Madras High Court
C. Palaniyappan vs The Registrar General on 18 November, 2019
Bench: A.P.Sahi, Subramonium Prasad
W.P.No.23387 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18/11/2019
CORAM
THE HON'BLE MR.A.P.SAHI, CHIEF JUSTICE
and
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
Writ Petition No.23387 of 2019
&
W.M.P.Nos.23144, 23146 and 23148 of 2019
1. C. Palaniyappan
2. K. Annamalai
3. M. Rathinavelu
4. A. Kalaichelvi ... Petitioners
Vs
1. The Registrar General
High Court
Madras 600 104.
2. The Principal District Judge
Thiruvannamalai.
3. The Principal Subordinate Judge
1/22
http://www.judis.nic.in
W.P.No.23387 of 2019
Office of the Principal Sub-Court
Thiruvannamalai
Thiruvannamalai District. ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of
India praying for the issuance of a writ of certiorari to call for the
records in Dis.No.314/2019, dated 12/4/2019 on the file of the
third respondent and quash the same.
For petitioners ... Mr.V.Bhiman
For respondents ... Government Pleader
Mr. V. Vijaya Shankar
------
COMMON ORDER
(Order of the Court was made by Subramonium Prasad, J) The instant writ petition is for a writ of certiorari, challenging the charge memo issued to the petitioners.
2. The averment of the writ petitioners in the writ petition is that LAOP No.64 of 1998, was disposed of, on 28/10/1993, on 2/22 http://www.judis.nic.in W.P.No.23387 of 2019 the file of Principal Sub-Court, Tiruvannamalai. There were five claimants in the said LAOP. Claimant Nos.3 and 5, Ravai Kannu Gnanasekaran and Narayanachari passed away pending LAOP. Applications were filed to implead the legal heirs of Claimant No.3 and Claimant No. 5. Applications were allowed. Compensation as awarded in the LAOP was deposited in the Court.
3. After the disposal of LAOP, a vakalathnama was filed in favour of an Advocate, Mr. R.Gunasekaran. The Vakalatnama contained four signatures of the claimants, viz., (i). Ranganathan
(ii). Ravai Kannu Gnanasekaran, (iii). Kumarasamy and (iv). Narayanan. An application was filed for withdrawing the amounts deposited in the account of LAOP. The same was allowed and compensation was given to Advocate R. Gunasekaran.
4. First claimant has filed a complaint, dated 1/12/2015, with the Principal Sub-Judge, Tiruvannamalai, stating that the compensation amount awarded in LAOP No.64 of 1988 was not paid to him, even after a lapse of eleven months, from the date 3/22 http://www.judis.nic.in W.P.No.23387 of 2019 of submission of the application for such claim through his counsel. Preliminary enquiry was ordered. On enquiry, it was found that the amount had already been disbursed in the application filed by Advocate R. Gunasekaran.
5. Notices were sent to the other claimants and the legal representatives of the claimants who had passed away during the LAOP proceedings. Enquiry reveal that the claimants and the legal representatives of the deceased claimants had not executed any vakalatnama in the name of Gunasekaran.
6. C.Palaniyappan, first petitioner (now under suspension) was working as Sheristadar in Special Subordinate Judge Court for MCOP Cases, Tiruvannamalai. K. Annamalai, second petitioner (now retired) was working as Head Clerk, in the Court of the Principal District Munsif, Cheyyar. M. Rathinavelu, third petitioner, (now under suspension) was working as Assistant, in the Court of the Principal District Munsif, Tiruvannamalai and 4/22 http://www.judis.nic.in W.P.No.23387 of 2019 deputed to work in the Court of the Principal Sub-Court, Tiruvannamalai. A. Kalaichelvi, fourth petitioner (now under suspension) was working as a Junior Assistant, in the Principal Sub-Court, Tiruvannamalai when the amount was given to R. Gunasekaran Advocate.
7. It was also revealed in the enquiry that when the Court staff came to know about the proposed complaints, they approached the claimants and promised them to pay the amount in two instalments, which was paid.
8. On realising the seriousness, the Principal Sub-Judge, Tiruvannamalai, lodged a complaint, on 24/3/2016, before the Superintendent of Police against R.Gunasekaran and the petitioners herein. On the basis of a complaint, FIR has been registered, in Crime No.4 of 2016, dated 25/3/2016, for offences, under Sections 420, 466, 468 r/w. 120 (b) IPC. Charge sheet has been filed and the criminal case is proceeding. Departmental 5/22 http://www.judis.nic.in W.P.No.23387 of 2019 proceedings have also been initiated against the petitioners herein by issuing a charge memo which is under challenge in this writ petition.
9. Charges framed against the petitioners read as under:-
Statement of charges framed against
Tr.C.Palaniyappan, under suspension, Sherisdhar,
Special Sub Court for MCOP cases, Tiruvannamalai, 2. Tr.K.Annamalai, under suspension, Head Clerk, Principal District Munsif Court, Cheyyar, 3. Tr.M.Rathinaval, under suspension, Assistant, Principal Sub Court, Tiruvannamalai. (On deputation with copy to the Principal District Munsif, Tiruvannamalai), 4. Tmt.A.Kalaiselvi, under suspension, Junior Assistant, Principal Sub Court, Tiruvannamalai for their misconduct.
6/22 http://www.judis.nic.in W.P.No.23387 of 2019 CHARGE-I :
That in LAOP 64/1988 the enhanced compensation amount of Rs.3,05,760/- deposited in the court, which is due for payment to the claimants Ranganathan, (1/6 share), Kumarasamy (1/6 share), Saroja and Ravkannu (1/4 share) and Narayana Achari (1/3 share). By a cheque application by Advocate Tr.Gunasekaran I.A.9/2015 said to be filed on behalf of Ranganathan, Kumarasamy and Ravakannu had obtained the cheque for Rs.2,58,622/- in collusion with delinquents Tr.Palaniappan, Tr.K.Annamalai, Tr.M.Rathinaval and Tmt.A.Kalaiselvi and encashed the same and misappropriated the compensation amount by tampering the court records. The delinquents 1 to 4 namely Tr.C.Palaniyappan, Tr.K.Annamalai, 3. Tr.M.Rathinaval, 4. Tmt.A.Kalaiselvi had acted in collusion and tampered 7/22 http://www.judis.nic.in W.P.No.23387 of 2019 the court records and misappropriated the amount deposited thereby rendering yourselves liable to be proceeded for misconduct under TNCS (D&A) Rules. CHARGE-II :
That Tmt.Kalaiselvi, the Head Clerk Assistant of Principal Sub Court, Tiruvannamalai now under suspension during the relevant time was incharge of LAOP branch and when the cheque application was filed you have not attended the petition and allowed the Head Clerk Tr.K.Annamalai to deal with the same without specific instructions. You have omitted to make necessary entries in the I.A, disposal register, ‘A’ diary regarding numbering of the petition, orders passed in the petition and the issuance of the cheque to the Advocate. The result of the petition was also not entered in the LAOP suit register with an intension to screen the fact regarding filing of the 8/22 http://www.judis.nic.in W.P.No.23387 of 2019 cheque petition and orders passed therein to the notice of the claimants concerned and the counsels on record in LAOP 64/88. You have acted in collusion with the other delinquents with a view to misappropriate the amount lying in the court deposit with dishonest motive by falsifying the Government records there by you have committed misconduct, act of abuse and misuse of power and conduct unbecoming of a Government Servant thereby rendering yourself punishable under TNCS (D&A) Rules.
CHARGE-III :
That you Tr.K.Annamalai, now under suspension, formerly Head Clerk, Principal Sub Court, Tiruvannamalai during the relevant time had attended the cheque petition I.A.9/2015 filed by Advocate Tr.Gunasekaran without any specific instructions or office order even though it was not 9/22 http://www.judis.nic.in W.P.No.23387 of 2019 concerned with your branch. You have not properly verified the petition and numbered the same on 27.4.2015 without insisting for the passport photos of the petitioners as in case of other petitions, not verified the case bundle properly to verify whether the claimants are alive, eventhough in the bundle the legal heirs petition filed by Ravakannu and Narayanan were available. With dishonest motive in collusion with other delinquents you have numbered the petition with a view to misappropriate the court deposit amount which is due for payment to the petitioners in the case, there by you have committed misconduct, abuse and misuse of power and conduct unbecoming of a Government Servant rendering yourself punishable under TNCS (D&A) Rules.
CHARGE-IV :
Tr.C.Palaniappan, now under suspension, 10/22 http://www.judis.nic.in W.P.No.23387 of 2019 previously Sheristadar, Principal Sub Court, Tiruvannamalai had failed to supervise the work of the Subordinates in the Principal Sub Court with dishonest motive and allowed the Head Clerk, Tr.K.Annamalai to deal with the LAOP petition without any orders from the Judge. You did not verify the case records properly and placed a leading note to the presiding office in collusion with Tr.Gunasekaran, Advocate and other delinquents and did not verify the case records properly and omitted to insist for a calculation statement for the amounts due to the petitioners, passport size photos and ID card Xerox copies of the petitioners as in case of other petitions. You have omitted to verify that the petitioners in the cheque petition are only entitled as per decree only for 1/6+1/6+1/8+1/3 amount from the deposit made and the amount claimed in the cheque petition did not tally with the decree. With 11/22 http://www.judis.nic.in W.P.No.23387 of 2019 view to misappropriate the cheque amount you have placed the defective cheque petition for orders with a leading office note without adhearing to the procedures established and instructions given by the Hon’ble High Court thereby rendering yourself punishable under TNCS (D&A) Rules for your misconduct, tampering of records, misuse and abuse of power, misappropriation of the cheque amount in collusion with Advocate Tr.Gunasekaran. CHARGE-V :
That you Tr. Rathinavel now under suspension formerly Sheristadar Assistant Principal Sub Court, Tiruvannamalai on deputation from Principal District Munsif Court, Tiruvannamalai is duty bound to verify the amounts lying in the court deposit as well as the share of the parties concerned out of Rs.3,05,760/- wherein the petitioners Ranganathan, Kumarasamy 12/22 http://www.judis.nic.in W.P.No.23387 of 2019 each are entitled for 1/6 share, Ravakannu entitled for 1/8 share, Narayanaachri entitled for 1/3 share. Exceeding their share fraction cheque petition was filed which was entertained and cheque was issued in the name of the counsel without insisting for the receipt signed by the parties, photographs and ID proofs filed as in case of other petitions with a view to misappropriate the cheque amount lying the court deposit in convenience leaf with the Sheristadar and Head Clerk and other the delinquents. You had prepared the cheque number 16854 on 24.4.2015 much prior to the numbering of the petition and before orders passed by the court in collusion with the other delinquents and the Advocate Tr.Gunasekaran with a view to misappopriative the cheque amount due for payment to the claimants in LAOP 64/1988 thereby you have rendered yourself punishable under TSCS (D&A) Rules for misconduct, 13/22 http://www.judis.nic.in W.P.No.23387 of 2019 dishonest motive to misappropriate funds lying in the court deposit, not maintained absolute integrity and devotion to duty, misuse and abuse of power, tampering of records and conduct unbecoming of a Government Servant.
CHARGE-VI :
That you Tr.Palaniappan, had failed to supervise the work of the delinquents who were working as your Subordinates in the office with dishonest motive and omitted to see that the cheque was prepared by your assistant Tr.Rathinavel, delinquent much prior to your note and orders from the court and you have not exercised proper control and supervision in the office administration and failed to the maintain absolute integrity and devotion to duty thereby contravened the provisions of Tamil Nadu Government Servants Conduct Rules 1973 thereby reading yourself punishable under TNCS (D&A) Rules. 14/22 http://www.judis.nic.in W.P.No.23387 of 2019
10. Charge memo has been assailed, on the ground that petitioners are not responsible for the disbursement of the amount and the petitioners cannot be blamed for releasing the money. It is stated that an application was filed by a Lawyer and the vakalatnama contained the signatures of the Claimant counter signed by Advocate. The vakalatnama was therefore validly executed and there was no occasion for the Petitioners to doubt the validity of the same. It is stated that the Principal Subordinate Judge, Tiruvannamalai, passed orders for payment of the amount and the amounts were released.
11. Respondents Nos.2 and 3 have filed their counter affidavits, high lighting the pre-charges enquiry conducted by them and have brought out as to how the petitioners were involved in the withdrawal of money.
12. Heard Mr.V. Bhiman, learned counsel for the petitioners 15/22 http://www.judis.nic.in W.P.No.23387 of 2019 and Mr.V.Vijaya Shankar, learned counsel for the respondents.
13. Petitioners are facing grave charges of being party to impersonation and forgery. Allegation against them is that they have tampered Court records and had misappropriated the compensation amount deposited in court.
14. The Hon'ble Supreme Court in Union of India Vs. K.K.Dhawan {(1993) 2 SCC – 56, has laid down the parameters as to when disciplinary action has to be taken against the employees.
"28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders 16/22 http://www.judis.nic.in W.P.No.23387 of 2019 with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a Government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago “though the bribe may be small, yet the fault is great”.
29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary 17/22 http://www.judis.nic.in W.P.No.23387 of 2019 action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated." The charge memo issued to the Petitioners is in accordance with the law laid down by the Hon'ble Supreme Court. At this juncture, this Court does not want to go further into the merits of the case. It cannot be said that the present charge sheet is in any way against the principles laid down above.
15. It is well settled law that writ courts must be very slow in entertaining writs filed against charge memo. The Hon'ble Supreme Court in Union of India vs. Upendra Singh, {1994 (3) SCC – 57}, at paragraph No.26, observed as under:-
"6. 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 18/22 http://www.judis.nic.in W.P.No.23387 of 2019 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 function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal v. Gopi Nath & Sons [1992 Supp (2) SCC 312] . The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317, para 8) “Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of 19/22 http://www.judis.nic.in W.P.No.23387 of 2019 the decision making process but also on the correctness of the decision itself.”
16. In Union of India Vs. Kunisetty Sathyanarayana (2006) 12 SCC – 28, the Hon'ble Supreme Court, observed as under:-
"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. Ramesh Kumar Singh [(1996) 1 SCC 327 : JT (1995) 8 SC 331] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 :
AIR 2004 SC 1467] , Ulagappa v. Divisional Commr., Mysore [(2001) 10 SCC 639] , State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : 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 20/22 http://www.judis.nic.in W.P.No.23387 of 2019 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 petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. 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.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
21/22 http://www.judis.nic.in W.P.No.23387 of 2019
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."
17. In view of the mandate of the Hon'ble Supreme Court, this Court is not inclined to interfere with the charge memo. Enquiry proceedings have not been proceeded because of the fact that the charge memo has been challenged in the instant writ petition. In view of the fact that the petitioners are under suspension, respondents are directed to conclude the disciplinary proceedings at the earliest, not later than three months.
18. In the result, writ petition is dismissed. No costs. Consequently, the connected Miscellaneous Petitions are closed.
22/22 http://www.judis.nic.in W.P.No.23387 of 2019 (A.P.S., CJ.) (S.P., J.) 18/11/2019 Index : Yes / No Internet : Yes / No Speaking/Non-speaking order mvs. To 1. The Registrar General High Court Madras 600 104. 2. The Principal District Judge Thiruvannamalai. 3. The Principal Subordinate Judge Office of the Principal Sub-Court Thiruvannamalai Thiruvannamalai District. 23/22 http://www.judis.nic.in W.P.No.23387 of 2019 The Hon'ble Chief Justice and SUBRAMONIUM PRASAD, J mvs. order made in W.P.No.23387 of 2019 18/11/2019 24/22 http://www.judis.nic.in