1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/9/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR W.P.(MD)No.11306 of 2011 in MP(MD)Nos.1 and 2 of 2011 R. Murugesan ... Petitioner Vs 1. The District Collector Tuticorin District. 2. The Revenue Divisional Officer Tuticorin. ... Respondents 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 the impugned charge memo issued by the second respondent in Na.Ka.No.D1/55803/10 dated 3/9/2010 and quash the same. For petitioner ... Mr.V.Suthakar For respondents ... Mr.T.S.Mohammed Mohideen AGP ORDER Challenge in this writ petition, is to a charge memorandum dated 3/9/2010, issued by the District Revenue Officer, Tuticorin, under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules, 1955. 2. Though the learned counsel appearing for the petitioner has made submissions, on the merits of the case, at this juncture, this Court is not inclined to downgrade itself, to the level of the disciplinary authority or the Enquiry Officer, as the case may be, to consider the materials, which form the basis for issuance of the charge memorandum. The issue as to whether a charge memorandum/disciplinary action has to be quashed, at the threshold, has been considered by the Supreme Court and it is worthwhile to refer few decisions. (i) 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 https://hcservices.ecourts.gov.in/hcservices/ 2 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 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." (ii) 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." https://hcservices.ecourts.gov.in/hcservices/ 3 (iii) 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 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) (iv) 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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. 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) 3. The competence of the District Revenue Officer, Tuticorin, to initiate the disciplinary proceedings, cannot be disputed, as he is a superior Officer. Further, material on record shows that, pursuant to the impugned charge memorandum, the petitioner has also submitted his explanation on 13/9/2010. Now, it is for the respondents 1 and 2 to consider as to whether the explanation offered by the petitioner, is satisfactory or not and take appropriate decision to proceed further or https://hcservices.ecourts.gov.in/hcservices/ 5 not. In view of the decisions stated supra and in the absence of any jurisdictional error, interference with the charge memorandum, at the threshold is not permissible. It is not one of rarest of rare cases to be interfered with. 4. In the light of the above discussion and also the decisions of the Supreme Court, the Writ Petition is dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No costs. Sd/- Assistant Registrar(AS) /TRUE COPY/ Sub Assistant Registrar To 1. The District Collector Tuticorin District. 2. The Revenue Divisional Officer Tuticorin. W.P.(MD) No.11306 of 2011 and MP(MD)Nos.1 and 2 of 2011 29/9/2011 mvs PA/19.10.2011/5P/3C https://hcservices.ecourts.gov.in/hcservices/