Madras High Court
S.Saravanan vs The General Manager on 7 August, 2013
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07/08/2013 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.13227 of 2013 and M.P.(MD)No.1 of 2013 S.Saravanan .. Petitioner Vs The General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Madurai Zone, Madurai. .. Respondent Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of certiorari calling for the records pertaining to the impugned charge memo vide Oo.Na.D./D4/Pudur/DR/1725, dated 12.06.2013, issued by the respondent and quash the same. !For petitioner ... Mr.P.Rajkumar :ORDER
Challenge in this writ petition is to the charge memorandum dated 12.06.2013 issued by the General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Madurai Zone, Madurai. The charges framed against the petitioner are that he has produced bogus certificate at the time of joining the Transport Corporation; Cheated the Transport Corporation and joined the service; and hence violated the Standing Rule 16 (5, 9, 38).
2.Assailing the correctness of the charge memorandum, Mr.P.Rajkumar, learned counsel for the petitioner, submitted that only after verifying the genuineness of the certificates, the petitioner's educational particulars were registered in the District Employment Office, Madurai. He also further submitted that only after providing training in the Institute of Road Transport between 12.08.1996 to 02.11.1996, and after scrutiny of the certificates, he was given appointment as driver by the respondent -Transport Corporation on 29.05.2007 in Tiruppuvanam-Pudur Depot. According to the petitioner, when the genuineness of the certificates has already been verified by the Transport Corporation and the District Employment Office, Madurai District, initiation of disciplinary proceedings, after seven years from the date of appointment, is liable to be set aside on the ground of delay and laches. Learned counsel for the petitioner also submitted that the General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Madurai Zone, Madurai, has failed to consider the explanation of the petitioner in proper perspective.
3.Heard the learned counsel for the petitioner and perused the materials available on record.
4.Securing employment by production of bogus certificates is certainly a matter to be enquired into, by the employer. The appointment if any, secured by production of bogus certificates is illegal and therefore, the appointing authority can take appropriate steps to ascertain the genuineness of the same and if there is any prima facie evidence, disciplinary action can be taken. There is no period of limitation prescribed under any statutory rule, and there cannot be any embargo on the appointing authority to enquire into the act of the petitioner, securing employment by producing bogus documents. Merely because the educational and other particulars have been registered in the District Employment Office, Madurai and that the petitioner was also given appointment in the year 2007, as driver in the Transport Corporation, it cannot be said that the employer has no right to conduct an enquiry into acts of misconduct in securing employment by production of bogus certificates. At this juncture, it should be noted that at the time of registration of employment particulars, the District Employment Exchanges, do not normally verify the genuineness of the certificates produced by the candidate who seeks to register the educational particulars, and an appointing authority also does not verify the genuineness of the certificates, at the time of making appointment. Verification of the genuineness of the certificates will be only after appointment. Even though the petitioner had worked for nearly seven years, since 2007, the length of service put in by the petitioner, is not an answer to the charge memorandum. Period of limitation is not applicable in these type of matters. The petitioner is stated to have submitted his explanation on 21.06.2013. Material on record discloses that not satisfied with the explanation, an Enquiry Officer has been appointed and notice dated 24.07.2013 has also been issued to the petitioner proposing to conduct oral enquiry on 31.07.2013.
5.The Apex Court has consistently held that a charge memo or a show cause notice cannot be quashed at the threshold, unless in a very rare and exceptional cases, where there is lack of jurisdiction. Useful reference can be made to few decisions on this aspect.
(i) In State of U.P. v. Brahm Datt Sharma reported in 1987 (2) SCC 179, at Paragraph 9, held as follows:
"When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. 'The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not to have interfered with the show cause notice."
(ii) In Union of India v. Upendra Singh reported in 1994 (3) SCC 357, the Central Administrative Tribunal examined the correctness of the charges against the respondent therein, on the basis of the material produced by him and quashed the same. The Union of India preferred an appeal. The Supreme Court, after considering the decisions in T.C.Basappa v. T.Nagappa reported in AIR 1954 SC 440, which was followed in Ujjam Bai v. State of U.P., reported in AIR 1962 SC 1621 and V.D.Trivedi v. Union of India reported in 1993 (2) SCC 55, at Paragraphs 4 and 6 of the judgment in Upendra Singh's case, held as follows:
"In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to Court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.
The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the respondent were to be filed in the High Court, it would have been termed, properly speaking, as a Writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view."
(iii) The Supreme Court in Special Director v. Mohd. Ghulam Ghouse reported in 2004 (3) SCC 440, at paragraph 5, held as follows:
"This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted."
(iv) In Union of India v. Kunisetty Satyanarayana reported in AIR 2007 SC 906, the respondent therein was issued with a charge memo for availing reservation against the post earmarked for ST, though he did not belong to the said category. Instead of submitting a reply to the charge memo, he preferred Original Application before the Central Administrative Tribunal, which disposed of the same with a direction to the respondents to submit the explanation to the charge memo and on such reply, the disciplinary authority was directed to consider the same. Instead of filing the reply, the respondent therein filed a Writ Petition, which was allowed. Testing the correctness of the order of the Andra Pradesh High Court, the Supreme Court, at paragraphs 13, 14 and 16, held as follows:
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide, Executive Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh and Ors. [JT 1995 (8) SC 33], Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. [AIR 2004 SC 1467], Ulagappa and Ors. v. Divisional Commissioner, Mysore and Ors. [2001(10) SCC 639], State of U.P. v. Brahm Datt Sharma and Anr. [AIR 1987 SC 943] etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
(emphasis supplied)
6.While exercising jurisdiction under Article 226 of the Constitution of India, this Court cannot go into the correctness of the allegations contained in the charge memo on merits and assume the role of a Disciplinary Authority, particularly when the Supreme Court has time and again held that "interference by the Courts to the show cause notice or charge memo at the threshold, would be premature and mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order".
7.Admittedly, the General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Madurai Zone, Madurai, has the competence to issue a charge memorandum. In view of the above discussion and the decisions stated supra, this Court is not inclined to entertain the writ petition. Hence the writ petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
KM To The General Manager, Tamil Nadu State Transport Corporation (Madurai) Ltd., Madurai Zone, Madurai.