L.S.D.Rajendran v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.11.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.12593 OF 2009andM.P.NOs.1 and 2 OF 2009L.S.D.Rajendran.. PetitionerVs.

State of Tamil Nadu, rep. By the Principal Secretary, Labour and Employment Department, Fort St. George, Chennai-9.

The Commissioner of Labour, DMS Compound, Teynampet, Chennani-6.

The Joint Commissioner of Labour, 8, Kajamian Street, Trichy-20. .. RespondentsThis writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the entire records pertainingto the charges framed against the petitioner by the secondrespondent made in Memo No.F1/50891/03-1 dated 03.02.2009, to quashthe same and to direct the first respondent to put the petitionerin service as if no charges were framed against him. For Petitioner : Mr.S.RamachandranFor Respondents: Mr.R.Neelakantan, GAORDERHeard both sides. This Writ petition challenges the chargememo issued by the second respondent dated 03.02.2009 framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal)Rules. The charge against the petitioner was that he was caughtred-handed for having received bribes for passing a favourable https://hcservices.ecourts.gov.in/hcservices/ order under the Minimum Wages Act. 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 no application of mind. There was a delay of 5-1/2years after his arrest and that as a minimum wages authority, hewas protected under the Judges Protection Act. 3. This Court is unable to countenance any one of thecontentions raised by the petitioner.

The Supreme Court in its decision in State of U.P. v. BrahmDatt Sharma reported in (1987) 2 SCC 179 dealt with the power ofthe Court in dealing with a charge memo at the show cause stage andthe following passage found in paragraph 9 will make the positionclear: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 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 for https://hcservices.ecourts.gov.in/hcservices/ absolute 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 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 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 after https://hcservices.ecourts.gov.in/hcservices/ holding 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 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 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......

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: https://hcservices.ecourts.gov.in/hcservices/

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 ofthe case is pending. The Tribunal had setaside the departmental enquiry and quashed thecharge on the 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 expressingany opinion on merit or recording any of thecontentions raised by the counsel on eitherside. 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; https://hcservices.ecourts.gov.in/hcservices/ (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. Inthat 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.

Further a division bench of this Court has held in 2008 (3)MLJ 877 (T.K.K. Tharmar Vs. Registrar, CAT, Chennai and others)that even an action of a quasi judicial authority can be subjectedto disciplinary action on his conduct in passing orders forextraneous reasons.

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. Registrar https://hcservices.ecourts.gov.in/hcservices/ vvkTo1.The Principal Secretary, Labour and Employment Department, Fort St. George, Chennai-9.2.The Commissioner of Labour, DMS Compound, Teynampet, Chennani-6.3.The Joint Commissioner of Labour, 8, Kajamian Street, Trichy-20. + 1 CC to Government Pleader, High Court, Madras SR NO 59358/09 W.P.NO.12593 OF 2009tm(co)pmk.13.11.2009.