Madras High Court
R.Selvam vs Government Of Tamil Nadu on 8 January, 2020
Author: Subramonium Prasad
Bench: Subramonium Prasad
W.P.No.7086 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/01/2020
CORAM
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.7086 of 2015
and
WMP.Nos.14531 of 2017 & 16267 of 2016
R.Selvam ... Petitioner
Vs
1. Government of Tamil Nadu,
Rep. by its Secretary,
Revenue Department,
Secretariat, Chennai - 600 009.
2. The Principal Secretary / Commissioner of Land Reforms,
Ezhilagam, Chepauk,
Chennai – 5.
3. Director of Land Reforms,
Ezhilagam, 2nd floor, chepauk,
Chennai – 5.
4. Mr.A.V.Nandhakumar,
The Assistant Commissioner-III,
Land Reforms, Ezhilagam,
Chennai-5.
5. Tmt.N.Lakshmi,
W/o.A.V.Nandhakumar,
Superintendent, Land Reforms,
Ezhilagam, Chennai - 5. ... Respondents
1/21
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W.P.No.7086 of 2015
Prayer : Petition filed under Article 226 of the Constitution of India
praying for the issuance of Certioararified Mandamus, calling for the
records of the impugned charge memo vide Ref.No.A1/1289/2015
(L.Ref), dated 17.02.2015 issued by the 3rd respondent and quash
the same and direct the respondents to promote the petitioner to
the post of the Deputy Collector / Assistant Commissioner-I in the
office of the 3rd respondent.
(Prayer amended as per order dated 26.10.2015 in MP.No.4/2015 in
WP.No.7086/2015)
For petitioner ... Mr. L.Chandrakumar,
for Mr.K.Krishnamoorthy
For respondents ... Mr. A.Zakir Hussain,
G.A (for R1 to R3)
Mr.Ravi shanmugam for R4 & R5
------
ORDER
The instant writ petition is one for a Certiorarified Mandamus calling for the records relating to the charge memo dated 17.02.2015, issued by the Director of Land Reforms, Ezhilagam, Chepauk, Chennai, vide reference No.A1/1289/2015 (L.Ref), and quash the same and direct the respondent to promote the petitioner 2/21 http://www.judis.nic.in W.P.No.7086 of 2015 to the post of the Deputy Collector / Assistant Commissioner-I in the office of the 3rd respondent.
2. The writ petitioner joined the service in the office of the Director of Land Reforms as Junior Assistant. He was regularized by an order dated 11.02.1992. He was promoted as Assistant and later as Superintendent. The writ petitioner was deployed to undergo training as Tahsildar from 28.07.2010 and directed to go to Tiruvannamalai District. The training was completed. The writ petitioner was entitled to promote as Deputy Collector. While so, on 17.02.2015, a charge memo (impugned herein) was served on him. The charges framed against the writ petitioner are read as under:-
"Charge 1:
That there are 3 Nos. of Xerox Machines (Toshiba E-Studio 207 Model) in the Land Reforms Department. 'The Annual Maintenance Contract was entrusted to TvI.Puthur Infotech Private Limited for the period from 14.2013 to 31.3.2014.
The Annual Maintenance Contract expired on 31.3.2014. No timely action has been taken for renewal of Annual Maintenance Contract for Xerox Machines beyond 31.3.2014. Due to inefficiency of Thiru. R.Selvam, Superintendent, 'F' Section, the routine official function of the office could not be effectively performed and the staff found it difficult to get multiple copies for submitting it 3/21 http://www.judis.nic.in W.P.No.7086 of 2015 for the meetings, sending reports to Government, to Court, etc. Charge 2:
That there are 10 New HP Computers which installed during February 2013 were running without Anti-virus protection. There are also 12 old computers were running without Anti-virus. .The Anti-virus was installed only in December 2014. No action has been taken by Thiru R.Selvam, Superintendent, 'F' Section for installation of Anti-virus to the new and old computers. Without Anti- Virus number of systems affected by virus. With the result, the routine official function of the office could not be effectively performed and the staff found it difficult to work in the computers for preparation of reports for the meetings, sending report to Government, to Court, etc. Charge 3:
That there are 31 old Typewriter machines, kept unused for the past 8 years. The Superintendent 'F' Section ought to have handover the Typewriters to the Director of Stationery and Printing. No action has been taken by Thiru R.Selvam, Superintendent, 'F' Section to handover the Typewriting machines kept in the Record Room in spite of repeated instructions from the Assistant Commissioner III.4/21
http://www.judis.nic.in W.P.No.7086 of 2015 Charge 4:
That Thiru R.Selvam, Superintendent, 'F' Section, has not put the Travelling Allowance claims of the Assistant Commissioners (Land Reforms) to the Director of Land Reforms for counter signature so as to send the same to the Assistant Commissioners in the district for presenting TA claim Bill to the Treasury office before the disbandment of the Assistant Commissioners (Land Reforms) Office on 31.1.2015. During the meeting of the Assistant Commissioners and District Revenue Officers held on 23.12.2014 and 21.1.2015, the Assistant Commissioners (Land Reforms) have made complaints that the Travelling Allowance claims for 6 month, have not been sanctioned and expressed the urgency that the bill have to be presented to the concerned Treasury Office before the disbandment of the Assistant Commissioner's offices in the district, i.e.31.1.2015. In spite of repeated instructions by the Principal Secretary / Commissioner of Land Reforms and Director of Land Reforms, he has not taken the timely action to obtain counter signature of the Director of Land Reforms and despatching the same so as to reach the Assistant Commissioners (Land Reforms) for presenting the bill before 31.1.2015. ~ne countersigned TA claims were dispatched on 27.1.2015 resulting the Assistant Commissioner (Land Reforms), Tirunelveli received only on 9.2.2014 and could not present the bill to the Treasury Office as the office was disbanded with effect from 31.1.2015.5/21
http://www.judis.nic.in W.P.No.7086 of 2015 Charge 5 File No.Hl/9607/2011 (L.Ref.) dealt with the vehicles belonging to the Land Reforms Department was transferred to 'F' on, 18.12.2012. The staff cars TN 10G 8118 and TN 07 AX 4992 Maruti Zen used by the Commissioner of Land Reforms and Director of Land Reforms, were purchased on 9.1.2002 and 24.11.2004 respectively. The conditions of the vehicle were not road worthy even during the year 2012. The Maruti Zen Cars have attained the age of condemnation. Thiru R.Selvam, Superintendent has not taken any action for condemnation of the above vehicles till 14.4.2014. As on 14.4.2014, TN 10G 8118 and TN 07 AX 4992 have completed 1,25,310 Km. and 1,05,225 Km., respectively. Hence there was no other way except to use the two Scorpios used by erstwhile Chairman and Joint Chairman of the erstwhile Tamil Nadu Agricultural Labourers Welfare Board temporarily till the new vehicles purchased for the use of PS/CLR and DLR. With the result new cars for the use of PS/CLR and DLR. With the result new cars for PS/CLR and DLR could not be purchased since no proposal was sent to the Government for condemnation of the Maruti zen cars.
Charge 6:
Thus he has failed to perform his official duties sincerely and expected and therefore, violated Section 20(1) of Tamil Nadu Government Servants Conduct Rules 1973."
3. Since the charges has been initiated against the writ 6/21 http://www.judis.nic.in W.P.No.7086 of 2015 petitioner, the petitioner was not considered for promotion from the post of Superintendent to the post of Assistant Commissioner which is equivalent to that of Deputy Collector. The instant writ petition is for quashing the said charge memo. There are two main challenges in the writ petition. The first is that the charge memo is vitiated by malafides. It is alleged that the 4th respondent Mr.A.V.Nandhakumar, wanted to favour his wife Tmt.N.Lakshmi for the next promotion.
According to the writ petitioner, Mr.A.V.Nandhakumar, is working as an Assistant Commissioner in Land Reforms Department and he wanted to ensure that the writ petitioner is disqualified from being considered for the post, so that his wife gets appointed as Assistant Commissioner.
4. The second allegation is that the charge memo framed against the writ petitioner does not warrant imposition of the major penalty and therefore the proceeding for imposing major penalty under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, could not have been initiated.
5. The respondents have filed their reply stating that the writ 7/21 http://www.judis.nic.in W.P.No.7086 of 2015 petitioner is guilty of failing to discharge his duties to be performed as a Superintendent in the office of the Commissioner of Land Reforms. It is stated that the petitioner has been negligent in performing his duties and therefore, the respondents are justified in initiating proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
6. It is pertinent to mention here the writ petitioner has not been considered for four consecutive years for promotion on account of the charges. Respondents 4 and 5 who have been arrayed in their personal capacity denied all the charges and allegations leveled against them. It is stated that the 4th respondent who was working with the office of the Commissioner, Land Reforms, was in no way responsible for the charges leveled against the writ petitioner, so as to facilitate his wife who was also a Superintendent at that point of time and was junior to the writ petitioner.
7. Heard the learned counsel for the parties and perused the material on record.
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8. Mr.L.Chandrakumar, learned Counsel appearing on behalf of the petitioner would state that the charges are extremely vague and definitely are not serious enough to initiate the proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, for major penalty. He would rely on the guidelines issued by the Government of Tamil Nadu, P & AR Department, vide circular No.14353/Per. N/93-1, P & AR (Per N) Department, dated 11.03.1993, wherein guidelines have been laid down giving out parameters on how, when and which misconduct will come under Rule 17(a) or 17
(b) of Tamil Nadu Civil Services (Classification, Control & Appeal) Rules, 1953. The guidelines reads as under:-
"Of late, it has been noticed that some of the disciplinary authorities frame charges under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, 1953, in a routine manner even for minor offences which might not ultimately result in imposition of any major penalty. In order to avoid the framing of charges unnecessarily under rule 17(b) even for minor lapses and to avoid necessary prolonging of disciplinary cases, it is considered necessary to issue some guidelines in framing charges under the relevant rules so as to eliminate the delay in processing the disciplinary cases.
2. The procedure to be followed in disciplinary cases against Government servants is laid down in detail in the 9/21 http://www.judis.nic.in W.P.No.7086 of 2015 Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. The Tamil Nadu Civil Services (Classification Control and Appeal ) Rules have been framed in conformity with the provisions of Article 311 of the Constitution of India. It is absolutely necessary that the procedure as laid down in those rules and the various instructions issued thereunder are followed rigidly. Any failure to observe the proper procedure, either wilfully or through negligence, is liable to vitiate the entire proceedings under them null and void. Necessary instructions were also incorporated in Chapter II of the "Handbook on Disciplinary Proceedings" regarding the guidelines to be followed while framing charges.
3. Decision to charge an Officer should be taken only when full facts have been gathered and evaluated and there is non- controvertible inference and material that a misconduct has been committed. Once a decision has been taken to the effect that formally disciplinary proceedings should be instituted against the Government servant under the rules, the disciplinary authority will have to consciously decide whether proceeding should be taken under Rule 17(a) or 17(b), i.e., for imposing a minor or a major penalty. It should be borne in mind that the nature of disciplinary action and the quantum of punishment are to be commensurate with the gravity of the charges alleged to have been committed.
4. The disciplinary' authorities should frame charges under rule 17(b) only when they are of the firm view that the charges, if framed and proved, would result in the imposition of any of the major penalties, namely, dismissal 10/21 http://www.judis.nic.in W.P.No.7086 of 2015 from service, removal from service, compulsory retirement or reduction to a lower rank in the seniority list or to a lower post or time-scale. The specific procedure under rule 17(b) has to be followed (from the stage of enquiry, after the receipt of the explanation) 2. also when the second proviso to rule 17(a) is attracted. The cases of indiscipline, moral turpitude, corruption, bigomous marriage unauthorised absence, etc., would attract action under rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. For delinquencies other than the above not involving moral turpitude, a simple show cause notice under rule 17(a) would be quite adequate instead of framing specific charges as in the case under rule 17(b), unless a major punishment is really warranted.
5. However, in order to demarcate the framing of charges under rule 17(b) and proceedings under rule 17(a) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, the guidelines to be followed are given in the Annexures to this Circular. All the Departments of Secretariat, the Heads of Department, etc., are requested to follow the guidelines indicated in the Annexures while framing charges and ensure that the appropriate rule i.e., 17(a) or 17(b) is invoked against the erring employees and the procedure prescribed under the relevant rules are observed in full without any omission so as to avoid unnecessary delay, etc., in processing the disciplinary cases.
6. A rough - and ready method to determine whether charges arc to be framed tinder rule 17(b) or show cause notice is to be issued under rule 17(a) would be as follows:11/21
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a) Is a major penalty warranted If yes, Frame based on the gravity of the charges under allegations? Rule 17(b).
b) In all other cases Proceed under
Rule 17(a).
7. The receipt of this Circular may be acknowledged, and these instructions may be brought to the notice of the disciplinary authorities under your control."
9. The said guidelines came for consideration before the Division Bench of this Court in Secretary to Government Vs. S.Nithyanandam, in WP.No.19144 of 2004, has observed as under:-
"4. The second contention by the learned counsel for the petitioner is that the Disciplinary Authority has the discretion to consider as to whether the charge memo should be under Rule 17(a) or Rule 17(b) of the Rule's and such discretionary matters should not be interfered with by the Tribunal while exercising the power of judicial review.
5. It is well settled that when a charge memo is issued,the Courts should not ordinarily interfere with such charge memo unless the charge memo is arbitrary or is entirely baseless. It is not necessary to refer general decisions of the Supreme Court on this aspect, as it is settled law that only in exceptional cases the Tribunal or 12/21 http://www.judis.nic.in W.P.No.7086 of 2015 the High Court should interfere with the charge memo depending upon the facts and circumstances of the case.
6. A perusal of the order of the Tribunal shows that the Tribunal's of the considered opinion that the allegations do not warrant, the initiation of the proceedings under Rule 17(b) of the Rules which contemplates imposition of major penalties. The Tribunal was fully convinced keeping in mind the nature of the allegations that the charge should have been framed under Rule 17(a) as the charges were not serious in nature. In this connection, it may be pointed out, that even though the Tribunal has not referred to the guidelines issued by the Government for deciding whether the charges could be framed under Rule 17(a) or under 17(b), it is quite obvious that the Tribunal had kept in mind chose guidelines. The guidelines are to the following effect.
GUIDELINES FOR DECIDING WHETHER CHARGES MAY BE FRAMED UNDER RULE 17(b) (1) Cases in which there is reasonable ground to believe that a penal offence has been committed by a Government Servant but the evidence forthcoming is not sufficient for prosecution in a court of law, e.g.,
(a) possession of assets disproportionate to the known sources of income;
(b) obtaining or attempting to obtain illegal gratification;
(c) misappropriation of Government property, money or shares;13/21
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(d) obtaining or attempting to obtain any valuable thing of pecuniary advantage without consideration or for a consideration which is not adequate etc., (2) Falsification of Government records. (3) Irregularity or negligence in the discharge of official duties with a dishonest motive.
7. It is not disputed that the charges framed against the petitioner do not come under (1) and (2) of the aforesaid Guidelines. Learned counsel for the petitioner has submitted that the charges framed against the petitioner come under paragraph 3 of the guidelines. We are unable to accept this submission. Even if the action of the respondent. No.1 may amount to irregularity or negligence in the discharge of his Official duties, there is no whisper in the charge memo or to the effect that it was with any dishonest motive. Moreover, it is not the contention of the counsel for the petitioner that there was any dishonesty on the part of respondent No.l in the discharge of his official duties.
8. The learned counsel for the petitioner has contended that these guidelines cannot supersede the statutory rules and when the statutory rules are in existence, any Government instruction or guidelines issued contrary to the Government Rules, has to be ignored. There cannot be any dispute that the Executive instructions of Government can only be supplemental to the statutory rules, where statutory rules are silent and such instructions cannot supplant the rules. In the present case, the instructions are intended to be used only as supplemental 14/21 http://www.judis.nic.in W.P.No.7086 of 2015 and they are not intended to supersede the statutory Rules. In the absence of conflict between the guidelines and the statutory rules, the Disciplinary Authority, while issuing the charge memo, was required to keep in mind the guidelines."
10. Similarly, this Court in J.Jayanthi Vs. The Secretary to Government, passed WP.No.17740 of 2012 dated 20.02.2014, has observed as under:-
"15.It is to be noted that "Judicial Review" is to be addressed to the decision making process. Whether or not the Competent Authority has before him the material for resorting to the decision making process is indeed an important consideration for Judicial Review at the threshold of enquiry and not after the employee had undergone the agony of sufferings and harassments.
16.Further, the issuance of charge sheet is a serious matter and the Competent Authority may issue a charge sheet only when he has taken into consideration the relevant materials which primafacie indicates a case against delinquency and when he has come to a conclusion that it is necessary in public interest to go into the merits of allegations by issuing a formal charge sheet to an employee. "
11. Similarly, this Court in WP.No.25785 of 2011 dated 15/21 http://www.judis.nic.in W.P.No.7086 of 2015 06.02.2012, has observed as under:-
"9. Learned counsel for the petitioner referred to imputations of allegation where the allegation levelled against the petitioner is only that he had failed to create 'user log in id'. According to the circular and instructions the responsibility to create 'user log in id' is that of the Regional Transport Officer as per Vahan & Sarathi Chapter II para 2.1 and therefore, this misconduct cannot be attributed to the petitioner. The charge against the petitioner at best can be that of negligence in duty in not supervising the working of the sub-ordinates without any allegation of dishonest motive. The charge if taken to be as framed, would not be covered under the charges for which major penalty can be imposed for misconduct under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules being only a irregularity or negligence in discharge of official duties without dishonest motive to attract Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
12. On consideration, I find force in the submissions of the learned counsel for the petitioner. A reading of the charge memo issued against the petitioner, along with allegations of misconduct leave no manner of doubt that the allegation against him is only of negligence of duty without any allegation of dishonest motive. The allegation of integrity is based on non-creation of 'user log in id', this lapse cannot be fastened on the petitioner as it is the duty of the Regional Transport Officer to create 'user log in id'.16/21
http://www.judis.nic.in W.P.No.7086 of 2015 Therefore, it is not open to the State to frame charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, so as to deny the promotion. This view finds force from the judgment of this Court in W.P.No.19144 of 2004 [The Secretary to Government, Home Police (SC) Department, Chennai vs. S.Nithyanandam and another] decided on 07.12.2004."
12. A perusal of the above mentioned judgments would show that for every misconduct it is not necessary for the department to initiate proceedings for imposing major penalty. The consequence of initiating proceedings for imposing major penalty under Rule 17(b) results in non-consideration of employee for future promotions. Initiation of proceedings under Rule 17(b) even for minor misconducts has the effect of demoralizing Officers who are working efficiently. Such an attitude has dampening effect and the officers scared to take decisions without any fear. Such an exercise is conducive for a healthy functioning of the department. Officers are entrusted to work honestly and fearlessly. In the present case initiation of proceeding is not justified keeping in mind the guidelines framed under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules by the Government, the judgments of 17/21 http://www.judis.nic.in W.P.No.7086 of 2015 this Court mentioned in the foregoing paragraphs.
13. A perusal of the charges would show that they do not warrant any major penalty and therefore proceedings under Rule 17(b) ought not to be initiated against the instant case. This Court is fully aware that High Courts while exercising its jurisdiction under Article 226 of the Constitution of India, must not interfere in charge memo (Refer Union of India Vs. Kunisetty Sathyanarayana, (2016) 12 SCC 28. However, in the present case after looking the charges framed against the writ petitioner and further taking into consideration the guidelines framed by the State of Tamil Nadu for initiating proceedings under Rule 17(a) or 17 (b) of Tamil Nadu Civil Services (Classification, Control & Appeal) Rules, 1953 and the judgment of Secretary to Government Vs. S.Nithyanandam, (supra), this Court is of an opinion that disciplinary proceedings initiated under Rule 17(a) is not justified. The proceedings under Rule 17(b) are therefore quashed. It is for the respondents to proceed ahead with enquiry under Rule 17(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules.
18/21 http://www.judis.nic.in W.P.No.7086 of 2015 Mr.L.Chandrakumar, learned counsel for the petitioner states that he does not wish to argue on malafides.
14. The writ petition is allowed. The respondents can proceed against the petitioner by initiating proceedings under Rule 17(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules. No Costs. Consequently, the connected miscellaneous petitions are closed.
08/01/2020
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
Pkn.
To
1. The Secretary,
Government of Tamil Nadu,
Revenue Department,
Secretariat, Chennai - 600 009.
19/21
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W.P.No.7086 of 2015
2. The Principal Secretary / Commissioner of Land Reforms, Ezhilagam, Chepauk, Chennai – 5.
3. Director of Land Reforms, Ezhilagam, 2nd floor, chepauk, Chennai – 5.
4. Mr.A.V.Nandhakumar, The Assistant Commissioner-III, Land Reforms, Ezhilagam, Chennai-5.
5. Tmt.N.Lakshmi, W/o.A.V.Nandhakumar, Superintendent, Land Reforms, Ezhilagam, Chennai - 5.
SUBRAMONIUM PRASAD, J Pkn.
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