W.P.No.19407 of 2005 and Respondent in W.P.No.23497 of 2007
2.The Filaria Officer, National Filaria Control Unit, Chidambaram .. Respondent No.2 in W.P.No.19407 of 2005 W.P.No.19407 of 2005 is preferred under
Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the order of the first respondent in his R.No.55685/APV/S5/2004, dated 15.3.2005 and the consequential order of the first respondent in R.No.55685/APV/S5/2004, dated 16.5.2005 and to quash the same.
W.P.No.23497 of 2007 is preferred under
Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the order of the respondent in his R.No.034037/DA/2005/S1, dated 21.4.2007 and to quash the same.
For Petitioner : Mr.M.Baskar For Respondents : Mr.A.C.Mani Bharathi, GA
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COMMON ORDER The petitioner in both the writ petitions is one and the same person.
2.In the first writ petition i.e. W.P.No.19407 of 2005, the petitioner had challenged the order of the first respondent, the Director of Public Health and Preventive Medicine, Chepauk, dated 15.3.2005 as well as the consequential order, dated 16.5.2005 and prayed for setting aside the same.
3.By an order, dated 15.3.2005, the petitioner was imposed with a recovery of a sum of Rs.36,800/- through 20 installments. The said recovery was made on account of financial irregularities notice by the Audit Department of the Deputy Director of Health Services, Ramanthapuram. It was stated that the petitioner was working as a Superintendent in the office of the Deputy Director of Health Services. It was found that the then Deputy Director of Health Services one Dr.R.Radhakrishnan and the petitioner were responsible for the lapse. The liability was fixed on the basis of 75% and 25% between Dr.R.Radhakrishnan and the petitioner.
4.It is the case of the petitioner that consequent on the recovery order, the petitioner sent a representation, dated 20.4.2005 for reconsidering their stand and the same was rejected by the first respondent, by an order dated 16.5.2005. The writ petition was admitted on 20.6.2005. Pending writ petition, the petitioner had filed filed WPMP No.21013 of 2005. This Court granted an interim stay on condition that the petitioner will produce a third party immovable property as security within a period of one week, failing which the stay will be vacated.
5.The first respondent had filed a vacate stay petition in WVMP No.1732 of 2005, justifying the recovery. It was stated that even after four years after completion of Intensified Pulse Polio Immunisation Programme conducted during 2001, the petitioner was not able to collect all the vouchers and produce the same for Audit verification. The mismanagement of the Government money and the inordinate delay for submitting the vouchers even after four years cannot be accepted. The recovery proceeding were initiated after following due procedure. The petitioner had not stated whether he had furnished any third party immovable property in compliance with the interim order passed by this court.
6.In the meanwhile, the petitioner came forward with a second writ petition being W.P.No.23497 of 2007, seeking to challenge the order, dated 21.4.2007. The said order is a charge memo framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charge against the petitioner was that he had failed to furnish proper vouchers relating to Intensified Pulse Polio Immunisation Programme for the year 2000-01. Therefore, he has committed financial irregularities.
7.The contention of the petitioner was that framing of charge memo once again for the very same incident would amount to double jeopardy violating
Article 20(2) of the Constitution. He also relied upon the interim order of stay obtained by him in the earlier writ petition. Since that writ petition was pending, there cannot be a charge memo.
8.When the matter came up in July, 2007, this Court merely directed the writ petition to be posted along with the earlier writ petition. That writ petition was neither admitted nor any interim order was granted in M.P.No.1 of 2007. In the meanwhile, the respondent, the Director has filed a counter affidavit. It was stated that since the recovery proceedings have been stalled, the respondents have taken out steps to conduct a full-fledged enquiry in respect of the misconduct committed by the petitioner and there was no case for stalling the present charge memo.
9.Mr.M.Baskar, learned counsel appearing for the petitioner reiterated the grounds raised in the affidavits filed in support of the writ petitions. Insofar as the second writ petition is concerned, it is only a charge memo and there is no case made out to interfere with the charge memo. The charge memo under Rule 17(b) will give the petitioner ample opportunities to prove his innocence. Therefore, this Court is not inclined to stall the charge memo.
10.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.
11.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.
12.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.
13.Even on the question as to whether such an order of recovery towards loss and penalty through disciplinary proceedings would amount to a double jeopardy prohibited under
Article 20(3) of the Constitution was also considered by the Supreme Court in Depot Manager, A.P.S.R.T. Corporation Vs. N.Ramulu and another reported in 1997 (11) SCC 319. The Supreme Court upheld the imposition of such punishments, i.e. punishment arising out of disciplinary action as well as recovery of loss sustained by the State. The Supreme Court has held that apart from recovery of loss sustained by the State, penalty imposed under the relevant service rules can also be imposed against the Government servant. In paragraph 3 of the said judgment, it was held as follows:
3.We think that the entire approach of the Division Bench of the High Court is incorrect. The driver had caused pecuniary loss to the appellant and that was estimated to be Rs.500. It was this pecuniary loss which was ordered to be recovered from the delinquent. In addition to that, the delinquent was punished for misconduct and it is that punishment with which the Labour Court interfered and so also did the learned Judge of the High Court. The learned Single Judge came to the conclusion that 50 percent of back wages should be refunded to the delinquent besides reinstatement. Against that order both the delinquent and the management went up in appeal. The High Court modified the order of the learned Single Judge and directed payment of full back wages. In other words, the only order that survived was the reimbursement of the loss occasioned to the appellant on account of the act of the delinquent driver. It is true that that has been shown to be a penalty under Regulation 8(v) of the Regulations. But the penalty for the act of negligence was removal from service. The explanation to Regulation 8, however, enumerates various penalties which are not to be treated as penalties and one of them is as clause (5) thereof says : "The penalty of recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by an employee's negligence or breach of orders, may be imposed in addition to any other penalty which may be inflicted in respect of the same act of negligence or breach of orders." This clause clearly says that the penalty of recovering loss caused to the management under Regulation (1)(v) shall not preclude the management from imposing any other penalty. The High Court was, therefore, wrong in thinking that this was a case of double jeopardy. We think that the order passed by the learned Single Judge was eminently just and fair and the Division Bench of the High Court should not have interfered with that order."
(Emphasis added)
14.In the light of the above, both the writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions also stand dismissed.
vvk To
1.The Director of Public Health and Preventive Medicine, Chepauk, Chennai-600 006.
2.The Filaria Officer, National Filaria Control Unit, Chidambaram