Madras High Court
M.Sampoornam vs The State Of Tamil Nadu on 22 March, 2013
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/03/2013 CORAM THE HONOURABLE MR. JUSTICE S.TAMILVANAN W.P.(MD).No.12725 OF 2011 & M.P.Nos.1 & 2 of 2011 M.Sampoornam .. Petitioner vs. 1.The State of Tamil Nadu Rep. By its Secretary to Government, Revenue Department, Secretariat, Chennai-9. 2.The District Collector, Karur District, Karur. .. Respondents This Writ Petition is filed under Article 226 of the Constitution of India seeking an order in the nature of Writ of Certiorarified Mandamus calling for the records on the file of the second respondent in his proceeding No.Na.Ka.K1/22628/2008 dated 13.08.2008 and the letter No.18798/Ser 1/2009-1, dated 02.03.2010 on the file of the first respondent and quash the same and issue (1) directions to the second respondent to continue the said proceedings under rule 17(a) of the Tamil Nadu Civil Services ( D & A ) Rules and (2) directions to the first respondent herein to include the name of the petitioner in the appropriate place in the panel for promotion to the post of Deputy Collector for the year 2009-10 and to promote the petitioner as such and confer all other benefits. !For Petitioner ... M/s.M.Ravi ^For Respondent ... M/s.B.Pugalenthi, Special Govt.Pleader :ORDER
The writ petition has been filed seeking an order in the nature of writ of Certiorarified Mandamus to call for the records pertaining to the order dated 13.08.2008 made in Na.Ka.K1/22628/2008 on the file of the second respondent and the proceedings of the first respondent in letter No.18798/Ser 1/2009-1, dated 02.03.2010 and quash the same and issue (1) directions to continue the proceedings under Rule 17(a) of the Tamil Nadu Civil Services (D & A) Rules and (2) directions to the first respondent herein to include the name of the petitioner in the appropriate place in the panel for promotion to the post of Deputy Collector for the year 2009-10.
2. The petitioner herein was directly recruited as Assistant in the office of the Commissioner of Land Administration, Chepauk, Chennai-5, in the year 1992 and was transferred to the Revenue Department on promotion as Deputy Tahsildar in the year 2001. During the year 2005, she was also promoted as Tahsildar. The petitioner has further submitted that she was fully qualified and eligible for inclusion of her name in the panel for promotion to the post of Deputy Collector for the year 2009-10. However, by the proceedings of the first respondent, dated 02.03.2010, the petitioner was informed that her name was not included in the said panel in view of pendency of disciplinary proceeding against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. It is seen that the departmental proceeding is pending against the petitioner for about five years.
3.The petitioner has submitted that the disciplinary proceeding was initiated against the petitioner by the second respondent herein by his order dated 13.08.2008, under rule 17(b) of Tamil Nadu Civil Services ( Discipline & Appeal) Rules, levelling five charges against the petitioner. The petitioner has stated that the proceeding was initiated against the petitioner based on the irregularities and illegal activities committed by two salesmen of Aravakurichi Fair Price Shop, by name, C.Dhandapani and Senthilarasan in Shop Nos.4PCO18 and 5PCO19 respectively. A criminal case was also registered against the said salesmen and subsequently, they were dismissed from service. The departmental proceedings initiated against the petitioner as well as two Taluk Supply Officers and two other Junior Assistants are still pending.
4. The petitioner has stated that though the occurrence had taken place during the year 2005-06, however the departmental proceeding was initiated against the petitioner only in the year 2008, for the reasons best known to the second respondent. It is further submitted that an enquiry officer was appointed and after enquiry, the enquiry officer gave a perverse finding against the petitioner, as if the charges levelled against the petitioner were proved. Learned counsel appearing for the petitioner argued that there is no legally acceptable evidence to substantiate the charges levelled against the petitioner, however, the charges were held as proved as against the petitioner and a show cause notice was issued by the second respondent by his proceedings Na.Ka.No.A2/12907/2009 dated 20.04.2010 calling for further representation on the enquiry officer's report and the petitioner submitted her further written representation for the show cause notice on 10.05.2010.
5. According to the learned counsel appearing for the petitioner, though five charges were levelled against the petitioner, there was no whisper against the petitioner to show that she had involved in any delinquency touching the moral turpitude, corruption, bribery or causing loss to the Government with dishonest intention or motive. According to the learned counsel for the petitioner, the allegations levelled against the petitioner in the proceedings are with regard to the negligence and lack of supervision and there is no direct allegation against the petitioner. Hence, the charges ought not to have been initiated against the petitioner under Rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules. In this regard, the Government guidelines in Circular No.14353/93, P. & A.R. Department, dated 11.03.1993, has not been considered properly, as there are no allegations against the petitioner involving moral turpitude, corruption, bribery or any act done with dishonest motive. In view of the circular dated 11.03.1993 referred to above, the proceeding could have been initiated only under rule 17(a) of Tamil Nadu Civil Services ( Discipline & Appeal) Rules and not under the rule 17 (b) of the said Rules. Even the departmental proceeding was initiated after a lapse of two years from the date of the alleged occurrence, departmental proceeding is pending for more than three years. On the aforesaid circumstances, the petitioner has come forward with this petition seeking the relief as stated above as there is no alternative remedy available to the petitioner.
6. In the counter filed by the second respondent, the respondents have stated that the petitioner was working as Taluk Supply Officer (TSO), Aravakurichi from 04.05.2005 to 18.05.2006. During her tenure as Taluk Supply Officer (Aravakurichi), the Government issued new ration cards to the eligible card holders and also issued new "E Form Register", 'A' Register" to all the fair price shops. The Government instructed the Taluk Supply Officers/TSOs to effect allotment to the fair price shops on the basis of cards in circulation as per the "Printed 'A' Register supplied by the 'ELCOT' to each fair price shop. As per the Government instructions, the essential commodities to the respective fair price shops have to be allotted with reference to the Cards in circulation as per the "Printed 'A' Register supplied by the "ELCOT" pertaining to the respective fair price shops. According to the respondents, it was reported by the Joint Registrar Co-operative Society, Karur that in Aravakurichi Taluk, salesmen pertaining to the fair price shop Nos.4PCO18 and 5PCO19 had registered bogus cards, got allotment for the Bogus cards and sold the essential commodities allotted under Public Distribution System in "Black Market" to the merchants for higher price. Based on the report of the Joint Registrar of Co- operative, Karur, a team of officials from the Commissioner of Civil Supplies and Consumer Protection Department, Chennai, inspected the "'A' Register" and other relevant register pertaining to the fair price shop No.4PCO18 and 5PCO19 on 25.7.2008 to 27.07.2008 respectively and submitted their report to the Commissioner of Civil Supplies, Chennai. The respondents have stated that on verification, it was brought to light that in 'A' Register of two shops, the bogus cards have been registered by the salesmen of the two fair price shops and they used only "old Hand Written 'A' Register" instead of using "Printed 'A' Register supplied by the ELCOT". However, the then Taluk Supply Officer, Aravakurichi, the petitioner herein, had effected allotment till May, 2006 on the strength of cards in circulation as per "Hand Written old 'A' Register".
7. Learned counsel for the petitioner submitted that based on the allegations, charges could be framed against the petitioner only under rule 17
(a) and not under rule 17 (b) of the Tamil Nadu Civil Services ( Discipline & Appeals) Rules. In support of the contention raised, the learned counsel appearing for the petitioner also relied the various decisions:
A Division Bench of this Court (P.K.Misra, J and F.M. Ibrahim Kalifulla, J) in W.P.No.6809 of 2004 dated 17.06.2004, preferred by the State against the order passed in Original Application No.3913 of 2003 dated 04.02.2004 by the Tamil Nadu Administrative Tribunal, has held that the modification of charge under Rule 17(a) instead of Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules was not against law and accordingly declined to interfere with the order. It was held that there is no error in the order passed by the Tamil Nadu State Administrative Tribunal, modifying the charge under Rule 17(b) instead of Rule 17(a) under the Tamil Nadu Civil Services (Discipline & Appeal) Rules and accordingly, the writ petition was dismissed. It has been made clear in the decision that charge Nos.1 and 2 framed against the first respondent therein relating to failure for taking effective steps towards collection of taxes due from the dealers by Subordinate Officials and it was failure in executing administrative instructions given by the superior officers therein. The Tamil Nadu State Administrative Tribunal held that the Assistant Commissioner (CT), violating Rule 20(1) of the Tamil Nadu Government Servants Conduct Rules, 1973 would be under rule 17(a) and not rule 17(b) to frame the charge for the alleged failure for the non-compliance of the administrative instructions given by the superior officer.
A Division Bench of this Court (Elipe Dharma Rao, J and K.Suguna, J) passed an order dated 05.09.2006 in W.P.No.3558 of 2004, wherein it has been held that as per the guidelines given by the Government, the charges framed against the petitioner would not come under rule 17(b) but only under rule 17(a) of the said Rules. The Government of Tamil Nadu has given specific guidelines with regard to framing of charges under rule 17(a) and rule 17(b) of the said Rules. In this regard, the guidelines given are as follows:
"(1) Cases in which there is reasonable ground to believe that a penal offences 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 asset disproportionate to the known sources of income;
(b) obtaining or attempting to obtain illegal gratification;
(c) misappropriation of Government property, money or shares;
(d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate, etc., (2) Falsification of Government records.
(3) Irregularity of negligence in the discharge of official duties with a dishonest motive".
8. It is not in dispute that the charges under rule 17(a) relate to minor delinquencies whereas the charges under rule 17(b) relate to any major delinquency warranting major punishment in case the same is proved. In Writ Appeal No.1893 of 2011 dated 29.09.2011, a Division Bench of this Court (M.Y.Eqbal, the Chief Justice and T.S.Sivagnanam, J) has held as follows:
"2. We have considered the reasoning given by the learned Single Judge and other materials available on record including the charge memo and the consequential proceedings, from where it appears that there are no grave charges levelled against the respondent/writ petitioner except for some lapses in the discharge of his supervisory duty. Moreover the allegation pertains to the period 2004-2006, whereas, the charge memo was served only in the year 2011, i.e. on the verge of his retirement.
3. In that view of the matter, the impugned judgment passed by the learned Single Judge needs no interference by this Court..."
9. In S.KANNAN VS. STATE OF TAMIL NADU, (2009) 8 MLJ 217, this Court (V.Dhanapalan, J) held that unless there is dishonest motive, misconduct or misappropriation of funds of the Government or wilful and dishonest act, there cannot be any departmental proceeding initiated under rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules, as per the guidelines issued by the Government. It is an admitted fact that the Government of Tamil Nadu has issued guidelines with regard to framing of charges under rule 17(a) and rule 17(b) of the said Rules. The unreported decision in W.P.No.13581 of 2007 dated 24.08.2011, this Court (K.N.Basha, J), based on the guidelines given by the Government has highlighted the same in respect of charges being framed under rule 17 (a) and rule 17 (b) of the said Rules. Referring to the guidelines in S.KANNAN VS. STATE OF TAMIL NADU, represented by its Secretary to the Government, calling upon the impugned proceedings therein, this Court (V.Dhanapalan, J) directed the first respondent therein to alter the charge levelled against the petitioner only under rule 17(a) and not proceed under rule 17 (b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules and to proceed in accordance with law.
10.In the instant case, it has been made clear in the light of various decisions rendered by this Court that the guidelines given by the Government have to be followed scrupulously for framing charges against employee of the Government. As per the guidelines, charges can be framed under rule 17 (b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules, under the following circumstances:
1) Cases in which there is a reasonable ground to believe that a penal offence has been committed by the 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; [d] obtaining or attempting to obtain any valuable thing or 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. [emphasis supplied] [4] Misuse of official position for personal gain.
[5] Disclosure of secret or confidential information even though it doe snot fall strictly within the scope of the Official Secrets Act. [6] Misappropriation of Government funds, false claims of Travelling Allowance, reimbursement of false medical bills, etc., Charges could be made framed under rule 17(b) of TNCS (D & A) Rules.
11. In the instant case, even as per the counter filed by the respondents herein, it is clear that the actual offence was committed by two salesmen of the fair price shops under the control of Taluk Supply Officer, Aravakurichi, by creating bogus ration cards and sold commodities allotted under Public Distribution System in Black Market to merchants for higher price, however, there is no direct allegations against the petitioner. It is not in dispute that a criminal case was filed against the aforesaid two salesmen, who worked at Aravakurichi fair price shops and subsequently, they were also dismissed from service. However, no criminal case was filed against the petitioner and the charges levelled against the petitioner were that the petitioner had failed to supervise properly to prevent the occurrence. As there is no direct charge framed against the petitioner, hence, this Court is of the view that in the light of the guidelines given by the Government, charges could have been framed against the petitioner only under rule 17 (a) and not under rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. In this regard, this Court has rendered various decisions whereby, similar writ petitions were allowed by setting aside the order impugned, directing the respondents therein to include the name of the petitioner in the panel for promotion at the appropriate place as the charges were under rule 17 (a) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. Similar order has been passed in the decision rendered by this Court in (2009) 8 MLJ 217 referred to above. If Departmental proceeding is pending under rule 17 (a) of the said Rules, promotion of the Government servant need not be kept in abeyance for a long time.
12. In the light of catena of decisions referred to above, having gone through the facts and circumstances and material papers available on record, I am of the view that the respondents could have framed the charges against the petitioner only under rule 17(a) and not under rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, it being a minor delinquency, as per the guidelines issued by the Government and the proceeding would not be a bar in promoting the petitioner, subject to the result of the departmental proceeding. It is also brought to the notice of this Court that the petitioner is on the verge of retirement and if she is not promoted that will adversely affect her legitimate right, since the departmental proceeding was initiated after a lapse of 2+ years after the occurrence and pending for more than three years.
13. Therefore, to meet the ends of justice, this writ petition is allowed and the impugned orders passed by the respondents are set aside and the respondents are directed to include the name of the petitioner in the panel for the promotion of Deputy Collectors, by placing her below her immediate senior and above her immediate juniors and promote her to the post of Deputy Collector if she is otherwise eligible, by providing all service and monetary benefits thereof. However, it is open to the respondents to proceed against the petitioner under rule 17(a) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, for the alleged charges since charges could be framed on the alleged facts and circumstances, as per rule 17 (a) of the said Rules.
14.With the above direction, this Writ Petition is allowed. No order as to costs. Consequently, connected miscellaneous petitions are closed.
kal To
1.The State of Tamil Nadu Rep. By its Secretary to Government, Revenue Department, Secretariat, Chennai-9.
2.The District Collector, Karur District, Karur.