Heard Mr.A.Mohamed Ismail, learned counsel appearing for the petitioner and Mr.S.Gunasekaran, learned Additional Government Pleader appearing for the respondents 1 and 2.
2. The charge memo issued against the writ petitioner under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in proceedings dated 07.06.2011, issued by the second respondent, is under challenge in this writ petition. A further direction is also sought for to promote the petitioner to the post of Tahsildar, on par with his juniors from the date of promotion of his immediate juniors with all monetary and attendant benefits.
3. The learned counsel appearing for the writ petitioner made a submission that the writ petitioner joined as Junior Assistant on 01.03.1993 through Tamil Nadu Public Service Commission. Further, the writ petitioner has completed 22 years of unblemished service and earlier there was no disciplinary proceedings. Subsequently, the writ petitioner was promoted to the post of Deputy Tahsildar and thereafter, on account of certain allegations, a charge memo was issued in proceedings dated 07.06.2011, in relation to certain financial irregularities. However, the writ petitioner had submitted his explanation to the charge memo and an enquiry was conducted and the writ petitioner participated in the process of departmental domestic enquiry proceedings. The learned counsel for the petitioner states that the enquiry proceedings were completed and the report was also submitted by the Enquiry Officer. The writ petitioner had received the copy of the enquiry report and thereafter furnished his reply/objections on the enquiry report. The disciplinary proceeding stands at this point and the writ petition has been moved challenging the very charge memo issued on 07.06.2011.
4. The learned counsel for the petitioner submits that the enquiry report was submitted in the year 2012 itself and the further explanation was also submitted by the writ petitioner. Thus, there is a delay in passing the final orders in the disciplinary proceedings and on that ground also the charge memo is to be quashed. Secondly, the writ petitioner earlier filed a Writ Petition in W.P.No.30239 of 2013 seeking a direction to the respondents to consider and take appropriate decision on the report of the Enquiry Officer and consequently to direct the second respondent to promote the writ petitioner as Tahsildar. This Court passed a final order on 08.11.2013, which is extracted hereunder:
6. Under such circumstances, the first respondent is directed to take appropriate decision on the enquiry report on its own merits, in respect of which the petitioner submitted his reply to the second respondent and the same was also forwarded to the first respondent, within a period of twelve weeks from the date of receipt of a copy of this order.
5. Relying on the judgment of the Division Bench in the case of State of Tamil Nadu, represented by its Secretary to Government, Personnel and Administrative Reforms (Q) Department vs. T.Ranganathan, reported in (2010) 3 MLJ 625, the learned counsel for the petitioner states that the directions issued by this Court earlier in W.P.No.30239 of 2013 has not been complied with by the respondents. Non compliance of the earlier direction for completing the disciplinary proceedings by the respondent is also a ground to quash the entire disciplinary proceedings including the charge memo. On these two grounds, the writ petitioner pleads quashing of the charge memo.
6. The learned Additional Government Pleader appearing on behalf of the respondents submits that the charges are very much serious in nature, involving financial irregularities to the tune of about Rs.44,00,000/- (Rupees forty four lakh only). Further, a criminal case was registered by the District Crime Branch Police, Thiruvarur in Crime No.3 of 2011. The writ petitioner along with three others are arrayed as accused in the said criminal case. The petitioner is defending the criminal case, which is pending. Therefore, the question of non considering the case of the petitioner cannot be a ground for quashing the charge memo. This apart, when both the criminal case as well as the Disciplinary Proceedings are pending, the grounds of delay cannot be taken since the charges are grave in nature causing financial loss to the Government to the tune of about Rs.44,00,000/- (Rupees Forty Four Lakh Only) and further a criminal case was also registered against the writ petitioner and the same is also pending. Thus, the Additional Government Pleader submits that the charge memo need not be quashed at this stage both considering the factor that the allegations are grave in nature and the writ petitioner is an accused in the criminal case, which is pending before the Court concerned.
7. The relevant portion of the judgment of the Hon'ble Division Bench reported in (2010) 3 MLJ 625 relied upon by the learned counsel for the petitioner is extracted hereunder:
21. It is well settled in law that once a competent Court fixes an outer time limit to complete the enquiry and pass final orders, the parties to the proceedings are bound to strictly adhere to the time granted to comply with the said order. If on any reason the time fixed by the competent Court is unable to be adhered to and the proceedings are unable to be finalised, the party to the proceedings can approach the very same Court seeking extension of time stating sufficient reasons and once valid reasons are given, normally the Court/Tribunal would extend the time, depending upon the facts and circumstances of the case. Admittedly, the said procedure has not been followed in this case and the department has chosen to ignore the direction given by the Tribunal, which is binding on them.
22(8). As we have already observed hereinabove, after 15.6.1986, the respondent lost the legal right to proceed with the departmental enquiry against the petitioner by virtue of the specific order dated 24.3.1986 passed by this Court in Writ Petition No.598 of 1986 and therefore, the question of starting new enquiry by fresh charge-sheet dated 9.3.1988 on the same set of charges and for the same misconduct, does not arise.
8. On a reading of the paragraph itself, it is clear that the Hon'ble Division Bench has disapproved the actions of the authorities from starting new enquiry by issuing fresh charge sheet dated 09.03.1998 on the same set of charges and on the same misconduct alleged to have been committed by the delinquent. Thus, the facts in that case before the Hon'ble Division Bench stands on a different footing in which the second charge sheet was issued on the same set of charges arising out of the same alleged misconduct. This Court has no quarrel on the legal proposition that there is no question of conducting new enquiry based on the second set of charge memo. In fact, issuance of second set of charge memo on the same set of facts are impermissible in law. Further, those facts are not applicable to the facts of the present writ petition, in view of the fact that there is no second set of charge memo issued against the writ petitioner on the same set of allegations. Further, para 23 of the said judgment reads as follows:
23. We are conscious of the fact that if there is non-cooperation of the delinquent officer to comply with the time limit fixed by the Court/Tribunal to complete the enquiry and pass final orders in disciplinary proceedings, the Department cannot be blamed. In such contingency, it is for the Department to point out the non-cooperation on the part of the Delinquent Officer in finalising the proceeding and the hardships faced by the Department in not strictly adhering to the time schedule due to the fault of the Delinquent Officer or for any valid reason and get appropriate orders seeking extension of time. At this juncture, it is relevant to point out that even if the time granted originally to complete the enquiry is over, nothing prevented the Department from filing appropriate application after expiry of the time. It is now well settled in law that application seeking extension of time can be filed and the Court are having inherent powers to grant further time, even though the original time granted got expired, based on the principles of invoking inherent powers to meet the ends of justice. In this case, there is no whisper about the non-cooperation of the petitioner in conducting the enquiry and completing the enquiry within the time. Hence, the Department is bound to comply with the directions issued by the Tribunal in O.A.No.1535 of 2003.
9. The writ petitioner has earlier filed the writ petition for a direction to dispose of the disciplinary proceedings and to promote him to the post of Tahsildar and this Court has passed an order directing the first respondent to take appropriate decision on the enquiry report on its own merits, within a period of 12 weeks from the date of receipt of a copy of this order. In the earlier occasion, this Court had no occasion to take note of the pending criminal case. In fact, in the present writ petition, the second respondent has filed a counter stating that the criminal case registered against the writ petitioner by the District Crime Branch Police, Thiruvarur in Crime No.3 of 2011 is also pending.
10. The earlier writ petition was moved in order to get a direction for the early disposal of the disciplinary proceedings and for consequential promotion. Earlier without considering the fact that the criminal case is pending, a direction was issued to dispose of the disciplinary proceedings. The writ petitioner waited for about two years from the date of the order passed in W.P.No.30239 of 2013 and filed the present writ petition on 07.09.2015 with a prayer to quash the entire charge memo.
11. The writ petitioner is very much aware that the charge memo was issued to him on 07.06.2011 and the entire proceedings were completed in the year 2011 and report of the enquiry officer was also submitted and received by the writ petitioner in the year 2012 and he has submitted his further explanation on the enquiry report immediately. The earlier writ petition was filed in order to get final disposal of the disciplinary proceedings. Having obtained an order from this Court for earlier disposal of the disciplinary proceedings, the writ petitioner also had not moved any application for contempt or seeking implementation of the orders of this Court. Contrarily, he has waited for about two years and filed the present writ petition on 07.09.2015 with a prayer to quash the charge memo, in which the enquiry proceedings had been already concluded. Thus, this Court is of the view that the present writ petition is moved in a calculative manner to achieve the goal of quashing the entire disciplinary proceedings. The Court cannot encourage such an attitude of a public servant and cannot consider the quashing of the very disciplinary proceedings, which are grave in nature. The Court cannot encourage such an attitude of the public servant who has to serve the public in the interest of our great Nation. Every rupee paid to a public servant by way of salary is the tax payer's money. All the public servants receiving salary from the State are duly accountable to the public. If an allegation or irregularity is made against the public servants, they are bound to answer and prove their innocence only through the enquiry proceedings under the rules and they cannot get rid of the same by finding a way by filing this kind of writ petitions on more than one occasion in a calculated manner so as to escape from the clutches of disciplinary proceedings. A public servant is duty bound to serve the public, in view of the status enjoyed by him in the society. By virtue of the special status conferred on the public servant, he is certainly accountable and duty bound to serve in the interest of public in general.
12. This being the constitutional obligation of the public servants and the status being enjoyed by the public servants in the society, if a slightest doubt or allegations are raised against the public servants, they are duty bound to clear the same by participating in the process of enquiry and the investigations conducted in this regard, so as to prove their innocence. Contrarily, by moving writ petitions and getting general directions from this Court and not filing a contempt application and thereafter filing a writ petition to quash the entire charge memo, the writ petitioner cannot escape from the clutches of the disciplinary proceedings. This Court is able to visualize the manner in which these two writ petitions were filed only to escape from the clutches of the charges. The attitude of the writ petitioner should certainly be deprecated.
13. The Hon'ble Division Bench, considering the facts and circumstances of the case, directed that the non implementation of the orders of this Court is also a ground to quash the charge memo. However, those facts are not similar to the case on hand. Thus, the order of the Hon'ble Division Bench is of no avail to the writ petitioner. In this regard, this Court is of the firm opinion that the facts and circumstances of each case are to be read properly, in respect of the nature of allegations and the gravity of the same. The facts on hand relate to certain financial irregularities running to the tune of about Rs.44,00,000/- (Rupees Forty Four Lakh Only) and a criminal case is also registered against the writ petitioner by the District Crime Branch Police, Thiruvarur.
14. Yet another ground raised in this writ petition is a delay in concluding the disciplinary proceedings. No doubt, the entire proceedings are completed and there is a delay in passing the final orders. However, there is a possibility of reasonable presumption on the part of the respondents that the criminal case registered against the writ petitioner is pending and there is a possibility of confusion as to whether a final order can be passed during the pendency of the criminal case. These are all certain legal implications to be considered by the department before taking a final decision. Even, in the case of passing final orders in the Departmental Disciplinary Proceedings the case of the writ petitioner for promotion cannot be considered, in view of the pendency of the criminal case. Even assuming in a case where an employee is due to retire from service, then also the employees cannot be permitted to retire from service and they have to be placed under suspension and their services are to be retained under FR 56(1) (c) of the Fundamental Rules. Considering the various points of view, in this regard pendency of the criminal case will have an impact on the further promotions of the Government employees. No doubt, Courts are duty bound to conclude the cases as early as possible. However, the system prevailing in our great Nation sometimes takes more time in concluding the proceedings either at the instance of the parties or at the instance of the Government machinery including prosecution. However, such a delay in concluding the trial or proceedings cannot be taken undue advantage by the Delinquents, who are supposed to prove their innocence before the Court of Law or before the Disciplinary Authorities competent in this regard. In respect of simultaneous proceedings, there is no bar in law to proceed with the Departmental Disciplinary Proceedings even during the pendency of the criminal case. The respondents in this case had rightly processed the Departmental Disciplinary Proceedings and absolutely there is in no bar in concluding the same in accordance with law.
15. Considering a hypothetical situation where the Departmental Disciplinary Proceedings were completed and final orders are passed and thereafter, if any employee facing criminal case proceedings are convicted by the Criminal Court, then also, it is left open to the Competent Authorities to review the earlier orders passed in disciplinary proceedings under Rule 37 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The Government, in this regard, at any time may review the order passed in the disciplinary proceedings. Therefore, there need not be any confusion, in relation to the question whether the departmental proceedings can be concluded during the pendency of the criminal case. Certainly, this Court is of the firm opinion that there is no bar on the part of the Competent Authorities to conclude the disciplinary proceedings, even during the pendency of the criminal case. Even if thereafter, an employee was convicted in the criminal case, then the matter may be referred to the Government for reviewing the order under Rule 37 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The power of review has been enumerated under Rule 37. Rule 37 states that;
The State Government may, at any time, either on their own motion or otherwise, review any order passed by them under these rules, when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to their notice; thus absolutely there is no power in reviewing the earlier order passed in the disciplinary proceedings by the Government under Rule 37.
16. To remove the doubt in this regard, this Court is of the opinion that the respondents in this writ petition ought to have passed the orders in the disciplinary proceedings, pursuant to the directions issued by this Court in W.P.No.30239 of 2013. However, there is a delay in passing the final orders, probably on account of certain doubt in this regard in respect of the pendency of the criminal case. The learned Additional Government Pleader also made a submission that the records relating to this case were already submitted to the Public Prosecutor and the Department has to call for the records and pass final orders, in this regard. Thus, there is a delay in concluding the same. Such a delay cannot pave way for the Delinquent to escape from the clutches of the disciplinary proceedings under the relevant rules.
17. In respect of financial irregularities and monetary losses and corruption cases, the Hon'ble Supreme Court has time and again, held that the charges cannot be quashed, merely, on the ground of delay or on some technical grounds and all such cases should reach its logical conclusion and the Delinquent Officials are expected to prove their innocence only before the fullfledged enquiry proceedings and not otherwise.
18. This apart, this Court is of the opinion that a writ petition against a charge memo can be entertained only on exceptional circumstances and not in a routine manner. A charge memo can be challenged on the ground that the authority who issued the charge memo is not having jurisdiction or competency to issue the charge memo. In case, allegations of mala fides are raised against the authority, then such authority is to be impleaded as a party respondent in the writ petition in his personal capacity. If the charge memo was issued in contravention to the statutory rules, then also the writ can be issued.
19. In the absence of anyone of these legal grounds, the constitutional Courts will not interfere with the charge memo in writ proceedings. The charge memo initiated against a public servant should certainly reach its logical conclusion by a fullfledged enquiry and intermittent intervention should not be made by exercising the power of judicial review. The Courts are to be cautious and the charge memo cannot be quashed on the mere grounds of delay when the facts are clear that the criminal case is pending in the case on hand.
20. At the outset, the charge memo was issued in the year 2011 and the enquiry proceedings were completed in the year 2012. When the first writ petition was filed by the writ petitioner in W.P.No.30239 of 2013 for speedy disposal of the disciplinary proceedings and for promotion, this Court passed an order dated 08.11.2013 to complete the enquiry proceedings. However, the facts relating to the pendency of the criminal case was not brought to the notice of this Court at the time of passing the orders in W.P.No.30239 of 2013. Thereafter, the criminal case continues to be pending and the writ petitioner has not moved any contempt application seeking implementation of the orders passed in W.P.No.30239 of 2013. Contrarily, he has waited for about two years and filed the present writ petition on 07.09.2015 with a prayer to quash the charge memo and to promote him. Thus, this Court is of the view that the present writ petition has been moved in a calculated manner in order to escape from the clutches of the disciplinary proceedings.
21. The manner in which two writ petitions were filed by the writ petitioner created a doubt in the mind of the Court. Thus, this Court called for the case bundle relating to WP No.30239 of 2013 and the Registry of the High Court of Madras, in a short span of time, to say, within 10 minutes submitted the case bundle before this Court for consideration. The quick response from the English Records Section (Writ) Mr.P.Koteeswaran, Office Assistant, deserves appreciation and this Court place on record the appreciation.
22. The affidavit filed by this writ petitioner in WP No.30239 of 2013 is perused. On reading of the entire affidavit, it is clear that the writ petitioner had wantonly suppressed the fact with regard to the registration of the criminal case registered against him by the District Crime Branch Police, Thiruvarur in Crime No.3 of 2011. Thus, it is unambiguously found that the earlier order of this Court in WP No.30239 of 2013 was obtained by suppressing the important material fact in relation to the registration of a criminal case against the petitioner in Crime No.3 of 2011.
23. At this point of time, this Court permitted the learned Additional Government Pleader Mr.S.Gunasekaran, to go through the affidavit filed by the writ petitioner. The learned Additional Government Pleader also perused the original copy of the affidavit filed by the petitioner in WP No.30239 of 2013 and he also confirmed that the writ petitioner has not disclosed the fact and details regarding the pendency of the criminal case registered against the petitioner in Crime No.3 of 2011.
24. Thus, this Court is of the opinion that earlier directions in WP No.30239 of 2013 were obtained from this Court, by suppressing the fact regarding the pendency of the criminal case against the writ petitioner. Thus, the writ petitioner does not deserve any relief from this Court in this writ petition. The writ petitioner, being arrayed as an accused in the above criminal case, and also facing the departmental disciplinary proceedings for the alleged financial irregularities to the tune of Rs.44 lakhs, cannot be allowed to escape from the clutches of the departmental disciplinary proceedings.
25. Accordingly, the writ petition is devoid of merits and it stands dismissed. However, there shall be no order as to costs. Consequently connected miscellaneous petitions are also dismissed.
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1. The Commissioner for Revenue Administration, Chepauk, Ezhilagam, Chennai 600 005.
2. The District Collector, Thiruvarur District.
3. The Additional Govt. Pleader, Chennai.
S.M.SUBRAMANIAM, J.
msm/Svn W.P.No.28328 of 2015 06-09-2017