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Judgment
K. Chandru, J.—The petitioner in both the writ petitions is one and the same person.
In the first writ petition i.e. W.P. No. 19407 of 2005, the petitioner had challenged the order of the first respondent, the Director of Public
Health and Preventive Medicine, Chepauk, dated 15.3.2005 as well as the consequential order, dated 16.5.2005 and prayed for setting aside the
same.
By an order, dated 15.3.2005, the petitioner was imposed with a recovery of a sum of Rs. 36,800/- through 20 installments. The said recovery
was made on account of financial irregularities notice by the Audit Department of the Deputy Director of Health Services, Ramanthapuram. It was
stated that the petitioner was working as a Superintendent in the office of the Deputy Director of Health Services. It was found that the then
Deputy Director of Health Services one Dr. R. Radhakrishnan and the petitioner were responsible for the lapse. The liability was fixed on the basis
of 75% and 25% between Dr. R. Radhakrishnan and the petitioner.
It is the case of the petitioner that consequent on the recovery order, the petitioner sent a representation, dated 20.4.2005 for reconsidering
their stand and the same was rejected by the first respondent, by an order dated 16.5.2005. The writ petition was admitted on 20.6.2005.
Pending writ petition, the petitioner had filed filed WPMP No. 21013 of 2005. This Court granted an interim stay on condition that the petitioner
will produce a third party immovable property as security within a period of one week, failing which the stay will be vacated.
The first respondent had filed a vacate stay petition in WVMP No. 1732 of 2005, justifying the recovery. It was stated that even after four
years after completion of Intensified Pulse Polio Immunisation Programme conducted during 2001, the petitioner was not able to collect all the
vouchers and produce the same for Audit verification. The mismanagement of the Government money and the inordinate delay for submitting the
vouchers even after four years cannot be accepted. The recovery proceeding were initiated after following due procedure. The petitioner had not
stated whether he had furnished any third party immovable property in compliance with the interim order passed by this Court.
In the meanwhile, the petitioner came forward with a second writ petition being W.P. No. 23497 of 2007, seeking to challenge the order, dated
21.4.2007. The said order is a charge memo framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charge
against the petitioner was that he had failed to furnish proper vouchers relating to Intensified Pulse Polio Immunisation Programme for the year
2000-01. Therefore, he has committed financial irregularities.
The contention of the petitioner was that framing of charge memo once again for the very same incident would amount to double jeopardy
violating Article 20(2) of the Constitution. He also relied upon the interim order of stay obtained by him in the earlier writ petition. Since that writ
petition was pending, there cannot be a charge memo.
When the matter came up in July, 2007, this Court merely directed the writ petition to be posted along with the earlier writ petition. That writ
petition was neither admitted nor any interim order was granted in M.P. No. 1 of 2007. In the meanwhile, the respondent, the Director has filed a
counter affidavit. It was stated that since the recovery proceedings have been stalled, the respondents have taken out steps to conduct a full-
fledged enquiry in respect of the misconduct committed by the petitioner and there was no case for stalling the present charge memo.
Mr. M. Baskar, learned Counsel appearing for the petitioner reiterated the grounds raised in the affidavits filed in support of the writ petitions.
Insofar as the second writ petition is concerned, it is only a charge memo and there is no case made out to interfere with the charge memo. The
charge memo under Rule 17(b) will give the petitioner ample opportunities to prove his innocence. Therefore, this Court is not inclined to stall the
charge memo.
The Supreme Court in its decision in State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, dealt with the power of the Court in dealing
with a charge memo at the show cause stage and the following passage found in paragraph 9 will make the position clear:
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.
The Supreme Court vide judgment in The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, observed as follows:
This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-
cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the
parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the
authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner
should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause
notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can
be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an
interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of
powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not
accorded to the writ petitioner even at the threshold by the interim protection granted.
Further, the Supreme Court in the judgment relating to Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 in paras 13
to 16 held as follows:
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. Ramesh Kumar Singh and others, ; The Special Director and Another Vs. Mohd. Ghulam Ghouse and
Another, ; Ulagappa v. Divisional ComMr., Mysore (2001) 10 SCC 639; State of Uttar Pradesh Vs. Brahm Datt Sharma and Another,
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 petition lies when some right of any party is infringed. A
mere show-cause notice or charge-sheet does not infringe the right of anyone. 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.
Even on the question as to whether such an order of recovery towards loss and penalty through disciplinary proceedings would amount to a
double jeopardy prohibited under Article 20(3) of the Constitution was also considered by the Supreme Court in Depot Manager, Andhra
Pradesh State Road Transport Corporation v. N. Ramulu and Anr., (1997) 11 SCC 319 . The Supreme Court upheld the imposition of such
punishments, i.e. punishment arising out of disciplinary action as well as recovery of loss sustained by the State. The Supreme Court has held that
apart from recovery of loss sustained by the State, penalty imposed under the relevant service rules can also be imposed against the Government
servant. In paragraph 3 of the said judgment, it was held as follows:
We think that the entire approach of the Division Bench of the High Court is incorrect. The driver had caused pecuniary loss to the appellant
and that was estimated to be Rs. 500. It was this pecuniary loss which was ordered to be recovered from the delinquent. In addition to that, the
delinquent was punished for misconduct and it is that punishment with which the Labour Court interfered and so also did the learned Judge of the
High Court. The learned Single Judge came to the conclusion that 50 percent of back wages should be refunded to the delinquent besides
reinstatement. Against that order both the delinquent and the management went up in appeal. The High Court modified the order of the learned
Single Judge and directed payment of full back wages. In other words, the only order that survived was the reimbursement of the loss occasioned
to the appellant on account of the act of the delinquent driver. It is true that that has been shown to be a penalty under Regulation 8(v) of the
Regulations. But the penalty for the act of negligence was removal from service. The explanation to Regulation 8, however, enumerates various
penalties which are not to be treated as penalties and one of them is as Clause (5) thereof says : ""The penalty of recovery from pay of the whole or
part of any pecuniary loss caused to the Corporation by an employee''s negligence or breach of orders, may be imposed in addition to any other
penalty which may be inflicted in respect of the same act of negligence or breach of orders.
This clause clearly says that the penalty of recovering loss caused to the management under Regulation (1)(v) shall not preclude the management
from imposing any other penalty. The High Court was, therefore, wrong in thinking that this was a case of double jeopardy. We think that the
order passed by the learned Single Judge was eminently just and fair and the Division Bench of the High Court should not have interfered with that
order.
In the light of the above, both the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions also stand
dismissed.