Madras High Court
T.Arivarasu Pandian vs The Director Of Public Libraries on 3 June, 2019
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD)No.3571 of 2011
and
M.P.(MD)Nos.1 and 2 of 2011
T.Arivarasu Pandian ... Petitioner
-Vs-
1.The Director of Public Libraries,
Office of the Directorate of Public Libraries,
737/1 Anna Salai, Chennai-600 002.
2.G.Arivoli
3.The Enquiry Officer / Joint Director of Public Libraries,
Office of the Directorate of Public Libraries,
737/1 Anna Salai, Chennai-600 002. ...Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution
of India, praying for the issuance of a Writ of Certiorari, calling for
the records relating to the impugned charge memo of the 1st
respondent in Ref.Na.Ka.No.7955/A3/2010 dated 02.09.2010 and
quash the same as illegal.
For Petitioner : Mr.K.Appadurai
For R1 and R3 : Mr.S.Dhayalan,
Government Advocate.
For R2 : No Appearance
http://www.judis.nic.in
2
ORDER
The charge memo dated 02.09.2010 issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules is under challenge in the present Writ Petition.
2.The charges against the writ petitioner are extracted hereunder:-
“Fw;wr;rhl;L:1 Njdp khtl;l Ehyf Mizf;FOtpy; fz;fhzpg;ghsh; gzpaplj;jpy; gzpahw;wp jw;fhypf gzpePf;fj;jpy; cs;s jpU.jh.mwptuR ghz;bad; fz;fhzpg;ghsuhf gzpahw;wpaNghJ jdf;Fhpa muRg; gzpia nra;ahjJld;> mYtyfg; gzpf;F xj;Jiof;f kWj;J te;jik> jhd; “ve;jtpjkhd fUj;JUNth
(m) Fwpg;GiuNah vOj khl;Nld;”> vd nghJ Ehyf ,af;FeUf;F 12.04.2010y; fbjk; mDg;gpaJ> Ehyfg;
gzpahsh;fSf;F Cjpak;> rpy;yiw nrytpdk;> jpdf;$yp gzpahsh;fSf;fhd Cjpak;> epYitj; njhif ngw;W toq;fhky; ,Ue;jik> tpjpg;gb nray;glhky; muRf;F epjp ,og;G Vw;gl nra;J (Audit Objections) jzpf;if Fiwg;ghLfs; Vw;gLj;jp mYtyf nray;ghLfSf;F Fe;jfk; Vw;glr; nra;J muRg; gzpahsh;fs; elj;ij tpjpfSf;F Gwk;ghfr; nray;gl;L gzpKiw jtwp nray;gl;Ls;sh; vdf; Fw;wk; Rkj;jg;gLfpwJ. Fw;wr;rhl;L-2.
Ntiy epWj;jk; tpjpKiwfSf;F vjpuhdJ vd;w cr;rePjpkd;w jPh;g;G nray;ghl;by; ,Ue;Jk; gzpahsh;fis Ntiy epWj;jk; nra;a Jhz;LNfhyhf nray;gl;L> ,ju gzpahsh;fisAk; Ntiy epWj;jj;jpy; fye;J nfhs;s tw;GWj;jpaJ gzpKiw jtwpa nrayhFk; vdf; Fw;wk; Rkj;jg;gLfpwJ.
http://www.judis.nic.in 3 Fw;wr;rhl;L-3.
24.02.2010 md;W khz;GkpF jkpof Kjy;th;
mth;fshy; elj;jg; ngw;w gjpg;ghsh; eythhpak; Fwpj;j Ma;Tf; $l;lj;jpy; njhptpf;fg;gl;l fUj;Jf;fs; Kuz;ghlhd tptuq;fisj; njhptpj;J 22.2.2010 md;W khz;GkpF gs;spf; fy;tpj;Jiw mikr;rh; mspj;j Ngl;b Fwpj;J jtwhd fUj;Jf;fis njhptpj;J khz;GkpF gs;spf; fy;tpj; Jiw mikr;rUf;F jpU.jh.mwptuR ghz;bad; 5.3.2010y; fbjk; mDg;gpAs;s nray; muR gzpahsh; nray;Kiw jtwpa nrayhFk; vdf; Fw;wk; Rkj;jg;gLfpwJ. Fw;wr;rhl;L-4.
nghJ Ehyf ,af;ffj;jpd; Jiwj; jiytuhd nghJ Ehyf ,af;Feh; mth;fisg; gw;wp FKjk; hpg;Nghh;l;lh; thu ,jOf;F jtwhd nra;jpfis “jtwhd jfty;fs; jhWkhwhd KiwNfLfs;” vd;w jiyg;gpy; 16.5.2010y; Ngl;b mspj;J muR tpjpKiwfis kPwp gzpKiw jtwp nray;gl;Ls;shh; vdf; Fw;wk; Rkj;jg;gLfpwJ. Fw;wr;rhl;L-5.
27.4.2010 md;W Ehyf Ntiy ehspy; Ehyf gzpahsh;fis mioj;J mYtyfj;jpNyNa $l;lk; elj;jp muRf;F vjpuhf gzpahsh;fisr; nray;gl Jhz;b gzpKiw jtwp nray;gl;Ls;shh; vdf; Fw;wk; Rkj;jg;gLfpwJ. Fw;wr;rhl;L-6.
nghJ Ehyf ,af;ffj;jpd; cah; mYtyuhd nghJ Ehyf ,af;FeUf;F fbjk; vOJtjw;fhd mYtyf eilKiwapid kPwp Jiwj; jiythpd; nray;fis tpkh;rpj;J vr;rhpf;if tpLj;J> kpul;Lk; njhdpapy; 22.06.2010 md;W jpU.jh.mwptuR ghz;bad; vd;ghh; fbjk; vOjp gzpKiw jtwp nray;gl;Ls;shh; vdf; Fw;wk; Rkj;jg;gLfpwJ. Fw;wr;rhl;L-7.
khtl;l Ehyf mYtyh; (ngh) kw;Wk; ,ju gzpahsh;fis muRg; gzp nra;atplhky; jLj;J je;jjd; %yk; muRg; gzpf;F Fe;jfk; Vw;gLk; tifapy; nray;gl;Ls;shh; vdf; Fw;wk; Rkj;jg;gLfpwJ.” http://www.judis.nic.in 4
3.Annexure-2 to the charge memo provides statements of the allegations and Annexure-3 denotes list of documents relied upon for the purpose of establishing the allegations against the writ petitioner and Annexure-4 stipulates the list of witnesses to be examined to substantiate the charges. Undoubtedly, the allegations against the writ petitioner are serious in nature, warranting an enquiry under the Rules. However, the petitioner challenged the very charge memo on the ground that the first respondent is not an competent authority under the provisions of the Tamil Nadu Public Libraries Act, 1948. Therefore, the charge memo itself is liable to be quashed.
4.The learned counsel appearing on behalf of the writ petitioner forcibly contended that Tamil Nadu Civil Services (Discipline and Appeal) Rules cannot be applicable in respect of the writ petitioner and as per the provisions of the Tamil Nadu Libraries Act, 1948, the first respondent is an incompetent authority.
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5.The provisions of the Tamil Nadu Libraries Act, 1948, are enacted for the purpose of maintenance of public libraries across the State and the procedures to be followed, the powers and duties of the authorities competent are also provided. Various provisions of the said Act are applicable for the purpose of maintenance of the public libraries and in respect of the departmental disciplinary proceedings of the Government servants, the provisions of the act are not be applicable and they are governed by the provisions of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
6.Tamil Nadu Civil Services (Discipline and Appeal) Rules came into force on 1st January, 1955 and the Rules shall apply to every member of the civil services of the State and to every person holding civil post in the Government Department. Expressly, the writ petitioner was appointed as Typist cum Junior Assistant through Tamil Nadu Public Service Commission and appointed by the Director of Public Libraries. When the writ petitioner was appointed through Tamil Nadu Public Service Commission, the appointing authority is the Director of Public Libraries and was working as Government servant. Thus, departmental disciplinary http://www.judis.nic.in 6 proceedings ought to be initiated only under the provisions of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and certainly not under the Tamil Nadu Public Libraries Act, 1948, which may not have any applicability, as far as the initiation of departmental disciplinary proceedings are concerned.
7.The charges against the writ petitioner are serious in nature. Thus, an enquiry into the allegations ought to be conducted by the competent authority. The writ petitioner is bound to defend his case and establish his innocence or otherwise by filing documents or by adducing evidences. Contrarily, very charge memo cannot be quashed on the ground that the first respondent is an incompetent authority and the said contention is incorrect.
8.This Court is of the considered opinion that there is no infirmity in respect of the charge memorandum framed against the writ petitioner. The writ petition against the charge memo can be entertained on certain limited grounds and a judicial review against the charge memo is certainly limited. A charge memo can be challenged, if the same was issued by an incompetent authority having no jurisdiction, an allegation of mala fides is raised if the http://www.judis.nic.in 7 same is in violation of statutory rules. Even in case of raising the allegation of mala fides, the authority against whom such an allegation is raised, has to be impleaded as a party respondent in the writ proceedings in his personal capacity. In the absence of any such legal grounds, no charge memo can be entertained by way of writ petition.
9.The writ petitioner has raised ground of jurisdiction and the same has not been substantiated, in view of the fact that the writ petitioner is governed under the provisions of Tamil Nadu Civil Services (Discipline and Appeal) Rules and the applicability of the provisions of the Tamil Nadu Public Libraries Act, 1948, cannot be considered in the present case. As far as the allegation of mala fide intention is concerned, the said allegation has not been substantiated to the extent so as to consider the relief as such sought for in the present Writ Petition. In all such cases, where such serious allegations are raised, the delinquent official is bound to face the enquiry and prove his innocence or otherwise. The recent trend of the public servant is to file a writ petition, challenging the departmental disciplinary proceedings, at the initial state, so as to prolong and protract the proceedings in order http://www.judis.nic.in 8 to escape from the clutches of departmental disciplinary proceedings. Such an attitude of the public servant can never be appreciated. But to be deprecated.
10.Under these circumstances, this Court is of the considered opinion that wherever such serious allegations are made, the authorities must be allowed to continue the proceedings in all respects and conclude the same by following the proceedings contemplated, so as to reach its logical conclusion.
11.Intermittent intervention in the disciplinary proceedings is not preferable. However, only on exceptional circumstances, this Court can issue a direction against the proceedings and not in a routine manner. Mere issuance of a call letter to the writ petitioner, directing him to participate in the domestic enquiry will not give any cause of action to move this writ petition under Article 226 of the Constitution of India. Thus, the writ petition is absolutely misconceived and the grounds raised in this writ petition cannot be considered.
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12.The Honourable Supreme Court of India in Paragraph No.6 of the case of Union of India and others Vs. Upendra Singh, reported in (1994) 3 SCC 357 has held that:-
“..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.
http://www.judis.nic.in 10 317, 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."
13.In the case of Secretary, Ministry of Defence and Others Vs. Prabhash Chandra Mirdha [(2012) 11 SCC 565], the Hon'ble Apex Court of India has held as follows:-
“10.Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction / competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the http://www.judis.nic.in 11 punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the Court.
11.In State of Orissa V. Sangram Keshari Misra (SCC pp.315-16, para 10) this Court held that normally a charge-sheet is not quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that to determine correctness or truth of the charge is the function of the disciplinary authority.
12.Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues.
Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.” http://www.judis.nic.in 12
14.In the case of Union of India vs. Kunishetty Satyanarayana [(2006) 12 SCC 28], it was held that:-
“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, Special Director V. Mohd. Ghulam Ghouse, Ulagappa V. Divisional Commr., Mysore, State of U.P. V. Brahm Datt Sharma, 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.” http://www.judis.nic.in 13
15.Under these circumstances, the grounds raised by the writ petitioner are insufficient to quash the charge memo issued against the writ petitioner and the writ petitioner is bound to establish his innocence by participating in the departmental disciplinary proceedings by submitting documents and by adducing evidences.
16.Under these circumstances, the competent authorities are bound to proceed with the enquiry and conclude the same without causing any undue delay and pendency of the disciplinary proceedings would also cause prejudice to the employees, as the pendency of the disciplinary proceedings is bar for promotion and for settlement of terminal benefits. Thus, the competent authorities are directed to proceed with the disciplinary proceedings by affording an opportunity to the writ petitioner and conclude the same as expeditiously as possible and pass final orders without causing any undue delay.
17.In view of the legal principles settled by the Courts, this Court is not inclined to consider the relief as such sought for in http://www.judis.nic.in 14 S.M.SUBRAMANIAM,J.
Myr the present Writ Petition. Accordingly, this Writ Petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
03.06.2019
(½)
Index : Yes/No
Internet : Yes/No
Myr
To
1.The Director of Public Libraries,
Office of the Directorate of Public Libraries, 737/1 Anna Salai, Chennai-600 002.
2.The Enquiry Officer / Joint Director of Public Libraries, Office of the Directorate of Public Libraries, 737/1 Anna Salai, Chennai-600 002.
W.P(MD)No.3571 of 2011 http://www.judis.nic.in 15 http://www.judis.nic.in