Madras High Court
S.Chandrasekaran vs The State Of Tamil Nadu on 8 September, 2010
Bench: M.Y.Eqbal, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08..09..2010
CORAM
THE HONBLE Mr.M.Y.EQBAL, CHIEF JUSTICE
and
THE HONBLE Mr.JUSTICE T.S.SIVAGNANAM
W.P.No.17575 of 2010
and
M.P.Nos.1 and 2 of 2010
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S.Chandrasekaran,
S/o.Sanniyasy,
2, South Dhrowpathi Amman Koil Street,
Puthur,
Trichy 17. ..Petitioner.
Vs.
1. The State of Tamil Nadu,
Rep. by the Chief Secretary to the Government,
Fort St.George, Chennai 600 009.
2. The Registrar General,
High Court,
Madras. ..Respondents.
PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of mandamus to call for the records of the second respondent pertaining to his charge proceedings C.No.75/2008/VC in R.O.C.No.394 & 401/2008/VC dated 15.07.2010, quash the same and permit the petitioner to retire with effect from 30.06.2010 on conferring him with all attendant benefits and pass such further or other orders.
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For Petitioner :: Mrs.Hema Sampath, Senior Counsel
For M/s.R.Meenal & T.Sezhian
For Respondent 2 :: Mr.V.Vijayshankar
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O R D E R
The Honble The Chief Justice In this writ petition, filed under Article 226 of the Constitution of India, the petitioner, a Judicial Officer in the rank of District Judge, has prayed for the issuance of an appropriate writ in the nature of certiorarified mandamus for quashing the charge proceedings C.No.75/2008/VC in R.O.C.No.394 & 401/2008/VC dated 15.07.2010 and for a writ permitting the petitioner to retire from service w.e.f. 30.06.2010, when he attained the age of superannuation i.e., 60 years, and to direct the respondents to make payment of all retiral benefits to him.
2. In the affidavit accompanying the writ petition it is stated that the petitioner joined the Tamil Nadu State Subordinate Judicial service in the year 1983 as Judicial Second Class Magistrate. He was posted at different places and in the year 2005 he was posted as Principal District Judge, Thiruvannamalai, from there he was transferred to Nagapattinam as Principal District Judge on 02.05.2008. On 30.06.2008, the petitioner was given extension of service from 58 years to 60 years. It is alleged by the petitioner that he never faced any enquiry and had a long and unblemished tenure. It is stated that the petitioner was shocked to receive an Office Memorandum dated 17.06.2008 from the 2nd respondent along with a petition dated 11.06.2008 made by one P.Anbuselvam, Advocate and also one anonymous complaint, directing the petitioner to submit an explanation. The petitioner denied the allegations as false and baseless. It was stated that Mr.Anbuselvam, a junior counsel appearing for the claimants in a motor accident claim case, was disgruntled as the petitioner did not award a huge amount as compensation. The petitioners case was that he was due to retire on 30.06.2010 after putting a long service, but he was shocked to receive the proceedings dated 09.06.2010 from the 2nd respondent placing him under suspension with immediate effect pending enquiry on serious allegation of corruption and corrupt practices. This was followed by the charge proceedings in C.No.75/2008/VC in Roc No.394 & 401/2008/VC dated 15.07.2010 in which two charges were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
3. According to the petitioner the charges are vague and there had been no basis for the said charges. The petitioner contended that he was discharging his official duty to the best of his ability. The charge memo has been challenged on the ground that it is belated, vague and in violation of the strict instructions and guidelines given in G.O.Ms.No.144, Personnel and Administrative Reforms(N) Department dated 08.06.2007 which was reiterated by Letter No.24447/N/2010-I dated 10.06.2010. The petitioner, therefore, sought a relief for quashing the aforesaid charge proceeding inter alia on various grounds.
4. The 2nd respondent filed a counter affidavit sworn in by the Registrar General of the High Court. Firstly, it is stated that in the departmental proceeding the petitioner sought time for filing written statement of defense which was granted by the 2nd respondent. But, instead of submitting his written statement of defense, the petitioner moved this Court by filing the present writ petition. It is stated that the petitioner may raise all the points in the written statement of defense and face the departmental enquiry, which is pending against him. It is further stated that the case of the petitioner along with 7 others, who were attaining the age of 58 years during the month of June, 2008, were placed before the Administrative Committee of the High Court in the meeting held on 26.03.2008 to consider and decide their further continuance in service beyond the age of 58 years and up to 60 years. After considering the Annual Confidential Reports, work done statements of the officers, leave availed particulars, vigilance reports and physical fitness, the Administrative Committee resolved to allow the officers including the petitioner to continue in service beyond the age of 58 years. The specific case of the 2nd respondent is that at the time of giving extension of service to the petitioner, the charger were not placed before the Committee, and the complaints, which are the subject matter of the present charges, surfaced only during June/July, 2008. It is further stated that several complaints have been received against the petitioner while he was functioning as District Judge, Thiruvannamalai/Nagapattinam/Thiruvarur, the details of which are enumerated hereunder:
Place of Work R.O.C.No. Complainant Allegation Result/Remarks District Judge, Thiruvannamalai 347/2008 C.67/2008 P.Panthalarajkumar, Advocate, Thiruvannamalai Misuse of power and granting number of bails on a particular day 11.01.2008 Registrar (Vigilance) to hold enquiry/Honble CJ/ 22.04.2008 District Judge, Nagapattinam 394 & 401 /2008 C.75 & 88 /2008 P.Anbuselvam, Advocate, Nagapattinam Misuse of power Enquiry conducted Report of the Registrar (Vigilance) submitted explanation called for submitted placed before Honble Administrative Committee meanwhile the office placed under suspension (officer due to retire on 30.06.2010_ - draft charges framed ordered to place the draft charges before Honble Mr.Justice Elipe Dharmarao and Honble Mr.Justice C.Nagappan for approval Chief Judge, Court of Small Causes, Chennai was appointed as Presenting Officer for enquiry/ Honble CJ/ 06.07.2010.
District Judge, Nagapattinam 516-A/08 & 627/2008 C.172/08 N.Janardhanan, Mayiladuthurai Corruption Enquiry/Honble CJ/ 27.11.2008.
District Judge, Thiruvarur 85/2010 Judicial Staff Members Assn., Thiruvarur Corruption Orders to be obtained from Honble C.J.
District Judge, Thiruvarur 99/2010 R.Bhuvaneswaran, Valangaiman In a matter pertaining to temple affairs, the complainant seeks enquiry into the role of District Judge.
Orders to be obtained from Honble C.J.
District Judge, Thiruvarur 132/2010 Thanga Kathiravan, Advocate, Nagapattinam Corruption Orders to be obtained from Honble C.J.
District Judge, Thiruvarur 180/2010 C.12/2010 In the name of Court Staff, Judges and Advocates of Thiruvarur & Nagapattinam Corruption and misuse of powers Discreet Enquiry/ Honble C.J./ 17.03.2010 District Judge, Thiruvarur 273/2010 Ramasamy, Needamangalam Bribe Orders to be obtained from Honble C.J.
District Judge, Thiruvarur 274/2010 R.Thangaraj, Thiruvarur Misuse of power Affidavit called for and is awaited.
District Judge, Thiruvarur 329/2010 Anonymous Corruption Orders to be obtained from Honble C.J.
5. The further case of the 2nd respondent is that the complaints dated 08.07.2008 was placed before the then Chief Justice, who ordered to conduct enquiry by the Registrar (Vigilance). Accordingly, enquiry was conducted and a report was submitted by the Registrar (Vigilance) on 28.07.2010 holding the allegations substantiated. On perusal of the said report the Chief Justice directed to call for explanation from the officer concerned and to place the report before the Administrative Committee of the High Court. The Administrative Committee finally took the decision to place the petitioner under suspension and further a Honble Judge was appointed as the Enquiry Officer to conduct enquiry against the petitioner. By subsequent decision dated 23.07.2010 the Administrative Committee resolved not to permit the petitioner to retire on his attaining the age of superannuation on 30.06.2010. At the same time, the Registry was directed to expedite the disciplinary proceeding pending against the petitioner. After the approval of the draft charges by the Administrative Committee the same was served upon the petitioner. Lastly it is contended by the 2nd respondent that considering the gravity of allegations of corruption and corrupt practices and in administrative exigencies the petitioner was placed under suspension, pending enquiry, and thereafter, the Administrative Committee, after considering the past records and series of complaints, passed a resolution not to permit the petitioner to retire on superannuation.
6. Mrs.Hema Sampath, learned senior counsel appearing for the petitioner mainly assailed the order of suspension and the charge memo on the ground that the same is belated and has been issued two years after the preliminary enquiry, which was conducted in July, 2008. Learned senior counsel submitted that the order of suspension issued when the officer was due to retire is in violation of G.O.Ms.No.144 dated 8th June, 2007. Learned senior counsel submitted that when the alleged misconduct of the petitioner has been noticed by the respondents in June, 2008, the enquiry should have been initiated and concluded immediately. Learned senior counsel further submitted that the allegations made in the memo of charge are palpably false and frivolous and cannot be acted upon.
7. As noticed above, a decision was taken by the Administrative Committee on 26th March, 2008 giving extension of service to the petitioner from 58 years to 60 years. Pursuant to that, a memo dated 30th June, 2008 was issued to the petitioner informing him that his services are extended from 58 years to 60 years. It reveals from the records that from the year 2006 to 2008, several complaints were received against the petitioner alleging corruption. Against those corruption charges, enquiry was ordered and one case of corruption was pending for appropriate orders. It is, therefore, clear that even on the date when the case of the petitioner for extension of service was considered by the Administrative Committee, several enquiries on corruption charges were pending against him. But this, perhaps, was not brought to the notice of the Administrative Committee at the time the decision was taken for extension of service of the petitioner beyond the age of 58 years and upto 60 years.
8. The Supreme Court in the case of All India Judges Assn. V. Union of India reported in 1993 (4) SCC 288 discussed in detail the criteria to be adopted while giving extension of service from 58 to 60 years and observed: - (paras 30 & 31,pp 305 & 306)
30. The benefit of the increase of the retirement age to 60 years, shall not be available automatically to all judicial officers irrespective of their past record of service and evidence of their continued utility to the judicial system. The benefit will be available to those who, in the opinion of the respective High Courts, have a potential for continued useful service. It is not intended as a windfall for the indolent, the infirm and those of doubtful integrity, reputation and utility. The potential for continued utility shall be assessed and evaluated by appropriate Committees of Judges of the respective High Courts constituted and headed by the Chief Justices of the High Courts and the evaluation shall be made on the basis of the judicial officers past record of service, character rolls, quality of judgments and other relevant matters.
31. The High Court should undertake and complete the exercise in case of officers about to attain the age of 58 years well within time by following the procedure for compulsory retirement as laid down in the respective Service Rules applicable to the judicial officers. Those who will not be found fit and eligible by this standard should not be given the benefit of the higher retirement age and should be compulsorily retired at the age of 58 by following the said procedure for compulsory retirement. The exercise should be undertaken before the attainment of the age of 58 years even in cases where earlier the age of superannuation was less than 58 years. It is necessary to make it clear that this assessment is for the purpose of finding out the suitability of the concerned officers for the entitlement of the benefit of the increased age of superannuation from 58 years to 60 years. It is in addition to the assessment to be undertaken for compulsory retirement and the compulsory retirement at the earlier stage/s under the respective Service Rules.
9. Be that as it may. On the basis of the complaints received on 11th June, 2008, a memo was issued to the petitioner on 17th June, 2008 and on 9th July, 2008, the Registrar(Vigilance) recorded the statement of the complainant. But it appears that after recording of the statement of the petitioner, the matter remained pending and the enquiry was not proceeded for two years.
10. So far the veracity and correctness of the allegations made against the petitioner for which charge memo has been issued, this Court cannot express any opinion, since the departmental enquiry is pending against him. The only question, therefore, that falls for consideration is as to whether the impugned order of suspension and the issuance of charge memo can be quashed only on the ground of delay in passing G.O.Ms.No.144 dt. 8th June, 2007.
11. G.O.Ms.No.144 followed by a subsequent Letter No.24447/N/2010-I dated 10th June, 2010 are the instructions for expeditious action on the pending disciplinary proceedings. According to these instructions, the disciplinary action initiated against the Government servants should be completed and final orders to be issued within the time limit prescribed by the Government so as to ensure that there is no unwarranted delay in finalizing the disciplinary proceedings.
12. There is no dispute with regard to the legal proposition that the disciplinary proceeding once initiated against the Government servant must be concluded within a reasonable time and on the basis of the belated disciplinary proceedings, the Government servant cannot be put to hardship by not permitting him to superannuate and to keep him under suspension. But, this proposition cannot strictly be applied in all the cases specially where a Government servant is in judicial service, and is involved in several corruption charges. Merely because the departmental proceedings could not be concluded within a reasonable time such Judicial Officer could not be exonerated from the charges.
13. If serious grave charges of corruption against the judicial officer has been brought to the notice of the High Court and those charges have been substantiated in a preliminary enquiry contemplated by the Vigilance Department and the departmental proceeding has been initiated, then, in such cases, the enquiry could not be closed, merely because of delay in the conclusion of the departmental enquiry. In our view, therefore, the instructions issued by G.O.Ms.No.144 cannot be given statutory force.
14. In the instant case, as noticed above, despite the pendency of contemplated enquiries on several charges, the petitioner was given extension of service from 58 to 60 years. Even thereafter complaints were received upto the year 2010. In such circumstances, we are of the view that the petitioner must face departmental enquiry and defend himself of all the charges leveled against him. Considering the facts of the case, we are of the view that the order of suspension and the charge proceedings cannot be quashed on the ground of delay. However, we make it clear that we have not expressed any opinion with regard to the correctness and genuineness of the allegations made in the memo of charge issued against the petitioner, and it is for the enquiry officer to come to a conclusion and record the findings on the allegations made against the petitioner and submit the enquiry report. However, we observe that the departmental proceedings should be concluded as expeditiously as possible, and preferably within a period of four months from today.
15. For the reasons aforesaid, we dismiss this writ petition with the directions and observations as indicated in the order. No costs. Consequently, miscellaneous petitions are closed.
Sm/pv Copy to:
1. The State of Tamil Nadu, Rep. by the Chief Secretary to the Government, Fort St.George, Chennai 600 009.
2. The Registrar General,High Court, Madras