M. Pugalendran vs The Commissioner, HR and CE Department

S. Manikumar, J—Challenging a charge memo, dated 19.08.2013, petitioner filed W.P. (MD) No. 15874 of 2013, mainly, on the ground that the respondent erred in initiating disciplinary proceedings, on a flimsy ground.

Case of the petitioner/appellant is that while he was functioning as a Joint Commissioner, Hindu Religious and Charitable Endowments Department, Manager of Arulmighu Sama Vediswarar Temple, received a telephonic call, from the office of the respondent, calling for an information, as to when Kumbhabishegam of the said temple was performed. At that time, petitioner/appellant was out of station. The Manager of the Temple prepared a reply, and it was sent to the respondent, through E-mail, in the name of the petitioner, on 08.07.2013. While typing the message, date of Kumbhabishegam was inadvertently mentioned as ''06.07.2013'' instead of ''06.07.2003''. Therefore, the respondent issued a charge memo, dated 19.08.2013 to the petitioner, as to why action should not be taken against him. The petitioner has submitted a reply dated 05.09.2013, to the charge memo.

Respondent/Commissioner, HR & CE Department, Chennai, has filed a counter-affidavit, contending that the petitioner submitted an incorrect report, to the effect that the temple is in a good condition and that there is no need for renovation. The respondent submitted a report to the Secretary to the Government, on the basis of the said incorrect report submitted by the petitioner. Subsequently, the Secretary to the Government, inspected the temple in question, on 04.08.2013, and found that Kumbhabishegam was not performed since 2003. The Secretary to the Government instructed the respondent, to initiate disciplinary proceedings against the petitioner. Hence, charge memo was issued to the petitioner.

Before the Writ Court, it has been contended that the petitioner was out of station and that the report was given, only by the Manager of the Temple, wherein, the date of Kumbhabishegam was incorrectly given. According to the petitioner, it was only an inadvertent mistake, committed by the Management and therefore, allegations do not warrant any disciplinary action.

Per contra, the learned Special Government Pleader has contended that without ascertaining the factual position, petitioner has submitted an incorrect report, to the Government and thus there was no manifest illegality in issuing charge memorandum.

After considering the rival contentions and taking note of the fact that a reply was already given by the petitioner to the charge memorandum, vide order, dated 05.08.2014, in W.P. (MD) No. 15874 of 2013, the learned single Judge has directed the respondent, to consider the explanation submitted by the petitioner and to take a decision, as to whether disciplinary proceedings initiated against the petitioner, should be continued or not. The learned Judge has further directed that said exercise shall be completed, within a period of two months from the date of receipt of the order made in the writ petition. Being aggrieved by the same, present writ appeal has been filed.

Learned counsel for the appellant has reiterated the same contentions made before the Writ Court.

The writ petitioner has taken out an application to implead the then Commissioner, HR & CE Department, in his personal capacity. Mr. V.R. Shanmuganathan, learned Special Government Pleader submitted that the then Commissioner, HR & CE is no longer in office, and therefore, there is no need to issue any notice in M.P. (MD) No. 2 of 2014 filed for impleading Mr. P. Dhanapal, Commissioner, HR & CE, Chennai. Accepting the said submission, M.P. (MD) No. 2 of 2014 is dismissed.

It is well settled that a writ petition against the charge memo or show cause notice, is not maintainable, unless and until, the charge memo lacks jurisdiction. The Hon''ble Supreme Court has consistently held that a charge memo or show cause notice, cannot be quashed, at the threshold, unless in a very rare and exceptional cases, where there is lack of jurisdiction. Useful reference can be made to few decisions on this aspect.

(i) In State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, AIR 1987 SC 943 : (1987) 54 FLR 524 : (1987) 1 JT 571 : (1987) LabIC 689 : (1987) 1 SCALE 457 : (1987) 2 SCC 179 : (1987) 2 SCR 444 : (1987) 2 UJ 55 , held as follows:

"When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. ''The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice."

(ii) The Supreme Court in The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, AIR 2004 SC 1467 : (2004) 120 CompCas 467 : (2004) 91 ECC 299 : (2004) 112 ECR 501 : (2004) 164 ELT 141 : (2004) 1 JT 206 : (2004) 1 SCALE 330 : (2004) 3 SCC 440 : (2004) 50 SCL 93 : (2004) 2 SCR 399 : (2004) 1 UJ 744 : (2004) AIRSCW 416 : (2004) 1 Supreme 431 , held as follows:

"This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted."

(iii) In Union of India (UOI) and Others Vs. Upendra Singh, (1994) 68 FLR 762 : (1994) 207 ITR 782 : (1994) 1 JT 658 : (1994) 1 LLJ 808 : (1994) 1 SCALE 637 : (1994) 3 SCC 357 : (1994) 1 SCR 1070 : (1994) 2 SLJ 77 : (1994) 1 UJ 434 , 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 Vs. T. Nagappa and Another, AIR 1954 SC 440 : (1955) 1 SCR 250 , which was followed in Smt. Ujjam Bai Vs. State of Uttar Pradesh, AIR 1962 SC 1621 : (1963) 2 SCR 778 Supp : (1963) 1 SCR 778 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 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."

(iv) In Union of India and Others Vs. K.K. Dhawan, AIR 1993 SC 1478 : (1993) 1 JT 236 : (1993) LabIC 1028 : (1993) 1 LLJ 777 : (1993) 1 SCALE 199 : (1993) 2 SCC 56 : (1993) 1 SCR 296 : (1993) 1 SLJ 102 , 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 decidendi in Govinda Menon Vs. Union of India (UOI), AIR 1967 SC 1274 : (1967) 2 LLJ 249 : (1967) 2 LLJ 219 : (1967) 2 SCR 566 , 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."

(v) It is useful to extract the ratio decidendi in Govinda Menon Vs. Union of India (UOI), AIR 1967 SC 1274 : (1967) 2 LLJ 249 : (1967) 2 LLJ 219 : (1967) 2 SCR 566 , 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)

(vi) In Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, AIR 2007 SC 906 : (2007) 112 FLR 325 : (2006) 12 SCALE 262 : (2006) 12 SCC 28 : (2007) 2 SCC(L&S) 304 : (2006) 10 SCR 257 Supp : (2007) 3 SLJ 338 , 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 the same. 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 Union of India (UOI) and Another Vs. Kunisetty Satyanarayana, AIR 2007 SC 906 : (2007) 112 FLR 325 : (2006) 12 SCALE 262 : (2006) 12 SCC 28 : (2007) 2 SCC(L&S) 304 : (2006) 10 SCR 257 Supp : (2007) 3 SLJ 338 , The Special Director and Another Vs. Mohd. Ghulam Ghouse and Another, AIR 2004 SC 1467 : (2004) 120 CompCas 467 : (2004) 91 ECC 299 : (2004) 112 ECR 501 : (2004) 164 ELT 141 : (2004) 1 JT 206 : (2004) 1 SCALE 330 : (2004) 3 SCC 440 : (2004) 50 SCL 93 : (2004) 2 SCR 399 : (2004) 1 UJ 744 : (2004) AIRSCW 416 : (2004) 1 Supreme 431 , Ulagappa and Others Vs. Divn. Commr. and Others, AIR 2000 SC 3603(1) : (2000) 10 JT 206 : (1999) AIRSCW 4915 , State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, AIR 1987 SC 943 : (1987) 54 FLR 524 : (1987) 1 JT 571 : (1987) LabIC 689 : (1987) 1 SCALE 457 : (1987) 2 SCC 179 : (1987) 2 SCR 444 : (1987) 2 UJ 55 .

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.

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)

Now Mr. P. Dhanapal, the then Commissioner, HR & CE, Chennai, is no longer in service. Therefore, the apprehension of the petitioner does not subsist. Present incumbent to the office, is directed to pass orders, uninfluenced by any observations made by the others, who have dealt with the issue, within a period of two months from the date of receipt of a copy of this judgment. Writ Appeal is disposed of accordingly. No costs. Consequently, M.P. (MD) No. 1 of 2014 is closed and M.P. (MD) No. 2 of 2014 is dismissed as indicated above.