Madras High Court
S.Subramanian vs The State Of Tamil Nadu on 10 September, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/09/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition (MD)No.9367 of 2010 S.Subramanian ... Petitioner Vs. 1.The State of Tamil Nadu, Rep. By its Secretary to Government, Department of Registration and Commercial Taxes, Secretariat, Chennai. 2.The Inspector General of Registration, Chennai. 3.The Tribunal for Disciplinary Proceedings, Trichirappalli, Rep.by its Commissioner ... Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order of suspension passed by the 2nd respondent in his proceedings 12009/V2/2009, dated 25.11.2009 and consequential order not permitting the petitioner to retire and retaining the petitioner in service passed by the 1st respondent in his proceedings 12009/V2/2009 dated 27.11.2009 and consequential charge memo issued by the 3rd respondent in his proceedings Rc.No.40/2009/A1, dated 12.05.2010 and quash the same as illegal and consequentially to direct the 1st respondent to allow the petitioner to retire along with all retirement and monetary benefits. !For Petitioner ... Mr.M.Ajmal Khan, Senior Counsel. ^For Respondents... Mr.T.S.Mohamed Mohideen, Additional Government Pleader. :ORDER
Being aggrieved by the order, dated 25.11.2009 passed by the Inspector General Registration, Chennai, the second respondent herein, suspending the petitioner and the consequential order of the first respondent, dated 27.11.2009, in not permitting the petitioner to retire and the disciplinary proceedings initiated by issuance of a charge memorandum framed by the Tribunal for Disciplinary Proceedings, Trichirappalli, dated 12.05.2010, the petitioner has sought for a Certiorarified Mandamus, to quash the abovesaid orders and consequently prayed for a direction to the Secretary to the Government, Department of Registration and Commercial Taxes, Chennai, to allow the petitioner to retire with all retirement and monetary benefits.
2.According to the petitioner, initially, he was appointed as a Section Writer in the office of the Sub Registrar at Annavasal, Pudukottai District and gradually, he became Sub Registrar (Guideline) and was working in the office of the District Registrar, Pattukottai. According to the petitioner, he had rendered unblemished service throughout his career. While so, some of the them who had grudge against the petitioner, seemed to have indulged in mudslinging campaign and sent complaints. An Enquiry was ordered by the first respondent. A Committee was constituted to enquire into the allegations and that a report was submitted on 10.12.2008. While that be so, just few days before the retirement, the Inspector General Registration, Chennai, the second respondent herein, by an order dated 25.11.2009 has suspended the petitioner alleging corruption. The petitioner was due to retire on 30.11.2009. Thereafter, on 27.11.2009, an order was passed not permitting the petitioner to retire on attaining the age of superannuation and that the petitioner has been retained in service until, the enquiry into the charges are completed.
3.Being aggrieved by the same, the petitioner, made representations to the respondents to drop the proposed disciplinary proceedings in the light of the recommendations and report given by the District Registrar, Pattukottai and the Committee. However, no action was taken. After nearly six months from the date of suspension, by an order dated 12.05.2010, the Tribunal for Disciplinary Proceedings, Tiruchirapalli has formulated charges alleging that the petitioner has demanded and accepted bribe ranging from Rs.500/- to Rs.15,000/- from the purchasers/sellers for registration of sale deeds and for issuance of birth and death certificates, in the office of the Sub Registrar, Madukkur between August 2006 and October 2007 and thus, the petitioner did not maintain absolute integrity and devotion to duty and acted in violation of Rule 20(1) of the Tamil Nadu Government Servants' Conduct Rules, 1973.
4.Assailing the correctness of the action taken against the petitioner, Mr.M.Ajmal Khan, Learned Senior Counsel for the petitioner submitted that the suspension of the petitioner is wholly unwarranted for the reason that if there was any incriminating material against the petitioner involving corruption, action could have been taken even in the year 2006 itself and that the suspension is contrary to G.O.Ms.No.144, Personnel and Administrative Reform (N) Departments, dated 08.06.2007, whereas the Government have issued instructions to avoid suspension on the eve of retirement of a Government servant. According to the Learned Senior Counsel, when the Government have specifically ordered that the disciplinary authority should not resort to last minute suspension of the Government servant particularly on the date of retirement and further ordered that if any irregularities or an offence committed by the Government servant comes to the notice within a period of three months prior to the date of retirement, the disciplinary authority shall process, the case on war-footing and take a decision either to permit the Government servant to retire from service without prejudice to the disciplinary case or place him under suspension based on gravity or irregularities committed by him, the respondents have failed to adhere to the Government guidelines and unnecessarily placed the petitioner under suspension on some vague allegations of corruption for the period between August 2006 and October 2007.
5.Placing reliance on the decisions of the Supreme Court in Government of A.P. and others Vs.A.Venkatara Raidu reported in (2007) 1 SCC 338 and in Anil Gilurker Vs.Bilaspur Raipur Kshetria Gramin Bank and another reported in (2012) 1 MLJ 978, Learned Senior Counsel for the petitioner submitted that the charge framed against the petitioner by the Tribunal for Disciplinary Proceedings, Trichirappalli, dated 12.05.2010 alleging that when he was working as Sub Registrar, Madukkur, Thanjavur District, demanded and accepted bribe amount ranging from Rs.500/- to Rs.15,000/- from purchasers/ sellers for registration of sale documents and for issuance of birth and death certificates between August 2006 and October 2007, is so vague and the charge did not contain any details as to when, and from whom and on what dates, the alleged payment have demanded and received.
6.Learned Senior Counsel further submitted that when the charges are not specific and vague, it would be an empty formality in directing the petitioner to undergo an ordeal of facing the disciplinary proceedings and on the basis of such vague charges, it would be impossible to effectively defend and that the petitioner cannot be even expected to submit a reasonable explanation to the charges. According to him, no statement of allegations or imputations have been made against the petitioner constituting misconduct, touching upon the integrity of the petitioner, alleging violation of Rule 20(1) of the Tamil Nadu Government Service Conduct Rules 1973.
7.Inviting the attention of this Court to Rule 8 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, Learned Senior Counsel submitted that in matters relating to allegations of corruption or corruption combined with other charges, against a Government servant, the Tribunal for Disciplinary Proceedings, shall frame appropriate charges, communicate them to the person charged together with list of witnesses likely to be examined in respect of each of the charges, copies of the complaints made by the complainants, copies of statements taken from the witnesses which form the basis on which, the Tribunal has framed the charge/charges against the Government servant and with information as to the date and place of enquiry.
8.In the light of the above statutory provision and inviting the attention of this Court to the impugned charge memorandum, dated 12.05.2010 issued by the Tribunal for Disciplinary Proceedings, Learned Senior Counsel submitted that though a list of witnesses has been mentioned in the charge memo, there is absolutely no reference to the copies of complaints said to have been made by the complainants, copies of statements taken from the witnesses, which form the basis on which the Tribunal has framed the charges and in the abovesaid circumstances, he submitted that the charge memorandum is not only vague but the Tribunal for Disciplinary Proceedings has framed a cryptic charge, without there being any material on record except citing a list of witnesses. He further submitted that when the charge memorandum does not reflect the basis on which the it is issued, the action of the respondent does not satisfy the requirements of a fair enquiry, and it would be impossible for any charged official to defend such innocuous charge.
9.Inviting the attention of this Court to rule 17(e) (1) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, Learned Senior Counsel for the petitioner submitted that only in a case where there is any enquiry into grave charges, pending or under contemplation, suspension can be resorted to, in public interest. But in the absence of any material to substantiate that there was an enquiry contemplated, suspension ought not to have been ordered, in a routine manner. For the abovesaid reasons, he submitted that the suspension ordered on 25.11.2009 and the consequential proceedings are all liable to be set aside.
10.Per contra, based on the counter affidavit filed by the Inspector General, Chennai, the second respondent herein, Mr.T.S.Mohamed Mohideen, Learned Additional Government Pleader, submitted that the allegation of illegal gratification against the petitioner has been substantiated by Director of Vigilance and Anti Corruption. He denied the contention of the petitioner that the charge levelled against the petitioner was based on the report and recommendations of the District Registrar, made on the complaint of one Thangamuthu Panipoondar. According to him, the report and recommendation are not related to the present charge memorandum.
11.He further submitted that fact of receiving illegal gratification has been clearly mentioned in the charge memo and that it is not vague. As the allegation of corruption is serious in nature, the petitioner was placed under suspension, on 25.11.2009 and for the purpose of conducting disciplinary proceedings, retention of service was ordered.
12.On the aspect of vagueness, Learned Additional Government Pleader submitted that during the course of enquiry, all the documents to be relied on by the Department, would be furnished. According to him, as per the procedure, contemplated under the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, at the time of enquiry, oral and documentary evidence, shall be first adduced by the prosecution, and that the person charged shall be entitled to cross examine the prosecution witnesses and to explain any documents produced by the prosecution.
13.He further submitted that the copies of the complaints/statements which form the basis of the charge would be furnished to the petitioner within any specified time if ordered by this Court and considering the gravity of the charge of corruption, he prayed that the disciplinary proceedings and the charge memo issued by the Tribunal for Disciplinary Proceedings, Tiruchirappalli, need not be set aside at the threshold. According to him, so long as the Tribunal for Disciplinary Proceedings, Tiruchirappalli, is competent to frame the charges, even if there is any defect in not furnishing the copies of statements/complaints along with the charge memorandum the same can always be rectified, and in such circumstances, it is not open to the petitioner to contend that there is no basis for initiating disciplinary proceedings. In support of his contention, that the charge memorandum could be quashed only in rare cases on the ground of lack of jurisdiction and for other reasons, Learned Additional Government Pleader placed reliance on the judgments reported in AIR 1972 Calcutta 27 (Hari Prasad Singh Vs. Commissioner of Income-tax, West Bengal and others) and in Union of India and another Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28.
14.According to him, when there are materials substantiated by the Director of Vigilance and Anti Corruption which form the basis for taking disciplinary proceedings, the same should be allowed to be proceeded. He further submitted that it is too premature to examine the correctness of the charge before any evidence is let in. For all the reasons stated supra, he prayed for dismissal of the writ petition.
15.Heard the learned counsel on either side and perused the entire materials available on record.
16.The order of suspension, dated 25.11.2009 reads as follows:-
"ORDER Whereas Tr.S.Subramanian, Sub Registrar (Guideline), District Registrar Office, Pattukottai, was placed under suspension by the Inspector General of Registration, Chennai-28 in his proceedings read above:
And whereas the said Tr.S.Subramanian, Sub Registrar (Guideline) (under suspension) attains the age of superannuation on the afternoon of 30.11.2009 and inquiries into grave charges against him are still pending. And whereas in the circumstances of the case, it is necessary that Tr.S.Subramanian, Sub Registrar (Guideline) (under suspension) shall not be permitted to retire on his reaching the age of superannuation but shall be retained in service.
Now, therefore, it is hereby ordered under Fundamental Rule 56(1)(c) that the said Tr.S.Subramanian, Sub Registrar (Guideline) (under suspension) shall not be permitted to retire on his attaining the age of superannuation on 30.11.2009 A.N, but shall be retained in service until inquiries into charges pending against him are concluded and final orders passed thereon by the competent authority.
2.During such extension of service, the service rights of the said Tr.S.Subramanian, Sub Registrar (Guideline) (under suspension) shall freeze of the level reached on the date of his superannuation (ie) 30.11.2009 AN and the salary during the period viz., from 01.12.2009 shall not exceed the pension which would have accrued to him on that date".
17.The term, 'inquiry' has been explained in a decision in AIR 1995 HP 156 (Dr.K.C.Malhotra Vs.The Chancellor, H.P.University, Shimla and others) as act of seeking truth information or knowledge about something.
18.In Real Value Appliances Ltd., Vs.Canara Bank and others reported in (1998) 5 SCC 554, the Supreme Court explained the meaning of the word "inquiry" to include "investigation" into facts, causes, effects and relations generally, "to inquire" according to the dictionary meaning "to exert oneself to discover something". As per Chambers 20th Century Dictionary the meaning of the term "to inquire" is "to ask, to seek" and the meaning of the term "inquiry" is given as : search for knowledge; investigation; a question.
19.In State of U.P. Vs.Ranjit Singh reported in (1999) 2 SCC 617, the Supreme Court reiterated that the word "inquiry" includes "investigation" into facts, causes, effects and relations generally.
20.Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules is extracted hereunder:
"17(b)(i)Without prejudice to the provisions of the Public Servants' Inquiries Act, 1850 (Central Act XXXVII of 1850), in every case where it is proposed to impose on a member of a service or on a person holding a Civil Post under the State any of the penalties specified in items (iv), (vi), (vii) and
(viii) in rule 8, the grounds on which it is proposed to take action shall be reduced to the form a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegation, on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time to put in a written statement of his defence and to state whether he desires an oral inquiry or to be heard in person or both. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. Even if a person charged has waived an oral inquiry, such inquiry shall be held by the authority concerned in respect of charges which are not admitted by the person charged and which can be proved only through the evidence of witnesses. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. Whether or not the person charged desired or had an oral inquiry, he shall be heard in person at any stage if he so desires before passing of final orders. A report of the inquiry or personal hearing (as the case may be) shall be prepared by the authority holding the inquiry or personal hearing whether or not such authority is competent to impose the penalty. Such report shall contain a sufficient record of the evidence, if any and a statement of the findings and the grounds thereof. Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor or partly recorded by its predecessor and partly recorded by itself;
Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross- examine and re-examine any such witnesses as hereinbefore provided:
Provided further that where there is a complaint of sexual harassment within the meaning of rule 20-B of the Tamil Nadu Government Servants' Conduct Rules, 1973, the Complaints Committee established in each Government Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the Disciplinary Authority for the purpose of these rules and the Complaints Committee shall hold the inquiry as far as practicable in accordance with the procedure laid down in these Rules. Provided further that the Government Servant may take the assistance of any retired Government servant to present the case on his behalf but may not engage a legal practitioner for the purpose unless the inquiring authority is a legal practitioner or the inquiring authority, having regard to the circumstances of the case, so permits.
Explanation:-The Government servant shall not take the assistance of any retired Government servant who has two pending disciplinary cases on hand, in which he has to give assistance.
(ii)After the inquiry or personal hearing referred to in clause(i) has been completed, the authority competent to impose the penalty specified in that clause, is of the opinion, on the basis of the evidence adduced during the inquiry, that any of the penalties specified in rule 8 should be imposed on the person charged, it shall before making an order imposing such penalty, furnish to him a copy of the report of the inquiry or personal hearing or both, as the case may be, and call upon him to submit his further representation, if any within a reasonable time, not exceeding fifteen days. Any representation received in this behalf within the period shall be taken into consideration before making any order imposing the penalty, provided that such representation shall be based on the evidence adduced during the inquiry only. It shall not be necessary to give the person charged any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Tamil Nadu Public Service Commission, the disciplinary authority shall consult the Tamil Nadu Public Service Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty".
21.As per 17(e)(1) of the above said Rules, a member of a service may be placed under suspension from service where an enquiry into grave charges against him is contemplated, or is pending or a complaint against him of any criminal offence is under investigation or trial and if such suspension is necessary in the public interest.
22.A bare reading of rules, and the impugned order of suspension makes it clear that the reason for suspending the petitioner is to cause an investigation into the allegations of corruption against the petitioner and in such circumstances, the Inspector General (Registration) Chennai, the second respondent herein, has deemed it fit as necessary in public interest to place the petitioner under suspension from service. Merely because, the Inspector General (Registration), Chennai, the second respondent herein has verbatim not reproduced the text as contained in Rule 17(e)(1)(i) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, it cannot be contended that the authority who placed the petitioner under suspension had committed a manifest illegality in suspending the petitioner nor it could be contended that there was no public interest at all, particularly, when it is the specific case of the respondent that the Director of Vigilance and Anti Corruption had substantiated the allegations of corruption and that the investigating authority has obtained statements from various witnesses cited in the impugned charge memorandum.
23.The purpose of ordering an inquiry, is for investigation into facts, cause, effect and to ascertain the truth or otherwise into the allegations, and in the case on hand, it is with reference to allegations of corruption, which certainly affects the integrity and failure to maintain devotion to duty by a Government servant.
24.When a misconduct, involving corruption, or corruption combined with other charges against a Government servant is stated to be substantiated by the Vigilance and Anti Corruption Department, the disciplinary authority/the Government should be given a free hand and latitude to probe into the allegations and if there are materials warranting disciplinary action under the rules, suspension has to be necessarily be resorted to, having regard to the nature and gratuity of the allegations, which involves corruption.
25.For testing the validity or the correctness of an administrative order, what is required to be considered by the Courts is the substance of the order and not the form. Merely because an order of suspension does not contain the very same words, as used in the statute, it does not mean that it is illegal or contrary to the statute. When the intention is to investigate into the allegations of corruption, and apparent on the face of the order, it would prevail over any minor defect in the order. There is no jurisdictional error. Admittedly, the Inspector General (Registration), Chennai, the second respondent herein is the Head of the Registration Department.
26.Inquiry is primarily with an object to investigate or probe into the allegations which may fructify into a regular departmental enquiry, if there are materials to formulate charges. The parameters taken into consideration at the time of inquiry and regular departmental enquiry are different. It would fall in the domain of the appointing authority/disciplinary authority/Government to place a Government servant under suspension even during the stage of any preliminary inquiry and at that stage, it is not necessary, there should be a formulated charge. There is no need that the order of suspension should be a word by word reproduction, of the statutory provision. The word 'inquiry' has a wide connotation ranging from investigation or inquiry or probe into the matter and it cannot be restricted only to mean a regular departmental enquiry, pending.
27.In this context, it is worthwhile, to consider, a Division Bench judgment of this Court in D.Uthirakumaran Vs.The Government of Tamil Nadu rep. By the Chief Secretary to Government, Madras-9 reported in 1988 WLR 229. In the above reported case, while dealing with the contention that there can be suspension of a member service only with an enquiry into grave charges against him was pending or enquiry into grave charges or contemplated and in the absence of formulation of any such charge, there cannot be a suspension, the Division Bench at paragraphs 13, 14 and 20 held as follows:
13.With regard to suspension pending enquiry, it is certainly not punitive in character. In such a case, it means the relationship of master and servant remains in abeyance for a temporary phase. It is an action in order to maintain purity of service when an employee is awaiting an enquiry in regard to his suspected misconduct. As laid down in Hemant Kumar v. S. N. Mukherjee, , the basic idea underlying the root word 'suspend' and all its derivations is that a person while holding an office and performing is functions or holding a position or privilege should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position or privilege. The legal position as regards a master's right to place his servants under suspension is now well settled by the decisions of the Supreme Court. The law on the subject was exhaustively reviewed in Balvantray Ratilal Patel v. State of Maharashtra (1968-II-700). Therein the legal position was stated thus (p. 703) :
"The general principle therefore is that an employer can suspend an employee pending an enquiry into his misconduct and the only question that can arise in such suspension will relate to payment of his wages during the period of such suspension. It is now well settled that the power to suspend, in the sense of a right to forbid a servant to work is not an implied term in an ordinary contract between master and servant, and that such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such a power either as an express term in the contract or in the rules framed under some statute would mean that a master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work, he will have to pay the employee's wages during the period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the order of suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay. It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which, it would be withheld. The distinction between suspending the contract of a service of an officer and suspending him from performing the duties of his office on the basis that the contract is subsisting is important. The suspension in the latter sense is always an implied term in every contract service. When an officer is suspended in this sense, it means that the government merely issues a direction to him that he should not do the service required of him during a particular period. In other words the employer is regarded as issuing an order to the employee which because the contract is subsisting, the employee must obey."
14.Suspension pending or in contemplation of disciplinary enquiry does not amount to temporary removal from service and does not attract Art. 311 of the Constitution (vide Mohammad Ghouse v. State of Andhra Pradesh (AIR 1957 SC 246) . Thus it would follow that suspension pending a departmental enquiry or a criminal charge is a different matter altogether. There, the employee is asked not to associate directly with the activities of his employment because as a result of pending enquiry or criminal charge, it would be embarrassing for all the parties concerned, for him to be directly associated with the work of the office. In such a case, some interim arrangement is made for subsistence allowance. However, it is implied that if the ultimate proceedings ensure in his favour, then, he would get his full wages. In short, the object of suspension is to get away the officer concerned from the sphere of his activity in as much as it may be necessary to find out facts from people working under him or look into papers which are in his custody. It would be embarrassing and inopportune both for the officer concerned as well as to those whose duty it is to make the enquiry to do so while the officer is present on the spot.
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In our considered view, R. 17(e)(1) of the Rules is more comprehensive in its scope, and the words therein are designedly used to express a different legislative intention as under R. 40(1)(a) and (b) of the Railway Protection Force Rules, 1959 to which the attention of the Supreme Court was drawn in the decision in P. R. Nayak v. Union of India (AIR 1972 SC 354)(supra). Thus we conclude that R. 17(b) of the Rules prescribes the grounds on which it is proposed to take action. Those grounds shall be reduced to the from of definite charge or charges. Thereafter, the member of the Service is required to submit a written statement of defence to the charge or charges. The framing of charge under R. 17(b) is essential to enable the member of the Service to meet the case against him. On the contrary, Rule 17(e)(1)(i) is different. That provides for suspension under the contingencies contemplated in the Rule. Having regard to the scope of these rules, we are of the opinion that the word 'charges' occurring in R. 17(e)(1)(i) should be given a wider meaning so as to cover the accusations or imputations made against the member of the Service. If so construed, there is no need for formulation of charges as laid down by Nainar Sundaram, J. Having regard to the object and the intendment of these sub-rules, with respect, we are unable to share the view of the learned Judge. Accordingly, we overrule the said decision".
28.In the light of the materials gathered by the Director of Vigilance and Anti Corruption and placed before the competent authorities, it cannot be said that the Government have committed a manifest illegality in placing the petitioner under suspension.
29.G.O.Ms.No.144, Personnel and Administrative Reform (N) Departments, dated 08.06.2007 has been issued by the Government to avoid delay in the disposal of disciplinary cases. The guidelines issued by the Government are as follows:
"The Government direct that the following guidelines by followed to avoid suspension orders on the date of retirement of the Government servants in supersession of orders issued in the reference second read above:
(i)The disciplinary authority should not resort to last minute suspension of the Government Servants (i.e.) on the date of their retirement. A decision either to allow Government Servants to retire from service or suspend him from service should be taken on the date of retirement, if final orders could not be issued in a pending disciplinary case against a Government servant retiring from service due to administrative grounds.
(ii)If an irregularity or an offence committed by the Government servant comes to notice within a period of three months prior to the date of retirement, the disciplinary authority shall process the case on war - footing and take a decision either to permit the Government servant to retire from service without prejudice to the disciplinary case pending against him or to place him under suspension, based on gravity of the irregularities committed by him.
(iii)In respect of Directorate of Vigilance and Anti-corruption and Tribunal for Disciplinary Proceedings cases, the disciplinary authorities should strictly adhere to the time limit prescribed by the Government. It is noticed that Directorate of Vigilance, Anti-corruption, and Tribunal for Disciplinary Proceedings cases are dragged on for a long time without adhering to the time limit prescribed by the Government in Letter first read above. In such cases, the disciplinary authorities should take a decision to place him under suspension well in advance (i.e) prior to the date of retirement of the Government servants and not on the date of retirement.
(iv)Any failure on the part of the disciplinary authority to issue final orders three months before the date of retirement of a delinquent officer will be viewed seriously and it will entail severe action to be initiated against the officials responsible for dragging on the case to the date of retirement of Government Servants concerned.
(v)Where the delinquency committed by a Government Servant is very grave which warrants imposition of major penalty such as dismissal or removal from service and if it is not possible to pass final orders in such departmental proceedings, then it is necessary to suspend the Government Servant from service and not to permit him to retire on attaining the age of superannuation under Fundamental Rule 56(1)(c). In such cases also, the disciplinary authorities have to ensure that the suspension orders are not issued on the date of retirement of the Government Servants. However, where a Government Servant is already under suspension orders retaining the services of Government Servant beyond the date of superannuation under Fundamental Rule 56(1)(c) have to be issued on the date of retirement only.
(vi)In case where charges have been framed and the disciplinary authority is of the view that a pension cut or withholding of pension under the Tamil Nadu Pension Rules, 1978 would suffice for the delinquency committed, the disciplinary authority may allow the Government Servant to retire from service without prejudice to the department proceedings.
(vii)If the disciplinary authority comes to know of the commission of a delinquency which warrants imposition of major penalty such as dismissal or removal from service, within three months prior to the date of retirement of the Government Servants and charges could not be framed before the date of retirement of the Government Servants, then also it is necessary to suspend the Government Servant from service and not to permit him to retire on attaining the age of superannuation under Fundamental Rule 56(1)(c). In cases also, the disciplinary authorities may ensure that the suspension orders are not issued on the date of retirement of the Government Servant.
(viii)The above instructions shall not be made applicable to cases of Directorate of Vigilance and Anti-Corruption enquiry and criminal cases".
30.The abovesaid guidelines, cannot be said to have any statutory force and it is only for administrative purposes to avoid delay. The Government have not issued any directions that a Government servant cannot be suspended at all, on the verge of his retirement, if there are materials warranting issuance of such an order. Even the Government cannot issue any such general order, contrary to statutory rules. The said administrative instructions have no statutory force, and therefore, the same would not lend support to the case of the petitioner.
31.On the aspect as to whether, the Tribunal for Disciplinary Proceedings, Tiruchirappalli has committed a grave error in not adhering to the statutory provisions under Rule 8 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal)Rules, 1955 warranting quashing of the charge memorandum, dated 27.11.2009 on the grounds of vagueness and procedural violations in not furnishing the copies of statements obtained from the witnesses/copies of the complaints which form the basis on which the Tribunal has framed the charges, Rule 8 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal)Rules, 1955 states that as soon as the records relating to the allegations of corruption or of corruption combined with other charges against a Government servant are received, the Tribunal shall frame appropriate charges, communicate them to the person charged together with a list of witnesses likely to be examined in respect of each of the charges, copies of the complaints made by the complainants, copies of the statements taken from the witnesses which form the basis on which the Tribunal has framed the charge or charges against him and with information as to the date and place of enquiry. The rule also makes it clear that at time of enquiry, oral and documentary evidence shall be first adduced by the prosecution and person charged would be entitled to cross- examine the prosecution witnesses and to explain any documents produced by the prosecution. The person charged shall thereafter, within the time allowed by the Tribunal, file a written statement of his defence along with a list of witnesses whom he wishes to examine, stating the points on which he proposes to examine each of them, provided that he need not so specify the points for examination in his own case, when he wishes any to examine himself as well. The oral and documentary evidence on his side shall then be adduced. After the enquiry is completed, the Tribunal shall hear the Prosecutor for Disciplinary Proceedings and the person charged or permit them to file written statement briefs of their respective cases, if they so desire. A copy of the written brief, if submitted by the Prosecutor for Disciplinary Proceedings, shall be served on the person charged, before he is required to submit his reply written brief. The Tribunal shall, as far as possible, observe the basic Rules of evidence relating to the examination of witnesses and the marking of documents.
32.The rule further makes it clear that for sufficient reasons to be recorded in writing, the Tribunal shall have power to refuse to call a witness on either side, or to summon, and examine any further witnesses, or to call for, and exhibit any further documents. The proceedings of the Tribunal shall contain a sufficient record of the evidence.
33.In matters relating to an enquiry by the Tribunal, into the charges of corruption or of corruption combined with other charges, the procedure contemplates under rule 8(d) of the provisions of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal)Rules, 1955, shall apply and in regard to the procedure to be followed in cases other than those of corruption; and in regard to any other matter for which no specific provision has been made in these Rules, rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules shall apply.
34.A comparative reading of the procedure envisaged in rule 8(i) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal)Rules, 1955 and rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) rules make abundantly clear that submission of an explanation to the charge framed by the Commissioner for disciplinary proceedings Tribunal, at the beginning of the enquiry is not at all contemplated. The submission of an explanation to a charge formulated by the appointing authority/disciplinary authority/Government, can be claimed as a matter of right, only on receipt of the charge memorandum under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules.
35.Under Rule 17(b), he shall be required within a reasonable time to put in a written statement of his defence and to state whether to he desires an oral inquiry or to be heard in person or both. Whereas, under Rule 8 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal)Rules, 1955, the enquiry commences even before the submission of any explanation and the oral and documentary evidence shall be first adduced and thereafter, within the time allowed by the Tribunal, the charged official shall file his written statement of his defence.
36.Though the submission of the Learned Senior Counsel for the petitioner that without furnishing the copies of the complaints made by the complainants, copies of the statements taken from the witnesses, the petitioner would not be in a position to effectively defend the charge levelled against him, merits consideration but at the same time, the charged official would not be indefensible, if the statements of allegations, the detailed facts, copies of the complaints/statement of witnesses are furnished well in advance before the commencement of the enquiry by the Tribunal for disciplinary proceedings. Though learned Senior counsel for the petitioner submitted that there is no need to give any legal opinion or to rectify any defect in the order and prayed to quash the charge memo, this Court is not inclined to subscribe to the contentions of the learned Senior Counsel, for the reason that suitable directions can always be issued to the authorities to adhere to the principles of natural justice. So long as the authority is competent to frame charges and when serious allegations of corruption are levelled against a Government servant, it would not be inappropriate to issue directions to furnish statement of allegations, details of facts, copies of complaints and statements of witnesses to the charged official, so that the charged official receives a fair and reasonable opportunity to defend the proceedings before the Commissioner for Disciplinary Proceedings, Tiruchirappalli. Such an approach in the opinion of this Court would subserve public interest in the matter of an enquiry into a serious misconduct of corruption. Therefore, in the interest of justice and to provide a fair and reasonable opportunity to the petitioner to effectively defend the charge, a direction is issued to the Commissioner for Disciplinary Proceedings, Tiruchirappalli, the third respondent herein to furnish the copies of complaints made by the complainants, copies of statement of witnesses which form the basis on which the charge is framed before the commencement of enquiry.
37.On the contention that the charge is vague not specific as to from whom and on what dates, the alleged bribe had been received over a period between August 2006 and October 2007 and therefore, the charge memorandum has to be quashed at the threshold, this Court is of the view that the charge memorandum could be set aside only in rare and exceptional cases as held in Union of India and another Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28. In the above reported judgment, the Supreme Court at paragraphs 13 to 16 has 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 vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another 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.
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.
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".
38.The said judgment has been followed by a Hon'ble single Judge of this Court in S.Chinnasamy Vs.The Joint Registrar of Co-op.Societies, Madurai Region and others reported in 2010 2 CWC 222.
39.Though both the learned counsel appearing for the parties, placed reliance on the decision of the Calcutta High Court in Hari Prasad Singh Vs.Commissioner of Income-tax, West Bengal and others reported in AIR 1972 Calcutta 27, on the aspect of vagueness of the charges, it is worthwhile to consider a judgment of the Hon'ble Justice B.N.Banerjee, in Sripati Ranjan Biswas Vs.Collector of Customs reported in AIR 1964 Calcutta 415 at 417 referred to wherein the Hon'ble Judge has observed as follows:
"Integrity is uprightness, honesty or purity. Devotion to duty is faithful service. Modern approaches to life have changed many ideals, which used to be held sacred. Such approaches have also worked a change in our sense of the sublime. But even then, the idea of right and wrong has not been forgotten and the difference between honesty and dishonesty, fidelity and faithlessness wholly lost".
40.In Government of A.P and others reported in (2007) 1 SCC 338, four charges were framed against the respondent. Based on the enquiry report, the Commissioner for Tribal Welfare Department, issued a show cause notice, and on receipt of the explanation, dismissed the respondent from service. The Tribunal after observing that the charges 2 to 4 were not found to be proved by the Enquiry Officer, considered the matter with reference to Charge No.1 and further observed that Charge No.1, though proved, it cannot be said to be a misconduct and on that basis, the Tribunal exonerated the respondent. The order of the Tribunal was tested before the High Court, and at paragraph 12 High Court, held as follows:
"It is also to be noted that the so-called directions of Gos issued by the Government on the subject were not even placed before the enquiry officer. It is on record that the delinquent officer only renewed the deposits already made by his predecessors. Under those circumstances, the Tribunal has categorically observed that Charge 1 cannot be held to be proved on the basis of the material available on record".
41.When the correctness of the above judgment was tested before the Supreme Court, after going through the material, the Apex Court at paragraph 9 held as follows:
"9.We respectfully agree with the view taken by the High Court. It is a settled principle of natural justice that if any material is sought to be used in an enquiry, then copies of that material should be supplied to the part against whom such enquiry is held. In Charge 1, what is mentioned is that the respondent violated the orders issued by the Government. However, no details of these orders have been mentioned in Charge 1. It is well settled that a charge- sheet should not be vague but should be specific. The authority should have mentioned the date of the GO which is said to have been violated by the respondent, the number of that GO etc., but that was not done. Copies of the said Gos or directions of the Government were not even placed before the enquiry officer. Hence, Charge 1 was not specific and hence no finding of guilt can be fixed on the basis of that charge. Moreover, as the High Court has found, the respondent only renewed the deposit already made by his predecessors. Hence, we are of the opinion that the respondent cannot be found guilty for the offence charged".
42.In Union of India v. Gyan Chand Chattar reported in 2009 (12) SCC 78 , following a departmental enquiry, the disciplinary authority imposed a punishment of removal from service. The appeal filed by the respondent was partly allowed modifying the penalty of removal into penalty to reversion to the lower post of clerk in grade II. The said order was put to challenge. A Hon'ble single Judge of the High Court, appreciating the evidence came to the conclusion that out of 6 charges, framed against the respondent, only 4 and 5 can be said to be proved and directed the disciplinary authority to pass a fresh order imposing a minor punishment. When the said order was challenged by the Union of India in Letter Patent Appeal, the Division Bench accepting the counter objections of the respondent, set aside the direction given by the Hon'ble single Judge to impose a minor penalty and considering the facts and circumstances of the case, the Division Bench also directed that the respondent would be entitled to 50% of the backwages with all consequential benefits including retiral benefits. The correctness of the said order was challenged before the Supreme Court and taking note of charge No.6, that is demand of 1% commission for making the payment of pay allowances, the Supreme Court, at paragraph 23 held as follows:
"Charge No.6 was basically based on hearsay statement and it is difficult to assume as to whether enquiry could be held on such a vague charge. The Charge No.6 does not reveal as who was the person who had been asked by the respondent to pay 1% commission for payment of pay allowances. It is an admitted position that if a charge of corruption is proved, no punishment other that dismissal can be awarded".
43.The Apex Court while summarising as to how a departmental enquiry has to be conducted adhering to the statutory provisions and principles of natural justice, considered a catena of decisions, which are reproduced hereunder:
"24.In Municipal Committee, Bahadurgarh v. Krishnan Bihari & and others reported in, AIR 1996 SC 1249, this Court held as under:
"In a case of such nature - indeed, in cases involving corruption - there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.
"25. Similar view has been reiterated by this Court in Ruston & another; Hornsby (I) Ltd. v. T.B. Kadam, AIR 1975 SC 2025; U.P. State Road Transport Corporation v. Basudeo Chaudhary & Anr., (1997) 11 SCC 370; Janatha Bazar South Kanara Central Cooperative Wholesale Stores Ltd. & Ors. v. Secreatry, Sahakari Noukarar Sangha and Ors. (2000) 7 SCC 517; Karnataka State Road Transport Corporation v. B.S. Hullikatty, AIR 2001 SC 930; Regional Manager, R.S.R.T.C. v. Ghanshyam Sharma, (2002) 10 SCC 330; Divisional Controller N.E.K.R.T.C. v. H. Amaresh, AIR 2006 SC 2730; and U.P.S.R.T.C. v. Vinod Kumar, (2008) 1 SCC 115 wherein it has been held that the punishment should always be proportionate to gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences".
26.In Surath Chandra Chakravarty v. The State of West Bengal, AIR 1971 SC 752, this Court held that it is not permissible to hold an enquiry on a vague charge as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as what is the allegation against him and what kind of defence he can put in rebuttal thereof. This Court observed as under :
"The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or 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.(Emphasis added)"
27.In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge- sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated. (Vide State of Andhra Pradesh & Ors. vs. S. Sree Rama Rao, AIR 1963 SC 1723). Thus, where a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge- sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice.
28.In Sawai Singh v. State of Rajasthan, AIR 1986 SC 995, this Court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair-play in action, particularly, in respect of an order involving adverse or penal consequences.
29.In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjunctures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.
30. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been agitation by the Railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the Railway Station. The Enquiry Officer has taken into consideration the non- existing material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eyes of law".
44.In Gyan Chand Chattar's case, Charge No.6 was held as proved by the Enquiry Officer, though none of the witnesses examined before the Enquiry Officer was able to point out as to who was the person who had been asked by the respondent to pay 1% commission. One of the witnesses has deposed that some unknown person had told him. On the evidence let in the Hon'ble single Judge held that the knowledge of the witnesses in this regard was purely based on "hearsay statement of some unknown persons whom they did not know" and therefore, it was held that the abovesaid evidence was certainly not legal evidence to sustain such a serious charge of corruption against an employee .
45.In R.Ravichandran Vs. The Additional Commissioner of Police, Traffic, Chennai and another reported in 2010 CIJ 553 IPJ, this Court has held as follows:
"50.Applying the principles of law laid down in the above judgments to the facts of the present case, if subjective satisfaction regarding suspension based on the objective consideration of keeping away a government servant alleged charge of corruption, from discharging his duties is arrived at by the appointing/disciplinary authority/government, the Court should not interfere with the decision of the said authorities. It is the public interest, which has to be given due importance in such matters and there is no question of considering private interests of the person, merely because, he is not allowed to enjoy the privileges attached to the post. It has to be noted that the Government servant has no absolute right to seek for retention in service, notwithstanding the gravity of charges, pending against him or particularly, where investigation into a crime or trial, involving moral turpitude, is pending. On the other hand, the appointing authority/disciplinary authority/Government, as the master, has the absolute right either to retain or suspend or to impose anyone of the major punishments of dismissal, removal and compulsory retirement, as the case may be, depending upon the outcome of the departmental enquiry or trial.
....
....
78.Corruption is forbidden by law, an offence involving moral turpitude or exactly opposite of dishonesty involving intentional disregard to law. When the misconduct of the government servant attracts criminal liability, for which, penal laws provide for severe punishments, like sentencing to rigorous imprisonment, the period depending upon the gravity of the offence, like in the instant case, imprisonment for a maximum period of 7 years, besides fine or both, it should be left to the absolute discretion of the appointing/disciplinary authority/government to place a government servant under suspension, pending investigation/trial. Persons involved in serious charges of corruption, embezzlement, misappropriation of government funds or crimes attracting severe punishments cannot be equated with others, discharging their duties honestly. Courts should not obstruct the powers of the appointing/disciplinary, authority/government, from forbidding such persons from discharging their duties, atleast till the trial is over. In M.K.Dange v. Chairman-cum-Managing Director, Oil and Natural Gaz Corporation reported in 2006 (2) MLJ 34, has held that even after acquittal, suspension does not automatically come to an end, until the order is revoked by the authorities.
....
....
81.For the purpose of suspension, it is sufficient that the competent authority has arrived at a prima facie conclusion that the Government servant has committed a serious misconduct, which entails major penalties, like dismissal, removal or compulsory retirement, etc., from service. Illustrative cases, where action has to be taken immediately, are persons, involving in serious acts of misdemeanor, such as, (a) offence or conduct involving moral turpitude, (b) corruption, embezzlement or misappropriation of Government money,
(c) possession of disproportionate assets, (d) misuse of official powers for personal gain, (e) serious negligence or dereliction of duty, (f) desertion of duty and (g) refusal or deliberate failure to carry out written orders of superior officers; (h) apprehension of tampering with witnesses or documents or likelihood of causing prejudice to an inquiry, investigation or trial; (j) likelihood of subversion of discipline in office; (k) involvement of scandals, and (l) likelihood of ultimate conviction out of departmental proceedings, and in all these illustrative cases, it is the matter of necessity and public interest, involved and therefore, it which must be left to the absolute discretion of the competent authority, with whom, the power is vested to suspend and that such discretion exercised in public interest should not be interfered with lightly.
....
....
86.The duty of the Court is restricted only to the limited extent to see that where the appointing/disciplinary authority has taken into consideration the nature of the charge, its complexity, the public interest involved in retaining the government servant, against whom, serious imputation of corruption, misappropriation, embezzlement, etc., are levelled and whether retention of such person, would be scandalous to the department or sub-serve the discipline in the department or affect the morale of other government servants".
46.In Anil Gilurker Vs.Bilaspur Raipur Kshetria Gramin Bank and Another reported in (2012) 1 MLJ 978 (SC), disciplinary proceedings were initiated against the Branch Manager of the bank. Following the same, a Branch Manager was removed from service. A Hon'ble single Judge found that in the charge sheet there was no reference to any specific document or to the names of the persons who had not been given the loan amounts and accordingly took the view that in the charge sheet there were no specific charges and placing reliance on the decisions of the Supreme Court in Surath Chandra Chakrabarty Vs.State of West Bengal reported in AIR 1971 SC 752 : (1970) 3 SCC 548, Sawai Singh Vs. State of Rajasthan reported in AIR 1986 SC 995, the Hon'ble single Judge held that the charges levelled against the delinquent officer in the charge sheet were vague and not specific and that the entire enquiry was vitiated and quashed the orders of the disciplinary and the appellate authorities and directed reinstatement of the official in service with continuity in service and without loss of seniority and also directed that the official would be entitled to compensation of Rs.1.5 lakhs in lieu of arrears of his salary.
47.Not satisfied with the quantum of compensation, the official filed W.A.No.57 of 2010 and the respondent authority has also filed W.A.No.82 of 2010. After hearing the appeals together, the Division Bench of the Chhattisgarh High Court held in the impugned order therein the charge-sheet was not vague, since on the basis of documents mentioned in the charge-sheet, wherein it has been alleged that the official had sanctioned loans and shown the loans only on paper but had not actually disbursed the loans to the borrowers. The Division Bench, however, held that as the disciplinary authority had disagreed with the findings in the inquiry report, and therefore, the charged official should have been furnished with the reasons for disagreement before passing the order of punishment. The Division Bench further held that the disciplinary authority cannot conduct a further enquiry suo motu to fill up the lacuna in the enquiry. The Division Bench allowed both the appeals and directed that the disciplinary authority would consider the inquiry report, the evidence recorded by the Enquiry Officer and the documents relied upon in the charge-sheet and take a fresh decision in accordance with law. The Division Bench further observed that if the disciplinary authority takes a view on reconsideration of the matter not to take any further action against the official, he shall be given all the consequential benefits along with reinstatement.
48.When the correctness of the order passed by the Division Bench was challenged on appeal, the Apex Court on scrutiny of the statement of witnesses on the charge framed against the official at paragraph 7 held as follows:
"7.A plain reading of the charges and the statement of imputations reproduced above would show that only vague allegations were made against the appellant that he had sanctioned loans to a large number of brick manufacturing units by committing irregularities, but did not disburse the entire loan amount to the borrowers and while a portion of the loan amount was deposited in the account of the borrowers, the balance was misappropriated by him and others. The details of the loan accounts or the names of the borrowers have not been mentioned in the charges. The amounts of loan which were sanctioned and the amounts which were actually disbursed to the borrowers and the amounts alleged to have been misappropriated by the appellant have not been mentioned. "
49.Going through the charge sheet, dated 31.03.1989, the Supreme court further observed that the charge memo had no statement of imputations giving the particulars of loan accounts or the names of the borrowers, the amounts of loans sanctioned, disbursed and misappropriated were furnished to the official, and yet the disciplinary authority has called upon the official to submit his written defence statement in reply to the charges. Paragraph 9 of the said judgment is extracted hereunder:
"9.As has been held by this Court in Surath Chandra Chakrabarty v. State of West Bengal (supra):at p.297 of LLJ:
"4......The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This rule 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.."
50.After considering the decisions in Surath Chandra Chakrabarty Vs.State of West Bengal reported in AIR 1971 SC 752, and in U nion of India & Ors. v. Gyan Chand Chattar reported in (2009) 12 SCC 78, the Apex Court allowed the appeals and set aside the order of the Division Bench and restored the order of the Hon'ble single Judge. Considering the facts and circumstances, the directions issued by the Hon'ble single Judge to pay Rs.1.5 lakhs to the appellant as compensation in lieu of arrears of salary and backwages to the official has been set aside.
51.In all the decisions relied on by the learned Senior Counsel for the petitioner, the correctness of a final order of the disciplinary authority/appellate authority/ has been tested and that the Supreme Court after considering as to whether the facts are substantiated even for formulation of the charges, whether the evidence adduced is credible or whether any hearsay evidence can form the basis while arriving at any probable inference of commission of a serious offence of corruption, has set aside the impugned orders therein, holding that the charges were vague and that there was failure on the part of the disciplinary authority/appellant authorities in not properly appreciating the facts as to how the charged official therein could have submitted his written statement in defence in respect of the charges and further observed that a fair enquiry could not have been held, unless the charged official was furnished with the particulars of the loan accounts or the names of the borrowers, the amounts of loan sanctioned, the amount actually disbursed and the amounts misappropriated etc., in the charge sheet.
52.Reverting back to the case on hand, it is too early in the day to arrive at any conclusion against the petitioner on the charge of corruption alleging that the petitioner had demanded and accepted bribe ranging from Rs.500/- to Rs.15,000/- from the purchasers/sellers for registration of sale deeds and for issuance of birth and death certificates, while he was working in the office of the Sub Registrar, Madukkur between August 2006 and October 2007.
53.In all the judgments relied on by the learned Senior Counsel for the petitioner, the charged official therein had undergone the enquiry and imposed with punishments and when the said orders were tested, Courts have interfered with the penalty, after holding that the charges as vague. As per the procedure contemplated under Rule 8 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, oral and documentary evidence shall be first adduced by the prosecution and that the charged official shall be entitled to cross examine the prosecution witnesses and to explain any such documents produced that the prosecution and thereafter, the person charged shall within the time allowed by the Tribunal file written statement along with the list of witnesses whom he wishes to examine, stating the points on which he proposes to examine each of them, provided that he need not so specify the points for examination in his own case, when he wishes to examine himself. The oral and documentary evidence on his side shall then be adduced. During the course of enquiry, evidence has to be let in.
54.As stated supra, if the statement of allegations, copies of complaints and copies of statements obtained if any, are furnished to the writ petitioner well in advance, before the commencement of enquiry, there will not be any room for any complaint of vagueness of the charges or violation of principles of natural justice in the disciplinary proceedings. Principles of natural justice is not an empty formality. Certainly, there would be prejudice to the petitioner, if certain statements or materials are put against the petitioner, without furnishing the copies, as per the procedure set out in Rule 8 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955.
55.The petitioner would certainly come to know the details with regard to the demand and receipt and rule 8 of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 provides for submission of explanation after the enquiry is over. Considering the gravity of the charge namely, corruption, the Tribunal for Disciplinary Proceedings, Tiruchirapalli being a quasi judicial authority, has to conduct the enquiry in a fair and reasonable manner adhering to the principles of natural justice and on the facts and circumstances of the case, in public interest, quashing of the charge memo will not fall under rare and exceptional cases as observed by the Supreme Court. It is premature to challenge the charge memo on the basis of any assumption that an adverse finding would be rendered against the petitioner. The nature of the proceedings before the Tribunal being quasi judicial, the petitioner can be furnished with the documents relied on by the prosecution and if the copies of statements/complaints are too voluminous, the charged official may be permitted to peruse the same take out notes well in advance before commencement of the enquiry.
56.In the light of the above discussion, this Court is not inclined to interfere with the impugned orders. Hence, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
sms To
1.The State of Tamil Nadu, Rep. By its Secretary to Government, Department of Registration and Commercial Taxes, Secretariat, Chennai.
2.The Inspector General of Registration, Chennai.
3.The Tribunal for Disciplinary Proceedings, Trichirappalli, Rep.by its Commissioner.