Madras High Court
M.Panneerselvam vs The District Collector on 5 February, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.02.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.2081 of 2010 and M.P.NO.1 of 2010 M.Panneerselvam .. Petitioner Vs. 1.The District Collector, Thiruvarur District. 2.The Revenue Divisional Officer, R.D.O. Office, Mannargudi Taluk, Thiruvarur District. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records from the second respondent pertaining to the impugned suspension order R.C.A1/562/2009 dated 29.01.2010 and its consequential order No.R.C.A1/562/2009, dated 31.01.2010 passed by the second respondent and to quash the same and consequently, to direct the respondents to permit the petitioner to retire and provide all necessary retirement benefits including pension. For Petitioner : Mr.P.Vijendran For Respondents : Mrs.C.K.Vishnupriya, AGP - - - - ORDER
Heard both sides. This Writ petition challenges the order, dated 29.01.2010 and the order dated 31.1.2010 under Rule 56(1)(c) of the Fundamental Rules issued by the second respondent. The petitioner though had reached the age of superannuation by 31.1.2010, he was not allowed to retire so as to enquire into grave charges and in public interest. The petitioner was informed that he will be paid sustenance allowance equivalent to pension.
2.The grievance of the petitioner was that the order is illegal and is liable to be set aside on the ground that it was contrary to the sprit of G.O.Ms.No.144, P&AR Department, dated 8.6.2007.
3.The order suspending the petitioner on the last day is attacked on the following ground: that two persons belonging to ruling party made a complaint against the petitioner. The second respondent the Revenue Divisional Officer, Mannargudi Taluk conducted an enquiry on 05.02.2009. The petitioner gave his reply. Thereafter, the petitioner was transferred to Malavarayanallur. The second respondent (Revenue Divisional Officer) sent a memo on 19.1.2010 to Tahsildar, Mannargudi asking him to enquire and submit a report. The Tahsildar made enquiries with the complainant and the Ex-President of Nallikottai village. He sent a report. The belated action taken by the second respondent was to prevent the petitioner from retiring from service on his reaching the age of superannuation on 31.1.2010.
4.The petitioner informed his Association of Government Employees belonging to SC/ST Employees. Its office bearers gave a representation to the District Revenue Officer. A further complaint was made to the higher authorities. It is the stand of the petitioner that the second respondent belonged to Vanniar community. He was targeting the officials belonging to Scheduled Caste and hence the false charge made against the petitioner. Though such an allegation was made, the second respondent was not made as a party in his individual capacity in order to prove the so-called allegation of mala fide.
5.It was also stated that the petitioner was suspended on 29.1.2010 under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. In the suspension order, dated 29.1.2010, it was stated as follows:
"Whereas charges under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules have been framed against Thiru.M.PanneerSelvam Village Administrative Officer, Malavarayanallur and formerly Village Administrative Officer 31 Thalikkottai Village Mannargudi Taluk, for the reasons of willfully included the Government poramboke lands of River poramboke and Channel poramboke lands and willfully committed more extent than the actual extent of the survey number in the beneficiary list and willfully included the survey number for grant of relief amount which is not available in the Village 'A' register and distributing relief amount for crop damages during Heavy Rain-2008-09 in respect of Nallikkotai Vilage hamlet of 31. Thalikkottai Revenue Village Mannargudi Taluk which results a loss of Revenue to Government amounting Rs.68,438/- (Rupees Sixty Eight thousand four hundred and Thirty Eight only)."
6.Pursuant to the order of suspension, a further order came to be passed on 31.1.2010 preventing the petitioner from retiring from service under Rule 56(1)(c).
7.The case of the petitioner was that 31.1.2010 was Sunday and it was served only on 1.2.2010 by affixure and the notice was pasted on the door of his house. The petitioner tore of the said notice from the wall and filed it before this court as the original impugned order. Therefore, it was contended that both the orders were illegal and they were passed only with a view to prevent the petitioner from getting superannuated.
8.Mr.P.Vijendran, counsel appearing for petitioner referred to the several decisions in support of his contentions. The counsel insisted that they are all decisions of the Supreme Court and are binding on this court under Article 141 of the Constitution of India. If they are not followed, it will amount to this court denying justice to his client. Therefore, this court decided to refer to the judgments cited by him, though all of them were out of mark.
9.The first decision of the Supreme Court is in State of Maharashtra Vs. M.H.Mazumdar reported in 1988 (2) SCC 52. It is a case where proceedings were initiated under the Bombay Civil Services Rules after retirement. Under those rules, the State Government had power to reduce or withhold pension in the proceedings initiated against a Government servant even after his retirement. Considering the facts and circumstances of the case, the Supreme Court held that reduction of 50% of the pension was too harsh and disproportionate to the misconduct. It is not clear as to how this judgment has any relevance. In the present case, the power is exercised under Rule 56(1)(c) of Fundamental Rules. In the event of Government finds the petitioner guilty, he can even be imposed with an appropriate penalty. At present, this court is not dealing with a proceedings under Rule 9 of the Tamil Nadu Pension Rules.
10.The counsel also relied upon the judgment of the Supreme Court in Deputy Registrar, Co-operative Societies, Faizabad Vs. Sachindra Nath Pandey and others reported in 1995 (3) SCC 134. It is not clear as to how the said judgment helps the case of the petitioner. On the other hand, it was held that a long delay itself cannot be a ground to set aside an enquiry initiated against a Government servant. The writ petition cannot be allowed unless the version of events alleged against a government servant found not proved and that the statement of government servant found to be proved.
11.The counsel placed reliance upon the judgment of the Supreme Court in State of W.B. Vs. Haresh C.Banerjee and others reported in 2006 (7) SCC 651. That was a case where the power to initiate action under the relevant pension rule for recovering the pecuniary loss caused from the pension payable to the government servant. The Supreme Court upheld the validity of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. In that context, the Supreme Court held that pension is not a bounty payable on the sweet will and pleasure of the Government. The right to receive pension is a valuable right of a government servant. This judgment has no relevance to the case on hand.
12.The counsel also relied upon the judgment of the Supreme Court in S.K. Dua v. State of Haryana reported in (2008) 3 SCC 44. In that case, the only question arose was that if there was any delay in settling retirement dues, whether a person was eligible to get interest on the delay in settling dues. The Supreme Court held that interest on delay in payment of retirement benefits flows from Articles 14,19 and 21 of the Constitution of India. The facts of the case as set out in paragraph 10 may be usefully extracted below:
"10. According to the appellant, he had always acted in the interest of the Government and saved public exchequer by inviting the attention to malpractices committed by high-ranking officers. As a measure of revenge against the appellant, charge-sheets were issued, but after considering the explanation submitted by the appellant, all proceedings against him were dropped. In view of exoneration of the appellant, the Government ought to have paid interest on retiral benefits which were given to him after long time. As per the guidelines and administrative instructions issued by the Government, the appellant was entitled to such benefit with interest. The High Court ought to have allowed the writ petition of the appellant and ought to have awarded those benefits....."
13.Insofar as the petitioner's case is concerned, the stage for getting pension is yet to reach. It is only the stage of suspension pending further action.
14.The decision of the Supreme Court in Secretary, Forest Department and others Vs. Abdur Rasul Chowdhury reported in 2009 (7) SCC 305 cited by the learned counsel for the petitioner once again do not help the case of the petitioner. The thrust of the case as found in paragraphs 15 and 16 may be usefully extracted below:
"15. In the present case, while the delinquent employee was in service, the departmental enquiry proceedings had been instituted by the employer by issuing the charge memo and the proceedings could not be completed before the government servant retired from service on attaining the age of superannuation and in view of Rule 10(1) of the 1971 Rules, the employer can proceed with the departmental enquiry proceedings though the government servant has retired from service for imposing only punishment contemplated under the Rules.
16. The next issue is with regard to delay in concluding disciplinary proceedings. In our view the delay in concluding the domestic enquiry proceedings is not fatal to the proceedings. It depends on the facts and circumstances of each case. The unexplained protracted delay on the part of the employer may be one of the circumstances in not permitting the employer to continue with the disciplinary enquiry proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should be permitted to continue."
Once again it is not clear as to how this judgment can have any relevance to the case on hand.
15.The decisions relied on by the counsel for the petitioner were referred to here only because the learned counsel contended that these judgments are binding on this court and that the court must necessarily refer to these judgments before passing any order in the writ petition.
16.There is no quarrel over the propositions of law laid down by the Supreme Court. The question is whether those judgments have any application to the case instituted by the petitioner.
17.In this context, it is necessary to refer to the decision of the Supreme Court in T.A. Quereshi (Dr.) v. CIT reported in (2007) 2 SCC 759 and it was held that cases must be decided on legal principles. It is useful to refer the following passage found in paragraph 16, which is as follows:
"16.....However, cases are to be decided by the court on legal principles and not on ones own moral views. Law is different from morality, as the positivist jurists Bentham and Austin pointed out.
18.The Supreme Court in Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University reported in (2008) 9 SCC 284 held in paragraph 40 as follows:
40. As held in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani24 a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed: (SCC pp.584-85, paras 9-12) 9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclids theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton25 (AC at p.761), Lord MacDermot observed: (All ER p.14 C-D) The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.
10. In Home Office v. Dorset Yacht Co. Ltd.26 (All ER p.297g-h) Lord Reid said, Lord Atkins speech is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2)27, (All ER p.1274d-e) observed: One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament; and, in British Railways Board v. Herrington28 Lord Morris said: (All ER p.761c) There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
* * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it. (emphasis supplied)"
19.Let this Court examine the cases which have a bearing on the issues raised herein. The Supreme Court in its decision in State of U.P. v. Brahm Datt Sharma reported in (1987) 2 SCC 179 dealt with the power of the Court in dealing with a charge memo at the show cause stage and the following passage found in paragraph 9 will make the position clear:
9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice.
20.The Supreme Court vide judgment in Special Director v. Mohd. Ghulam Ghouse reported in (2004) 3 SCC 440 in para 5 observed as follows:
5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted.
21.Further, the Supreme Court in the judgment relating to Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 in paras 13 to 16 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 v. Ramesh Kumar Singh (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440, Ulagappa v. Divisional Commr., Mysore (2001) 10 SCC 639, State of U.P. v. Brahm Datt Sharma(1987) 2 SCC 179, 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 petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
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.
22.In the decision in Dy. Registrar, Co-op. Societies v. Sachindra Nath Pandey reported in (1995) 3 SCC 134, the Supreme Court held that the delay in framing charge cannot be a ground to interfere with the charge memo and the relevant passage found in paragraph 7 of the said judgment is extracted below:
7. On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay......
23.Further, in Secretary to Government, Prohibition & Excise Department v. L. Srinivasan reported in (1996) 3 SCC 157, the Supreme Court has held that the charge cannot be quashed only on the ground of delay and any finding recorded by the Court will prejudice the enquiry. The Supreme Court has also pulled up the member of the Administrative Tribunal for having interfered with the charge memo as if the Tribunal is the appellate authority. The following passage found in paragraph 3 of the said judgment makes the position very clear:
3.....We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied.
24.The Supreme Court in Govt. of A.P. v. V. Appala Swamy reported in (2007) 14 SCC 49 held the parameters of interfering with a charge sheet on grounds of delay in paragraphs 12, 14 and 15 which reads as follows:
12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:
(1) where by reason of the delay, the employer condoned the lapses on the part of the employee;
(2) where the delay caused prejudice to the employee.
Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.
.......
14. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V. Bijlani v. Union of India(2006 (5) SCC 88). That case was decided on its peculiar facts. In that case, even the basic material on which departmental proceedings could be initiated was absent. The departmental proceedings were initiated after 6 years and continued for a period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced.
15. Bijlani, therefore, is not an authority and, in fact, as would appear from the decision in P.D. Agrawal4 for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor.
25.The last argument that the impugned order was not served on the petitioner before the last day of his service also cannot be accepted.
26.In this context, it is necessary to refer to the judgment of the Supreme Court in U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Tondon reported in (2008) 2 SCC 41. The following passage found in paragraph 40 may be usefully referred below:
40. Considering the facts and circumstances in their entirety, in our considered opinion, the High Court was wrong in holding that the proceedings were initiated after the respondent retired and there was no power, authority or jurisdiction with the Corporation to take any action against the writ petitioner and in setting aside the orders passed against him. In our judgment, proceedings could have been taken for the recovery of financial loss suffered by the Corporation due to negligence and carelessness attributable to the respondent employee. The impugned action, therefore, cannot be said to be illegal or without jurisdiction and the High Court was not right in quashing the proceedings as also the orders issued by the Corporation. The appeal, therefore, deserves to be allowed by setting aside the order of the High Court.
27.The Supreme Court in National Textile Corpn. (M.P.) Ltd. v. M.R. Jadhav reported in (2008) 7 SCC 29 has categorically stated that the actual communication of an order of suspension is not necessary and it is enough if the order goes out of control of the appointing authority. The following passage found in paragraphs 23 and 24 may be usefully extracted below:
23. In MCD v. Qimat Rai Gupta9 this Court opined: (SCC p. 319, para 27) 27. An order passed by a competent authority dismissing a government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika6 but an order placing a government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram.)
24. Therefore, there cannot be any doubt whatsoever that communication of the acceptance of offer was necessary. An internal noting does not constitute a communication. Even in a case of order of suspension, only when the case goes out of the control of the appropriate authority, actual communication may not be necessary.
28.In the light of the above discussions, the Writ Petition is clearly misconceived. There are no grounds warranting interference with the impugned orders at this stage. Hence this writ petition shall stand dismissed. No costs. Connected Miscellaneous petition is closed.
05.02.2010 Index : Yes Internet : Yes vvk To
1.The District Collector, Thiruvarur District.
2.The Revenue Divisional Officer, R.D.O. Office, Mannargudi Taluk, Thiruvarur District.
K.CHANDRU, J.
vvk W.P.NO.2081 of 2010 05.02.2010