Madras High Court
N.Chandrasekaran vs State Of Tamil Nadu on 27 February, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 27.02.2017
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
WP(MD)No.2388 of 2009
N.Chandrasekaran .. Petitioner
Vs.
1.State of Tamil Nadu,
Through the Secretary to Government,
Home (Tr.II Dept.)
St. George Fort, Chennai-9.
2.The Transport Commissioner,
Office of the Commissioner,
Chepauk,
Chennai-5.
3.The Deputy Transport Commissioner,
Chokkikulam,
Madurai. ..Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
to issue a writ of certiorari, calling for the records pertaining to the
impugned proceedings of the 1st respondent vide G.O.(D)No.436/Home/Tr-II and
the consequent proceeding in charge memo vide letter of the 1st respondent
bearing No.9206/Tr-II/2007-22 dated 17.04.2008 and the consequential
G.O.(D)No.1117/Home Tr. Dept dated 14.10.2008 and quash the same in so far as
petitioner?s concern.
!For Petitioner : Mr.C.Jeganathan
For Respondents : Mr.K.Guru
Additional Government Pleader
:ORDER
This writ petition has been filed by the petitioner to issue a writ of certiorari, calling for the records pertaining to the impugned proceedings of the 1st respondent vide G.O.(D)No.436/Home/Tr-II and the consequent proceeding in charge memo vide letter of the 1st respondent bearing No.9206/Tr-II/2007-22 dated 17.04.2008 and the consequential G.O.(D)No.1117/Home Tr. Dept dated 14.10.2008 and quash the same in so far as petitioner?s concern.
2.The case of the petitioner is that he was working as Regional Transport Officer, Madurai North. The Vigilance and Anti Corruption Department officials were made surprise checking on 28.10.2002 at the office of the Regional Transport Office, Madurai North and thereafter the case was registered in Cr.No.13 of 2002 under Sections 120B, 420, 167 and 109 of I.P.C. and also 13(1)(a) and (d) read with Section 13(2) of the Prevention of Corruption Act, on 28.10.2002 against the petitioner and 38 others and the accused Nos.1 to 19 were Government servants who were employed under the petitioner?s office Regional Transport Office, Madurai North.
3.The petitioner further states that this petitioner was named as accused No.3 and on the date when F.I.R. was registered, he was working as Regional Transport Officer (Salem). He also states that when he was working as Motor Vehicle Inspector Grade-I from 11.06.1997 to 07.03.2001 in the office of the Regional Transport Office at Madurai South and he was promoted as Regional Transport Officer, Madurai North and he joined in service on 07.03.2001 and served there till 12.06.2002. The accused Nos.20 to 39 were 3rd parties who are the various Mini Bus Operators and their authorised agents.
4.The writ petitioner also come forward by saying that one of the allegations mainly in the said F.I.R. was that along with other accused persons, this person, who was the accused No.3 in the said crime number permitted mini bus operators within his jurisdiction without proper permit and when the raid was conducted by the Department, which found some unscrupulous operators plying their mini buses within his territory of the petitioner without permit. When the petitioner was working as Regional Transport Officer, Sivagangai, he was about to retire in the afternoon, but his services were extended vide G.O.(2D) No.63 and he was placed under suspension vide G.O.(2D)No.62 dated 31.01.2007 afternoon and the reference was taken into account of the occurrence dated 28.10.2002. But, the petitioner states that even after lapse of 6 years, there was no progress in the investigation in the F.I.R. Therefore, this petitioner was filed a quash petition of Criminal Original Petition in Crl.O.P.(MD)No.857 of 2008 and considering the petitioner?s case, the Madurai Bench of this Court quashed the said F.I.R. by order dated 20.02.2008.
5.The writ petitioner also states that after quashing of the said F.I.R. by the Madurai Bench of this Court in Crl.O.P.(MD)No.857 of 2008, the 1st respondent/Secretary to Government issued G.O.No.436/Home/(Tr.II) Department dated 17.04.2008 cancelling G.O.(D) No.1037 dated 21.08.2007 on the basis of which a departmental proceedings was initiated against this petitioner on the basis of the F.I.R. dated 28.10.2002. But, the very same G.O. a new disciplinary proceeding has been initiated without dropping the earlier charge memo issued and the 1st respondent has proposed to take disciplinary action and proposes to hold enquiry. A communication dated 17.04.2008 received by the Regional Transport Office on 15.05.2008, which was served on the petitioner in the month of June 2008.
6.The petitioner states that the said communication it was stated that the earlier charge memo issued by the Transport Commissioner, Chennai vide R.No.78761/V6/2 dated 22.01.2007 is superseded and the 1st respondent had proposed to hold enquiry for charges under Rule 17(b) and directed the petitioner to send a reply within 21 days. The said communication also states that the 1st respondent is to hold enquiry in this regard.
7.The petitioner further states that as per the Rule 9A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, describes that where an enquiry is initiated on more than one person contemplating punishment under Rule 8, the authority who is working as immediate superior to the person holding the highest office among to delinquents should be the enquiry officer and this procedure has been laid in G.O.Ms.No.26/Personal and Administrative Reforms (N) dated 15.02.2008 and by narrating the above fact, this petitioner has given a reply dated 25.06.2008.
8.It is the case of the petitioner is that in the said charge memo contains one charge against this petitioner stated that as a Regional Transport Officer, Madurai North, he abused his powers and permitted the mini bus operators to operate the buses in non-permitted routes. Therefore, the said charge against this petitioner was vague. The annextures contain the statement of various operators recorded during surprise check mentioning about plying of buses without permit, which is also the subject matter of the F.I.R. that has been quashed by this Court on 20.02.2008. Later on, as per G.O.No.1117 dated 14.10.2008, a new enquiry officer was appointed after the reply received from the petitioner.
9.The writ petitioner also come forward by saying that the earlier disciplinary proceedings vide the charge memo of the 2nd respondent dated 22.01.2007 vide R.No.78761/V6/2, which is pursuance of and on the basis of the report submitted by the D.V.&A.C. on 08.10.2001, but the said charges in the earlier proceedings were suo-motu superseded by the disciplinary authority due to the quashment of the F.I.R. in Cr.No.13 of 2002. That being so, the 1st respondent has based on the charges in the impugned proceedings vide G.O.(D) dated 436/Home/Tr-II Department dated 17.04.2008 has simply extracted the allegations from the earlier charge memo, which is per se illegal and exposes the predetermination of the authority. The proceedings are initiated even without taking into consideration that the petitioner has attained superannuation on 31.01.2007 itself, but only his services were extended by G.O.63 in the afternoon. Therefore, challenging the order dated 17.04.2008 and the consequential G.O.(D)No.1117/Home Tr.Dept. dated 14.10.2008 for quashing the said impugned orders, this writ petitioner has filed the present writ petition.
10.A counter affidavit has been filed on behalf of the respondents.
11.In the counter, it is stated that when the petitioner while working as a Regional Transport Officer, Madurai (North), by abusing his official position, allowed Mini Bus Operators to operate their Mini Buses in the Non- permitted routes by violating the permit conditions and causing financial loss to the Government and thereby failed to maintain absolute integrity and devotion to duty and conducted himself in a manner unbecoming of a member of service and thus violated the Rule 20(1) of the Tamil Nadu Government Servants Conduct Rules 1973. Therefore, a charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was framed against him, in Government Letter No.9206/Tr-II/07-22 dated 17.04.2008 by the 1st respondent, superseding the earlier charge memo issued by the Transport Corporation in memo R.No.78761/V6/2002 dated 22.01.2007. When the petitioner and other Government Servants are jointly and severely involved in this disciplinary case, the 1st respondent/Secretary to Government, in exercise of the powers conferred under Rule 9A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, framed charge against them in common disciplinary proceedings.
12.The respondent also come forward by saying that when the petitioner was attained the age of superannuation on the afternoon of 31.01.2007, he was placed under suspension as per G.O.(2D)No.62, dated 31.01.2007 based on the complaint pending against this petitioner in a criminal offence in Robin Mayne case is under investigation and as of now, the criminal case is against this petitioner still pending trial before XIth Additional Sessions Court (CBIcase), Chennai and at the stage of Prosecution Evidence and as the public interest warrants such a measure, the petitioner was not permitted to retire from service and retained in service in G.O.(2D) No.63, Home (Tr.II) Department, dated 31.01.2007.
13.The respondent also states that every disciplinary case is mostly proceeded by a preliminary inquiry or investigation which will be conducted either by the Directorate of Vigilance and Anti-Corruption, or by Department itself. This investigation or inquiry is purely fact finding inquiry to determine whether there is a prima facie case for a formal inquiry. Though the Tamil Nadu Civil Services (Discipline and Appeal) Rules, provide for two procedures, namely one for the imposition of a major penalty and the other for the imposition of a minor penalty. Once a decision is taken after a preliminary inquiry or investigation, that a prima facie case exists and then formal disciplinary proceedings are instituted against a delinquent Government Servant under the said Rules. The petitioner along with other charged officials is jointly and severely involved in a disciplinary case, the 1st respondent framed charges against him following the procedure laid down under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Therefore, the 1st respondent considered the above nature of the case, the inquiry authority was appointed to inquire into the charge framed against the petitioner. Therefore, he denied in the said charges without prejudice to the generality of situation involving indiscipline, moral turpitude corruption etc., action for imposing major penalties under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, has been initiated and hence the contention made in this paragraph is not correct. Therefore, the writ petition is devoid of merits and the respondents prayed for dismissal of the writ petition.
14.I heard Mr.C.Jeganathan, learned counsel appearing for the petitioner and Mr.K.Guru, learned Additional Government Pleader, appearing for the respondents.
15.Admittedly, the case has been registered against this petitioner along with other accused in Crime No.13 of 2002 and the said criminal case was quashed by the Madurai Bench of this Court on 20.02.2008, on the ground that when the petitioner was employed as Regional Transport Officer, Madurai and he has abused his powers and permitted the mini bus operators to operate the buses in non-permitted routes.
16.Pursuant to the above registration of the case, the 1st respondent has issued a G.O.(2D)No.62 dated 31.01.2007 suspending the petitioner on the date of his retirement and as per the G.O.(2D)No.63 dated 31.01.2007, the petitioner?s service was extended, since the departmental enquiry pending against him.
17.After the above incidents, a charge memo was issued by the 2nd respondent on 22.01.2007, as per the memo R.No.78671/V6/02, the charges are as follows:
?Charge-I Thiru N.Chandrasekaran, while working as Regional Transport Officer in the office of the Regional Transport Office Madurai (North) had encouraged his subordinates to misguide and re-register Mini Buses against the provisions of Motor Vehicle Act 1988 and rules made thereunder. Charge-II Thiru.N.Chandrasekaran Regional Transport Officer acted in favour of Transport Operators so as to approve the alteration of stage carriage into Mini Bus violating the provisions of Motor Vehicle Act 1988 and rules made there under thereby resulting in huge loss of revenue to the Government.
Charge-III The mini bus owners with the connivance of Thiru.N.Chandrasekaran, Regional Transport Officer and his subordinate officials who were aware of the same and created bogus R.C.Books through Thiru.Thilak and Vijayan of Namakkal as if the vehicles were registered in the office of the Regional Transport Officer Mokokchung, Nagaland and re-registered them at Regional Transport Office, Madurai (North) in order to get pecuniary advantages by violating the provisions contained in Rule 103 of Tamilnadu Motor Vehicle Rules 1989.?
18.For the above charges, this petitioner also given his reply denying the above charges. In the meantime, this petitioner has approached this Court along with other 3 accused and filed a criminal case in Crl.O.P.(MD)No.857 of 2008 before the Madurai Bench of this Court for quashing the F.I.R. in Cr.No.13 of 2002, on the file of the Deputy Superintendent of Police, Vigilance and Anti-Corruption, Madurai District. This Court by order dated 20.02.2008 quashing the said F.I.R. in Cr.No.13 of 2002, on the ground that the Deputy Superintendent of Police, Vigilance and Anti-Corruption, Madurai states that they are going to refer the matter only for departmental action and they are not going to proceed with the criminal proceedings. Therefore, the said F.I.R. was quashed by this Court. Pursuant to the order of the quashing of the F.I.R., the 1st respondent has issued the present charge memo dated 17.04.2008 and the present charge memo has stated as follows:
?Charge-I Thiru N.Chandrasekaran, while he was working as a Regional Transport Officer, Madurai North, by abusing his official position, allowed mini bus operators to operate their mini bused in the non-permitted routes by violating the permit conditions and caused financial loss to the Government and thereby failed to maintain absolute integrity and devotion to duty and conducted himself in a manner unbecoming of the member of service and thus violated the Rule 20(1) of Tamil Nadu Government Servants? Conduct Rules 1973.?
Challenging the said charge memo, the present writ petition has been filed before this Court.
19.Pursuant to the above charge memo, the 1st respondent has issued G.O.(D)No.1117 dated 14.10.2008 appointing an enquiry officer to enquire into the said case against the petitioner and this G.O. was also challenged and the present writ petition has been filed.
20.During the course of arguments, the learned counsel appearing for the petitioner has filed an Additional Typed set in which there was a Government Orders passed in G.O.(D)No.436 dated 17.04.2008, since the G.O.(D)No.436 dated 17.04.2008 was passed against this petitioner, there are 14 employees in the disciplinary proceedings against them and action taken as per the powers conferred under Rule 9A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
21.Later on, an enquiry officer was appointed and he has also filed the report stating that the charges against the said 14 employees are not proved. Therefore, the enquiry report in respect of the above 14 employees, the findings of the enquiry officer which is stated as follows:
?Findings of the Enquiry Officer:
The Enquiry Officer has reported that the vehicles in question which were altered into mini buses could not be considered as scrap materials. But, they were only overaged vehicles which could be reconditioned for further use subject to the compliance of the provisions in Chapter VII of the Motor Vehicles Act and the relevant rules. Therefore the allegation that the condemned vehicles which were sold as scrap were rebuilt as mini buses causing revenue loss to the Government and danger to public safety cannot be substantiated against the delinquent officer. He has also reported that it cannot be proved that the pencil print of chassis number taken by the delinquent officer at the time of preliminary inspection and subsequent re- registration did not tally with the pencil print affixed in Form 28. Therefore, it has to be concluded that the allegation that the delinquent officer has failed to properly verify the correctness of the chassis number at the time of reregistration is not substantiated. He has, therefore, held the charge as not proved.?
22.Therefore, accepting the report of the enquiry officer, the 1st respondent has passed G.O.(D)No.29 dated 05.01.2012, G.O.(D)No.25 dated 05.01.2012 and G.O.(D)No.26 dated 05.01.2012 and accepting the enquiry officer report, the Government has decided to drop the charges. Accordingly, the charges against the said employees were dropped.
23.This Court very much shocked that when the charges were dropped against the said 14 employees, why the respondents were proceeded the charges against this petitioner since the enquiry officers made clearly stated that all the charges were not proved.
24.Apart from this, there are 10 employees, who were also faced charges under Rule 17(b) were approached this Court and filed writ petition in W.P.Nos.7043 of 2008 and batch and this Court by order dated 04.03.2011 quashed the above charge memo, pending against 10 employees and directed the authorities to promote the above 10 employees. Therefore, this petitioner, who employed as Regional Transport Officer, Madurrai was faced the present charges which are not at all maintainable, since the charges framed under Rule 17(b) against the employees were dropped by the authorities concerned by the 1st respondent and the 1st respondent should treat equally in respect of this petitioner also.
25.In fact, this petitioner was originally superannuated on 31.01.2007 itself, though this incident was took place in the year 2002, now 15 years were lapsed, but even after superannuation, now 10 years were lapsed, but the charge memo is pending against this petitioner. Therefore, the petitioner has made out a case to quash the impugned orders passed by the 1st respondent vide G.O.(D)No.436/Home/Tr-II and the consequent proceeding in charge memo vide letter of the 1st respondent bearing No.9206/Tr-II/2007-22 dated 17.04.2008 and the consequential G.O.(D)No.1117/Home Tr. Dept. dated 14.10.2008 and hence it is liable to be quashed and accordingly it is quashed.
26.The learned counsel appearing for the petitioner represented that though as per G.O., the petitioner was permitted to retire, but till date no service benefits was paid to him and hence he requested to issue suitable direction to the respondents to disburse the service benefits to the petitioner within a stipulated period, though he has not prayed for in this writ petition. The request of the petitioner is genuine one since when the charge memo issued itself is quashed by this Court, there was no impediment to the respondents for payment of the service benefits due to the petition, since the petitioner is entitled for them.
27.In the result:
(a) this writ petition is allowed, by setting aside the impugned proceedings of the 1st respondent vide G.O.(D)No.436/Home/Tr-II and the consequent proceeding in charge memo vide letter of the 1st respondent bearing No.9206/Tr-II/2007-22 dated 17.04.2008 and the consequential G.O.(D)No.1117/Home Tr. Dept dated 14.10.2008.
(b) the respondents are hereby directed to pay all the service and monetary benefits to the petitioner;
(c) the said exercise shall be done by the respondents without any further delay within a period of four weeks from the date of receipt of a copy of this order. No costs.
To
1.The Secretary to Government, Home (Tr.II Dept.) St. George Fort, Chennai-9.
2.The Transport Commissioner, Office of the Commissioner, Chepauk, Chennai-5.
3.The Deputy Transport Commissioner, Chokkikulam, Madurai..