K.R.Sowthamani v. The Director of Treasuries & Accounts

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.08.2011CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.9002 OF 2011AND M.P.NOS.1 AND 2 OF 2011K.R.Sowthamani ... PetitionerVS.The Director of Treasuries & Accounts Chennai – 600 015. ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of Writ of Certiorarified Mandamus, tocall for the records of the respondent in connection with theimpugned charge memo issued in Rc.No.26713/2009/Q3 dated 01.02.2011and second show cause notice in Rc.No.36587/2007/Q3 dated 28.08.2009and entire proceedings in pursuance of the charge memo issued inNa.Ka.No.17401/2001/Q.3-2 dated 27.01.2003 and quash the same anddirect the respondent herein to disburse the retirement, service andpensionary benefits with 12% interest on the delayed payments withintime fixed by this Hon'ble For Petitioner:Mr.M.RaviFor Respondent:Mr.S.GunasekaranGovernment Advocatefor Mr.M.C.SwamySpecial Government Pleader O R D E R The petitioner was initially recruited as Junior Assistantin 1980. She was promoted as Accountant in 1985. While so, she wasissued with a charge memo dated 27.01.2003 under Rule 17(b) of theTamil Nadu Civil Services (Discipline and Appeal) Rules (shortly "theRules") making three charges. An enquiry was conducted. The EnquiryOfficer held that the charges were not proved. But however, therespondent differed with the findings of the Enquiry Officer andissued a show cause notice dated 06.11.2007 directing the petitionerto give her explanation. https://hcservices.ecourts.gov.in/hcservices/

2.Thereafter, another charge memo dated 02.09.2008 wasissued under the Rule 17(b) of the Rules incorporating the samecharges that contained in the charge memo dated 27.01.2003. This timealso, an enquiry was conducted and the Enquiry Officer submitted hisreport dated 13.07.2009 holding that the first charge was proved andthe second charge was not proved. The respondent did not agree withthe findings of the Enquiry Officer. 3.Subsequently, the respondent issued another show causenotice dated 28.08.2009 directing the petitioner to show cause as towhy the respondent could not come to a different conclusion from thatof the Enquiry Officer. 4.While so, the petitioner reached the age of superannuationon 30.06.2010. The respondent passed an order dated 30.06.2010permitting the petitioner to retire from service without prejudice tothe disciplinary proceedings, which was pursuant to the charge memosdated 27.01.2003 and 02.09.2008. 5.In these circumstances, the respondent issued anothercharge memo dated 01.02.2011 under Rule 17(b) of the Rules on thesame charges. Challenging all these charge memos, the petitioner hasfiled the present writ petition. 6.The respondent has filed a counter affidavit refuting theallegations made by the petitioner. 7.Heard both sides. 8.The learned counsel for the petitioner submits that therespondent could not repeatedly issue charge memos for the samecharges and hold enquiries and harass the petitioner. He furthersubmits that the marriage of the petitioner took place long back andthe respondent could not took those matters and take disciplinaryaction. It is further submitted that the disciplinary action ispending for the past nine years on the same charges and in view ofthe pendency of the same, the proceedings are liable to be interferedwith. 9.On the other hand, the learned Government Advocate seeksto sustain the impugned orders, based on the counter affidavit filedby the respondent. 10.I have considered the submissions made on either side andperused the materials available on record. 11.The charges made in the charge memo dated 27.01.2003 isextracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "Fw;wr;rhl;L vz; 1jpUkjp nf/Mh;/brsjhkzp. fzf;fh;. khtl;;lf; fUt{yk;. jh;kg[hpMfpa eP';fs; Vw;fdnt jpUkzkhd jpU/o/ Rghco; Kd;dhs; njh;t[ epiyfzf;fh; rhh;epiyf; fUt{yk; jh;kg[hp jw;nghJ njh;t[epiy fzf;fh;.khtl;;lf; fUt{yk;. jpz;Lf;fy; mth;fspd; rl;l hPjpahd kidtp jpUkjpRrPyh capUld; ,Uf;ifapy; md;dhUld; jfhj cwt[ itj;J FLk;gk;elj;jp. cjah kw;Wk; epyh vd;w ,U bgz; FHe;ijfis bgw;Ws;sjd;K:yk;. muRg;gzpahsh; ed;dlj;ij tpjpfs; 1973 tpjp 19(2) I kPwpa[s;sPh;fs;/Fw;wr;rhl;L vz; 2eP';fs; c';fsJ jtwhd elj;ij kw;Wk; bewp jtwpa bray; K:yk;jh';fs; tfpf;Fk; muRg;gzp. fUt{y fzf;Fj; Jiw kw;Wk; muRf;Fk;bgUk; fs';fj;ij Vw;gLj;jpa[s;sPh;fs;/ Fw;wr;rhl;L vz; 3eP';fs; jpU/rghgjp vd;gtiu Kiwg;go jpUkzk; bra;Js;sPh;fs;/Mdhy; j';fs; gzpg; gjpntl;oy; fzth; bgah; Re;ju tujd; vd jtwhdbgaiu gjpt[ bra;jjd; thapyhf muRf;F jtwhd tptu';fis bfhLj;jJld;muR CHpah; vd;fpw jFjpia ,He;Js;sPh;fs;/" The Enquiry Officer held that the charges were not established. Therespondent disagreed with the findings of the Enquiry Officer andissued a show cause notice dated 06.11.2007. The respondent ought tohave proceeded further and passed final orders. On the other hand,the respondent issued another charge memo dated 02.09.2008 making thesame and similar charges. The charges made in the charge memo dated02.09.2008 are as follows:"Fw;wr;rhl;L vz; 1jh;kg[hp khtl;lf; fUt{yj;jpy; fzf;fuhfg; gzpg[hpa[k; jpUkjpnf/Mh;/brsjhkzp. mth;fs; rl;lg;g{h;tkhd jpUkzkhf Vw;Wf;bfhs;sg;glKoahj jpUkzk; vd;W bjhpe;jpUe;Jk;. jpU Re;juuhftd;vd;gtUld; rl;lj;jpw;F g[wk;ghd xGf;ff;nflhd (moral turpitude)thH;f;if elj;jpa[s;sjhy;. muRg;gzpahsh; vd;w jFjpia ,Hg;gJld; 1973.jkpH;ehL muRg;gzpahsh; elj;ij tpjpfspy;. tpjp 19(2) I kPwpa[s;sPh;;/ Fw;wr;rhl;L vz; 2jpU/Re;juuhftDld; Md jpUkzk; rl;lg;g{h;tkhd jpUkzk; my;yvd;w epiyapy;. mtuJ bgaiu egh; jdJ gzpg; gjpntl;oy; fzth; vdgjpt[ bra;jjd; K:yk; egh; muRf;F jtwhd tptu';fis mspj;J. jkpH;ehLmuRg;gzpahsh; elj;ij tpjp 20(1) I kPwpa[s;sPh;/"This time, the Enquiry Officer held the first charge as proved andthe second charge as not proved, vide report dated 13.07.2009. The https://hcservices.ecourts.gov.in/hcservices/ respondent disagreed with the findings of the Enquiry Officer andissued the show cause notice dated 28.08.2009. 12.While so, the petitioner reached the age ofsuperannuation on 30.06.2010 and was permitted to retire fromservice, without prejudice to the disciplinary proceedings. In thesecircumstances, the respondent issued another charge memo dated01.02.2011 making the same charges and the charges, which reads asfollows:"Charge No.1. Tmt. K.R.Sowthamani by declaringThiru D.Subash formerly Accountant of Sub TreasuryDharmapuri as her husband and father of her twochildren Selvi S.Nila and Selvi S.Udaya has developedillegal intimacy with Thiru D.Subash and thus she hasviolated Rule 19(2) of Tamil Nadu Government ServantsConduct Rules, 1973. Charge No.2. She has falsely declared that shehas married on Thiru D.Subash a thread merchantbelonging to Sevapet in Salem District and got twochildren S.Nila and S.Udaya through him when in factsuch person is fictitious one. Charge No.3. She has falsely declared in herservice register that the name of her husband as ThiruR.Sundara Raghavan when in fact she did not marry himlegally. Thur she has violated Rule 20(1) of TamilNadu Government Servants Conduct Rule 1973."13.From the above narrated facts, it is clear that therespondent could seem to have decided to issue one charge memo afteranother charge memo, until the Enquiry Officer records a finding ofguilt. There is no other reason for issuing three charge memos on thesame and similar charges. In this context, it is relevant to notethat the Honourable Supreme Court has held in the following twodecisions that the Department could not issue second charge memo,when the first charge memo resulted in the findings that the chargeswere not established. (I)KANAILAL BERA VS. UNION OF INDIA [2007 (11) SCC 517](II)K.R. DEB VS. COLLECTOR OF CENTRAL EXCISE, SHIHLLONG[1971 (2) SCC 102]14.If the respondent disagreed with the findings, they couldhave proceeded further after getting explanation from the petitioner.On the other hand, the respondent is not correct in resorting to https://hcservices.ecourts.gov.in/hcservices/ issue second charge memo dated 02.09.2008. Here again, the EnquiryOfficer gave a finding that one of the charges was established. Inthese circumstances, as a third time, the charge memo dated01.02.2011 was issued, making the same charges. This is notpermissible under law. 15.In these circumstances, I am inclined to quash theimpugned orders and accordingly, the impugned orders are quashed. Therespondent is directed to settle the terminal benefits to thepetitioner within a period of eight weeks from the date of receipt ofa copy of this order. 16.With the above observation and direction, the writpetition is disposed of. No costs. Consequently, connectedmiscellaneous petitions are closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTKToThe Director of Treasuries & Accounts Chennai – 600 015.1 cc To The Government Pleader, SR.513551 CC to M/s.M.Ravi, Advocate, S.R.No.51165W.P.NO.9002 OF 2011SAI(CO)SRA(6/9/2011)