S.L. Hemalatha vs State of Tamil Nadu

T. Raja, J.—This writ petition is directed against the impugned show cause notice issued by the first respondent in No. 26947/E1/2008-6, Labour and Employment (E1) Department dated 24.02.2009, the impugned charge memo issued by the second respondent in No. E2/43202/2004 dated 11.04.2005 and also the impugned suspension order issued by the first respondent in G.O.(D) No. 595 Labour and Employment Department dated 22.04.2005, to quash the same and pass appropriate orders.

Learned counsel for the petitioner submitted that the petitioner was issued with the charge memo dated 11.4.2005 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules containing the following five charges:

"Charge No. 1

The procedure laid down by the Government is that the pressure vessel testing fees from factories has to be remitted in the Bank concerned or in the treasury under the prescribed Head of Account by the Management of the factories.

The petitioner has collected the pressure vessel testing fees in cash from 22 factories during 22.04.1999 to 21.06.2004 as Inspector of Factories even knowing the above mentioned procedure. No officer has the power to collect the testing fees from the factories.

Charge No. 2

The petitioner has not submitted the above mentioned fees collected from the factories in the Government account of the Bank or in a treasury.

Charge No. 3

The petitioner has given a challan with fake bank seal without remitting in the Government account to the management of the factories as if remitted in the bank.

Charge No. 4

The petitioner has not remitted the pressure vessel testing fees in the Government account and she has issued Testing Certificate in Form No. 8 to 8 factories.

Charge No. 5

The petitioner has received the following documents from the office of Deputy Chief Inspector of Factories (Testing and Safety), Tirunelveli and has not returned back to the office.

Challan Register of Tirunelveli District for the year 2001.

Challan Registers of Tirunelveli, Tuticorin and Kanyakumari District for the year 2002.

Challan Register of Tuticorin District for the year 2003 and 2004.

Utilisation Register of Tirunelveli, Tuticorin and Kanyakumari Districts for the year 1998 to 2004."

However, after the issuance of the charge memo dated 11.4.2005, the petitioner was placed under suspension by issuance of another G.O.(D) No. 595, Labour and Employment Department dated 22.04.2005, based on the irregularities mentioned in the said charge memo. The petitioner came to this Court challenging the correctness of the suspension order and obtained interim stay in W.P.M.P(MD) No. 4160 of 2005 in W.P. No. 3953 of 2005.

When the matter stood as above, the Deputy Chief Inspector of Factories (Testing and Safety), Tirunelveli lodged a criminal complaint before the City Crime Branch Police Station, Tirunelveli and a case was registered in Crime No. 19 of 2005 against the petitioner under Sections 465, 467, 471, 472, 477A and 409 of IPC. However, when the petitioner was not furnished with the supportive documents to answer the charges, she filed Writ Petition No. 29973 of 2005 praying for furnishing of the relevant documents as requested by her in the letters dated 22.4.2005 and 2.5.2005. This Court, disposing off the said writ petition by order dated 16.9.2005, directed the respondents to furnish the documents. Challenging the said order, the respondents filed Writ Appeal No. 2061 of 2005 and the Hon''ble Division Bench of this Court, by order dated 19.10.2005, dismissed the writ appeal. Only thereafter, the respondents had furnished the copies of some of the available documents to the petitioner. Subsequently, by a detailed order dated 27.4.2006 passed in W.P.(MD) No. 3953 of 2005, this Court directed the respondents to furnish the xerox copies of the nine vital documents within a period of one week from the date of receipt of copy of the order and after receiving the said xerox copies, the petitioner was also directed to give her explanation within 15 days and after receipt of the said documents and explanation given by the petitioner, the enquiry officer was further directed to complete the enquiry after giving due opportunity to the petitioner. It is at this point of time the learned counsel for the petitioner, arguing further, stated that in spite of the direction given by this Court on 27.4.2006 to furnish nine documents, some of the documents were not even furnished. Before complying with the direction given by this Court in W.P.(MD) No. 3953 of 2005 dated 27.4.2006, the enquiry officer was appointed and the enquiry officer also had completed the enquiry. Therefore, the enquiry initiated by the enquiry officer cannot be given any sanctity, since the enquiry initiated and completed, without complying with the direction given by this Court, is not only unfair and unreasonable, but also violative of the principles of the natural justice. Adding further, it was stated that unless the nine documents directed to be given by this Court were given to the petitioner, it would be highly impossible for the petitioner to participate in the enquiry to defend the charges. Since all the documents were not given to the petitioner, admittedly, by the respondents, it goes without saying that the petitioner had not been given proper opportunity and the enquiry officer also, even after receipt of the representation from the petitioner to furnish all the documents including the original for comparison with the xerox copies, has deliberately given a false statement that he has rejected her request. That shows that the enquiry officer has also acted with a mala fide intention.

Continuing his arguments, it was stated that the petitioner has not been given a proper opportunity to defend her case with the assistance of a legal practitioner when there was a specific request given therefor. Concluding his arguments, it was stated that the enquiry officer, after receipt of the request for furnishing of the nine documents as per the directions of this Court, overlooking such request, has compelled the petitioner with threat to admit the alleged misappropriation in order to safeguard his friend viz., the Deputy Chief Inspector of Factories (Testing & Safety), Tirunelveli and moreover, he has not even enquired the witnesses on the following issues:

"(i) All the remittance should be made only in the Bank by a triplicate challan. When the amount remitted for years have not been properly accounted for in their account, why they have not informed to the higher officer namely the Deputy Chief Inspector of Factories (Testing & Safety), Tirunelveli.

(ii) Whether the petitioner is vested with the duties and responsibly of collecting the money and remitting the same into their account. If not how this was continued without any reconciliation.

(iii) The Head of Account shall be verified by the clerk and the amount is being remitted in the bank account through the triplicate challan by the party concerned. Any malpractice in the remittance can be easily identified or detected by the Deputy Chief Inspector of Factories (Testing & Safety), Tirunelveli during reconciliation because one copy of the challan will be sent to the enforcement wing of the respective area i.e. Deputy Chief Inspector of Factories, Tirunelveli by the Treasury. Once the reconciliation statement is received from the enforcement office, the Deputy Chief Inspector of Factories (Testing & Safety), Tirunelveli can very well identify the missing credits or falsification of records then and there. Therefore, without the knowledge of the Deputy Chief Inspector of Factories (Testing & Safety) Tirunelveli such bogus transactions shall never be done by the parties and being the Head of Office has not objected to any of the reconciliation statements furnished by the enforcement office."

In view of that, the report submitted by the enquiry officer is liable to be rejected.

A detailed counter affidavit has been filed by the respondents. The learned Special Government Pleader appearing for the respondents has placed before this Court the letter dated 5.6.2014 issued by the Director, Industrial Safety and Health, Royapettah, Chennai to the Government Pleader, High Court to say that the grievance of the petitioner that all the documents were not given is unfounded. He has also stated that all the relevant copies of the records which are based on the charges framed against the petitioner had already been furnished to her during 2006 by complying with the order passed by this Court in W.P.(MD) No. 3953 of 2005 dated 27.4.2006, hence, the question of non-compliance of the order passed by this Court does not arise. Moreover, the petitioner came and perused many of the records in person on 24.3.2008 and 31.3.2008 in the presence of the enquiry officer. Although the petitioner asked for several unnecessary documents, some of the irrelevant documents were not furnished. The letter dated 5.6.2014 also gives the reasons for not furnishing some of the irrelevant documents as detailed hereunder:

Justifying the reasons for not furnishing the irrelevant documents, the learned Special Government Pleader, by highlighting that the respondents have complied with the order passed by this Court, again submitted that the respondents had initiated the enquiry and the enquiry officer also completed the enquiry proceedings and that the petitioner also, having participated in the first three hearings, subsequently had deliberately avoided and finally the enquiry officer, who initiated the enquiry, had completed the same and submitted a report. After receipt of the enquiry report, the disciplinary authority has furnished a copy of the report along with the second show cause notice calling the petitioner to submit her written representation. Only at this stage the petitioner has come to this Court. Therefore, the petitioner should allow the respondents to pass orders based on the report of the enquiry officer. Only thereafter, if the decision that is going to be taken by the disciplinary authority is against the petitioner, it is open to her to challenge the said decision. But today it is not known whether the disciplinary authority is going to take a decision in favour of the petitioner or against her. Therefore, at this stage, it is not open to the petitioner to challenge the report of the enquiry officer, he pleaded.

This Court finds full force in the submissions made by the learned Special Government Pleader for the respondents. Admittedly, in the present case, when the petitioner came to this Court by filing W.P.(MD) No. 3953 of 2005 asking a direction to the respondents to furnish nine documents, this Court, by mentioning all the nine documents in its detailed order dated 27.4.2006, gave a week''s time to both parties to furnish the above said documents. The respondents also, complying with the direction, had furnished all the documents and in addition also permitted the petitioner to peruse some of the documents which were not in good condition to be furnished. Although the petitioner was aware of the fact that one week time was given by this Court for furnishing the documents, it is not known why she has kept quiet. If the direction has not been complied with, she should have come to this Court within a reasonable time. Not coming to this Court for about three years shows that the order dated 27.4.2006 passed by this Court was fully complied with. Unfortunately, after receiving all the documents and having participated in the enquiry proceedings on three occasions, this Court is not in a position to find any explanation or reason offered by the petitioner for not participating in the rest of the hearings. Moreover, now the enquiry officer, having completed the enquiry, has submitted the report. At this point of time, it is highly improper for this Court to interfere, as the disciplinary authority, having completed the enquiry, has to finally pass an order on the basis of the charges, the explanation given by the petitioner and the enquiry officer''s report. The reason why I am not inclined to interfere with the impugned order is that at this stage, there is no adverse order passed affecting the right of the petitioner. It is quite possible that, after considering the reply to the show cause notice, the disciplinary authority may even drop the proceedings or even hold that the charges are not established. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, then the said party can be said to have any grievance. This conclusion of mine is fortified by a judgment of the Hon''ble Apex Court in the case of Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, , wherein it is held thus:

"13. 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 and Others Vs. Divn. Commr. and Others, , State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, etc.

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."

Therefore, the disciplinary authority is directed to pass final orders within a period of four weeks from the date of receipt of a copy of this order. Thereafter, if the petitioner is aggrieved, it is open to her to challenge the same. With this observation, the writ petition stands dismissed. Consequently, interim stay stands vacated and the M.P. No. 4 of 2009 is also dismissed. No costs.