1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.09.2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.10478 of 2011 And MP(MD)No.1 of 2011 B.Ramadevi ... Petitioner Vs 1.The State Government through its Chief Secretary, St.George Fort, Chennai. 2.The Commissioner, Tribunal for Disciplinary Proceedings, Madurai. 3.The Deputy Director of Health Services, Theni. ... Respondent 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 relating with the charge memo dated 26.07.2011 issued to him by the 2nd respondent in his proceedings in Roc.No.72/2011/A1 (TDP.13/2011) and quash the same as illegal. For petitioner ...Mr.R.Suriyanarayanan For respondent...Mr.T.S.Mohamed Mohideen Addl. Government Pleader O R D E R Challenge in this writ petition is to the charge memorandum issued by the Commissioner, Tribunal for Disciplinary Proceedings, Madurai dated 26.07.2011 against the petitioner, on the grounds, inter alia that the said authority has not followed the procedure contemplated under rule 8(a) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955. The said order is also attacked on the ground that the second respondent has failed to furnish a copies of the alleged complaints made against the petitioner and the statement of witnesses, as contemplated under Section 8(a)(i) of the above said Rule. 2.In addition to the above, inviting the attention of the court to the impugned charge memorandum, Mr.Suriyanarayanan, learned counsel for the petitioner also submitted that the second respondent while, formulating the charges, has predetermined, holding that the petitioner, has failed to maintain integrity, as per Rule 20(1) of https://hcservices.ecourts.gov.in/hcservices/ 2 the Tamil Nadu Servant Conduct Rules, 1973 and thus, she has lost her status as a Government Servant. It is the further contention that the procedure contemplated in Rule 8(a) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 is mandatory, and for the reasons stated supra, prayed for quashing the impugned charge-memo. 3.Heard the learned counsel for the petitioner and perused material available on record. 4.At the outset, this Court, is inclined to extract few decisions of the Honourable Supreme Court, whether the Courts should go to the extreme step of quashing the charges at the threshold. 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 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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 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 https://hcservices.ecourts.gov.in/hcservices/ 5 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) Rule 8(a)(i) of the Tamil Nadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955, reads as follows: “8(a)(i):Notwithstanding anything contained in rule 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the following procedure shall be adopted by the Tribunal in conducting enquiries in cases of corruption and also in cases of corruption combined with other charges. As soon as the records relating to allegations of corruption or of corruption combined with other charges against a government Servant are received, the Tribunal shall frame appropriate charges, communicate them to the person charged together with list of witnesses likely to be examined in respect of https://hcservices.ecourts.gov.in/hcservices/ 6 each of the charges, copies of the complaints made by the complainants, copies of statements, taken from the witnesses which form the basis on which the tribunal has framed the charge or charges against him and with information as to the date and place of enquiry. At the enquiry, oral and documentary evidence shall be first adduced by the prosecution witnesses and to explain any documents produced by the prosecution. The person charged shall thereafter, within the time allowed by the Tribunal, file a written statement of his defence along with a list of witnesses whom he wishes to examine, stating the points on which he proposes to examine each of them, provided that he need not so specify the points for examination in his own case, when he wishes to examine himself as well. The oral and documentary evidence on his side shall then be adduced. After the enquiry is completed, the Tribunal shall hear the Prosecutor for Disciplinary Proceedings and the person charged or permit them to file the written briefs of their respective cases, if they so desire. A copy of the written brief, if submitted by the Prosecutor for Disciplinary Proceedings, shall be served on the person charged, before he is required to submit his reply written brief. The Tribunal, shall, as far as possible, observe the basic rules of evidence relating to the examination of witnesses and the marking of documents.” 5.According to the learned counsel for the petitioner, the second respondent has not furnished copies of complaints, made by the complainants, copies of statements taken from witnesses and, on the basis of which, the Tribunal has framed charges. Merely because the abovesaid details have not been furnished, at the time of serving the charge memo, it cannot be inferred that without any basis, the Commissioner, Tribunal for Disciplinary Proceedings, Madurai has framed the charges. As many 21 witnesses has been cited as prosecution witnesses. 6.From the materials available on record, the abovesaid authority has drawn up a list of prosecution witnesses, to prove the charges, but he has not annexed of the witnesses or non-furnished the same. Merely because, the copies of the complaints made by the complainants and copies of the statements taken from the witnesses, which form the basis on which the Tribunal has framed a charge, have not been furnished, it cannot be said that a manifest illegality has been committed by the second respondent in framing the charges. Certainly, he should have furnished list of documents, to be produced before the enquiry. Non-furnishing of the documents is an irregularity, which can always be rectified before the commencement of the enquiry proceedings. Information, as to the date and place of enquiry, should be certainly furnished to the charged official, as https://hcservices.ecourts.gov.in/hcservices/ 7 soon as the date is fixed for examination of the witnesses. In such view of the matter, this Court is the view that there is no need to quash the charge memorandum. At the same time, to provide an fair and reasonable opportunity to the petitioner, so as to effectively defend the serious charge of acceptance of bribe, she should be provided with the copies of the complaints made by the complainants and copies of statements taken from the witnesses, which form the basis for the Commissioner, Tribunal for Disciplinary Proceedings, Madurai to frame the charge, well in advance before the commencement of the enquiry proceedings. It is made clear that the observations made in the impugned charge memo by the authority is only a prima facie allegation, while formulating the charges and in any event, the Commissioner, Tribunal Disciplinary Proceedings, Madurai, while conducting the enquiry proceedings shall not be influenced by the same. Therefore, while sustaining the impugned charge memorandum, it is made clear that the second respondent, shall furnish the materials, contemplated under Rule 8(a)(1) of the TamilNadu Civil Services (Disciplinary Proceedings Tribunal) Rules, 1955 and proceed with the enquiry, without without being influenced by any observation made in the impugned memo. 7.With the above said observations and following the judgments of the Honourable Apex Court, this court is not inclined to set aside the impugned charge memorandum, framed on the allegation of receipt of bribe. 8.The Writ Petition is dismissed accordingly. Consequently, connected M.P.No.1 of 2011. No costs. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar To 1.The State Government through its Chief Secretary, St.George Fort, Chennai. 2.The Commissioner, Tribunal for Disciplinary Proceedings, Madurai. 3.The Deputy Director of Health Services, Theni. +one cc to Special Government Pleader, Sr.No.31889 Writ Petition No.10478 of 2011 & MP(MD)No.1 of 2011 vs/SMA/28.9.2011/5C/7P https://hcservices.ecourts.gov.in/hcservices/