1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/08/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.9757 of 2011 N.Annamalai ... Petitioner Vs 1.The Government of Tamil Nadu, Rep. By its Secretary, Co-operative Department Fort St. George, Chennai. 2.The Registrar of Co-operative Societies, (Housing), Tirunelveli. 3.The Deputy Registrar of Co-operative Societies (Housing), Tirunelveli. 4.The Special Officer, Thoothukudi Melur Co-operative Housing Society, Thoothukudi. ... Respondents Prayer : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari to call for the records pertaining to charge memo issued by the third respondent in his proceedings in Na.Ka.3917/2010Aa, dated 17.08.2011, quash the same. For petitioner ...Ms.J.Anandavalli for Mrs.J.Nisha Banu For respondents ...Mr.B.Pugalendhi Spl. Government Pleader O R D E R Mr.B.Pugalendhi, Special Government Pleader, takes notice for the respondents. 2. Impugned charge memorandum, dated 17.08.2011, issued by the Deputy Registrar of Co-operative Societies, Tirunelveli, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as 'the Rules') is assailed on the following grounds: (i) that the charges are vague and baseless ; (ii) the charges related to incident of the years 2005-06 and 2006-08 and that therefore, there is a delay ; https://hcservices.ecourts.gov.in/hcservices/ 2 (iii) the petitioner was not in-charge of money dealings and therefore, not committed any misconduct ; (iv) prejudice due to non furnishing of the copy of the enquiry report under Section 81 of the Co-operative societies Act (hereinafter referred to as 'the Act') and not adhering to the instructions of the Government in G.O.Ms.No.144 Personnel and Administrative Reforms (N) Department, dated 08.06.2007, wherein, the Government have issued instructions that the disciplinary authority should not resort to last minute suspension of the Government servant i.e. on the date of retirement and (v) the Sub Registrar, who conducted the enquiry under Section 81 of the Act and submitted a report, himself has been appointed as the Enquiry Officer and therefore, he cannot be a Judge of his own cause. 3. Heard Ms.J.Anandavalli, learned counsel for the petitioner on the above said grounds. 4. The question as to whether a show cause notice or charge memorandum has to be quashed at the threshold, exercise of the extra ordinary jurisdiction, is no more res-integra, in view of a catena of decisions of the Supreme Court. 5. In Union of India v. Upendra Singh reported in 1994 (3) SCC 357, the Central Administrative Tribunal examined the correctness of the charges against the respondent therein on the basis of the material produced by him and quashed the same. The Union of India preferred an appeal. The Supreme Court, after considering the decisions in T.C.Basappa v. T.Nagappa reported in AIR 1954 SC 440, which was followed in Ujjam Bai v. State of U.P., reported in AIR 1962 SC 1621 and V.D.Trivedi v. Union of India reported in 1993 (2) SCC 55, at Paragraphs 4 and 6 of the judgment in Upendra Singh's case, held as follows: "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 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 jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the respondent were to be filed in the High Court it would have been termed, property speaking, as a Writ of prohibition. A writ of prohibition is issued only https://hcservices.ecourts.gov.in/hcservices/ 3 when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view." 6. In Union of India v. K.K.Dhawan reported in 1993 (2) SCC 56, it was contended by the delinquent therein that his conduct cannot be the subject matter of disciplinary proceedings, as it was not in the course of discharge of the duties as a servant of the Government. The Supreme Court, following the ratio decidenti in S.Govinda Menon v. Union of India reported in AIR 1967 SC 1274, repelled such contention and at Paragraph 28, held that disciplinary action can be taken in the following cases, though the instances are not exhaustive, "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; iii) if he has acted in a manner which is unbecoming of the 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. 7.It is useful to extract the ratio decidenti in S.Govinda Menon v. Union of India reported in AIR 1967 SC 1274, and it reads as follows: "In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government The test is whether the act or omission has some reasonable connection with nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of https://hcservices.ecourts.gov.in/hcservices/ 4 the Service for integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the service." In this context reference may be made to the following observations of Lopes, L.J. in Pearce v. Foster (1866) 17 QBD 536, p. 542. If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant. (emphasis supplied) 8. In Union of India v. Kunisetty Satyanarayana reported in AIR 2007 SC 906, the respondent therein was issued with a charge memo for availing reservation against the post earmarked for ST, though he did not belong to the said category. Instead of submitting a reply to the charge memo, he preferred Original Application before the Central Administrative Tribunal, which disposed of the same with a direction to the respondents to submit the explanation to the charge memo and on such reply, the disciplinary authority was directed to consider his name. In stead of filing the reply, the respondent therein filed a Writ Petition, which was allowed. Testing the correctness of the order of the Andra Pradesh High Court, the Supreme Court, at paragraphs 13, 14 and 16, held as follows: "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. 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. https://hcservices.ecourts.gov.in/hcservices/ 5 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." (emphasis supplied) 9. No doubt, G.O.Ms.No.144, Personnel and Administrative Reforms (N) Department, dated 08.06.2007, has set out detailed instructions, to take expeditious actions on the disciplinary proceeding and to avoid the last minute suspension of the Government servant. The said G.O., is only an administrative instructions, which does not have the force of law. 10. The contention that there is a delay in initiating disciplinary proceedings for the incidents said to have occurred between 2005-06 and 2006-08, is also not acceptable, as the perusal of the charges shows allegation of misappropriation and loss of revenue to the Society. Where financial irregularities are alleged against a Government servant or an employee of the society, certainly it takes some time for collection of materials and in the case on hand, the same were enquired under Section 81 of the Act and the Rules framed thereunder. As and when, the report has been drawn, disciplinary proceeding have been initiated, by the impugned order. 11. Learned counsel for the petitioner may be right in contending that the person, who had submitted a report, under Section 81 of the Act, ought not to have been appointed as the Enquiry Officer. Merely because, the said officer, is appointed as an Enquiry Officer, that would not clothe any right to the petitioner to seek for quashing of the disciplinary proceedings. The objections, dated 02.07.2011 of the Secretary, submitted to the Deputy Registrar, (Housing) Tirunelveli District, certainly requires consideration, on the aspect of likelihood of bias, on the principle that no man can be a Judge of his own cause. The further contention that the petitioner was not in-charge of dealing with the money and not committed the acts of misconduct alleged, are all matters of evidence and this Court, cannot be converted into an enquiry officer, to adjudicate the same on mere averments made in the supporting affidavit. The same has to be gone into only in the enquiry. 12. Material on record shows that the petitioner, vide his letter, dated 23.08.2011, addressed to the Deputy Registrar (Housing), Tirunelveli, has sought for a copy of the enquiry report under Section 81 of the Act, so as to enable him to submit his explanation. The request is https://hcservices.ecourts.gov.in/hcservices/ 6 reasonable and the same has to be addressed by the disciplinary authority. 13. Considering the principles contained in the judgment of the Supreme Court stated supra, this Court, is of the view that the disciplinary proceeding initiated under Rule 17(b) of the Rules, cannot be quashed and the writ petition is dismissed. However, a direction is issued to the Deputy Registrar (Housing), Tirunelveli District, the third respondent herein, to consider the request of the petitioner, regarding furnishing of the copy of the report, dated 27.07.2011, under Section 81 of the Act, if not furnished earlier, so as to enable the petitioner to offer his explanation. The request for change of Enquiry Officer can also be considered so as to facilitate fair and reasonable opportunity to the petitioner to effectively defend the disciplinary proceeding without any apprehension that there would be a likelihood of bias. No costs. Consequently connected miscellaneous petition is closed. sd/- Assistant Registrar (W) /True Copy/ Sub Assistant Registrar (C.S) To 1. The Secretary, Co-operative Department Fort St. George, Chennai. 2. The Registrar of Co-operative Societies, (Housing), Tirunelveli. 3. The Deputy Registrar of Co-operative Societies (Housing), Tirunelveli. 4. The Special Officer, Thoothukudi Melur Co-operative Housing Society, Thoothukudi. + 1 cc to The Special Government Pleader, SR No.29538 Writ Petition No.9757 of 2011 and M.P.No.1 of 2011 26.08.2011 RR RJ/30.8.11 (IT) 6p/6c https://hcservices.ecourts.gov.in/hcservices/