P. Ramasamy v. The Secretary to Government, Agricultural Department, Fort St. George, Chennai-600 009 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 7.8.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.34995 of 2004P.Ramasamy ..Petitionervs.1. The Secretary to Government, Agricultural Department, Fort St. George, Chennai-600 009.2. The Director of Agriculture, Marketing, Tamil Nadu Thiru-Vi-Ka Industrial Estate, Guindy, Chennai-600 032.3. The Principal Accountant General, Anna Salai, Teynampet, Chennai-600 018. ..Respondents Writ Petition is filed under Article 226 of the Constitution ofIndia praying to issue a writ of certiorarified mandamus, calling forrecords relating to the proceedings of the first respondent dated18.3.2004 in K.No.3188/AM.11/2003 and quash the same consequently todirect the respondents 1 to 3 to award the eligible retirementbenefits with interest of 18% per annum from the date of theretirement of the petitioner dated 30.9.1992 after adjusting theamount already paid to the petitioner.For Petitioner : Mr.ThirumoorthyFor Respondents : Mr.T.Seenivasan, Additional Government Pleader. O R D E RThis Writ Petition is filed praying to issue a writ ofcertiorarified mandamus, calling for records relating to theproceedings of the first respondent dated 18.3.2004 in https://hcservices.ecourts.gov.in/hcservices/ K.No.3188/AM.11/2003, quash the same and consequently direct therespondents 1 to 3 to award the eligible retirement benefits withinterest at 18% per annum from the date of the retirement of thepetitioner (i.e.) 30.9.1992 after adjusting the amount already paidto the petitioner.2. Petitioner is a senior citizen. He was allowed to retire on30.9.1992 by G.O.Ms.599 Agriculture(AMI) Department dated 29.9.1992.At that time he was the Secretary, Periyar Market Committee.3. Petitioner joined the services of the Agriculture MarketingDepartment in the year 1958 as Supervisor. He was promoted asSuperintendent in the year 1959 and Secretary in the year 1970. Itappears that initially on 24.4.1990, a charge memo was issued underRule 17(a) of the Tamil Civil Services (Discipline and Appeal) Rules,1955 and the charges are as follows:-(i) Petitioner selected an unsuitable site for construction of office building for the regulated market at Kumbakonam.(ii) Petitioner did not take note of the advise of the Superior Officers.(iii) Petitioner disobeyed the order of the superiors.Petitioner submitted an explanation dated 8.5.1990 which was notaccepted and it appears that an order was passed withholding a sum ofRs.4,500/- from the terminal benefits and such orders was passed on16.7.1992 in Proceedings No.VI/35223/89. The order dated 16.7.1992was reviewed by the Government under Rule 36 of the Tamil Nadu CivilServices (Discipline and Appeal) Rules, and set aside by theproceedings dated 25.9.1992. Further action was proposed. On thesame day, viz., on 25.9.1992 charges in terms of Rule 17(b) of theTamil Nadu Civil Services (Discipline and Appeal Rules), 1955 wasissued. Petitioner was called upon to give his explanation. 4. In the meanwhile on 30.9.1992, petitioner was allowed toretire from service pursuant to G.O.Ms.No.599 dated 29.9.1992. TheG.O.Ms.No.599 dated 29.9.1992 stated that the petitioner is allowedto retire on attaining the age of superannuation without prejudice tothe disciplinary proceedings pending against him. It is stated thatthe petitioner submitted his explanation on 12.10.1992. Enquiry wasconducted and the enquiry officer submitted a report. The gist ofthe charge and the enquiry report is as follows:-Charge 1:-"That you Thiru P.Ramasamy, formerlySecretary (Retd.) Thanjavur Market Committeeselected a site for the construction of office https://hcservices.ecourts.gov.in/hcservices/ building for the Regulated Market at Kumbakonamwhich was not proper and thereby caused loss tothe Market Committee."Finding in respect of Charge No.1:-"Since the loss caused to the ThanjavurMarket Committee by way of replacement of the HighTension wires to the tune of Rs.8,850/- has beenmade good by the concerned Asst. ExecutiveEngineer and obviously it is the primaryresponsibility of the constructing Engineer i.e.,Asst. Executive Engineer of Tamilnadu StateAgricultural Marketing Board to ensure that theHigh Tension wires were replaced beforecommencement of the work, hold the charge as notproved."Charge No.2:-"that you did not take note of the advicegiven by your superior officers in the selectionof site." Finding in respect of charge No.2:-"However, it is seen from the perusal of therecords file No.D1.38446/85 and D1.20451/87 thatthere are no material evidence to show that anyspecific instructions or advice were given bysuperior officers to Thiru P.Ramasamy, theaccused officer in the selection of site. The charge is also not specific as to whichof the advice given by the superior officers toThiru P.Ramasamy, then Secretary were not takennote of by him.Hence, this charge is held as not proved."Charge No.3:-"that you disobeyed the orders of yoursuperior officers."Findings in respect of charge No.3:-"In his explanation to the above charge ThiruP.Ramasamy, formerly Secretary (Retd.) ThanjavurMarket Committee has stated that he had never https://hcservices.ecourts.gov.in/hcservices/ disobeyed the orders of his superior Officers buthe had acted in accordance with the advice and inconsultation with his superior officers and in theinterests of the committee only and hence hedenied the charge.This charge is vague and not specific. Itdoes not indicate as to which orders of thesuperiors were disobeyed by Thiru P.Ramasamy, theaccused officer.Hence, this charge is held as not proved." 5. On receipt of the enquiry report dropping of the charges,the Government in the impugned proceedings dated 18.3.2004 differedwith the finding of the enquiry officer and issued the impugnedshow-cause notice dated 18.3.2004 calling for explanation from thepetitioner and as to why appropriate orders should not be passedagainst the petitioner. The reason given in the show-cause noticeis that even an illiterate person will know that under a high tensionwire a coconut tree or any other tree cannot be planted. Furtherno crop cultivation will be taken up for the reason that the treesor the crop when they grow will touch the high tension wire.Therefore, by selecting the site under an high tension wire, thepetitioner has not taken reasonable care and caution and it can betreated as an omission on his part. Petitioner might have noticedthe high tension wire while he was inspecting the site, but heignored the same. As regards the charge of disobeying the directionor orders of superior, no reason has been given in the show-causenotice. In paragraph 5 of the show-cause notice, it has beenspecifically stated that the Government has disagreed with thefinding of the enquiry officer on all three charges and holds thatall three charges are proved. Thereafter, an explanation is soughtfor from the petitioner. Petitioner is further aggrieved asprovisional pension alone is paid and the regular pension is deniedstating that the enquiry is pending. On this premise the presentwrit petition has been filed. 6. The contention on behalf of the writ petitioner challengingthe show-cause notice differing with favourable finding of theenquiry officer is as follows:-(i) The reason given by the Government to disagree with the findingsof the enquiry officer is totally perverse, arbitrary andcapricious.(ii) The first charge is relating to alleged loss caused to theMarketing Committee. As per the enquiry officer's finding noloss has been caused to the Marketing Committee. The finding of https://hcservices.ecourts.gov.in/hcservices/ the enquiry officer has already been set out above. There is noloss on account of the petitioner.(iii)There is no reason given in the show-cause notice as to whichorder of the superior has been disobeyed by the petitioner.There is no statement in the show-cause notice as to how thepetitioner misconducted himself. There is no detail as to whatis the order of the superior, which was disobeyed. This is alsothe finding of the enquiry officer.(iv) In this case, para 5 of the show-cause notice clearly holds thatall the three charges have been proved. Having come to theconclusion that all the three charges are proved, there is nopurpose in replying to the show-cause notice. The departmentalproceedings is a mere formality as the issue is prejudged.(v) Though the petitioner had challenged the 17(b) charge memounsuccessfully before the Tribunal and failed before theDivision Bench of this Court, he submits that the respondentshave not complied with the mandatory requirement of Rule 56(1)(c)(iv) of the Fundamental Rules while pursuing the departmentalproceeding after retirement. Therefore, the entire proceeding isvitiated as it is contrary to law and has to be set aside.7. No counter-affidavit has been filed by the respondentDepartment. However, the learned Additional Government Pleaderstates that the petitioner has willingly participated in thedepartmental proceedings and therefore, cannot now raise a technicalplea and challenge the show-cause notice. Petitioner can file areply to show-cause notice and establish his innocence and prove thatthe action taken is in good faith without causing any loss. 8. At the outset, the show-cause notice issued differing withenquiry officer's report on the face of it has to be set aside onlyon the ground that the government has already prejudged the issueand has come to conclusion in paragraph 5 that the petitioner isguilty of the charges alleged. There is no scope for the petitionerto submit his explanation to disprove the charges when the Governmenthas already decided that the petitioner is guilty of all the charges.On this issue itself, the show-cause notice deserves to be set aside.9. The petitioner was allowed to retire on 30.9.1992 inG.O.Ms.No.599 dated 29.9.1992. The only statement in theG.O.Ms.No.599 is that the petitioner is allowed to retire withoutprejudge to the disciplinary proceedings pending against him. It isnot in dispute that the petitioner is a government servant in thesuperior service. He was allowed to retire on superannuation. Thisissue is covered by the Chapter IX, Rule 56(1)(c) of the Tamil NaduFundamental Rules. While applying the Rule 56, to the case of thepetitioner, against whom the Government has initiated an enquiry on https://hcservices.ecourts.gov.in/hcservices/ grave charges and is pending, the provision of Rule 56(1)(c)(i) to(iv) will come into operation and it reads as follows:-"56.(1) Retirement on Superannuation: - (a) x x x (b) x x x(c) Notwithstanding anything containedin clause (a), a Government servant who is undersuspension, (i) on a charge of misconduct; or (ii) against whom an enquiry into grave charges ofcriminal misconduct or allegations ofcriminal misconduct, is pending; or (iii) against whom an enquiry into grave chargesis contemplated or is pending; or (iv) against whom a complaint of criminal offenceis under investigation or trial,shall not be permitted by the appointingauthority to retire on his reaching the date ofretirement, but shall be retained in serviceuntil the enquiry into the charge of misconductor criminal misconduct or the enquiry intoallegations of criminal misconduct or the enquiryinto contemplated charges or disciplinaryproceeding taken under rule 17(c) of the TamilNadu Civil Services (Discipline and Appeal) Rulesor rule 3(c) of the Tamil Nadu Police Subordinateservice (Discipline and Appeal) Rules, as thecase may be, in respect of item (iv) above isconcluded and a final order passed thereon by thecompetent authority or by any higher authority." In this case, there is no order retaining the petitioner in servicepending enquiry into the grave charges issued on 25.9.1992 in termsof Section 17(b) of the Tamil Nadu Civil Supplies (Discipline andAppeal) Rules. Respondents have not followed the mandatoryprovision of the above said rules. Therefore, the entire proceedingsstands vitiated and invalid and the show-cause notice will be withoutjurisdiction. This view is fortified by the Division Bench decisionof this court in State of Tamil Nadu – vs. R.Karuppiah reported in(2005)2 MLJ 555 following the earlier decision in N.M.Somasundaram – https://hcservices.ecourts.gov.in/hcservices/ vs. - The Director General of Police, Madras reported in 1997 W.L.R.120. 10. A Division Bench of this Court by order dated 23.7.2003 inW.P.No.11087 of 2003 set aside the charge memo and proceedingsinitiated after the person concerned was allowed to retire withoutfollowing the mandatory provision of the Rule 56(1)(c) of theFundamental Rules. 11. In the present case also, the show-cause notice proceedingsconsequent to the 17(b) charge memo cannot be sustained as therespondents have not passed orders in terms of Rule 56(1)(c) of theFundamental Rules. The G.O.Ms.No.599 dated 29.9.1992, allowing thepetitioner to retire from service merely states that it is issuedwithout prejudice to the disciplinary proceedings. There is nospecific order retaining the petitioner in service. The requirementin law (i.e.) the rules have not been complied with. Hence, theproceedings impugned is liable to be set aside as invalid andwithout jurisdiction.12. Even on going through the imputation contained in the show-cause notice which is under challenge, on the face of it, the reasongiven in the show-cause notice to differ with the finding of theenquiry officer seems illogical and is also without application ofmind to the nature of charge alleged against the petitioner. Thefirst charge is causing loss to the Marketing Committee. Theenquiry officer has found that the loss has been made good by theAssistant Executive Engineer of the Board and therefore, there is noloss caused to the Marketing Committee much less by the petitioner.Whereas the government proceeds on the basis that the petitionerfailed to inspect the site properly and notice the high tension wirewhich even an illiterate person will do. The charge now statedagainst the petitioner, is omission which is different from the 17(b)charge No.1. The first charge against the petitioner does notsurvive as there is no loss. 13. Incidentally, it is not clear on what basis the show-causenotice states that under a high tension wire, no crop will grow asit will touch the high tension wire. This court is at loss to noticethat the officer who issued the impugned proceedings has not takencare to visit the rural areas of our State, where large extent ofland are cultivated, over which high tension wires run crisscross.No crop will grow upto the height of the high tension wire. It isonly exposes the misconception in the mind of the authority whoissued such proceedings without realising the ground realities. 14. In the impugned show-cause notice there is nothing to showwhich order of the superior authority was disobeyed. Withoutreference to any specific order of the said authority, the decisionof the respondent government that the charge Nos.2 and 3 are also https://hcservices.ecourts.gov.in/hcservices/ proved, only shows the callous and arbitrary manner in which theissue has been dealt with by the authority. 15. This court finds that the show-cause notice proceedingsissued in this case is totally arbitrary and without application ofmind and without jurisdiction as it has been issued against a personwho has been allowed to retire without passing an order in terms ofRule 56(1)(c). It is issued without any basis and it is a mereharassment. The petitioner cannot be denied the full retirementbenefit. 16. No doubt at the stage of show-cause notice, court willrefrain from interfering with the same. However, in this case, theshow-cause notice proceedings initiated is contrary to theFundamental Rules, therefore, without jurisdiction, besides, beingarbitrary and capricious. Further, the show-cause notice hasprejudged the issue by holding the petitioner guilty at para 5. Inthis circumstances, this court has no other option except to setaside the said show-cause notice that is challenged. In this regardthe following decision will be relevant:- Siemens Ltd., - vs. - State of Maharashtra reported in 2007(1) CTC 844 wherein the Apex Court held in paragraphs 10and 11 as follows:-"10. Although ordinarily a Writ Court may notexercise its discretionary jurisdiction inentertaining a Writ Petition questioning a noticeto show cause unless the same inter alia appearsto have been without jurisdiction as has been heldby this Court in some decisions including State ofUttar Pradesh v. Brahm Datt Sharma and Anr., AIR1987 SC 943, Special Director and Another v. Mohd.Ghulam Ghouse and Another, 2004(3) SCC 440 andUnion of India and Another v. KunisettySatyanarayana, 2006(12) SCALE 262, but thequestion herein has to be considered from adifferent angle, viz., when a notice is issuedwith pre-meditation, a Writ Petition would bemaintainable. In such an event, even if theCourts directs the statutory authority to hear thematter afresh, ordinarily such hearing would notyield any fruitful purpose. See K.I.Shephard andOthers v. Union of India and Others, 1987(4) SCC431 : AIR 1988 SC 686. It is evident in theinstant case that the respondent has clearly madeup its mind. It explicitly said so both in thecounter affidavit as also in its purported showcause. https://hcservices.ecourts.gov.in/hcservices/

11. The said principle has been followed bythis Court in V.C.Banaras Hindu University andOrs. v. Shrikant, 2006(6) SCALE 66, stating:"The Vice Chancellor appears tohave made up his mind to impose thepunishment of dismissal on theRespondent herein. A post decisionalhearing given by the High Court wasillusory in this case."In K.I.Shephard & Ors., etc. etc. v. Union ofIndia & Ors. AIR 1988 SC 686, this Court held :"... It is common experience thatonce a decision has been taken, there istendency to uphold it and arepresentation may not really yield anyfruitful purpose.""In this case also the authorities have prejudged the guilt of thepetitioner.17. In the result, the impugned show-cause notice calling uponthe petitioner to participate in the enquiry differing with thereport of the enquiry officer is set aside. The petitioner will beentitled to all service benefits including full pension. It isstated that the petitioner is now 75 years old. Respondent or theappropriate authority in-charge of payment of pension shall ensurethat the pensionary benefits and arrears if any has to be settledwithin a period of four weeks from the date of receipt of a copy ofthis order. Writ petition is ordered as above. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsTo 1. The Secretary to Government, Agricultural Department, Fort St. George, Chennai-600 009.2. The Director of Agriculture, Marketing, Tamil Nadu Thiru-Vi-Ka Industrial Estate, Guindy, Chennai-600 032. https://hcservices.ecourts.gov.in/hcservices/

3. The Principal Accountant General, Anna Salai, Teynampet, Chennai-600 018. + 1 c.c. to Mr. P.I. Thirumoorthy, Advocate. S.R.No.37359.+ 1 c.c. to The Government Pleader. S.R.No.37170. W.P.No.34995 of 2004AKR (CO)GSK 03.09.2009.