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Judgment
D. Hari Paranthaman, J.—The petitioner is a former Municipal Commissioner of Karur Municipality, Karur. He reached the age of superannuation on 31.05.2006. But he was not permitted to retire and the Government issued G.O. Ms. No. 174, Municipal Administration and Water Supply Department, dated 31.05.2006 retaining him in service. In the said Government order retaining him in service, it is stated that he is retained in service until the enquiry into grave charges is concluded and final orders passed thereon by the competent authority. The said G.O. was issued in exercise of the power under rule 56(1)(c) of the Fundamental Rules.
Before issuing the order retaining the petitioner in service, the petitioner was placed under suspension in G.O. Ms. No. 150, Municipal Administration and Water Supply Department, dated 27.04.2006 pending contemplation of enquiry into grave charges against him.
The FIR was registered against the petitioner on 29.03.2006 in Crime No. 4/2006 under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, and the period covered is between 01.01.1998 to 31.12.2004. The Inspector of Police, Vigilance and Anti Corruption investigated the matter.
While so, the Government issued letters in Letter(2D) No. 129, Municipal Administration and Water Supply Department, dated 15.12.2010, Letter(2D) No. 130, Municipal Administration and Water Supply Department, dated 15.12.2010 and also another letter in Letter(2D) No. 22, Municipal Administration and Water Supply Department, dated 17.02.2011, ordering Tribunal enquiry against the petitioner i.e., the Tribunal for Disciplinary Proceedings was entrusted with the disciplinary proceedings initiated against the petitioner.
Thereafter, the Tribunal for Disciplinary Proceedings at Nagercoil, framed the charges in Roc. No. B1/53/2012 (TDP No. 27/2012) dated 27.02.2012 and Roc. No. B1/54/2012 (TDP No. 28/2012) dated 27.02.2012, i.e., there are two proceedings namely, TDP Case Nos. 27 & 28/2012 now pending before the Tribunal for Disciplinary Proceedings at Nagercoil.
While so, the writ petitioner has filed W.P(MD) No. 18964 of 2015 to quash the charge memo framed in TDP No. 27/2012 and filed another W.P(MD) No. 17183 of 2015 to quash the charge memo framed in TDP No. 28/2012.
When the matter came on 02.11.2015, this Court passed the following order:--
"Print the name of Mr. R. Anandharaj, learned Government Advocate for the respondents, who seeks time to get instructions from the Commissioner, Tribunal for Disciplinary Proceedings at Nagercoil about the stage of TDP case and also the time within which the authority could complete the enquiry.
Post on 04.11.2015"
Pursuant to the aforesaid order, the Commissioner for Disciplinary Proceedings sent a letter in R.C. No. B1/54/2012(TDP No. 27 & 28/2012) dated 03.11.2015 to the learned Additional Government Pleader stating that TDP Nos. 27 & 28/2012 are enquired jointly on seniority basis since 17.02.2011. In the said letter, the Tribunal has further stated that the petitioner is not co-operating with the enquiry and he did not turn up for enquiry on 22.09.2015 when the matter was posted lastly. It is also stated that the petitioner made an application requesting the Tribunal to call for certain records available with the Postmaster, Mulagumoodu Post Office, Kanniyakumari District and the Postmaster, Thuckalay Post Office, Kanniyakumari District and one private jewellery at Thiruvananthapuram, Kerala State, to establish his defence. Pursuant to his application, the Tribunal called for those documents and the documents are yet to be received. The Tribunal also expressed its view that the documents required by the petitioner would not deter the process of examination of witnesses and therefore, posted the matter for enquiry on the regular intervals.
It is also stated that 53 witnesses have to be examined and 32 prosecution records have to be marked in connection with 7 charges framed against the petitioner in TDP Nos. 27 & 28/2012.
The Tribunal stated in the aforesaid letter dated 03.11.2015 that if the petitioner co-operates with the Tribunal, the Tribunal would conclude the proceedings within a period of eight months.
Further, the learned Government Advocate has submitted that so far five witnesses were examined.
In these circumstances, when the matter is posted today, the learned counsel for the petitioner has argued the matter on merits. The learned Government Advocate made his reply.
The learned counsel for the petitioner made the following submissions:--
"(i) While the list of witnesses is furnished to the petitioner along with the charge memo, the statement of witnesses are not given to the petitioner. Since the statement of witnesses are not furnished, the charge memos itself are liable to be interfered with.
(ii) The inordinate delay in issuing the charge memo would be fatal to the disciplinary proceedings.
(iii) The allegations made in the charge memo relates to the periods 1998, 2000, 2005 and even 1983. Hence, the charge memos are liable to be interfered with.
(iv) Since the criminal case did not proceed further, the departmental action also shall not be proceeded further."
The learned counsel for the petitioner has relied on the following judgments:--
"(a) Surath Chandra Chakrabarty Vs. State of West Bengal, .
(b) Kashinath Dikshita Vs. Union of India (UOI)and Others, .
(c) State of U.P. Vs. Shatrughan Lal and Another, . (d) The Government of Andhra Pradesh and Others Vs. A. Venkata Rayudu, ."
On the other hand, the learned Government Advocate has submitted that normally, this Court could not entertain the writ petition against the charge memo as it is pre-matured. The petitioner would be given opportunity in the enquiry and the petitioner would be furnished with the report of the Commissioner for Disciplinary Proceedings. If the Commissioner comes to the conclusion that the charges are established, the petitioner could very well explain his case at that time also. Hence, the petitioner could not rush to this Court and stall the disciplinary proceedings. He has placed heavy reliance on the judgment of the Apex Court in Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, , more particularly, paragraph 14.
I have considered the submissions made on either side.
As stated above, the petitioner reached the age of superannuation on 31.05.2006. But, he was not permitted to retire by issuing G.O. Ms. No. 174, Municipal Administration and Water Supply Department, dated 31.05.2006 as stated above, by invoking the power under rule 56(1)(c) of the Fundamental Rules. In the order retaining the petitioner in service, it is not stated that the petitioner is retained in service, pending outcome of the criminal case. Then, it is a different matter and when the criminal case did not proceed further, he could ask for revoking the order retaining him in service. But the order retaining him in service and not permitting him to retire was passed on the basis that an enquiry into grave charges was contemplated against him. Therefore, the Government also issued Letter(2D) No. 129, Municipal Administration and Water Supply Department, dated 15.12.2010, Letter(2D) No. 130, Municipal Administration and Water Supply Department, dated 15.12.2010 and also another letter in Letter(2D) No. 22, Municipal Administration and Water Supply Department, dated 17.02.2011, entrusting the Commissioner for Disciplinary Proceedings to conduct the disciplinary proceedings with respect to the petitioner. Pursuant to the said direction of the Government, the Commissioner for Disciplinary Proceedings also proceeded further and framed charges in TDP Nos. 27 & 28/2012. It is also useful to extract the charges in TDP Nos. 27 & 28/2012.
"Roc. No. B1/53/2012 (TDP No. 27/2012) dated 27.02.2012
CHARGE
During the check period from 01.01.2001 to 31.12.2005, you, (Accused Officer) Thiru N. Rajasekaran Nair, formerly Municipal Commissioner, Karur Municipality, Karur (under suspension) have accumulated movable and immovable properties in your name and in the name of your wife to the tune of Rs. 8,96,032.50 which was disproportionate to your known sources of income as shown in the statements I to VII herein enclosed and for which you could not satisfactorily account for.
Roc. No. B1/54/2012 (TDP No. 28/2012) dated 27.02.2012
CHARGE 1:
While you, (Accused Officer) Thiru N. Rajasekaran Nair, were working as Assistant Section Officer, Secretariat, Chennai have purchased 5.855 cents of land with a tiled house for Rs. 5,000/- on 6.6.1983 in the name of your wife Tmt. Sathirajan in R.S. No. B-8/80 of Thuckalay Village as per the Document No. 1143/1983 of Thuckalay Sub Registry without giving prior notice to the prescribed authority as required under 7(1)a of Tamil Nadu Government Servants Conduct Rules 1973.
CHARGE 2:
While you, (Accused Officer) Thiru N. Rajasekaran Nair, were working as Municipal Commissioner, Rajapalayam have purchased 15 cents of land in the name of your wife Tmt. R. Sathirajan for Rs. 29,000/-on 13.1.1998 in R.S. No. 776/1 of Thuckalay Village as per the Document No. 80/1998 of Thuckalay Sub Registry without giving prior notice to the prescribed authority as required under 7(1)a of Tamil Nadu Government Servants Conduct Rules 1973.
CHARGE 3:
While you, (Accused Officer) Thiru N. Rajasekaran Nair, were working as Municipal Commissioner, Rajapalayam have purchased 9.800 cents of land in the name of your daughter Selvi S.R. Sharmi for Rs. 30,200/- on 13.1.1998 in R.S. No. 776/1 of Thuckalay Village as per the Document No. 79/1998 of Thuckalay Sub Registry without giving prior notice to the prescribed authority as required under 7(1)a of Tamil Nadu Government Servants Conduct Rules 1973.
CHARGE 4:
While you, (Accused Officer) Thiru N. Rajasekaran Nair, were working as Municipal Commissioner, Rajapalayam have purchased 2.322 cents of land in the name of your wife Tmt. R. Sathirajan for Rs. 33,733/- on 25.05.2000 in R.S. No. B-8/80/1 of Thuckalay Village as per the Document No. 1217/2000 of Thuckalay Sub Registry without giving prior notice to the prescribed authority as require under 7(1)a of Tamil Nadu Government Servants Conduct Rules 1973.
CHARGE 5:
While you, (Accused Officer) Thiru N. Rajasekaran Nair, were working as Municipal Commissioner, Karur have purchased Sofa-set for Rs. 22,000/- from Trivandrum during the year 2005 and you did not report to the prescribed authority within 1 month from the date of its purchase as required under 7(2) of Tamil Nadu Government Servants Conduct Rules 1973.
CHARGE 6:
While you, (Accused Officer) Thiru N. Rajasekaran Nair, were working as Municipal Commissioner, Vellore have constructed a house in Door No. 1-79-1 of Thuckalay Municipality in the name of your wife Tmt. R. Sathirajan at a cost of Rs. 15,18,927/- without reporting to the prescribed authority in Form VI before starting the construction and without reporting to the prescribed authority after the completion of the construction in Form-VII in Schedule-I appended to the Tamil Nadu Government Servants Conduct Rules 1973 and thus you have violated Rule 7(1)(b) of the Tamil Nadu Government Servants Conduct Rules."
The charges are very serious in nature and moreover, those charges are mostly depending on the documents. Hence, the petitioner cannot plead that the delay would vitiate the departmental proceedings. There is no straightjacket formula that after certain period of time, no disciplinary action could be initiated against the Government employee, particularly, in cases wherein allegations are made relating to corruption. I am of the view that no limitation could be prescribed in such cases. Therefore, I have no hesitation to reject the contention made by the learned counsel for the petitioner that the delay in issuing charge memos would be fatal to the departmental proceedings.
The second argument is that the statement of witnesses are not produced to the petitioner and therefore, the charge memos are liable to be quashed. The learned counsel for the petitioner has relied on some judgments in this regard and I would like to refer to the same at the later portion of this order. In my view, if the statement of witnesses, if any, recorded in the preliminary enquiry is not furnished and the same is relied on, the same is violative of principles of natural justice. But, now the enquiry is not over. The learned Government Advocate has submitted that wherever any materials are relied against the petitioner, the same would be furnished to the petitioner. It is also submitted that the petitioner would be given opportunity to cross examine the witnesses and if any statements are relied on, the same would be furnished to the petitioner. Hence, in my view, this ground of attack also has no basis.
Thirdly, the learned counsel for the petitioner has submitted that since the criminal proceedings was not continued further, the disciplinary proceedings also could not be proceeded. However, here again, I am not in agreement with the submission made by the learned counsel for the petitioner, because, since the criminal proceedings was not proceeded, the petitioner need not face the trial before the criminal court in a criminal case and the same may result in conviction and the petitioner could be detained, if not acquitted in the criminal case. But the departmental action would not result the petitioner in depriving his personal liberties and at the most, the petitioner could be imposed with some punishment that is contemplated in the service rules. Further, more importantly, the proof required to establish the charge in a criminal case and the proof required in departmental enquiry are totally different. In criminal case, it is for the prosecution to establish the charge and the accused could simply keep quite and the burden is totally on the prosecution. But, in the departmental enquiry, the strict rules of evidence is not applicable and only the departmental authority should give cogent reasons for his conclusion, that is sufficient to impose penalty on the delinquent. Hence, I am not able to agree with this submission made by the learned counsel for the petitioner.
21(i). As far as the judgment relied on by the learned counsel for the petitioner in Surath Chandra Chakrabarty Vs. State of West Bengal, , is concerned, the said judgment cannot be applied to this case. Firstly, it was a case, wherein the learned single Judge of Calcutta High Court allowed the writ petition, on the ground that the charges framed in the charge memo are vague. The crux of the allegation is that the delinquent in that case took an active part in a conspiracy to implicate the then Director of Fire Service, West Bengal, in a false case, by planting firearms in his office and to injure him by planting a time bomb in his car, when he might be going on inspection. The learned single Judge came to the conclusion that no details whatsoever were given relating to the planting of firearms and the conspiracy. The learned Judge came to the conclusion that the charges are vague, but the Division Bench reversed the judgment. On appeal, the Apex Court agreed with the view taken by the learned single Judge and came to the conclusion that the charges are vague.
(ii). The aforesaid judgment arose out of the facts of that case wherein, the charge memo was extracted in the judgment. Reading of the charge memo also makes it very clear that no details were furnished, particularly, when such allegations were made about the planting of firearms. Hence, the court came to the conclusion in those facts and circumstances of the case and the same cannot be applied to this case, particularly, when the aforesaid extracted charge memos against the petitioner give particulars about various transactions made by the petitioner while he was in service and acquisition of various properties.
(iii). Further, more importantly, even in that case, the delinquent approached the court after the dismissal. While questioning the dismissal, the delinquent addressed the argument that the charges were vague and therefore, he was not able to defend in the enquiry that was found acceptance by the single judge.
In the second judgment relied on by the learned counsel for the petitioner in Kashinath Dikshita Vs. Union of India (UOI)and Others, also, the employee approached the court after dismissal. The employee therein was dismissed after the departmental proceedings, wherein 38 witnesses were examined and 112 documents produced. The employee therein requested to supply copy of the statements made by the witnesses and also copies of the documents. In spite of his specific request, the authorities did not give those documents. In the facts and circumstances of the case, the Apex Court ruled that the said procedure was violative of principles of natural justice and set aside the dismissal order. In this case, the enquiry is in the middle and the petitioner has rushed to this Court to question the charge memo. Hence, I am of the view that the said judgment is not applicable to the facts of this case.
In yet another judgment relied on by the learned counsel for the petitioner in State of U.P. Vs. Shatrughan Lal and Another, , also, the employee came to the court after the dismissal, questioning that he was not given the documents that were produced in the enquiry and he relied on the judgment in Kashinath Dikshita Vs. Union of India (UOI)and Others, . The Apex Court found that the said case is an identical one to that of the case in Kashinath Dikshita (supra) and held that principles of natural justice was not followed in the conduct of enquiry. Hence, I am of the view, the same cannot also be applied to the facts of this case.
In the last judgment relied on by the learned counsel for the petitioner in The Government of Andhra Pradesh and Others Vs. A. Venkata Rayudu, , four charges were framed against the employee and three charges were held not proved and one charge was held proved. As far as that charge is concerned, the Apex Court held that it is totally vague. The crux of the first charge that was held proved is that the employee therein violated the Government order issued from time to time, despite specific instructions, but the details of the Government order which was said to have been violated was not furnished at any point of time. Taking note of that fact, the Supreme Court held that the aforesaid charge was vague. It is useful to extract following few lines in paragraph 9 of the said judgment.
"In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge-sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO, etc. but that was not done."
Hence, the aforesaid judgment also could not be applied to this case.
On the other hand, I am of the view that the judgment that is relied on by the learned Government Advocate in Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, , squarely applies to the present case, wherein the Apex Court has categorically held that normally, a writ petition cannot be entertained against the charge memo or show cause notice, while exercising the jurisdiction under Article 226 of the Constitution. It is useful to extract paragraph 14 of the said judgment.
"14. 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."
(emphasis supplied)
For all the aforesaid reasons and also in view of the aforesaid categorical decision of the Apex Court holding that the writ petition cannot be normally entertained against the charge memo, I am not inclined to entertain these writ petitions. Hence, the writ petitions are dismissed. No costs. Consequently, M.P.(MD) Nos. 1, 1 and 2 of 2015 are closed.