S. Sabapathy vs The State of Tamil Nadu

Nainar Sundaram, J.—The Petitioner in both the writ petitions is one and the same. He has been visited with orders of dismissal on two disciplinary actions Departmental Enquiry No. 9/77 relates to the period 1974-75 and Departmental Enquiry No. 10/77 relates to the period 1972-73. To appreciate the contentions raised by Mrs. Ramani Natarajan, learned Counsel for the Petitioner, it is necessary to refer to the charge memos initially issued against the Petitioner in respect of the two Departmental Enquiries. The charge memoin Departmental Enquiry No. 9/77 inter alia states that the Petitioner, in collusion with others charged along with him, violated the Town Planning Rules and contravened the normal official procedure. Equally so, the charge memo in Departmental Enquiry No. 10/77 inter alia states that the Petitioner violated the Town Planning Rules and contravened the normal official procedure. It is true that both the charge memo enumerate various instances. In reply to the charge memos, the Petitioner has taken a specific stand that the charge memos are vague, in that they do not mention as to what Town Planning Rules have been violated. The matters were enquired into by the Commissioner for disciplinary Proceedings and even in the report recommending dismissal from service, apart from touching this contention of the Petitioner that the charge memos suffer from vagueness and they are not specific with reference to the rules or the normal official procedure stated to have been violated this question has not at all been dealt with by the Commissioner for Disciplinary Proceedings. There was a provisional conclusion arrived at and the Petitioner was called upon to reply there for and even in the reply, the Petitioner has taken up the stand that the charges framed against him are vague and suffer from indefiniteness. The grievances of the Petitioner, obviously, has been ignored and ultimately the Petitioner has been visited with orders of dismissal.

The grievance of the Petitioner that the charges are vague and suffer the infirmity of being indefinite has also been expressed in the affidavits filed in support of these writ petitions and in the common counter-affidavit filed on behalf of the Respondent what all has been stated is found in paragraph 13 thereof, which rums at follows;

As regards the averment of the Petitioner in paragraphs 7(iii) of the affidavits that the charges framed against him is vague and not specific, is not correct. ''Normal procedure and ''Town Planning Rules'', mentioned in the charges framed against the Petitioner must be deemed to mean the procedure and rules applicable to the point at issue with adequate scope for using flexibility and discretion vested in the Officers concerned. Therefore, it is incorrect to state that there was denial of opportunity to the Petitioner due to alleged vagueness.

Even here, we do not find any clarity as to what are the rules and the normal official procedure that were violated by the Petitioner.

The rule, is, no person in the civil service of the State shall be dismissed except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of there charges. Notice or memorandum of charges is the first limb of the rule and the memorandum of charges must be precise unambiguous and they must appraise the person sought to be proceeded against determinatively the case he has to meet. Obviously, the charge memos referred to violation of the Town Planning Rules and the normal official procedure. But, this has not been clearly expatiated in the charge memos as to what are the rules and the normal official procedure that were violated by the Petitioner. The Petitioner did feel aggrieved over this and he had been expressing his grievance throughout. In spite of this, there had been an attitude of callous indifference to this plea of the Petitioner and the matters had been proceeded with and apparently, the conclusion had been arrived at on the basis that there had been violations of the Town Planning Rules and the normal official procedure. Even before me, it has not been dear as to what are the Town planning Rules or the normal official procedure that were violated by the Petitioner. There is no dispute that the violation of the rules and the official procedure had been taken to be the gravamen of the charges levelled against the Petitioner though, very many instances have been enumerated in support of the charges. In this context, learned Counsel for the Petitioner rightly relies on a pronouncement of the Supreme Court in Surath Chandra Chakrabarty Vs. State of West Bengal, where the charge; were found to be exteriorly vague, and indefinite and this was also taken note of by the Supreme Court to state that there war a denial of a proper and a reasonable opportunity of defending against the charges.

When either a prevision of law is quoted or a particular rule is referred to and on that go and the alleged acts and emissions of the accused servant are being characterised as reprehensible and punishable, the matter cannot be proceeded with in a sphere of ambiguity. The rule or regulation must be exposed. It will be highly improper and definitely, prejudice and lack of opportunity will be spelt out, if the authority should vaguely allege that the acts and emissions of the accused servant will attract the mischief of riles and regulations. The notice or memorandum of charges, if there is a reliance on a particular rule or regulation must set forth that rule or regulation. The need for the charge to be definite, specific and unambiguous has been stressed by a catena of decisions and there is no need to enumerate all of them here. Since I find that the rule with regard to giving a reasonable opportunity to answer the charges after the accused servant has been informed specifically and with definiteness about the same has been violated, there is a ground for interfering in writ proceedings.

The above ground itself is sufficient to interfere in writ jurisdiction. However, I would like to place on record the other two grounds urged by the learned Counsel for the Petitioner and they are as follows. The second ground relates to the admissibility of Exhibit P. 237, P. 238 and P. 239, stated to be statements given by the Petitioner to a Police Official and it is contended that they are inadmissible u/s 25 of the Indian Evidence Act and further, they were marked only in the course of arguments by the Prosecutor, without affording an opportunity to the Petitioner, the accused officer in the disciplinary enquiry, to counter-act the same. The third ground raised is that the Respondent, before passing the impugned orders of dismissal, took into consideration the recommendations of the Tamil Nadu Public Service Commission, without putting the Petitioner on notice of the same and calling upon him to make his say over the same. This, according to the learned Counsel for the Petitioner would vitiate the orders of dismissed and in support thereof, the relies on two pronouncements of this Court, one of Koshal J., as he then was, in A. Chengalvarayan v. The Chief Engineer, High ways and Rural Works-Writ Petition No. 6580 of 1978 order, dated 15th July, 1976) and the other of S. Natarajan J. in S.R. Loka Doss v. Secretary to Govt. Co-op. Dept. (Writ petition No. 4365 of 1976-Order, dated 23rd June, 1978). I have refrained from going into these contentions for the simple reason, I have sustained the first substantial ground of attack which goes, to the root of the matter, and, as stated above, that would suffice the purpose of the Petitioner, Accordingly, these writ petitions are allowed. I make no order as to costs.