The petitioner has challenged the impugned order dated 18.09.2009 passed by the respondent vide show cause notice No.1745.
2. Facts leading to the filing of this writ petition are enumerated below :
(i) The petitioner, namely, S.Kalaiyarasu was initially appointed as Village Administrative Officer on 08.07.1984; thereafter, he was transferred and posted as V.A.O. to Mogalvadi Village, Madurantakam Taluk and accordingly, he joined as V.A.O. on 01.06.1994. While so, he learnt that some fictitious claims for the Distress Relief Fund had been registered by his predecessor Mr.Duraikannu based on the death registration of the bread winner of some families. When this was brought to the notice of the authorities concerned, a criminal case was instituted by the Deputy Superintendent of Police, V & AC, Kancheepuram against (i) the petitioner as A-3, (ii) one Mr.E.Devarajan, Revenue Inspector as A-1, (iii) Mr.Duraikannu, V.A.O. as A-2 the petitioner's predecessor and (iv) Mr.Murugesan as A-4 being Public servants and A-5 to A-7 being beneficiaries in Crime No.2/AC/96/CH under Section 120-B r/w 468, 471 r/w 468, 409, 420 I.P.C. and Sec. 13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act (hereinafter referred to as the 'Act') r/w 109 I.P.C.
(ii) In the meantime, vide the proceedings of the Sub Collector, Chengalpet, dated 22.11.1995, the petitioner was placed under suspension alleging some grave charges are pending. However, no charges were pending on that day and hence, the petitioner approached the Tribunal in O.A.No.5118 of 2006, wherein the Tribunal allowed the Original Application on 05.03.1997 quashing the suspension order after extracting the statement in the counter that disciplinary action could not be preceded by framing charges against the petitioner.
(iii) The criminal case was taken on file in Special Case No.3 of 2000 on the file of the learned Special Judge and Chief Judicial Magistrate at Chengalpet. The petitioner would submit that even as per the F.I.R., the alleged incident took place even before the petitioner assuming charge as V.A.O. of the said Village; however, the learned Judge without verifying the same has convicted the petitioner and sentenced to undergo 2 years R.I. for each offence and a fine of Rs.5000/- each in default six months R.I. and sentence and ordered to be run concurrently vide the judgment dated 29.07.2009. Immediately, the petitioner preferred an appeal against the said conviction before this court in Criminal Appeal No.486 of 2009. This court, vide order dated 20.08.2009 was pleased to admit the appeal and the substantive sentence of imprisonment was also suspended.
(iv) The petitioner would state that taking advantage of the conviction by the Trial Judge, the respondent herein vide his proceedings dated 18.09.2009 placed him under suspension and by another order on the same day had prejudged the issue and proposed to impose the penalty of dismissal from service, and issued a show cause notice under Rule 17(c)(1)(i) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, (hereinafter referred to as the 'Rules') calling the petitioner to make representation on the penalty proposed.
3. In the counter affidavit filed by the respondent, it is stated that the Deputy Superintendent of Police, Vigilance and Anti Corruption, Kancheepuram laid a report against the petitioner and two others alleging that during 1995, the petitioner while working as Village Assistant in Mogalvadi Village, with the connivance of Thiru.Duraikannu, former Village Administrative Officer of the same Village registered three fictitious death cases in the village death register by giving ante dates. On receipt of inquiry report, the then Tahsildar sent a report to the District Collector, Kancheepuram seeking condonation of delay on the part of the three claimants, in claiming the relief amount. The District Collector, Kancheepuram condoned the delay of the said three claimants along with another claimant vide his letter No.7859 of 1994 XI dated 16.03.1995. The then Tahsildar Thiru.Deek Ramasamy processed the application and sanctioned the relief amount of Rs.5000/- each on 06.09.1995. However, the said cheques were handed over by Thiru.V.Narayanan, the successor of Thiru.Deek Ramasamy.
3a. It was later found that Tvl.Devajaran, Duraikannu, Kalaiarasu and Murugesan, who were working as Revenue Inspectors, Village Administrative Officer and Village Assistant, respectively, entered into criminal conspiracy with private individuals to claim Distress Relief Funds. In pursuance of the same, they made three women to impersonate and to represent that their fictitious husbands had died leaving them alone and thereby claimed Rs.5000/- from the Distress Relief Fund. The petitioner Kalaiarasu along with other Government Servants had committed criminal misconduct by corrupt and illegal means, obtained for themselves pecuniary advantage. Hence, charges under Section 120(B) read with 468, 419, 420 of I.P.C. and
Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 were framed against the petitioner and others, who were involved in the above case.
3b. The learned Special Judge and Chief Judicial Magistrate, Chengalpattu in Special Case No.3 of 2000 had held that the petitioner and others were guilty under Section 120(B) r/w 468, 471 r/w 468, 419 and 420 IPC and
Sections 13(2) r/w 13(1)(c)(d) of the Act and convicted and sentenced them to undergo Rigorous Imprisonment each for two years and they are also sentenced to pay a fine of Rs.5000/- each in default to undergo Rigorous Imprisonment for six months u/s 120B r/w 468 I.P.C. and they are also convicted and sentenced to undergo Rigorous Imprisonment each for six months and also sentenced to pay a fine of Rs.5000/- each in default to undergo Rigorous Imprisonment each for six months u/s 471 r/w 468 I.P.C. and they are also convicted and sentenced to undergo Rigorous Imprisonment for one year u/s 419 I.P.C. and they are also convicted and sentenced to undergo Rigorous Imprisonment each for two years and they are also sentenced to pay a fine of Rs.5000/- each in default to undergo Rigorous Imprisonment for six months u/s 420 I.P.C. and they are also convicted and sentenced to undergo Rigorous Imprisonment each for two years and they are also sentenced to pay a fine of Rs.5000/- each in default to undergo Rigorous Imprisonment for six months u/s 13(2) r/w 13(1)(c)(d) of the Act.
3c. Therefore, as a consequential action, the petitioner was suspended from service and issued with show cause notice and he also offered explanation to the same. The respondent would state that the conviction ordered by the Special Judge and CJM Court, Chengalpattu still subsists; therefore, the petitioner was rightly proceeded under Rule 17(c)(1)(1) of the Rules. According to the respondent, the impugned notice issued by him is maintainable in law.
4. Heard Mr.Venkatramani, learned Senior Counsel appearing for the petitioner and Mr.S.Sivashanmugam, learned Government Advocate for the respondent.
5. Learned Senior Counsel appearing for the petitioner would contend that the respondent vide his proceedings dated 18.09.2009 has placed the petitioner under suspension and by another order on the same day had prejudged the issue and proposed to impose the penalty of dismissal from service, which is highly illegal, arbitrary and violative of rules and principles of natural justice. According to the learned Senior Counsel, the impugned order is dated 18.09.2009 and by that time, the sentence was suspended by this court on 20.08.2009 and it has been mentioned in the show cause notice itself, which shows the total non-application of mind of the respondent.
5a. In support of his contentions, learned Senior Counsel for the petitioner has relied on the following :
(i) a Supreme Court decision reported in (1995) 3 SCC 377 (Deputy Director of Collegiate Education, Madras vs. S.Nagoor Meera) "3. On 27.10.1993 the Deputy Director of Collegiate Education issued a notice to the respondent calling upon him to show cause why he should not be dismissed from service in view of his contention by the criminal court. The show cause notice expressly recites that inasmuch as the High Court has only suspended the sentence, his conviction is still in force. The notice also recites the nature of the offence for which the respondent was convicted.
8. ... We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant, who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal."
(ii) a decision of this court reported in (2006) 1 MLJ 40 (M.Devendran vs. The Director, Tamil Nadu Fire and Rescue Services, Egmore, Tamil Nadu) "6. Thus, it is seen from the above said Rule 17(c)(i)(1) that where it is proposed to impose on a member of a service any such penalty as is referred to in Clause (i) of the sub rule on the basis of facts which have led to his conviction in a criminal court (where or not he has been sentenced at once by such court to any punishment); but he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation, if any, shall be taken into consideration before the order imposing the penalty is passed. Whereas in this case, the respondent in the impugned communication has pre-judged the things and has provisionally come to the conclusion to dismiss the petitioner from service which is contrary to the rule referred to above. Hence, the impugned communication is quashed. However, liberty is given to the respondent to issue a fresh notice in accordance with law."
(iii) yet another decision of this court reported in 2006 (3) CTC 655 (N.Gokulakrishnan vs. The Transport Commissioner, Chennai and another) "14. Taking into consideration the above decision, the facts and circumstances of the case and also the arguments of the learned counsel on both sides, the impugned proceedings dated 17.10.2005 passed by the first respondent is quashed. However, liberty is given to the first respondent to issue a fresh notice in accordance with law and to follow the procedure contemplated under "the Rules" within a period of eight weeks from the date of receipt of a copy of this order."
6. On the other hand, learned Government Advocate would submit that the contention of the petitioner that the issuance of show cause notice during the pendency of the criminal appeal pending before this court and that the respondent has to wait till the disposal of the criminal appeal is not at all correct, as this court, in its order dated 20.08.2009 in M.P.No.1 of 2009 in Criminal Appeal No.486 of 2009 has suspended the sentence alone of the Special Judge and Chief Judicial Magistrate, Chengalpattu in Special Case No.3 of 2000 dated 29.07.2009. As the conviction still subsists, the petitioner was issued with the show cause notice. He would also submit that the show cause notice issued to the petitioner is in accordance with the provisions as laid down in Rule 17(c)(i)(i) of the Rules and therefore, the show cause notice is legally valid and sustainable under law.
7. A circumspection of the facts would reveal that the petitioner was initially appointed as Village Administrative Officer on 08.07.1984 and thereafter, he was transferred and posted as V.A.O. to Mogalvadi Village, Madurantakam Taluk and accordingly, he joined as V.A.O. on 01.06.1994. While so, some allegations were raised against him with regard to the fictitious claims for the Distress Relief Fund; consequently, a criminal case was instituted by the Deputy Superintendent of Police, V & AC, Kancheepuram against the petitioner and he was convicted and sentenced to undergo 2 years R.I. for each offence and a fine of Rs.5000/- each in default six months R.I. and the sentence was ordered to be run concurrently vide judgment dated 29.07.2009. The petitioner preferred an appeal against the said judgment in Crl.A.No.486 of 2009 and the substantive sentence of imprisonment was also suspended. It is further seen that the respondent placed the petitioner under suspension by an order dated 18.09.2009 and by another order on the same day had prejudged the issue and proposed to impose the penalty of dismissal from service and issued a show cause notice under Rule 17(c)(1)(i) of the Rules, calling the petitioner to make representation on the penalty proposed. Accordingly, the petitioner submitted his explanation.
8. A crucial question arises for consideration in this case as to whether the show cause notice issued is legally infirmed. It is the cardinal principle that ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a Writ Petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction. In this case, it is seen that the respondent has proposed to impose the penalty of dismissal from service on the basis of facts which have led to his conviction in a criminal case. As per Rule 17(c)(i)(1), where it is proposed to impose on a member of a service, any such penalty as is referred to in Clause (1) of the sub rule on the basis of facts which have led to his conviction in a criminal court; but, he shall be given a reasonable opportunity of making any representation that he may desire to make and such representation if any, shall be taken into consideration before the order imposing the penalty is passed; whereas, in this case, the respondent in the impugned communication has pre-judged the things and has provisionally come to the conclusion to dismiss the petitioner from service.
9. Therefore, the question raised herein has to be considered in a different angle. When notice is issued with pre-meditation, a writ petition would be maintainable even in case, wherein a show cause notice has been challenged. In such event, if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose, since it is evident that in the instant case, the respondent has clearly made up his mind and it is explicitly said so both in the counter affidavit as well as in the show cause notice. Once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose.
10. In this case, when the statutory authority has already applied his mind and has formed an opinion as regards the liability or otherwise of the petitioner, the only question which remains for consideration is the quantification thereof, and the same does not remain in the realm of a show cause notice.
11. The above principle has been laid down by the Supreme Court in a decision reported in 2006 (12) SCC 33 in the case of Siemens Ltd. vs. State of Maharashtra and others. Relevant portions of the said judgment are extracted thus :
"10. Although ordinarily a Writ Court may not exercise its discretionary jurisdiction in entertaining a Writ Petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh vs. Brahm Datt Sharma and Anr., AIR 1987 SC 943, Special Director and Another vs. Mohd. Ghulam Ghouse and another, 2004 (3) SCC 440 and Union of India and another vs. Kunisetty Satyanarayana, 2006 (12) SCALE 262, but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a Writ Petition would be maintainable. In such an event, even if the Courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. See K.I.Shephard and others vs. Union of India and others, 1987 (4) SCC 431 : AIR 1988 SC 686. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause."
12. In view of the said legal position, it is crystal clear that if any show cause notice is issued with pre-meditation and pre-determination, with an opinion formed as regards the liability or otherwise of the petitioner, then it is the common experience that once a decision is taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose. Therefore, when the respondent has made up his mind to pass the order of dismissal against the petitioner, as it could be seen from the purported show cause notice dated 18.09.2009, the same cannot be sustained and it is liable to be quashed.
13. Accordingly, the show cause notice dated 18.09.2009 issued by the respondent is quashed. However, liberty is given to the respondent herein to issue a fresh notice to the petitioner in accordance with law by following the procedures contemplated under the rules, within a period of twelve (12) weeks from the date of receipt of a copy of this order.
The writ petition is allowed with the above direction. No costs. Consequently, connected M.P.No.1 of 2009 is closed.
abe To :
The Revenue Divisional Officer, Madurantakam Division, Madurantakam, Kancheepuram District