Full order of anamalai university staff case THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA AND THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY W.A.Nos.1831 to 1834, 1836 to 1838, 1840, 1841, 1846,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2021
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.Nos.1831 to 1834, 1836 to 1838, 1840, 1841, 1846,
2080, 2089, 2091 to 2093, 2095, 2161, 2163 to 2166,
2169 to 2172, 2174 to 2176, 2184 to 2186, 2191 to 2196,
2198 to 2200, 2202 to 2204, 2206, 2208 to 2210,
2214, 2216, 2221, 2222, 2265 to 2273, 2275 to 2290,
2292 to 2294, 2296, 2327, 2329 to 2331, 2333, 2343, 2344,
2355, 2361, 2365, 2367, 2368, 2370, 2371, 2373,
2375 to 2390, 2392 to 2404, 2418, 2420, 2425, 2427, 2432 to 2437, 2440, 2441, 2448, 2450, 2453, 2454,
2487, 2488, 2490, 2491, 2493 to 2495, 2497 to 2530,
2532 , 2534, 2535, 2536, 2543, 2544 to 2560,
2562, 2563 , 2564 to 2576, 2578 to 2582, 2584 to 2597,
2601, 2603 to 2606, 2621 to 2623, 2762, 2764 to 2767, 2769, 2772, 2774 to 2778, 2780 to 2782,
2698, 2699, 2708, 2712, 2713, 2721, 2730 to 2758, 2760,
2784 to 2789, 2791, 2793 to 2798,
2833, 2835 to 2837, 2840, 2842, 2843, 2848, 2849,
2864 to 2866, 2868 to 2870, 2874 to 2876, 2918,
2943 , 3096, 3098, 3100 to 3103, 3105, 3107 to 3109,
3112 to 3114, 3116, 3119, 3120, 3122, 3127,3128 to 3130,
3136 to 3156, 3158, 3177, 3258, 3260,
1653, 1655, 1656, 1658, 1659 and 1677 of 2019 and 447 to 449 of 2021
and connected miscellaneous petitions W.A.No.1831 of 2019 :
K.Seethalakshmi .. Appellant/Petitioner
- The Government of Tamil Nadu
Rep. by its Secretary, Higher Education Department, Fort St. George, Chennai-600 009.
- The Syndicate of Annamalai University
Rep. by its Chairman,
Annamalai Nagar, Chidambaram, Cuddalore District-608 002.
- The Annamalai University
Rep. by its Registrar,
Annamalai Nagar, Chidambaram,
Cuddalore District-608 002. .. Respondents/Respondents
* * *
Prayer in W.A.No.1831 of 2019 : Writ Appeal filed under Clause 15 of
Letters Patent against the order dated 05.03.2019 in W.P.No.21769 of 2018.
|* * *|
|For Appellants in WA||:||Mr.K.Venkaramani,|
|Nos.1831/2019, etc.||Senior Counsel for Mr.P.Ebenezer Paul|
|For Appellants in WA||:||Mr.P.Wilson,|
|Nos.2501/2019, etc.||Senior Counsel for M/s.Wilson Associates|
|For Appellants in WA Nos.2270/2019, etc.||:||Mr.Syed Mustafa|
|For Appellants in WA Nos.2501/2019, etc.||:||Mr.V.Ajoy Kohse|
|For Appellants in WA||:||Mr.V.Vijayshankar|
|Nos.2518/2019, etc.||for Mr.J.Saravanavel|
|For Appellants in WA :||Mr.Udayakumar|
|Nos.2327/2019, etc.||M/s.Karan and Uday|
|For Appellant(s) in WA : No.2784/2019||Mr.T.L.Thirumalaisamy|
|For Appellants in WA : Nos.2833/2019, etc.||Mr.R.Saravanakumar|
|For Appellants in WA : Nos.2875/2019, etc.||Mr.N.Manokaran|
|For Appellant in WA : Nos.3096/2019||Mr.J.Pooventhera Rajan|
|For Appellant in WA :||Mr.Vijay Anand for|
|Nos.3260and 3258/2019||M/s.Vijay Anand Associates|
|For Appellants in WA :||Mr.Menon, Karthik and|
|No.2080 of 2019
|For Respondents :||Mr.R.Neelakandan, State Government Counsel for State Government|
Mr.Issac Mohanlal, Senior Counsel for M/s.Isaac Chambers for Annamalai University C O M M O N J U D G E M E N T
PUSHPA SATHYANARAYANA, J.
The appellants in all these appeals are employees of the Annamalai
University/respondents 1 and 2, who have challenged the Resolution
No.41 dated 08.02.2017 of the Syndicate and the consequent Show Cause Notice dated 13.08.2018 issued by the first respondent to the
appellants, which was dismissed by a common order on merits.
- All these appellants are Post Graduates and have been working in the respondents university in the post of Special Officers (Grade I/Liaison Officers), based on their applications on various dates between
1995 and 2011. Subsequently, in the year 2013, the Annamalai University was taken over by the Government as per the Annamalai University Act, 2013 (in short, “the Act”) and now the same is governed
by the provisions of the Act.
- There are about 8443 non-teaching staffs appointed by the University. After the completion of probationary period of 2 years, they were regularized into service on various dates. Thus, all the writ petitioners are governed by the Special Service Rules contained in various Service Orders. The Syndicate
noticed that some of the Special Officers did not meet the prescribed qualifications for the post. As per the Standing Order, the required educational qualification for the post of Special Officer is Post Graduate degree with second class. Therefore, the University re-designated the Special Officers with Post Graduate qualification, as Special Officer Grade I/Liaison Officer with effect from 01.11.2015.
- While so, the Syndicate passed a resolution dated 08.02.2017 to declare that only 1110 posts were sanctioned for non-teaching posts as against 8443 existing employees. Therefore, the Syndicate termed the remaining 7333 non-teaching staff as surplus staff. The Syndicate had in the said resolution dated 08.02.2017 resolved to solve the problem of surplus staff by creating supernumerary posts to accommodate all the 8443 non-teaching staff, but it was also resolved to downgrade and refix the pay scale of the Special Officer Grade I, including the appellants herein, in the pay band of Rs.9300 + 4600, as against the existing pay scale of Rs.15600 + 5400. Initially, the pay scales of the appellants were re-fixed, which were challenged by some of them, by filing writ petitions. The respondents University withdrew the orders re-fixing the pay scales. Now, pursuant to the impugned resolution dated 08.02.2017, all the appellants were served with the Show Cause Notices calling upon them to explain as to why their pay scales should not be downgraded. The appellants had individually challenged the Show Cause Notices issued to them, which were dismissed by the learned Single Judge on various dates 05.03.2019, 12.03.2019, 10.04.2019, against which the above
appeals are preferred.
- K.Venkatramani, learned Senior Counsel appearing for some of the appellants relied upon Section 20 of the Act to contend that the role of the Syndicate is defined therein. Section 20(v)(i)(ii) of the Act
“20. (1) The Syndicate shall have the following powers, namely:-
(v) (i) to appoint the Assistant Professors, Associate Professors, Professors and the teachers of the University, fix their emoluments, if any, define their duties and the conditions of their services and provide for filling up of temporary vacancies;
(ii) to prescribe the mode of appointment of administrative and other similar posts and fix their emoluments, if any, define their duties and the conditions of their services and provide for filling up of temporary vacancies.”
- The powers and duties of the Vice-Chancellor is defined under section 10 of the Act. According to learned counsel, after the decision was taken by the Vice-Chencellor on 30.07.2018, the impugned show cause notices were issued, without any authority. In this regard, the University had filed a counter affidavit, wherein, it has been stated in paragraph 30 as follows :
“30. ….. Accordingly, fresh notices dated 13.08.2018 were issued to the petitioners after a decision was taken by the Vice Chancellor vide order dated 30.07.2018 to process the proposal and by taking the remarks/explanations of the petitioners. In view of the decision of the University to withdraw the notices and the orders of this Hon’ble Court datead 28.06.2018, the decision of the Finance Committee dated 18.01.2017 and the syndicate Resolution dated 08.02.2017 approving re-designation of the petitioners have become obsolete and invalid. The fresh show cause notices have been issued pursuant to decision of the University Vice Chancellor vide order dated 30.07.2018 to process the proposal of re-designation after taking the remarks/explanations of the petitioners and after providing them an opportunity of personal hearing. The said decision was approved by the Syndicate of the University vide its resolution dated 12.11.2018. The grounds raised in the writ petitions are not tenable. There is no violation of Article 14 and 16 of Constitution of India. The other statements relating to the posts of Assistant Registrar, Senior Superintendent, Superintendent, Deputy Garden Superintendent and Senior Foreman Grade-I are not correct and therefore denied.”
- When an objection was raised, this court had passed an order on 14.07.2021 recording the statement of the University that in view of the decision of the University to withdraw the notice and orders of this court
dated 28.06.2018, the decision of the Finance Committee dated 18.01.2017 and the approval of the Syndicate dated 08.02.2017 have become obsolete and invalid. The fresh show cause notices under challenge, were issued only pursuant to the decision of the ViceChancellor vide letter dated 30.07.2018. The learned Senior Counsel, further added that the decision of the Vice-Chancellor, is without authority, as Vice-Chancellor cannot take decision, with respect to service rights and therefore, the issuance of Show Cause Notices as such
is non-est in the eye of law.
- P.Wilson, learned Senior Counsel appearing on behalf of some of the appellants submitted that the entire issue regarding the show cause notice is settled. He pointedly argued that (i) the courts can interfere in show cause notice when it is an abuse of process of law ; (ii) as already mentioned, as the first show cause notice was withdrawn, the principles of res-judicata will apply ; (iii) all the appellants have been under the employment of the respondents university for a decade or more and that the sudden alteration of pay scale would cause serious prejudice and loss and will deprive the legitimate expectation; and (iv) the university had already decided the entire issue and issuance of the impugned show cause notices is only a post decisional opportunity, which
would amount to an empty formality.
8.1. The learned Senior Counsel had drawn the attention of this Court to Section 58(3)(e) of the Act, which states that all the appointments of the officers, teachers and employees subsisting immediately before the date of the commencement of the Act, shall be deemed to have been made under the said Act and they shall continue to hold office in the University, subject to the conditions governing the terms of their office of employment. He also referred to Section 44 of the Act, which relates to conditions of service, and argued that the appellants having been appointed under the old rules, have protection under Section 58(3)(e) of the Act and thus prayed for setting aside the show cause
8.2. The learned Senior Counsel also relied on the judgment of the Hon’ble Supreme Court in H.L. Trehan v. Union of India, 1989 (1)
SCC 764, wherein, it has been held as follows :
“11. One of the contentions that was urged by Respondents 1 to 4 before the High Court at the hearing of the writ petition, as noticed above, is that unguided and arbitrary powers have been vested in the official by sub-section (1) of Section 11 for the alteration of the terms and conditions of service of the employees. It has been observed by the High Court that although the terms and conditions of service could be altered by CORIL, but such alteration has to be made “duly” as provided in sub-section (2) of Section 11 of the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word “duly” which, according to Concise Oxford Dictionary, means “rightly, properly, fitly” and according to Stroud’s Judicial Dictionary, 4th Edn., the word “duly” means “done in due course and according to law”. In our opinion, the word “duly” is very significant and excludes any arbitrary exercise of power under Section 11(2). It is now a well-established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a government servant will offend against the provision of Article 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice.
- It is, however, contended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In our opinion, the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. In this connection, we may refer to a recent decision of this Court in K.I. Shephard v. Union of India, (1987) 4 SCC 431. What happened in that case was that the Hindustan Commercial Bank, the Bank of Cochin Ltd. and Lakshmi Commercial Bank, which were private banks, were amalgamated with Punjab National Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under Section 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three banks were excluded from employment and their services were not taken over by the respective transferee banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of being heard. Ranganath Misra, J. speaking for the court observed as follows:
“We may now point out that the learned Single Judge for the Kerala High Court had proposed a postamalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a postdecisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could not represent and their case could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.”
8.3. Besides the above, the learned Senior Counsel also relied on the judgments of the Hon’ble Supreme Court in Grid Corpn. of Orissa v. Rasananda Das, (2003) 10 SCC 297, and Union of India and
another V. Vicco Laboratories, (2007) 13 SCC 270.
- Vijayashankar, learned counsel appearing on behalf of Mr.J.Saravanavel, learned counsel on record for some of the appellants, also reiterated the fact that the show cause notices dated 13.08.2008 has to go, if it is not issued pursuant to the Syndicate and the Finance Committee resolution. Relying upon the judgment of the Hon’ble Supreme Court in Siemens Ltd. V. State of Maharashtra (2006) 12 SCC 33, it was contended by the learned counsel that (i) the competent authority is the Syndicate and when Syndicate resolution has become obsolete, the show cause notice issued by the Registrar is invalid and the
show cause notices show the pre-determination of the respondents University, which warrants interference from this Court; (ii) when there is no post of Assistant Section Officer in the respondents University,
reverting the appellants to a non-existing post is illegal and arbitrary; (iii) Sections 84 and 87 of the Annamalai University Service Statutes of Administrative/Non-teaching Staff (Condition of Service) provide for revision of terms and conditions of service without detriment to the rights and privileges of the existing employees; and (iv) the Liaison Officers in the Distance Education Programme have been collecting huge amounts by way of fees, for the University and their services cannot be
- Syed Mustafa, learned counsel also contended that once the resolution of the Syndicate and the Finance Committee is withdrawn, the present Show Cause Notices having been issued without any authority, are not maintainable applying the maxim “sublato fundamento cadit opus”. The learned counsel submitted that once the foundation goes, the entire proceedings get crumbled. The withdrawal of the resolution as
stated in para 30 of the counter affidavit itself is malice in law and cannot
be permitted. He placed reliance on Coal India Ltd. v. Ananta Saha,
(2011) 5 SCC 142, wherein, it has been held thus :
“32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
10.1. He pointed out that the show cause notice contained financial implication due to the entry of the appellants. It was contended that the downgradation of the appellants amounts to reversion as all of them are Professors and Assistant Professors and cited Section 58(e) of the saving clause of the service statute. Secondly, the learned counsel argued that
the appellants cannot be reverted to the lower post than the entry cadre.
10.2. The learned counsel also placed reliance on the decision in
South Bengal State Transport Corpn. v. Ashok Kumar Ghosh,
(2010) 11 SCC 71, wherein, it was held thus :
“20. We may next consider whether the punishment is permissible in service jurisprudence. It is well settled that while an employee can be reverted to a lower post or service, he cannot be reverted to a post lower than the post in which he entered service (see Nyadar Singh v. Union of India, (1988) 4 SCC 170. Further, it is also well settled that reversion to a lower post or service does not permit reversion to a post outside the cadre, that is, from a regular post to a daily-wage post. We are therefore of the view that the punishment inflicted on the delinquent employee not being one of the punishments enumerated in Regulation 36, is not permissible in law.”
10.3. The Learned Counsel also expressed the grievance that the Pay Commission benefits were not given to the appellants, though they
are entitled to in view of section 58(3)(e) of the Act.
- Ajay Khose, learned counsel submitted that in view of Article 162 of the Constitution, even the State has limited power in respect of the concurrent matters and thus, the University cannot have such power to issue show cause notice. The posts of the appellants are in the Standing Orders and without amendment, the posts cannot be removed. It was also objected that earlier decision of the Syndicate could be withdrawn only in a subsequent meeting by the Syndicate and the ViceChancellor order dated 30.07.2018 is without authority.
- Per contra, Mr.Issac Mohanlal, learned Senior Counsel appearing on behalf of Annamalai University, made the following
- what is given is only a Show Cause Notice, which normally, cannot be challenged in a Court of Law ;
- when the Government took over the university on 24.09.2013, there were enormous, immense and surplusage of the staff, who started
eroding the university ;
- the teaching staffs were re-deployed in various colleges, as when only 1110 non-teaching staff were required, there were 4722 staff
available on the rolls of the University.
- the university had re-deployed 2635 staff in various departments as per G.O.Ms.No.108, dated 28.04.2017. The appellants are only one of the types of non-teaching staff, numbering 798, when the
required number is only 4.
- the impugned show cause notices were issued only for 785 ;
- when the Finance Committee has become otiose qua the appellants, then it cannot be relied. The 1st show cause notice dated 02.04.2018 was withdrawn with liberty to issue 2nd show cause notice.
12.1. The learned Senior Counsel also added that Annamalai University Service Statutes dated 01.11.2016 is yet to get the assent of the Hon’ble Governor/Chancellor and therefore, it becomes inoperative. In the absence of a statute as on date, the University Syndicate has to decide. The learned Senior Counsel further pointed out that, pursuant to the order of the Vice-Chancellor on 30.07.2018, the impugned Show Cause Notices were issued on 13.08.2018. The Syndicate had ratified the same on 12.11.2018, however, the writ petition came to be filed on 24.08.2018. Therefore, the ratification relates back to the date of action. In this regard, the learned Senior Counsel relied on the judgment of the Hon’ble Supreme Court in Maharashtra State Mining Corpn. v. Sunil,
(2006) 5 SCC 96.
“5. The High Court allowed the writ petition holding that the Managing Director was not competent to terminate the respondent’s services as on the date of the passing of the order of termination and therefore the order of dismissal was invalid. The High Court was also of the view that this defect could not be rectified subsequently by the resolution of the Board of Directors. The High Court accordingly set aside the order of termination. Since the respondent had already retired from service, the appellant was directed to reinstate the respondent notionally with effect from the date of termination in the same post and pay salaries up to the date of superannuation and to pay all retiral benefits after the date of superannuation.”
- We have heard the learned Senior Counsels and the learned
counsels on either side and perused the materials placed before us.
- In the light of the above arguments, the questions that arise
for determination in these writ appeals are whether,
- the Show Cause Notice can be challenged in writ petition ?
- the Show Cause Notice is a premature one ?
- the contents of the Show Cause Notice show predetermination on the part of the respondents University ? and
- the respondents are competent and have jurisdiction to issue
the Show Cause Notice ?
- The contentions of the learned Senior Counsel for the University is that the challenge to the Show Cause Notice is premature, as it does not give rise to any cause of action. The Show Cause Notice also does not amount to an adverse order, which affects the rights of the parties. The necessity for issuing the Show Cause Notices is a pre-
requisite of principles of natural justice. The rules of natural justice are
not embedded rules and therefore, it cannot be equated with the fundamental rights. Normally, the Show Cause Notice is issued with an aim to secure justice and to prevent miscarriage of justice. In this regard, it is apposite to refer to the judgment of the Hon’ble Supreme Court in Board of Mining Examination and Chief Inspector of Mines v. Ramjee, (1977) 2 SCC 256, wherein, Hon’ble Mr.Justice V.R.Krishna
Iyer, speaking for the Bench, held as follows :
“13. The last violation regarded as a lethal objection is that the Board did not enquire of the respondent, independently of the one done by the Regional Inspector. Assuming it to be necessary, here the respondent has, in the form of an appeal against the report of the Regional Inspector, sent his explanation to the Chairman of the Board. He has thus been heard and compliance with Regulation 26, in the circumstances, is complete. Natural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt — that is the conscience of the matter.”
The above decision also justifies that the writ petitions shall not be encouraged to circumvent the procedure to challenge the administration
- Insofar as the prejudice that may be caused to the appellants is concerned, unless it is shown that the procedural requirements have not been complied with to hold that the issuance of Show Cause Notice itself ipso facto illegal, the appellants cannot be said to prejudicially affected by the impugned Show Cause Notices. This Court also cannot embark to decide the factual disputes, but relegate the appellants to submit the
reply before the respondents University.
- The next ground raised while assailing the impugned Show Cause Notices is that it is premeditated and predetermined and issuance of the same is only an empty formality. Earlier on 02.04.2018, the Show Cause Notice was issued and when it was put to challenge before this Court, the same was withdrawn obtaining liberty to issue a fresh Show Cause Notice. The said order passed on 28.06.2018, granting liberty to the University to withdraw the earlier Show Cause Notice and issue a fresh Show Cause Notice, was not challenged by the appellants. Hence, the present Show Cause Notices now issued cannot be questioned by the
- The resolution per se will not give rise for a cause of action to the appellants to challenge the Show Cause Notices. The allegation that the impugned Show Cause Notices are issued only as a post decisional opportunity and it is an empty formality, cannot be accepted, as the Show Cause Notices only indicate the issue to be addressed by the appellants. Once the Show Cause Notice is issued, it is like giving an opportunity to give reply to the same and after receiving response or affording an opportunity of hearing, if any order is passed, that would give a cause of action. To give such reply or response to a Show Cause Notice, the Show Cause Notice has to indicate the issue pertaining to
which, action is proposed to be taken.
- In this regard, it would be useful to refer to the following paragraphs of the judgment of the Hon’ble Supreme Court in Gorkha
Security Services v. Govt. (NCT of Delhi), (2014) 9 SCC 105 :
“21. The central issue, however, pertains to the requirement of stating the action which is proposed to be taken.
The fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. When it comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action.
- The High Court has simply stated that the purpose of show-cause notice is primarily to enable the noticee to meet the grounds on which the action is proposed against him. No doubt, the High Court is justified to this extent. However, it is equally important to mention as to what would be the consequence if the noticee does not satisfactorily meet the grounds on which an action is proposed. To put it otherwise, we are of the opinion that in order to fulfil the requirements of principles of natural justice, a show-cause notice should meet the following two requirements viz:
- The material/grounds to be stated which according to the department necessitates an action;
- Particular penalty/action which is proposed to be taken. It is this second requirement which the High Court has failed to omit.
We may hasten to add that even if it is not specifically mentioned in the show-cause notice but it can clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement.”
The point, which is before this Court, is whether the said Show Cause Notices are vitiated on account of bias. The enquiry notice by itself
cannot prejudice the appellants in any manner.
- The aforesaid judgment is followed by the Hon’ble Supreme Court in a recent judgment in UMC Technologies Private Limited V. Food Corporation of India and another, (2021) 2 SCC 551,
wherein, it was held as follows :
“13. At the outset, it must be noted that it is the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself. The basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he can defend himself. Such notice should be adequate and the grounds necessitating action and the penalty/action proposed should be mentioned specifically and unambiguously. An order travelling beyond the bounds of notice is impermissible and without jurisdiction to that extent. This Court in Nasir Ahmad v. Custodian General, Evacuee Property, (1980) 3 SCC 1 has held that it is essential for the notice to specify the particular grounds on the basis of which an action is proposed to be taken so as to enable the noticee to answer the case against him. If these conditions are not satisfied, the person cannot be said to have been granted any reasonable opportunity of being heard.”
- In an earlier decision in New Samundri Transport Co. (P) Ltd. V. State of Punjab, (1976) 1 SCC 757, the Hon’ble Supreme
Court held that unless the breaches of conditions or other allegations are particularised in the show-cause notice, such notice is clearly invalid and
no action can be taken under such a notice.
- In the Show Cause Notices impugned in the writ petitions, it is only stated that with the intent of striking a balance between the deteriorating financial position of the University and avoiding
retrenchment of the surplus officers, who have no work, the University is exploring the possibility of accommodating the surplus officers against some other cadre for the time-being. The appellants are post graduates and are Special Officers Grade-I/Liaison Officers, who are now sought to be accommodated in the cadre of Assistant Section Officer. Therefore, the Show Cause Notices only expressed its intention to accommodate the surplus officers in the post of Assistant Section Officer and there is no
pre-determination and it was only indicated the intention proposed.
- In the light of the above judgments, in the instant appeals, the Show Cause Notices indicated that the appellants would be reduced to the rank of Assistant Section Officer and the reply/objection or the reasoning of the appellants are sought before putting into action. If the Show Cause Notice does not suggest the reason, for which, it was issued and the proposed action, then it would be prejudicial to the appellants for not giving appropriate reason or response. If the Show Cause Notice is issued without giving out the reason, the noticee cannot be taken by surprise at the time of enquiry, as he may not be prepared to
countenance the cause that is put to him.
- It is no doubt true that any Show Cause Notice issued cannot be challenged for the simple reason that it does not give rise to a cause of action to the parties, as it is quite possible that after considering the response from the noticees or after holding any enquiry, the authority may drop the proceedings or may reject the reasons given by the
noticees. When such being the fact, in the absence of any infringement of right by the authorities, the appellants cannot have any cause of action
to challenge the Show Cause Notice, which is a premature one.
- V.Vijayashankar, learned counsel for the appellant relied on the following portion of the judgment in Siemens Limited (cited
“9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of U.P. v. Brahm Datt Sharma (1987) 2 SCC 179, Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440 and Union of India v. Kunisetty Satyanarayana (2006) 12 SCC 28, but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I. Shephard v. Union of India (1987) 4 SCC 431. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show-cause notice.”
- P.Wilson, learned Senior Counsel for the appellants relied on the following judgment delivered by the Hon’ble Supreme Court in
Union of India v. VICCO Laboratories, (2007) 13 SCC 270 :
“31. Normally, the writ court should not interfere at the stage of issuance of show-cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and to satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show-cause notices have been issued. Abstinence from interference at the stage of issuance of show-cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show-cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show-cause notice. The interference at the show-cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out.”
- On the other hand, Mr.Issac Mohanlal, learned Senior Counsel appearing for the Annamalai University, heavily relied on the judgment of the Hon’ble Supreme Court in Union of India V. Kunisetty Satyanarayana, (2006) 12 SCC 28, wherein, reiterating the well-
settled principle that ordinarily no writ lies against the show cause notice,
it has been observed as follows :
“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, Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440, Ulagappa v. Divisional
Commr., Mysore (2001) 10 SCC 639, State of U.P. v. Brahm Datt Sharma (1987) 2 SCC 179, etc.
- 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 charge-sheet.
- 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.”
- Even the Hon’ble Supreme Court in VICCO Laboratories (cited supra), relied on by Mr.P.Wilson, learned Senior Counsel, held that “mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law, would not suffice and it should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out.” In view of the above judgments, we are of the view that the Show Cause Notices cannot be interfered with by the Constitutional Court under Article 226 of the Constitution excepting the circumstances enunciated by the Hon’ble Supreme Court in a catenae of decisions including the decisions referred
- The pointed argument of the learned counsel for the appellants is that as per Section 58(3)(e) of the Act, all the appointment of officers, employees, etc. of the University subsisting immediately before the date of the commencement of the Act, shall be deemed to have been made under and for the purposes of the Act and shall continue to hold the office, the University deemed to have been established under the said Act. Such argument is irrelevant at this point, as the appellants continue to be the employees of the University and even what is contemplated in the Show Cause Notice is only reduction of the rank and reprising of their post. Therefore, the jurisdiction or the competency to issue the Show Cause Notice cannot be decided at this stage.
- It is brought to the notice of this Court by the learned Senior counsel for the Annamalai University that, of the 785 noticees, 487 alone had appealed, as 97 have accepted the re-designation and 192 have not challenged, while writ appeals were filed questioning the validity of the very same notices, which are put to challenge now. The said appeals were decided by a Coordinate Division Bench of this Court as early as on 11.2019 in W.A.No.3215 of 2019 etc., batch [K.C.Chandra Sekar V. The Annamalai University rep. by its Registrar (In-
charge)], wherein also, the similar objections of the appellants were rejected and the Show Cause Notices were upheld, as there was no error or infirmity in the same. The Division Bench, while upholding a similar order of the learned Single Judge referred to the following legal maxim
and its meaning in paragraph 9 :
“Omnia praesumuntur rite esse acta” – Literally, it means, “All things are presumed to be done in due form” ; in law, it implies that where it has been proved that an “official act” has been done, it will be presumed to be done in due form, until the contrary is proved.”
- We are of the view that no ground is made out by the learned counsel for the appellants warranting us to take a different view and in such circumstances, we are duty bound to follow the judgment of a Coordinate Bench. In this regard, it is apt to refer to the judgment of the Hon’ble Supreme Court in Uttar Pradesh Power Corporation Limited V. Rajesh Kumar, (2012) 7 SCC 1, upon which, reliance is placed by the learned Senior Counsel for the Annamalai University, wherein, it was
enunciated as under :
“17. Similarly, the Division Bench at Lucknow erroneously treated the verdict of the Allahabad Bench not to be a binding precedent on the foundation that the principles laid down by the Constitution Bench in M. Nagaraj (2006) 8 SCC 212 are not being appositely appreciated and correctly applied by the Bench when there was reference to the said decision and a number of passages were quoted and appreciated albeit incorrectly, the same could not have been a ground to treat the decision as per incuriam or not a binding precedent. Judicial discipline commands in such a situation when there is disagreement, to refer the matter to a larger Bench. Instead of doing that, the Division Bench at Lucknow took the burden on themselves to decide the case.
- The aforesaid pronouncements clearly lay down what is expected from the Judges when they are confronted with the decision of a Coordinate Bench on the same issue. Any contrary attitude, however adventurous and glorious it may be, would lead to uncertainty and inconsistency. It has precisely so happened in the case at hand. There are two decisions by two Division Benches from the same High Court. We express our concern about the deviation from the judicial decorum and discipline by both the Benches and expect that in future, they shall be appositely guided by the conceptual eventuality of such discipline as laid down by this Court from time to time. We have said so with the fond hope that judicial enthusiasm should not obliterate the profound responsibility that is expected from the Judges.”
- As stated above, the appellants having not been made out any new ground warranting interference in the impugned action, we are left with no option, but to follow the judgment of a Coordinate Bench referred
- The learned counsel for the appellants Mr.Syed Mustafa contended that Pay Commission benefits were not given to the
appellants, though they are entitled to in view of section 58(3)(e) of the Act. We are of the view that the said ground cannot be canvassed in these appeals. Further, the said issue has been negatived by the Division
Bench in the judgment referred to above in the following manner:
“33. The order dated 21.09.2019 made in W.P(MD).Nos. 11068 & 11069 of 2018 [M.Dhanasekara Pandian v. The Registrar, Annamalai University] relied on by the learned counsel appearing for the appellants has no application to the case on hand for the reason that challenge was made to the proceedings of the Registrar denying the recommendations of the 7th Pay Commission to certain employees of the University, by placing reliance upon Section 53 of the Annamalai University Act, 2013. It is not as if the the appellants/writ petitioners are going to be terminated/ousted from their jobs and for the purpose of striking a balance between the deteriorating financial position of the University, show cause notices have been issued and it cannot be found fault on the present facts and circumstances and also on the settled legal position with regard to the grounds of challenge.”
- The argument by Mr.Mustafa based on Malice in law is also not tenable. In this case, the notices in question have been challenged and
sought to be quashed on the ground that the notices disclose
premeditation or bias and therefore, are violative of Article 14 of the Constitution of India. However, there is no personal ill-will attributed to specific person. Accordingly, this Court is unable to find any traces of premeditated mind on the part of the University from the reading of the Show Cause Notices, which are mere notices affording opportunity to the appellants to response to the proposal contained in the Show Cause Notices.
- A feeble attempt was made by the learned counsel for the appellants that the Tamil Nadu Government proposed to amend the Act to convert the Annamalai University from a unitary institution into an affiliating type University and it will ease out the difficulties of the appellants and create more new posts, in which, the appellants could be accommodated, we are of the view that the said ground cannot be raised before this Court.
- Considering the fact that the issue is pending at the Show Cause Notice stage itself for years, the appellants are directed to submit their reply/response/objection within a period of two weeks, if not submitted earlier and the respondents University, shall proceed with the same in accordance with law, as expeditiously as possible. It goes without saying that the appellants are entitled to raise all the grounds
before the respondents.
- For the foregoing reasons, we do not find any error in the orders of the learned single judge, which are impugned in these writ appeals, as there is no merit in these appeals and accordingly, these appeals are dismissed as devoid of merits. Consequently, the connected
miscellaneous petitions are closed. The parties shall bear their own costs.
[P.S.N., J.] [K.R., J.]
Index : Yes / No Internet : Yes gg
- The Principal Secretary,
Higher Education Department, Government of Tamil Nadu,
Fort St. George, Chennai-600 009.
- The Chairman,
Syndicate of Annamalai University, Annamalai Nagar, Chidambaram, Cuddalore District-608 002.
- The Registrar,
Annamalai University Annamalai Nagar, Chidambaram, Cuddalore District-608 002.
PUSHPA SATHYANARAYANA, J.
AND KRISHNAN RAMASAMY, J.
W.A.No.1831 of 2019, etc. batch