Brijeshwar Kapila v. Govt. of NCT of Delhi & Ors.

Delhi High Court · 29 Aug 2023 · 2023:DHC:6587

Chandra Dhari Singh

CM APPL. No. 41671/2023 in W.P.(C) 16245/2022

2023:DHC:6587

civil petition_dismissed Significant

AI Summary

The Delhi High Court dismissed the petition seeking quashing of show cause notices issued during a pending writ petition, holding that inherent powers under Section 151 CPC to quash such notices are limited and require clear proof of illegality or mala fide.

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CM APPL. No. 41671/2023 in W.P.(C) 16245/2022
HIGH COURT OF DELHI
Date of order : 29th August, 2023 CM APPL. No. 41671/2023 in W.P.(C) 16245/2022
BRIJESHWAR KAPILA ..... Petitioner
Through: Mr.Manish Kumar and Mr.Kamaldeep, Advocates

VERSUS

GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through: Ms.Laavanya Kaushik, Advocate for GNCTD
Mr.Brijesh Kumar Advocate for R-6 and 7

CORAM:

HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
CHANDRA DHARI SINGH, J (Oral)

ORDER

1. The petitioner vide the present application under Section 151 of the Code of Civil Procedure, 1908 (‘the Code’ hereinafter), has sought the following reliefs. “a) Kindly quash the all Show-cause notice and Office Memorandum issued by the respondent no. 7 and 8 to protect the applicant from the unnecessary harassment and hostile situation created by the Vice Principal of the Harcourt Butler Sr. Sec. School. Pass any other and further order(s) and direction(s) as this hon'ble court may deem fit and proper in the interest of justice.”

2. The petitioner has been working as PGT (Chemistry) in the school managed and run by the respondent No. 7 Committee (‘respondent Committee’ hereinafter). Upon superannuation of the Principal of the School, the petitioner was appointed as an interim head of the School till the time a permanent head gets appointed.

3. After sometime, the DPC was constituted by the respondent Directorate and the respondent No. 8, working as a PGT (English) was appointed as the Vice-Principal by the respondent Committee thereby entrusting him to overlook the functioning of the School.

4. Aggrieved by the alleged irregularities in the said appointment, the petitioner preferred W.P.(C) 16245/2022 which is pending adjudication before this Court. During the pendency of the said Writ, the petitioner was issued show cause notices by the respondent No. 8 seeking response from the petitioner for alleged insubordination and indiscipline. The present application has been filed by the petitioner seeking quashing of the said show cause notices issued by the respondent No. 8.

5. The learned counsel appearing on behalf of the applicant/petitioner submitted that the respondent No. 8 has been issuing show cause notices and prohibitory orders restraining the petitioner from performing her duties in the school thereby causing harassment to her.

6. It is submitted that due to issuance of the said prohibitory orders, the petitioner is being restrained from performing her duties as she has been prohibited to visit the lab which is necessary not only for the practical classes, but also for discharging other duties such as keeping the inventory, preparing for the classes Etc.

7. It is also submitted that the respondent No. 8 has made several attempts to tarnish the applicant’s/petitioner’s image and therefore issued show cause notices to degrade the applicant’s ACR/APAR.

8. It is further submitted that while issuing the said notices, the respondent No. 8 failed to provide reasonable time to address the allegation leveled against the petitioner which has caused grave injustice to her and deprived her of an effective mechanism to answer the charges of indiscipline and insubordination.

9. Therefore, it is submitted that the present application filed by the applicant/petitioner be allowed, and the reliefs sought by the applicant, be granted.

10. Per Contra, the learned counsel appearing on behalf of the respondents vehemently opposed the present application submitting to the effect that the Writ Petition is pending adjudication before this Court and the present application is a dilatory tactic to avoid the pertinent issues which can only be addressed at the time of adjudication of the Writ Petition.

11. It is submitted that the authenticity of the claims made by the applicant cannot be established at this stage as the element of bias can only be proved at the time of arguments advanced by the parties in the Writ Petition.

12. Therefore, in view of the foregoing discussions, it is prayed on behalf of the respondents that this Court be pleased to dismiss the instant application, being devoid of any merit.

13. Heard the learned counsel for the parties and perused the record.

14. As per material on record, the applicant/petitioner had filed the Writ Petition No. 16245/2022 for issuance of a writ of mandamus seeking quashing of the DPC proceedings dated 5th August, 2022 which is pending adjudication before this Court.

15. During the pendency of the said petition, the petitioner was issued various show cause notices alleging indiscipline and insubordination. Therefore, the applicant/petitioner preferred the present application under Section 151 of the Code seeking quashing of the show cause notices and Office Memorandums issued by the respondent Nos. 7 and 8.

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16. Before delving into the issue at hand, it is pertinent for this Court to look into the scope of Section 151 of the Code which empowers this Court to invoke its inherent power and pass the necessary order to quash the show cause notices issued by an authority. Section 151 of the Code is reproduced herein: “Section 151- Saving of inherent powers of Court- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

17. On perusal of the aforesaid provision, it is made out that it provides broad scope where the term ‘ends of justice’ becomes important in order to determine the invocation of the inherent powers under this Section by the Court. The scope of inherent powers as provided in the said provision has been elaborated and examined by the Hon’ble Supreme Court in a catena of judgments. In K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, the Hon’ble Court summarized the scope of section 151 CPC in following manner:

“12. The respondent contended that Section 151 cannot

be used for reopening evidence or for recalling

witnesses. We are not able to accept the said submission

as an absolute proposition. We however agree that

Section 151 of the Code cannot be routinely invoked for

reopening evidence or recalling witnesses. The scope of

Section 151 has been explained by this Court in several

decisions. We may summarize them as follows

(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court asa necessary corollary for rendering justice in accordance with law, to do what is “right” and undo what is “wrong”, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such a situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with

the need to exercise such power on the facts and circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature. (e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief. (f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.”

18. On perusal of the aforesaid paragraphs, it is crystal clear that the Courts have much wider scope under Section 151 of the Code, however, this Court needs to analyze the scope of powers conferred under the said provision in context with quashing of the show cause notices. The question of validity of show cause notices issued by the authorities was analyzed by the Hon’ble Supreme Court in State of U.P. v. Brahm Datt Sharma, (1987) 2 SCC 179, and it was held as under:

“4. The respondent had already retired from service during the pendency of the petition before the High Court. On attaining the age of superannuation disciplinary proceedings could not be taken against him. The State Government however issued a notice dated 29- 1-1986 to him calling upon him to show cause as to why orders for forfeiture of his pension and gratuity be not issued in accordance with Article 470(b) Civil Service Regulations as his services have not been wholly satisfactory. The notice contained allegations of misconduct against the respondent regarding financial irregularities committed by him. The respondent submitted a reply to the notice but before the same could be examined or a decision could be taken by the Government he filed an application before the High Court in Writ Petition No. 82449 of 1980 which had already been finally disposed of on 10-8-1984. By his order dated 11-7-1986 the learned Single judge of the High Court held that since the departmental proceedings taken against the respondent had already been quashed, it was not open to the State Government to issue show

cause notice under Article 470(b) of Civil Service Regulations, on those very allegations which formed charges in the disciplinary proceedings. The learned Single judge quashed the show cause notice and directed the State Government to pay arrears of salary, pension and other allowances to the respondent.

5. The question which falls for consideration is whether notice dated 29-1-1986 was invalid and liable to be quashed. The learned Single judge of the High Court quashed the notice on the sole ground that the allegations specified in the show cause notice were the same which had been the subject-matter of departmental inquiry resulting in the respondent's dismissal from service, and since dismissal order had been quashed in the writ petition, it was not open to the State Government to take proceedings for imposing any cut in the respondent's pension on the same set of charges. We do not agree with the view taken by the High Court. While quashing the order of dismissal the learned judge did not quash the proceedings or the charges instead; he had quashed dismissal order merely on the ground that the respondent was not afforded opportunity to show cause against the proposed punishment as the recommendation with regard to the quantum of punishment made by the inquiry officer had not been communicated to him. In fact while allowing the writ petition the learned Single judge himself observed in his order dated 10-8-1984 that it would be open to the State Government to draw fresh proceedings if it was permissible to do so. The High Court did not enter into the validity of the charges or the findings recorded against the respondent during the inquiry held against him. After the decision of the writ petition, it was open to the State Government to have taken up proceedings against the respondent from the stage at which it was found to be vitiated. Had the respondent not retired from service on attaining the age of superannuation it was open to the State Government to pass order awarding punishment to him after issuing a fresh show cause notice and supplying to him a copy of the recommendation made by the inquiry officer. There was no legal bar against the State Government in following such a course of action. There were serious allegations of misconduct against the respondent which had been proceeded against him during inquiry; those charges remained alive even after quashing of the dismissal order and it was therefore open to the State Government to take action against the respondent in accordance with the rules. No disciplinary proceedings could be taken as the respondent had retired from service; the Government therefore considered it appropriate to take action against him under Article 470 of Civil Service Regulations. The regulation vests power in the appointing authority to take action for imposing reduction in the pension, as the State Government is the appointing authority it was competent to issue show cause notice to the respondent. The notice specified various acts of omissions and commissions with a view to afford respondent opportunity to show that he had rendered throughout satisfactory service and that the allegations made against him did not justify any reduction in the amount of pension. If disciplinary proceedings against an employee of the Government are initiated in respect of misconduct committed by him and if he retires from service on attaining the age of superannuation, before the completion of the proceedings it is open to the State Government to direct deduction in his pension on the proof of the allegations made against him. If the charges are not established during the disciplinary proceedings or if the disciplinary proceedings are quashed it is not permissible to the State Government to direct reduction in the pension on the same allegations, but if the disciplinary proceedings could not be completed and if the charges of serious allegations are established, which may have bearing on the question of rendering efficient and satisfactory service, it would be open to the Government to take proceedings against the government servant in accordance with rules for the deduction of pension and gratuity. In this view the High Court committed error in holding that the show cause notice was vitiated. xxx xxx xxx

9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. „The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice.

10. The High Court's order is not sustainable for yet another reason. Respondents‟ writ petition challenging the order of dismissal had been finally disposed of on 10- 8-1984, thereafter nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated 29-1-1986 he could have filed a separate petition under Article 226 of the Constitution challenging the validity of the notice as it provided as separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent's application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.

11. We accordingly allow the appeal, set aside the order of the High Court dated 10-8-1984. It would be open to the State Government to consider the respondents' reply to the show cause notice and proceed with the matter in accordance with law. In the circumstances of the case parties shall bear their own costs.”

19. On perusal of the aforesaid paragraphs of both the judgments, it is evident that the scope under Section 151 of the Code is clear and unambiguous. If a person is issued a show cause notice by an authority during the pendency of the Writ Petition, he/she may challenge the same by filing an application under Section 151 of the Code. However, the above judicial dicta makes it crystal clear that the said challenge can be made under limited grounds and the applicant needs to establish beyond doubt that the allegations leveled against him are false and thereby no case can be made out against him even during the show cause proceedings.

20. In the instant case, even though the show cause notices are issued by the school/authority, which is private in nature, an analogy with the show cause notices issued by the Government Agencies needs to be drawn. Therefore, putting both kind of notices on the same pedestal, it is clear that the show cause notices can be challenged on the grounds expounded and deliberated by the Hon’ble Supreme Court in the aforesaid cases.

21. Now, reverting to the merits of the present case, the respondent No. 8 had issued various show cause notices citing insubordination and indiscipline by the petitioner. One of the show cause notices dated 22nd November, 2022, is reproduced herein: “Show Cause Notice Reference to the various office memorandum No HB/2022-23/2508 dated 15/11/2022, HB/2022-23/2510 dated 15/11/2022, HIB/2022-23/2511 dated 16/11/2022 regarding insubordination and negligence of duty. Sh. Brijeshwar Kapila working as PGT (Chemistry) in Harcourt Butler Sr Sec School, Mandir Marg, New Delhi-110001 has not complied to the duties assigned to him. Whereas he has tampered with the school official leave record of three teachers without the prior written consent of the HOS. Whereas he has not complied to the duty assigned to him of the Nodal teacher / Officer of WIFS and did not attend the Training Programme of the same as per the schedule prescribed for it, the said circular was received by you at

S. No. 350 dated 16/11/2022 from Sh. Shyam Sunder,

UDC Whereas he is consistently insubordinating and negligent in his duties. Your reply to this Show Cause Notice must reach the undersigned within 07 days of the issue of this notice failing which it shall be presumed that you have nothing to say and your case will be put up in (MC) for necessary action.”

22. Another show cause notice dated 22nd July, 2023 was issued to the petitioner whereby the signing authority/respondent No. 8 alleged that the petitioner was found interacting with colleagues instead of taking scheduled classes. The said notice is reproduced herein: “It has been brought to the notice of the undersigned that you left the class unattended today i.e. on 22/07/2023 in 6th period in class X B (Room No 35) and was found talking to Mrs Madhu Bala, Librarian in the corridor. This is negligence of duty. You are directed to provide your explanation in this regard with immediate effect.”

23. On perusal of the aforesaid notices, it is made out that being the administrative head of the School, the respondent No. 8 had issued various show cause notices and provided time to the petitioner to explain the reasons for alleged indiscipline and insubordination. However, in the present application, the petitioner has countered the said allegations and termed the show-cause notices as an act of vengeance on part of the respondent No. 8, but failed to supply any material evidence to support this claim.

24. It is well settled that the Courts while exercising their inherent power under Section 151 of the Code have a limited scope to intervene with the show cause notices issued by the authority and that the applicant needs to establish the authenticity of the claim by supplementing evidence to support the grounds taken by them while filing the said application.

25. It is also well settled that the applicant needs to show whether such notices issued by the authority are illegal, barred by limitation or without any jurisdiction. In the instant case, the petitioner has failed to show meeting of any such condition and therefore, this Court cannot delve into the aspect of quashing the orders when there is no illegality established at this stage.

26. As per the records, the petition filed by the petitioner is pending adjudication and the issue between the parties shall be dealt with by this Court at length and adjudicating the issue/dispute between the petitioner and the respondent No. 8 in this application is not appropriate. Therefore, the present application is liable to be dismissed as the petitioner has failed to satisfy this Court that the respondent No. 8 has issued the said showcause notices to take vengeance from him.

27. In light of the above facts and circumstances, the present application, being devoid of any merit, is dismissed.

28. Order to be uploaded on website forthwith.

Brijeshwar Kapila v. Govt. of NCT of Delhi & Ors.

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