1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:27.04.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY WA(MD)No.475 of 2011 and MP.No.1 of 2011 A.Lakshmanan :Appellant/Petitioner -Vs- The District Forest Officer, Tirunelveli District. :Respondent/Respondent PRAYER:Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 09.04.2011 made in W.P.(MD).No.9096 of 2010 on the file of this Court. WP.No.9096/10 Prayer:Writ Petition is filed under article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records relating to the proceedings of the respondent in No.11007- 05-P1, dated 4.11.2009 and quash the same. For Appellant : Mr.A.Thiagarajan Senior Counsel for Mr.S.Karunakar For Respondent: Mr.R.Janakiramulu,Special Government Pleader JUDGMENT [Judgment of the Court was delivered BY K.SUGUNA, J] This Writ Appeal is filed as against the order dated 09.04.2011 passed in W.P.(MD).No.9096 of 2010. 2.The said Writ Petition was filed challenging a charge memo dated 04.11.2009 issued to the appellant. The learned Single Judge of this Court, by order dated 09.04.2011, had dismissed the said Writ Petition on the ground that the appellant can very well submit his explanation for the charges levelled against him. Aggrieved over the same, the present Writ Appeal is filed. 3.According to the learned Senior Counsel appearing for the appellant, the charges have been framed basing on a circular dated 13.05.1988 issued by the Chief Conservator of Forests, Chennai, consequently, giving a reply to the District Forest Officer, who is subordinate to the Chief Conservator of Forests, will be futile. In support of his contention, the learned Senior Counsel for the appellant has relied on a Judgment of a Division Bench of this Court in P.F.F.R.(MAD).PVT LTD v. Commr of Comml. Taxes (Mad) reported in 2005 140 STC 97, at Paragraph No.33, which reads as follows:- "33.In the present case, the Tribunal has referred to a decision of its own Full Bench in O.P.Nos.1334 to 1336 of 2000 dated 25.01.2001. In that case, it was held that the clarification would bind the party which sought for it, but at the same time could be open to the assessee to canvass the correctness of the clarification before the assessing officer or the appellate authority. In the impugned order of the Tribunal, reference was also made to a decision of a Division Bench of this Court in W.P.No.10709 of 1999 dated 24.6.1999. The Division Bench had held that a clarification issued under Section 28-A was not an adjudication and the clarification could be assailed https://hcservices.ecourts.gov.in/hcservices/ 2 before the assessing officer and before the appellate authority. In our opinion, the attention of the Full Bench of the Tribunal and the Division Bench of this High Court was not drawn to the various decisions of the Supreme Court referred to above. It has been repeatedly held in those decisions that a clarification or a circular can b e challenged under Article 226. It has been pointed out therein that once a clarification or circular is issued by a superior authority, it would be an exercise in futility to ask the assessee to raise an objection to the circular before an inferior authority, vide the Constitution Bench decision of the Supreme Court in Filterco v. CST (supra). Subsequently, it was also held by the Supreme Court that clarifications or circulars could be challenged before the High Court under Article 226 of the Constitution, since the remedies of appeal or revision would be futile or not efficacious. In view of these decisions of the Supreme Court, the views taken by the Full Bench of the Tribunal and by the Division Bench of this Court do not lay down the correct law." 4.Apart from the above, according to the learned Senior Counsel for the appellant, the said circular was issued by the Chief Conservator of Forests, Chennai and the appellant has to submit his reply for the charge memo dated 04.11.2009 before the District Forest Officer, the respondent herein, who is the Subordinate Officer. Yet another stand taken by the learned Senior Counsel for the appellant is that basing on the said circular, charges have been framed with regard to the appellant alone and not against any other officials. Basing on this, the learned Senior Counsel for the appellant has prayed for allowing of the Writ Appeal. 5.We are not inclined to entertain the Writ Appeal, for the reason that what is under challenge is only a charge memo issued to the appellant. As far as the stand of the learned Senior Counsel for the appellant that basing on the said circular dated 13.05.1988, charges cannot be framed is concerned, it is the well settled law that to fill up the gap in the statutory rules, by way of executive instructions, circular can be issued, provided the same should not be inconsistent with the Statutory Rules. In the case on hand, it is not the stand of the learned Senior Counsel for the appellant that the said circular is inconsistent with the Statutory Rules Apart from this, the appellant is working in the Forest Department as a Ranger, where the Field Officers are expected to maintain daily diary with regard to the work performed by them and also other aspects and such diary is expected to be submitted either once in a week or once in a month. These instructions have been issued keeping in mind that the Field Officers are not under the direct control of the spot officers. When a default has been committed with regard to making entry, certainly, it will amount to commission and omission, for which, disciplinary action has been initiated as against the appellant. Consequently, the first argument of the learned Senior Counsel for the appellant will not hold good. 6.The learned Senior Counsel for the appellant has relied on a Judgment of the Hon'ble Supreme Court in Punjab Water Supply & Sewerage Board v Ranjodh Singh reported in 2007 (2) SCC 491 at Paragraph No.10, which reads as follows:- "10.A statutory board is an autonomous body. Nothing has been brought to our notice to show that under the statute any direction https://hcservices.ecourts.gov.in/hcservices/ 3 issued by the State shall be binding on it. The State may have some control with regard to recruitment of employees of local authorities, but such control must be exercised by the State strictly in terms of the provisions of the Act. The statutory bodies are bound to apply the rules of recruitment laid down under the statutory rules. They being “State” within the meaning of Article 12 of the Constitution of India, are bound to implement the constitutional scheme of equality. Neither can the statutory bodies refuse to fulfil such constitutional duty, nor can the State issue any direction contrary to or inconsistent with the constitutional principles adumbrated under Articles 14 and 16 of the Constitution of India. The purported directions of the State were otherwise bad in law insofar as thereby the statutory rules were sought to be superseded. A circular letter furthermore is not a statutory instrument. It was not even issued by the State in exercise of the power under Article 162 of the Constitution of India. Even a scheme issued under Article 162 of the Constitution of India, would not prevail over statutory rules." 7.The said Judgment relied on by the learned Senior Counsel for the appellant will not be of any help to the appellant, for the reason that in the said Judgment, the circular has superseded the Statutory Rules, and therefore, a finding was given in favour of the appellant therein. 8.The other argument advanced by the learned Senior Counsel for the appellant that the said circular was given effect to with reference to the appellant alone and not against any other officials will not hold good, for the reason that the appellant can very well raise all these objections in the reply to be submitted by him to the charge memo dated 04.11.2009. 9.Yet another stand taken by the learned Senior Counsel for the appellant that the appellant has to submit his explanation for the charge memo dated 04.11.2009 issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules to the Subordinate Officer, viz., District Forest Officer, Tirunelveli, is not sustainable, since what is under challenge is only a charge memo issued to the appellant and for the sake of the appellant, the Disciplinary Authority for the post of Ranger cannot be changed. Apart from this, the appellant, who is a Ranger, is subordinate to the District Forest Officer. Besides, though the charge memo was issued based on the said circular, the allegations levelled as against the appellant are in relation to certain commission and omission. 10.For the foregoing reasons, we do find any merit in the Writ Appeal Hence, the Writ Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is also dismissed. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: The District Forest Officer, Tirunelveli District. +1CC to Mr.S.Karunakar, Advocate. SR.No.15658. +1CC to The Special Government Pleader. SR.No.16253. NB/RP/14.06.11/3P/4C. JUDGMENT MADE IN W.A.(MD).No.475 of 2011,27.04.2011 https://hcservices.ecourts.gov.in/hcservices/