Madras High Court
Nedunchelian vs The Director Of Treasury And Accounts on 12 February, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.02.2018
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P(MD)No.10132 of 2012
and
MP(MD)No.2 of 2012
Nedunchelian ... Petitioner
Vs.
1.The Director of Treasury and Accounts,
Panagal Building,
No.1, Jeenis Road,
Saidapet, Chennai.
2.The Treasury Officer,
District Treasury,
Pudukkottai,
Pudukkottai District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a issue a Writ of Certiorarified Mandamus, calling
for the records relating to the order of the 2nd respondent in his
proceedings in Na.Ka.10971/2010/B1, dated 30.12.2010 and quash the same as
arbitrary, illegal and consequently directing the 1st respondent to disburse
all retirement benefits within the stipulated time.
!For Petitioner : Mr.K.Baalasundharam
^For Respondents : Mr.R.Sethuraman,
Special Government Pleader.
:ORDER
The charge memo issued to the writ petitioner in proceedings dated 30.12.2010 is under challenge in this writ petition.
2. The writ petitioner was employed as a Junior Assistant in the year 1987 and further promoted to the post of Accountant and thereafter promoted to the post of Superintendent in the year 2010. On the basis of a complaint preferred against the writ petitioner on 17.07.2010 a criminal case of registered by the Ganesh Nagar Police Station in Crime No.434 of 2010 under Sections 294 (b) and 353 IPC. Thereafter, a final report against the writ petitioner was filed by the Ganesh Nagar Police under Sections 294 (b) and 353 IPC. Purusant to the registration of criminal case, departmental disciplinary proceedings were initiated against the writ petitioner and charge memo was issued in proceedings dated 13.12.2010. The copy of the charge memo is enclosed at page number 1 of the typed set of papers and the charges are extracted here under:-
Fw;wr;rhl;L vz; ?1 jpU/vk;/beLbrHpad;. fz;fhzpg;ghsh;. khtl;l fUt{yk;. g[Jf;fnfhl;il mth;fs; 16/07/2010 md;W ,ut[ Rkhh; 9/30 kzpastpy; mYtyf gzpapy; <Lgl;oUe;j jpU/r/nfhtpe;jd;. Cjtp fUt{y mYtyh;. khtl;l fUt{yk;/ g[Jf;nfhl;il mth;fis jfhj thh;j;ijfshy; jpl;oa[k; mof;ft[k; Kaw;rpj;jJ fUt[{y mYtyh; kw;Wk; cjtp fUt{y mYtyh; Mfpnahiu nky; mjpfhhpfs; vd;Wk; ghuhky; mth;fis khpahijapd;wp xUikapy; jpl;oa[k; kw;Wk; fzf;Ffs; mDg;g[k; gzpf;F ,ila{Wk; bra;Js;shh;/ Fw;wr;rhl;L vz;?2 Kd;dhy; fUt{y mYtyh; jpU/m/Kusp vd;gtuhy; g[Jf;nfhl;il fnz!; efh; fhty; epiyaj;jpy; j';fsJ bgahpy; g[fhh; mspf;fg;gl;L mjd; nghpy; 17/07/2010 md;W fhty; epiya Fw;w vz; 434-2010 d; go ,e;jpa jz;lidr; rl;lk; vz; 294(gp) kw;Wk; 353 tpjpfspd; fPH; Kjy; jfty; mwpf;if gjpag;gl;L mjd; nghpy;
Fw;wg;gj;jphpf;ifa[k; jhf;fy; bra;ag;gl;Ls;sjhy; egh; muRf;Fk; fUt{y fzf;Fj;Jiwf;Fk; fs';fk; Vw;gLj;jpaJld; muRg;gzpahsh; vd;w jFjpia ,He;J jkpH;ehL muRg;gzpahsh; elj;ij tpjpfs; 1973 tpjpapd; 20(1) I kPwpa[s;shh;/
3.Annexure-II of the charge memo provides the charge. Annexure-III provides the list of documents, Annexure-IV provides the list of witness to be examined during the course of the enquiry. Thus, this Court is of an opinion that there is no infirmity in the charge memo issued against the Petitioner.
4. It is left open to the writ petitioner to submit his explanations /objections on the allegation setout in the charge memo by availing the opportunities provided under the Discipline and Appeal Rules. Contrarily the writ petitioner has moved the present writ petition on the ground that the criminal case is pending against the writ petitioner and if proceeded with the departmental disciplinary proceedings, his right of defence would be prejudiced.
5.The learned Special Government Pleader appearing for the respondents brought to the notice of this Court that during the pendency of the writ petition, the criminal case was disposed of and the writ petitioner was acquitted form the criminal charges.
6.Simultaneous proceedings are certainly permissible and the Hon'ble Apex Court of India, reiterated and emphasised that a mere pendency of the criminal case is not a bar to proceed with the disciplinary proceedings. It is held that for convicting a person in a criminal case high standards of proof is required. However, no such strict proof is required for punishing an employee under the Discipline and Appeal Rules. Probabilities of preponderance of are sufficient to punish a public servant under the Conduct Rules. Further an order of acquittal would not exonerate an employee from the departmental disciplinary proceedings. Even in case of an acquittal, the disciplinary authority can proceed with the departmental disciplinary proceedings and punish the employee under the Conduct Rules.
7.No writ can be entertained challenging a charge memo in a routine manner. Judicial review in this regard is certainly limited and the constitutional Courts are to be cautious, while entertaining a writ petition against a charge memo.
8. A charge memo per se cannot constitute any cause of action to entertain a writ petition. A writ petition can be entertained against a charge memo, if the same is issued by the authority having no jurisdiction or competency or if any mala fide allegations are raised or if the same is in violation of the Statutory Rules in force. Even in case, raising allegations on mala fides, the authority against whom allegation is raised to be impleaded as party respondent in his personal capacity. In the absence of any one of these legal grounds, no writ petition can be entertained against a charge memo and it is left open to the writ petitioner to prove his innocence before the enquiry officer by providing evidence, documents, etc.,. Intermittent intervention in the departmental disciplinary proceedings are certainly not desirable.
9.On initiation of the disciplinary proceedings the authorities competent shall ensure that the enquiry proceedings are concluded at the earliest possible without causing any unnecessary delay. The disciplinary proceedings initiated against a public servant should be allowed to be concluded within a reasonable period of time and the same should reach its logical conclusion. The authorities competent on initiation of the disciplinary proceedings cannot keep the same pending for long years. Long pendency of the disciplinary proceedings would cause prejudice to the delinquent employees.
10.For instance, pending disciplinary proceedings is a bar for promotion, so also for retiring employee. He will be deprived of his pensionary benefits during the pendency of the disciplinary proceedings. Thus the disciplinary authority once initiated the proceedings under the Discipline and Appeal Rules, should conclude the same without any delay.
11. A direction issued by the Government for speedy disposal of the disciplinary proceedings, though is directory in nature, the authorities competent have to keep in mind that this is temporary and prescribed only to avoid further complication and to see that the said disciplinary proceedings are concluded within a reasonable time.
12. Even writ proceedings are filed under the Article 226 of the Constitution of India by the delinquent officials, challenging a charge memo in order to prolong and protract the disciplinary proceedings. In some cases, the Courts are witnessing that repeated writ petitions are filed at each and every stage of the disciplinary proceedings with an idea to escape from the clutches of the disciplinary proceedings. Such an attitude of the delinquent officials cannot be encouraged. Entertaining such a writ petition itself to be curtailed in view of the fact that long pendency of the writ petition in High Courts would provide undue advantage to the delinquent officials, and would pave way to escape from the clutches of disciplinary proceedings on account of long delay.
13. The Honourable Supreme Court of India in the case of Union of India and others Vs. Upendra Singh, reported in (1994) 3 SCC 357 and the paragraph 6 which is extracted hereunder:
?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 DATED : 12.02.2018 CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P(MD)No.10132 of 2012 and MP(MD)No.2 of 2012 Nedunchelian ... Petitioner Vs.
1.The Director of Treasury and Accounts, Panagal Building, No.1, Jeenis Road, Saidapet, Chennai.
2.The Treasury Officer, District Treasury, Pudukkottai, Pudukkottai District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a issue a Writ of Certiorarified Mandamus, calling for the records relating to the order of the 2nd respondent in his proceedings in Na.Ka.10971/2010/B1, dated 30.12.2010 and quash the same as arbitrary, illegal and consequently directing the 1st respondent to disburse all retirement benefits within the stipulated time.
For Petitioner : Mr.K.Baalasundharam
For Respondents : Mr.R.Sethuraman,
Special Government Pleader.
ORDER
The charge memo issued to the writ petitioner in proceedings dated 30.12.2010 is under challenge in this writ petition.
2. The writ petitioner was employed as a Junior Assistant in the year 1987 and further promoted to the post of Accountant and thereafter promoted to the post of Superintendent in the year 2010. On the basis of a complaint preferred against the writ petitioner on 17.07.2010 a criminal case of registered by the Ganesh Nagar Police Station in Crime No.434 of 2010 under Sections 294 (b) and 353 IPC. Thereafter, a final report against the writ petitioner was filed by the Ganesh Nagar Police under Sections 294 (b) and 353 IPC. Purusant to the registration of criminal case, departmental disciplinary proceedings were initiated against the writ petitioner and charge memo was issued in proceedings dated 13.12.2010. The copy of the charge memo is enclosed at page number 1 of the typed set of papers and the charges are extracted here under:-
Fw;wr;rhl;L vz; ?1 jpU/vk;/beLbrHpad;. fz;fhzpg;ghsh;. khtl;l fUt{yk;. g[Jf;fnfhl;il mth;fs; 16/07/2010 md;W ,ut[ Rkhh; 9/30 kzpastpy; mYtyf gzpapy; <Lgl;oUe;j jpU/r/nfhtpe;jd;. Cjtp fUt{y mYtyh;. khtl;l fUt{yk;/ g[Jf;nfhl;il mth;fis jfhj thh;j;ijfshy; jpl;oa[k; mof;ft[k; Kaw;rpj;jJ fUt[{y mYtyh; kw;Wk; cjtp fUt{y mYtyh; Mfpnahiu nky; mjpfhhpfs; vd;Wk; ghuhky; mth;fis khpahijapd;wp xUikapy; jpl;oa[k; kw;Wk; fzf;Ffs; mDg;g[k; gzpf;F ,ila{Wk; bra;Js;shh;/ Fw;wr;rhl;L vz;?2 Kd;dhy; fUt{y mYtyh; jpU/m/Kusp vd;gtuhy; g[Jf;nfhl;il fnz!; efh; fhty; epiyaj;jpy; j';fsJ bgahpy; g[fhh; mspf;fg;gl;L mjd; nghpy; 17/07/2010 md;W fhty; epiya Fw;w vz; 434-2010 d; go ,e;jpa jz;lidr; rl;lk; vz; 294(gp) kw;Wk; 353 tpjpfspd; fPH; Kjy; jfty; mwpf;if gjpag;gl;L mjd; nghpy;
Fw;wg;gj;jphpf;ifa[k; jhf;fy; bra;ag;gl;Ls;sjhy; egh; muRf;Fk; fUt{y fzf;Fj;Jiwf;Fk; fs';fk; Vw;gLj;jpaJld; muRg;gzpahsh; vd;w jFjpia ,He;J jkpH;ehL muRg;gzpahsh; elj;ij tpjpfs; 1973 tpjpapd; 20(1) I kPwpa[s;shh;/
3.Annexure-II of the charge memo provides the charge. Annexure-III provides the list of documents, Annexure-IV provides the list of witness to be examined during the course of the enquiry. Thus, this Court is of an opinion that there is no infirmity in the charge memo issued against the Petitioner.
4. It is left open to the writ petitioner to submit his explanations /objections on the allegation setout in the charge memo by availing the opportunities provided under the Discipline and Appeal Rules. Contrarily the writ petitioner has moved the present writ petition on the ground that the criminal case is pending against the writ petitioner and if proceeded with the departmental disciplinary proceedings, his right of defence would be prejudiced.
5.The learned Special Government Pleader appearing for the respondents brought to the notice of this Court that during the pendency of the writ petition, the criminal case was disposed of and the writ petitioner was acquitted form the criminal charges.
6.Simultaneous proceedings are certainly permissible and the Hon'ble Apex Court of India, reiterated and emphasised that a mere pendency of the criminal case is not a bar to proceed with the disciplinary proceedings. It is held that for convicting a person in a criminal case high standards of proof is required. However, no such strict proof is required for punishing an employee under the Discipline and Appeal Rules. Probabilities of preponderance of are sufficient to punish a public servant under the Conduct Rules. Further an order of acquittal would not exonerate an employee from the departmental disciplinary proceedings. Even in case of an acquittal, the disciplinary authority can proceed with the departmental disciplinary proceedings and punish the employee under the Conduct Rules.
7.No writ can be entertained challenging a charge memo in a routine manner. Judicial review in this regard is certainly limited and the constitutional Courts are to be cautious, while entertaining a writ petition against a charge memo.
8. A charge memo per se cannot constitute any cause of action to entertain a writ petition. A writ petition can be entertained against a charge memo, if the same is issued by the authority having no jurisdiction or competency or if any mala fide allegations are raised or if the same is in violation of the Statutory Rules in force. Even in case, raising allegations on mala fides, the authority against whom allegation is raised to be impleaded as party respondent in his personal capacity. In the absence of any one of these legal grounds, no writ petition can be entertained against a charge memo and it is left open to the writ petitioner to prove his innocence before the enquiry officer by providing evidence, documents, etc.,. Intermittent intervention in the departmental disciplinary proceedings are certainly not desirable.
9.On initiation of the disciplinary proceedings the authorities competent shall ensure that the enquiry proceedings are concluded at the earliest possible without causing any unnecessary delay. The disciplinary proceedings initiated against a public servant should be allowed to be concluded within a reasonable period of time and the same should reach its logical conclusion. The authorities competent on initiation of the disciplinary proceedings cannot keep the same pending for long years. Long pendency of the disciplinary proceedings would cause prejudice to the delinquent employees.
10.For instance, pending disciplinary proceedings is a bar for promotion, so also for retiring employee. He will be deprived of his pensionary benefits during the pendency of the disciplinary proceedings. Thus the disciplinary authority once initiated the proceedings under the Discipline and Appeal Rules, should conclude the same without any delay.
11. A direction issued by the Government for speedy disposal of the disciplinary proceedings, though is directory in nature, the authorities competent have to keep in mind that this is temporary and prescribed only to avoid further complication and to see that the said disciplinary proceedings are concluded within a reasonable time.
12. Even writ proceedings are filed under the Article 226 of the Constitution of India by the delinquent officials, challenging a charge memo in order to prolong and protract the disciplinary proceedings. In some cases, the Courts are witnessing that repeated writ petitions are filed at each and every stage of the disciplinary proceedings with an idea to escape from the clutches of the disciplinary proceedings. Such an attitude of the delinquent officials cannot be encouraged. Entertaining such a writ petition itself to be curtailed in view of the fact that long pendency of the writ petition in High Courts would provide undue advantage to the delinquent officials, and would pave way to escape from the clutches of disciplinary proceedings on account of long delay.
13. The Honourable Supreme Court of India in the case of Union of India and others Vs. Upendra Singh, reported in (1994) 3 SCC 357 and the paragraph 6 which is extracted hereunder:
?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 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, Kamal v. Gopi Nath & Sons. 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 authorized 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 the decision making process but also on the correctness of the decision itself."
14. In the case of Secretary, Ministry of Defence and Others Vs. Prabhash Chandra Mirdha [Civil Appeal No.2333 of 2007, Decided on May 29, 2012], the Apex Court of India held that normally, a Charge sheet is not liable to be quashed as it does not adversely affect the rights of an employee and does not give rise to any cause of action. A writ lies only when some right of a party is infringed. The charge sheet does not infringe the right of a party. It is only when a final order imposing punishment or otherwise, it may have a cause of action. Hence, writ petition challenging charge sheet by itself is not maintainable. However, it can be quashed on the ground that issuing authority being not competent to issue the same.
15. In the case of Union of India vs. Kunishetty Satyanarayana [(2006) SCC 28], it was held that writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not be ordinarily exercised by quashing a charge sheet. No doubt, in some very rare and exceptional cases, the High Court can quash a charge sheet if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal.
16.This being the factum of the case, there is no bar to proceed with the departmental disciplinary proceedings initiated against the writ petitioner in charge memo dated 13.12.2010. Since the challenge in this writ petition is a charge memo, this Court is of an opinion that the same cannot be entertained in a routine manner. In this view of the matter, the writ petition is devoid of merits.
17.Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, MP(MD)No.2 of 2012 is closed.
To
1.The Director of Treasury and Accounts, Panagal Building, No.1, Jeenis Road, Saidapet, Chennai.
2.The Treasury Officer, District Treasury, Pudukkottai, Pudukkottai District.
.