Madras High Court
G.Sekar vs The State Of Tamil Nadu on 26 March, 2012
Author: N. Paul Vasanthakumar
Bench: N. Paul Vasanthakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/03/2012 CORAM THE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR W.P.(MD).No.402 of 2011 And M.P.(MD).No.1 of 2011 G.Sekar ... Petitioner Vs 1. The State of Tamil Nadu represented by its Secretary School Education Fort St. George Chennai 2. The Director of School Education DPI compound, College Road Chennai - 6 3. The Joint Director (Higher Secondary) DPI Compound College Road Chennai - 6 4. The Chief Education Officer Thoothukudi District Thoothukudi 5. The Head Master Government Higher Secondary School Karungulam Thoothukudi District ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari calling for the records pertaining to the impugned charge memo in Na.Ka.No. 81627/W2/E3/09, dated 16.12.2010 on the file of the respondent No.3 and quash the same as illegal. *** !For Petitioner ... Mr.T.Lajapathi Roy ^For Respondents... Mr.S.Chandrasekar Government Advocate :ORDER
The prayer in the Writ Petition is to quash the impugned charge memo, dated 16.12.2010, on the file of the third respondent.
2. The case of the petitioner is that the petitioner is working as Post Graduate Teacher (Mathematics) in the fifth respondent school. On 14.09.2009, the third respondent has issued a charge memo alleging that the petitioner was negligent with regard to the verification of marks entered at the Mark Sheet from the answer script. Disciplinary proceeding was also initiated under Section 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The petitioner has submitted an explanation and thereafter, by an order, dated 18.11.2009, the third respondent imposed the punishment of stoppage of increment for three years with cumulative effect. As against the said punishment, the petitioner filed a Review Petition before the third respondent and the same is pending. For the alleged dereliction which is the subject matter for the earlier charge memo, dated 14.09.2009, the present impugned charge memo has been issued under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The petitioner is challenging the said charge memo on the ground that for the allegation in the complaint against the petitioner and in respect of the same set of facts, the second charge memo cannot be issued which will be amounting to jeopardy.
3. The learned counsel for the petitioner also relied on the Judgment of this Court as well as the Hon'ble Supreme Court in support of his contention.
4. Heard the learned Government Advocate appearing for the respondents.
5. Even though notice of motion was ordered on 11.01.2011, no counter affidavit was filed as on today.
6. I have perused the impugned charge memo, dated 16.12.2010, which states that during March 2009, in Higher Secondary Examination, the petitioner while serving as Supervisor failed to note the entry in mark sheet relating to Registration No.724460 as 060 instead of 087/100 in Tamil paper - I and a complaint was received on 10.08.2009 by the Director of Government Exams. Therefore, the charge memo is issued. Earlier, on 14.09.2009, the third respondent issued charge memo which reads as follows:-
"Mr.G.Sekar, Post Graduate Teacher (Tamil), Karungulam Government Higher Secondary School, Thoothukudi District, has committed the following misconduct:
With regard to the valuation duty for Higher Secondary Examination March- 2009, while entering the mark awarded by the Assistant Examiner for Registration No. 724460 in the mark sheet for the Tamil - I paper answer sheet, the mark has been wrongly entered as 60 instead of 087/100 and the same was not noticed irresponsibly by Mr.K.Subramanian (Scheduler -Post Graduate Tamil) and hence, the concerned candidate has lost 27 marks. This mistake came to light when the student asked for xerox copy of the answer sheet and obtained it. So mental agony was caused to the said student.
Hence, action is initiated under 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
15 days time is granted from the date of receipt of this proceedings for giving explanations, if any, for the above said misconduct.
Within such period, if no explanation is offered, it will be deemed that there is no explanation to offer and order will be passed based on the available records."
7. The petitioner has given a reply to the earlier charge memo and the third respondent passed final order on 18.11.2011 accepting the explanation submitted by the petitioner in part, and imposed the punishment of stoppage of increment for three years with cumulative effect. Even though in the impugned charge memo, the earlier charge memo and the final order are mentioned, the third respondent has issued the second charge memo based on the very same allegations. The said action taken by the third respondent by issuing the second charge memo for the very same allegation, is hit by the principles of double jeopardy.
8. The issue was considered by the Supreme Court in the decisions in Lt. Governor, Delhi and Others Vs. HC Narinder Singh reported in (2004) 13 SCC 342, it is held that "Lack of devotion to duty is mentioned as the reason for the proposed action which was the subject-matter of the earlier proceedings as well. The second proposed action based on the same cause of action proposing to deny promotion or reversion is contemplated under the impugned show-cause notice. Second penalty based on the same cause of action would amount to double jeoparty". In Union of India Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28, in para 18, it is held that the second enquiry on the same set of facts is not maintainable. The two decisions were followed by this Court in the decision in S.Arumugathiraviam Vs. Tamil Nadu Small Industries Corporation Ltd., reported in (2010) 5 MLJ 346.
9. Applying the said Judgments to the facts of this case, the second charge memo issued by the third respondent which is impugned in this Writ Petition, is vitiated as it is hit by the principles of double jeopardy. Accordingly, the impugned charge memo, dated 16.12.2010, issued by the third respondent is quashed and the Writ Petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.
vsg To
1. The District Collector Tirunelveli District Tirunelveli
2. The District Collector Kanyakumari District Nagercoil
3. The Superintendent of Police Tirunelveli District Tirunelveli
4. The Superintendent of Police Kanyakumari District Nagercoil
5. The Inspector of Police Kalikkavilai Police Station Kalikkavilai Kanyakumari District
6. The Assistant Director Department of Geology and Mining Kanyakumari District Nagercoil
7. The Manager Tvl. Blue Metals Company 64, Tiruchendur Road Kumbikulam 627 112 Radhapuram Taluk Tirunelveli District