A.Govindaraj v. Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.03.2010CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.5747 of 2010andM.P.NOs.1 and 2 of 2010A.Govindaraj.. Petitioner Vs.1.State of Tamil Nadu, rep. By Secretary to Government, Commercial Taxes and Registration (H1) Dept., Fort St. George, Chennai-600 009.2.The Inspector General of Registration, Santhome High Road, Chennai-600 028... Respondents This 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 comprised in theproceedings of the first respondent in G.O.Ms.(2D)No.148,Commercial Taxes & Registration (H1) Department, dated 30th June,2009 and that of the second respondent in his MemoNo.31265/V3/2009 dated 15.7.2009 and Memo No.34540/V3/2009 dated15.7.2009 as communicated to the petitioner on 1st of March 2010and to quash the proceedings of the first and second respondentsdated 30th June, 2009 and 15th July, 2009 respectively andconsequently forbearing the respondents from proceeding againstthe petitioner departmentally and directing the respondents tosettle the pension and terminal benefits of the petitioner. For Petitioner : Mr.V.RamajegadeesanFor Respondents : Mr.P.Subramanian, AGPORDERThe petitioner who was working as a District Registrar, hasfiled the present writ petition represented through his Power ofAgent, who is none other than his daughter. The Power of Agent https://hcservices.ecourts.gov.in/hcservices/ has filed an affidavit in support of the writ petition. Theprayer in the writ petition is to set aside the order in G.O.(2D)No.148, Commercial Taxes and Registration Department, dated30.6.2009 and the charge memo, dated 15.7.2009 framed under Rule17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)Rules and seeks to prevent the respondents from proceeding withthe departmental action and also to settle his terminal benefits. 2.It is claimed by the petitioner that he left the Countryon 21.11.2009 to New Zealand along with his wife to help hiseldest daughter in connection with her delivery of second child.The petitioner was placed under suspension on 17.6.2009 by G.O.(2D)No.143, Commercial Taxes and Registration Department, dated17.6.2009 under Rule 17(e) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. As the petitioner was about toreach the age of superannuation on 30.6.2009, he was preventedfrom retiring from service by exercise of power under FR 56(1)(c)by G.O.(2D)No.148, CT&R Department, dated 30.6.2009. 3.It is at this stage, the petitioner filed a writ petitionbeing W.P.No.11695 of 2009 seeking to challenge the order ofsuspension. When the matter came up for hearing, the petitionerdid not inform this court on 22.7.2009 that already an order wasissued by the State Government retaining him in service under FR56(1)(c) by G.O.(2D)No.148, dated 30.6.2009. He tried to make itappear as if he was not in receipt of the said order andtherefore, he informed this court that without an order under FR56(1)(c) to retain him in service, an order of suspension pendingenquiry may not arise and that the petitioner had completed 58years on 30.6.2009. 4.Aggrieved by the order passed by the learned Judge, theState has filed an appeal in W.A.No.131 of 2010. As thepetitioner had filed a caveat, it was informed to this court thatsince the petitioner was not allowed to retire, the question ofpassing further orders is unnecessary. The matter was directed tobe posted on 11.2.2010 and the order of the learned single Judgewas also stayed. Thereafter, when the matter came up on11.2.2010, this court directed that interim order granted willcontinue. It was also observed as follows:"Mr.V.Rama Jagadeesan makes a request thatthe pending enquiries be finalised at theearliest. The learned Government Pleader statesthat the respondent ought to co-operate inearly completion of the enquiry. The State willsee to it that the enquiries are completed, onan outer side, within six weeks from today."5.Therefore, in the normal circumstances, the petitionermust face the enquiry in the light of the stand taken by him. Itis the case of the petitioner that after he left the country on https://hcservices.ecourts.gov.in/hcservices/

21.11.2009, the matter came to be disposed of and he neverinstructed his counsel to inform this court about his intentionto participate in the enquiry and it was a wrongful concessiongiven by his counsel. In any event, he had stated that inasmuchas his services were not extended before 30.6.2009, any orderserved on him thereafter has no value. Even as per the postalendorsement, it was received by his Head of the Department onlyon 6.7.2009, i.e. after six days after the date of hissuperannuation. The order not permitting him to retire was notserved on him and the covering letter will show that the orderwas not served on him before his date of retirement. Since he hadalready reached the age of superannuation, any proceedings takenwas not binding on him.6.Mr.V.Ramajegadeesan, learned counsel appearing for thepetitioner relied upon a judgment of the Supreme Court inMunicipal Corporation of Delhi Vs. Qimat Rai Gupta and othersreported in 2007 (7) SCC 309. This is for the purpose of holdingthat mere passing of the order is not enough, but it should becommunicated.7.However, this court is not persuaded to entertain the writpetition for more than one reasons. First of all, the writ is notmaintainable as it is filed by the power of agent. Since theissue related to a service matter and the petitioner notsuffering any disablement, the question of allowing his daughterthat too as a power agent cannot be permitted. The affidavitfiled in support of the writ petition must contain a swornstatement and it will be an affidavit of facts. Therefore, onlyfacts within the knowledge of the petitioner cannot be made to beaffirmed with by his daughter and she is not personally conversedwith the case.8.Secondly, the contentions raised by the petitioner thatthe order retaining him in service was not served on him when thecharge memo came to be issued subsequently, is also not valid. 9.In this context, it is necessary to refer to the judgmentof the Supreme Court in U.P. State Sugar Corpn. Ltd. v. KamalSwaroop Tondon reported in (2008) 2 SCC 41. The following passagefound in paragraph 40 may be usefully referred below:40. Considering the facts andcircumstances in their entirety, in ourconsidered opinion, the High Court was wrongin holding that the proceedings wereinitiated after the respondent retired andthere was no power, authority orjurisdiction with the Corporation to takeany action against the writ petitioner andin setting aside the orders passed againsthim. In our judgment, proceedings could have https://hcservices.ecourts.gov.in/hcservices/ been taken for the recovery of financialloss suffered by the Corporation due tonegligence and carelessness attributable tothe respondent employee. The impugnedaction, therefore, cannot be said to beillegal or without jurisdiction and the HighCourt was not right in quashing theproceedings as also the orders issued by theCorporation. The appeal, therefore, deservesto be allowed by setting aside the order ofthe High Court.10.A similar view was taken by the Supreme Court inSecretary, Forest Department and others Vs. Abdur Rasul Chowdhuryreported in 2009 (7) SCC 305. The following passage found inparagraph 15 may be usefully extracted below:"15.In the present case, while thedelinquent employee was in service, thedepartmental enquiry proceedings had beeninstituted by the employer by issuing thecharge memo and the proceedings could notbe completed before the government servantretired from service on attaining the ageof superannuation and in view of Rule 10(1)of the 1971 Rules, the employer can proceedwith the departmental enquiry proceedingsthough the government servant has retiredfrom service for imposing only punishmentcontemplated under the Rules."11.The Supreme Court in National Textile Corpn. (M.P.) Ltd.v. M.R. Jadhav reported in (2008) 7 SCC 29 has categoricallystated that communication of an order of suspension is notnecessary if the order goes our of control of the appointingauthority. The following passage found in paragraphs 23 and 24may be usefully extracted below:23. In MCD v. Qimat Rai Gupta9 this Court opined:(SCC p.319, para 27)“27. An order passed by a competentauthority dismissing a government servantfrom services requires communication thereofas has been held in State of Punjab v. AmarSingh Harika6 but an order placing agovernment servant on suspension does notrequire communication of that order. (SeeState of Punjab v. Khemi Ram.)”24. Therefore, there cannot be any doubtwhatsoever that communication of the acceptanceof offer was necessary. An internal noting does https://hcservices.ecourts.gov.in/hcservices/ not constitute a communication. Even in a caseof order of suspension, only when the case goesout of the control of the appropriate authority,actual communication may not be necessary. 12.The Supreme Court in its decision in State of U.P. v.Brahm Datt Sharma reported in (1987) 2 SCC 179 dealt with thepower of the Court in dealing with a charge memo at the showcause stage and the following passage found in paragraph 9 willmake the position clear:9. The High Court was not justified inquashing the show cause notice. When a showcause notice is issued to a government servantunder a statutory provision calling upon himto show cause, ordinarily the governmentservant must place his case before theauthority concerned by showing cause and thecourts should be reluctant to interfere withthe notice at that stage unless the notice isshown to have been issued palpably without anyauthority of law. ‘The purpose of issuing showcause notice is to afford opportunity ofhearing to the government servant and oncecause is shown it is open to the Government toconsider the matter in the light of the factsand submissions placed by the governmentservant and only thereafter a final decisionin the matter could be taken. Interference bythe court before that stage would bepremature, the High Court in our opinion oughtnot have interfered with the show causenotice.13.The Supreme Court vide judgment in Special Director v.Mohd. Ghulam Ghouse reported in (2004) 3 SCC 440 in para 5observed as follows:5. This Court in a large number of caseshas deprecated the practice of the HighCourts entertaining writ petitionsquestioning legality of the show-causenotices stalling enquiries as proposed andretarding investigative process to findactual facts with the participation and inthe presence of the parties. Unless the HighCourt is satisfied that the show-cause noticewas totally non est in the eye of the law forabsolute want of jurisdiction of theauthority to even investigate into facts,writ petitions should not be entertained forthe mere asking and as a matter of routine, https://hcservices.ecourts.gov.in/hcservices/ and the writ petitioner should invariably bedirected to respond to the show-cause noticeand take all stands highlighted in the writpetition. Whether the show-cause notice wasfounded on any legal premises, is ajurisdictional issue which can even be urgedby the recipient of the notice and suchissues also can be adjudicated by theauthority issuing the very notice initially,before the aggrieved could approach thecourt. Further, when the court passes aninterim order it should be careful to seethat the statutory functionaries speciallyand specifically constituted for the purposeare not denuded of powers and authority toinitially decide the matter and ensure thatultimate relief which may or may not befinally granted in the writ petition is notaccorded to the writ petitioner even at thethreshold by the interim protection granted.14.Further, the Supreme Court in the judgment relating toUnion of India v. Kunisetty Satyanarayana reported in (2006) 12SCC 28 in paras 13 to 16 held as follows:13. It is well settled by a series ofdecisions of this Court that ordinarily nowrit lies against a charge-sheet or show-cause notice vide Executive Engineer, BiharState Housing Board v. Ramesh Kumar Singh(1996) 1 SCC 327, Special Director v. Mohd.Ghulam Ghouse (2004) 3 SCC 440, Ulagappa v.Divisional Commr., Mysore (2001) 10 SCC 639,State of U.P. v. Brahm Datt Sharma(1987) 2SCC 179, etc.14. The reason why ordinarily a writpetition should not be entertained against amere show-cause notice or charge-sheet isthat at that stage the writ petition may beheld to be premature. A mere charge-sheet orshow-cause notice does not give rise to anycause of action, because it does not amountto an adverse order which affects the rightsof any party unless the same has been issuedby a person having no jurisdiction to do so.It is quite possible that after consideringthe reply to the show-cause notice or afterholding an enquiry the authority concernedmay drop the proceedings and/or hold thatthe charges are not established. It is wellsettled that a writ petition lies when someright of any party is infringed. A mere https://hcservices.ecourts.gov.in/hcservices/ show-cause notice or charge-sheet does notinfringe the right of anyone. It is onlywhen a final order imposing somepunishment or otherwise adversely affectinga party is passed, that the said party canbe said to have any grievance.15. Writ jurisdiction is discretionaryjurisdiction and hence such discretion underArticle 226 should not ordinarily beexercised by quashing a show-cause notice orcharge-sheet.16. No doubt, in some very rare andexceptional cases the High Court can quash acharge-sheet or show-cause notice if it isfound to be wholly without jurisdiction orfor some other reason if it is whollyillegal. However, ordinarily the High Courtshould not interfere in such a matter.15.In the light of the above, the writ petition will standdismissed. However, there will be no order as to costs.Consequently, connected miscellaneous petitions stand closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1.The Secretary to Government, State of Tamil Nadu, Commercial Taxes and Registration (H1) Dept., Fort St. George, Chennai-600 009.2.The Inspector General of Registration, Santhome High Road, Chennai-600 028.+1cc to Govt. Pleader Sr 19433AKR(CO)km/1.4.W.P.NO.5747 of 2010