J.Thangam v. The District Collector

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.12.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.20878 OF 2009andM.P.NO.1 of 2009J.Thangam.. Petitioner Vs.The District Collector,Cuddalore District,Cuddalore... RespondentThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ of certiorarito call for the records in Roc No.10878/2005 charge memo, dated26.10.2007 of the respondent and to quash the same.For Petitioner : Mr.V.SubbarayanFor Respondent : Mr.R.Neelakantan, GA ORDERHeard both sides. This Writ petition challenges the charge memoissued by the respondent dated 26.10.2007 framed under Rule 17(b) ofthe Tamil Nadu Civil Services (Discipline & Appeal) Rules. Thepetitioner had given her explanation to the charge memo on11.12.2007. An enquiry Officer was appointed and he had alsocompleted the enquiry. She claims that the Enquiry Officer foundthat the charges are not proved. But even before the DistrictCollector could take a decision, she had approached this court tochallenge the charge memo itself. 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 that it has been based on charges which are 8 yearsold. 3.This Court is unable to countenance any one of thecontentions raised by the petitioner. A counter affidavit, dated10.12.2009 was filed by the respondent, stating that the records https://hcservices.ecourts.gov.in/hcservices/ will have to be sent to the Government for passing appropriateorders and it is a joint enquiry along with others, who have retiredfrom service. 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 inquashing the show cause notice. When a show causenotice is issued to a government servant under astatutory provision calling upon him to showcause, ordinarily the government servant mustplace his case before the authority concerned byshowing cause and the courts should be reluctantto interfere with the notice at that stage unlessthe notice is shown to have been issued palpablywithout any authority of law. ‘The purpose ofissuing show cause notice is to affordopportunity of hearing to the government servantand once cause is shown it is open to theGovernment to consider the matter in the light ofthe facts and submissions placed by thegovernment servant and only thereafter a finaldecision in the matter could be taken.Interference by the court before that stage wouldbe premature, the High Court in our opinion oughtnot have interfered with the show 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 HighCourt is satisfied that the show-cause noticewas totally non est in the eye of the law forabsolute want of jurisdiction of the authorityto even investigate into facts, writ petitionsshould not be entertained for the mere askingand as a matter of routine, and the writpetitioner should invariably be directed torespond to the show-cause notice and take allstands highlighted in the writ petition. Whetherthe show-cause notice was founded on any legalpremises, is a jurisdictional issue which caneven be urged by the recipient of the notice and https://hcservices.ecourts.gov.in/hcservices/ such issues also can be adjudicated by theauthority issuing the very notice initially,before the aggrieved could approach the court.Further, when the court passes an interim orderit should be careful to see that the statutoryfunctionaries specially and specificallyconstituted for the purpose are not denuded ofpowers and authority to initially decide thematter and ensure that ultimate relief which mayor may not be finally granted in the writpetition is not accorded to the writ petitionereven at the threshold by the interim protectiongranted.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 nowrit lies against a charge-sheet or show-causenotice vide Executive Engineer, Bihar StateHousing Board v. Ramesh Kumar Singh (1996) 1SCC 327, Special Director v. Mohd. GhulamGhouse (2004) 3 SCC 440, Ulagappa v.Divisional Commr., Mysore (2001) 10 SCC 639,State of U.P. v. Brahm Datt Sharma(1987) 2 SCC179, 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-cause notice does not give rise to any causeof action, because it does not amount to anadverse order which affects the rights of anyparty unless the same has been issued by aperson having no jurisdiction to do so. It isquite possible that after considering thereply to the show-cause notice or afterholding an enquiry the authority concerned maydrop the proceedings and/or hold that thecharges are not established. It is wellsettled that a writ petition lies when someright of any party is infringed. A mere show-cause notice or charge-sheet does not infringethe right of anyone. It is only when a finalorder imposing some punishment or otherwiseadversely affecting a party is passed, thatthe said party can be said to have anygrievance.15. Writ jurisdiction is discretionary https://hcservices.ecourts.gov.in/hcservices/ jurisdiction 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 isfound to be wholly without jurisdiction or forsome other reason if it is wholly illegal.However, ordinarily the High Court should notinterfere in such a matter.7.In the decision in Dy. Registrar, Co-op. Societies v.Sachindra Nath Pandey reported in (1995) 3 SCC 134, the SupremeCourt held that the delay in framing charge cannot be a ground tointerfere with the charge memo and the relevant passage found inparagraph 7 of the said judgment is extracted below:7. On a perusal of charges, we find thatthe charges are very serious. We are,therefore, not inclined to close the matteronly on the ground that about 16 years haveelapsed since the date of commencement ofdisciplinary proceedings, more particularlywhen the appellant alone cannot be heldresponsible for this delay......8.Further, in Secretary to Government, Prohibition & ExciseDepartment v. L. Srinivasan reported in (1996) 3 SCC 157, theSupreme Court has held that the charge cannot be quashed only on theground of delay and any finding recorded by the Court will prejudicethe enquiry. The Supreme Court has also pulled up the member of theAdministrative Tribunal for having interfered with the charge memoas if 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 ofembezzlement 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 any https://hcservices.ecourts.gov.in/hcservices/ opinion 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, inour opinion, no hard-and-fast rule can be laiddown therefor. Each case must be determined onits own facts. The principles upon which aproceeding can be directed to be quashed on theground of delay are:(1) where by reason of the delay, the employercondoned the lapses on the part of theemployee;(2) where the delay caused prejudice to theemployee.Such a case of prejudice, however, is to bemade out by the employee before the inquiryofficer........14. Learned counsel appearing on behalf ofthe respondent, however, placed strong relianceon a decision of this Court in M.V. Bijlani v.Union of India(2006 (5) SCC 88). That case wasdecided on its peculiar facts. In that case,even the basic material on which departmentalproceedings could be initiated was absent. Thedepartmental proceedings were initiated after 6years and continued for a period of 7 years. In https://hcservices.ecourts.gov.in/hcservices/ that fact situation, it was held that theappellant therein was prejudiced.15. Bijlani, therefore, is not anauthority and, in fact, as would appear fromthe decision in P.D. Agrawal4 for theproposition that only on the ground of delaythe entire proceedings can be quashed withoutconsidering the other relevant factorstherefor.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 petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vvkToThe District Collector,Cuddalore District,Cuddalore.1 cc to Government Pleader, SR. 69960W.P.NO.20878 of 2009BS (CO)kk 5/1