W.P.No.21770 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2022
CORAM
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
W.P.No.21770 of 2019
V.Jawahar ... Petitioner
Vs.
1.The Additional Chief Secretary to Government,
Revenue and Disaster Management Department,
Services Wing, Ser 2(2) Section,
Secretariat,
Chennai-9.
2.The Additional Chief Secretary/
Commissioner of Revenue Administration
and disaster Management,
Ezhilagam,
Chennai-5.
3.The District Collector,
Namakkal.
4.The Managing Director,
Tamil Nadu State Marketing Corporation Ltd
Thalamuthu Natarajan Building,
4th Floor, Egmore,
Chennai-8. ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of India for
writ of Certiorarified Mandamus calling for the records relating to the
1/13
https://www.mhc.tn.gov.in/judis
W.P.No.21770 of 2019
second respondent vide proceedings No.Ser.2(4)/20057/2019 dated
26.06.2019 and to quash the same and consequently, set aside the order of
the first respondent vide G.0.(2D) No.161 Revenue and Disaster
Management Department, Services Wing, Ser.2(2) Section, dated
28.06.2019 and consequently, direct the respondents to pay all the
petitioner's retirement benefits.
For Petitioner : Mr.Vijayakumar
For Respondents 1 to 3 : Mr.L.S.M.Hasan Fizal,
Additional Government Pleader
For Respondent 4 : No appearance
ORDER
This writ petition has been filed challenging the charge memo dated 26.06.2019 issued by the second respondent against the petitioner under Rule 17(b) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules.
2. The petitioner has challenged the impugned charge memo on the following grounds:
(a) The impugned charge memo is arbitrary and illegal. 2/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019
(b) The second respondent ought to have seen that the petitioner was earlier issued a charge memo on the same set of facts under Rule 17(a) and explanations were also submitted by him to the said charges and without passing any orders, the respondents have issued a fresh charge memo under Rule 17(b) which is arbitrary and illegal.
(c) The respondents ought to have seen that two charge memos under Rule 17(a) and 17(b) of Tamil Nadu Civil Service (Disciplinary and Appeal) Rules cannot stand in the eye of law in respect of same set of charges, as it would amount to double punishment under law.
(d) The petitioner was issued the impugned charge memo under Rule 17(b), just two days before the date of his retirement from the service which is arbitrary and illegal.
3. The petitioner joined as Junior Assistant in the Revenue Department in the year 1984 and was promoted to the post of Assistant in the year 1993 and thereafter, he was promoted as the Deputy Tahsildar in the year 2006 and became Tahsildar in the year 2009 and thereafter, he was promoted as the Deputy Collector on 13.12.2013. After serving in several places as Deputy Collector, the petitioner was posted as District Manager, 3/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019 TASMAC, Namakkal and joined duty on 04.01.2018 and reached superannuation on 30.06.2019.
4. The second respondent issued the impugned charge memo dated 26.06.2019 alleging that the petitioner failed to follow the instructions of the Managing Director, Tamil Nadu State Marketing Corporation Limited, dated 15.06.2017 and thereby, committed irregularities in discharging his official duties and violated Rule 20(1) of the TamilNadu Government Servant Conduct Rules, 1973. The charge memo was served two days prior to the date of the petitioner's superannuation i.e., on 28.06.2019.
5. Earlier, the petitioner was issued a charge memo under Rule 17(a) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules for the same set of facts on 26.07.2018. The petitioner also sent an explanation to the said charge memo dated 26.07.2018. However, the charge was altered to one under Rule 17(b) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules by the second respondent under the impugned charge memo. Therefore, the petitioner has challenged the impugned charge memo on the aforementioned grounds.
4/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019
6. A counter affidavit has been filed by the respondents denying the allegations of the petitioner. They would submit that only after receiving explanation from the petitioner with regard to the earlier charge memo dated 26.07.2018 issued under Rule 17(a) and considering the gravity of the irregularity, the second respondent has altered the charge to one under Rule 17(b). They would reiterate the reasons given for the issuance of the impugned charge memo. According to them, there is no irregularity committed by them in altering the charge to one under Rule 17(b) of the Rules.
7. Learned counsel for the petitioner drew the attention of this Court to a Division Bench Judgment of this Court in the case of A.Bommusamy Vs. The Government of Tamil Nadu and others reported in 2007 (3) CTC 518 and would submit in support of his contention, that without holding any enquiry for alteration of charge, the respondents cannot alter the charge from Rule 17(a) to one under Rule 17(b) which they have done in the instant case. He would also rely upon the judgment of the learned Single Judge of this Court dated 17.08.2021 passed in W. P.No.11183 of 2009 in the case of K.Anbu Selvi vs. The Chief Engineer and others which has followed the 5/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019 Division bench Judgment in A.Bommusamy's case referred to supra. Learned counsel for the petitioner would also rely upon the Order of the learned Single Judge of this Court in the case of S.Kannan vs. The state of Tamil Nadu and Others. reported in (2009) 8 MLJ 217 wherein the guidelines have been extracted with regard to the cases where charges can be framed under Rule 17(b). Relying upon the said decision, he would submit that there is no dishonest intention on the part of the petitioner, and therefore the question of altering the charge to one under Rule 17(b) will not arise. For the same proposition, he would also rely upon the judgement of the Division Bench of this Court dated 21.11.2016 passed in W.A.No.210 of 2015 in the case of The District Collector, Krishnagiri vs. S.Samraj.
8. Learned counsel for the petitioner would submit that even though Rule 17(a) charge was framed against the petitioner in the year 2018 itself, it was altered to one under Rule 17(b) only in the year 2019 i.e., on 26.06.2019 which is two days prior to the petitioner's retirement. He would submit that no reasons have been given by the respondents for the inordinate delay in framing charges under Rule 17(b). 6/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019 Discussion:
9. Admittedly, the second respondent framed charges against the petitioner earlier only under Rule 17(a) for the very same set of facts. However, the same has been altered to one under Rule 17(b) under the impugned charge memo dated 26.06.2019 which was issued two days prior to the petitioner's retirement. The charges framed against the petitioner are that despite the Hon'ble Supreme Court's order, the petitioner who was a District Manager, TASMAC opened the shop in violation of the said order. Earlier, for the very same charges, the second respondent had framed the charges under Rule 17(a).
10. The petitioner had also submitted an explanation to the earlier charges framed by the second respondent under Rule 17(a). However, for the reasons best known to the second respondent, the charges framed against the petitioner has been altered to one under Rule 17(b) which is the impugned charge memo. Further, the earlier charges under Rule 17(a) were framed on 26.07.2018 and a reply was sent to the same by the petitioner on 01.09.2018 itself. However, the impugned charge memo under Rule 17(b) was issued by the second respondent on 28.06.2019 just two days prior to the petitioner's retirement i.e., on 30.06.2019. 7/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019
11. In all cases where charges are framed under Rule 17(b), there must be a dishonest motive on the part of the delinquent. In the explanation submitted by the petitioner (delinquent) to the earlier charges framed against him, he has categorically stated that he was not aware of the Hon'ble Supreme Court's order and only for the said reason, he unknowingly opened the TASMAC shop. It is also informed by the learned Additional Government Pleader appearing for the respondents that there are no contempt proceedings initiated for violation of the Hon'ble Supreme Court's order by the Hon'ble Supreme Court. This Court will have to take judicial notice of this fact also.
12. The guidelines have also been framed by the Government with regard to the framing of charges under Rule 17(b) which were also extracted in the order of the learned Single Judge of this Court dated 07.09.2009 in the case of S.Kannan vs. State of Tamil Nadu and Others reported in (2009) 8 MLJ 217 relied upon by the learned counsel for the petitioner. The guidelines are as follows:
"Guidelines for deciding whether charges may be framed under Rule 17(b):
8/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019 (1) Cases in which there is reasonable ground to believe that a penal offence has been committed by a Government servant but the evidence forthcoming is not sufficient for prosecution in a Court of law, e.g.,
(a) possession of assets disproportionate to the known sources of income;
(b) obtaining or attempting to obtain illegal gratification;
(c) misappropriation of Government property, money or shares;
(d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate, etc., (2) Falsification of Government records.
(3) Irregularity or negligence in the discharge of official duties with a dishonest motive."
13. As seen from the aforementioned guidelines, there must be a dishonest motive on the part of the delinquent to enable the disciplinary authority to frame charges under Rule 17(b). In the case on hand, there is no reference to any dishonest motive on the part of the petitioner. Further the petitioner in his explanation has also categorically submitted that only due 9/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019 to the fact that he was not aware of the Hon'ble Supreme Court's Order, he had opened the shop. Further, even according to the respondents, for alleged violation of the Hon'ble Supreme Court's order, no contempt proceedings were initiated against them or their officials.
14. Even in the counter affidavit filed by the respondents today, no proper reasons have been given by them for altering the charges against the petitioner to one under Rule 17(b), though initially the petitioner was charged only under Rule 17(a) for the very same set of facts. Excepting for stating that only based on the petitioner's explanation to the earlier charge memo, they were constrained to alter the charges from one under Rule 17(a) to one under Rule 17 (b), no other reason has been stated for altering the charge. Nowhere in the respondents' counter have they been able to establish that there was a dishonest motive on the part of the petitioner in not implementing the Hon'ble Supreme Court's order which is the basis for the charge memos.
15. For the foregoing reasons, this Court is of the considered view that the impugned charge memo under Rule 17(6) has been issued arbitrarily and by total non application of mind to the fact that there was no dishonest 10/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019 motive on the part of the petitioner for opening the shop, despite the Hon'ble Supreme Court's Order. The second respondent has also not taken into consideration the undisputed fact that no contempt proceedings were initiated either against them or their officials for non-implementation of the Hon'ble Supreme Court order.
16. In the result, the impugned charge memo dated 26.06.2019 is hereby quashed and the writ petition is allowed. However, the respondents are at liberty to proceed against the petitioner as per charges framed against him under Rule 17(a) of the Rules. No costs.
19.09.2022
nl
Index : Yes/No
Speaking Order : Yes / No
To
1.The Additional Chief Secretary to Government, 11/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019 Revenue and Disaster Management Department, Services Wing, Ser 2(2) Section, Secretariat, Chennai-9.
2.The Additional Chief Secretary/ Commissioner of Revenue Administration and disaster Management, Ezhilagam, Chennai-5.
3.The District Collector, Namakkal.
4.The Managing Director, Tamil Nadu State Marketing Corporation Ltd Thalamuthu Natarajan Building, 4th Floor, Egmore, Chennai-8.
12/13 https://www.mhc.tn.gov.in/judis W.P.No.21770 of 2019 ABDUL QUDDHOSE. J., nl W.P.No.21770 of 2019 19.09.2022 13/13 https://www.mhc.tn.gov.in/judis