Madras High Court
K.Chindhanai Selvam vs The Secretary To Government on 27 January, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
W.P No.2198 of 2023
K.Chindhanai Selvam Petitioner
vs.
1.The Secretary to Government,
Commercial Taxes and Registration Department,
Government of Tamil Nadu,
Fort St. George, Chennai – 600 009.
2.The Inspector General of Registration,
100, Santhome High Road,
Chennai. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandamus, directing the respondents to pass final
orders on the departmental proceedings initiated against the Petitioner vide
revised charge memo No.50605 /V3 / 2014 dated 18.12.2014(forwarded vide
order dated 23.01.2015 by the 2nd respondent) within a time frame to be
fixed by this Honble Court and Consequently direct the respondents to permit
the Petitioners to retire from service with all pensionary benefits.
For Petitioner : Mr.V.Vijayashankar
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2
For Respondents : Mr.D.Ravichander
Special Government Pleader
ORDER
This writ petition has been filed for issue of writ of mandamus
directing the respondents to pass final orders on the departmental
proceedings initiated against the petitioner through Charge Memo dated
18.12.2014, within a time frame fixed by this Court.
2.Heard Mr.V.Vijayashankar, learned counsel appearing on behalf of
the petitioner and Mr.D.Ravichander, learned Special Government Pleader
appearing on behalf of the respondents.
3.The petitioner had already filed W.P.(MD)No.21224 of 2014
challenging the impugned Charge Memo dated 18.12.2014. The writ petition
was taken up for final hearing by this Court and the following order was
passed:
3.Annexure-II to the charge memo provides list of
documents and the allegations set out in the charge memo are
undoubtedly serious in nature, warranting a detailed enquiry.
Thus, there is no infirmity in the charge memo and the writ
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petitioner instead of participating in the process of enquiry to
establish his innocence or otherwise, has chosen to file this
Writ Petition, mainly on the ground that he was performing the
duties and responsibilities, as a quasi judicial authority and
therefore, no charge memo can be issued against him.
4.This Court as well the Hon'ble Apex Court repeatedly
held that the quasi judicial authorities are also amenable to
departmental disciplinary proceedings. Even while functioning
as quasi judicial authority, if there is any dereliction,
negligence, misconduct or financial loss are identified, the
competent authorities are empowered to conduct an enquiry
and cull out the truth, regarding the incident and thereafter,
take a decision on merits and in accordance with law. There is
no absolute exemption for the quasi judicial authorities from
the departmental disciplinary proceedings. Thus, the ground
raised that the writ petitioner was performing duties and
responsibilities of quasi judicial authority, is of no avail to him
5.The writ petitioner was holding the responsible post in
the cadre of District Registrar. Thus, he has to perform his
duties and responsibilities with utmost care and devotion of
duty. During the course of the performance, if any negligence,
misconduct and financial loss are identified, then all suitable
actions are to be initiated against him. The legal principles in
this regard are settled by the Hon'ble Apex Court in many
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decisions.
6.Under these circumstances, this Court is of the
considered opinion that the present Writ Petition filed
challenging the charge memo, cannot be entertained. The writ
petitioner has to participate in the process of enquiry and
establish his innocence or otherwise by producing document
and adducing evidence, if required.
7.Therefore, this Court is of the opinion that there is no
infirmity in the charge memorandum framed against the writ
petitioner. A charge memo can be challenged on a limited
ground and a judicial review against the charge memo is
certainly limited. A charge memo can be challenged on limited
grounds and the Court can entertain a writ petition on
exceptional circumstances. A charge memo can be challenged,
if the same was issued by an incompetent authority having no
jurisdiction, an allegation of mala fides is raised if the same is
in violation of statutory rules. Even in case of raising the
allegation of mala fides, the authority against whom such an
allegation is raised, has to be impleaded as a party respondent
in the writ proceedings in his personal capacity. In the absence
of any such legal grounds, no charge memo can be entertained
by way of writ petition.
8.Intermittent intervention in the disciplinary
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proceedings is not preferable. However, only on exceptional
circumstances, this Court can issue a direction against the
proceedings and not in a routine manner. Mere issuance of a
call letter to the writ petitioner, directing him to participate in
the domestic enquiry will not give any cause of action to move
this writ petition under Article 226 of the Constitution of India.
Thus, the writ petition is absolutely misconceived and the
grounds raised in this writ petition cannot be considered.
9.The Honourable Supreme Court of India in Paragraph
No.6 of the case of Union of India and others Vs. Upendra
Singh, reported in (1994) 3 SCC 357 has held that:-
“..In the case of charges framed in a disciplinary
inquiry the tribunal or court can interfere only if on the
charges framed (read with imputation or particulars of
the charges, if any) no misconduct or other irregularity
alleged can be said to have been made out or the
charges framed are contrary to any law. At this stage,
the tribunal has no jurisdiction to go into the correctness
or truth of the charges. The tribunal cannot take over the
functions of the disciplinary authority. The truth or
otherwise of the charges is a matter for the disciplinary
authority to go into. Indeed, even after the conclusion of
the disciplinary proceedings, if the matter comes to
court or tribunal, they have no jurisdiction to look into
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the truth of the charges or into the correctness of the
findings recorded by the disciplinary authority or the
appellate authority as the case may be. The function of
the court/tribunal is one of judicial review, the
parameters of which are repeatedly laid down by this
Court. It would be sufficient to quote the decision in H.B.
Gandhi, Excise and Taxation Officer-cum-Assessing
Authority, Kamal v. Gopi Nath & Sons. The Bench
comprising M.N. Venkatachaliah, J. (as he then was) and
A.M. Ahmadi, J., affirmed the principle thus : (SCC p.
317, para 8) "Judicial review, it is trite, is not directed
against the decision but is confined to the
decisionmaking process. Judicial review cannot extend
to the examination of the correctness or reasonableness
of a decision as a matter of fact. The purpose of judicial
review is to ensure that the individual receives fair
treatment and not to ensure that the authority after
according fair treatment reaches, on a matter which it is
authorized by law to decide, a conclusion which is
correct in the eyes of the Court. Judicial review is not an
appeal from a decision but a review of the manner in
which the decision is made. It will be erroneous to think
that the Court sits in judgment not only on the
correctness of the decision making process but also on
the correctness of the decision itself."
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10.In the case of Secretary, Ministry of Defence and
Others Vs. Prabhash Chandra Mirdha [(2012) 11 SCC 565],
the Hon'ble Apex Court of India has held as follows:-
“10.Ordinarily a writ application does not lie
against a charge-sheet 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 charge-
sheet or show-cause notice in disciplinary proceedings
should not ordinarily be quashed by the Court.
11.In State of Orissa V. Sangram Keshari Misra
(SCC pp.315-16, para 10) this Court held that normally
a charge-sheet is not quashed prior to the conducting of
the enquiry on the ground that the facts stated in the
charge are erroneous for the reason that to determine
correctness or truth of the charge is the function of the
disciplinary authority.
12.Thus, the law on the issue can be summarised
to the effect that the charge-sheet cannot generally be a
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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
creates prejudice to the delinquent employee. Gravity of
alleged misconduct is a relevant factor to be taken into
consideration while quashing the proceedings.”
11.In the case of Union of India vs. Kunishetty
Satyanarayana [(2006) 12 SCC 28], it was held that:-
“13.It is well settled by a series of decisions of
this Court that ordinarily no writ lies against a
chargesheet or show-cause notice vide Executive
Engineer, Bihar State Housing Board V. Ramesh Kumar
Singh, Special Director V. Mohd. Ghulam Ghouse,
Ulagappa V. Divisional Commr., Mysore, State of U.P. V.
Brahm Datt Sharma, etc.
14.The reason why ordinarily a writ petition
should not be entertained against a mere show-cause
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notice or charge-sheet is that at that stage the writ
petition may be held to be premature. A mere
chargesheet 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.”
12.The writ petitioner further states that he was
functioning as the Sub-Registrar and exercised the power,
which is quasi judicial in the nature. Therefore, the decisions
taken in his capacity as a quasi judicial authority cannot be
questioned nor disciplinary proceedings can be initiated. Such
a concept, or idea mooted out by the writ petitioner cannot be
accepted by this Court. The writ petitioner is a Government
Officer and he is bound by the Rules and Regulations as well
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as the Service conditions. The writ petitioner being a
Government Employee, the Government Servants Conduct
Rules (Discipline and Appeal) are applicable to the writ
petitioner. Large number of public servants are exercising the
powers under various Acts and Rules enacted by the
Parliament and State Legislature. While implementing the
provisions of the Act or Rules, if they have committed any
irregularities, illegalities or misconducts certainly they are
liable for prosecution and for disciplinary proceedings. The
Quasi Judicial Authority, while exercising the powers are
expected to be prudent and complete devotion to duty. The
public servants are expected to exercise their powers with
utmost care and with integrity. If there is any misconduct, they
are certainly liable for departmental disciplinary proceedings.
The nature of misconducts are very well enumerated in the
Government Servants Conduct Rules. Such being the concept,
the Government Officials cannot plead that the order passed in
their capacity as Quasi Judicial Authority are exempted from
initiation of disciplinary proceedings. Such a plea made by the
writ petitioner is unacceptable and the Government Employees
cannot escape from the provisions of the Discipline and Appeal
Rules. The other grounds raised in these writ petitions for
quashing of the charge memo are neither candid nor
convincing. This Court is not inclined to consider the case on
merits and it is left open to the competent authorities to
consider all the materials available on records and pass final
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orders in the disciplinary proceedings, as early as possible,
without any further delay.
13.In respect of the charge against the quasi judicial orders,
the Hon'ble Supreme Court of India held in the case of Union
of India and others Vs. A.N.Saxena, reported in AIR 1992 SC
1233 and the relevant paragraph Nos.6 and 8 are extracted
hereunder:
“6.In the first place, we cannot, but confess out
astonishment at the impugned order passed by the
tribunal. In a case like this the tribunal, we feel, should
have been very careful before granting stay in a
disciplinary proceeding at an interlocutory stage. The
imputations made against the respondent were extremely
serious and the facts alleged, if proved, would have
established misconduct and misbehaviour. It is
surprising that without even a counter being filed, at an
interim stage, the tribunal without giving any reasons
and without apparently considering whether the
memorandum of charges deserved to be enquired into or
not, granted a stay of disciplinary proceedings as it has
done. If the disciplinary proceedings in such serious
matters are stayed so lightly as the tribunal appears to
have done, it would be extremely difficult to bring any
wrong-doer to book. We have, therefore, no hesitation in
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setting aside the impugned order of the tribunal and we
direct that the disciplinary proceedings against the
respondent in terms of the charge-sheet dated March 13,
1989 shall be proceeded with according to law. In fact,
we would suggest that disciplinary proceedings should
be proceeded with as early as possible and with utmost
zeal.
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 judicial or quasi-judicial
proceedings is not correct. It is true that when an officer
is performing judicial or quasijudicial 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
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oblige himself or unduly favour one of the parties or an
improper motive there is no reason why disciplinary
action should not be taken.”
14.In the case of Union of India and Others Vs.
K.K.Dhawan, reported in (1993) 2 SCC 56, His Lordship
Justice S.Mohan, while speaking on behalf of the Hon'ble
Three Judges Bench of the Supreme Court of India held as
under:
“22.The Tribunal has chosen to rely on Civil
Appeal Nos. 4986- 87/90. The order in that case clearly
shows the ultimate conclusion was that the charge
framed against the delinquent officer had not been
established. In support of that conclusion, it was
observed as under "We are also of the view that the
action taken by the appellant was quasi-judicial and
should not have formed the basis of disciplinary action."
23.We do not think where to buttress the ultimate
conclusion, this observation was made, that could ever
be construed as laying down the law that in no case
disciplinary action could be taken if it pertains to
exercise of quasi-judicial powers.”
15.This dictum fully supports the stand of the appellant.
There is a great reason and justice for holding in such cases
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that the disciplinary action could be taken. It is one of the
cardinal principles of administration of justice that it must be
free from bias of any kind.
16.In view of the facts and circumstances, the writ
petitioner is at liberty to participate in the process of enquiry
and establish his innocence or otherwise. The competent
discipline authority must ensure that the departmental
disciplinary proceedings initiated against the writ petitioner is
concluded in all respects, within a reasonable period of time
without causing any undue delay. Long pendency of the
departmental disciplinary proceedings would also cause
prejudice to the interest of the employee. In the present case,
the writ petitioner had already attained the age of
superannuation, therefore, early disposal of the disciplinary
proceedings are certainly imminent.
17.Under these circumstances, the respondents are
directed to proceed with the enquiry and conclude the same in
all respects and pass final orders as expeditiously as possible.
However, such early disposal is subject to the condition that
the writ petitioner should also co-operate with the competent
authority for the disposal of the enquiry proceedings. In the
event of non cooperation on the part of the writ petitioner, the
same shall be recorded in the proceedings itself.
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4.The grievance of the petitioner is that in spite of a specific direction
given by this Court to complete the proceedings and pass final orders, as
expeditiously as possible, there has been absolutely no progress for more
than two years and hence, the present writ petition has been filed before this
Court.
5.The learned counsel for the petitioner submitted that already the
enquiry has been completed pursuant to the orders passed by this Court in
2019, October itself and what remains is the final order to be passed by the
2nd respondent.
6.In view of the above, there shall be a direction to the respondents to
pass final orders in the pending disciplinary proceedings, within a period of
three months from the date of receipt of copy of this order. It is made clear
that the petitioner will co-operate for the completion of the proceedings,
within the time limit fixed by this Court without adopting any dilatory
tactics. If the final order is not passed within three months as fixed by this
Court, the entire disciplinary proceedings against the petitioner will stand
lapsed and thereafter, the petitioner will be entitled for all the consequential
benefits.
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7.This writ petition is disposed of with the above direction. No Costs.
27.01.2023
Index : Yes/No (3/3)
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ssr
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To
1.The Secretary to Government,
Commercial Taxes and Registration Department,
Government of Tamil Nadu,
Fort St. George, Chennai – 600 009.
2.The Inspector General of Registration,
100, Santhome High Road,
Chennai.
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N. ANAND VENKATESH, J.
ssr
W.P No.2198 of 2023
27.01.2023
(3/3)
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