IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 23-02-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.12242 of 2006 and W.P.M.P.No.13814 of 2006 M.Natarajan .. Petitioner. Versus 1) The State of Tamil Nadu Rep. By its Secretary to the Government, Home Transport-II Department, Fort St. George, Chennai-600 009. 2) The Transport Commissioner, Chepauk, Chennai-600 005. 3) The Joint Transport Commissioner, Transport Department, Chennai-5. .. Respondents. Prayer: Petition filed seeking for a Writ of Certiorarified Mandamus, to call for the records relating to the proceedings made in charge memo Letter No.27333/Tr.II/04-19, dated 12.11.2004, passed by the first respondent and quash the same and consequently, direct the respondents to promote the petitioner to the post of Regional Transport Officer, with all attendant benefits. For Petitioner : Mr.G.Ethirajulu For Respondents : Mr.R.Murali Government Advocate O R D E R Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 2. It has been stated that the petitioner had been appointed as Motor Vehicles Inspector Grade-II, on 23.12.1987, in the office of the Transport Commissioner, Chennai. Thereafter, on 27.4.1994, he had been promoted as Motor Vehicles Inspector, Grade-I, and he was posted in the Regional Transport Office, Coimbatore South. Later, he was transferred to the Regional Transport Office, Coimbatore North, with effect from 13.3.1998. After he had served in various places he had https://hcservices.ecourts.gov.in/hcservices/ been transferred to the Regional Transport Office, Salem, on 12.11.2004. The next promotion of the petitioner should have been, as Regional Transport Officer, as his name stood at the 4th position and his name had been included in the seniority list, for the year 2005- 2006. 3. While so, the first respondent, in his proceedings, dated 12.11.2004, had framed a charge against the petitioner, under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, stating that the petitioner had caused some delay in remitting the Flag Day Fund to the Regional Transport Office concerned and that it had amounted to temporary misappropriation of funds. The said act was in contravention of the provisions of Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973. 4. It has also been stated that even though the charge memo was dated 12.11.2004, it had been served on the petitioner only, on 10.2.2005. The petitioner had submitted his explanation, on 1.3.2005. However, no action had been initiated against the petitioner. In the meanwhile, by a letter, dated 11.4.2006, the second respondent had directed the Regional Transport Officers to submit their proforma particulars for the preparation of the panel list of Motor Vehicles Inspectors, Grade-I and the personal assistants, who are to be considered for promotion to the post of Regional Transport Officer, for the year 2005-2006. Even though the petitioner’s name figured at No.8, he is to be considered to be in the 4th spot, since he is a technical staff. The other four persons are non-technical staffs. 5. It had been further stated that the petitioner had got the information that his name would not be included in the panel for the year 2005-2006, for the post of Regional Transport Officer, due to the fact that a charge memo, dated 12.11.2004. had been issued against him. The petitioner has further stated that by a mere reading of the contents of the charge memo it can be seen that it cannot result in the imposition of a major punishment. The collection of funds by selling flags is kept in the office, in the regular course of the transactions, as demand drafts, along with the necessary counterfoil receipts. Therefore, it cannot be said that the delay in remittance of the flag day collections would amount to temporary misappropriation of funds. 6. It has also been stated that the alleged occurrence is dated 11.9.2001, whereas, the charge had been framed, only on 12.11.2004, after a lapse of nearly three years. The charge memo had been served on the petitioner, on 10.2.2005. Even though the petitioner had submitted his explanation, dated 1.3.2005, no departmental enquiry had been initiated, till the filing of the writ petition. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ 7. In the counter affidavit filed on behalf of the respondents, the averments and allegations made by the petitioner had been denied. It has been stated that the District Collector concerned and the Regional Transport Authority concerned fix the targets for the sale of flags, for each year. The target for the year 2000 had been fixed at rupees nine lakhs. The sale proceeds are remitted to the office of the Assistant Director of Ex-servicemen Welfare Board, either through banker’s cheques or by demand drafts. However, the writ petitioner, while working at the Regional Transport Office, Coimbatore North, had temporarily misappropriated the flag day funds to the tune of Rs.5100/-, for seven days, as he was in possession of the funds during the said period, without remitting the same to the office of the Ex-Servicemen Welfare Board. Thus, he had failed to maintain absolute integrity and devotion to duty. Therefore, the charges had been framed against the petitioner, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 . Thereafter, the enquiry could not be conducted due to the order of interim stay granted by this Court, on 27.4.2006, in W.P.M.P.No.13814 of 2006, in Writ Petition No.12242 of 2006. The preparation of panels for promotion of eligible candidates is a routine departmental procedure. Only after the departmental enquiry is over it could be found out as to whether the petitioner could be considered for promotion as a Regional Transport Officer. 8. In view of the averments made on behalf of the petitioner, as well as the respondents and on a perusal of the records available, it is seen that there has been a considerable delay of nearly three years in framing the charges against the petitioner, based on the alleged charge of temporary misappropriation of funds. Though the alleged incident is said to have taken place, on 11.9.2001, the charges had been framed against the petitioner only on 12.11.2004. It is also seen that even after the petitioner had submitted his explanation, dated 1.3.2005, no departmental enquiry had been conducted, thereafter, for more than a year. Only, on 27.4.2006, this Court had granted an order of interim stay of the proceedings in W.P.M.P.No.13814 of 2006. 9. It is also noted that in the case of similarly placed persons the charges levelled against them had not been proved by the respondents. Further, in the counter affidavit, dated 13.6.2007, filed on behalf of the respondents, the delay in framing the charges and in initiating the domestic enquiry against the petitioner had not been explained. At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the petitioner had stated that the petitioner had been promoted as a Deputy Transport Commissioner, during the pendency of the writ petition. In such circumstances, this Court finds it appropriate to set aside the charge memo, dated 12.11.2004, issued by the first respondent against the petitioner and to direct the respondents to promote the petitioner as a Regional Transport Commissioner, with all attendant https://hcservices.ecourts.gov.in/hcservices/ benefits, unless there are other legal impediments to grant him such a promotion. Accordingly, the writ petition stands allowed. No costs. Consequently, connected writ petition miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar csh To 1) The Secretary to Government, State of Tamil Nadu Home Transport-II Department, Fort St. George, Chennai-600 009. 2) The Transport Commissioner, Chepauk, Chennai-600 005. 3) The Joint Transport Commissioner, Transport Department, Chennai-5. 1 cc to Mr.G.Ethirajulu, Advocate, Sr.No.12058 1 cc to Government Pleader, Sr.No.12193 Writ Petition No.12242 of 2006 KU {CO} TP/30.3.2010. https://hcservices.ecourts.gov.in/hcservices/