SUPREME COURT OF INDIA
Union of India and Another
Vs
Kunisetty Satyanarayana
Appeal (Civil) 5145 of 2006 (Arising Out of Special Leave Petition (Civil) No. 16572 of 2006)
(S. B. Sinha and Markandeya Katju, JJ)
22.11.2006
MARKANDEY KATJU, J.
Leave granted.
This appeal has been filed against the impugned judgment and order dated
22.3.2006 of the Andhra Pradesh High Court in Writ Petition No. 7409 of 2004.
Heard learned counsel for the parties and perused the record.
The respondent was initially appointed as a Clerk in the Postal Department of
the Union of India on 30.11.1965 on the basis of the marks obtained by him in
the SSLC Examination. The SSLC certificate of the respondent indicated that he
belongs to the 'Konda Kapu' community which is admittedly a Scheduled Tribe
community in the State of Andhra Pradesh.
Thereafter the respondent appeared for a departmental test for promotion to the
post of Upper Division Clerk against a post reserved for the Scheduled Tribe
community, and the respondent was promoted as an Upper Division Clerk in
Scheduled Tribe category. His promotion order specifically stated that he has
been promoted as an Upper Division Clerk under Scheduled Tribe category vide
promotion order dated 27.12.1976. Thereafter, in 1987, he was further promoted
to the next higher post, i.e. LSG cadre, again on a post reserved for Scheduled
Tribe category.
On 28.11.1994, a show-cause notice was issued to the respondent to show cause
as to whether he obtained employment on forged caste certificate. In reply to
the said show-cause notice, the respondent admitted that he does not belong to
'Konda Kapu' community, but he belongs to 'Kapu' community which is not a
Scheduled Tribe community. The respondent in reply to the show-cause notice
also stated that it was wrongly mentioned in the SSC register that he belongs
to 'Konda Kapu' community on the basis of a declaration given by his illiterate
father who got the respondent admitted in school when he was 11 years old.
By order dated 3.1.1995, the Assistant Post Master General directed that the
respondent be treated as 'OC' community and accordingly an alteration was made
in the respondent's Service Book stating that he belongs to 'OC' community.
On 11.7.1997, the competent authority i.e. Collector of Hyderabad District
passed an order stating that the respondent obtained an ST caste certificate
from the Mandal Revenue Officer although he does not belong to 'Konda Kapu'
community, but he belongs to 'Kapu' community, which is not a Scheduled Tribe
community. Hence, the Collector ordered cancellation of the caste certificate
of the respondent and requested the Chief Post Master General, A.P. Circle to
take action against the respondent vide order dated 11.7.1997.
Aggrieved against that order, the respondent filed an appeal before the State
Government which was disposed of on 17.2.2001 holding that the respondent does
not belong to Scheduled Tribe community and he cannot be considered as such,
and the Postal Department may take appropriate disciplinary action against the
respondent.
Consequently a Charge Memo dated 23.12.2003 was issued to the respondent
framing the following charges against him:
"That he, while working as T/S Clerk in the Secunderabad Postal
Division, appeared for the examination held on 19.9.76 for promotion to UDC
against a post reserved for 'ST' community and subsequently he was also
promoted to LSG Cadre based on the said reservation. However, as per G.O. Ms
No. 28 dated 17.02.2001 the Government of A.P. declared that Sri K.
Satyanarayana does not belong to Konda Kapu as declared by him and as such not
entitled for the reservation under the ST category.
That Shri K. Satyanarayana availed reservation against ST in the promotional
post though he does not belong to the said category and as such failed to
maintain absolute integrity and acted in a manner unbecoming of a government
servant contravening the provisions of Rule 3(1) (i) & (iii) of the CCS
(Conduct) Rules, 1964. The statement of imputations gives the details of the
reservation availed by the petitioner during his service."
Instead of replying to the aforesaid Charge Memo, the respondent filed an OA
before the Central Administrative Tribunal, Hyderabad which was disposed of
vide order 15.3.2004 with the direction to the applicant to submit his reply to
the Charge Memo dated 23.12.2003 and on submission of the said reply the
Disciplinary Authority should consider the same. Instead of filing any reply
the respondent filed a Writ Petition in the High Court which has been allowed,
and hence this appeal.
In our opinion, the High Court was not justified in allowing the Writ Petition.
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 vs. Ramdesh Kumar Singh and others 4, Special Director and another vs. Mohd. Ghulam Ghouse
and another Ulagappa and others vs. Divisional Commissioner, Mysore and
others 2001 (10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another
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 lies when some right of any
party is infringed. A mere show-cause notice or charge-sheet does not infringe
the right of any one. 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.
Learned counsel for the respondent submitted that the charge against the
respondent had already been enquired into earlier and he had been exonerated of
the charge in an earlier proceeding. Hence, he contended that the impugned
Charge Memo would amount to double jeopardy and was therefore illegal. He relied
upon the decision of this Court in Lt. Governor Delhi and others vs. HC
Narender Singh 2004 (13) SCC 342.
We agree with the learned counsel for the respondent that if the charge which
has been levelled under the Memo dated 23.12.2003 had earlier been enquired
into in a regular enquiry by a competent authority, and if the respondent had
been exonerated on that very charge, a second enquiry would not be
maintainable. However, in the present case, we are of the opinion that the
charges levelled against the respondent under the Charge Memo dated 23.12.2003,
had not been enquired into by any authority and he had not been exonerated on
those charges. Hence we are of the opinion that it is not a case of double
jeopardy.
In fact, the contention of the respondent was carefully examined by the Central
Administrative Tribunal in paragraph 5 of its order dated 15.3.2004.
In the present case, in the earlier proceedings no finding had been recorded
that the respondent had not availed of the benefit of belonging to the
Scheduled Tribe community for any of the promotions given to him. In fact, the
authority was satisfied that he gained initial entry into service as an 'OC'
candidate and not as a Scheduled Tribe candidate. However, it seems that his
subsequent promotions were against posts reserved for Scheduled Tribe
Community, to which he did not belong. While disposing of the appeal filed by
the respondent against the order of the District Collector, Hyderabad, the
State Government referred the matter to the employer to take disciplinary
proceedings after verifying of the records for production of false Caste
certificate. It appears that the respondent availed of the benefit of Scheduled
Tribe community for getting two promotions one as UDC and another as LSG Clerk,
on the ground that he belongs to Scheduled Tribe community, and it is for these
reasons that the authorities issued the impugned Charge Memo dated 23.12.2003.
Hence, we are of the opinion that ratio of the decision in Lt. Governor Delhi
and others (supra) has no application in the present case.
For the foregoing reasons, we are of the opinion that the impugned judgment of
the High Court is not correct and the same is set aside. We fully agree with
the view taken by the Central Administrative Tribunal vide its order dated
15.3.2004. The respondent is now directed to submit his reply to the Charge
Memo dated 23.12.2003 within three weeks from today and the authority concerned
should decide the same expeditiously in accordance with law, and thereafter
take appropriate legal action in pursuance of the said decision, after giving
an opportunity of hearing to the respondent.
The appeal is allowed. There shall be no order as to costs.