By consent of the parties, the main writ petition itself is taken up for final disposal.
2. At the time of filing of the writ petition, the petitioner was working as Assistant in the Office of the Superintending Engineer (Agricultural Engineering) Coimbatore. He was due to retire on 30.6.2008. Charges were framed against him under Rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules on 15.6.2005. As disciplinary proceedings were pending, the Chief Engineer (Agricultural Engineering), Coimbatore, (incharge), Madras, by the proceedings dated 24.6.2008, placed the petitioner under suspension. By another proceedings issued on the same day, the petitioner was not permitted to retire from service, on attaining the age of superannuation i.e. on 30.6.2008. Aggrieved by the aforesaid orders, the petitioner has filed the present writ petition challenging the charge memorandum, on the grounds inter alia that he was not working at the place on 14.10.99 and 16.10.99 and therefore, he had not committed any misconduct warranting disciplinary action.
3. It is also the grievance of the petitioner that when proper explanation was submitted to the charges on 1.8.2005, the respondents have unnecessarily dragged on the disciplinary proceedings and therefore, the unexplained and inordinate delay vitiates the impugned orders. In this context, he also placed reliance on a Government Order, in G.O.Ms.No.144, Personnel and Administrative Reforms Department, dated 8.6.2007, wherein, the government have issued certain guidelines in respect of actions to be taken on pending disciplinary proceedings. He therefore contended that the respondents ought not have resorted to suspension on the verge of retirement and prayed to quash the impugned orders.
4. Per contra, the Additional Secretary to the Government, Agricultural Department, Chennai, in his counter affidavit has submitted that the Director of Vigilance and Anti Corruption on enquiry has identified the petitioner as one of the charged officers, involved in serious charges, along with five other employees and a charge memorandum under rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) rules was framed by the government on 15.6.2005.
5. The respondents have further submitted that there were several persons involved in the irregularities and enquired by the Director of Vigilance and Anti Corruption, Chennai and that the Tribunal for Disciplinary proceedings has also framed charges against the petitioner in D.No.2/05, dated 29.3.2005. The respondents have further submitted that the Agriculture Department has also instituted action against the petitioner and six others under rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules and that a charge memorandum was also issued on 15.6.2005 by the government. The respondents have further contended that an enquiry into the allegations against the petitioner was necessitated and these circumstances, he was placed under suspension. Hence, the competent authority namely the Chief Engineer (Agricultural Engineering) (i/c), Chennai has placed the petitioner under suspension and not allowed him to retire on attaining the age of superannuation. The respondents have further contended that there is no illegality in the impugned order warranting interference and hence prayed for dismissal of the writ petition.
6. Heard the learned counsel appearing for the parties and perused the materials available on record.
7. Pleadings disclose that Director of Vigilance and Anti Corruption, Madras has identified the petitioner as one of the accused officers and that the Commissioner for Disciplinary Proceedings at Coimbatore has framed the charges in D.E.No. 2/2005 in Reference No.43/2005/A2, dated 29.3.2005. The charge levelled against the petitioner as seen from the counter affidavit is as follows:
"That Thiru R.Viswanathan, (AO 4) and Tmt. K.Anbuselvi (AO 5) have been entrusted with the responsibility of checking and verifying the bills and the entries in the concerned M.Books failed to take notice and cognizance of the lapses and irregularities in the execution of the above work and submitted the bills for passing/sanctions and there by failed to discharge their legitimate duties".
8. The results of the Tribunal for disciplinary proceedings are awaited from the Commissioner for Disciplinary Proceedings, Coimbatore and it is stated to be pending. The charge framed against the petitioner by the Government on 15.6.2005 under rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules, reads as follows:
"While working as Scheme Assistant in the Office of the Assistant Executive Engineer (AE) Pollachi, the bill for subsidy for Drip Irrigation system in the lands of Thiru Malayappa Gounder was not checked and processed by you in the office of the Assistant Executive Engineer (AE) resulting in the passing of bill on 14.10.1999 before the issue of Water Analysis and power availability certificate by the Assistant Executive Engineer (AE) on 16.10.99. Thiru R.Viswanathan had not obtained acknowledgement for the receipt of cheques/drafts bythe contractors in the Cheque/Demand Draft payment register."
9. As per the allegations, the petitioner has processed the bills and passed orders for payment of money. It is further alleged that the petitioner has suomotu passed the bill on 14.10.1999, before the issue of Water Analysis and power availability certificate by the Executive Engineer (AE). The respondents have further submitted that the analysis report and the said certificate have been furnished by the Assistant Executive Engineer (AE) only on 16.10.1999. The statement of the petitioner has to be verified by the Inquiry Officer only during enquiry. As the charges initiated against the petitioner by the Commissioner of Tribunal for Disciplinary Proceedings, Coimbatore and the proceedings initiated by the government under Rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules are stated to be pending, it cannot be said that the disciplinary authority has exceeded in his jurisdiction in suspending the petitioner and retaining him from service, for the purpose of conducting the disciplinary proceedings.
10. In the case on hand, the petitioner is one of the charged officers by the Tribunal for disciplinary proceedings along with six other persons. It could reasonably be presumed that for collection of materials and evidence regarding involvement of each one of the officers, the department would have taken sufficient time. It is also well known that as per procedure the Commissioner for disciplinary proceedings does not take up the enquiry on his own unless there is a reference from the competent authority. In this case, it is alleged that the petitioner along with 6 other persons are also involved and therefore, the Director of Vigilance and Anti Corruption has investigated into the matter . As per the procedure, the matter is placed before the Government and thereafter, on reference the Commissioner for Disciplinary proceedings would initiate appropriate action under the TDP rules. In view of the procedure involved in the initiation of proceedings by the Tribunal and the process taken, I do not find that there is any inordinate delay in warranting interference by this Court.
11. In these circumstances, the Supreme Court has held that interference with the disciplinary proceedings at the threshold is not permissible . Before adverting to the facts of this case, it is useful to extract few judgment of the Supreme Court on the aspect of the power of the Courts to interfere with disciplinary proceedings at the threshold.
"26. 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, property 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."
27. In Union of India v. K.K.Dhawan reported in 1993 (2) SCC 56, it was contended by the delinquent therein that his conduct cannot be the subject matter of disciplinary proceedings, as it was not in the course of discharge of the duties as a servant of the Government. The Supreme Court, following the ratio decidenti in S.Govinda Menon v. Union of India reported in AIR 1967 SC 1274, repelled such contention and at Paragraph 28, held that disciplinary action can be taken in the following cases, though the instances are not exhaustive, "i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
iii) if he has acted in a manner which is unbecoming of the government servant;
iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
v) if he had acted in order to unduly favour a party;
vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great.
28. It is useful to extract the ratio decidenti in S.Govinda Menon v. Union of India reported in AIR 1967 SC 1274, and it reads as follows:
"In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government The test is whether the act or omission has some reasonable connection with nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service." In this context reference may be made to the following observations of Lopes, L.J. in Pearce v. Foster (1866) 17 QBD 536, p. 542.
If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.
(emphasis supplied)
29. 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 his name. In stead of filing the reply, the respondent therein filed a Writ Petition, which was allowed. Testing the correctness of the order of the Andra 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)
12. The power exercised by the disciplinary authority to place the petitioner under suspension and retaining him in service for the purpose of completing the disciplinary proceedings cannot be said to have been arbitrarily exercised and therefore I do not incline to grant the relief sought for in this writ petition. Hence the writ petition is dismissed. No costs. The respondents are directed to expedite the enquiry in respect of the proceedings pending before the Tribunal for disciplinary proceedings initiated under Rule 17 (b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules and pass orders, within a period of four months from the date of receipt of the copy of the order.
11.8.2009 Index : Yes/No Internet: Yes/No aes To
1. The Agricultural Protection Commissioner and Secretary to Government of Tamilnadu, Secretariat, Fort St.George, Chennai-600 009.
2.The Chief Engineer, (Agricultural Engineering), Nandanam, Chennai-600 035.
S.MANIKUMAR,J.
aes W.P.No.18354 of 2008 11.08.2009