IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22..4..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. Nos. 3462 and 16798 of 2004 and W.P.M.P. No. 4071 of 2004 in W.P. No. 3462 of 2004 and W.M.P. No. 19886 of 2004 in W.P. No. 16798 of 2004 W.P. No. 3462 of 2004: 1. The Government of Tamil Nadu Rep. by Special Commissioner for Disciplinary Proceedings Chennai – 108. 2. The Registrar of Co-operative Societies Chennai - 10 ... Petitioners vs. 1. K.M. Shahul Hameed @ K.M. Ramesh 2. The Registrar Tamil Nadu Administrative Tribunal Chennai ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records pertaining to order of the Tribunal dated 26.3.2002 made in O.A. No. 4171 of 2000 and quash the same. W.P. No. 16798 of 2004: K.M. Shahul Hameed .. Petitioner vs. https://hcservices.ecourts.gov.in/hcservices/ 1. The Government of Tamil Nadu Rep. by Secretary to Government Food and Consumer Protection Department Fort St. George Chennai - 9 2. The Registrar of Co-operative Societies Chennai - 10 ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Mandamus directing the respondents to given effect to the final order of the Tribunal dated 23.4.2003 made in O.A. No. 1399 of 2000 and promote the petitioner as Joint Registrar of Co- operative Societies. For State : Mr. M. Dhandapani, Spl. GP For contesting Respondent : Mr. K. Dhanasekaran COMMON ORDER K. CHANDRU, J. Heard the arguments of Mr. M. Dhandapani, learned Special Government Pleader representing the State and Mr.K.Dhanasekaran, learned counsel appearing for the contesting party and have perused the records. 2. W.P. No. 3462 of 2004 is filed by the Government of Tamil Nadu represented by the Special Commissioner for Disciplinary Proceedings against the order of the Tamil Nadu Administrative Tribunal [for short, Tribunal'] dated 26.3.2002 made in O.A. 4171 of 2000. The said O.A. was filed by the first respondent, who was then working as Co-operative Sub-Registrar, against the show cause notice dated 08.4.2000, issued by the second petitioner asking him as to why the punishment of removal from service should not be imposed on him. 3. The said Original Application came to be allowed by the Tribunal by a judgment dated 26.3.2002. The charge against the first respondent was that during the period 01.1.1985 to 15.02.1987, he was in possession of resources approximately to the tune of 1,85,445/- in the names of his wives Tmt. Lakshmi and Tmt. Rajarajeswari and he had not satisfactorily accounted for the same. He was also indulging in pawn broker business through them in contravention of the Government Servant's Conduct Rules. He was also accused of living with Tmt. Rajarajeswari while the marriage with his first wife Lakshmi was in subsistence. He was also living https://hcservices.ecourts.gov.in/hcservices/ under the name K.M.Ramesh. Further, he was also accused of furnishing false declaration of his assets whereas his wives were in possession of auto-rickshaws, house sites, godown, etc. 4. After enquiry was conducted, the Disciplinary Tribunal held that the first charge was proved. With reference to second charge, the charge No. 2(a) was held to be proved. However, charge Nos. 2 (b), 2(c) were not proved. But charge No. 2(d) was held to be proved. The first respondent earlier filed O.A. No. 3080 of 1986 seeking to quash the charges. Though the said O.A. was admitted, no interim order was granted. Therefore, the first petitioner, Government issued G.O. (DO) No. 41 Co-operation, Food and Consumer Protection Department 07.02.2000, directing the second respondent to proceed with the disciplinary proceedings till the stage of passing final orders and was directed to await the order in O.A. No. 3080 of 1986. Thereafter, the second petitioner issued show cause notice dated 08.4.2000 proposing to impose the punishment. 5. Before the Tribunal, on behalf of the petitioners, a detailed reply statement was also filed refuting the stand taken by the first respondent. The Tribunal, without any justification, delved into the merits of the findings and quashed the show cause notice, which was issued based upon the report of the Tribunal for Disciplinary action. According to the Tribunal, the two wives have accounted for their wealth in their Income-Tax Returns and there was no evidence to show that the money-lending by them were financed by the first respondent. It also held that non-disclosure of properties purchased and owned by his wives became a misconduct only as per amended rule 7(3) of the Conduct Rules which was brought into effect on 24.12.1992 and, therefore, he cannot be punished by virtue of the amended Rules. It is against this order, the present writ petition has filed. 6. At the time of admission, this Court merely ordered notice in the stay application and did not grant any interim order. Throughout this period, the contesting respondent continued in service. 7. In the meanwhile, the first respondent filed another application being O.A. 1399 of 2003 seeking for promotion for the post of Deputy Registrar and the same was allowed by the Tribunal vide order dated 23.4.2003. He filed W.P. No. 16798 of 2004 seeking for a direction to the official respondents to implement the order of the Tribunal and though notice was ordered initially, it was also admitted subsequently by order dated 05.7.2004. Even when the said writ petition was pending, he was promoted to the post of Deputy Registrar. https://hcservices.ecourts.gov.in/hcservices/ 8. In view of the interconnectivity, between the two writ petitions, they are heard together. 9. When a show-cause notice is issued by the disciplinary authority, unless the show-cause notice is mala fide or without jurisdiction, the Tribunal cannot embark upon the merits of the same and give a finding that the charges have not been proved. That kind of power can never be exercised at the stage of show cause notice and the Tribunal ought to have dismissed O.A. No. 4171 of 2000 without embarking upon a roving enquiry as if there was no evidence in the said enquiry. Therefore, the Tribunal has exceeded its jurisdiction in quashing the show cause notice even before the disciplinary authority could take any decision on the explanation submitted by the first respondent. Hence, the order of Tribunal is liable to be set aside. 10. In the meanwhile, thanks to the order of the Tribunal, the first respondent also got promoted to the post of Deputy Registrar and attained the age of superannuation 30.4.2006. However, his services were retained by placing him under suspension by order of the Government in G.O. (2D) No. 39 Co-operation, Food and Consumer Protection Department dated 30.4.2006 in terms of Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Further, under Rule 56(1)(c) of the Fundamental Rules, he was not allowed to retire by G.O. (3D) No. 11 Co-operation, Food and Consumer Protection Department dated 30.4.2006. 11. In the light of the above, W.P. No. 16798 of 2004 filed by K.M. Shahul Hameed seeking for implementation of the order of the Tribunal dated 23.4.2003 in O.A. No. 1399 of 2003 will stand dismissed as it had become infructuous. 12. In W.P. No. 3462 of 2004 in as much as the Tribunal quashed the order of show cause notice issued by the second petitioner, it will also stand set aside and W.P. No. 3462 of 2004 will stand allowed. No costs. 13. In the light of the dismissal of the writ petition and in view of G.O. (3D) No. 11 Co-operation, Food and Consumer Protection Department dated 30.4.2006 and G.O. (2D) 39 Co-operation, Food and Consumer Protection Department dated 30.4.2006 passed by the Government, it is open to the writ petitioners to proceed with https://hcservices.ecourts.gov.in/hcservices/ further course of action against the first respondent. Connected Miscellaneous Petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gri TO 1. The Special Commissioner for Disciplinary Proceedings, Chennai 108. 2. The Registrar of Co-operative Societies, Chennai 10. 3. The Secretary to Government of Tamil Nadu, Food and Consumer Protection Department, Fort St. George, Chennai. + 1 CC to the Government Pleader SR NO 23141 W. P. Nos. 3462 and 16798 of 2004 ng[co] gp/30.4. https://hcservices.ecourts.gov.in/hcservices/