Madras High Court
M/S.Karuppu Ezhuthu Kazhagam vs 5 K.Gopalakrishnan on 25 November, 2021
W.P.No.4281 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.11.2021
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.4281 of 2020
M/s.Karuppu Ezhuthu Kazhagam,
rep. by its President,
No. 5 Kallupatti Post,
Marugapurai Taluk,
Tirchy District - 621 308. .. Petitioner
Vs
1 The Government of Tamil Nadu,
rep. by its Principal Secretary,
Department of Commercial Taxes
and Registration (H),
Secretariat, Fort St. George,
Chenani - 9.
2 The Inspector General of Registration,
O/o The Inspector General of Registration,
No. 100, Santhom High Road,
Chennai -28.
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W.P.No.4281 of 2020
3 The Directorate of Vigilance and Anti Corruption,
rep. by its Director,
Chennai - 16.
4 The Secretary,
Vigilance Commissioner,
Secretariat, Fort St. George,
Chennai - 9.
5 K.Gopalakrishnan,
District Registrar (Adm)
Chengalpattu Registration District
Chengalpattu and District. .. Respondents
(Respondent No.5 impleaded as per the order
dated 02.09.2021 made in WMP No.6000 of 2020)
(Names of respondent Nos.1 and 2 amended in
the cause-title as per the order dated 02.09.2021
made in WMP No.6190 of 2020)
Prayer: Petition filed under Article 226 of the Constitution of India
praying for a writ of certiorarified mandamus calling for the records
pertaining tot he impugned G.O.(Rt) No.358, dated 05.07.2019 issued
by the first respondent and quash the same and consequently to direct
the first and second respondents to conduct counseling with
transparent manner without corruption in view of the G.O. (Ms)
No.279, dated 16.08.1993 issued by the Commercial Tax and HR & CE
Department and G.O. (T) No.308, dated 24.06.2009 issued by the
second respondent.
For the Petitioner : Mr.P.Vijendran
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W.P.No.4281 of 2020
For the Respondents : Mr.R.Shunmugasundaram
Advocate General
assisted by
Mr.P.Muthukumar
State Government Pleader
for respondent Nos.1 to 4
: Mr.V.Stalin
for respondent No.5
ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
This public interest litigation has been filed to challenge the
order dated 5.7.2019 issued by the first respondent with a direction
to conduct counselling in a transparent manner in view of G.O. (Ms)
No.279, dated 16.8.1993 issued by the Commercial Tax and
Endowment Department and G.O. (D) No.308, dated 24.06.2009
issued by the Commercial Tax and Registration Department.
2. Learned counsel for the petitioner submits that the
Government Order dated 16.8.1993, referred to above, issued by
the respondent authorities laid down guidelines for transfer of
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W.P.No.4281 of 2020
District Registrars and the subsequent Government Order dated
24.6.2009 modified the earlier guidelines. Narrating the facts of the
case, it is submitted that a surprise visit was made by the third
respondent to the office of the Sub Registrar, Villivakkam, where
one K.Gopalakrishnan was working as Sub Registrar. In the search
or visit, unaccounted money was found. Based on the above
incident, a transfer order was issued by the first respondent on
5.7.2019. Looking to the recovery of the unaccounted money,
action was required to be taken by the respondent authorities to
stop corrupt practices in view of the Government Order dated
16.8.1993. No action was initiated by the respondents despite
recovery of unaccounted amount in the surprise visit and,
accordingly, the public interest litigation was maintained seeking a
direction for initiation of action in reference to the surprise visit and
recovery of unaccounted money.
3. Learned counsel referring to the order of transfer dated
5.7.2019 submitted that as many as 15 officers were transferred on
completion of the period, but so far as K.Gopalakrishnan is
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W.P.No.4281 of 2020
concerned, his name was shown separately and he was posted as
District Registrar (Administration). It was not in consonance with
the guidelines for the transfer and, accordingly, a challenge to it has
been made, apart from the prayer to take action against the corrupt
practices of the officers of the department pursuant to the
government orders.
4. Learned Advocate General submits that pursuant to the
direction of this court, status reports were submitted to show that
immediate action in the matter has been taken. Initially,
permission was accorded under Section 17(A) of the Prevention of
Corruption Act, 1988, as amended in 2018, vide order dated
7.3.2019. A direction was issued to register a case against the
accused officer K.Gopalakrishnan. Subsequent to the aforesaid,
investigation was made and completed with final report
recommending enquiry by the Tribunal for Disciplinary Proceedings
against the erring officer and based on the recommendation, the
department has already taken a decision to initiate departmental
enquiry against K.Gopalakrishnan. He further submitted that action
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W.P.No.4281 of 2020
having been initiated pursuant to search conducted on 13.12.2018,
nothing remains in this matter and, accordingly, even on the facts
the writ petition now deserves to be dismissed.
5. So far as the challenge to the order of transfer is
concerned, it is submitted that apart from the routine transfers of
15 officers, K.Gopalakrishnan was also transferred looking to the
search conducted on 13.12.2018 where unaccounted money was
found. It is further submitted that a public interest litigation is not
maintainable in service matter and, accordingly, so far as the
challenge to the order of transfer dated 5.7.2019 is concerned, the
writ petition may be dismissed holding it to be not maintainable.
6. We have considered the rival submissions of the parties and
perused the record.
7. The facts available on record show that on 13.12.2018 a
surprise visit was conducted by the Deputy Superintendent of
Police, Chennai City-II Detachment, Vigilance and Anti-Corruption
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Inspection Cell and unaccounted money was found in the office
where K.Gopalakrishnan was working. Pursuant to the aforesaid,
vide order dated 7.3.2019, the first respondent took a decision to
accord permission under Section 17(A) of the Act of 1988, as
amended, to register a case against K.Gopalakrishnan and,
accordingly, the Directorate of Vigilance and Anti-Corruption
registered a criminal case in Cr.No.09/AC/2019/CC-II under Section
7 of the Prevention of Corruption Act, 1988, as amended. The
investigation therein was completed with the final report
recommending enquiry by the Tribunal for Disciplinary Proceedings
against K.Gopalakrishnan, formerly SRO. It was sent to the
Vigilance Commissioner on 16.4.2021 and pursuant to the
aforesaid, the department has already initiated enquiry.
8. In view of the facts given above, we find that in furtherance
of the surprise visit and the availability of unaccounted money in
the office, the department had taken action, as was required. The
departmental enquiry is at the initial stage for the reason that prior
to it a case was registered under the Act of 1988, as amended, and
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W.P.No.4281 of 2020
it is only when a recommendation was made for holding disciplinary
enquiry, the department took a decision to initiate it. Apart from
the aforesaid, K.Gopalakrishnan was transferred by order dated
5.7.2019, which has been challenged.
9. Per se, a challenge to the order of transfer falls within the
realm of service law. A public interest litigation is not maintainable
in reference to the service matters, except by way of quo warranto,
as has been held by the Apex Court in Hari Bansh Lal v. Sahodar
Prasad Mahto and others, (2010) 9 SCC 655. The relevant
paragraphs of the said judgment are quoted herein under:
"11. About maintainability of the public interest
litigation in service matters except for a writ of quo
warranto, there are a series of decisions of this Court
laying down the principles to be followed. It is not
seriously contended that the matter in issue is not a
service matter. In fact, such objection was not raised
and agitated before the High Court. Even otherwise,
in view of the fact that the appellant herein was
initially appointed and served in the State Electricity
Board as a member in terms of Section 5(4) and
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from among the members of the Board, considering
the qualifications specified in sub-section (4), the
State Government, after getting a report from the
Vigilance Department, appointed him as Chairman of
the Board, it is impermissible to claim that the issue
cannot be agitated under service jurisprudence.
12. We have already pointed out that the person who
approached the High Court by way of a public
interest litigation is not a competitor or eligible to be
considered as a member or Chairman of the Board
but according to him, he is a Vidyut Shramik leader.
Either before the High Court or in this Court, he has
not placed any material or highlighted in what way
he is suitable and eligible for that post.
...
14. In Ashok Kumar Pandey v. State of W.B. [(2004)
3 SCC 349] this Court held thus: (SCC pp. 358-59,
para 16)
“16. As noted supra, a time has come to
weed out the petitions, which though titled
as public interest litigations are in essence
something else. It is shocking to note that
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courts are flooded with a large number of so-
called public interest litigations where even a
minuscule percentage can legitimately be
called public interest litigations. Though the
parameters of public interest litigation have
been indicated by this Court in a large
number of cases, yet unmindful of the real
intentions and objectives, courts are
entertaining such petitions and wasting
valuable judicial time which, as noted above,
could be otherwise utilised for disposal of
genuine cases. Though in Duryodhan Sahu
(Dr.) v. Jitendra Kumar Mishra [(1998) 7
SCC 273 : 1998 SCC (L&S) 1802] this Court
held that in service matters PILs should
not be entertained, the inflow of so-
called PILs involving service matters
continues unabated in the courts and
strangely are entertained. The least the
High Courts could do is to throw them
out on the basis of the said decision. The
other interesting aspect is that in the PILs,
official documents are being annexed without
even indicating as to how the petitioner came
to possess them. In one case, it was noticed
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W.P.No.4281 of 2020
that an interesting answer was given as to its
possession. It was stated that a packet was
lying on the road and when out of curiosity
the petitioner opened it, he found copies of
the official documents. Whenever such
frivolous pleas are taken to explain
possession, the courts should do well not
only to dismiss the petitions but also to
impose exemplary costs. It would be
desirable for the courts to filter out the
frivolous petitions and dismiss them with
costs as aforestated so that the message
goes in the right direction that petitions filed
with oblique motive do not have the approval
of the courts.”
The same principles have been reiterated in the
subsequent decisions, namely, B. Singh (Dr.) v.
Union of India [(2004) 3 SCC 363 : (2007) 1 SCC
(L&S) 616], Dattaraj Nathuji Thaware v. State of
Maharashtra [(2005) 1 SCC 590] and Gurpal Singh v.
State of Punjab [(2005) 5 SCC 136 : 2005 SCC (L&S)
636] .
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W.P.No.4281 of 2020
15. The above principles make it clear that
except for a writ of quo warranto, public
interest litigation is not maintainable in service
matters."
(emphasis supplied)
The above said view was reiterated in the subsequent decision of
the Apex Court in Madan Lal v. High Court of Jammu and
Kashmir and others, (2014) 15 SCC 308.
10. In view of the above, the challenge to the order of
transfer dated 5.7.2019 is not sustainable through a public interest
litigation. We further find that the order of transfer was passed
looking to the surprise visit conducted by the Deputy
Superintendent of Police, Chennai City-II Detachment, Vigilance and
Anti-Corruption Inspection Cell and finding unaccounted money in
the office. The department in those circumstances took a decision
to transfer K.Gopalakrishnan to other office and assigned
administrative work. The order of transfer was passed after lapse
of eight months, though it should have been an immediate action.
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W.P.No.4281 of 2020
In any case, we do not find any fault in the order of transfer even in
reference to the guidelines of the scheme of transfer given by the
department. Thus, the challenge to the order of transfer cannot be
sustained.
11. In view of the above, this writ petition is disposed of with
the following directions:
(i) no interference is made in the order of transfer
dated 5.7.2019 already given effect to and even
otherwise the public interest litigation is not
maintainable to challenge the aforesaid order; and
(ii) the department after registration of the case
under the Act of 1988, as amended, and after
investigation recommended enquiry by the Tribunal
for Disciplinary Proceedings and based on the same
departmental enquiry has already been initiated
against K.Gopalakrishnan. In view of the above,
appropriate action in the matter has been taken,
thus no further direction is required other than to
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direct the respondent authorities to expedite the
disciplinary proceedings and conclude the same at
the earliest.
There will be no order as to costs. W.M.P.Nos.5069 and 5072
of 2020 are closed.
(M.N.B., ACJ.) (P.D.A., J.)
25.11.2021
Index : No
sasi
To:
1 The Principal Secretary,
Government of Tamil Nadu,
Department of Commercial Taxes and Registration (H),
Secretariat, Fort St. George,
Chenani - 9.
2 The Inspector General of Registration,
O/o The Inspector General of Registration,
No. 100, Santhom High Road,
Chennai -28.
3 The Director,
Directorate of Vigilance and Anti Corruption,
Chennai - 16.
4 The Secretary,
Vigilance Commissioner,
Secretariat, Fort St. George,
Chennai - 9.
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W.P.No.4281 of 2020
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
W.P.No.4281 of 2020
25.11.2021
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