposition of a penalty. This has raised concerns about procedural inconsistencies and possible violations of Article 311(1) of the Indian Constitution. In light of this, the petitioner in the captioned petition has contested the respondent No. 2’s contested order imposing a mandatory retirement penalty, which is listed in Annexure-A.

Contentions:-

Learned counsel of petitioner states that in the present case on hand, petitioner is challenging imposition of penalty of compulsory retirement recommended by the Governing Council and the subsequent issuance of second show cause notice by Respondent No.3. This Court in the light of the judgments cited by the counsel on record has deliberated on Constitutional and legal provisions along with pertinent precedents. Article 311(1) of the Constitution of India Guarantees certain safeguards to Government employees including the right to fair enquiry before any adverse action is taken against the employees. This constitutional provision ensures that no Government employee is deprived of their livelihood arbitrary or without due process. It would be useful for this Court to take cognizance of the Landmark judgment rendered by the Hon’ble Apex Court in The case of Managing Director, ECIL Hyderabad and Others vs. B. Karunakar and Others.The Hon’ble Apex Court while examining the employees right to have a reasonable opportunity to refute and offer his explanation to the findings recorded by the Enquiry Officer was of the view that right to show cause against the findings of the enquiry report is considered to be an essential part of a reasonable opportunity incorporated earlier in Section 240(3) of Government of India Act and later in Article 311(2) of Constitution as originally enacted.

The Apex Court was of the view that right to receive the enquiry officer’s report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The Apex Court while noticing the anomaly prior to amendment and post 42nd amendment to Article 311 of the Constitution Of India was of the view that the two rights came to be confused with each other as the law stood prior to 42nd Amendment to the constitution. The Apex Court noting that 42nd amendment of constitution dispenses with issuance of notice to show cause against the penalty proposed held that if the law as it stood prior to 42nd amendment and notice is issued to show cause against the proposed penalty the right of employee to receive the report and represent against the finding of guilt would be rendered infructuous. What can be gathered from the dictum laid down by the Apex Court is that prior to 42nd amendment, both issuance of show cause notice and the commencement of disciplinary proceedings are simultaneous. However, subsequent amendments preclude such concurrent actions. Amending the sequential process wherein show cause notice must precede by furnishing of enquiry report on the delinquent employee. The culled out portion of the proceedings of the governing council clearly indicates that it is the Governing Council by recommending to impose penalty has virtually Preempted the right of the Disciplinary Authority to receive explanation and then apply its mind as to whether this is a fit case to impose penalty. Therefore, it is clearly evident that respondent No.3/Registrar/Disciplinary Authority being Sub-ordinate to the Governing Council had no discretion to independently evaluate the situation or apply its own judgment.

Court Analysis and Judgement:-

Court stated that the writ petition is allowed; The impugned penalty of compulsory retirement passed by the respondent No.2 as per Annexure-A is hereby quashed; The respondent No.3-Disciplinary Authority is hereby directed to adhere to the Mandate of the Hon’ble Apex Court in the Judgment cited supra and also take cognizance Of Article 311(1) of the Constitution of India and shall issue a fresh show cause notice in accordance with law; If such a show cause notice is issued, liberty is reserved to the petitioner to offer fresh explanation and the respondent No.3 shall thereafter proceed to take appropriate action by strictly adhering to the findings and observations recorded by this court supra.

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Judgement Analysis Written by – K.Immey Grace

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