High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 18.08.2009CORAMTHE HON'BLE MR. JUSTICE M.M.SUNDRESHW.P.NoS.15402 & 23780 of 2008andM.P.No.1 of 2008 in W.P.No.15402M.P.No.1 of 208 in W.P.No.23780N. Liyakath Ali Khan, ... Petitioner in both the writ petitions.- Vs -1. The State of Tamilnadu, Represented by its Secretary, Labour and Employment (E) Department, Fort St. George, Chennai – 600 009.2. Commissioner of Labour, Teynampet, Chennai – 600 006.... Respondents in W.P.No.15402/20081. The State of Tamilnadu, Represented by its Secretary, Labour and Employment (E) Department, Fort St. George, Chennai – 600 009.2. Tribunal for Disciplinary Proceedings 5/1845/A, Trichy Road, Market Committee Complex, Ramanathapuram, Coimbatore. ... Respondents in W.P.No.23780/2008Prayer : Petition in W.P.No.15402 of 2008 is filed under Article 226of the Constitution of India for issuance of a Writ of Mandamusdirecting the respondents to pass appropriate orders to relieve thepetitioner from service of the respondents and to grant all monetoryretirement benefits without prejudice to their rights to initiateaction if so necessary against the petitioner under the pension rulesexpeditiously within a time frame as may be fixed.Petition in W.P.No.23780 of 2008 is filed under Article 226 ofthe constitution of India for issuance a Writ of CertiorarifiedMandamus directing to call for the records of the 2nd respondent made https://hcservices.ecourts.gov.in/hcservices/ in proceedings No.RC.No.502/2008/A1 dated 11.07.08 and quash the sameand consequently direct the respondent to permit the petitioner toretire from the date of his superannuation on 31.12.2006 withpension, gratuity all other attendant monetary benefits withinterest. For Petitioner in both Wps. : Mr.S.Silambanan, Senior Counsel for M/s S.Silambanan Associates For Respondents in both Wps. : Mrs. Lita Srinivasan Government Advocate Respondent 1 & 2 ORDERThe petitioner herein joined as the Labour Officer on18.05.1985. Thereafter, he was promoted as Assistant Commissioner oflabour in the year 1990. Further, he was promoted as the DeputyCommissioner on 02.06.1997. By the proceedings dated 28.12.2006 and29.12.2006, the petitioner was kept under suspension, thereby notallowed to retire eventhough he attained superannuation on31.12.2006. 2.The petitioner has filed a Writ Petition in W.P.No.448 of2007 challenging the order of suspension, which was rejected bylearned single Judge and confirmed by the Division Bench of thisCourt. The Division Bench, while disposing of the Writ Appeal inW.A.No.752/07 on 08.06.2007, has directed the respondents tocomplete the enquiry within a period of six months. 3.Thereafter the petitioner gave representations on23.02.2008 and 03.03.2008 requesting the respondents for the copy ofthe charges and the reasons of his suspension. The petitioner filedan application for contempt is Contempt Petition No.299/08 contendingthat the order passed by the Division Bench in Writ Appeal 752/2007dated 08.06.2007 was violated inasmuch as the proceedings have notbeen completed. By order dated 17.04.2008, the said contemptpetition was closed, directing the respondents to "communicate theCharge Memo" Thereafter, the 1st respondent has passed G.O(D)No191 Labour and Employment (E) Department dated 27.05.2008 statingthat the enquiry the two charges were dropped. In pursuance of thesame, charges were framed by the 2nd respondent in W.P.23780/2008 andwere communicated the petitioner.4.Thereafter the Writ petitioner filed W.P.No.15402 of 2008seeking the relief of mandamus, directing the respondents to relievehim and take action on the Pension Rules. The petitioner has alsofiled a Writ petition subsequently in W.P.No.23780 of 2008 to quashwith the charge memo dated 11.07.2008 and for further direction topermit the petitioner to retire from the date 13.01.2006, which was https://hcservices.ecourts.gov.in/hcservices/ the date of superannuation, with all consequential benefits. Thepetitioner also filed M.P.No.1 of 2008 in W.P.No.15402 of 2008seeking medical benefits.5.The petitioner has filed another petition in W.P.No.13326of 2009 seeking a copy of the basic complaint from the respondent.The said Writ Petition was disposed of on 16.07.2009 this Court,directing the respondents to consider the representation of thepetitioner within a period of 4 weeks from the date of receipt of acopy of the said order.6.The learned Senior Counsel for the petitioner submittedthat the petitioner has been made to run from pillar to post and hewas also made to file a series of writ petitions due to the inactionon the part of the respondents. The learned Senior Counsel furthersubmitted that inspite of orders passed by the Division Bench, atthat point of time, the petitioner was not aware of the chargesagainst him. In fact, the charges have been subsequently framed.7.The Learned Senior Counsel further submitted that areading of the charges, would show that all of them are quasijudicial to the functions discharged by the petitioner and in as muchas the petitioner was discharging quasi judicial function, the samecannot be the basis for initiating department proceedings. TheLearned Senior Counsel further submitted that the reasonings assignedfor coming to the decision are also quasi judicial and further thecorrectness or otherwise of such reasonings cannot form the basis forthe departmental enquiry. It is also submitted that inasmuch as noappeal has been preferred against any of the award passed by thepetitioner, the respondents cannot presume anything against thepetitioner. Therefore, it has to be taken that all the decisionsare rendered correctly, in the absence of any challenge by any one ofparties to the proceedings. 8.The Learned Senior Counsel also relied upon the judgementreported in AIR 2001 Supreme Court 2788 P.C. Joshi Vs. State of U.P.And submitted that the mere possibility to arrive at a differentconclusion on the given set of facts, cannot be ground to take actionagainst him. The learned Senior Counsel also submitted that the 2ndrespondent in W.P.No.23780 of 2008 has not obtained permission toissue the charge memo, since the said authority being the enquiryofficer, has to perform as per Rules.9.The learned Senior Counsel also submitted that thereasoning assigned by the respondents for rejecting the claiming ofthe petitioner who is admittedly heart patient, requiring a surgeryon the ground that the petitioner is not full time permanentemployee, is not correct. https://hcservices.ecourts.gov.in/hcservices/

10.The learned Senior Counsel submitted that the even underthe Pension Rules, the petitioner is entitled to get the medicalreimbursement. Therefore the learned Senior Counsel submitted thatthe denial of the request of the writ petitioner is unsustainable inlaw and on facts.11.Per contra, the learned Government Advocate appearing forthe respondents submitted that the delay in completing the proceedingis only due to the attitude of the petitioner. According to thelearned Government Advocate, when the charges were framed as early ason 11.07.2008. It is the writ petitioner who challenged the same.Instead of going through the enquiry and thereafter asking for therequired documents, which is relied upon the department, thePetitioner has come to the court seeking documents at the threshholdstage. The learned Government Advocate submitted that the chargememo has to be framed in according the Division Bench direction sincethe Division Bench only stated that the enquiry has to be completedwithin 6 months, since the whole of the proceedings were pending withthe vigilance and Anti Corruption and therefore, the directions hadbeen complied with. Therefore, the learned Government Advocatesubmitted that the direction of the Division Bench in Writ Appeal1550 of 2007 has been promptly complied with and that is the reasonwhy the contempt petition was closed. 12.The learned Government Advocate further submitted that thesecond respondent in W.P.No.23780 of 2008 is the competent authorityto frame charge memo and conduct disciplinary proceedings. As far asRule 8A(1) of the Tamil Nadu Civil Services(DPT) Rules, 1955, isconcerned, it provides that when there was charges of corruption,coupled with other charges, then the second respondent is thecompetent authority to frame the charges and proceed thereafter. 13.The Learned Government Advocate further submitted in asmuchas the charge framed against the petitioner is one of corruption, thejudgement relied upon by the learned Senior Counsel reported in AIR2001 Supre Court 2788 is not applicable to that the facts of thepresent case. Similarly the decision relied upon by learned SeniorCounsel, reported in 2008 (8) SCC 236 State of Uttaranchal Vs.Kharak Singh is also not applicable, since in the present the case,Rule 8 A(1) provides for the charges to be framed by the 2ndrespondent.14. Insofar as the request of the writ petitioner regardingmedical reimbursement is concerned, the learned Government Advocatesubmitted that the said request has been rejected rightly by therespondents, in view of the Government Order passed in G.O.No.18Finance (Allowance-I) Department, dated 09.01.1992 since thepetitioner is not a full time regular (time scale) employee.Further, inasmuch as the petitioner has superannuated and he was not https://hcservices.ecourts.gov.in/hcservices/ allowed to retire only for continuation of the proceedings, thequestion of payment of medical expenses does not arise and hence thelearned Government Advocate sought for dismissal of the writpetitions.15.I have heard the submissions of the learned counsel foreitherside.16.With respect to the alleged corruption in discharge of theduty by the writ petitioner, the mere non filing an appeal alonecannot be ground to quash the charge memo at the present stage. Thatfact has to be considered by the 2nd respondent at the time ofdeciding the departmental enquiry and thereafter it is for thedisplinary authority to decide the same taking into considerationthe above said contention. In the present case, the charges havebeen framed and about 42 witnesses have been shown in the chargememo, The respondents also marked about 57 documents. The abovesaid details have been enclosed along with the charge memo and hadbeen mentioned in charge memo furnished to the petitioner. Thecharge memo was issued in pursuance of the vigilance enquiry, afterhaving taken into consideration the materials, coupled with thestatement of the witnesses mentioned therein and hence it cannot bequashed at this stage. It is always opon for the petitioner tosubstantiate his case before the 2nd respondent in W.P.No.23780/2008.17.Insofar as contention raised by the learned counselregarding pendency of charge memo dated 11.07.2008 is concerned,as stated by learned Government Advocate Rule 8a(i) of the Tamil NaduCivil services (DPT) 1955 specifically provides for such acontingency. Therefore, when the Rule specifically provides providesfor framing of charges by the enquiry authority, the same cannot beannulled, unless the said Rule is declared as ultra – vires.18.Therefore this Court is of the opinion that the judgmentrelied upon by learned Senior Counsel reported 2008(8) SCC 236(supra) is not applicable to the present case on hand.19.In so far as the decision relied upon by the learned SeniorCounsel for the petitioner in reported the AIR 2001 supreme court2788 is concerned, the same has to be considered after the finalorder will passed by the disciplinary authority in pursuant to theenquiry conducted by the enquiry officer. Therefore, the saidjudgment has to be considered at the appropriate stage and now thesame cannot be taken into account to set aside the charge memo, moreso when the charge memo also refers to other charges on the ground ofcorruption as well. In respect of the request made by the writpetition for the medical reimbursement towards the treatment forheart surgery is concerned this court opinion that the same has to beconsidered by the respondents in the light of the pension rules. https://hcservices.ecourts.gov.in/hcservices/

20.Therefore, taking into consideration the above said factualand legal, this court is of the opinion that it is open for the writpetitioner to co-operate in the enquiry initiated by the secondrespondent in W.P.No.23780/2008. In fact the main grievance of thelearned senior counsel for the petitioner is that inspite of bestefforts of the writ petitioner, no finality is arrived at.21.In respect of the request made by the writ petitioner forthe medical reimbursement towards the treatment for heart surgery isconcerned, this Court is of the opinion that the same has to beconsidered by the respondents in the light of the Pension Rules. Nodoubt, as submitted by learned Government Advocate, the requestcannot be considered by treating him as a full regular scale ofemployee, in view under G.O.18, Finance (Allowances – I) dated 9theJanuary 1992. Admittedly, the petitioner has superannuated. Hehas not been allowed to the retire only for purpose of the pendencyof disciplinary proceeding. 22.Therefore, while rejecting the contention for treating thepetitioner as regular full time permanent employee, this court is ofthe opinion the that respondents will have to consider the request ofthe petitioner for the medical reimbursement by treating him as apetitioner and accordingly, the writ petitioner is directed to give arepresentation to the respondents within period of four months fromhe date of receipt of a copy of this order and thereafter, therespondents are directed to consider to the said request of the writpetitioner under the Pension Rules within a period of eight weeksthereafter. 23.Insofar as the enquiry initiated by the 2nd respondent inW.P.No.23780 of 2008 concerned the said enquiry will have to becompleted within period of five months from the date of receipt of acopy of this order. 24. Hence with the above observations the writ petitions aredisposed of no costs. It is made clear that the 2nd respondent inW.P.No.23780 of 2008 shall proceed with the enquiry and give itsfinding without reference to the observations made by this Court inthe above said writ petitions. The Miscellaneous Petitions areclosed.Sd/Asst.Registrar/true copy/Sub Asst.Registraradl https://hcservices.ecourts.gov.in/hcservices/ To1. The State of Tamilnadu, Represented by its Secretary, Labour and Employment (E) Department, Fort St. George, Chennai – 600 009.2. Commissioner of Labour, Teynampet,Chennai – 600 006.3. Tribunal for Disciplinary Proceedings 5/1845/A, Trichy Road, Market Committee Complex, Ramanathapuram, Coimbatore.+2 CC to Mr.S.Silambanan Advocate Sr.39709+1 CC ti Govt. Pleader Sr.39797 W.P.Nos.15402 & 23780 of 2008AKR (CO)BMD 09/09/2009