The Government of Tamil Nadu v. K.M. Shahul Hameed @ K.M. Ramesh

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22..4..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. Nos. 3462 and 16798 of 2004andW.P.M.P. No. 4071 of 2004 in W.P. No. 3462 of 2004 and W.M.P. No. 19886 of 2004 in W.P. No. 16798 of 2004W.P. No. 3462 of 2004:1.The Government of Tamil NaduRep. by Special Commissioner for Disciplinary ProceedingsChennai – 108.2.The Registrar of Co-operative Societies Chennai - 10 ... Petitioners vs.1. K.M. Shahul Hameed @ K.M. Ramesh2.The RegistrarTamil Nadu Administrative TribunalChennai... RespondentsPetition under Article 226 of the Constitution of India prayingto issue a writ of Certiorari calling for the records pertaining toorder of the Tribunal dated 26.3.2002 made in O.A. No. 4171 of 2000and quash the same. W.P. No. 16798 of 2004:K.M. Shahul Hameed.. Petitionervs. https://hcservices.ecourts.gov.in/hcservices/

1.The Government of Tamil NaduRep. by Secretary to GovernmentFood and Consumer Protection DepartmentFort St. George Chennai - 92.The Registrar of Co-operative Societies Chennai - 10 ... RespondentsPetition under Article 226 of the Constitution of India prayingto issue a writ of Mandamus directing the respondents to given effectto the final order of the Tribunal dated 23.4.2003 made in O.A. No.1399 of 2000 and promote the petitioner as Joint Registrar of Co-operative Societies. For State: Mr. M. Dhandapani, Spl. GPFor contesting Respondent : Mr. K. DhanasekaranCOMMON ORDERK. CHANDRU, J.Heard the arguments of Mr. M. Dhandapani, learned SpecialGovernment Pleader representing the State and Mr.K.Dhanasekaran,learned counsel appearing for the contesting party and have perusedthe records.2.W.P. No. 3462 of 2004 is filed by the Government of TamilNadu represented by the Special Commissioner for DisciplinaryProceedings against the order of the Tamil Nadu AdministrativeTribunal [for short, Tribunal'] dated 26.3.2002 made in O.A. 4171 of2000. The said O.A. was filed by the first respondent, who wasthen working as Co-operative Sub-Registrar, against the show causenotice dated 08.4.2000, issued by the second petitioner asking him asto why the punishment of removal from service should not be imposedon him. 3.The said Original Application came to be allowed by theTribunal by a judgment dated 26.3.2002. The charge against thefirst respondent was that during the period 01.1.1985 to 15.02.1987,he was in possession of resources approximately to the tune of1,85,445/- in the names of his wives Tmt. Lakshmi and Tmt.Rajarajeswari and he had not satisfactorily accounted for the same.He was also indulging in pawn broker business through them incontravention of the Government Servant's Conduct Rules. He wasalso accused of living with Tmt. Rajarajeswari while the marriagewith his first wife Lakshmi was in subsistence. He was also living https://hcservices.ecourts.gov.in/hcservices/ under the name K.M.Ramesh. Further, he was also accused offurnishing false declaration of his assets whereas his wives were inpossession of auto-rickshaws, house sites, godown, etc. 4.After enquiry was conducted, the Disciplinary Tribunal heldthat the first charge was proved. With reference to second charge,the charge No. 2(a) was held to be proved. However, charge Nos. 2(b), 2(c) were not proved. But charge No. 2(d) was held to beproved. The first respondent earlier filed O.A. No. 3080 of 1986seeking to quash the charges. Though the said O.A. was admitted, nointerim order was granted. Therefore, the first petitioner,Government issued G.O. (DO) No. 41 Co-operation, Food and ConsumerProtection Department 07.02.2000, directing the second respondent toproceed with the disciplinary proceedings till the stage of passingfinal orders and was directed to await the order in O.A. No. 3080 of1986. Thereafter, the second petitioner issued show cause noticedated 08.4.2000 proposing to impose the punishment.5.Before the Tribunal, on behalf of the petitioners, adetailed reply statement was also filed refuting the stand taken bythe first respondent. The Tribunal, without any justification,delved into the merits of the findings and quashed the show causenotice, which was issued based upon the report of the Tribunal forDisciplinary action. According to the Tribunal, the two wives haveaccounted for their wealth in their Income-Tax Returns and there wasno evidence to show that the money-lending by them were financed bythe first respondent. It also held that non-disclosure ofproperties purchased and owned by his wives became a misconduct onlyas per amended rule 7(3) of the Conduct Rules which was brought intoeffect on 24.12.1992 and, therefore, he cannot be punished by virtueof the amended Rules. It is against this order, the present writpetition has filed. 6.At the time of admission, this Court merely ordered noticein the stay application and did not grant any interim order.Throughout this period, the contesting respondent continued inservice.7.In the meanwhile, the first respondent filed anotherapplication being O.A. 1399 of 2003 seeking for promotion for thepost of Deputy Registrar and the same was allowed by the Tribunalvide order dated 23.4.2003. He filed W.P. No. 16798 of 2004 seekingfor a direction to the official respondents to implement the order ofthe Tribunal and though notice was ordered initially, it was alsoadmitted subsequently by order dated 05.7.2004. Even when the saidwrit petition was pending, he was promoted to the post of DeputyRegistrar. https://hcservices.ecourts.gov.in/hcservices/

8.In view of the interconnectivity, between the two writpetitions, they are heard together.9.When a show-cause notice is issued by the disciplinaryauthority, unless the show-cause notice is mala fide or withoutjurisdiction, the Tribunal cannot embark upon the merits of the sameand give a finding that the charges have not been proved. That kindof power can never be exercised at the stage of show cause notice andthe Tribunal ought to have dismissed O.A. No. 4171 of 2000 withoutembarking upon a roving enquiry as if there was no evidence in thesaid enquiry. Therefore, the Tribunal has exceeded its jurisdictionin quashing the show cause notice even before the disciplinaryauthority could take any decision on the explanation submitted by thefirst respondent. Hence, the order of Tribunal is liable to be setaside.10.In the meanwhile, thanks to the order of the Tribunal, thefirst respondent also got promoted to the post of Deputy Registrarand attained the age of superannuation 30.4.2006. However, hisservices were retained by placing him under suspension by order ofthe Government in G.O. (2D) No. 39 Co-operation, Food and ConsumerProtection Department dated 30.4.2006 in terms of Rule 17(e) of theTamil Nadu Civil Services (Discipline and Appeal) Rules. Further,under Rule 56(1)(c) of the Fundamental Rules, he was not allowed toretire by G.O. (3D) No. 11 Co-operation, Food and Consumer ProtectionDepartment dated 30.4.2006.11.In the light of the above, W.P. No. 16798 of 2004 filed byK.M. Shahul Hameed seeking for implementation of the order of theTribunal dated 23.4.2003 in O.A. No. 1399 of 2003 will standdismissed as it had become infructuous. 12.In W.P. No. 3462 of 2004 in as much as the Tribunal quashedthe order of show cause notice issued by the second petitioner, itwill also stand set aside and W.P. No. 3462 of 2004 will standallowed. No costs.13.In the light of the dismissal of the writ petition and inview of G.O. (3D) No. 11 Co-operation, Food and Consumer ProtectionDepartment dated 30.4.2006 and G.O. (2D) 39 Co-operation, Food andConsumer Protection Department dated 30.4.2006 passed by theGovernment, it is open to the writ petitioners to proceed with https://hcservices.ecourts.gov.in/hcservices/ further course of action against the first respondent. ConnectedMiscellaneous Petitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griTO1. The Special Commissioner for Disciplinary Proceedings,Chennai 108.2. The Registrar of Co-operative Societies, Chennai 10.3. The Secretary to Government of Tamil Nadu, Food and ConsumerProtection Department, Fort St. George, Chennai.+ 1 CC to the Government Pleader SR NO 23141 W. P. Nos. 3462 and 16798 of 2004ng[co]gp/30.4.