Madras High Court
A.Maria Dallas vs The State Of Tamil Nadu on 29 August, 2013
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/08/2013 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.14461 of 2013 A.Maria Dallas .. Petitioner vs 1.The State of Tamil Nadu, Rep.by its Chief Secretary, Panchayat Raj Department, Secretariat, St.George Fort, Chennai-600 009. 2.The Commissioner, Rural Development and Panchayat Raj Department, Chennai-15. 3.The District Collector, Dindigul District, Dindigul. 4.The Assistant Director of Audit, Rural and Panchayat Raj Department, Tiruppur District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorarified mandamus calling for the records relating to the impugned charge memo issued by the second respondent in his Proceedings in Na.Ka.No.23401/2013/DPC 3.1 dated 20.08.2013 and quash the same as illegal and consequentially to direct the respondents to permit the petitioner to retire from service w.e.f. 31.08.2013, the date on which he attains the age of superannuation with all retirement benefits. !For Petitioner ... Mr.M.Ajmal Khan, Sr.Counsel for Mr.C.Venkatesh Kumar for M/s.Ajmal Associates ^For Respondents ... Mrs.S.Bharathi, Government Advocate :ORDER
Challenge in this writ petition is to the charge memorandum dated 20.08.2013, in Na.Ka.No.23401/2013/TPC, issued by the Commissioner, Rural Development and Panchayat Raj Department, Chennai, the second respondent herein. Alleging that the petitioner has failed to properly supervise and monitor the irregularities committed in Bodipatti Panchayat, Devanur Pudhur Panchayat and Periyakottai Panchayat, respectively, and thus responsible for a financial loss to the tune of Rs.26,88,482.00, Rs.8,94,895.10 and Rs.15,73,422.00, respectively, the present charge memorandum has been issued. In support of the charges, statement of imputations and the documents to be marked, have been annexed to the charge memorandum. The petitioner-Assistant Project Officer, who is due to retire on attaining the age of superannuation on 31.08.2013, and being aggrieved over, the charge memorandum, dated 20.08.2013, on the verge of retirement, has challenged the same, by a Writ of certiorarified mandamus to quash the charge memorandum and consequently, prayed for a direction to the respondents to permit him to retire from service with effect from 31.08.2013, the date on which he attains the age of superannuation.
2.In support of the relief sought for, Mr.M.Ajmal Khan, learned Senior Counsel, submitted that ever since the induction of the petitioner, as Junior Assistant in the Office of the Panchayat Union on 26.06.1985, he has not been visited with any charge memorandum, throughout his career and that just on the verge of retirement, the above such disciplinary proceedings have been initiated, which is contrary to the guidelines, issued by the Government, in G.O.Ms.No.144, Personnel and Administrative Reforms (N) Department, dated 08.06.2007, wherein it is ordered that initiation of disciplinary proceedings should not be resorted, at the fag end of career of the service.
3.Referring to the powers of Auditor prescribed under Rule 5 of the Tamil Nadu Panchayats (Issue and Disposal of Audit Report of Village Panchayats) Rules, 2000, issued in exercise of powers conferred by clauses (xvi) and (xviii) of Sub-Section (2) of Section 242 of the Tamil Nadu Panchayats Act, 1994, Rule 6 which relates to the procedure, for conduct of audit, and Rule 8, as to how action on the Audit Report has to be taken, and taking this Court through the Audit Report of the Deputy Block Development Officer, for the years 2009-2010, in respect of the above said three Village Panchayats, Mr.M.Ajmal Khan, learned senior counsel appearing for the petitioner, submitted that in the above said Audit Reports, for the three villages, dated 07.05.2010, 28.07.2010 and 05.08.2010, respectively, no irregularities had been recorded by the Deputy Block Development Officer, Udumalaipettai Panchayat Union, and therefore, it is not open to the Commissioner, Rural Development and Panchayat Raj Department, Chennai, to initiate any disciplinary proceedings, after nearly three years and more particularly, when no action has been taken against the Panchayat President or any one who were alleged to have been involved in the financial irregularities. According to the learned senior counsel, the alleged irregularities have not been proved, in the manner known to law and that therefore, the petitioner, who was the concerned Block Development Officer in- charge of Udumalaipettai Panchayat Union, during 2009-2010, cannot be held responsible for the alleged financial irregularities causing loss to the Government. Learned senior counsel further submitted that, if at all there are any financial irregularities and adverse Audit Report proceedings, proceedings ought to have been taken against those who were responsible for the same.
4.Inviting the attention of this Court, that when the Audit Reports for the above said three Panchayats had already been submitted in the year 2010, and when no action has been taken within three months, from the date of report, learned senior counsel further submitted that the impugned charge memorandum issued on the basis of the said Special Audit Report, without any special orders from the Inspector of Panchayats, viz. the District Collector, is without jurisdiction and that therefore, is liable to be set aside.
5.Heard the learned senior counsel appearing for the petitioner and perused the materials available on record.
6.The Tamil Nadu Panchayats (Issue and Disposal of Audit Report of Village Panchayats) Rules, 2000, have been framed in exercise of powers conferred by clauses (xvi) and (xviii) of Sub-Section (2) of Section 242 of the Tamil Nadu Panchayats Act, 1994. As per Rules 2(ii), "auditor" means the Deputy Block Development Officer of the Panchayat Union, in which jurisdiction the Village Panchayat lies, appointed by the Government under sub-section (1) of Section 193 of the Act. The powers of the auditor, as set out in Rule 5 are as follows:
"5.Powers of the Auditor.- (1)The auditor may, by summons in writing,-
(i)require the production of any book, deed, contract account voucher, receipt or other documents, the perusal or examination thereof, which he considers necessary;
(ii)require any person having the custody or control of any such document or person accountable for it, to appear in person before him and require him to make and sign a declaration in respect of such document or to answer any question or to prepare and furnish any statement relating thereto.
(2)whoever fails to comply with any requisition lawfully made upon him under this rule, shall be punishable with fine which may extend to one hundred rupees, or in case of continuing breach, with fine not exceeding fifteen rupees for every day during which the breach continues after conviction of the first breach."
7.Rule 6 deals with the procedure for conduct of audit, which reads as under:
"6.Procedure for conduct of audit.-(1)The auditor shall scrutinise every item of expenditure and decide whether the executive authority has conducted the financial transactions of the village panchayat in accordance with rules and orders issued by the Government and other competent authorities, from time to time, and also with the approval of the village panchayat. As far as the receipts are concerned, the auditor shall verify, whether the executive authority has properly assessed all the eligible persons or properties under various taxes leviable by the village panchayat. He shall decide items of expenditure which are not admissible and items of loss of revenue, or leakage of revenue which are attributable to the negligence of the executive authority and clearly establish the persons responsible for the loss of income or irregular and inadmissible expenditure.
(2)The auditor shall specify the grounds or the basis of authority or the non-observance or violation of rules, instructions, norms or orders which has led to a material impropriety or irregularity in a transaction involving financial implications which he find in any financial transaction item of expenditure of or revenue receipt to the village panchayat. (3)The auditor shall report to the village panchayat any loss, waste or misapplication of money or other property owned by or vested in the village panchayat if such loss, waste or misapplication is a direct consequence of the neglect or misconduct of the executive authority or any other subordinates with names of persons directly or indirectly responsible for such loss, waste or misapplication.
(4)The audit report on the accounts of the village panchayat for a financial year shall be sent to the executive authority and a copy of the same sent to Assistant Director or Rural Development (Audit) within fifteen days of the completion of audit.
(5)The Assistant Director of Rural Development (Audit) shall check the audit report of not less than ten per cent of the total number of village panchayats in the district to verify the correctness of audit done by the Auditor.
(6)During the course of audit, when the auditor of the village panchayat notices, any defalcationor misappropriation of the fund of the village panchayat, he shall immediately bring the fact to the notice of the Inspector for taking necessary action under the Act including prosecution of the executive authority. Copy of such report shall also be sent to the Assistant Director of Rural Development (Panchayat) and Assistant Director (Audit). (7)The executive authority shall forthwith rectify the defects or irregularities, if any, which may be pointed out by the auditors and report the same to the village panchayat."
8.Action on the audit objections is set out, in Rule 8 of the said Rules. Material on record discloses that the Deputy Block Development Officer, Udumalaipettai, has conducted audit for the year 2009-2010 ie., for the period 01.04.2009 to 31.03.2010 in respect of income and expenditure of the three Village Panchayats, and submitted reports dated 07.05.2010, 28.07.2010 and 05.08.2010, respectively. Perusal of the Audit Reports, shows that certain adverse entries have been made in respect of the above said villages. As per Rule 8, (1)the executive authority shall take prompt and effective action to set right the objections raised in the audit report; he shall prepare suitable replies to the objections and place the report along with his replies before the village panchayat and Grama Sabha for approval; he shall submit three copies of the replies with a copy of resolution to the Assistant Director of Rural Development (Audit), through the auditor within two months of the date of receipt of the audit report; the auditor shall submit two copies of the replies of the executive authority after verifying the correctness of the replies, with his remarks to the Assistant Director of Rural Development (Audit) within thirty days from the date of receipt of the replies; (2)the Assistant Director of Rural Development (Audit) shall scrutinise the replies to the audit objections, keeping in view the remarks of the auditor, and pass suitable orders accepting or rejecting the replies to objections raised; he shall also send a copy of such orders to the auditor; (3)thereupon, it is the responsibility of the Assistant Director of Rural Development (Audit), to pursue further action on the pending audit objections, if any, and initiate surcharge proceedings against the executive authority and any other person responsible in respect of audit objections for which the executive authority has not submitted acceptable replies; initiating such proceeding shall not be delayed beyond three months from the issue of final order on the replies; (4)after the issue of an audit report on the accounts of a village panchayat, the audit of the accounts of that village panchayat shall not be re-opened, save with special letters of the Inspector.
9.Though the learned Senior Counsel, inter alia, contended that the audit report of the above said three village panchayats shall not be reopened except with the special permission of the Inspector of Panchayats, viz., the District Collector, and hence the very issuance of charge memorandum, is per se illegal, this Court is not inclined to accept the said contention, for the reason that though the audit reports have been prepared in 2009-2010, by the Deputy Block Development Officer, Udumalaipettai Panchayat Union, that would not curtail the powers of the Commissioner, Rural Development and Panchayat Raj Department, Chennai to order for a special audit in respect of the financial irregularities or income/expenditure statement of any Panchayat Union. The financial loss alleged to have been caused due to the failure of the then Block Development Officer, Udumalaipettai Panchayat Union, in respect of the above said three Panchayats, are as under:
Sl.No. Name of the Panchayat Amount (Rs.) 1. Bodipatti Panchayat 26,88,482.00 2. Devanur Pudhur Panchayat 8,94,895.10 3. Periyakottai Panchayat 15,73,422.00
The details of the financial irregularities alleged to have been noticed causing financial loss to the local body are clearly set out in the charge memorandum itself. A perusal of Annexure-III appended to the charge memorandum, makes it clear that the Assistant Director (Audit), Tiruppur District, Rural Development, has conducted a special audit, for the above three Panchayats for the period between 2006-2007 and 2010-2011 and found serious irregularities, warranting formulation of charges. That apart, several documents have been proposed to be marked in the oral enquiry, to be conducted against the petitioner. As regards the contention of the learned counsel for the petitioner that in the absence of any action against the executive authority of the Panchayat or others, the petitioner, Block Development Officer of Udumalaipettai Panchayat Union, cannot be held responsible for the financial loss, stated supra, this Court is not inclined to accept the same. Only in the case, when the Assistant Director of Rural Development (Audit) accepts the reports submitted by the Auditor, reopening shall not be permitted, except with special order of the Inspector of Panchayats. In the case on hand, special audit has been conducted by the Assistant Director of Rural Development (Audit), Tiruppur District. Though the learned counsel for the petitioner submitted that the audit reports in respect of the above three villages have been submitted on 07.05.2010, 28.07.2010 and 05.08.2010, respectively, no materials have been placed before this Court to prove that the said audit reports have been accepted by the Assistant Director of Rural Development (Audit). Even taking it for granted that the said authority had accepted the reports, still, this Court is of the view that the Commissioner, Rural Development and Panchayat Raj Department, being the Head of the Department and empowered to consider the same, cannot be found fault with, for initiating disciplinary proceedings on the basis of the special audit reports. The contention of the learned senior counsel that the petitioner had not committed any illegality, cannot be gone into at this juncture, by this Court.
10.The Apex Court has consistently held that a charge memo or a show cause notice cannot be quashed at the threshold, unless in a very rare and exceptional cases, where there is lack of jurisdiction. Useful reference can be made to few decisions on this aspect.
(i) In State of U.P. v. Brahm Datt Sharma reported in 1987 (2) SCC 179, at Paragraph 9, held as follows:
"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 to have interfered with the show cause notice."
(ii) In Union of India v. Upendra Singh reported in 1994 (3) SCC 357, the Central Administrative Tribunal examined the correctness of the charges against the respondent therein, on the basis of the material produced by him and quashed the same. The Union of India preferred an appeal. The Supreme Court, after considering the decisions in T.C.Basappa v. T.Nagappa reported in AIR 1954 SC 440, which was followed in Ujjam Bai v. State of U.P., reported in AIR 1962 SC 1621 and V.D.Trivedi v. Union of India reported in 1993 (2) SCC 55, at Paragraphs 4 and 6 of the judgment in Upendra Singh's case, held as follows:
"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 jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the respondent were to be filed in the High Court, it would have been termed, properly speaking, as a Writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view."
(iii) The Supreme Court in Special Director v. Mohd. Ghulam Ghouse reported in 2004 (3) SCC 440, at paragraph 5, held as follows:
"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."
(iv) In Union of India v. Kunisetty Satyanarayana reported in AIR 2007 SC 906, the respondent therein was issued with a charge memo for availing reservation against the post earmarked for ST, though he did not belong to the said category. Instead of submitting a reply to the charge memo, he preferred Original Application before the Central Administrative Tribunal, which disposed of the same with a direction to the respondents to submit the explanation to the charge memo and on such reply, the disciplinary authority was directed to consider the same. Instead of filing the reply, the respondent therein filed a Writ Petition, which was allowed. Testing the correctness of the order of the Andhra Pradesh High Court, the Supreme Court, at paragraphs 13, 14 and 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. Ramdesh Kumar Singh and Ors. [JT 1995 (8) SC 33], Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. [AIR 2004 SC 1467], Ulagappa and Ors. v. Divisional Commissioner, Mysore and Ors. [2001(10) SCC 639], State of U.P. v. Brahm Datt Sharma and Anr. [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.
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."
(emphasis supplied)
11.While exercising jurisdiction under Article 226 of the Constitution of India, this Court cannot go into the correctness of the allegations contained in the charge memo on merits and assume the role of a Disciplinary Authority, particularly when the Supreme Court has time and again held that "interference by the Courts to the show cause notice or charge memo at the threshold, would be premature and 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".
12.Going through the materials available on record, this Court is of the view that no jurisdictional error has been committed by the Commissioner, Rural Development and Panchayat Raj Department, Chennai, in framing charges against the petitioner. G.O.Ms.No.144, Personnel and Administrative Reforms (N) Department, dated 08.06.2007, is only a guideline to the Heads of Department, and disciplinary authorities. G.O.Ms.No.144, Personnel and Administrative Reforms (N) Department, dated 08.06.2007, does not confer a right, nor a corresponding non-discretionary duty, as laid down by any statute, to seek for quashing of any charge memorandum, by a Writ of certiorarified mandamus, on the ground that the charges have been framed on the verge of retirement, or to seek for a mandamus to compel the authorities to permit a Government servant, to retire on attaining the age of superannuation, notwithstanding serious financial irregularities alleged. A high prerogative Writ of Mandamus cannot be issued as a matter of right.
13.Now that, this Court on the basis of the decisions stated supra, has arrived at a conclusion that the charge memorandum per se does not involve any jurisdictional error, nor incompetence of the Commissioner, Rural Development and Panchayat Raj Department, Chennai, the question of issuing a writ of certiorarified mandamus does not arise. The petitioner is due to retire on 31.08.2013. It is open to him to submit his explanation to the charges, within two weeks from the date of receipt of a copy of this order. Thereafter, the Commissioner, Rural Development and Panchayat Raj Department, Chennai, shall consider the explanation and proceed further in accordance with law. In the event of appointing / disciplinary authority, not satisfied with the explanation of the petitioner, he shall appoint an enquiry officer and such officer shall complete the oral enquiry, after affording a reasonable opportunity to the petitioner as contemplated under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and submit his report to the appointing / disciplinary authority, within three months from the date of his appointment. Thereafter, the disciplinary / appointing authority shall take appropriate decision on the enquiry report and adverse finding if any, and after providing a reasonable opportunity to the petitioner, pass orders thereafter, within one month.
14.With these directions, the writ petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
KM To
1.The Chief Secretary to Government, Government of Tamil Nadu, Panchayat Raj Department, Secretariat, St.George Fort, Chennai-600 009.
2.The Commissioner, Rural Development and Panchayat Raj Department, Chennai-15.
3.The District Collector, Dindigul District, Dindigul.
4.The Assistant Director of Audit, Rural and Panchayat Raj Department, Tiruppur District.