Madras High Court
D.Shanmugasundram vs The Deputy Inspector General on 11 April, 2023
W.A.No.60 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.04.2023
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A. No.60 of 2023
and
C.M.P. No.558 of 2023
D.Shanmugasundram ...Appellant
Vs.
1.The Deputy Inspector General
of Registration,
Cuddalore.
2.The District Registrar,
Chidhambaram,
Cuddalore District.
3.The District Registrar(Audit)
Thanjavur. ...Respondents
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying to
set aside the order dated 13.09.2022 made in W.P.No.15965 of 2017 on the
file of this Court and allow the writ appeal.
For Appellant : Mr.L.Chandrakumar for
Mr.Muthu Ganesa Pandian
1/16
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W.A.No.60 of 2023
For Respondents : Mr.C.Kathiravan,
Special Government Pleader
JUDGMENT
(Judgment of the Court was made by MOHAMMED SHAFFIQ, J.)
This Writ Appeal is filed against the order of the learned Single
Judge in W.P.No.15965 of 2017 dated 13.09.2022, insofar as the challenge
to the Charge Memo was rejected on the premise that, the writ petition
against Charge Memo ought not to be entertained.
2. Brief Facts:
The appellant was appointed as Junior Assistant in the year 1975 and
promoted to the post of Sub-Registrar, Grade-I during the year 1999. He
reached the age of Superannuation on 30.06.2017 A.N. While so, a Charge
Memo dated 16.06.2017 was issued against the appellant, 14 days prior to
his date of retirement. The allegation levelled against the appellant is that he
undervalued certain documents, which were presented for registration,
resulting in financial loss to the State Exchequer to the tune of
Rs.39,19,219/- (Rupees Thirty Nine Lakhs Nineteen Thousand Two
Hundred and Nineteen only). Details regarding the documents, which were
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W.A.No.60 of 2023
undervalued at the time of registration were set-out in the Annexure to the
Charge Memo furnished to the appellant.
3. The appellant herein challenged the Charge Memo by way of writ
petition in W.P.No.15965 of 2017 and the same came to be dismissed by the
learned Single Judge on the premise that the writ petition against Charge
Memo ought not to be entertained. The relevant portion of the order is
extracted hereunder:
"3. No writ against the charge memo is entertainable in a routine
manner. The writ against the charge memo is entertainable only on limited
grounds, if the charge memo is tainted with allegation of malafides or
issued by an incompetent authority having no jurisdiction. In all other
circumstances, the charged official has to defend his case by participating
in the enquiry. Thus, the Courts would not interfere with the process of
enquiry in a routine manner. The authorities on initiation of disciplinary
proceedings, must be allowed to proceed and conclude the same by
following the procedures as contemplated under the Discipline and
Appeal Rules. The scope of entertaining the writ petition against the
charge memo is certainly limited and judicial review can be exercised only
on exceptional circumstances, when the writ petitioner establishes the
legal infirmity for quashing the charge memo.”
Aggrieved by the same, the appellant preferred the present writ
appeal.
4. According to the learned counsel for the appellant, the challenge is
primarily on the ground that the learned Single Judge ought to have
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W.A.No.60 of 2023
entertained the writ petition for the following reasons:
a) That the alleged error in discharging quasi-judicial functions for
which the disciplinary proceeding initiated would not constitute
misconduct. In this regard, reliance was sought to be placed on the judgment
of the Hon'ble Supreme Court in the case Zunjarrao Bhikaji Nagarkar v.
Union of India, (1999) 7 SCC 409 (hereinafter referred to as "Nagarkar”),
to submit that every error of law in discharge of quasi-judicial function
would not constitute misconduct for it would then impinge upon the
independent functioning of quasi-judicial authorities.
b) That the Charge Memo is vague inasmuch as it does not even point
out any Government Order or Provisions which have been violated by the
appellant resulting in / causing loss to the Government, with an ulterior
motive.
c) The fact that no witnesses were examined is again indicative of the
fact that the initiation of major penalty proceedings against the appellant
invoking Rule 17(b) of the Tamil Nadu Civil Services (Disciplinary and
Appeal) Rules is not warranted.
d) That the Charge Memo has been issued only on the basis of local
audit remarks which by itself cannot be the basis for intiating disciplinary
proceeding.
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W.A.No.60 of 2023
e) That the appellant followed the instructions of the Inspector
General of Registration.
f) That the impugned proceeding having been inititated 4 years after
the alleged occurrence on the verge of the appellant's retirement is
unjustified and arbitrary.
5. To the contrary, it was submitted by the learned counsel for the
Respondents that the order of the learned Single Judge refusing to entertain
the writ petition does not warrant interference as it is settled that the writ
petition against Charge Memo ought not to be entertained as a matter of
routine except under exceptional circumstances such as the very initation of
the proceedings being bad for want of jurisdiction or the Charge Memo
being vague so as to render it manifestly arbitrary, which is not the case
here. Further, the submission of the learned counsel for the appellant that
the appellant cannot be made to suffer/ subject to disciplinary proceedings
for the alleged error of law/judgment in discharge of quasi-judicial function
is misconceived. Thus, according to the learned counsel, it would be
prudent exercise of discretion to practice restraint in respect of challenge to
Charge Memo under Article 226 of the Constitution of India and therefore,
prayed for dismissal for the writ appeal.
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W.A.No.60 of 2023
6. Heard both sides and perused the materials available on record.
7. We see no reason to interfere with the findings of the learned
Single Judge for the following reasons:
a. The challenge to the Charge Memo on the premise that the error of
law/judgment by an authority in exercise of quasi-judicial function cannot
be subject to disciplinary proceedings is misconceived and unsustainable.
The reliance on the judgment in the case of Nagarkar in support of the
above contention cannot be accepted, inasmuch as the judgment in
Nagarkar holding that every error of law/judgment committed in discharge
of quasi-judicial function would not constitute a charge of misconduct, to be
the basis for initiation of disciplinary proceedings, is contrary to the law laid
down by the Hon’ble Supreme Court in the case of Union of India v. K.K.
Dhawan, (1993) 2 SCC 56 (hereinafter referred to as "K.K.Dhawan”)
wherein while dealing with the question of disciplinary proceedings vis-a-
vis discharge of quasi-judicial function, reference was made to the earlier
judgment of the Hon'ble Supreme Court in the case of Union of India v.
A.N. Saxena, (1992) 3 SCC 12 wherein, it was held as follows:
"8. In our view, an argument that no disciplinary action can be
taken in regard to actions taken or purported to be done in the course of
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W.A.No.60 of 2023
judicial or quasi-judicial proceedings is not correct. It is true that when
an officer is performing judicial or quasi-judicial functions disciplinary
proceedings regarding any of his actions in the course of such proceedings
should be taken only after great caution and a close scrutiny of his actions
and only if the circumstances so warrant. The initiation of such
proceedings, it is true, is likely to shake the confidence of the public in the
officer concerned and also if lightly taken likely to undermine his
independence. Hence the need for extreme care and caution before
initiation of disciplinary proceedings against an officer performing
judicial or quasi-judicial functions in respect of his actions in the
discharge or purported to discharge his functions. But it is not as if such
action cannot be taken at all. Where the actions of such an officer indicate
culpability, namely, a desire to oblige himself or unduly favour one of the
parties or an improper motive there is no reason why disciplinary action
should not be taken.”
(emphasis supplied)
After quoting the above passage with approval, the Hon'ble Supreme
Court in K.K. Dhawan while dealing with errors in making assessment
resulting in loss to the exchequer, made it clear that mere discharge of quasi-
judicial function would not confer immunity from disciplinary proceedings
and proceeded to set out / laid down circumstances which would warrant
disciplinary proceedings even in respect of discharge of quasi-judicial
functions. The relevant portion of the said judgment is extracted hereunder :
"28. The legality of the orders with reference to the nine
assessments may be questioned in appeal or revision under the Act. But
we have no doubt in our mind that the Government is not precluded from
taking the disciplinary action for violation of the Conduct Rules. Thus, we
conclude that the disciplinary action can be taken in the following cases:
(i) Where the officer had acted in a manner as would reflect on his
reputation for integrity or good faith or devotion to duty;
(ii) if there is prima facie material to show recklessness or
misconduct in the discharge of his duty;
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W.A.No.60 of 2023
(iii) if he has acted in a manner which is unbecoming of a
Government servant;
(iv) if he had acted negligently or that he omitted the prescribed
conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however small the
bribe may be because Lord Coke said long ago “though the bribe may be
small, yet the fault is great”.
b. Importantly, subsequent to the judgment in the case of Nagarkar
the position has been clarified in the case of Union of India v. Duli Chand,
reported in (2006) 5 SCC 680 (hereinafter referred to as "Dulichand”),
wherein, it has been held that the judgment of the Hon’ble Supreme Court in
the case of K.K. Dhawan being a judgment of larger Bench of three Judges
would bind and the judgment in Nagarkar which is a judgment by a Bench
of two Judges would no longer be a good law. The following portion of the
judgment in the case of Dulichand is relevant and extracted hereunder:
"9. In our opinion, Nagarkar case (1999) 7 SCC 409 was contrary
to the view expressed in K.K. Dhawan case (1993) 2 SCC 56 . The
decision in K.K. Dhawan (1993) 2 SCC 56 being that of a larger Bench
would prevail. The decision in Nagarkar case (1999) 7 SCC 409 therefore
does not correctly represent the law. Inasmuch as the impugned orders of
the Tribunal and the High Court were passed on the law enunciated in
Nagarkar case (1999) 7 SCC 409 this appeal must be allowed. The
impugned decisions are accordingly set aside and the order of punishment
upheld.”
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W.A.No.60 of 2023
8. Though we find that the decision in the case of Nagarkar is applied
recently by a bench of two Judges of the Hon'ble Supreme Court in the case
of Krishna Prasad Verma v. State of Bihar, (2019) 10 SCC 640, however,
the decision in the case of Dulichand holding the decision in Nagarkar to be
not a good law, was not brought to the notice of the Hon'ble Apex Court.
Thus, it is evident that the judgment in the case of Nagarkar is not a good
law and cannot be relied upon and the decision in the case of K.K.Dhawan
would govern the question, as to whether it is permissible to initiate
disciplinary action in relation to discharge of quasi-judicial function.
9. It is thus clear that the quasi-judicial authority does not enjoy
absolute immunity from disciplinary action in respect of error in discharge
of quasi-judicial function. The exceptions have been carved out in K.K.
Dhawan wherein it has been clarified that the disciplinary proceeding could
be initiated even with reference to quasi-judicial function.
10. However, the question as to whether the present case falls within
the exceptions carved out requires enquiry / investigation of facts, an
excercise of which is alien to jurisdiction of this Court under Article 226 of
the Constitution of India. Thus, we are of the opinion that the order of the
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W.A.No.60 of 2023
learned Single Judge declining/ refusing to entertain the writ petition, is
sound exercise of discretion and does not warrant interference.
11. Secondly, the attempt made on the side of the appellant that the
Charge Memo is vague, is unsustainable. A mere reading of Charge Memo
discloses the delinquency and also sets out the documents in respect of
which or forming the basis for initiation of disciplinary proceedings as
would be evident from the following portions of the Charge Memo and its
annexure:
Extract from Charge Memo:
"jpU.j.rz;KfRe;juk;> rhh;gjpthsh; Mfpa jhq;fs; jQ;rhT+h;
gjpT khtl;lk; fUe;jl;lhd;Fb rhh;gjptfj;jpy; rhh;gjpthshhuhf
gzpGhpe;jNghJ 2013 k; Mz;Lf;fhd khh;r; fhyhz;L
Jiwj;jzpf;if mwpf;ifapd;gb jq;fshy; xU kidg;ghptpw;F
eph;zapf;fg;gl;l kidkjpg;G gjpTj;Jiwj;jiyth; mth;fspd;
Mizfis kPwp Fiwthd kjpg;gpy; kjpg;G eph;zak; nra;ag;gl;L>
mt;thW eph;zak; nra;j kidkjpg;G jtwhdJ vd jQ;rhT+h;
jzpf;if khtl;lg;gjpthsuhy; KbT nra;ag;gl;L
mk;kidg;ghptpy; gjpthd Mtzq;fs; Fwpj;J cWjp nra;ag;gl;l
,j;Jld; ,izg;gpy; Fwpg;gpl;Ls;s cs;jzpf;if Fwpg;Giu
,dq;fspd;gb &.39>19>219/- (&gha; Kg;gj;njhd;gJ yl;rj;J
gj;njhd;gjhapuj;J ,UEhw;W gj;njhd;gJ kl;Lk;) jhq;fs;
muRf;F tUtha; ,og;G Vw;gLj;jp cs;s{h;fs;. ,t;thW jhq;fs;
gjpTj;Jiwj;jiyth; mth;fspd; Mizfis kPwpAk;
muRg;gzpapy; ftdkpd;wpAk;> mrpuj;ijahfTk;> jtW nra;Ak;
cs;Nehf;NfhLk; nray;gl;L Kj;jpiu jPh;it kw;Wk; gjpTf; fl;lzk;
Mfpatw;wpy; muRf;F &.39>19>219/- (&gha; Kg;gj;njhd;gJ yl;rj;J
gj;njhd;gjhapuj;J ,UEhw;W gj;njhd;gJ kl;Lk;) tUtha; ,og;G
Vw;gLj;jpajd; %yk; muRf;F Vw;gl;l ,og;gpw;F nghWg;ghfp
jkpo;ehL muRg;gzpahsh; elj;ij tpjp 20(1)I kPwpAs;sPh;fs;. ”
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W.A.No.60 of 2023
Extract from Annexure:
,izg;G
jpU.j.rz;KfRe;juk;> fz;fhzpg;ghsh;> mry;
gj;jpug;gphpT> khtl;lg;gjpthsh; mYtyfk;> rpjk;guk; cs;jzpf;if
,og;gpdq;fs;
Nkyntsp fpuhkk;- nrse;jh;ah fhh;ld; kidg;gphptpy; gjpthd
Mtzq;fspd; %yk; cWjp nra;ag;gl;l ,og;G tptug;gl;bay;....
t. vz; rhh;gjptfk; ve;j ghfk; / Mtz FiwT FiwT $Ljy;
/ gjpT fhyhz;L ,dk; vz; Kj;jpiuj; gjpTf;
khtl;lk; Mz;L jPh;it fl;lzk;
1. fUe;jl;lhd; khh;r; 2013 ,dk; 837/2013 52486 7495 59981
(t.v
z;.7)
2. fUe;jl;lhd; khh;r; 2013 ,dk; 1413/2013 50300 7190 57490
(t.v
z;.7)
3. fUe;jl;lhd; khh;r; 2013 ,dk; 1414/2013 50290 7190 57480
(t.v
z;.7)
4. fUe;jl;lhd; khh;r; 2013 ,dk; 1415/2013 50290 7190 57480
(t.v
z;.7)
5. fUe;jl;lhd; khh;r; 2013 ,dk; 1516/2013 50300 7190 57490
(t.v
z;.7)
6. .... .... .... .... .... .... ....
7. fUe;jl;lhd; khh;r; 2013 ,dk; 414/20117 44030 6290 50320
(t.v
z;.7)
$Ljy; 3429161 490058 3919219
Thus, the above extract from the Charge Memo would reveal that the
submission that the Charge Memo is vague, is contrary to the material
available on record.
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W.A.No.60 of 2023
12. Finally, it was attempted to suggest that the Charge Memo is
liable to be set-aside on the ground of delay in initiation. This argument is
contrary to the settled position that mere delay in initiation of disciplinary
proceedings by itself would not be a ground to set-aside the disciplinary
proceeding. In this regard it may be relevant to refer to the judgment of the
Hon'ble Supreme Court in LIC v. A. Masilamani, (2013) 6 SCC 530 wherein
after referring to the judgments in State of U.P. v. Brahm Datt Sharma
(1987) 2 SCC 179, State of M.P. v. Bani Singh 1990 Supp SCC 738, Union
of India v. Ashok Kacker 1995 Supp (1) SCC 180, State of A.P. v. N.
Radhakishan (1998) 4 SCC 154, M.V. Bijlani v. Union of India (2006) 5
SCC 88, and Ministry of Defence v. Prabhash Chandra Mirdha (2012) 11
SCC 565, it was held as under:
“The court/tribunal should not generally set aside the
departmental enquiry, and quash the charges on the ground of delay in
initiation of disciplinary proceedings, as such a power is dehors the limits
of judicial review. In the event that the court/tribunal exercises such
power, it exceeds its power of judicial review at the very threshold.
Therefore, a charge-sheet or show-cause notice, issued in the course of
disciplinary proceedings, cannot ordinarily be quashed by the court. The
same principle is applicable in relation to there being a delay in
conclusion of disciplinary proceedings. The facts and circumstances of the
case in question have to be examined taking into consideration the
gravity/magnitude of charges involved therein. The essence of the matter
is that the court must take into consideration all relevant facts and to
balance and weigh the same, so as to determine if it is in fact in the
interest of clean and honest administration, that the judicial proceedings
are allowed to be terminated only on the ground of delay in their
conclusion.”
(emphasis supplied)
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13. It is trite law that Courts would be loathe in interfering with
disciplinary proceedings at the stage of Charge Memo, for the reasons that it
would be pre-mature and the rights of the delinquent are not adversely
affected at that stage. The delinquent on the other hand is provided with an
opportunity to submit his representation and wait for the decision of the
disciplinary authority, who may drop the proceedings and hold the charges
as not established. In this regard, it may be relevant to refer to the following
judgments:
a) Ministry of Defence v. Prabhash Chandra Mirdha, (2012) 11
SCC 565:
"8. The law does not permit quashing of charge-sheet in a routine
manner. In case the delinquent employee has any grievance in respect of
the charge-sheet he must raise the issue by filing a representation and
wait for the decision of the disciplinary authority thereon. In case the
charge-sheet is challenged before a court/tribunal on the ground of delay
in initiation of disciplinary proceedings or delay in concluding the
proceedings, the court/tribunal may quash the charge-sheet after
considering the gravity of the charge and all relevant factors involved in
the case weighing all the facts both for and against the delinquent
employee and must reach the conclusion which is just and proper in the
circumstance
..........
12. Thus, the law on the issue can be summarised to the effect that
the charge-sheet cannot generally be a subject-matter of challenge as it
does not adversely affect the rights of the delinquent unless it is
established that the same has been issued by an authority not competent to
initiate the disciplinary proceedings. Neither the disciplinary proceedings
nor the charge-sheet be quashed at an initial stage as it would be a
premature stage to deal with the issues. Proceedings are not liable to be
quashed on the grounds that proceedings had been initiated at a belated
stage or could not be concluded in a reasonable period unless the delay
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creates prejudice to the delinquent employee. Gravity of alleged
misconduct is a relevant factor to be taken into consideration while
quashing the proceedings.
(emphasis supplied)
b) Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28:
"12. In our opinion, the High Court was not justified in allowing
the writ petition.
13. It is well settled by a series of decisions of this Court that
ordinarily no writ lies against a charge-sheet or show-cause notice vide
Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh
(1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghouse (2004) 3
SCC 440, Ulagappa v. Divisional Commr., Mysore (2001) 10 SCC 639,
State of U.P. v. Brahm Datt Sharma (1987) 2 SCC 179.
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 petition lies when some right of
any party is infringed. A mere show-cause notice or charge-sheet does not
infringe the right of anyone. 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.
15. Writ jurisdiction is discretionary jurisdiction and hence such
discretion under Article 226 should not ordinarily be exercised by
quashing a show-cause notice or charge-sheet."
(emphasis supplied)
14. Thus, for all the above reasons, we are of the view that the order
of the learned Single Judge declining to entertain the writ petition against
Charge Memo is justified and does not warrant interference. The writ appeal
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stands dismissed. No costs. Consequently, connected miscellaneous petition
is closed.
15. However, it is to be noted herein that we have examined the above
issues and made all observations only as a prima facie view, for the limited
purpose of deciding the maintainability of the writ proceedings under
Article 226 of the Constitution of India. Therefore, we intend to make it
clear that the observations must not be understood as the expression of the
final view of this Court on the issues raised and the appellant is not
precluded from raising all grounds that may be available to him including
those raised in the writ petition/appeal, before the disciplinary authority. The
disciplinary authority shall decide the same, uninfluenced/ unobsessed by
any observations made in the writ petition/ appeal.
[R.M.D., J.] [M.S.Q., J.]
11.04.2023
Speaking (or) Non Speaking Order
Index : Yes/ No
Neutral Citation : Yes/ No
shk
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W.A.No.60 of 2023
R.MAHADEVAN, J.
AND
MOHAMMED SHAFFIQ, J.
Shk
To:
1.The Deputy Inspector General
of Registration,
Cuddalore.
2.The District Registrar,
Chidhambaram,
Cuddalore District.
3.The District Registrar(Audit)
Thanjavur.
W.A.No.60 of 2023
and
C.M.P. No.558 of 2023
11.04.2023
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