V.Andiappan v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 03.01.2008CORAM :THE HONOURABLE MR.JUSTICE V.DHANAPALANW.P.No.34936 of 2006V.Andiappan... Petitionervs.1.State of Tamil Nadu rep. bythe Secretary to Government,Rural Development and LocalAdministration Department,Fort St. George, Madras – 9.2.The Director of Town Panchayat,Kuralagam, Madras – 108.3.The District Collector,Salem District.... RespondentsWrit Petition came to be numbered by transfer of O.A.No.378 of 1996on the file of the Tamil Nadu Administrative Tribunal praying to quashthe charge memo issued by the second respondent in Rc.No.20381/95-A2dated 22.11.1995 under rule 17(b) of the CCA Rules. For Petitioner:Mr.S.VadiveluFor Respondents:Mr.L.S.M.Hasan Fizal,Government AdvocateO R D E RThis writ petition has been filed challenging the charge memoissued by the second respondent in Rc.No.20381/95-A2 dated 22.11.1995under rule 17(b) of the CCA Rules. 2.Brief facts leading to the filing of the writ petition are, asunder:(a)The petitioner, who was working as an ExecutiveOfficer (Selection Grade), Senthamangalam Town Panchayat,was issued a charge memo in Proc.Rc.No.61217/92-P3 dated01.07.1992 under Rule 17(a) of the Tamil Nadu Civil Services(Classification, Control and Appeal) Rules challenging someirregularities in connection with the water supply. He wasplaced under suspension on 25.08.1992 on the ground ofcontemplated enquiry into grave charges. Challenging theorder of suspension, the petitioner filed an OriginalApplication before the Tamil Nadu Administrative Tribunal in https://hcservices.ecourts.gov.in/hcservices/ O.A.No.4315 of 1992 and the Tribunal stayed the order ofsuspension; subsequently, the petitioner was reinstated inservice in Rc.No.61217/92-P3 dated 02.12.1992 as ExecutiveOfficer, Town Panchayat and posted to Maichery TownPanchayat and he joined duty on 08.12.1992.(b)Since the petitioner approached the Tribunal, theDistrict Collector, Salem as a vindictive measure issued aCharge Memo in Rc.No.61217/92/(P3) dated 18.11.1992 underRule 17(b) of the Tamil Nadu Civil Services (Classification,Control and Appeal) Rules, containing the 10 chargesspecified in charge memo dated 01.07.1992 under Rule 17(a)and 13 other fresh charges. The petitioner submitted hisexplanation on 07.07.1995 denying the charges in the chargememo dated 18.11.1992 and also stating that all auditobjections have been settled and that the charges againsthim may be dropped. (c)Thereafter, to the shock and surprise of thepetitioner, the Director of Town Panchayat, the secondrespondent issued the charge memo in Rc.No.20381/95-A2 dated22.11.1995 under Rule 17(b) of the CCA Rules against thepetitioner containing the same charges which were specifiedin the charge memo dated 18.11.1992. Aggrieved by thesecond charge memo dated 22.11.1995, the petitioner has comeup with the present writ petition.3.In the reply affidavit filed by the respondents, it is statedas follows:(i)The Salem District Collector had issued a ChargeMemo in Roc.No.61217/92/F3 dated 18.11.1992 under Rule 17(b)of the Tamil Nadu Civil Services Rules. On obtaining thedelinquent's explanation, the Assistant Director of TownPanchayats, Salem requested in his letter in Roc.No.61217/92dated 21.07.1995 to appoint enquiry officer to enquire intothis Disciplinary case. On verification, it was found thatthe charge memo was signed by the District Town PanchayatOfficer, Salem on obtaining the District Collector'sapproval.(ii)Thereafter, the Directorate issued a Charge Memoin Roc.No.20381/95/B2 dated 22.11.1995 incorporating thecharges framed by the Salem District Collector in theearlier two charges in Roc.No.61217/92/P3 dated 01.07.1992(under 17(a) of the C.C.A. Rules) and in Roc.No.61217/92/P3dated 18.11.1992 (under 17(b) of C.C.A. Rules). Theexplanation for the above charge memo has been obtained fromthe delinquent officer on 14.12.1995 along with thequestionnaire form. The Salem Zone, Assistant Director ofTown Panchayats has been appointed as enquiry officer videproceedings Rc.No.20381/95/B2 dated 25.01.1996. Finally, theDirectorate has issued an order in Roc.No.20381/95/B2 dated23.03.1996 cancelling the earlier charge memos issued by theDistrict Collector, Salem. https://hcservices.ecourts.gov.in/hcservices/

4.Heard Mr.S.Vadivelu, learned counsel for the petitioner andMr.L.S.M.Hasan Fizal, learned Government Advocate for the respondents.5.Learned counsel for the petitioner has contended that therespondents have not taken any action pursuant to the explanationsubmitted by the petitioner on 07.07.1995 for the charge memos issued bythe District Collector, Salem on 18.11.1992; no oral enquiry wasconducted and no personal hearing was conducted as required under Rule17(b) of the C.C.A. Rules. Further, no reason has been assigned in thethird charge memo dated 22.11.1995 under Rule 17(b) of the CCA Rules, asto why a fresh charge memo was issued by the second respondent. 6. Learned counsel for the petitioner further contended thatsince the charges contained in the charge memos dated 18.11.1992 and22.11.1995 are identical, unless reasons are given for the issue of thefresh charge memo dated 22.11.1995, the charge memo will suffer from theinfirmity of arbitrariness. It is also the contention of the learnedcounsel for the petitioner that three charge memos have been issued bythe respondent and the charge memo dated 22.11.1995 does not supersedethe charge memo issued by the Collector dated 18.11.1992. 7.Learned counsel for the petitioner, in support of hiscontentions has relied on a Division Bench decision of this Courtreported in 2005 (5) CTC 380 in the case of A.Obaidhullah vs. The Stateof Tamil Nadu, Chennai – 9 and another, wherein it is held as under:"10.... We have already mentioned that the secondcharge memo dated 05.12.1990 does not contain forcancellation of first charge memo dated 29.08.1978. It isnot the case of the department that new materials have beengathered and based on the same, the second charge memo dated05.12.1990 came to be issued. On the other hand, the verysame charge based on the report of the Commission wasreiterated in the fresh charge memo dated 05.12.1990. Thetribunal has overlooked the issuance of the second chargememo superseding the earlier charge memo without adequatereason which is fatal to the disciplinary proceedings. It isuseful to refer a Constitution Bench judgment of the SupremeCourt in K.R.Deb vs. Collector of Excise, Shillong, 1971 (2)SCC 102. The main contention before the Supreme Court wasthat in the presence of two earlier reports, a third enquiryis not contemplated under Rule 15 of Central Civil Services(Classification, Control and Appeal) Rules, 1957. Afterconsidering the said Rule 15, the Supreme Court has held :(para 12)"12.It seems to us that Rule 15, on the face ofit, really provides for one inquiry but it may bepossible if in a particular case there has been noproper enquiry because some serious defect has creptinto the inquiry or some important witnesses were notavailable at the time of the inquiry or were notexamined for some other reason, the DisciplinaryAuthority may ask the Inquiry Officer to record https://hcservices.ecourts.gov.in/hcservices/ further evidence. But there is no provision in Rule15 for completely setting aside previous inquiries onthe ground that the report of the Inquiring Officer orOfficers does not appeal to the DisciplinaryAuthority. The Disciplinary Authority has enoughpowers to reconsider the evidence itself and come toits own conclusion under Rule 9."In the light of the principles laid down in the SupremeCourt decision, in the absence of any explanation for notpursuing the first charge memo and issuance of fresh chargememo after a period of 12 years cannot be sustained. Thoughthis objection was raised before the Tribunal, the same wasnot properly appreciated. Though the Tribunal referred tothe decision in State of Andhra Pradesh vs. N.Radhakrishnan,JT 1998 (3) SC 123, as rightly pointed out by the learnedcounsel for the petitioner, the Tribunal has overlooked theconclusion of the Supreme Court that the delinquent canalways challenge the second memo and rather even the firstone on the ground of delay which he did. In other words, thepetitioner did what the Apex Court has opined in the abovesentence and he challenged in O.A.No.5664/1992 the issuanceof the second charge memo dated 05.12.1990. We are satisfiedthat the Tribunal has made the above observation, namely, "nomeaning in the applicant's contention" without application inmind. It is also relevant to note that exercising statutorypower in the statutory provision in General Rule 39(d) theauthorities promoted the petitioner based on the overallservice record. In the light of the above discussion, weaccept the first contention raised by Mr.Srinivasaraghavan."8.In response, learned counsel for the respondents has submittedthat the Salem District Collector had issued a Charge Memo inRoc.No.61217/92/F3 dated 18.11.1992 under Rule 17(b) of the Tamil NaduCivil Services Rules; on obtaining the delinquent's explanation, theAssistant Director of Town Panchayats, Salem requested in his letter inRoc.No.61217/92 dated 21.07.1995 to appoint enquiry officer to enquireinto this Disciplinary case; on verification, it was found that thecharge memo was signed by the District Town Panchayat Officer, Salem onobtaining the District Collector's approval; hence, a fresh Charge Memoin Roc.No.20381/95/B2 dated 22.11.1995 incorporating the charges framedby the Salem District Collector in the earlier two charges inRoc.No.61217/92/P3 dated 01.07.1992 (under 17(a) of the C.C.A. Rules)and in Roc.No.61217/92/P3 dated 18.11.1992 (under 17(b) of C.C.A. Rules)was issued. He further submitted that finally the Directorate hasissued an order in Roc.No.20381/95/B2 dated 23.03.1996 cancelling theearlier charge memos issued by the District Collector, Salem.9.Heard the learned counsel on either side.10.On a perusal of the relevant records leading to the facts andcircumstances of the case, it is seen that the petitioner was working asExecutive Officer, (Selection Grade) at Senthamangalam Town Panchayat, https://hcservices.ecourts.gov.in/hcservices/ Salem District. He was served with a charge memo dated 01.07.1992 underRule 17(a) of the Tamil Nadu Civil Services (Classification, Control andAppeal) Rules, (in short “the Rules”) alleging some irregularities inconnection with water supply. Subsequently, on 25.08.1992, he wasplaced under suspension on the ground of contemplating enquiry intograve charges. He challenged the suspension order before the Tamil NaduAdministrative Tribunal (in short “the Tribunal”) in O.A. No.4315 of1992. The Tribunal, on consideration of the case, granted stay of theorder of suspension and the petitioner was reinstated in service on02.12.1992 as Executive Officer; posted to Maichery Town Panchayat andhe joined there on 08.12.1992. It is further seen that while that beingthe position, the third respondent herein, the Collector, Salem Districtissued a Charge Memo in RC.No.61217/92 (P3) dated 18.11.1992 under Rule17(b) of the Rules. It appears that the earlier Charge Memo dated01.07.1992 was issued under Rule 17(a) and the Charge Memo dated18.11.1992 was issued under Rule 17(b) by the Collector, Salem District,besides 13 other charges in addition to the earlier 10 charges. Thepetitioner had submitted his explanation on 07.07.1995 denying thecharges and submitted his defence. However, pending those two ChargeMemos, the Director of Town Panchayat, the second respondent has issuedanother Charge Memo in Rc.No.20381/95-A2 dated 22.11.1995 under Rule 17(b) containing 25 charges. Aggrieved by the identical Charge Memos, thepetitioner has challenged the last Charge Memo dated 22.11.1995 in thiswrit petition on various grounds, viz., (i) the first and second ChargeMemos dated 01.07.1992 and 18.11.1992 are without any action even aftersubmitting the explanation and filing the statement of defence; (ii)neither oral enquiry was conducted nor an opportunity of personalhearing was afforded to the petitioner; (iii) the charges in ChargeMemos 2 and 3 are identical but no reasons are assigned for the issuanceof the third Charge Memo; (iv) the third Charge Memo impugned in thiswrit petition does not supersede the second Charge Memo and therespondents have exercised their power arbitrarily and (v) to determinewhether the Charge Memo impugned in this writ petition is in accordancewith the procedure contemplated and it can be issued without assigningany reason. It is also the case of the petitioner that there was noconsideration of his earlier explanation and the statement of defence. 11.To answer the above points, it would be relevant toconsider the Charge Memo dated 01.07.1992 and the Charge Memo dated18.11.1992 changing rule from 17(a) to 17(b), the second Charge Memoadded with some more charges, for which the petitioner has submitted hisexplanation and the defence statement. Pending the Charge Memos andinstead of taking action on the same, the second respondent has now comeout with a fresh Charge Memo with 25 charges almost identical to thesecond Charge Memo dated 18.11.1992. 12. The defence taken by the Director of Town Panchayat, thesecond respondent appears that the Charge Memo was issued by theDistrict Collector on 18.11.1992; on obtaining the petitioner’sexplanation, the Assistant Director of Town Panchayats, Salem requestedto appoint Enquiry Officer to enquire into the disciplinary case. Thereafter, it was found that the Charge Memo was signed by the DistrictTown Panchayat Officer, Salem, on obtaining the District Collector’sapproval; therefore, they have issued a fresh Charge Memo. The point https://hcservices.ecourts.gov.in/hcservices/ that arises for consideration is that while exercising statutory powerin the statutory provision with the authority concerned before issuingthe Charge Memo, whether change of one authority to another authoritywould be the reason for issuance of a fresh Charge Memo. 13.In the instant case, there are two Charge Memos with tencharges and 23 charges, respectively. The impugned Charge Memo dated22.11.1995 containing 25 charges issued by the Director of TownPanchayat, the competent authority shows that the respondents haveexercised their power arbitrarily. The second respondent ought to haveproceeded with the same set of charges made by the District Collector on18.11.1992; instead, he has proceeded in issuing another Charge Memo onhis own and it appears that it goes against the very root of theauthority, who has not applied his mind to go into the relevantprovisions for conduct of the disciplinary proceedings, issuance ofCharge Memos and also not taking a decision, when the petitioner hassubmitted his explanation and defence statement. As far as the reliancemade by the learned counsel for the petitioner is concerned, the aspectdealt therein is inordinate delay which is not so in the instant caseand as such, I am of the view that it is not applicable to the case onhand. 14.In my opinion, the second respondent herein has acted incontravention of the rules instead of proceeding with the Charge Memodated 18.11.1992 already issued by the District Collector. In theabsence of any valid reasons by the respondents in not proceeding withthe Charge Memo dated 18.11.1992, the reasons advanced by them appearsto be flimsy and are not in their favour. Therefore, this Court findsthat the Charge Memo dated 22.11.1995 suffers from legal infirmity andit is against the settled principles and contrary to the rules andaccordingly, it is quashed. However, the second respondent is atliberty to pass appropriate orders based on the Charge Memo dated18.11.1992 and the explanation submitted by the petitioner for the sameand also his defence statement, after following the due procedurecontemplated under the rules and also bearing in mind, the pendency ofthis case before this Court for a longer period. This exercise shall becompleted by the second respondent within a period of twelve weeks fromthe date of receipt of a copy of this order. Resultantly, the writ petition is allowed with the afore-said direction. No costs. abeSd/- Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To,1.The Secretary to GovernmentRural Development and LocalAdministration DepartmentGovernment of Tamil NaduFort St. George, Madras – 92.The Director of Town PanchayatKuralagam, Madras – 1083.The District Collector, Salem District+1 cc to Mr.S.Vadivelu, Advocate Sr.No.299.+1 cc to The Government Pleader Sr.No.591.MRD(CO)DCP/10.1W.P.No.34936 of 2006