IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.8.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.34995 of 2004 P.Ramasamy ..Petitioner vs. 1. The Secretary to Government, Agricultural Department, Fort St. George, Chennai-600 009. 2. The Director of Agriculture, Marketing, Tamil Nadu Thiru-Vi-Ka Industrial Estate, Guindy, Chennai-600 032. 3. The Principal Accountant General, Anna Salai, Teynampet, Chennai-600 018. ..Respondents Writ Petition is filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus, calling for records relating to the proceedings of the first respondent dated 18.3.2004 in K.No.3188/AM.11/2003 and quash the same consequently to direct the respondents 1 to 3 to award the eligible retirement benefits with interest of 18% per annum from the date of the retirement of the petitioner dated 30.9.1992 after adjusting the amount already paid to the petitioner. For Petitioner : Mr.Thirumoorthy For Respondents : Mr.T.Seenivasan, Additional Government Pleader. O R D E R This Writ Petition is filed praying to issue a writ of certiorarified mandamus, calling for records relating to the proceedings of the first respondent dated 18.3.2004 in https://hcservices.ecourts.gov.in/hcservices/ K.No.3188/AM.11/2003, quash the same and consequently direct the respondents 1 to 3 to award the eligible retirement benefits with interest at 18% per annum from the date of the retirement of the petitioner (i.e.) 30.9.1992 after adjusting the amount already paid to the petitioner. 2. Petitioner is a senior citizen. He was allowed to retire on 30.9.1992 by G.O.Ms.599 Agriculture(AMI) Department dated 29.9.1992. At that time he was the Secretary, Periyar Market Committee. 3. Petitioner joined the services of the Agriculture Marketing Department in the year 1958 as Supervisor. He was promoted as Superintendent in the year 1959 and Secretary in the year 1970. It appears that initially on 24.4.1990, a charge memo was issued under Rule 17(a) of the Tamil Civil Services (Discipline and Appeal) Rules, 1955 and the charges are as follows:- (i) Petitioner selected an unsuitable site for construction of office building for the regulated market at Kumbakonam. (ii) Petitioner did not take note of the advise of the Superior Officers. (iii) Petitioner disobeyed the order of the superiors. Petitioner submitted an explanation dated 8.5.1990 which was not accepted and it appears that an order was passed withholding a sum of Rs.4,500/- from the terminal benefits and such orders was passed on 16.7.1992 in Proceedings No.VI/35223/89. The order dated 16.7.1992 was reviewed by the Government under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and set aside by the proceedings dated 25.9.1992. Further action was proposed. On the same day, viz., on 25.9.1992 charges in terms of Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal Rules), 1955 was issued. Petitioner was called upon to give his explanation. 4. In the meanwhile on 30.9.1992, petitioner was allowed to retire from service pursuant to G.O.Ms.No.599 dated 29.9.1992. The G.O.Ms.No.599 dated 29.9.1992 stated that the petitioner is allowed to retire on attaining the age of superannuation without prejudice to the disciplinary proceedings pending against him. It is stated that the petitioner submitted his explanation on 12.10.1992. Enquiry was conducted and the enquiry officer submitted a report. The gist of the charge and the enquiry report is as follows:- Charge 1:- "That you Thiru P.Ramasamy, formerly Secretary (Retd.) Thanjavur Market Committee selected a site for the construction of office https://hcservices.ecourts.gov.in/hcservices/ building for the Regulated Market at Kumbakonam which was not proper and thereby caused loss to the Market Committee." Finding in respect of Charge No.1:- "Since the loss caused to the Thanjavur Market Committee by way of replacement of the High Tension wires to the tune of Rs.8,850/- has been made good by the concerned Asst. Executive Engineer and obviously it is the primary responsibility of the constructing Engineer i.e., Asst. Executive Engineer of Tamilnadu State Agricultural Marketing Board to ensure that the High Tension wires were replaced before commencement of the work, hold the charge as not proved." Charge No.2:- "that you did not take note of the advice given by your superior officers in the selection of site." Finding in respect of charge No.2:- "However, it is seen from the perusal of the records file No.D1.38446/85 and D1.20451/87 that there are no material evidence to show that any specific instructions or advice were given by superior officers to Thiru P.Ramasamy, the accused officer in the selection of site. The charge is also not specific as to which of the advice given by the superior officers to Thiru P.Ramasamy, then Secretary were not taken note of by him. Hence, this charge is held as not proved." Charge No.3:- "that you disobeyed the orders of your superior officers." Findings in respect of charge No.3:- "In his explanation to the above charge Thiru P.Ramasamy, formerly Secretary (Retd.) Thanjavur Market Committee has stated that he had never https://hcservices.ecourts.gov.in/hcservices/ disobeyed the orders of his superior Officers but he had acted in accordance with the advice and in consultation with his superior officers and in the interests of the committee only and hence he denied the charge. This charge is vague and not specific. It does not indicate as to which orders of the superiors were disobeyed by Thiru P.Ramasamy, the accused officer. Hence, this charge is held as not proved." 5. On receipt of the enquiry report dropping of the charges, the Government in the impugned proceedings dated 18.3.2004 differed with the finding of the enquiry officer and issued the impugned show-cause notice dated 18.3.2004 calling for explanation from the petitioner and as to why appropriate orders should not be passed against the petitioner. The reason given in the show-cause notice is that even an illiterate person will know that under a high tension wire a coconut tree or any other tree cannot be planted. Further no crop cultivation will be taken up for the reason that the trees or the crop when they grow will touch the high tension wire. Therefore, by selecting the site under an high tension wire, the petitioner has not taken reasonable care and caution and it can be treated as an omission on his part. Petitioner might have noticed the high tension wire while he was inspecting the site, but he ignored the same. As regards the charge of disobeying the direction or orders of superior, no reason has been given in the show-cause notice. In paragraph 5 of the show-cause notice, it has been specifically stated that the Government has disagreed with the finding of the enquiry officer on all three charges and holds that all three charges are proved. Thereafter, an explanation is sought for from the petitioner. Petitioner is further aggrieved as provisional pension alone is paid and the regular pension is denied stating that the enquiry is pending. On this premise the present writ petition has been filed. 6. The contention on behalf of the writ petitioner challenging the show-cause notice differing with favourable finding of the enquiry officer is as follows:- (i) The reason given by the Government to disagree with the findings of the enquiry officer is totally perverse, arbitrary and capricious. (ii) The first charge is relating to alleged loss caused to the Marketing Committee. As per the enquiry officer's finding no loss has been caused to the Marketing Committee. The finding of https://hcservices.ecourts.gov.in/hcservices/ the enquiry officer has already been set out above. There is no loss on account of the petitioner. (iii)There is no reason given in the show-cause notice as to which order of the superior has been disobeyed by the petitioner. There is no statement in the show-cause notice as to how the petitioner misconducted himself. There is no detail as to what is the order of the superior, which was disobeyed. This is also the finding of the enquiry officer. (iv) In this case, para 5 of the show-cause notice clearly holds that all the three charges have been proved. Having come to the conclusion that all the three charges are proved, there is no purpose in replying to the show-cause notice. The departmental proceedings is a mere formality as the issue is prejudged. (v) Though the petitioner had challenged the 17(b) charge memo unsuccessfully before the Tribunal and failed before the Division Bench of this Court, he submits that the respondents have not complied with the mandatory requirement of Rule 56(1)(c) (iv) of the Fundamental Rules while pursuing the departmental proceeding after retirement. Therefore, the entire proceeding is vitiated as it is contrary to law and has to be set aside. 7. No counter-affidavit has been filed by the respondent Department. However, the learned Additional Government Pleader states that the petitioner has willingly participated in the departmental proceedings and therefore, cannot now raise a technical plea and challenge the show-cause notice. Petitioner can file a reply to show-cause notice and establish his innocence and prove that the action taken is in good faith without causing any loss. 8. At the outset, the show-cause notice issued differing with enquiry officer's report on the face of it has to be set aside only on the ground that the government has already prejudged the issue and has come to conclusion in paragraph 5 that the petitioner is guilty of the charges alleged. There is no scope for the petitioner to submit his explanation to disprove the charges when the Government has already decided that the petitioner is guilty of all the charges. On this issue itself, the show-cause notice deserves to be set aside. 9. The petitioner was allowed to retire on 30.9.1992 in G.O.Ms.No.599 dated 29.9.1992. The only statement in the G.O.Ms.No.599 is that the petitioner is allowed to retire without prejudge to the disciplinary proceedings pending against him. It is not in dispute that the petitioner is a government servant in the superior service. He was allowed to retire on superannuation. This issue is covered by the Chapter IX, Rule 56(1)(c) of the Tamil Nadu Fundamental Rules. While applying the Rule 56, to the case of the petitioner, against whom the Government has initiated an enquiry on https://hcservices.ecourts.gov.in/hcservices/ grave charges and is pending, the provision of Rule 56(1)(c)(i) to (iv) will come into operation and it reads as follows:- "56.(1) Retirement on Superannuation: - (a) x x x (b) x x x (c) Notwithstanding anything contained in clause (a), a Government servant who is under suspension, (i) on a charge of misconduct; or (ii) against whom an enquiry into grave charges of criminal misconduct or allegations of criminal misconduct, is pending; or (iii) against whom an enquiry into grave charges is contemplated or is pending; or (iv) against whom a complaint of criminal offence is under investigation or trial, shall not be permitted by the appointing authority to retire on his reaching the date of retirement, but shall be retained in service until the enquiry into the charge of misconduct or criminal misconduct or the enquiry into allegations of criminal misconduct or the enquiry into contemplated charges or disciplinary proceeding taken under rule 17(c) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or rule 3(c) of the Tamil Nadu Police Subordinate service (Discipline and Appeal) Rules, as the case may be, in respect of item (iv) above is concluded and a final order passed thereon by the competent authority or by any higher authority." In this case, there is no order retaining the petitioner in service pending enquiry into the grave charges issued on 25.9.1992 in terms of Section 17(b) of the Tamil Nadu Civil Supplies (Discipline and Appeal) Rules. Respondents have not followed the mandatory provision of the above said rules. Therefore, the entire proceedings stands vitiated and invalid and the show-cause notice will be without jurisdiction. This view is fortified by the Division Bench decision of this court in State of Tamil Nadu – vs. R.Karuppiah reported in (2005)2 MLJ 555 following the earlier decision in N.M.Somasundaram – https://hcservices.ecourts.gov.in/hcservices/ vs. - The Director General of Police, Madras reported in 1997 W.L.R. 120. 10. A Division Bench of this Court by order dated 23.7.2003 in W.P.No.11087 of 2003 set aside the charge memo and proceedings initiated after the person concerned was allowed to retire without following the mandatory provision of the Rule 56(1)(c) of the Fundamental Rules. 11. In the present case also, the show-cause notice proceedings consequent to the 17(b) charge memo cannot be sustained as the respondents have not passed orders in terms of Rule 56(1)(c) of the Fundamental Rules. The G.O.Ms.No.599 dated 29.9.1992, allowing the petitioner to retire from service merely states that it is issued without prejudice to the disciplinary proceedings. There is no specific order retaining the petitioner in service. The requirement in law (i.e.) the rules have not been complied with. Hence, the proceedings impugned is liable to be set aside as invalid and without jurisdiction. 12. Even on going through the imputation contained in the show- cause notice which is under challenge, on the face of it, the reason given in the show-cause notice to differ with the finding of the enquiry officer seems illogical and is also without application of mind to the nature of charge alleged against the petitioner. The first charge is causing loss to the Marketing Committee. The enquiry officer has found that the loss has been made good by the Assistant Executive Engineer of the Board and therefore, there is no loss caused to the Marketing Committee much less by the petitioner. Whereas the government proceeds on the basis that the petitioner failed to inspect the site properly and notice the high tension wire which even an illiterate person will do. The charge now stated against the petitioner, is omission which is different from the 17(b) charge No.1. The first charge against the petitioner does not survive as there is no loss. 13. Incidentally, it is not clear on what basis the show-cause notice states that under a high tension wire, no crop will grow as it will touch the high tension wire. This court is at loss to notice that the officer who issued the impugned proceedings has not taken care to visit the rural areas of our State, where large extent of land are cultivated, over which high tension wires run crisscross. No crop will grow upto the height of the high tension wire. It is only exposes the misconception in the mind of the authority who issued such proceedings without realising the ground realities. 14. In the impugned show-cause notice there is nothing to show which order of the superior authority was disobeyed. Without reference to any specific order of the said authority, the decision of the respondent government that the charge Nos.2 and 3 are also https://hcservices.ecourts.gov.in/hcservices/ proved, only shows the callous and arbitrary manner in which the issue has been dealt with by the authority. 15. This court finds that the show-cause notice proceedings issued in this case is totally arbitrary and without application of mind and without jurisdiction as it has been issued against a person who has been allowed to retire without passing an order in terms of Rule 56(1)(c). It is issued without any basis and it is a mere harassment. The petitioner cannot be denied the full retirement benefit. 16. No doubt at the stage of show-cause notice, court will refrain from interfering with the same. However, in this case, the show-cause notice proceedings initiated is contrary to the Fundamental Rules, therefore, without jurisdiction, besides, being arbitrary and capricious. Further, the show-cause notice has prejudged the issue by holding the petitioner guilty at para 5. In this circumstances, this court has no other option except to set aside the said show-cause notice that is challenged. In this regard the following decision will be relevant:- Siemens Ltd., - vs. - State of Maharashtra reported in 2007 (1) CTC 844 wherein the Apex Court held in paragraphs 10 and 11 as follows:- "10. Although ordinarily a Writ Court may not exercise its discretionary jurisdiction in entertaining a Writ Petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr., AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, 2004(3) SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006(12) SCALE 262, but the question herein has to be considered from a different angle, viz., when a notice is issued with pre-meditation, a Writ Petition would be maintainable. In such an event, even if the Courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. See K.I.Shephard and Others v. Union of India and Others, 1987(4) SCC 431 : AIR 1988 SC 686. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. https://hcservices.ecourts.gov.in/hcservices/ 11. The said principle has been followed by this Court in V.C.Banaras Hindu University and Ors. v. Shrikant, 2006(6) SCALE 66, stating: "The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case." In K.I.Shephard & Ors., etc. etc. v. Union of India & Ors. AIR 1988 SC 686, this Court held : "... It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose."" In this case also the authorities have prejudged the guilt of the petitioner. 17. In the result, the impugned show-cause notice calling upon the petitioner to participate in the enquiry differing with the report of the enquiry officer is set aside. The petitioner will be entitled to all service benefits including full pension. It is stated that the petitioner is now 75 years old. Respondent or the appropriate authority in-charge of payment of pension shall ensure that the pensionary benefits and arrears if any has to be settled within a period of four weeks from the date of receipt of a copy of this order. Writ petition is ordered as above. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ts To 1. The Secretary to Government, Agricultural Department, Fort St. George, Chennai-600 009. 2. The Director of Agriculture, Marketing, Tamil Nadu Thiru-Vi-Ka Industrial Estate, Guindy, Chennai-600 032. https://hcservices.ecourts.gov.in/hcservices/ 3. The Principal Accountant General, Anna Salai, Teynampet, Chennai-600 018. + 1 c.c. to Mr. P.I. Thirumoorthy, Advocate. S.R.No.37359. + 1 c.c. to The Government Pleader. S.R.No.37170. W.P.No.34995 of 2004 AKR (CO) GSK 03.09.2009. https://hcservices.ecourts.gov.in/hcservices/