Madras High Court
K.Selvam vs Principal ... on 2 March, 2022
W.P.No.4388 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2022
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.4388 of 2022
and
W.M.P.Nos.4515 & 4517 of 2022
K.Selvam ... Petitioner
vs.
1.Principal Secretary/Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai – 600 005.
2.The Additional Commissioner (Administration),
O/o. Principal Secretary/ Commissioner of Commercial
Taxes, Ezhilagam, Chepauk, Chennai – 600 005.
3.The Deputy Commissioner (ST) (RAIL),
O/o. Joint Commissioner (ST),
Salem State Taxes Division,
Integrated Commercial Taxes Building,
Pitchards Road, Hasthampatti, Salem. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, to call for the
records of the impugned order of the 2nd respondent in Memo Ref
No.E1/10350/2014 dated 10.11.2020 and preceded impugned charge memo
1/11
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W.P.No.4388 of 2022
of the first respondent in charge Memo No.E1/10350/2014 dated 07.06.2016
and consequential impugned suspension order of the 1st respondent in
proceedings No.E1/10350/2014 – II dated 24.05.2019 and quash the all as
illegal and unconstitutional consequently direct the respondents to permit the
petitioner to retire from service as State Tax Officer with effect from
31.05.2019 with all monetary and service benefits more particularly within a
time frame as may be stipulated by this Court.
For Petitioner : Mr.J.Pooventherarajan
For Respondents : Mr.R.Siddharth
Government Advocate
ORDER
This writ petition has been filed for issuance of Writ of Certiorarified
Mandamus, to quash i) the Memo dated 10.11.2020, calling further
representation on the enquiry report; ii) charge memo dated 07.06.2016; and
iii) suspension order dated 24.05.2019 and consequently direct the
respondents to permit the petitioner to retire from service as State Tax Officer
with effect from 31.05.2019 with all monetary and service benefits, within a
time frame as fixed by this Court.
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W.P.No.4388 of 2022
2. The case of the petitioner in brief:
The petitioner was appointed as Junior Assistant in the office of
Commercial Tax Officer, Rasipuram on 29.08.1983 and subsequently, he was
promoted as Commercial Tax Officer with effect from 24.12.2013. A charge
memo was issued on 07.06.2016, framing charges that he had purchased a
house site in his wife's name Mrs. Sumathi and had constructed a terraced
house, without getting prior permission from the competent authority,
violating Rule 7 of the Tamil Nadu Government Servants Conduct Rules
1973 and consequently, violated the Rule 20(1) of the above Rules.
Thereafter, the petitioner was suspended from service with effect from
24.05.2019, thereby, he was not allowed to retire from service on 31.05.2019.
2.1. According to the petitioner, his wife, who is a self entrepreneur,
runs a tailoring institute and Beauty Parlor and she purchased the lands out of
her own income. Hence, the petitioner, as a government servant, is not
required to give notice to the prescribed authority. However, the third
respondent conducted De-nova enquiry and filed a report on 28.09.2020
stating that the charges leveled against the petitioner are proved. Accepting
the enquiry report, the second respondent called for further explanation from
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W.P.No.4388 of 2022
the petitioner vide order dated 10.11.2020. Thereafter, the petitioner sought
time to give further explanation on the enquiry report and subsequently, filed
the present writ petition.
3. The learned counsel appearing for the petitioner submitted that, the
impugned order issued by the second respondent is illegal. He further
submitted that, as the disciplinary authority, the second respondent has to
decide the issue independently and to pass final orders. But, since the second
respondent issued the show cause notice accepting the report filed by the
enquiry officer, he cannot decide the issue and pass final orders and hence,
the show cause notice issued by the second respondent is liable to quashed as
it is predetermined.
4. The learned Government Advocate appearing for the respondents
submitted that the second respondent had appointed the third respondent as
an enquiry officer and the report of the enquiry officer was also
communicated to the petitioner. He further submitted that, the impugned
show cause notice dated 10.02.2021 has been issued, providing an
opportunity to the petitioner to give his further representation on the enquiry
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W.P.No.4388 of 2022
report. If the petitioner is having any grievance, he can give his explanation
to the respondents and the same would be considered in accordance with law.
5. A perusal of the records shows that pursuant to the order dated
03.05.2019 issued by the second respondent, the petitioner had appeared for
De-nova enquiry before the enquiry officer and he had submitted his
explanation. The enquiry officer filed a report on 28.09.2020. Based on the
enquiry report, the present show cause notice dated 10.11.2020 has been
served to the petitioner. According to the petitioner, the second respondent
has not decided the issue independently and simply accepted the findings of
the enquiry officer and issued the show cause notice. Hence, the impugned
show cause notice is predetermined.
6. At this juncture, it is worthwhile to point out that, a Division Bench
of this court vide judgment dated 18.04.2017 passed in W.A.Nos.702 & 703
of 2016 ( Additional Director General Vs. M.Rathakrishnan) [In the said
judgment myself (DKKJ) is one of the members] , held as follows.
13. Further, relying on the decision in Oryx Fisheries Private Limited
versus Union of India reported in 2011 (266) E.L.T. 422 (S.C.), the
Writ Court has set aside the Show Cause Notices issued against the
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W.P.No.4388 of 2022
writ petitioners/respondents herein and allowed the Writ Petitions
preferred by the respondents.
14. After going through impugned notice and the order of the Writ
Court, and after considering the rival submissions, the contention of
the appellants that the first appellant is only an investigating authority
whose role ends upon issuing a show cause notice on conclusion of
investigation and he is not the adjudicating authority and therefore,
the words used in the show notices such as concluded, revealed etc.,
would not prejudice the case of the respondents, has to be
countenanced and such words should be read in entirety. In the
instant case, the investigating authority/first appellant is confined to
investigating the case and submitting a report to the adjudicating
authority and the first appellant cannot adjudicate the case as
contemplated under the Act. As such, the investigating authority and
the adjudicating authority are two different persons. Therefore, the
decision relied on by the Writ Court in the case of Oryx Fisheries
Private Limited versus Union of India reported in 2011 (266) E.L.T.
422 (S.C.), wherein the investigating authority and the adjudicating
authority was one and the same person, is not applicable to the facts
of the present case. Therefore, the contention of the respondents
herein that the investigating authority has pre-determined and pre-
judged cannot be accepted. Hence, the grounds raised by the writ
petitioners/respondents are liable to be rejected. Further, the
respondents have challenged the show cause notice and whether the
same can be examined in the Writ Petitions has to be considered by
this Court in the light of the following decision.
15. Moreover, a Writ against a show cause notice is not maintainable.
(I) In Union of India v. Kunisetty Satyanarayana,
reported in AIR 2007 SC 906, the Hon'ble Apex Court,
at paragraphs 13, 14 and 16, held as follows:
"13. It is well settled by a series of decisions of this
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W.P.No.4388 of 2022
Court that ordinarily no writ lies against a charge
sheet or show-cause notice vide Executive Engineer,
Bihar State Housing Board v. Ramdesh Kumar Singh
and Ors. [JT 1995 (8) SC 33], Special Director and
Anr. v. Mohd. Ghulam Ghouse and Anr. [AIR 2004 SC
1467], Ulagappa and Ors. v. Divisional Commissioner,
Mysore and Ors. [2001(10) SCC 639], State of U.P. v.
Brahm Datt Sharma and Anr. [AIR 1987 SC 943] etc.
14. The reason why ordinarily a writ petition should
not be entertained against a mere show-cause notice or
charge-sheet is that, at that stage, the writ petition may
be held to be premature. A mere charge-sheet or show-
cause notice does not give rise to any cause of action,
because it does not amount to an adverse order which
affects the rights of any party unless the same has been
issued by a person having no jurisdiction to do so. It is
quite possible that after considering the reply to the
show-cause notice or after holding an enquiry the
authority concerned may drop the proceedings and/or
hold that the charges are not established. It is well
settled that a writ lies when some right of any party is
infringed. A mere show-cause notice or charge-sheet
does not infringe the right of any one. It is only when a
final order imposing some punishment or otherwise
adversely affecting a party is passed, that the said party
can be said to have any grievance.
16. No doubt, in some very rare and exceptional cases
the High Court can quash a charge-sheet or show
cause notice if it is found to be wholly without
jurisdiction or for some other reason if it is wholly
illegal. However, ordinarily the High Court should not
interfere in such a matter."
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W.P.No.4388 of 2022
(ii) In Ministry of Defence vs. Prabhash Chandra
Mirdha, reported in 2012 (11) SCC 565, the Hon'ble
Apex Court has held as follows:-
''Ordinarily a writ application does not lie against a
chargesheet or show cause notice for the reason that it
does not give rise to any cause of action. It does not
amount to an adverse order which affects the right of
any party unless the same has been issued by a person
having no jurisdiction/competence to do so. A writ lies
when some right of a party is infringed. In fact, charge
sheet does not infringe the right of a party. It is only
when a final order imposing the punishment or
otherwise adversely affecting a party is passed, it may
have a grievance and cause of action. Thus, a
chargesheet or show cause notice in disciplinary
proceedings should not ordinarily be quashed by the
Court.''
16. ...
17. In the light of the above discussions and decisions, we set aside the
order passed by the Writ court and the impugned show cause notice
issued by the first appellant is sustained with liberty to the respondents
to submit their reply to the show cause notice dated 8.5.2015 within a
period of six weeks from the date of receipt of a copy of this order and
on receipt of the said reply, the first appellant is directed to consider
the same on merits and in accordance with law. Accordingly, the Writ
Appeals are allowed. No order as to costs. Connected Miscellaneous
Petitions are closed
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W.P.No.4388 of 2022
7. In the light of the above decisions, it is clear that the impugned
show cause notice has been issued to provide an opportunity to the petitioner
to put forth his case and he is at the liberty to raise his all objections.
Therefore, the impugned show cause notice cannot be termed as
predetermination as stated by the petitioner and the writ petition has no
merits. However, it is open to the petitioner to submit his explanation or
representation to the authorities concerned on the show cause notice, within
two weeks from the date of receipt of a copy of this order, failing which, it is
for the respondents to pass appropriate orders.
8. With the above observations, this writ petition is dismissed. No
costs. Consequently, connected writ miscellaneous petitions are closed.
02.03.2022
Note: Issue order copy on 15.06.2022
Index : Yes / No
Internet : Yes / No
mst
To
1.The Principal Secretary/Commissioner,
Commercial Taxes, Ezhilagam,
Chepauk, Chennai – 600 005.
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W.P.No.4388 of 2022
2.The Additional Commissioner (Administration),
Office of Commissioner of Commercial axes,
Ezhilagam, Chepauk, Chennai – 600 005.
3.The Deputy Commissioner (ST) (RAIL),
O/o. Joint Commissioner (ST),
Salem State Taxes Division,
Integrated Commercial Taxes Building,
Pitchards Road, Hasthampatti, Salem.
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W.P.No.4388 of 2022
D.KRISHNAKUMAR. J
mst
W.P.No.4388 of 2022
02.03.2022
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