Madras High Court
A.Anantharam vs The Government Of Tamil Nadu on 2 March, 2021
W.P.No.4698 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.4698 of 2021
A.Anantharam ... Petitioner
-vs-
1. The Government of Tamil Nadu,
Represented by Principal Secretary to Government,
Municipal Administration and Water Supply Department,
Secretariat, Chennai – 600 009.
2. The Principal Secretary / Commissioner
of Municipal Administration,
Chepauk, Chennai – 600 005. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for the
issuance of a Writ of Certiorarified Mandamus, calling for the records of the 2nd
respondent in Na.Ka.No.21725/2015/C3 (dated 14/07/2015 and Government Letter
No.15707 NAPA 2 / 2015 -10, dated 18/12/2017 issued by the 1 st respondent, quash the
same and to grant all consequential benefits.
For Petitioner : Mr.P.Kumaravel
For Respondents : Mrs.P.Rajalakshmi
Additional Government Pleader
ORDER
This Writ petition is filed, to quash the proceedings in Na.Ka.No.21725/2015/C3
(dated 14/07/2015) passed by the 2nd respondent and Government Letter No.15707
NAPA 2 / 2015 -10, dated 18/12/2017 issued by the 1st respondent and to grant all
consequential benefits.
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W.P.No.4698 of 2021
2. Mrs.P.Rajalakshmi, learned Additional Government Pleader takes notice for
Respondents. By consent, the Writ Petition is taken up for final disposal at the
admission stage.
3. The petitioner has challenged the order dated 14.07.2015. According to the
petitioner, the Charge memo was issued in the year 2015 for the incident that is said to
have taken place in the year 2012. The relevant charges framed against the petitioner
are as follows:
Fw;wr;rhl;L vz;/1
“flYhu; khtl;l tUtha; myfpy; jpU/m/mde;juhk;. Kd;dhs; tUtha;
tl;lhl;rpau;. gz;Ul;o tl;lk;. Vd;gtu; 2012 Mk; Mz;L rdtup khjj;jpy; gz;Ul;o
efuhl;rp vy;iyf;Fl;gl;l “jhnd” g[ay; ghjpgg; pwF
; cs;shd Foirg; gFjpfspd;
gl;oaiy jy Ma;t[ nkw;bfhs;shky; 2309 jFjpaw;w gadhspfSf;F epthuzj;
bjhifahf U:/57.72.500-? tH';fp KiwnfL g[upe;Js;sPu”; .
Fw;wr;rhl;L vz;/2
“muR tH';Fk; epthuzj;bjhifapid jy Ma;t[ nkw;bfhs;shky; jFjpapyy; hj
gadhspfSf;F Kiwnflhf gzgl;Lthlh bra;J. muRf;F epjp ,Hg;g[ Vw;gl tH[p
bra;Js;sPu”; .
Fw;wr;rhl;L vz;/3
“muR mYtyu;fSf;fhd elj;ij tpjpfs; tpjp vz;/20 w;F Kuzhf murpd;
ek;gfj;jd;ik kw;Wk; flikapy; jtwpajw;F bghWg;ghtPu”; /
4. According to the petitioner, the Enquiry Officer held that the charges were not
proved and the Disciplinary Authority, without any valid reason, disagreed with the
findings of the Enquiry Officer and sought for explanation from the petitioner. The
petitioner has given an explanation on 22.07.2019. The petitioner has also relied upon
the judgement of this court in the case of C.P.Harish vs. The Central War Housing
reported in 2000 (4) CTC 517, by which the Charge Memorandum issued against the
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W.P.No.4698 of 2021
petitioner therein was struck down on the ground of inordinate delay. The relevant
Paragraphs of the judgments are extracted hereunder:
“17. This Court is conscious of the fact that it would not be open to the
Tribunal or Court to quash the charges even at the threshold. However, I have
already stated that the alleged irregularities or lapses had taken place in the year
1982 and 1991 respectively and action -was taken only in the year 1995 and 1998
respectively. I have already held that the inordinate and unexplained delay vitiates
the Charge Memos and the same are liable to be quashed. The disciplinary
proceedings cannot be initiated after a lapse of considerable time. Such delay makes
the task of proving the charges difficult and is thus not also in the interest of
administration. As observed earlier, delayed initiation of proceedings is bound to
give room for allegations of bias, mala fides and misuse of power. If the delay is too
long and is unexplained, the court may well interfere and quash the charges. Here,
in our cases, the petitioner has raised a plea that the delay is likely to cause
prejudice to him in defending himself. If such plea is raised, the Court has to weigh
the factors appearing for and against the said plea and take a decision on the totality
of circumstances. After the delay of 13 years and 8 years, it would be impossible for
the petitioner to remember the identity of the witnesses whom he could summon to
appear before the enquiring authority to support his case. Even if he could summon
their presence, it would be a doubtful proposition whether they would be in a
position to remember that happened more than 13/8 years back and help him in his
defence. Further more, the petitioner may not be in a position to effectively cross-
examine the witnesses to be examined on the side of the Corporation. Practically it
would be a doubtful proposition that either the prosecution witnesses or the defence
witnesses would be in a position to remember the facts of the case and advance the
case of either the Corporation or the petitioner. Under these circumstances and on
the facts and circumstances disclosed, I hold that the inordinate delay will constitute
denial of reasonable opportunity to the petitioner, to defend himself that it would
amount to violation of principles of natural justice and as such, the impugned
Charge Memorandums must be struck down. By weighing all the factors both for
and against the petitioner/ delinquent officer, I hold that quashing the Charge
Memorandums is just and proper in the circumstances.
18. Under these circumstances, the impugned Memorandum of Charges
dated 20.6.95 and 14.7.98 are quashed and the respondents are directed to consider
the claim of the petitioner for promotion as Superintending Engineer as claimed in
the W.P. No. 12246 of 1998 and pass appropriate orders within a period of eight
weeks from the date of receipt of a copy of this order. Net result, both the writ
petitions are allowed. No costs. Both the miscellaneous petitions are closed.”
5. Learned counsel for the Petitioner has also referred to a judgment of a
Constitution Bench of this Court in the case of A.R.Antulay vs. R.S.Nayak, reported in
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W.P.No.4698 of 2021
AIR 1988 SC 1531 to state that the relief of terminal benefits was granted to the
Petitioner therein on account of huge delay. Learned counsel for the Petitioner further
quoted the judgment of a Division Bench of this Court in the case of
S.Balasubramanian vs. The District Collector, Salem [W.A.No.2924 of 2019] decided
on 12.09.2019, wherein it was held as under:
“10. Thus, the Charge memo issued under Rule 17(b) of the Tamil
Nadu Civil Services (D&A) Rules, is sought to be proved without
examining any witness and solely based on documents. This is contrary to
the rules. When statute contemplates a thing to be done in a prescribed
manner, the same has to be done, in the manner as provided under law.
Reference can be made to the following decisions.
(i) In T.Ramamoorthy v. The Secretary, Sri Ramakrishna Vidyalaya
High School, etc. & Others reported in 1998 Writ. LR 641, at Paragraph 6,
held as follows:
"If the statutory provision enacted by the Legislature prescribed a particular
mode for terminating the service or dismissing the teaching or a non-
teaching staff of a school, it can and has to be done not only in that manner
alone, but it cannot be done in any manner too.
This principle that where a power is given to do a certain thing in a certain
way, things must be done in that way and not otherwise and that the other
method of performance is necessarily precluded, is not only well settled,
but squarely applies to this case also in construing the scope of the power
as also its exercise by the management under Section 22 of the Act."
(ii) The Hon'ble Supreme Court in State of Jharkhand v. Ambay
Cements reported in 2005 (1) CTC 223, at Paragraph 27, held as follows:
"27. Whenever the statute prescribes that a particular act is to be
done in a particular manner and also lays down that failure to comply with
the said requirement leads to severe consequences, such requirement would
be mandatory. It is the cardinal rule of the interpretation that where a statute
provides that a particular thing should be done, it should be done in the
manner prescribed and not in any other way. It is also settled rule of
interpretation and where a statute is penal in character, it must be strictly
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W.P.No.4698 of 2021
construed and followed. Since the requirement, in the instant case of
obtaining prior permission is mandatory, therefore, non-compliance of the
same must result in cancelling the concession made in favour of the
grantee-the respondent herein."
(iii) In Pandit D Aher v. State of Maharashtra reported in 2007 (1)
SCC 437, the Hon'ble Supreme Court, at Paragraph 19, held as follows:
"It is now well settled that a judicial review would lie even if there is an
error of law apparent on the face of the record. If statutory authority uses its
power in a manner not provided for in the statute or passes an order without
application of mind, judicial review would be maintainable. Even an error
of fact for sufficient reasons may attract the principles of judicial review."
11. In view of the above discussion and decisions, the writ appeal is
allowed. Order made in WP No.7882 of 2017 dated 04.10.2018, is set
aside. Charge Memo in Na.Ka.No.90791/87/83 dated 24.01.2000, is
quashed. Appellant is entitled to the consequential benefits, in accordance
with law, which shall be calculated and disbursed, as expeditiously as
possible. No costs.”
6. Though a plea was raised by the petitioner that for the incident of the year
2012, a Charge Memo came to be issued in the year 2015, he, for the reasons best
known to him, had not chosen to question the Charge Memo immediately and he ought
not to have waited for more than five years. Even after the explanation dated
22.07.2019, the petitioner has slept over for nearly 18 months and when the respondents
were about to take a decision, the present Writ petition has been preferred.
7. Hence, I find no merit in the Writ petition and the judgment of the Division
Bench of this Court rendered on 12.09.2019 in W.A.No.2924 of 2019 (supra) is not
applicable to the facts of the present case and there is no compulsion for this Court,
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W.P.No.4698 of 2021
sitting singly, to follow the judgment of a Higher Forum, in case the facts of the case
relied upon totally differ, in the light of the judgment of the Hon'ble Supreme Court in
the case of Padmasundara Rao (Dead) & others vs. State of Tamil Nadu and others,
reported in (2002) 3 SCC 533. On reading of the charges extracted supra, they are
indeed serious in nature and therefore, this Court is not inclined to interfere with the
Charge Memo impugned in the Writ Petition.
8. Accordingly, the Writ petition is dismissed as devoid of merits. It is needless to
mention that if any departmental proceedings have been pending, commenced or
initiated, the respondents shall proceed with the same without adjourning the
Departmental Proceedings beyond five working days at any point of time, if already not
completed, so as to bring the issue to a logical end. It is for the respondents to consider,
posting the petitioner in a non-sensitive post. The petitioner shall not attempt to stall the
proceedings under any circumstances and it is open to him to question the final
decision, which may be taken by the respondents after completion of all the
proceedings. No costs. Consequently, connected miscellaneous petitions are closed.
02.03.2021
Index: Yes / No
Speaking order /Non speaking order
vum
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W.P.No.4698 of 2021
To:
1. The Principal Secretary,
Government of Tamil Nadu,
Municipal Administration and Water Supply Department,
Secretariat, Chennai – 600 009.
2. The Principal Secretary / Commissioner
of Municipal Administration,
Chepauk, Chennai – 600 005.
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W.P.No.4698 of 2021
S.VAIDYANATHAN,J.,
vum
W.P.No.4698 of 2021
02.03.2021
https://www.mhc.tn.gov.in/judis/
