Dr.G.R.Ragunathan v. Secretary to Government, Health & Family Welfare Department, Fort St. George, Chennai-600 009 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.01.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.964 OF 2010andM.P.NOs.1 and 2 of 2010Dr.G.R.Ragunathan ..PetitionerVs.1.Secretary to Government, Health & Family Welfare Department, Fort St. George, Chennai-600 009.2.Director of Medical and Rural Health Services, Chennai-600 006. ..RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to theimpugned order passed by the second respondent herein in hisproceedings Ref.No.73461/SC1/1/2007 dated 14.12.2009 and theconsequential orders of the first respondent in G.O.(D).No.1338Health and Family Welfare (K-1) Department, dated 29.12.2009 and G.O.(D)No.1357 Health and Family Welfare (K-1) Department, dated31.12.2009 and to quash the same and consequently, to direct therespondents to allow the petitioner to retire from service witheffect from 31.12.2009 with all consequential monetary and servicebenefits within a time frame fixed by the court.For Petitioner : Mr.G.BalaFor Respondents: Ms.E.Ranganayaki, GA(Takes notice)ORDERHeard both sides. This Writ petition challenges the chargememo issued by the second respondent dated 14.12.2009 framed underRule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal)Rules and the consequential order dated 31.12.2009. As the petitionerhad reached the age of superannuation, he was not allowed to retire https://hcservices.ecourts.gov.in/hcservices/ by the order of the Government in G.O.1338 and 1357, H&FW Department,dated 31.12.2009.2.The grievance of the petitioner is that the Charge Memo isillegal and is liable to be quashed on the ground that the chargesare baseless and the petitioner had reached the age of superannuationand that it has been based on a false complaint.3.This Court is unable to countenance any one of thecontentions raised by the petitioner. 4.The Supreme Court in its decision in State of U.P. v. BrahmDatt Sharma reported in (1987) 2 SCC 179 dealt with the power of theCourt in dealing with a charge memo at the show cause stage and thefollowing passage found in paragraph 9 will make the position clear:9. The High Court was not justified in quashingthe show cause notice. When a show cause notice isissued to a government servant under a statutoryprovision calling upon him to show cause,ordinarily the government servant must place hiscase before the authority concerned by showingcause and the courts should be reluctant tointerfere with the notice at that stage unless thenotice is shown to have been issued palpablywithout any authority of law. ‘The purpose ofissuing show cause notice is to afford opportunityof hearing to the government servant and oncecause is shown it is open to the Government toconsider the matter in the light of the facts andsubmissions placed by the government servant andonly thereafter a final decision in the mattercould be taken. Interference by the court beforethat stage would be premature, the High Court inour opinion ought not have interfered with theshow cause notice.5.The Supreme Court vide judgment in Special Director v. Mohd.Ghulam Ghouse reported in (2004) 3 SCC 440 in para 5 observed asfollows:5. This Court in a large number of caseshas deprecated the practice of the High Courtsentertaining writ petitions questioning legalityof the show-cause notices stalling enquiries asproposed and retarding investigative process tofind actual facts with the participation and inthe presence of the parties. Unless the High Courtis satisfied that the show-cause notice wastotally non est in the eye of the law for absolute https://hcservices.ecourts.gov.in/hcservices/ want of jurisdiction of the authority to eveninvestigate into facts, writ petitions should notbe entertained for the mere asking and as a matterof routine, and the writ petitioner shouldinvariably be directed to respond to the show-cause notice and take all stands highlighted inthe writ petition. Whether the show-cause noticewas founded on any legal premises, is ajurisdictional issue which can even be urged bythe recipient of the notice and such issues alsocan be adjudicated by the authority issuing thevery notice initially, before the aggrieved couldapproach the court. Further, when the court passesan interim order it should be careful to see thatthe statutory functionaries specially andspecifically constituted for the purpose are notdenuded of powers and authority to initiallydecide the matter and ensure that ultimate reliefwhich may or may not be finally granted in thewrit petition is not accorded to the writpetitioner even at the threshold by the interimprotection granted.6.Further, the Supreme Court in the judgment relating to Unionof India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 inparas 13 to 16 held as follows:13. It is well settled by a series ofdecisions of this Court that ordinarily no writlies against a charge-sheet or show-cause noticevide Executive Engineer, Bihar State HousingBoard v. Ramesh Kumar Singh (1996) 1 SCC 327,Special Director v. Mohd. Ghulam Ghouse (2004) 3SCC 440, Ulagappa v. Divisional Commr., Mysore(2001) 10 SCC 639, State of U.P. v. Brahm DattSharma(1987) 2 SCC 179, etc.14. The reason why ordinarily a writpetition should not be entertained against amere show-cause notice or charge-sheet is thatat that stage the writ petition may be held tobe premature. A mere charge-sheet or show-causenotice does not give rise to any cause ofaction, because it does not amount to an adverseorder which affects the rights of any partyunless the same has been issued by a personhaving no jurisdiction to do so. It is quitepossible that after considering the reply to theshow-cause notice or after holding an enquirythe authority concerned may drop the proceedings https://hcservices.ecourts.gov.in/hcservices/ and/or hold that the charges are notestablished. It is well settled that a writpetition lies when some right of any party isinfringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. Itis only when a final order imposing somepunishment or otherwise adversely affecting aparty is passed, that the said party can be saidto have any grievance.15. Writ jurisdiction is discretionaryjurisdiction and hence such discretion underArticle 226 should not ordinarily be exercisedby quashing a show-cause notice or charge-sheet.16. No doubt, in some very rare andexceptional cases the High Court can quash acharge-sheet or show-cause notice if it is foundto be wholly without jurisdiction or for someother reason if it is wholly illegal. However,ordinarily the High Court should not interferein such a matter.7.In the decision in Dy. Registrar, Co-op. Societies v.Sachindra Nath Pandey reported in (1995) 3 SCC 134, the Supreme Courtheld that the delay in framing charge cannot be a ground to interferewith the charge memo and the relevant passage found in paragraph 7 ofthe said judgment is extracted below:"7. On a perusal of charges, we findthat the charges are very serious. We are,therefore, not inclined to close the matter onlyon the ground that about 16 years have elapsedsince the date of commencement of disciplinaryproceedings, more particularly when theappellant alone cannot be held responsible forthis delay......"8.Further, in Secretary to Government, Prohibition & ExciseDepartment v. L. Srinivasan reported in (1996) 3 SCC 157, the SupremeCourt has held that the charge cannot be quashed only on the groundof delay and any finding recorded by the Court will prejudice theenquiry. The Supreme Court has also pulled up the member of theAdministrative Tribunal for having interfered with the charge memo asif the Tribunal is the appellate authority. The following passagefound in paragraph 3 of the said judgment makes the position veryclear:3.....We are informed that charge-sheetwas laid for prosecution for the offences of https://hcservices.ecourts.gov.in/hcservices/ embezzlement and fabrication of false recordsetc. and that the offences and the trial of thecase is pending. The Tribunal had set aside thedepartmental enquiry and quashed the charge onthe ground of delay in initiation ofdisciplinary proceedings. In the nature of thecharges, it would take a long time to detectembezzlement and fabrication of false recordswhich should be done in secrecy. It is notnecessary to go into the merits and record anyfinding on the charge levelled against thecharged officer since any finding recorded bythis Court would gravely prejudice the case ofthe parties at the enquiry and also at thetrial. Therefore, we desist from expressing anyopinion on merit or recording any of thecontentions raised by the counsel on eitherside. Suffice it to state that theAdministrative Tribunal has committed grossesterror in its exercise of the judicial review.The member of the Administrative Tribunalappears to have no knowledge of thejurisprudence of the service law and exercisedpower as if he is an appellate forum dehors thelimitation of judicial review. This is one suchinstance where a member had exceeded his powerof judicial review in quashing the suspensionorder and charges even at the threshold. We arecoming across such orders frequently puttingheavy pressure on this Court to examine eachcase in detail. It is high time that it isremedied."9.Very recently, the Supreme Court in Govt. of A.P. v. V.Appala Swamy reported in (2007) 14 SCC 49 held the parameters ofinterfering with a charge sheet on the ground of delay in paragraphs12, 14 and 15 which read as follows:"12. So far as the question of delay inconcluding the departmental proceedings asagainst a delinquent officer is concerned, in ouropinion, no hard-and-fast rule can be laid downtherefor. Each case must be determined on its ownfacts. The principles upon which a proceeding canbe directed to be quashed on the ground of delayare:(1) where by reason of the delay, the employercondoned the lapses on the part of the employee; https://hcservices.ecourts.gov.in/hcservices/ (2) where the delay caused prejudice to theemployee.Such a case of prejudice, however, is to be madeout by the employee before the inquiry officer........14. Learned counsel appearing on behalfof the respondent, however, placed strongreliance on a decision of this Court in M.V.Bijlani v. Union of India(2006 (5) SCC 88). Thatcase was decided on its peculiar facts. In thatcase, even the basic material on whichdepartmental proceedings could be initiated wasabsent. The departmental proceedings wereinitiated after 6 years and continued for aperiod of 7 years. In that fact situation, it washeld that the appellant therein was prejudiced.15. Bijlani, therefore, is not anauthority and, in fact, as would appear from thedecision in P.D. Agrawal4 for the propositionthat only on the ground of delay the entireproceedings can be quashed without consideringthe other relevant factors therefor."10.In the light of the above decisions of the Supreme Court,the Writ Petition is clearly misconceived and there are no groundswarranting interference of the charge memo at this stage. Hence thiswrit petition shall stand dismissed. No costs. ConnectedMiscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1. The Secretary to Government, Health & Family Welfare Department, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Director of Medical and Rural Health Services, Chennai-600 006.+ 1 c.c. to Mr. G. Bala & Daisy, Advocate. S.R.No.3926.+ 1 c.c. to The Government Pleader. S.R.No.4241. W.P.NO.964 of 2010KG (CO)GSK 01.02.2010.