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TMI Blog1994 (8) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... . The enquiry showed that the allegations were prima facie correct based on which the Syndicate directed the framing of charges against the appellant and two others, one of whom was a Junior Engineer and the 2nd a Store Keeper. All told seven distinct Articles of Charges were framed against the appellant out of which only four, were pressed in the course of the Enquiry. Charges Nos. 1, 2, 3 & 7 pressed against the appellant were in the following terms : "FIRSTLY, that you, Sri C.Y. Parthasarathy, Executive Engineer, University Engineering Division, Mysore while supervising the construction of six Lecturers' Quarters at Manasagangotri, Mysore have colluded with the Junior Engineer Sri K.R. Rajanna, and the Store-keeper Sri P. Kapanaiah, to get six Lecturers' Quarters constructed in Manasagangotri, Mysore during 1989 to 1991 with only 2000 bags of cement issued from the stores of the University Engineering Division as against the actual requirement of 3030 bags of cement and, further, you have admitted bills submitted by Sri P. Srinkantaiah the concerned Contractor towards 1000 bags of cement said to have been purchased by him in open market, even though adequate cemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted him to make the request to the Disciplinary Authority namely the Syndicate. A request to the Syndicate for permission to engage an Advocate was declined whereafter the petitioner filed Writ Petition No. 29700/93 in this Court, and on the concession of the respondent University was permitted to engage a Counsel. 4. The Enquiry Officer then proceeded to record the evidence adduced on both the sides, and by his Report dated 14th May 1994, found the charges proved against the delinquents. On receipt of the report the Registrar of the University, in his capacity as the Ex-Officio Secretary to the Syndicate issued a Memo dated 10-5-1994 to the delinquents calling upon them to submit a representation against the Report, so that the same could be placed for consideration before the Disciplinary Authority together with the Report in question. A copy of the Report was also sent to the delinquents along with the Memo. It was in response to this Memo that the appellant for the first time, by his letter dated 1-6-1994, pointed out, that the Joint Enquiry instituted by the orders of the Syndicate was legally incompetent and a nullity in the eye of the law and so also the proceedings condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties at length. 8. Shri. Karanth, learned Counsel appearing for the appellant submitted that the interpretation placed by the learned Single Judge upon the provisions of Statute 13, was erroneous and irrational. He contended that, according to the view taken by the learned Single Judge, if only two University employees were involved in a given case, a Joint Enquiry against them would require the order of the highest of the University authorities namely the Chancellor, whereas, if a third delinquent was also to be proceeded against in any such Enquiry, the authority competent to institute the enquiry would be a lower authority like the Syndicate merely because the third delinquent was a Government employee on deputation with the University. This according to Mr. Karanth was wholly illogical and any interpretation of Statute 13 which would lead to such an anomalous situation had to be avoided. He argued that if for holding a Joint Enquiry against two University employees the authority competent to direct such an Enquiry was the Chancellor, of the University, there was no reason why for the same Enquiry a lower body like the Syndicate should be held competent merely because apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such Tribunal. It is therefore necessary to look to the essential facts of each case suggestive of any such acceptance, assent or submission on the part of the person concerned to the jurisdiction of the Tribunal or its nominee. 13. In the instant case, it is not disputed that the Syndicate had in exercise of its powers as Disciplinary Authority of the appellant passed a Resolution on the 27th of February 1993 to conduct a Joint Enquiry against the appellant and two others, which Resolution was later followed by another Resolution dated the 13th April, 1993, appointing Shri Ko. Channabasappa, retired District Judge, Bangalore as an Inquiry Officer. The fact that the charges framed against the appellant were drawn up by the order and in the name of the University/Syndicate, has also not been disputed as indeed the Memorandum of Charges served upon the appellant itself suggests that the same have been drawn in the name of the Syndicate. 14. Upon the commencement of the Inquiry proceedings, the appellant admittedly made an application before the Enquiry Officer seeking his permission to be defended by an Advocate. This application was turned down by the Inquiry Officer and the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Syndicate to order and the competence of the Inquiry Officer to hold a Joint Enquiry against him and the two others facing the charges with him. There is indeed no reason why if the appellant had any reservation about the competence of the Syndicate to order a Joint Enquiry, could such a plea be not raised by him in the Writ Petition which he filed in this Court seeking the assistance of a Lawyer for appearing before the Enquiry Officer in the very same Joint Enquiry. That was perhaps the most ideal stage for the appellant to raise this plea for not only was the Enquiry at an initial stage but even the appellant would have been justified in raising the plea without being accused of having acquiesced in the jurisdiction of the Syndicate, this, however, did not happen. The appellant not only accepted the jurisdiction of the Syndicate to order a Joint enquiry against him but even sought its permission to defend himself at the stage of enquiry with the assistance of a Lawyer. 16. There is, therefore, no escape from the conclusion that the appellant had acquiesced in the jurisdiction of the Syndicate and the Inquiry Officer to order and conduct a Joint Enquiry against him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the authority concerned; but it is equally true that the High Court can while exercising its extraordinary and discretionary powers under Article 226 of the Constitution decline to interfere with an order of a subordinate authority if it is satisfied that an objection relating to a defect of procedure or jurisdiction which would have been and ought to have been raised at the earliest opportunity was not so raised by the party complaining before it. The Rule that acquiescence of the party belatedly making a grievance about the jurisdiction of the subordinate authority disentitles him to invoke the Writ jurisdiction of the High Court, does not rest on the foundation that acquiescence, confers jurisdiction but on the rationale that the High Court will be justified in refusing to exercise its jurisdiction in favour of a person who has either by reason of lack of diligence or by design remained on the fence, allowed the authority to pass an order and seeing that the same has gone against him turned round to challenge its competence, to have done so. 20. In any such situation, it would be reasonable to infer that the party making the grievance about the competence of the subordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruitful to reproduce the following passage from the Book:- "The right to certiorari or prohibition may be lost by acquiescence of implied waiver. Acquiescence means participation in proceedings without taking objection to the jurisdiction of the tribunal once the facts giving ground for raising the objection are fully known. It may take the form of failing to object to the statutory qualification of a member of the tribunal, or (exceptionally) appealing to a higher tribunal against the decision of the tribunal of first instance without raising the question of jurisdiction." 23. Let us now examine the Judgments that were cited at the Bar by the learned Counsel for the parties. 24. In GANDHINAGAR MOTOR TRANSPORT SOCIETY v. STATE OF BOMBAY one of the objections raised to the maintainability of the Writ Petition was that the plea of lack of jurisdiction of State Government to sit in appeal over the decision of the State Transport Authority had not been raised before the Government. It was contended that the petitioners were quite content to permit the Government to hear the appeal preferred before it and that if the Government had decided in favour of the petitioners noth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a case where the petitioners had submitted to the jurisdiction of the Income Tax Officer to whom their cases were transferred. Having so surrendered to the jurisdiction, the petitioners questioned the Authority of the Income Tax Officer, by way of a Writ Petition filed before the Supreme Court under Article 32 of the Constitution. The Supreme Court declined to permit the petitioners to raise the plea and observed thus:- "If they (petitioners) acquiesced in the jurisdiction of the Income Tax Officers to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this Court under Article 32. It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this Court." 26. A Division Bench of this Court in C.R. GOWDA v. THE MYSORE REVENUE APPELLATE TRIBUNAL BANGALORE AND ORS. AIR 1965 Mys 41 had an occasion to deal with a similar situation. In that case, the constitution of the Regional Transport Authority was challenged and so also the proceedings conducted by it as being void. The question that arose was whether such a plea could be raised belatedly by the petitioner in Writ proceedings b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .J. 22 where their Lordships once again declined to allow the question of jurisdiction urged before it on the ground that the petitioner had not raised the said point at the earliest available opportunity and had taken a chance to get a verdict in his favour. This Court observed thus:- "Even assuming that the Enquiry Officer has not been properly nominated, we are of opinion that the petitioner having acquiesced and submitted to the jurisdiction and having taken part in the enquiry without objecting to the same, should not be permitted, at this stage, to turn round and contend that the Enquiry Officer was not competent to hold the enquiry. When the enquiry started, the petitioner should have raised this point and objected to the enquiry being held by the said officer. The petitioner has not done so. The records show that the petitioner objected to the enquiry being held by Sri. Billimoria. He never contended that the Enquiry Officer was not competent to hold the enquiry. At his request another Enquiry Officer was nominated. The petitioner willingly went through the enquiry without any objection. 30 witnesses were examined for the prosecution and the petitioner himself examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question was whether such a challenge could be allowed to succeed. The Supreme Court declined to interfere with the notifications in question holding that a challenge to these notifications after the acquisition had been completed would amount to putting a premium on dilatory tactics. The Court observed thus:- "to have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics." 30. Learned Counsel for appellant however, urged on the authority of a Judgment of the Single Judge of this Court in RACHIAHR. v. DEPUTY INSPECTOR GENERAL OF POLICE AND ORS. 1979(2) KLJ 303 that a Joint Enquiry if ordered by a person not competent to do so, could be avoided even when the challenge to the jurisdiction of the authority instituting such inquiry was raised at a stage after the conclusion of the Enquiry proceedings. In that case the Joint Enquiry had been instituted contrary to the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of jurisdiction of Syndicate to order such an enquiry has arisen. What is significant to note is that so far as the appellant is concerned he did not face an enquiry nor is he being punished on the basis of any such Enquiry ordered by an authority other than the authority competent to proceed against him if the Enquiry was to be held against him individually. It is not therefore a case where prejudice may be implicit on account of an authority incompetent to order an enquiry or impose a punishment having taken some action against the delinquent employee. That apart, the appellant has not claimed any prejudice either in the Writ Petition or in Appeal before us by reason of holding of a Joint Enquiry. In the course of the hearing of this Appeal we specifically asked the learned Counsel appearing for the appellant as to whether the appellant had been prejudiced in any manner by reason of the conduct of a Joint Enquiry against him, His answer was in the negative. He, however, contended that it was not a case where the appellant claimed relief on the basis of any prejudice caused to him. The appellant's case, contended the learned Counsel, rests entirely on lack of jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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