Madras High Court
A.Sundarambal vs The State Of Tamil Nadu on 1 July, 2021
W.P(MD)No.7813 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.7813 of 2021
and
W.M.P(MD)Nos.5954 & 5956 of 2021
A.Sundarambal ... Petitioner
vs.
1.The State of Tamil Nadu,
Rep. by its Secretary,
Department and Municipal Administration
and Water Supply, Fort St. George,
Chennai – 600 009.
2.The Commissioner of Municipal Administration,
Ezhilagam Annex, Chepauk,
Chennai – 600 005.
3.The Commissioner,
Pollachi Municipality,
Palaghat Road,
Pollachi – 642 001. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, to call for the records relating
to the impugned proceedings issued by the second respondent in
ROC.No.5382/2015/C1, dated 08.09.2016 and the consequential denial of
1/22
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W.P(MD)No.7813 of 2021
promotion thereof and quash the same and further direct the first and
second respondents to give promotion to the petitioner as Joint Director of
Municipal Administration as per the recommendation made in her favour by
the second respondent vide proceedings Roc.No.5382/2015/C1, dated
29.07.2016, with all attendant benefits including service seniority, salary
and allowances.
For Petitioner : Mr.Isaac Mohanlal
Senior Counsel
for M/s.Isaac Chambers
For RR 1 & 2 : Mr.P.Subbaraj
Government Advocate
For R – 3 : Mr.P.Athimoola Pandian
ORDER
The petitioner has filed the present Writ Petition, to quash the
impugned proceedings issued by the second respondent in
ROC.No.5382/2015/C1, dated 08.09.2016 and the consequential denial of
promotion thereof and to direct the first and second respondents to give
promotion to the petitioner as Joint Director of Municipal Administration, as
per the recommendation made in her favour by the second respondent, vide
proceedings Roc.No.5382/2015/C1, dated 29.07.2016, with all attendant
benefits including service seniority, salary and allowances.
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W.P(MD)No.7813 of 2021
2.According to the petitioner, she was appointed as a Municipal
Commissioner (Grade-II) on 16.02.2004, through the Tamil Nadu Public
Service Commission. After several promotions, the petitioner was promoted
as Municipal Commissioner (Special Grade) on 04.01.2012. The next
promotional post is Joint Director of Municipal Administration. The post of
Joint Director in Municipal Administration is Category-I post under the Tamil
Nadu Municipal Commissioners' Service. The crucial date for preparation for
approved candidate for the appointment to any category in Municipal
Service is 15th March every year. Accordingly, in the year 2016, the second
respondent-Commissioner of Municipal Administration considered the list of
eligible approved Municipal Commissioners in the State of Tamil Nadu for
promoting them as Joint Director of Municipal Administration for filing up
two vacancies. On overall consideration of all the eligible candidates, the
Commissioner of Municipal Administration found that the petitioner and one
of her senior Tmt.P.Vijayalakshmi, the then Municipal Commissioner,
Karaikudi, as eligible candidates for promotion to the post of Joint Director
of Municipal Administration and recommended for their promotion to the
first respondent, vide letter, dated 29.07.2016, while the petitioner was
working as Municipal Commissioner at Tiruvannamalai. The petitioner has
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W.P(MD)No.7813 of 2021
put in 17 years of unblemished service and she has discharged her duties
sincerely.
3.While so, after the crucial date for preparation of panel for
promotion and after recommending the petitioner for promotion to the first
respondent, the second respondent issued a charge-memo, dated
07.09.2016, containing five vague charges. The second respondent, by the
impugned proceedings, dated 08.09.2016, sent a letter to the first
respondent to withdraw the name of the petitioner for promotion to the post
of Joint Director of Municipal Administration. The said letter was written to
the first respondent without notice and without giving any opportunity to
the petitioner to putforth her case. The disciplinary proceedings commences
only when charge-memo was served on the delinquent employee. On the
crucial date of 15.03.2016 and 29.07.2016, when the petitioner's name was
included in the panel for promotion, there was no disciplinary proceedings
pending against the petitioner. The second respondent has delayed the
conclusion of disciplinary proceedings without any valid reason. Originally,
one Thiru.Sandeep Nandhuri, IAS, Commissioner of Madurai Corporation
was appointed as an enquiry officer. On his promotion, Tmt.P.Vijayalakshmi,
Joint Director (Corporation) was appointed as an enquiry officer by the
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W.P(MD)No.7813 of 2021
proceedings, dated 06.02.2018. While so, the second respondent, by the
proceedings, dated 24.04.2019, has issued modified charge-memo with
certain corrections.
4.The second respondent directed the petitioner to submit her fresh
defence statement within a period of 15 days. Thereafter, the second
respondent by proceedings, dated 15.05.2019, appointed one
Thiru.S.Thirumavalan, Superintending Engineer, Office of the Commissioner
of Municipal Administration, Chennai, to conduct enquiry against the
petitioner and four other officials. The petitioner submitted her explanation
to the charge-memo on 01.07.2019. The enquiry officer conducted
enquiries on 15.07.2019, 16.07.2019 and concluded the enquiry on
31.08.2019 and filed enquiry report on 01.11.2019, holding that charges
levelled against the petitioner were not proved. The respondents have not
concluded the disciplinary proceedings. The petitioner sent representations,
dated 07.01.2021 and 25.01.2021, to the respondents 1 and 2 requesting
them to conclude the disciplinary proceedings. While so, the first
respondent, by letter, dated 27.01.2021, communicated the enquiry report,
differing with the finding of the enquiry officer and issued notice to give
explanation as to why the finding of the enquiry officer shall not be differed.
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According to the petitioner, the first respondent with an intention to impose
some punishment on the petitioner and not to promote her, delayed the
conclusion of the disciplinary proceedings. Only after receiving the
representations of the petitioner, dated 07.01.2021 and 25.01.2021, the
first respondent issued show-cause notice differing the views of the enquiry
officer on new grounds.
5.The learned Senior Counsel appearing for the petitioner submitted
that when there was no disciplinary proceeding pending against the
petitioner on 15.03.2016 and 29.07.2016 and the name of the petitioner
was included and recommended in the panel for promotion to the post of
Joint Director of Municipal Administration, the impugned letter of the second
respondent has been issued requesting the first respondent to withdraw the
name of the petitioner, which is invalid and illegal.
6.The learned Senior Counsel appearing for the petitioner relied on
the Judgment of the Hon'ble Apex Court reported in 2013 (4) SCC 161
[Union of India and others Vs. Anil Kumar Sarkar] and the Judgment
of the Division Bench of this Court made in W.A(MD)No.591 of 2020,
dated 19.08.2020 [The Principal Secretary, Department of Municipal
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W.P(MD)No.7813 of 2021
Administration and Water Supply and another Vs. S.Parthasarathy
and another].
7.The learned Senior Counsel also relied on the Judgment of the First
Bench of this Court reported in 2021 (1) WLR 26 [The Director General
of Police and others Vs. K.Pitchai] and the relevant portions of the said
Judgment read as follows:-
“11.The principal question that arises for consideration is
whether the Appellants were entitled to refuse to relieve the
Respondent/Petitioner from the post of DSP Ramanathapuram and
permit him to join in the promoted post of ADCP Tirunelveli. The
main ground on which the Respondent/Petitioner was not relieved
from the post was the issuance of the charge memo dated
22.06.2017. The factual position is largely undisputed. The crucial
date was 01.04.2017 and the contesting parties agree that the
charge memo dated 22.06.2017 was received in the office of the
Deputy Inspector General of Police, Ramanathapuram Range, on
30.06.2017 but was served on the Respondent/Petitioner only on
07.07.2017. Therefore, the question arises as to whether the
Respondent/Petitioner could be denied the promotion on account of
the aforesaid charge memo. In order to answer this question, it is
necessary to refer to the relevant provisions of the Conditions of
Service Act. In particular, it is necessary to refer to paragraph - II,
Sub-paragraph (1) & (8) of the said Act, which read as under:
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“Consideration of members for Inclusion in the approved lists:
(1) In cases where enquiry (except Tribunal for Disciplinary
Proceedings enquiry) including preliminary or detailed enquiry by the
appropriate Investigating Authority is pending against a member of
service and no specific charges have been framed, promotion or
appointment of such member of service shall be considered on the
basis of the merit (emphasis added) revealed through Annual
Confidential Reports, Record Sheets and Punishments imposed. In
cases where specific charges have been framed or charge sheet has
been filed in criminal case against a member of service, promotion or
appointment of such member of service shall be deferred till such
proceedings are concluded. (emphasis added) On exoneration or
acquittal from the charges, a member of service shall be considered
for promotion or appointment with retrospective effect from the date
on which his immediate junior was promoted, if he is otherwise
qualified for such promotion.
(8) Pendency of charges framed under rule 17(b) of the Tamil
Nadu Civil Services (Discipline and Appeal) Rules against a member
of a service shall be a bar for inclusion of his name in the approved
list.” (emphasis added).
12. Upon perusal of the aforesaid, it is clear that a pending
enquiry at a pre-charge memo/charge sheet stage is not a bar for
the consideration of an employee for promotion. However, once
charges are framed or a charge sheet is filed in a criminal case, the
promotion of such persons is required to be deferred till such
proceedings are concluded. Thus, the critical activity for triggering
the disability to be considered for promotion is the framing of
charges or filing of the charge sheet in a criminal case. Therefore,
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W.P(MD)No.7813 of 2021
the next aspect to be considered is whether it is sufficient that
charges are framed or is it necessary that the charge memo/ charge
sheet should be served on the delinquent employee. Towards this
end, the law on this issue should be examined.
15. The law laid down by the Hon'ble Supreme Court in the
above cases should be applied to the case at hand. The applicable
statute is the Conditions of Service Act and, in particular, the
relevant paragraphs of 20 of 27 http://www.judis.nic.in W.A.(MD)No.
64 of 2019 Schedule XI thereto. As stated in paragraph 11 supra, as
per sub-para (1) of paragraph II of Schedule XI thereof, the
promotion of an employee against whom there is a pre-charge
memo/pre-charge sheet enquiry would be considered on merit but if
charges have been framed or a charge sheet filed, the promotion
would be deferred. Indeed, it is expressly stipulated therein that "in
cases where specific charges have been framed or charge sheet has
been filed in criminal case against a member of service, promotion or
appointment of such member of service shall be deferred till such
proceedings are concluded." From the above extract, it is evident
that the critical event is the framing of charges or the filing of a
charge sheet, as the case may be, and not the commencement of
disciplinary proceedings.”
8.The learned Senior Counsel appearing for the petitioner prayed for
setting the impugned order and to direct the respondents 1 and 2 to give
promotion to the petitioner as Joint Director of Municipal Administration, as
per the recommendation made by the second respondent, by proceedings,
dated 29.07.2016.
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W.P(MD)No.7813 of 2021
9.Mr.P.Subbaraj, learned Government Advocate appearing for the
respondents 1 and 2 submitted that even though the petitioner's name was
included and recommended in the panel for promotion, before the
promotion to be given, the charge-memo, dated 07.09.2016, was issued to
the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline
and Appeal) Rules and disciplinary proceedings were initiated. The petitioner
participated in the domestic enquiry and disciplinary proceeding is in final
stage. The learned Government Advocate further submitted that when the
disciplinary proceeding is initiated and pending, the delinquent employee,
like the petitioner, is not entitled to promotion. Only after conclusion of the
disciplinary proceedings and subject to the result of the disciplinary
proceedings, her name will be considered for promotion. Hence, there is no
error in the impugned communication issued by the second respondent and
the same is valid and legal and prayed for dismissal of the Writ Petition.
10.Heard the learned Senior Counsel appearing for the petitioner, the
learned Government Advocate appearing for the respondents 1 and 2 and
the learned counsel appearing for the third respondent and perused the
entire materials available on record.
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W.P(MD)No.7813 of 2021
11.The issue to be decided in the present Writ Petition is whether the
petitioner is entitled to promotion in the year 2016, as per the panel and
recommendation, dated 29.07.2016 or the impugned letter of the second
respondent, dated 08.09.2016, requesting the first respondent to withdraw
the name of the petitioner is valid.
12.From the rival submissions made on either side and the materials
available on record and documents filed in the typedset of papers, it is seen
that it is not in dispute that the crucial date for preparation of panel is 15 th
March every year. A panel for promotion to the post of Joint Director of
Municipal Administration was prepared and it was found that two persons,
including the petitioner were eligible to be promoted as against three other
persons, disciplinary proceedings were pending. The second respondent, by
the proceedings, dated 29.07.2016, recommended the name of the
petitioner and one Tmt.P.Vijayalakshmi for promotion to the post of Joint
Director of Municipal Administration. It is an admitted case of both the
learned Senior Counsel appearing for the petitioner and the learned
Government Advocate appearing for the respondents 1 and 2, that as on
15.03.2016, the crucial date for preparation of panel and on 29.07.2016,
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the recommendation made by the second respondent to the first respondent
to promote the petitioner as Joint Director of Municipal Administration, no
disciplinary proceeding was initiated and pending against the petitioner. A
charge-memo, dated 07.09.2016 was issued to the petitioner. In view of the
charge-memo issued subsequent to the crucial date and date of
recommendation, the second respondent by impugned letter, dated
08.09.2016, requested the first respondent to withdraw the name of the
petitioner for promotion. The issue, when disciplinary proceeding
commenced, the right of an employee for promotion before commencement
of disciplinary proceeding, was considered by the First Bench of this Court in
the Judgment reported in 2021 (1) WLR 26 [The Director General of
Police and others Vs. K.Pitchai], which was relied on by the learned
Senior Counsel appearing for the petitioner. In paragraph No.11 of the said
Judgment referred to above, the first Bench has extracted paragraph II,
Sub-paragraph (1) and (8) of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016, which reads as follows:-
“Consideration of members for Inclusion in the approved lists:
(1) In cases where enquiry (except Tribunal for Disciplinary
Proceedings enquiry) including preliminary or detailed enquiry by the
appropriate Investigating Authority is pending against a member of
service and no specific charges have been framed, promotion or
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W.P(MD)No.7813 of 2021
appointment of such member of service shall be considered on the
basis of the merit (emphasis added) revealed through Annual
Confidential Reports, Record Sheets and Punishments imposed. In
cases where specific charges have been framed or charge sheet has
been filed in criminal case against a member of service, promotion
or appointment of such member of service shall be deferred till such
proceedings are concluded. (emphasis added) On exoneration or
acquittal from the charges, a member of service shall be considered
for promotion or appointment with retrospective effect from the date
on which his immediate junior was promoted, if he is otherwise
qualified for such promotion.
(8) Pendency of charges framed under rule 17(b) of the Tamil
Nadu Civil Services (Discipline and Appeal) Rules against a member
of a service shall be a bar for inclusion of his name in the approved
list.”
(emphasis added)
13.After extracting the said provision, the First Bench of this Court in
the said Judgment held that “pending enquiry at a pre-charge memo/charge
sheet stage is not a bar for the consideration of an employee for promotion.
However, once charges are framed or a charge sheet is filed in a criminal
case, the promotion of such persons is required to be deferred till such
proceedings are concluded”. The first Bench has referred to the Judgment of
the Hon'ble Supreme Court reported in 1991 (4) SCC 109 [Union of
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India and others Vs. K.V.Jankiraman and others], which reads as
follows:-
"8. The common questions involved in all these matters
relate to what in service jurisprudence has come to be known as
“sealed cover procedure”. Concisely stated, the questions are:
(1) What is the date from which it can be said that
disciplinary/criminal proceedings are pending against an
employee? (2) What is the course to be adopted when the
employee is held guilty in such proceedings if the guilt merits
punishment other than that of dismissal? (3) To what benefits an
employee who is completely or partially exonerated is entitled to
and from which date? The “sealed cover procedure” is adopted
when an employee is due for promotion, increment etc. but
disciplinary/criminal proceedings are pending against him at the
relevant time and hence, the findings of his entitlement to the
benefit are kept in a sealed cover to be opened after the
proceedings in question are over. Hence, the relevance and
importance of the questions.
16. On the first question, viz., as to when for the purposes
of the sealed cover procedure the disciplinary/criminal
proceedings can be said to have commenced, the Full Bench of
the Tribunal has held that it is only when a charge-memo in a
disciplinary proceedings or a charge-sheet in a criminal
prosecution is issued to the employee that it can be said that the
departmental proceedings/criminal prosecution is initiated
against the employee. The sealed cover procedure is to be
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W.P(MD)No.7813 of 2021
resorted to only after the charge-memo/charge-sheet is issued.
The pendency of preliminary investigation prior to that stage will
not be sufficient to enable the authorities to adopt the sealed
cover procedure. We are in agreement with the Tribunal on this
point. (emphasis added). The contention advanced by the
learned counsel for the appellant-authorities that when there are
serious allegations and it takes time to collect necessary
evidence to prepare and issue charge-memo/charge-sheet, it
would not be in the interest of the purity of administration to
reward the employee with a promotion, increment etc. does not
impress us. The acceptance of this contention would result in
injustice to the employees in many cases. . As has been the
experience so far, the preliminary investigations take an
inordinately long time and particularly when they are initiated at
the instance of the interested persons, they are kept pending
deliberately. Many times they never result in the issue of any
charge-memo/charge-sheet. If the allegations are serious and
the authorities are keen in investigating them, ordinarily it
should not take much time to collect the relevant evidence and
finalise the charges. (emphasis added). What is further, if the
charges are that serious, the authorities have the power to
suspend the employee under the relevant rules, and the
suspension by itself permits a resort to the sealed cover
procedure. The authorities thus are not without a remedy. It was
then contended on behalf of the authorities that conclusions Nos.
1 and 4 of the Full Bench of the Tribunal are inconsistent with
each other. Those conclusions are as follows: (ATC p. 196, para
39)
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“(1) consideration for promotion, selection grade, crossing
the efficiency bar or higher scale of pay cannot be withheld
merely on the ground of pendency of a disciplinary or criminal
proceedings against an official;
(2) ***
(3) ***
(4) the sealed cover procedure can be resorted to only
after a charge memo is served on the concerned official or the
charge-sheet filed before the criminal court and not before;”
17. There is no doubt that there is a seeming
contradiction between the two conclusions. But read
harmoniously, and that is what the Full Bench has intended, the
two conclusions can be reconciled with each other. The
conclusion No. 1 should be read to mean that the promotion etc.
cannot be withheld merely because some disciplinary/criminal
proceedings are pending against the employee. To deny the said
benefit, they must be at the relevant time pending at the stage
when charge-memo/charge-sheet has already been issued to
the employee. Thus read, there is no inconsistency in the two
conclusions."
After referring to various Judgments, the first Bench held that “the critical
event is the framing of charges or the filing of a charge sheet, as the case
may be, and not the commencement of disciplinary proceedings”.
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14.In the present case, there was no enquiry at a pre-charge
memo/charge sheet stage. Further, charge-memo against the petitioner is
dated 07.09.2016, much later than the crucial date, dated 15.03.2016 and
recommendation dated 29.07.2016. Further, the issue was earlier came up
for consideration before the another Division Bench of this Court, which was
relied on by the learned Senior Counsel appearing for the petitioner, in
W.A(MD)No.591 of 2020, dated 19.08.2020 [The Principal
Secretary, Department of Municipal Administration and Water
Supply and another Vs. S.Parthasarathy and another]. The Division
Bench, after considering the Judgment of the Hon'ble Apex Court reported
in 2013 (4) SCC 161 [Union of India and others Vs. Anil Kumar
Sarkar], which was relied on by the learned Senior Counsel appearing for
the petitioner and 1991 (4) SCC 109 [Union of India and others Vs.
K.V.Jankiraman and others], in paragraph No.13 of the Judgment held
that only when charge-memo is served on the delinquent employee, the
disciplinary proceeding commence. The relevant portion of the said
Judgment of the Division Bench reads as follows:-
“13. In the light of the ratio laid down in the said decision,
mere preparation of charge memo is not sufficient and unless the
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charge memo is issued to the concerned employee, the
disciplinary proceedings cannot be said to have commenced or
pending.
14. In the case on hand, though the charge memo is dated
30.05.2019, the first respondent/writ petitioner had received the
same only on 25.09.2019, if really the charge memo dated
30.05.2019 have been prepared and served on the first
respondent/writ petitioner, then a reference would have been
definitely found in paragraph No.4 of the communication of the
second appellant dated 26.06.2019 to the first appellant, in which
he merely recommends for initiation of disciplinary action by the
Commissioner of disciplinary proceedings against the first
respondent/writ petitioner.
15............
16. In the result, the Writ Appeal is dismissed confirming
the order dated 28.11.2019 in W.P.(MD) No.19281 of 2019 and it
is open to the respondents 1 and 2 to grant temporary promotion
to the first respondent/writ petitioner as Selection Grade
Municipal Commissioner, subject to the outcome of the
disciplinary proceedings/W.P.(MD).No.826 of 2020. The said
exercise shall be carried out within a period of eight weeks from
the date of receipt of a copy of this order. The Registry is also
directed to accord priority and expedite the disposal of W.P.
(MD).No.826 of 2020. No costs. Consequently, the connected
Civil Miscellaneous Petition is closed.”
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In conclusion, the Division Bench by Judgment, dated 19.08.2020 in
W.A(MD)No.591 of 2020, directed the appellants therein to promote the writ
petitioner therein temporarily, subject to the result of the disciplinary
proceedings. The ratio in both the Judgments, viz. 1991 (4) SCC 109
[Union of India and others Vs. K.V.Jankiraman and others] and 2013
(4) SCC 161 [Union of India and others Vs. Anil Kumar Sarkar], are
squarely applicable to the facts of the present case. There was no
disciplinary proceedings pending against the petitioner on 15.03.2016 as
well as on 29.07.2016, when the second respondent recommended the
name of the petitioner for promotion.
15.For the above reasons, the impugned order, dated 08.09.2016
passed by the second respondent and impugned communication are set
aside as invalid. As held by the Division Bench of this Court in W.A(MD)No.
591 of 2020, dated 19.08.2020 [The Principal Secretary,
Department of Municipal Administration and Water Supply and
another Vs. S.Parthasarathy and another], the respondents are
directed to promote the petitioner to the post of Joint Director of Municipal
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Administration, when Tmt.P.Vijayalakshmi, who was also recommended by
the second respondent on 29.07.2016 along with the petitioner, within a
period of four weeks from the date of receipt of a copy of this order.
16.With the above directions, this Writ Petition is allowed. No costs.
Consequently, connected Miscellaneous Petitions are closed.
01.07.2021
Index : Yes / No
Internet : Yes / No
ps
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the order
that is presented is the correct
copy, shall be the responsibility of
the advocate / litigant concerned.
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W.P(MD)No.7813 of 2021
To
1.The Secretary,
Department and Municipal Administration
and Water Supply, Fort St. George,
Chennai – 600 009.
2.The Commissioner of Municipal Administration,
Ezhilagam Annex, Chepauk,
Chennai – 600 005.
3.The Commissioner,
Pollachi Municipality,
Palaghat Road,
Pollachi – 642 001.
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W.P(MD)No.7813 of 2021
V.M.VELUMANI,J.
ps
W.P(MD)No.7813 of 2021
01.07.2021
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