Dipankar Datta, J. - (1.) TO nip a disciplinary proceeding initiated against her in the bud, the petitioner (an Assistant Professor of the Department of English of Vidyasagar University) has presented this writ petition praying for an order as follows: "b) A writ in the nature of mandamus directing the respondents to withdraw and/or recall and/or rescind the Show Cause dated 16.06.2014, the Suspension letter dated 21.07.2014 and the Charge -Sheet dated 23.07.2014 and allow the petitioner to join her services immediately and pay all consequential 2 benefits including arrears of pay to the petitioner." The charge -sheet issued to the petitioner has been at the centre of debate in this litigation.
(2.) ACCORDING to Mr. Basu, learned senior counsel for the petitioner, expressions used in the charge -sheet are such that the same provide sufficient reason for the petitioner to perceive that her disciplinary authority has pre -judged her guilt, and the enquiry and the subsequent steps to follow would be nothing but a mere ritual before she is punished. He further contended that the disciplinary authority did not apply his mind to the point as to whether the acts of omission/commission, as attributed to the petitioner and forming part of the charge -sheet, at all amount to misconduct warranting initiation of disciplinary proceeding against her in terms of the Vidyasagar University First Ordinances, 1985. There being a real danger of bias operating against the petitioner, he submitted that it would be an idle formality for her to participate in the proceeding and that imposition of penalty is a foregone conclusion. In support of his submission that the charge -sheet ought to be interdicted, Mr. Basu placed reliance on the following decisions: "1. : AIR 1984 SC 1361 (A.L. Kalra v. Project Equipment Corporation); 2. : AIR 2001 SC 343 (State of Punjab v. V.K. Khanna); 3. : (2010)13 SCC 427 [Oryx Fisheries (P) Ltd. v. Union of India]; 4. : (2012)5 SCC 242 (Vijay Singh v. State of U.P.); 5. (Sunil Kumar Mukherjee v. State of West Bengal; 6. (1993)2 CHN 103 (State Bank of India v. Tapan Kumar Das); and 7., (2009)4 CHN 380 [Khaitan (India) Limited v. Learned Judge, Eighth Industrial Tribunal]." It was further submitted by Mr. Basu that the incident which seems to be the genesis of the charge sheet was a deputation that was proposed by members of a professors' association, to which the petitioner owes allegiance, before the Vice -Chancellor of the University. Several members of such association were present in course of the deputation, 4 but the petitioner was singled out. This, according to him, is a clear example of hostile discrimination and relying on the decision reported in : (1983)4 SCC 225 (Sengara Singh v. State of Punjab), it was submitted that the disciplinary authority of the University acted illegally. Mr. Basu also submitted that the charge -sheet was preceded by a show -cause notice. The petitioner had duly replied to the allegations forming part of the show -cause notice in her attempt to explain the position and expected that no further step would be taken. To her utter dismay and disbelief, the charge sheet was issued against her levelling charges which were not even referred to in the show -cause notice. According to him, it is absolutely clear that the disciplinary authority is biased and the petitioner does not expect a fair proceeding. Mr. Basu, thus, prayed for an order as claimed, noted above. The writ petition was opposed by Mr. Kar, learned senior counsel for the University. According to him, the writ petition ought not to be entertained because the same is premature. It was next submitted that no malice has been alleged 5 against the disciplinary authority by the petitioner and in the absence thereof, the Court may be loath to entertain the challenge to the disciplinary proceeding at this stage. Relying on the decision reported in : (2012) 11 SCC 565 : Ministry of Defence v. Prabhash Chandra Mirdha, he submitted that a charge -sheet does not give rise to any cause of action for moving the Court and that the writ petition merits dismissal bearing in mind such principle. Endeavouring to impress the Court that the decision in A.L. Kalra (supra) ought not to be relied on, Mr. Kar submitted that the ratio of such decision had been explained in subsequent decisions of the Supreme Court and hence, before applying the law laid down in the cited decision the facts of the case required careful examination. He submitted that according to the Bench, a trivial matter had travelled to it for its consideration. An order of dismissal was passed against the appellant and the decision is clear manifestation that the Bench was offended at the appellant being dismissed for a trivial offence, which was ultimately set aside. However, the charges against the petitioner, prima facie, are serious and 6 not only confined to the subject deputation but also relate to remissness on her part in discharging the duties of a professor and that action as authorized by the relevant Ordinances was initiated. That apart, it was submitted that the decision in A.L. Kalra (supra) would reveal the order of dismissal being challenged before the High Court following a sham enquiry and it is not that the decision was rendered at the stage of the charge -sheet. He, therefore, urged that the decision in A.L. Kalra (supra) ought not to be followed. Mr. Kar next pointed out that the decisions in Sunil Kumar Mukherjee (supra) and Tapan Kumar Das (supra) would reveal that the High Court was approached after culmination of the disciplinary proceedings resulting in orders of punishment being passed whereas in Khaitan (India) Limited (supra), the award of the Industrial Tribunal directing reinstatement of the workman was under challenge. He submitted that in none of the said decisions did the Court grant relief based solely on the ground that the charge -sheet disclosed a closed mind; on the contrary, ultimate relief to the perceived delinquent 7 followed on manifold grounds, including the ground that the charge -sheet expressed pre -judgment of guilt. He, accordingly, contended that this is not the proper stage for examining the point raised by the petitioner. Referring to the decision in Vijay Singh (supra), the Court's attention was invited to the fact that subsequent decisions of the Supreme Court which have been pronounced upon consideration of the decision in A.L. Kalra (supra) and holding that the latter decision does not lay down an inflexible rule of law of universal application, were not placed before the Bench and it is in such circumstances that the Bench observed that it cannot be left to the vagaries of the employer to say ex post facto that some acts of omission or commission, nowhere found to be enumerated in the relevant rules as misconduct, is nonetheless a misconduct. Reacting to the decision in Oryx Fisheries (P) Ltd. (supra), Mr. Kar submitted that the registration certificate of the appellant was cancelled by an order dated March 19, 2008 without giving the appellant any hearing and without citing any reason. An appeal 8 preferred against such order failed, whereafter the High Court was approached. Although the High Court declined to interfere, the Supreme Court interfered not only on the ground that the show -cause notice gave an impression that the competent authority had prejudged the guilt of the appellant at the stage of show -cause notice itself but also on the ground that the reply to the show -cause notice was not considered and a non -speaking order of cancellation was passed. Attention of the Court was drawn to paragraph 37 of the decision where it was observed that: "the bias of the third respondent which was latent in the show -cause notice became patent in the order of cancellation of the registration certificate. The cancellation order quotes the show -cause notice and is a non -speaking one and is virtually no order in the eye of the law." Mr. Kar urged that having regard to the nature of high office held by the petitioner, the University reasonably expects a responsible behaviour that is commensurate with her status. It was found that in course of the subject deputation, her demeanour was not proper. There were other allegations too that she may have indulged in acts of omission/commission, which are unbecoming of a professor of the 9 University. That is precisely the reason why charge has been levelled against her in respect of such incident as well as the other incidents, prima facie, giving rise to an impression that she may have committed acts of indiscipline. The mere fact that the word 'guilty' has been used in some of the articles of charge do not vitiate the disciplinary proceeding, which is at its nascent stage, and if the petitioner is able to satisfy the disciplinary authority by replying to the charges that there has been no misconduct/misdemeanour on her part, the disciplinary authority may not even proceed to conduct an enquiry. The decision in Sengara Singh (supra), it was also submitted by Mr. Kar, is not at all appropriate for deciding the present controversy. He referred to the facts of that case and submitted that reinstatement of the appellant was directed only upon the Court arriving at a finding that there was arbitrary picking and choosing for reinstatement after mass dismissal, which was violative of Article 14 of the Constitution. He accordingly prayed for dismissal of the writ petition.
(3.) IN reply, Mr. Basu invited my attention to Prabhash Chandra Mirdha (supra) and submitted that no law has been laid down therein that a charge -sheet can never be questioned. The word "ordinarily" has been consciously used, which makes the position clear that in an exceptional case a Court may be justified in interfering with a charge -sheet. This being an exceptional case, he urged that the Court's interference is warranted to set things right.;