An interim order lapses under Article 226(3) when the vacation application goes undecided for two weeks
Justice Pankaj Bhatia dismissed a KGMU professor's four writ petitions and a contempt application, holding that grievances withheld from the charge sheet reply cannot be raised first in writ.
A professor of King George's Medical University who fought his dismissal through four writ petitions and a contempt application, but never once filed a reply to the charge sheet against him, has lost all five. Justice Pankaj Bhatia, sitting singly at the Lucknow Bench of the Allahabad High Court, held that the scope of judicial review in a disciplinary matter is confined to the decision-making process, that a petitioner who withheld his grievances from the departmental proceeding cannot air them for the first time under Article 226, and that the central charge against him was never denied even in court. On the contempt plea the judgment supplies a point of practical value: where an application to vacate an interim order is filed and not disposed of within two weeks, the order stands vacated by force of Article 226(3) of the Constitution, and acting after that is not wilful disobedience.
A company at the professor's own address
The charge was a conflict of interest, and it was narrow. The petitioner was a Director of a company whose registered office was his own residential address. Another Director of that company was Mr. Vikrant Kumar, who was the proprietor of M/s Fluid Fantasy, and that firm was awarded work at the petitioner's instance. The departmental case was that he had engaged in business and had indirectly awarded contracts to a concern he was associated with.
What followed was five years of procedure. The petitioner's first challenge, Writ A No. 29638 of 2018, attacked the inquiry report and the constitution of the disciplinary proceeding; judgment in it was reserved in November 2018 and an interim order allowed the proceeding to conclude but barred any final order until that judgment was delivered. In February 2019 the matter was released by the Judge who had reserved it and sent to the Chief Justice for nomination of another Bench.
In May 2019 the Executive Council approved the charge sheet and gave the petitioner two weeks to reply. The charge sheet ran to nine pages with 200 pages of annexures and was issued on 14 June 2019. He responded with a third writ petition, Writ A No. 18642 of 2019, challenging the charge sheet as contrary to the Statutes and Rules, annexing the whole of it to his own petition — and still filed no reply.
The Disciplinary Committee recommended suspension under Statute 11.11(4)(iii) of the First Statute of KGMU, 2011, and the Executive Council suspended him on 19 October 2019. He filed a fourth petition against the suspension, Writ A No. 33626 of 2019, and obtained a stay of it coupled with a direction to participate and cooperate in the proceedings.
By the time Justice Bhatia came to decide them, five proceedings were on the board, heard together in terms of directions issued by the Supreme Court. Each attacked a different rung of the same ladder. Writ A No. 29638 of 2018 sought to quash a preliminary inquiry report of 25 September 2017 submitted by a three-member fact-finding committee, the constitution of the Disciplinary Committee, and the notice of 24 September 2018 communicating it. Writ A No. 35784 of 2018 challenged a questionnaire of 1 December 2018 asking him for point-wise answers. Writ A No. 18642 of 2019 challenged the charge sheet, Writ A No. 33626 of 2019 the suspension, and Writ A No. 3840 of 2021 the dismissal itself. The contempt application was the sixth.
Twelve months of opportunity, and what was done with it
The judgment sets out the next year as a sequence, and the sequence is the reason the petitioner lost. In November 2019, instead of replying, he asked for about twenty documents and the examination of about seventy witnesses, along with video recording of the proceedings and legal assistance. The Committee asked him to file notarised affidavits of those he wished to cross-examine and to reply within seven days, failing which it would proceed ex parte. He did neither, though the Registrar's position was that the documents he had asked for were supplied.
Seven departmental witnesses appeared, verified documents and made statements in his presence, and he was given the chance to cross-examine them; on that occasion he refused. He did not attend the December 2019 hearing, citing winter vacations. He was nonetheless permitted to inspect the record, ask for copies not already given, and reply within fifteen days. On 11 January 2020 he attended and filed nothing. In February 2020 he inspected the record and asked for documents the Committee found irrelevant because they were not relied upon in support of the charges; the Committee recalled its ex parte order and gave him a last fifteen days.
Later that month the Committee declined his request for over 2,000 pages of documents and his request for four months to reply, and fixed the examination of witnesses with no adjournment. Seven witnesses were examined on 26 February 2020 and he cross-examined five of them.
Why the procedural attack failed
Before the High Court the petitioner argued that he had not been permitted to lead defence evidence. Justice Bhatia rejected it on two grounds. The ground had been available to him in a reply to the show cause notice, which he never filed. And even in the writ petition he could not say which evidence, had it been allowed, would have exonerated him.
The reasoning then turns to prejudice, and this is where the narrowness of the charge told. The petitioner's directorship of a company registered at his residential address, and Mr. Vikrant Kumar's directorship of that company and proprietorship of the firm awarded the contracts, were not denied in the petition or in argument. So even assuming the inquiry committee had acted arbitrarily, as was emphatically urged, the specific charge stood undenied before the court, and the test of prejudice was not satisfied.
Justice Bhatia put the volume of the litigation against the absence of that one denial. Across all the writ petitions, he recorded, there was not a single assertion that the petitioner was not a director of the company at his own address, or that Mr. Vikrant Kumar was not a director of it and proprietor of the firm awarded the contracts. The conflict of interest was therefore clear on the petitioner's own pleadings.
On a conjoint reading of the submissions, the inquiry committee's findings and the dismissal order, the judgment found no material on which to exercise the power of judicial review. The scope of that review is essentially confined to the decision-making process, and no palpable error was visible in it. A petitioner who failed to reply to the charge sheet and failed to reply to the show cause notice cannot agitate all his grievances for the first time before the writ court.
A separate strand of argument was built on the preliminary inquiry. The petitioner contended that denying him the chance to cross-examine an expert whose report was relied on vitiates the whole process as a breach of natural justice, and that the University could not escape that by calling the 25 September 2017 report merely preliminary, since all relevant and material documents, including statements of witnesses recorded at the preliminary inquiry or during investigation, must be supplied. He cited Bank of India v. Apurba Kumar Saha, (1994) 2 SCC 615, State Bank of India v. Narendra Kumar Pandey, (2013) 2 SCC 740, and Major U.R. Bhatt v. Union of India, AIR 1962 SC 1344.
The answer the judgment gives to all of it is the same answer, and it does not depend on whether the propositions are sound. Each of these objections was available to him in a reply to the charge sheet, and then again in a reply to the show cause notice. He filed neither. The committee's own record shows it twice recalled an ex parte order and twice extended time to let him do so.
The contempt application and Article 226(3)
The contempt application rested on the interim order of 20 December 2018 restraining the respondents from passing a final order. The petitioner said the proceedings were fatally defective because that order was in force.
The record told a different story. On 25 February 2020 the respondents had applied to vacate the interim order, stating that subsequent developments had robbed the petition of efficacy. That application was not disposed of within two weeks. Under the mandate of Article 226(3) of the Constitution, the interim order therefore stood vacated on the expiry of two weeks from the filing of the application. Justice Bhatia also noted that the order in question was essentially an ex parte order on which only a prima facie view had been formed, even though the parties had been heard.
A related submission about proceedings before the Supreme Court was rejected on the footing that the question of a stay vacation application being filed and not disposed of within two weeks had not been considered there, so nothing said there displaced this finding.
On that basis the contempt plea collapsed. An order recall application and an application to dismiss the writ petitions as having become infructuous had been filed and left undisposed. The disciplinary committee considered that position in the light of legal opinion it had received and then decided to proceed. That, the judgment held, cannot be termed wilful disobedience of the court's order.
A rebuke on the use of Article 226
The judgment closes with an observation on conduct that sits inside the reasoning rather than beside it. Justice Bhatia deprecated the petitioner's conduct from the very inception, finding that he had evaded the main questions and issues levelled against him and had tried to spin a cobweb so that justice could be defeated by recourse to procedure. The conduct was held to be clearly malafide.
He added what the remedy is for. Legal remedies, and the extraordinary discretionary remedy under Article 226 in particular, are available to citizens who raise grievances about violations of their statutory or fundamental rights — not to persons who try to thwart the process of adjudication by harping on errors in procedural due process without caring to address the substantive allegations.
Order
All the writ petitions and the contempt application were dismissed. Writ A No. 3840 of 2021, the challenge to the dismissal order itself, was held liable to be dismissed on the additional ground that the petitioner had neither denied the main charge of engaging in business and indirectly awarding contracts to a firm he was associated with, nor established prejudice from the inquiry committee's findings. Contempt Application (Civil) No. 936 of 2020 was dismissed with it.