IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.18010 of 2010 and M.P.No.1 of 2010 V.Asokan .. Petitioner. Vs. 1. The Tamil Nadu Water Supply and Drainage Board, Rep. by its Managing Director, Kamarajar Salai, Chepauk, Chennai – 600 005. 2. The Tamil Nadu Water Supply and Drainage Board, Rep. by its Chief Engineer, Western Region, Coimbatore .. Respondents. Writ petition is filed under Article 226 of Constitution of India for the issuance of a writ of Certiorarified Mandamus, calling for the records relating to the impugned charge memo bearing No.F.652/A1/CE/WR/1998 dated 21.07.2010 passed by the second respondent read with proceeding No.18203/Estt(DP)/A1/2010 dated 16.06.2010 issued by the first respondent and quash the same insofar as they relate to initiating disciplinary action against the petitioner afresh and consequently, directing the respondents permitting the petitioner to go on voluntary retirement with all consequential benefits. For Petitioner : Mr.G.R.Swaminathan For Respondents : Mr.B.Jagannathan O R D E R The petitioner, by invoking extraordinary writ jurisdiction of this Court, prays for issuance of writ in the nature of Certiorari, for quashing impugned charge memo dated 21.07.2010 and the order dated 16.06.2010, passed by the first respondent on appeal, filed by the petitioner, against the order of punishment. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was employed with Tamil Nadu Water Supply and Drainage Board as Assistant Engineer at Udumalaipettai. The petitioner was transferred from Western Region, Coimbatore to Southern Region, Madurai. This transfer was on request of the petitioner to look after his father and father-in-law. 3. The case of the petitioner is that before he could be relieved, his father died. The petitioner, therefore, could not join the new place of posting as the father-in-law of petitioner was taken to Chennai for treatment for Cardiac ailment. His father-in-law also died on 16.01.1996. The petitioner, thereafter, got his leave extended from time to time. Finally, the order of transfer was cancelled and he was posted to Salem. The petitioner again applied for leave, which was not sanctioned. The petitioner was treated as absent from duty, and issued a charge memo on 13.01.1998 4. The case of the petitioner is that before the proceedings could be finalised, and order issued to the petitioner to rejoin, he completed 20 years of service. Therefore, he applied for voluntary retirement on 03.12.2000, instead of accepting the request of voluntary retirement, the petitioner was ordered to be dismissed from service, by the Chief Engineer, Tamil Nadu Water Supply and Drainage Board. 5. The petitioner, by claiming that the order of dismissal to be without jurisdiction, filed appeal before the Managing Director of the Board. During the pendency of the appeal, the petitioner filed W.P.No.6510 of 2010, which was disposed off by this Court, with a direction to the Managing Director to pass appropriate orders on the appeal, filed by the petitioner. The time fixed for passing the order was fixed as eight weeks. 6. In pursuance to the order passed by this Court, vide order dated 16.06.2010, the order of punishment, awarded by the Chief Engineer, was set aside, and directions issued to initiate disciplinary action under Regulation 9(b) immediately. The operative part of the order reads as under: "(5) The contention of the petitioner and connected records were examined carefully. While scrutinizing the records, it is noticed that the individual has not obeyed the transfer orders, but proceeded on leave from 07.12.1995 to 31.07.1997 and thereafter, absented unauthorisedly. For the above lapse only, charges have been framed. For the loss / shortage of materials pointed out in the final orders issued by the Chief Engineer, TWAD Board, Western Region, Coimbatore, the charge has not been included in the Charge Memo. Further the long absence of the accused https://hcservices.ecourts.gov.in/hcservices/ officer from 07.12.1995 onwards to till date has not been specifically mentioned in the Charge Memo. Hence, there is a procedural lapse on this aspect. Therefore, the orders of "Dismissal from service" awarded by the Chief Engineer in Proc.dated 26.02.2010 are hereby set aside. The Chief Engineer, TWAD Board, Western Region, Coimbatore, is directed to initiate disciplinary action afresh under Regulation 9(b) against the above official immediately." 7. In pursuance to the order passed by the appellate authority, the petitioner was issued impugned charge sheet vide Charge Memo No.F.652/A1/CE/WR/1998 dated 21.07.2010. The order passed by the appellate authority, as well as issuance of charge sheet is challenged by the petitioner, on the ground that the appellate authority had no jurisdiction to order fresh enquiry for the lapses, for which, petitioner was tried earlier. 8. This contention of the learned counsel for the petitioner deserves to be accepted. The order passed by the appellate authority is hit by Article 20 of the Constitution of India, as issuance of fresh charge sheet is hit by the principles of double jeopardy. 9. It is also the contention of the learned counsel for the petitioner, that it was not open to the Managing Director to order de novo enquiry, as the Managing Director was to decide the appeal, either by accepting or rejecting it. The Managing Director could also remand the case, to the competent authority, but could not, in exercise of appeal jurisdiction, while setting aside the order, direct de novo enquiry, and to issue fresh charge sheet, to cover lacuna in the proceedings. 10. On consideration I find force in this contention raised by the learned counsel for the petitioner. The power to order de novo enquiry has to be exercised sparingly and not as a normal rule. The fresh charge sheet cannot be ordered, to cure the defect in the earlier charge sheet. 11. The order of the appellate authority, therefore, on the face of it, is arbitrary and without jurisdiction, and hit by the principle of double jeopardy, which cannot be sustained in law. 12. The writ petition is allowed, the order dated 16.06.2010 passed by the appellate authority, as also charge memo issued vide No.F.652/A1/CE/WR/1998 dated 21.07.2010 is quashed. https://hcservices.ecourts.gov.in/hcservices/ 13. The case is remitted back to the appellate authority, to consider appeal filed by the petitioner on merit, in accordance with law. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar ar To 1. The Managing Director The Tamil Nadu Water Supply and Drainage Board, Kamarajar Salai, Chepauk, Chennai – 600 005. 2. The Chief Engineer The Tamil Nadu Water Supply and Drainage Board, Western Region, Coimbatore 1 cc To Mr.R.Thiagarajan, Advocate, SR.12119 1 cc To Mr.B.Jaganathan, Advocate, SR.11467 W.P. No. 18010 of 2010 BKY (CO) RH (15.3.11) 15.02.2011 https://hcservices.ecourts.gov.in/hcservices/