Madras High Court
T.Kumaravel vs The Principal Secretary / on 15 December, 2021
WP(MD)No.13061 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.13061 of 2020
and
W.M.P.(MD)No.11003 of 2020 & 1946 of 2021
T.Kumaravel : Petitioner
Vs.
1.The Principal Secretary /
Commissioner of Revenue Administration
and Disaster Management,
Ezhilagam, Chepauk,
Chennai – 600 005.
2.The Director,
O/o. Rehabilitation and Welfare of Non Residents Tamils,
Ezhilagam, Chepauk,
Chennai – 600 005.
3.The Deputy Director,
O/o. Rehabilitation and Welfare of Non Residents Tamils,
Ezhilagam, Chepauk,
Chennai – 600 005.
4.The Special Deputy Collector (Rehabilitation),
O/o. Rehabilitation and Welfare of Non Residents Tamils,
Ezhilagam, Chepauk,
Chennai – 600 005. : Respondents
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India seeking issuance of Writ of
Certiorari calling for the records relating to the impugned
1/36
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charge memo passed by the first respondent vide proceedings
in Ser.2(2)/49732 dated 02.12.2019 and quash the same as
illegal.
For Petitioner : Mr.M.Sricharan Rangarajan
for M/s.V.Malaiyendran
For Respondents : Mr.G.V.Vairam Santhosh,
Additional Government Pleader
*****
ORDER
This writ petition is filed by the petitioner as
against the charge memo dated 02.12.2019.
2.The petitioner, who is now working as District Adi
Dravidar and Tribal Welfare Officer, has been slapped with
eight charges, as follows:
“CHARGE 1:
That, Thiru T.Kumaravel, District Adi Dravidar and Tribal Welfare
Officer, Kanyakumari, while working as Special Deputy Collector (Camp),
Mandapam, Ramanathapuram District has failed to attend the interface
meeting with the Government Officials held on 08.12.2017 inspite of the
instructions issued by the Director of Rehabilitation and Welfare of Non
Resident Tamils, Chennai. Thus, he has shown lethargic attitude towards
the day to day administrative affairs and caused serious embarrassment to
the administration.
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CHARGE 2:
That, Thiru T.Kumaravel, District Adi Dravidar and Tribal Welfare
Officer, Kanyakumari, while working as Special Deputy Collector (Camp),
Mandapam, Ramanathapuram District has violated the instructions issued
by the Director of Rehabilitation and Welfare of Non Resident Tamils,
Chennai and collected Electricity charges from the Srilankan Refugees
staying in the Mandapam Camp, at the time of issuance of relief amount
to the Refugees, and thus caused lot of hardships to the Srilankan
Refugees staying in the Mandapam Camp, and brought disrepute to the
organization.
CHARGE 3:
That, Thiru T.Kumaravel, District Adi Dravidar and Tribal Welfare
Officer, Kanyakumari District, while working as Special Deputy Collector
(Camp), Mandapam, Ramanathapuram District, illegally and without any
authority, has allowed one Tmt.Udhayakala, a Srilankan Refugee to
construct a shop near her residence, inside the camp without getting
proper permission from the Director of Rehabilitation and Welfare of Non
Resident Tamils, Chennai. Moreover, Thiru Kumaravel with a malafide
intention has permitted Tmt.Udhayakala, a Srilankan Refugee to use the
Government Properties inside the camp for constructing the shop. Thus by
allowing the construction of the said shop and by allowing the same to
function from 12.12.2016, he allowed encroachment in the Government
Land paving way for law and order issues.
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CHARGE 4:
That, Thiru T.Kumaravel, District Adi Dravidar and Tribal Welfare
Officer, Kanyakumari, while working as Special Deputy Collector (Camp),
Mandapam, Ramanathapuram District, has violated the orders of the
Hon'ble Madurai Bench of Madras High Court, in HCP(MD)No.815/2016
dated 19.07.2016, wherein, the Court has directed the Superintendent of
Police, “Q” Branch CID to keep surveillance over the detenu by providing
round the clock security to Thiru Thayapararaj, H/o.Tmt.Udayakala and
however, the delinquent officer did not allow the police person to keep
surveillance near Tmt.Udayakala's house, instead he instructed to stay at
a distance of about 200 meters away from Udhayakala's house. Thus, he
had violated the Hon'ble Madurai Bench of Madras High Court order and
caused disrepute to the District Administration.
CHARGE 5:
That, Thiru T.Kumaravel, District Adi Dravidar and Tribal Welfare
Officer, Kanyakumari, while working as Special Deputy Collector (Camp),
Mandapam, Ramanathapuram District, has violated the instructions issued
by the Director of Rehabilitation and Welfare of Non Resident Tamils,
Chennai that the registration of Srilankan Refugees who are not attending
the camp continuously for three months would be deleted and they are
not supposed to avail any other monetary benefit from the Government.
However, the delinquent officer violated the instruction and deleted the
name of members who have not attended the camp during the period from
20.07.2017 to 24.07.2017.
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CHARGE 6:
That, Thiru T.Kumaravel, District Adi Dravidar and Tribal Welfare
Officer, Kanyakumari, while working as Special Deputy Collector (Camp),
Mandapam, Ramanathapuram District, has violated the instructions of the
Director of Rehabilitation and Welfare of Non Resident Tamils, Chennai to
register Thiru Nithushan and his family vide C2/1641/2016, dated
23.02.2017 and to permit them in the Mandapam Camp. However no action
has been taken by the Delinquent Officer for a period of eight months and
the same was processed only on 01.11.2017. Thus, he had disobeyed the
orders of the Director of Rehabilitation and Welfare of Non Resident
Tamils, Chennai and caused disrepute to the Government.
CHARGE 7:
That, Thiru T.Kumaravel, District Adi Dravidar and Tribal Welfare
Officer, Kanyakumari, while working as Special Deputy Collector (Camp),
Mandapam, Ramanathapuram District, instructed to block the way to the
Sub Treasury, functioning in the Mandapam Camp and thereby prevented
them from performing their duty, and caused inconvenience to the
Treasury officials.
CHARGE 8:
That, Thiru T.Kumaravel, Revenue Divisional Officer, Villupuram,
while working as Special Deputy Collector (Camp), Mandapam,
Ramanathapuram District has committed irregularities in the discharge of
official duties, misused his official position in a manner prejudicial to the
interest of the Government and he has failed to maintain absolute
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integrity and devotion to duty and acted in a manner which is unbecoming
of a Government Servant and violated Rule 20(1) of the Tamil Nadu
Government Servant Conduct Rules, 1973.”
3.Mr.Sricharan Rangarajan, learned Counsel for the
petitioner submitted that this charge memo was issued as
against the petitioner in order to defeat his scope for
promotion. By relying upon the circular issued by the
Personnel and Administrative Reforms Department, in No.
14353/Per.N/93-1, dated 11.03.1993, learned Counsel
submitted that certain guidelines have been framed for
initiation of proceedings under Rule 17(a) & 17(b) of Tamil
Nadu Civil Services (Classification, Control & Appeal)
Rules, 1953. He further submitted that the disciplinary
authorities should frame charges under Rule 17(b) only when
they are of the firm view that the charges, if framed and
proved, would result in the imposition of any of the major
penalties, namely, dismissal from service, removal from
service, compulsory retirement or reduction to a lower rank
in the seniority list or to a lower post or time-scale. In
this case, the charges are vague in nature and even if it
is proved, it may not result in a punishment of major
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penalty. While so, the charges have been framed under Rule
17(b), in order to defeat the scope of the promotion of the
petitioner.
4.Learned Counsel has also referred about the manner in
which the preliminary enquiry was conducted by proceedings
in Na.Ka.No.C2/4938/2017, dated 20.11.2017 and submitted
that by this proceedings, one Mr.Thiyagarajan and
Mr.Thirugnanam were appointed to enquire into the
complaints received as against this petitioner in the year
2017. Learned Counsel demonstrated that this proceedings
dated 20.11.2017 has been prepared and signed by
Mr.Thirugnanam. In other words, Mr.Thirugnanam has
appointed himself as the Enquiry Officer, only to wreck
vengeance as against this petitioner since he has lodged a
complaint as against him.
5.With regard to the charges levelled, the learned
Counsel has made his submissions as follows:
5.1.CHARGE 1 :- the charge is that the petitioner
failed to attend the interface meeting held on 08.12.2017,
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in spite of the instruction issued by the second
respondent. The second respondent has requested the
petitioner to issue suitable instruction to the officials
in-charge of the Refugees Camp for the smooth organizing of
the interface meeting, vide letter dated 15.11.2017 and he
did not instruct the petitioner to attend the meeting, as
alleged in the charge memo. However, the petitioner was
present in the meeting, but, the fourth respondent, who is
very junior to the petitioner, ill-treated the petitioner
by occupying his seat and instigated the Refugees to give
complaint against him. The fourth respondent also received
mass signed blank papers from the Refugees. Hence, the
petitioner was not able to continue in the meeting and was
constrained to leave the meeting. In this regard, the
petitioner sent a report to the second respondent vide
letter dated 08.12.2017.
5.2.CHARGE 2:- the charge is that the petitioner has
collected electricity charge from the refugees, by
violating the instruction issued by the second respondent.
It was in practice for the past so many years by the
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predecessors of the petitioner to collect the electricity
charge from the refugees, based on Letter
No.ROC.B2/3113/1999, dated 10.02.2000, to restrict the
Refugees from abnormal consumption of electricity. The
collected amount was duly remitted into the proper head of
account. The second respondent has also directed the
petitioner on 23.11.2017 at his chamber to maintain the
status-quo with regard to collection of electricity charge
till taking further decision.
5.3.CHARGE 3:- the charge is that the petitioner has
permitted Tmt.Udhayakala to construct a shop near her
residence. The petitioner has not given any such permission
to the Refugees to construct a shop as alleged.
5.4.CHARGE 4:- the charge is that the petitioner has
violated the order of this Court made in HCP(MD)No.815 of
2016, dated 19.07.2016 and he had not allowed the “Q”
Branch Police to keep surveillance over Tmt.Udhayakala by
providing round the clock security to Thiru Thayabararaj,
H/o.Tmt.Udhayakala. In fact, no such order was passed by
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this Court on 19.07.2016, as alleged in the charge memo. It
was passed on 11.07.2016, as an interim arrangement.
5.5.CHARGE 5:- the charge is that the petitioner has
violated the instruction issued by the second respondent,
by deleting the name of Members who have not attended the
Camp during the period from 20.07.2017 to 24.07.2017. The
Hon'ble Prime Minister visited Ramanathapuram and the
District Collector, Ramanathapuram directed the petitioner
to ensure the whereabouts of inmates of the camp on
security reason for the period from 20.07.2017 to
24.07.2017. But, the Refugees did not attend the roll call
during the above said period. Hence, their names were
deleted from the register.
5.6.CHARGE 6:- the charge is that the petitioner has
violated the instruction of the second respondent to
register Thiru Nithun and his family and permit them in the
camp. The petitioner has not received any such
communication from the second respondent. The petitioner
has also sent a petition under the Right to Information Act
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seeking information regarding the date on which the letter
was despatched to him. The petitioner received a reply that
there is no material to show that the order was sent to him.
5.7.CHARGE 7:- the charge is that the petitioner
blocked the way to the Sub Treasury Office, functioning in
the Mandapam Camp. Already, there is a main gate to enter
into the camp and the entry into the camp is restricted.
But, the Sub Treasury Officials have constructed another
gate. Hence, the movement of Refugees and outsiders could
not be restricted. Due to security reason, the temporary
gate put up by the Sub Treasury Officials was closed.
Hence, the petitioner has not violated Rule 20(1) of the
Tamil Nadu Civil Service (Discipline and Appeal) Rules.
6.Though proper explanations have been given by the
petitioner, without considering them, the charges have been
framed, based on the report of Mr.Thirugnanam alone.
Learned Counsel has also relied upon the decision of this
Court in M.Sampoornam v. State of Tamil Nadu and Others,
reported in MANU/TN/0316/2013 and in B.Sowndhararaj v.
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Director of Elementary Education and Others [W.P.No.20073
of 2019, decided on 11.12.2019].
7.In response, learned Additional Government Pleader,
by referring to the counter affidavit filed by the second
respondent / Director of Rehabilitation and Welfare of Non
Resident Tamils, Chepauk, Chennai, has made his submissions
as follows:
7.1.CHARGE 1:- the petitioner himself has admitted that
the second respondent has requested him to issue suitable
instruction to the concerned officials in-charge of the
refugee camp. The petitioner was the Special Deputy
Collector, solely appointed to look after the welfare of
the refugees and he is the in-charge Camp Officer for
Mandapam Camp. It is his primary duty, not only to arrange
for meeting but also to co-ordinate the refugees with the
Line Departments to resolve the issues of refugees with
Line Departments and also to take follow up action on the
decisions taken in the meeting. The petitioner evaded from
his primary responsibility by boycotting the meeting
conducted in the refugee camp itself, in which his office
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is located and now justifying falsely that his junior
occupied his chair. It is the concocted story of the
petitioner that the fourth respondent, then Special Deputy
Collector, obtained mass signed blank papers from the
refugees as it was required to submit to the District
Collector to close a TASMAC shop. The then Special Deputy
Collector / the fourth respondent himself got the complaint
petitions against the petitioner and submitted the same to
the second respondent. The petitioner himself admitted in
his report dated 08.12.2017 addressed to the second
respondent that he had already faced enquiry of the
District Collector, Ramanathapuram, on the allegations
levelled against him by the “Q” Branch.
7.2.CHARGE 2:- the Government of Tamil Nadu is
supplying electricity on free of cost and there are no
specific instructions to collect electricity charges from
the inmates of the camp. However, when it was brought to
the notice of the second respondent on 23.11.2017 at his
chamber, he had instructed the petitioner not to collect
any amount towards electricity charges. In contra, the
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petitioner is lying that the second respondent instructed
him to maintain status-quo till taking further action.
7.3.CHARGE 3:- the petitioner himself admitted that he
had joined as Special Deputy Collector, Mandapam, on
14.08.2016. It is submitted that the petitioner had sent a
letter to the Inspector of Police, “Q” Branch CID,
Ramanathapuram, in Roc.No.A3/1017/2015, dated 15.12.2016,
offering the remarks on the petition dated 15.12.2016
presented by Tmt.Uthayakala. In the petition,
Tmt.Uthayakala had stated that she had started a small
business for her livelihood, ie., Tmt.Uthayakala started
her shop on 12.12.2016. The Superintendent of Police, “Q”
Branch, Chennai, in his letter dated 01.12.2016 had also
stated that the petitioner had allowed Tmt.Uthayakala to
construct a provisional shop. The Superintendent of Police,
“Q” Branch, Chennai, in his letter dated 15.12.2016 had
also stated that Tmt.Uthayakala had opened the shop on
12.12.2016. The Mandapam Refugees Camp is a fenced one and
under the control of the Special Deputy Collector, Mandapam
camp and he is responsible for everything in the camp and
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the camp refugees should get the permission of the Camp
Officer, ie., Special Deputy Collector even for moving
outside the camp. If it is so, it is the responsibility of
the petitioner not to allow Tmt.Uthayakala, who is not at
all a refugee, to construct a shop within the camp
premises. The petitioner is evading from his responsibility
by stating that he had not given any permission to the
refugees to construct a shop as alleged in the charge memo.
If he had not given any order, it is his responsibility to
vacate the same immediately. But the petitioner erred by
indirectly allowed her to construct, open and run the shop.
7.4.CHARGE 4:- A Division Bench of this Court, in
HCP(MD)No.815 of 2016, directed the Superintendent of
Police, “Q” Branch, Chennai, to keep surveillance over the
detenue, ie., Thiru Thayabararaj, H/o.Tmt.Uthayakala. The
petitioner had not refuted the charge, but has stated that
this Court has not passed any such order. While passing
orders in the habeas corpus petition on 19.07.2016, this
Court has extracted the earlier order passed on 11.07.2016,
as follows:
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“5.Subsequently, after quoting the earlier order dated 04 July,
2016, another order was passed on 11 July, 2016. The order reads thus:
“... ... ...
12. We direct the second respondent to keep surveillance over
the detenu by providing round the clock security.””
7.5.CHARGE 5:- As per G.O.Ms.No.613, Public (RHII)
Department, dated 16.07.2014, in para 3(vi), it was ordered
that “Refugees failing to answer the roll call both in 1st
week and 3rd week will not be given cash dole for that
month. Refugees failing to satisfactorily answer the
absence in both main and supplementary roll calls within 60
days of the main roll call will have their names deleted
from the camp roll list.” But, the petitioner had violated
the Government Order by deleting the names of refugees who
had not attended the roll call on 20.07.2017 without giving
any opportunity to them.
7.6.CHARGE 6:- The respondent had on 23.02.2017 ordered
for re-admission of Thiru Nithushan in Mandapam Refugee
Camp, but the petitioner had allowed him only on
01.11.2017, after eight months delay. The order was
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despatched from the Office of the second respondent in the
month of February, 2017 itself. The petitioner has to prove
on which date the communication was received by him.
7.7.CHARGE 7:- The Sub Treasury is functioning within
the refugee camp premises and the officials of Sub Treasury
used to enter the office without any hindrance. But, due to
the difference of opinion between the petitioner and the
Sub Treasury staff, the petitioner had ordered in his
proceedings in Roc.A1/0054/2017, dated 03.10.2017, that the
staff of Sub Treasury, including the Sub Treasury Officer,
have to put their signature in the register being
maintained by Sentry, whenever they enter or exit at main
gate citing that Sub Treasury officials are indulging in
corrupt activities; audited the salary bill of the staff;
and that Assistant Treasury Officer and staff are
frequently absenting from duty and that they are habitually
late beyond office hours. As an afterthought, the
petitioner has now stated that the Sub Treasury Officer had
constructed another gate and due to security reason, the
temporary gate was closed. The Commissioner of Treasuries
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and Accounts, in his letter dated 10.11.2017 addressed to
the second respondent, has stated that the petitioner had
compelled the Sub Treasury officials to sign in the Sentry
register; that they entered their office without signing;
that they were not allowed to come out of the camp as the
gate was locked; that the gate was opened by 7 pm after his
intervention; the petitioner was acting against the rules
disturbing the Sub Treasury staff and requested the second
respondent to take necessary action for the smooth
functioning of Sub Treasury by cancelling the order passed
by the petitioner. The second respondent, thereafter, by
letter dated 17.11.2017, instructed the petitioner to
cancel the erroneous order passed by the petitioner
restraining the Sub Treasury staff. The above facts would
prove the indiscipline attitude of the petitioner, who
disturbed the government officials, ie., Sub Treasury
staff, to perform their duties.
8.Learned Additional Government Pleader further
submitted that the charges have been framed in accordance
with the guidelines issued by the Personnel and
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Administrative Reforms Department and there is no violation
in the issuance of the charge memo. That apart, as per the
settled position of law, at the stage of charge memo, this
Court cannot interfere. Therefore, learned Additional
Government Pleader prayed for dismissal of the writ
petition.
9.This Court paid it's anxious consideration to the
rival submissions and also perused the documents placed on
record.
10.The petitioner has been slapped with eight charges,
which were extracted supra. The charges have been framed as
against the petitioner under Rule 17(b) of Tamil Nadu Civil
Services (Discipline & Appeal) Rules. Before framing the
charges, a preliminary enquiry was conducted by the second
respondent, by appointing two Officers, namely,
Mr.Thiyagarajan and Mr.Thirugnanam, as Enquiry Officers, by
proceedings dated 20.11.2017. As pointed out by the
petitioner's Counsel, this proceedings dated 20.11.2017 of
the second respondent / Director, has been signed by
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Mr.Thirugnanam, who has been appointed as one of the
Enquiry Officers to enquire into the complaints received as
against this petitioner. It also appears that though two
Enquiry Officers have been nominated, the enquiry report
was signed and submitted by Mr.Thirugnanam alone, on
11.12.2017. The signatures found in the enquiry report
dated 11.12.2017 and the proceedings of the second
respondent dated 20.11.2017 appointing Enquiry Officers to
enquire into the complaints received as against the
petitioner are one and the same. It is also seen from the
records that as against Mr.Thirugnanam, who submitted the
enquiry report dated 11.12.2017, the petitioner has already
lodged a complaint on 08.12.2017, that the said
Thirugnanam, then Special Deputy Collector, has issued
certain oral instructions and directed to comply with the
same, without any proceedings. The complaint dated
08.12.2017 of the petitioner addressed to the second
respondent is usefully extracted as under:
“Thiru Thirugnanam, Special Deputy Collector (R) from the
Commissionerate for Rehabilitation and Welfare of Non-Resident Tamils,
Chennai – 600 005 was here on his two days' Official visit. On 2 nd day i.e.
(08.12.2017) while addressing among the gathered people (in-mates and
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officials) he promulgated the following Oral Orders without having any
basic ideas and jurisdiction:-
Order No.1:-
The in-mates of this camp is allowed to rear the goats because
it is livelihood of the refugees.
(Decision to prohibit totally to rear the goats was taken during the
meeting of the Building Committee held on 18.04.1976 chaired by the
District Collector of Ramanathapuram District with a view to
preserve the every green trees left out in the campus)
Order No.2:-
The refugees those who lost their registration due to
prolonged absence and are residing out of this camp can shift their
residence to this camp prior to re-registration.
When I was here, without my consent he has permitted one
Thiru Rajagopal who is residing in Rameswaran for the past so many
years and the related file is pending for “Q” Branch Clearance.
(It is inevitable to interrogate the inmates on their prolonged
absence to ensure their involvement in criminal activities because of
the threat to the National Security and hence the order of the re-
registration of the Commissionerate is essential after getting the
clearance from the “Q” Branch.)
Order No.3:-
The Heavy Motor Vehicles eventhough in the name of out-
siders are also allowed to park their vehicle in front of their
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hutments in the camp.
((1) In security to the vehicle (2) May be theft a vehicle (3)
May be involved in criminal activities. Taking into consideration of all
the above facts, it is prohibited to park the HMV into the camp. Two
wheelers are allowed for domestic purposes)
Order No.4:-
The inmates are allowed to consume the electricity without
any limit and there is no need to pay any charges.
(Collections are made only to the abnormal consumption as per
the provision laid down in Commissioner's D.O.letter
No.Roc.B2/3113/1999 dated 10.02.2000 just to restrict some inmates.
It is in practice for the past so many years. I am only a follower. No
objection was raised from the right people and the problem is
created by the in-mates those are hand-in-glove with “Q” Branch just
to target the Mandapam Camp SDC. Moreover, this issue is still
pending with the Director of the Commissionerate to arrive a
decision).
Order No.5:-
The inmates are allowed to move round the clock (out of
campus) without any restrictions.
(It is absolutely beyond his limit because their movements are
restricted between 6.00 am and 6.00 pm., because of the security of
the nation. However, they are allowed to ... into this camp upto
10.00 pm., not only to restrict them but also to avoid the invasion of
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the intruders who are in practice to indulge in anti-social activities.
On necessity, some inmates are allowed after getting prior
permission from the SDC on the ground of livelihood).
I submit, when I was assuming charges as Special Deputy
Collector (Rehabilitation) of this camp, it was found that the
violations were only the rules (tpjp kPwy;fBs tpjpfshf nUe;jd).
After experiencing much difficulties, great efforts and earned group
of dissidents among all levels (Inmates, “Q” Branch, Officials and
Outsiders) I brought to this camp to this level to hold on the horns in
my hand. But it is collapsed all-of-sudden within minutes because of
the irrelevant attitude of Thiru Thirugnanam, Special Deputy
Collector (Rehabilitation) of Commissionerate.
It is further submitted that he has induced to OFERR people to
get mass signature in blank paper saying that it is required to submit
representation to the District Collector, Ramanathapuram for
removing the TASMAC retail outlet. It is planned to use the signed
paper for preparing minutes against me. But I am having the list of
persons present and photographs.
The visit of the SDC is not in good-faith behind some reasons
not known to me. Knowing the fact that I am prevailing from
Tirunelveli District, he observed that it is too hard to work with
them. Today he has ill-treated me by occupying my seat and hence I
was unable to attend the office. I therefore humbly request that
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appropriate action may kindly be taken against him and thus render
justice.
It is submitted that I had already faced the enquiry of the
District Collector, Ramanathapuram on the allegations levelled
against me by the “Q” Branch and the related papers are sent
herewith for favour of information and ready reference.”
11.According to the petitioner, for having lodged this
complaint dated 08.12.2017 as against Mr.Thirugnanam, in
order to wreck vengeance, Mr.Thirugnanam has sent the
enquiry report dated 11.12.2017, based on which, the
impugned charge memo came to be issued. His further
grievance is that though all these explanations were
offered to the respondents, without considering any of
them, the impugned charge memo was issued, solely based on
the enquiry report of Mr.Thirugnanam dated 11.12.2017.
12.In the decision in B.Sowndhararaj's case (supra),
this Court, by relying upon the ratio of M.Sampoornam's
case (supra), has held as follows:
“8. This Court, in the case of M.Sampoornam, referred to supra, has
held as follows :
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''7. Learned counsel for the petitioner submitted that based on
the allegations, charges could be framed against the petitioner only
under rule 17 (a) and not under rule 17 (b) of the Tamil Nadu Civil
Services (Discipline & Appeals) Rules. In support of the contention
raised, the learned counsel appearing for the petitioner also relied
the various decisions: A Division Bench of this Court (P.K.Misra, J and
F.M. Ibrahim Kalifulla, J) in W.P.No.6809 of 2004 dated 17.06.2004,
preferred by the State against the order passed in Original
Application No.3913 of 2003 dated 04.02.2004 by the Tamil Nadu
Administrative Tribunal, has held that the modification of charge
under Rule 17(a) instead of Rule 17(b) of the Tamil Nadu Civil
Services (Discipline & Appeal) Rules was not against law and
accordingly declined to interfere with the order. It was held that
there is no error in the order passed by the Tamil Nadu State
Administrative Tribunal, modifying the charge under Rule 17(b)
instead of Rule 17(a) under the Tamil Nadu Civil Services (Discipline
& Appeal) Rules and accordingly, the writ petition was dismissed. It
has been made clear in the decision that charge Nos.1 and 2 framed
against the first respondent therein relating to failure for taking
effective steps towards collection of taxes due from the dealers by
Subordinate Officials and it was failure in executing administrative
instructions given by the superior officers therein. The Tamil Nadu
State Administrative Tribunal held that the Assistant Commissioner
(CT), violating Rule 20(1) of the Tamil Nadu Government Servants
Conduct Rules, 1973 would be under rule 17(a) and not rule 17(b) to
frame the charge for the alleged failure for the non-compliance of
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the administrative instructions given by the superior officer. A
Division Bench of this Court (Elipe Dharma Rao, J and K.Suguna, J)
passed an order dated 05.09.2006 in W.P.No.3558 of 2004, wherein it
has been held that as per the guidelines given by the Government,
the charges framed against the petitioner would not come under rule
17(b) but only under rule 17(a) of the said Rules. The Government of
Tamil Nadu has given specific guidelines with regard to framing of
charges under rule 17(a) and rule 17(b) of the said Rules. In this
regard, the guidelines given are as follows:
"(1) Cases in which there is reasonable ground to believe
that a penal offences 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 asset 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 of negligence in the discharge of official
duties with a dishonest motive".
8. It is not in dispute that the charges under rule 17(a) relate
to minor delinquencies whereas the charges under rule 17(b) relate
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to any major delinquency warranting major punishment in case the
same is proved. In Writ Appeal No.1893 of 2011 dated 29.09.2011, a
Division Bench of this Court (M.Y.Eqbal, the Chief Justice and
T.S.Sivagnanam, J) has held as follows:
"2. We have considered the reasoning given by the
learned Single Judge and other materials available on record
including the charge memo and the consequential proceedings,
from where it appears that there are no grave charges levelled
against the respondent/writ petitioner except for some lapses
in the discharge of his supervisory duty. Moreover the allegation
pertains to the period 2004-2006, whereas, the charge memo
was served only in the year 2011, i.e. on the verge of his
retirement.
3. In that view of the matter, the impugned judgment
passed by the learned Single Judge needs no interference by
this Court..."
9. In S.KANNAN VS. STATE OF TAMIL NADU, (2009) 8 MLJ 217,
this Court (V.Dhanapalan, J) held that unless there is dishonest
motive, misconduct or misappropriation of funds of the Government
or wilful and dishonest act, there cannot be any departmental
proceeding initiated under rule 17(b) of Tamil Nadu Civil Services
(Discipline & Appeal) Rules, as per the guidelines issued by the
Government. It is an admitted fact that the Government of Tamil
Nadu has issued guidelines with regard to framing of charges under
rule 17(a) and rule 17(b) of the said Rules. The unreported decision
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in W.P.No.13581 of 2007 dated 24.08.2011, this Court (K.N.Basha, J),
based on the guidelines given by the Government has highlighted the
same in respect of charges being framed under rule 17 (a) and rule 17
(b) of the said Rules. Referring to the guidelines in S.KANNAN VS.
STATE OF TAMIL NADU, represented by its Secretary to the
Government, calling upon the impugned proceedings therein, this
Court (V.Dhanapalan, J) directed the first respondent therein to
alter the charge levelled against the petitioner only under rule 17(a)
and not proceed under rule 17 (b) of Tamil Nadu Civil Services
(Discipline & Appeal) Rules and to proceed in accordance with law.
10. In the instant case, it has been made clear in the light of
various decisions rendered by this Court that the guidelines given by
the Government have to be followed scrupulously for framing
charges against employee of the Government. As per the guidelines,
charges can be framed under rule 17 (b) of Tamil Nadu Civil Services
(Discipline & Appeal) Rules, under the following circumstances:
1) Cases in which there is a reasonable ground to believe
that a penal offence has been committed by the 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
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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. [emphasis supplied]
[4] Misuse of official position for personal gain.
[5] Disclosure of secret or confidential information even
though it doe snot fall strictly within the scope of the Official
Secrets Act.
[6] Misappropriation of Government funds, false claims of
Travelling Allowance, reimbursement of false medical bills,
etc., Charges could be made framed under rule 17(b) of TNCS (D
& A) Rules.
... ... ...
12. In the light of catena of decisions referred to above,
having gone through the facts and circumstances and material papers
available on record, I am of the view that the respondents could have
framed the charges against the petitioner only under rule 17(a) and
not under rule 17(b) of the Tamil Nadu Civil Services (Discipline &
Appeal) Rules, it being a minor delinquency, as per the guidelines
issued by the Government and the proceeding would not be a bar in
promoting the petitioner, subject to the result of the departmental
proceeding. It is also brought to the notice of this Court that the
petitioner is on the verge of retirement and if she is not promoted
that will adversely affect her legitimate right, since the
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departmental proceeding was initiated after a lapse of 2+ years after
the occurrence and pending for more than three years.''
9. It is also relevant to refer to the Division Bench decision of this
Court in Government of Tamil Nadu v. P.Sundar, referred to above,
wherein it has been held as under :
''10. We have considered the rival submissions. The guidelines
framed by the government of Tamil Nadu for deciding whether
charges may be framed under Rule 17 (b) are as follows :
1. Cases in which there is a reasonable ground to believe
that the 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 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
on pecuniary advantage without consideration or for a
consideration which is not adequate, etc.,
(2) falsification of government records.
(3) irregularity or negligence in discharge of official
duties with dishonest motive.
It is the above guidelines which are considered by the Division
Bench in WP No:3558 of 2004. Considering the guidelines issued by
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the Government with reference to framing of charges against its
employees, the Division Bench has observed as follows :
Therefore, as per the above guidelines also, as stated
earlier, the charges framed against the petitioner will not come
under Rule 17 (b), but only under Rule 17 (a) however since the
petitioner was imposed punishment on framing charges under
Rule 17 (b) which is a bar for consideration of promotion, he has
been deprived of the promotion to the next cadre. We are
therefore of the view that the charges should have been framed
under Rule 17 (a) and not in Rule 17 (b). In Kannan Vs. State of
Tamil Nadu, reported in 2009 (8) MLJ, the learned single judge
of this court had followed and reiterated the above dictum of
the Division Bench.
11. Adverting to the facts of the present case, we find that
none of the charges framed against the respondent would fall within
the parameters laid down in the guidelines issued by the
Government. This being so, we do not think that the appellants were
justified in framing charges under Rule 17 (b) even for minor
delinquencies and thereby denying promotion to the respondent. We
must point out that even though the Disciplinary Authority has found
the respondent guilty of the charges imposed only a minor
punishment of stoppage of increment that too without cumulative
effect. The said punishment by itself does not operate as a bar for
promotion. If so the appellants cannot by framing charges for trivial
derelictions under Rule 17 (b) deprive promotion to the respondent.''
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10. It is clear from the above judgments that guidelines have been
framed by the Government of Tamil Nadu for deciding when Charges can
be framed under Rule 17 (b) of the Rules. The guidelines make it clear
that framing charges under Rule 17 (b) will arise only in very serious cases
and not for minor delinquencies. Such minor delinquencies can also be
handled by framing charges under Rule 17 (a) of the Rules. The facts of
the present case and also the subsequent development that has taken
place, makes it very clear that they do not fall within the guidelines
framed by the Government of Tamil Nadu and that they do not warrant a
Charge Memo, being issued under Rule 17 (b) of the Rules. To that extent,
the Charge Memo issued by the second respondent requires interference.
11. On issuance of Charge Memo under Rule 17(b), serious
consequences will arise, where the delinquent will not be entitled to be
considered for promotion, whereas, when a Charge Memo is issued under
Rule 17 (a) of the Rules, the guidelines issued by the Government clearly
show that there is no bar in considering the promotion of the delinquent
employee, subject to the result of the Departmental proceedings.”
13.Though both the parties have raised allegations and
counter allegations as against each other, this Court, at
this stage, is not inclined to probe into the same,
inasmuch as the proceedings are at the stage of charge
memo.
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14.At the same time, this Court, after perusing the
charges framed as against the petitioner and going by the
facts of the case, is of the considered opinion that even
if the charges are proved, it would not result in the
imposition of any major penalties, like, dismissal from
service, removal from service, compulsory retirement or
reduction to a lower rank in the seniority list or to a
lower post or time-scale. At the most, the allegations
levelled as against the petitioner can be termed under
insubordination, for which, this Court is of the view that
the respondents could have framed the charges against the
petitioner under Rule 17(a) and not under Rule 17(b) of the
Tamil Nadu Civil Services (Discipline & Appeal) Rules. The
guidelines issued by the Government and the decisions
referred to supra make it very clear that framing of
charges under Rule 17(b) will arise only in very serious
cases, which is not the case herein.
15.In fact, the petitioner has also raised a ground
that in order to stall his scope for promotion, the
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impugned charge memo was framed under Rule 17(b) and issued
on 02.12.2019, for the alleged occurrence said to have
taken place in the year 2017, after a lapse of two years.
This ground raised by the petitioner could not be brushed
aside in toto, since on issuance of charge memo under Rule
17(b), serious consequences will arise, where the
delinquent will not be entitled to be considered for
promotion, which is not the case when a charge memo is
issued under Rule 17(a) of the Tamil Nadu Civil Service
(Discipline & Appeal) Rules.
16.In view of the foregoing discussions and reasonings,
this Court is passing the following order:-
- the impugned charge memo dated 02.12.2019, framing
charges as against the petitioner under Rule 17(b) of the
Tamil Nadu Civil Service (Discipline & Appeal) Rules, is
hereby set aside;
- it is open to the second respondent to proceed
against the petitioner by framing charges under Rule 17(a)
of the Tamil Nadu Civil Service (Discipline & Appeal)
Rules, if so advised and in such an event, there will be no
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bar in considering the petitioner for promotion, if any,
subject to the result of the disciplinary proceedings; and
- if any such disciplinary proceedings are initiated,
the petitioner is expected to render his fullest
co-operation and the respondents shall endeavor to complete
the proceedings at an early date.
17.The writ petition stands allowed in the above terms.
There shall be no order as to costs. Consequently,
connected miscellaneous petitions stand closed.
Index : Yes / No 15.12.2021
Internet : Yes
gk
To
1.The Principal Secretary /
Commissioner of Revenue Administration
and Disaster Management,
Ezhilagam,
Chepauk,
Chennai.
2.The Director,
O/o. Rehabilitation and Welfare of Non Residents Tamils,
Ezhilagam,
Chepauk,
Chennai.
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B.PUGALENDHI, J.
gk
3.The Deputy Director,
O/o. Rehabilitation and Welfare of Non Residents Tamils,
Ezhilagam,
Chepauk,
Chennai.
4.The Special Deputy Collector (Rehabilitation),
O/o. Rehabilitation and Welfare of Non Residents Tamils,
Ezhilagam,
Chepauk,
Chennai.
W.P.(MD)No.13061 of 2020
15.12.2021
https://www.mhc.tn.gov.in/judis
