S.Kannan v. Fort St.George

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 07-09-2009CORAMTHE HONOURABLE MR.JUSTICE V.DHANAPALANWRIT PETITION No.17652 OF 2006S.Kannan...Petitioner-vs-1.The State of Tamil Nadu, rep.by its Secretary to the Government, Home Transport -II Department, Fort St.George, Chennai-600 009.2.The Transport Commissioner, Chepauk, Chennai-600 005.3.The Joint Transport Commissioner, Chennai Zone, Transport Department, Ayanavaram, Chennai-600 023....RespondentsPetition under Article 226 of the Constitution of India.For petitioner : Mr.G.EthirajuluFor respondents : Mr.V.Viswanathan, Addl.Govt.Pleader.O R D E RPetitioner has filed this Writ Petition, praying forissuance of a writ of certiorari to call for the records relating tothe proceedings made in Memo R.No.87355/V3/04, dated 22.09.2005,passed by the second respondent, quash the same and for aconsequential direction to the respondents to include his name in thepanel and promote him to the post of Motor Vehicles Inspector, Grade-I, with all attendant benefits. https://hcservices.ecourts.gov.in/hcservices/

2. Petitioner was appointed as Motor Vehicles Inspector,Grade-II, on 27.12.2000, in the office of the Regional TransportOfficer, Coimbatore (North). Thereafter, on 06.06.2005, he wastransferred to the Enforcement Wing and posted in the office of theJoint Commissioner, Chennai, namely, third respondent. His nextpromotion is to the post of Motor Vehicles Inspector, Grade-I. Whileso, the second respondent, in his office proceedings, which areimpugned herein, dated 22.09.2005, framed three charges against thepetitioner under Section 17 (b) of The Tamil Nadu Civil Services(Discipline & Appeal) Rules (in short, "the Rules"). The saidcharges are as under :"Charge-I : That on 14.06.03, Thiru S.Kannan whileworking as Motor Vehicle Inspector Grade-II atRegional Transport Office, Coimbatore (North) haspersonally inspected three vehicles involved in anaccident near Karikadai bus stop inPappanaickenpalayam on 13.06.03 and has submittedhis inspection report in Form AIR stating that(i)The front left body is pressed inCorporation Bus TN37/N-0675.(ii)The front left bumper twisted andleft grill pressed in Corporation busTN38/N-0309.(iii)There are damages in front headlight assembly, front vision mirror,fork, Handle bar, speedometer andpetrol tank in Motor Cycle TN 37/AA-2369.But, the report of the MD, TNSTC, Coimbatoreregarding the damages of the two Corporation busesin this case reveals that i)the backside left body and beeding isdamaged in respect of TN 37/N-0675ii)the front grill, bumper, rightindicator, mirror and front left windscreen is damaged in respect of TN38/N-0309.Thus he has furnished incorrect accident reportcontroversial to the factual occurrence of theaccident in this case. https://hcservices.ecourts.gov.in/hcservices/ Charge-II : Thiru S.Kannan, Motor VehicleInspector, Grade-II, O/o the Regional TransportOfficer, Coimbatore (North) has not properlyinspected the two corporation buses involved inthis accident without carefully analysing thenature of the accident and the possible damagesdepending upon the impact of this accident. Thisshows his negligence and lack of devotion toofficial duties.Charge-III : Thiru S.Kannan, Motor VehicleInspector Grade-II, O/o the Regional TransportOffice, Coimbatore (North) has furnished falseand misleading report in this case withouttechnical expertise. Thus he has failed tomaintain absolute integrity in the discharge ofhis official duty."Aggrieved over the said charges, the petitioner has filed this WritPetition.3. A counter has been filed by the respondents, stating asfollows :One K.Natarajan of Coimbatore had lodged a complaint againstthe petitioner, that his son met with an accident on 13.06.2003between two State Transport Corporation buses near Kaarikadai BusStop in Pappanaickenpalayam and died on the way to hospital. Thepetitioner, who inspected the vehicles on 14.06.2003, wronglyreported with ulterior motive and for extraneous considerations insuch a way that the two corporation buses dashed face-to-face and theposition of the motor vehicle was unclear, by which the entire caseturned turtle, in spite of clear evidences to prove the negligence ofthe accused in causing the accident and killing the victim.Therefore, he requested to take necessary action against thepetitioner. The Deputy Transport Commissioner was asked to conduct adetailed enquiry in this regard to elicit the facts of the case and,on such enquiry, the petitioner reported that the motorcyclist hadclashed against the bus bearing No.TN38/N0309, standing in front, onits left side, being hit by TN37/N0675 and died due to heavyinjuries. In conclusion, the Enquiry Officer finalised that incomparison with the details of damages of the three vehicles withthat of the accident report given by the petitioner, it was provedthat the petitioner had furnished incorrect report. Hence, thepetitioner had not inspected the vehicles properly. Subsequently,the charges were framed against the petitioner on 22.09.2005 and theCharge Memo was served on the delinquent officer on 18.01.2006. TheCharge Memo is not a punishment, but an opportunity for thedelinquent to explain his stand on the charges. The charges areframed as per rules and, hence, no interference is called for in theorder impugned. https://hcservices.ecourts.gov.in/hcservices/

4. The one and only contention of the learned counsel forthe petitioner is that the allegations made against the petitioner donot attract the ingredients to frame charges under Rule 17 (b), butonly under Rule 17 (a), as there is no dishonest motive, and nonconsideration of the same by the respondents has vitiated the entireproceedings.5. Learned counsel for the petitioner has cited threeunreported orders of this Court in W.P.No.3558 of 2004, dated05.09.2006; W.P.No.18517 of 2007, dated 12.10.2007, and W.P.No.21933of 2005, dated 25.04.2006.(i) In W.P.No.3558 of 2004, a Division Bench of this Courthas held as follows :"9. As far as the second limb of the prayersought for by the petitioner for promotion tothe post of District Revenue Officer on par withhis juniors and with consequential benefits, isconcerned, we feel that the punishment ofstoppage of increment for a period of six monthswithout cumulative effect is only a minorpunishment as per Tamil Nadu Civil Services(Discipline and Appeal) Rules applicable to theTamil Nadu Government servants and the Chargescould have been framed under Rule 17(a) as theywere not serious in nature. Admittedly, thecharges were framed against the petitioner forcertain lapses and lack of supervision and noother allegations such as, illegalgratification, committal of penal offence, etc.which would come under Rule 17(b) were levelledagainst the petitioner. The Government hasgiven specific guidelines with regard to framingof charges under Rule 17(a) and 17(b). Theguidelines are to the following effect:"Guidelines for deciding whether charges may beframed under Rule 17(b):(1) Cases in which there is reasonable groundto believe that a penal offence has beencommitted by a Government servant but theevidence forthcoming is not sufficient forprosecution in a Court of law, e.g.,(a) possession of assets disproportionate tothe known sources of income; https://hcservices.ecourts.gov.in/hcservices/ (b) obtaining or attempting to obtain illegalgratification;(c) misappropriation of Government property,money or shares;(d) obtaining or attempting to obtain anyvaluable thing or pecuniary advantage withoutconsideration or for a consideration which is notadequate, etc.,(2) Falsification of Government records.(3) Irregularity or negligence in thedischarge of official duties with a dishonestmotive."10. Therefore, as per the above saidguidelines also, as stated earlier, the chargesframed against the petitioner would not come underRule 17(b), but only under Rule 17(a). However,since the petitioner was imposed punishment onframing Charges under Rule 17(b) which is a bar forconsideration of promotion, he has been deprived ofthe promotion to the next cadre. Therefore, we areof the view that the charges should have beenframed under Rule 17(a) and not under Rule 17(b).Therefore, in view of the Guidelines as stated inLetter No.248 issued by the Government of TamilNadu, dated 20.10.1997 which have beenreconsolidated in the recent Letter No.1882/S/2005-2, dated 7.10.2005 issued by the Government ofTamil Nadu, the claim of the petitioner can beconsidered for further promotion. In identicalcircumstances, the Division Bench of this Court hadan occasion to deal with the similar issue withregard to framing of Charges under Rule 17(a) and17(b) following the above said Guidelines, and byits order, dated 7.12.2004 in W.P.No.19144 of 2004,has taken similar view that the DisciplinaryAuthority, while issuing charge memo, was requiredto keep in mind the guidelines for framing chargeseither under Rule 17(a) or under Rule 17(b).11. Following the same, we are of the viewthat since the allegations levelled against thepetitioner were not serious in nature besides sincethe proved allegations are minor in nature, onlyminor punishment can be imposed. As such the claimof the petitioner to the post of District Revenue https://hcservices.ecourts.gov.in/hcservices/ Officer can be considered by the first respondenton par with his juniors and to this extent, thesecond limb of the prayer of the petitioner soughtfor in this Writ Petition is allowed."(ii) In W.P.No.18517 of 2007, it is held asfollows :"9.... It is pertinent to point out that asper the guidelines for deciding the charge underRule 17 (b), there must be an irregularity or thenegligence in the discharge of the official dutywith the dishonest motive....Only if there isdishonest motive noticed, then it could beattributed; but, in this case, it is not so. Underthe circumstances, the framing of charges underRule 17 (b) was not at all warranted.""10.Now, the learned Additional GovernmentPleader would submit that after noticing theexplanation, the authorities came to know that thefacts would not attract a charge under Rule 17 (b),and they have applied to the Government foramending the charge as one for Rule 17 (a). Thiscontention cannot be accepted since the matter ispending for a long time. Even assuming that therewas a charge under Rule 17 (a), no question ofdeterring him from getting further promotion wouldarise, and it is not warranted so. Thus, thecharges levelled against him, in the opinion ofthis Court, do not stand. That apart, the order ofthe second respondent rejecting the petitioner'sclaim to be included in the panel for the post ofMotor Vehicle Inspector Grade I is also liable tobe quashed. Accordingly, they are quashed. Therespondents are also directed to consider thepromotion of the petitioner to which he is legallyentitled taking into consideration that the chargeslevelled against him have been quashed by thisCourt as above, in accordance with law asexpeditiously as possible..."(iii) In W.P.No.21933 of 2005, it has been held as under :"3...the only allegation against thepetitioner is lack of effective supervision overhis subordinates. Therefore, the respondentsshould have framed the charges under Rule 17 (a)instead of Rule 17 (b) to impose a minorpunishment. It is also noticed that the charges https://hcservices.ecourts.gov.in/hcservices/ impugned in these writ petitions were framedwithout taking into account the circular dated11.3.2003 issued by the Government to determinewhether the charges were to be framed under Rule17 (a) or under Rule 17 (b) in respect of theallegations levelled against the petitioner.Therefore, from the materials placed on record,this Court is satisfied that the respondents havenot acted properly in framing the charges underRule 17 (b) without considering the explanationoffered by the petitioner.... Therefore, theimpugned charge sheets are set aside. Therespondents are directed to consider theexplanation submitted by the petitioner inresponse to the notice issued by them and framecharge under Rule 17 (a) if they want to proceedwith the matter and pass appropriate orders inaccordance with law thereafter."6. In reply, the learned Additional Government Pleader wouldsubmit that the measurement of charges is to be decided by thedisciplinary authority based on the gravity of offence or allegation;mere issuance of charge memo does not amount to awarding ofpunishment and that there is no wanton delay in the framing ofcharges.7. The learned Additional Government Pleader would cite aDivision Bench of this Court in Xavier Dhanaraj v. Secretary toGovernment, Public Works Department, Chennai, and Others, reported in2008 (1) MLJ 1303 to show that Charge Memos could not be quashed onlyon the ground of delay in initiating the charges, particularly whenthe employee had never made a grievance that he was prejudiced due tothe delay. 8. I have heard the learned counsel for the parties and alsogone through the records.9. The only point that arises for determination in this caseis, whether the charges framed against the petitioner attract Rule 17(a) or Rule 17 (b) of the Rules ?10. For deciding the charges to be framed under Rule 17 (b),the Government, vide Circular No.14353, P&AR (Per.N)/93-1, dated11.03.1993, has framed certain guidelines, which read as under :"Without prejudice to the generality ofsituations involving indiscipline, moralturpitude, corruption etc., charges under rule 17(b) have to be framed in the following types of https://hcservices.ecourts.gov.in/hcservices/ cases for imposing any one of the majorpenalties :-(1) Cases in which there is reasonable groundto believe that a penal offence has been committedby a Government servant but the evidenceforthcoming is not sufficient for prosecution in aCourt of Law, e.g.(a) possession of assets disproportionate tothe known sources of income ;(b) obtaining or attempting to obtain illegalgratification ;(c) misappropriation of Government property,money or shares;(d) obtaining or attempting to obtain anyvaluable thing or pecuniary advantage withoutconsideration or for a consideration which is notadequate etc;(2) Falsification of Government records.(3) Irregularity or negligence in thedischarge of official duties with a dishonestmotive. (emphasis supplied)(4) Misuse of official position for personalgain.(5) Disclosure of secret or confidentialinformation even though it does not fall strictlywithin the scope of the Official Secrets Act.(6) Misappropriation of Government funds,false claims of Travelling Allowance,reimbursement of false medical bills etc.Unless a major punishment is really warrantednamely, dismissal from service, removal fromservice, compulsory retirement or reduction to alower rank in the seniority list or to a lowerpost or time scale, framing of charges under rule17 (b) is not necessary and should be avoided."(emphasis supplied)11. On a perusal of the above guidelines, what comes to beknown is that none of the charges framed against the petitioner comes https://hcservices.ecourts.gov.in/hcservices/ under the above category of cases. Though the charges are framedagainst the petitioner under Rule 17 (b) as if there is irregularityor negligence in the discharge of official duties, as adumbrated inclause 3 of the guidelines referred to supra, the said negligence,alleged by the respondents, does not contain the dishonest motive,which is a crucial factor for deciding the category of the chargei.e., under 17 (a) or under 17 (b).12. The very object of framing of the guidelines is thatunless a major punishment is really warranted, namely, dismissal fromservice, removal from service, compulsory retirement or reduction toa lower rank in the seniority list or to a lower post or time scale,framing of charges under Rule 17 (b) is not necessary and should beavoided. 13. The point raised in this case is, whether the executiveinstructions of the Government can have a force of law ? In thisconnection, it is to be stated that the executive instructions of theGovernment can only be supplemental to the statutory rules, where thestatutory rules are silent and such instructions cannot supplant therules. In the present case, the instructions are intended to be usedonly as supplemental and they are not intended to supersede thestatutory rules. In the absence of any conflict between theguidelines and the statutory rules, the disciplinary authority, whileissuing the charge memo, was required to keep in mind the guidelines.14. That being so, in the case on hand, the allegeddelinquencies in the Charge Memo are minor in nature. No allegationof misconduct, misappropriation of funds of the Government or wilfuland dishonest act is made against the petitioner in the Charge Memo.Also, the respondents have admitted in their counter that there is nofinancial loss to the Government and it is only a dereliction of dutyon the part of the petitioner. In the absence of any such seriousallegations, grave charges, attracting major punishment under Section17 (b), in my considered opinion, cannot be framed against thepetitioner. The authority was required to keep in mind the aboveguidelines, while framing the charges against the petitioner, whichis apparently not done. The charges impugned herein were framedwithout taking into account the Government Circular No.14353, P&AR(Per.N)/93-1, dated 11.03.1993, issued by the first respondent, todetermine whether the charges would fall under (a) or (b) of Rule 17of the Rules in respect of the allegations levelled against thepetitioner. So, the framing of charges against the petitioner iscontrary to the Government Circular, dated 11.03.1993, and none ofthe charges framed against the petitioner, in my view, fall underRule 17 (b). It is also not the case of the respondents that therewas dishonest intention on the part of the petitioner in thedischarge of his official duties. As such, the act of therespondents in framing charges, attracting Rule 17 (b), is vitiatedby ulterior motive. https://hcservices.ecourts.gov.in/hcservices/

15. On receipt of the Charge Memo, the petitioner submittedhis explanation on 10.02.2006, requesting for documents, which arereferred in the Charge Memo. Though the explanation is dated10.02.2006, neither the departmental enquiry was initiated againstthe petitioner nor did the authorities furnish the copies ofdocuments, as requested by the petitioner.16. Though it is stated in the order impugned that a list ofdocuments by which and a list of witnesses by whom the charges areproposed to be maintained are also enclosed in Annexure III and IVrespectively, no material is seen to that effect. Further, thespecific case of the petitioner is that he has not been suppliedwith the documents, relied upon by the respondents, in spite ofrequest. Therefore, failure to furnish the documents and statement ofwitnesses either along with the Charge Memo or on the request of thepetitioner taints the entire proceedings. 17. Under the circumstances, the apprehension of thepetitioner that if the promotion panel is prepared, in view of thependency of the charges, his name will not be included in the panel,even though the alleged charges attract only Rule 17 (a) of theRules, is germane. That apart, the allegation attributed against thepetitioner in this case is one and the same. However, the secondrespondent has multiplied or split up the charges on the basis of thesame allegation, which should be avoided as per the guidelines.18. The date of incident is dated 14.06.2003. The ChargeMemo is dated 22.09.2005, which, according to the petitioner, wasserved after much delay on 18.01.2006, which is not disputed by therespondents. No explanation is forthcoming on the part of therespondents initially with regard to framing of the charges belatedlyi.e., after nearly two-and-a-half years after the incident andsubsequently as regards the serving of the Charge Memo on thepetitioner with much delay after four months pursuant to framing ofthe charges. Framing of charges belatedly, that too under Rule 17(b), will shatter the right of the petitioner for promotion andinfringement of the said right amounts to violation of principles ofnatural justice. Therefore, the impugned proceedings suffer fromperversity, on the ground of laches as well.19. Further, under Rule 377 of Tamil Nadu Motor VehicleRules, the officers empowered to inspect the vehicles involved in theaccident are, the Magistrates, any inspecting officer of theTransport Department and Public Officers not below the rank of Sub-Inspector, and for that purpose they can enter at any reasonable timeany premises where the vehicle is kept and remove the vehicle forexamination. https://hcservices.ecourts.gov.in/hcservices/

20. In this case, the petitioner, being a Motor VehicleInspector, having the authority to inspect the motor vehiclesinvolved in the accident, has done the inspection and submitted areport. However, based upon the report of the Managing Director, acharge memo has been issued to the petitioner.21. One more aspect in this case is that the case inC.C.No.88 of 2003, dated 16.09.2004 has ended in acquittal on theground that the alleged presence of eye witnesses namely P.Ws.1 and 2in the place of occurrence is doubtful and that the damages in themotor cycle are not in corroboration with the evidence of the eyewitnesses. The said judgment has become final, as no appeal has beenpreferred against the same. So, the mere complaint of the father ofthe deceased cannot be a material to initiate the proceedings againstthe petitioner.22. A Division Bench of this Court in W.P.No.19144 of 2004,dated 07.12.2004, has held that when there is no dishonest motive,there cannot be any proceedings under Section 17 (b). 23. Though the decision cited by the learned AdditionalGovernment Pleader in Xavier Dhanaraj's case, referred above, is onthe point, it is not applicable to the case on hand, the reasonbeing, in the said case, the employee had never made a grievance thathe was prejudiced due to the delay. However, in this case, one ofthe grievances of the petitioner is that he was prejudiced by thedelay in framing the charges against him. The said delay, in myopinion, is clouded with a stigma. 24. For all the foregoing reasons, this Writ Petition isallowed, setting aside the order impugned, dated 22.09.2005, of thesecond respondent and directing the respondents to include the nameof the petitioner in the panel, over and above his juniors, andpromote him to the post of Motor Vehicles Inspector, Grade-I, if heis otherwise eligible, by affording all service and monetary benefitsthereof. No costs. Consequently, the connected M.P.Nos.1 of 2006 and1 of 2008 are closed. However, it is open for the respondents toproceed against the petitioner under Rule 17 (a) for the allegedcharges, which shall not be a bar for promotion, in accordance withlaw.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ dixitTo1.The Secretary to Government, State of Tamil Nadu, Home Transport -II Department, Fort St.George, Chennai-600 009.2.The Transport Commissioner, Chepauk, Chennai-600 005.3.The Joint Transport Commissioner, Chennai Zone, Transport Department, Ayanavaram, Chennai-600 023.1 cc To Mr.G.Ethirajulu, Advocate, SR.448621 cc To The Government Pleader, SR.45386W.P.No.17652 OF 2006RL(CO)SRA(16/9/2009)