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Vernon Coelho v/s Institute of Hotel Management & Another

Company & Directors' Information:- H S MANAGEMENT INSTITUTE PRIVATE LIMITED [Active] CIN = U74140DL2005PTC141500

Company & Directors' Information:- A S INSTITUTE OF MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U80302DL2005PTC140941

    Writ Petition No. 1344 of 2013

    Decided On, 29 October 2013

    At, High Court of Judicature at Bombay


    For the Petitioner: Basil Menezes, Advocate. For the Respondents: Ms. N.V. Masurkar, Advocate.

Judgment Text

K.R. Shriram, J.

1 Rule. By consent of the parties, Rule made returnable forthwith and heard finally.

2 Since 1986 the petitioner has been the Head of the Department, Food Production with respondent No.1.

3 The first respondent issued a memorandum dated 1st June 2010 (1st memo) to the petitioner along with a statement of imputation of misconduct or misbehaviour based on which it was proposed to take action against the petitioner under Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for brevity referred to as ‘CCS(CCA), Rules’). The petitioner was also called upon to submit his representation in response to the memorandum. The allegation in the statement of imputation against the petitioner was that the petitioner took leave for foreign visits giving reasons 'vacation or personal' but actually participated in cookery shows launched by foreign organizations one of which was in Germany. It is alleged that the petitioner thereby engaged in private trade or employment. It is also alleged that while applying for leave, the petitioner had given an undertaking not to engage in private trade or employment which he had breached and by the said acts the petitioner has acted in a manner unbecoming of a government servant. The petitioner replied to the said memorandum and denied that he had violated any provisions of CCS (Conduct) Rules, 1964. The respondent no.1 did not proceed further with the 1st memo.

4 Thereafter, the petitioner received another memorandum dated 1st July 2010 (2nd memo) by which the petitioner was informed that the respondents proposed to hold an enquiry against the petitioner under Rule 14 of CCS (CCA) Rules. Rule 14 provides for procedure for major penalties. The petitioner was also given a statement of articles of charge containing the imputation of misconduct / misbehaviour. These charges were similar to the one imputed against the petitioner in the 1st memo of June 2010. The only difference between both the memos were the period during which the alleged misconduct / misbehavior was allegedly committed. In the 2nd memo it was from 13th may 2007 to 18th June 2007 and 11th August 2007 to 20th August 2007 (almost three years ago) whereas in the 1st memo the dates were from 23rd March 2010 to 26th March 2010. The petitioner replied denying the charges. Thereafter, nothing transpired for over a year.

5 Sometime in the end of September 2011, the petitioner received a copy of the prosecution brief from the Presenting Officer of the first respondent, addressed to the Enquiry Officer. Enquiry was conducted under rule 14 (major penalty) by the Enquiry Officer who submitted a detailed report dated 31st October 2011 in which the petitioner was held guilty of all charges levelled against him. On 1st November 2011, the petitioner was served a copy of the said report by the first respondent and the petitioner was called upon to submit his representation, if any, on the enquiry report. The petitioner gave his representation dated 14th November 2011 and denied the findings of the Enquiry Officer.

6 After a silence of about five months, the petitioner received a letter dated 9th April 2012 from the first respondent stating that the Board of Governors had resolved that a fresh enquiry be conducted against the petitioner under Rule 16 of CCS (CCA) Rules. It is necessary to clarify here that the earlier charges that were leveled against the petitioner under Rule 14, as mentioned above, was for 'imposing major penalties' whereas the latest enquiry under Rule 16 is for 'imposing minor penalties' though the charges were similar.

7 The petitioner by his reply dated 2nd May 2012 stated that since an enquiry had already been conducted as contemplated by the respondent no.1 and called upon the respondent no.1 to withdraw its letter dated 9th April 2012.

8 The respondent no.1, however, proceeded to issue a memorandum dated 18th May 2012 informing the petitioner that it was proposed to take action against the petitioner under Rule 16 of CCS (CCA) Rules. The petitioner was also given a statement of imputation of misconduct and misbehaviour on which action was proposed to be taken against the petitioner. The petitioner by his reply dated 28th May 2012 denied charges and called upon the respondent No.1 to withdraw the said letter.

9 This was followed by yet another memorandum dated 29th October 2012 (3rd memo) from the first respondent with a statement of imputation of misconduct and misbehaviour and the charges levelled. The charges levelled against the petitioner were similar to the charges levelled when the earlier enquiry was held. In other words the charges of alleged misconduct / misbehavior in all the 3 memos, i.e., 1st memo, 2nd memo and 3rd memo are similar. The petitioner gave a detailed reply once again denying the allegations and called upon the respondent no.1 to withdraw the memo.

10 The petitioner, thereafter, received an order dated 10th December 2012 from the respondent no.1 by which the petitioner was informed that an enquiry officer was being appointed to enquire into the charges framed against the petitioner. It is necessary to observe here that the Enquiry Officer was the same person, who was the Enquiry Officer earlier following the 2nd memo, whose report and conclusions were abandoned by the respondent no.1. The Enquiry Officer issued notice dated 11th February 2013 calling upon the petitioner to remain present for preliminary hearing.

11 Against this last salvo from the respondent no.1, petitioner has approached to this Court for a writ quashing the same and prohibiting the respondent no.1 from conducting any fresh enquiry. It is the case of the petitioner that this is nothing but witch-hunting by the respondent no.1 and the petitioner is being harassed by the respondent no.1 for inexplicable reasons.

12 We have considered the reply filed by the respondent no.1 in which apart from mere denials the only stand taken is that the petitioner has an alternative remedy and that the petitioner should approach the Central Administrative Tribunal. Even during the course of arguments, the counsel for the respondent no.1 kept stating that the petitioner should go to the Central Administrative Tribunal and this Court should not entertain the petition. On other contentions raised by the petitioner in the petition and during the course of the arguments the counsel for the respondent no.1 had nothing to say.

13 It is quite obvious from the facts mentioned above that there has been a witch-hunt against the petitioner by the respondent no.1 and the petitioner is being harassed for inexplicable reasons. The respondent no.1 has been issuing one memo after another, holding enquiry after enquiry for the same charge of misconduct / misbehavior. Moreover, it is over six years since the alleged misconduct / misbehavior. This is nothing but illegal exercise of authority by the respondent no.1. In such situation, a writ petition challenging the second enquiry for the same charge of misconduct / misbehavior, which were once enquired into and the report and conclusions abandoned, is maintainable.

13 The petitioner, we are told, has less than two years in service. In this case, the petitioner was first issued a memorandum (1st memo) to which he replied. This was abandoned. Thereafter, another memorandum (2nd memo) was issued. Both were for imposing major penalties. A detailed enquiry was held and report was issued by the Enquiry Officer. This was abandoned and after about five months, a fresh enquiry is being commenced by issuing a 3rd memo and this time, for 'imposing minor penalties'. In both the cases under major penalties and under minor penalties, the charges are identical. It is also necessary to note that the misconduct/misbehaviour is alleged to have been committed sometime in mid 2007. It is rather obvious that the intention of the powers that be in the offices of respondent no.1 is nothing but to harass the petitioner. We find no reason to make the petitioner go to the Central Administrative Tribunal, agitate his case there and if the order is against the petitioner to come thereafter to the High Court. This would be unfair to the petitioner.

14 We are also satisfied that there is no fresh cogent reason or material before respondent No.1 to commence any fres

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h enquiry. The fact that the first enquiry for the same charge of misconduct and misbehaviour was alleged to be 'major' and the subsequent proposed enquiry for the same charge is alleged to be 'minor' is not reason enough to justify the victimization of the petitioner. 15 It is in these exceptional circumstances that we have invoked our extraordinary jurisdiction under Article 226 of the Constitution of India instead of relegating the petitioner to the alternative remedy before the Central Administration Tribunal. Added to this is the fact this the learned counsel for respondent No.1, apart from contending that the petitioner, has an alternate remedy did not attempt to furnish any reason for the successive memorandum issued to the petitioner. 16 In the circumstances, the petition is certainly maintainable and is hence allowed and rule is made absolute in terms of prayers (a), (b) and (c). No order as to costs.