S. Siddique v. The Commissioner, Municipal Administration, Chepauk, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 30.11.2009CoramThe Honourable Mr. Justice P. JYOTHIMANIW.P. No.30068 of 2008andM.P.Nos.2 of 2008 and 1 of 2009 S.Siddique... Petitioner..Vs..The Commissioner,Municipal Administration,Chepauk,Chennai. ... RespondentPetition under Article 226 of The Constitution of India, prayingto issue a writ of Certiorari calling for the proceedings of therespondent Roc.No.63297/2007/OP3-6 dated 28.08.2008 and quash thesame.For Petitioner : Mr.V.Vijayshankar For Respondent : Mr. T. Seenivasan, Additional Government PleaderO R D E RThe Writ Petition is directed against the charge memo issued tothe petitioner by the respondent dated 28.08.2008. The impugnedcharge memo is challenged on the ground that there is no precisecharge and the charge is not referable to Rule 20(1) of the TamilNadu Government Servant Conduct Rules 1973. The petitioner who hasjoined service as Assistant in Rural Development Department on30.05.1986 and was later promoted as Section Officer on 14.05.1992 inthe Municipal Administration and Water Supply Department and havingopted from the Secretariat service to the Municipal Services, he wasposted as Municipal Commissioner Grade II and got promotion asMunicipal Commissioner Grade-I and later confirmed to Selection Gradein October 2007 and working in the Mettur Municipality, Mettur Damand in these years of service from 1986 till date there was noblemish on record except the impugned charge memo issued by therespondent dated 28.08.2008. The respondent has issued the impugnedorder dated 28.08.2008 under rule 17(b) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules. The charge as stated in theAnnexure - I is as follows: https://hcservices.ecourts.gov.in/hcservices/ "Statement of allegations namely imputation ofmisconduct or misbehaviour in respect of which inquiryis proposed to be held against Thiru.S.Siddique,formerly Municipal Commissioner, RamanathapuramMunicipality.Charge :You Thiru.S.Siddique, formerly MunicipalCommissioner, Ramanathapuram Municipality, was inpossession of Rs.1200/- and unable to give properexplanation for the same and thereby failed to maintainabsolute integrity and violated the rule 20(1) of TamilNadu Government Servant Conduct Rules, 1973."2.In the Annexure II, while explaining the statement ofallegations, the reason given is that at the time of inspection, hehas produced Rs.1,200/- from his purse. When questioned by theInspection Cell Officer about the money, whether it was kept to giveit as illegal gratification to Audit Party, he was unable to giveproper explanation. More astonishing statement which is as follows:- "As a responsible officer, he was unable to answer the directquestion raised by the Inspection Cell Officer. It was assumed thathe has kept that amount to give it as illegal gratification to theAudit Party". Of course, the statement of allegation also proceedsthat the petitioner has given direction to the subordinatesTr.P.Ravi, Revenue Assistant and Tmt.E.S.Nagammal, Revenue Inspector,to book rooms at lodges for the Audit Persons. But the fact remainsthat the charge only relates to the possession of Rs.1200/- for whichthe petitioner being the Commissioner of Grade-I Municipality wasunable to give his explanation and that it presumed to be a failureto maintain absolute integrity and devotion to duty and thus violatedthe rule 20(1) of the Tamil Nadu Government Servants Conduct Rules. 3.Rule 20 of Tamil Nadu Government Servants Conduct Rules,nowhere contemplates such conduct as the violation of integrity andfailure of devotion to duty. On the face of it, there is nodifficulty to conclude that the charge that the petitioner being theMunicipal Commissioner was having Rs.1200/- in his purse and unableto explain its source and further allegation that the amount has beenkept by the petitioner to give bribe to the Audit Parties and thecharge is not that the petitioner has received bribe. This can onlybe said to be a charge without any precision so as to enable thedelinquent officer to give proper explanation. The charges framedunder Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal)Rules are expected to be specific since it affects the civil right ofthe Government Servant and unless specific charge is given, there isa possibility of ex-post facto interpretation of some incident and ithas been held that the charges must not be vague and must be specificin nature. https://hcservices.ecourts.gov.in/hcservices/

4.The Hon'ble Supreme Court in (A.L.Kalra ..vs.. The Projectand Equipment Corporation of India Ltd.,) reported in AIR 1984 SC1361 while dealing about the specific nature of charge, which has tobe framed by the employer held as follows:" Where misconduct when proved entails penalconsequences, it is obligatory on the employer tospecify and if necessary define it with precision andaccuracy so that any ex post facto interpretation ofsome incident may not be camouflaged as misconduct."" 22.What in a given context would constituteconduct unbecoming of a public servant to be treated asmisconduct would expose a grey area not amenable toobjective evaluation. Where misconduct when provedentails penal consequences, it is obligatory on theemployer to specify and if necessary define it withprecision and accuracy so that any ex post factointerpretation of some incident may not be camouflagedas misconduct."5.The Division Bench of this Court, in the "Management ofHindustan Lever Limited, represented by the Branch Manager, Madras ..vs.. Deputy Commissioner of Labour, Madurai and another", (2008) 4MLJ 214" while considering the term "misconduct" has held on thefacts of the said case as follows:"24.On a close scrutiny of the charges framedagainst the workman, we could not find mentioning ofany provision of law or Standing Order therein, underwhich the alleged acts of the workman, could betermed as a misconduct. However, it has been arguedon behalf of the Management that the meaning'misconduct' has got wider connotation. Evenaccepting that the term 'misconduct' has got widerconnotation, we fail to understand the non-mentioningof any provision of law or Standing Order in theshow-cause notices issued to the workman, under whichthe alleged acts of the workman could be termed as amisconduct and such an ex post facto determination bythe Management, fishing out the alleged conduct ofthe workman as misconduct, in the absence of anyservice regulations or certified standing orders,cannot be permitted."Of course that was a case where ultimately a final order of dismissalhas been passed. But the legal position remains that the ex-postfacto determination by the Management against the workman ordelinquent employee would amount to fishing out a conduct so as tomake an employee liable for his conduct. By applying such dictum asstated above, I am of the considered view that the charge framed https://hcservices.ecourts.gov.in/hcservices/ against the petitioner is not specific and it is not a charge whichcan be suitably explained by way of defence by the petitioner. 6.In such circumstances, the impugned charge is set aside andthe Writ Petition stands allowed. Consequently, the connectedMiscellaneous Petitions are closed. No costs.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarmraToThe Commissioner,Municipal Administration,Chepauk,Chennai.+ 1 cc to Government Pleader,SR.65006+ 1 cc to Mr.V.Vijay Shankar,Advocate,SR.65050W.P. No.30068 of 2008andM.P.Nos.2 of 2008 and 1 of 2009JSV(CO)EM/19.12.09