R.Chandran v. The Commissioner, Salem City Municipal Corporation

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 03.11.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.11312 OF 2009andM.P.NO.1 OF 2009R.Chandran.. PetitionerVs.

The Commissioner, Salem City Municipal Corporation, Salem.

The Health Officer, Salem City Municipal Corporation, Salem... RespondentsThis writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarito call for the records relating to the charge memo dated 28.8.2008in Roc No.C4/14801/2008 issued against the petitioner by the firstrespondent and to quash the same. For Petitioner : Mr.S.KalyanaramanFor Respondents: No appearance- - - - ORDERThis Writ petition challenges the charge memo issued by thefirst respondent dated 28.08.2008 framed under Rule 8(2) of the Tamil Nadu Coimbatore Corporation Service (Discipline & Appeal)Rules as applicable to the first respondent Corporation. 2. The grievance of the petitioner is that the Charge Memois illegal and is liable to be quashed on the ground that it wasissued with a closed mind since conclusions were reached before hisexplanation and that there was a delay of 5 years. In respect ofthe first contention reliance was placed upon the decision of the Calcutta High Court reported in 1980 AISLJ 494.

This Court is unable to countenance any one of thecontentions raised by the petitioner. A perusal of the memo showsthat there was no predetermination. Charges cannot be quashed https://hcservices.ecourts.gov.in/hcservices/ solely on the ground of delay.

The Supreme Court in its decision in State of U.P. v.Brahm Datt Sharma reported in (1987) 2 SCC 179 dealt with the powerof the Court in dealing with a charge memo at the show cause stageand the following passage found in paragraph 9 will make theposition 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 him toshow cause, ordinarily the government servantmust place his case before the authorityconcerned by showing cause and the courts shouldbe reluctant to interfere with the notice atthat stage unless the notice is shown to havebeen issued palpably without any authority oflaw. ‘The purpose of issuing show cause noticeis to afford opportunity of hearing to thegovernment servant and once cause is shown it isopen to the Government to consider the matter inthe light of the facts and submissions placed bythe government servant and only thereafter afinal decision in the matter could be taken. Interference by the court before that stagewould be premature, the High Court in ouropinion ought not have interfered with the showcause notice.

The Supreme Court vide judgment in Special Director v.Mohd. Ghulam Ghouse reported in (2004) 3 SCC 440 in para 5 observedas follows: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 can https://hcservices.ecourts.gov.in/hcservices/ even be urged by the recipient of the notice andsuch 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.

Further, the Supreme Court in the judgment relating to Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC28 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-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 any https://hcservices.ecourts.gov.in/hcservices/ grievance.15. Writ jurisdiction is discretionaryjurisdiction and hence such discretion under Article 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.

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 findthat the 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......

Further, in Secretary to Government, Prohibition & ExciseDepartment v. L. Srinivasan reported in (1996) 3 SCC 157, the Supreme Court has held that the charge cannot be quashed only onthe ground of delay and any finding recorded by the Court willprejudice the enquiry. The Supreme Court has also pulled up themember of the Administrative Tribunal for having interfered withthe charge memo as if the Tribunal is the appellate authority. Thefollowing passage found in paragraph 3 of the said judgment makesthe position very clear:3.....We are informed that charge-sheet was laid for prosecution for theoffences of embezzlement and fabrication offalse records etc. and that the offences andthe trial of the case is pending. The Tribunalhad set aside the departmental enquiry andquashed the charge on the ground of delay ininitiation of disciplinary proceedings. In thenature of the charges, it would take a longtime to detect embezzlement and fabrication offalse records which should be done in secrecy. https://hcservices.ecourts.gov.in/hcservices/ It is not necessary to go into the merits andrecord any finding on the charge levelledagainst the charged officer since any findingrecorded by this Court would gravely prejudicethe case of the parties at the enquiry andalso at the trial. Therefore, we desist fromexpressing any opinion on merit or recordingany of the contentions raised by the counselon either side. Suffice it to state that the Administrative 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 dehorsthe limitation of judicial review. This is onesuch instance where a member had exceeded hispower of judicial review in quashing thesuspension order and charges even at thethreshold. We are coming across such ordersfrequently putting heavy pressure on this Court to examine each case in detail. It ishigh time that it is remedied.

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 inparagraphs 12, 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 behalfof the respondent, however, placed strongreliance on a decision of this Court in M.V.Bijlani v. Union of India(2006 (5) SCC 88). https://hcservices.ecourts.gov.in/hcservices/ That case was decided on its peculiar facts. Inthat case, 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, itwas held that the appellant therein wasprejudiced.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.

However, if the time granted by the authorities insubmitting the explanation had already expired, the petitioner isgiven two more weeks from the date of receipt of a copy of thisorder to submit his explanation and participate in the enquiry. Sd/-Asst. Registrar/true copy/ Sub Asst. RegistrarvvkTo1.The Commissioner, Salem City Municipal Corporation, Salem. 2. The Health Officer, Salem City Municipal Corporation, Salem.+1 cc to Mr.S.Kalyanaraman, Advocate, SR.No.58436 W.P.NO.11312 OF 2009SAI {CO}TP/13.11.2009.