Madras High Court
J.Jayanthi vs The Secretary To Government on 20 February, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.02.2014 Coram: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.17740 of 2012 and M.P.No.2 of 2012 J.Jayanthi .. Petitioner vs. 1.The Secretary to Government, Home (Transport) Dept., Fort St. George, Chennai-9. 2.The Commissioner of Transport, Chepauk, Chennai-5. 3.The Deputy Transport Commissioner, Transport Department, Madurai. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the Third Respondent in connection with the impugned order issued in Memo R.No.729/A2/2010 dated 05.04.2010 and quash the same and further direct the respondents to promote the petitioner as Superintendent by including her name in the panel of the Superintendent for the panel year 2008-09 and promote her as Superintendent and grant her all consequential service and monetary benefits at par with her junior and grant other reliefs. For Petitioner : Mr.K.Venkatarami, Sr. counsel for M.Muthappan For Respondents : Mr.V.Subbiah Special Government Pleader ------- O R D E R
The Petitioner has preferred the instant Writ of Certoriarified Mandamus praying for issuance of an order by this Court, in calling for the records of the Third Respondent in connection with the impugned order issued in Memo R.No.729/A2/2010 dated 05.04.2010 and to quash the same. Further, the Petitioner has sought for passing of an order by this Court in directing the Respondents to promote her as Superintendent by including her name in the panel of the Superintendent for the year 2008-09 and promote her as Superintendent and grant her all consequential service and monetary benefits on par with her juniors.
2.According to the Petitioner, she joined the service as Junior Assistant in the Transport Department through selection conducted by Tamil Nadu Public Service Commission in the year 1994. She was promoted as Assistant in the year 1999. She was due for promotion as Superintendent in the panel for the year 2008-09. However, she was not promoted on the ground of pending disciplinary proceedings.
3.The Petitioner served as an Accountant in the office of Regional Transport Office, Madurai South during the period from October 2005. On 25.01.2005, a surprise check was conducted by the appropriate Authorities and District Inspection Cell found some irregularities. She was not in-charge of the seat wherein the irregularities are found out. Following the investigation conducted by the Vigilance and Anti Corruption Dept., she was issued with a charge memo under Rule 17(b) of Tamil Nadu Civil Service (D & A) Rules by the Second Respondent dated 21.01.2006. She denied the charges on the ground that as an accountant she had no role to play in respect of unaccounted cash from various persons. Even though the charge memo was issued, there was no progress in the conduct of the criminal case.
4.In regard to the allegations made, she along with other officials including Regional Transport Office, in the office of RTO, Madurai South was proceeded departmentally. Therefore, the aggrieved RTO filed a Writ Petition before this Court for quashing of the charge memo stating that it is only the Government who is Competent to issue the charge memo under Rule 9(A) of Tamil Nadu Civil Service (D & A) Rules. However, this Court was pleased to quash the charge memo and directed the First Respondent to frame charges against all delinquents. Followed by that, Petitioner and others were issued with a charge memo in letter No.38854/Tr.II/2006/21 dated 12.03.2008. A common enquiry officer was appointed to try all the 13 delinquents who were connected in the said delinquency. In the meanwhile, Rule 9(A) of Tamil Nadu Civil Service (D & A) Rules was amended during the year 2009 and it was decided that in a case of more than one official of the same department was involved, the Competent Authority to issue a charge memo in respect of each delinquent is the immediate superior officer and after conducting an enquiry, it would be sent to the Disciplinary Authorities to pass final orders.
5.The Petitioner challenged the charge memo issued to her by the First Respondent on the ground of vagueness in W.P.No.13680 of 2009 before this Court and obtained an order of stay of the charge memo. The matter was heard along with other delinquents namely, N.Ravichandran, MV Gr-I and Kalyankumar, MV Gr-II on the ground of vagueness. This Court had held that the charges against the Petitioner were vague and they do not connect her directly with charges. Further, this Court held that charges are such which would show the right of Petitioner was prejudiced and it is not possible to remember the register maintained in the year 2003. Finally, this Court was pleased to quash the charge memo on 04.03.2011. Following the quashing of charge memo, the First Respondent in G.O.(D)No.346 Home (Transport) Department dated 18.02.2011 was pleased to accept the findings of this Court and dropped further action against the Petitioner. In respect of N.Ravichandran and Kalyankumar who preferred W.P.No.11211/2009 and W.P.No.11212/2009 were allowed and the Government by an order dated 18.04.2002 was pleased to implement the order and dropped further action against them. Later, one A.Mookan (co-delinquent) filed W.P.No.3083 of 2009 against the Secretary to Government, Home (Transport) Department, Chennai and two others before the Madurai Bench of this Court and this Court on 13.10.2011 through a common order in W.P.(MD) Nos.3083/2009 & 4521/2007 allowed the Writ Petitions by quashing the impugned proceedings made in Lr.No.3884/Tr.II/2006-15 dated 12.03.2008 passed by the First Respondent in W.P.No.3083 of 2009 and the impugned proceedings made in R.No.70217/V6/06 dated 16.11.2006 passed by the Second Respondent in respect of W.P.(MD)No.4521 of 2007.
6.The stand of the Petitioner is that this Court was pleased to quash the charge memo in the aforesaid Writ Petitions on the ground that charges against the co-delinquents were quashed and the order of this Court was implemented.
7.Consequent to the amendment made to Rule 9(A) of Tamil Nadu Civil Service (D & A) Rules, Petitioner was issued with the charge memo under Rule 17(b) by the Third Respondent/Deputy Transport Commissioner, Transport Department, Madurai wherein, three charges which are similar to one another contained in Lr.No.3884/Tr.II/2006-15 dated 12.03.2008. The said charge memo was quashed by this Court in W.P.No.13680/2009 dated 04.03.2011 and following the quashing of charge memo, action was dropped against her. Inspite of the fact, charges were dropped the charge memo issued by the Third Respondent dated 05.04.2010 is neither withdrawn nor the charges were dropped.
8.The categorical plea taken on behalf of the Petitioner is that she was due for promotion to the post of Superintendent in the panel year 2008-09 but she was not promoted on the ground that she is facing charge memo under Rule 17(B) and Tamil Nadu Civil Service (D & A) in Lr.No.3884/Tr.II/2006-15 dated 12.03.2008. In the panel of the year 2008-2009 published on 30.04.2008, the claim of the Petitioner was overlooked on the ground that she was facing a charge memo under Rule 17(b) of Tamil Nadu Civil Service (D & A) Rules instituted in the year 2006.
9.As a matter of fact, the charges framed against her dated 12.03.2008 was quashed and as such, the contention advanced on behalf of the Petitioner is that there is no impediment in law in promoting her as Superintendent by including her name in the panel for the year 2008-09 and place her at the appropriate place in between her senior R.V.Sakthi Baskar and junior G.Latha.
10.However, the impediment for the Petitioner is that charge memo dated 05.04.2010 which is no longer in existence affects her prospects and in this regard, the charges framed against her earlier was quashed by this Court in both the cases and the same was implemented by the Government in G.O.(D) No.346 Home (Transport)-II Dept. dated 18.04.2012. As such, it is the submission of the Learned Senior Counsel for the Petitioner that she is entitled to get promotion as Superintendent by including her name in the panel for the year 2008-09 and seniority on par with her juniors. Also that neither charge memo has been cancelled nor she has been granted promotion.
11.At this stage, the Learned Senior Counsel for the Petitioner seeks in Aid of the order dated 20.07.2012 in W.P.(MD) No.10386 of 2011 between A.Mookan and the Secretary to Government, Home (Transport) Department, Chennai and two others, wherein, in paragraphs 2 to 6 inter-lia observed and held as follows:
"2.According to the petitioner, the second respondent issued a charge memo dated 16.11.2006 under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules. The petitioner filed a Writ Petition in W.P.(MD)No.4521 of 2007 to quash those charges.
3.Later the same charges were issued by the first respondent in the charge memo dated 12.03.2008. The petitioner has filed a writ petition in W.P.(MD)No.3083/2009. This Court on 13.10.2011 allowed those writ petitions and quashed the charges.
4. It is the specific case of the petitioner that the charge memo dated 05.04.2010 issued by the third respondent is replica of those earlier charge memo. Hence, the charge memo is liable to be quashed.
5.The learned Special Government Pleader has not disputed the aforesaid submission on facts made by the learned Senior counsel appearing for the petitioner that the earlier charge memo and the charge memo questioned here are containing identical and same charges.
6.In view of the same, the writ petition is allowed and the charge memo is quashed. Consequently, connected miscellaneous petitions are closed. No costs."
12.Likewise, in W.P.(MD)No.11388, 11952 & 11951 of 2012 dated 05.12.2013 between P.Muruganandam & two others and the State of Tamil Nadu by Secretary to Govt. & two others the following order is passed:
"2.The learned Additional Government Pleader also submitted that the order passed by this Court has become final and the same has also been given effect by the Government in G.O.(D) No.344 Home (Tr-II) Department, dated 18.04.2012.
3.It is also brought to the notice of this Court in an earlier occasion, this Court also followed the above said order in the subsequent order in W.P.(MD)No.5024 of 2011 dated 20.07.2012.
4.In view of the above, these writ petitions are allowed in terms of the orders passed in W.P.Nos.11211 and 11212 of 2009 etc., dated 04.03.2011. No costs. Consequently, connected miscellaneous petitions are closed."
13.Further, in W.P.(MD)No.5024 of 2011 dated 20.07.2012 between S.Balasubramaniam and The Transport Commissioner, Chepauk, Chennai & another allowed the Writ Petition and quashed the charge memo dated 05.04.2010 issued by the Second Respondent/Deputy Transport Commissioner, Madurai therein.
14.Conversely, the Learned Special Government Pleader submits that the charge memo dated 05.04.2010 issued by the Third Respondent to the Petitioner at the early stage need not be quashed by this Court and always it is open to her to take part in the Disciplinary proceedings and await for the outcome of the decision of the Disciplinary Authority.
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 prima-facie 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.
17.After all, a charge sheet for misconduct must disclose 1)the rules of conduct which an employee has violated, the allegations containing sufficient materials showing how a person has violated the specified rule of conduct and how he has been ex-facie found to be blame-worthy requiring his explanation and 2) the Disciplinary Rule under which the charges against him are required to be enquired into. Also, the charge sheet must contain a list of documents on the basis of which charges against him are proposed to be established and a list of witnesses for oral evidence. It cannot be gainsaid that the issuance of charge memo/charge sheet puts a question mark to an employee's career.
18.It cannot be ignored that whether a charge sheet in a given case is vague or not will depend upon the facts and circumstances of each case as per the decision in Hariprasad Singh Vs. The Commissioner of Income Tax, West Bengal and Others [AIR 1972 (Calcutta) 27]
19.In the decision of Union of India & others Vs. Lt. Colonel Jagdev Singh [1993 (2) SLR at page 460 and at Special page at 463] wherein, in para 11, Pubjab And Haryana High Court (D.B.) has observed and held as follows:
11.On the face of it, no other conclusion is possible except that the second charge, as framed against Lt. Col. Jagdev Singh was vague and wholly lacking in material particulars. Further, the Court Martial fell gravely in error in denying him such particulars even when a specific request in this behalf has been made before it in writing by Lt. Col. Jagdev Singh. Prejudice on this account to Lt. Col. Jagdev Singh, thus, stands writ large and for this reason alone the proceedings of the Court Martial must stand vitiated and have, consequently to be quashed."
20.In the decision of the Hon'ble Supreme Court in Suk Das and another Vs. Union Territory of Arunachal Pradesh [AIR 1986 Supreme Court 991] wherein it is observed as follows:
"Where the charges framed against the delinquent officer were vague and no allegations regarding it have been made by him before the enquiry officer or before the High Court, the fact that he has participated in the enquiry would not exonerate the department to bring home the charges. The enquiry based on such charges would stand vitiated being not fair."
21.In the decision of Hon'ble Supreme Court in Surath Chandra Chakravarty Vs. The State of West Bengal [AIR 1971 Supreme Court at page 752 and at Special page 753] it is observed as follows:
"Rule 55 embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defence. So, inspite of the Government servant repeatedly objecting to the vagueness of charges and non-furnishing of statement of allegations, the failure to supply him the facts, circumstances and particulars relevant to the charges even at the stage of second show cause notice would amount to denial of proper and reasonable opportunity of defending himself in complete disregard of Rule 55."
22.In the decision of Hon'ble Supreme Court in State of Uttar Pradesh Vs. Mohd. Sharif (Dead) Through LRs. [1982 (2) Supreme Court Cases at page 376 and at Special page 377] wherein, in para 3 it is observed and held as follows:
"3.After hearing counsel appearing for the State, we are satisfied that both the appeal Court and the High Court were right in holding that the plaintiff had no reasonable opportunity of defending himself against the charges levelled against him and he was prejudiced in the matter of his defence. Only two aspects need be mentioned in this connection. Admittedly, in the charge sheet that was framed and served upon the plaintiff no particulars with regard to the date and time of his alleged misconduct of having entered Government Forest situated in P.C. Thatia District, Farrukhabad and hunting a bull in that forest and thereby having injured the feeling of one community by taking advantage of his service and rank, were not mentioned. Not only were these particulars with regard to date and time of the incident not given but even the location of the incident in the vast forest was not indicated with sufficient particularity. In the absence of these plaintiff was obviously prejudiced in the matter of his defence at the enquiry. Secondly, it was not disputed before us that a preliminary enquiry had preceded the disciplinary enquiry and during the preliminary enquiry statements of witnesses were recorded but copies of these statements were not furnished to him at the time of the disciplinary enquiry. Even the request of the plaintiff to inspect the file pertaining to preliminary enquiry was also rejected. In the face of these facts which are not disputed it seems to us very clear that both the first appeal Court and the High Court were right in coming to the conclusion that the plaintiff was denied reasonable opportunity to defend himself at the disciplinary enquiry; it cannot be gainsaid that in the absence of necessary particulars and statements of witnesses he was prejudiced in the matter of his defence. Having regard to the aforesaid admitted position it is difficult to accept the contention urged by the counsel for the appellant that the view taken by the trial Court should be accepted by us. We are satisfied that the dismissal order has been rightly held to be illegal, void and inoperative. Since the plaintiff has died during the pendency of the proceedings the only relief that would be available to the legal heirs of the deceased is the payment of arrears of salary and other emoluments payable to the deceased."
23.In the decision of P.F. George Vs. State of Tamil Nadu [1980 (1) LLJ 513 (Madras)] it is held that permitting the departmental proceedings to continue on stale, charges would be unfair and would involve violation of Principles of Natural Justice.
24.It cannot be denied that the Petitioner is similarly situated like that of other co-delinquents who obtained favourable orders in W.P.(MD)No.11388, 11952 & 11951 of 2012 dated 05.12.2013. When the Petitioner is similarly placed/situated like that of the aforesaid Petitioners who filed the Writ Petitions mentioned supra, then this Court comes to an inevitable and irresistible conclusion that the said orders passed in the aforesaid Writ Petitions dated 20.07.2012 in W.P.No.10386 of 2011 and W.P.5024 of 2011 dated 20.07.2011 and W.P.(MD)No.11388, 11952 & 11951 of 2012 dated 05.12.2013 squarely applies to the Petitioner on all force. Viewed in that perspective, the Writ Petition filed by the Petitioner succeeds.
25.In the result, the Writ Petition is allowed. The order passed by the Third Respondent in Memo R.No.729/A2/2010 dated 05.04.2010 is hereby quashed for the reasons assigned in the Writ Petition. Consequently, the Respondents are directed to consider the case of the Petitioner for promotion to the post of Superintendent in the panel of Superintendent for the year 2008-09 (subject to suitability and eligibility) and to shower her with all monetary and other consequential benefits. That apart, the Respondents are also directed to place Petitioner at the appropriate place in the seniority and these exercises shall be undertaken by them within a period of six weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is also closed. No costs.
20.02.2014 Index :Yes Internet:Yes DP Note:Issue Order copy on 25.02.2014 To
1.The Secretary to Government, Home (Transport) Dept., Fort St. George, Chennai-9.
2.The Commissioner of Transport, Chepauk, Chennai-5.
3.The Deputy Transport Commissioner, Transport Department, Madurai.
M.VENUGOPAL.J, DP W.P.No.17740 of 2012 and M.P.No.2 of 2012 20.02.2014