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Judgment
Ramanujam, J.—All these writ appeals relate to the same subject matters and hence they are dealt with together.
The first three writ appeals have been filed by the State Government and the Inspector-General of Prisons Challenging the orders passed by
Sathiadev, J., in Writ petition Nos. 304, 390 and 391 of 1982, and Writ Appeal No. 761 of 1982 has been filed by one Thiru Vidyasagar against
the order passed in Writ Petition No. 391 of 1982 in so for as it is against him. The contesting Respondents in these writ appeals, Thiru S.
Vasudevan originally filed Writ Petition No. 304 of 1982 to quash the charges framed against him by a memo, dated 29th August, 1981. Later he
filed Writ Petition No. 390 of 1982 seeking to set aside the order of suspension, dated 7th October, 1980 passed against him pending enquiry into
the charges framed against him. He also filed Writ Petition No. 391 of 1982 seeking a writ of mandamus to promote him to the post of Deputy
Inspector-General of prisons a on 29th March, 1980, the date on which the said vacancy arose. All the above, three writ petitions have been
allowed by Sathiadev J. and these writ appeals have been filed by the Respondents in the writ petitions, challenging the orders passed in the writ
petitions.
The Circumstances under which the writ Petitioner (Thiru Vasudevan) came before this Court may briefly by stated: On, 10th June, 1980 the
Petitioner in the writ petitions. Thiru S. Vasudevan, was directly recruited to the Tamil Nadu Prisons Service. He joined duty as Additional
Superintendent of Central Prisons Madras on 10th January, 1961 after completion of his training. He later served as a Superintendent of Prisons at
various centre such as Madras, Salem, Coimbatore, Trichy, Madurai, Cuddalore, etc. While he was serving as Superintendent, Central Prison,
Salem from 11th November, 1965 to 31st May 1977 he has purchased springs for manufacture of costs in excess of requirement without any
specific order. Since the springs purchased excessively for a sum of Rs. 54,953 were not actually required by the Department they had become
rusted and they were later auctioned for a party sum of Rs. 3,610. In the audit report, date 30th May, 1970 the purchase of springs in excess of
the requirements and without requisite authority was brought to the notice of the higher authorities. Based on the audit report a memo dated 7th
July 1975 was issued to the Petitioner by the Inspector-General of Prisons asking him to show-cause why he should not be dealt with suitably for
his lapse in making necessary bulk purchases and this locking Up Government money contrary to the Godal provisions. The Petitioner sent his
explanation on 1st August 1975. After the receipt of the explanations, a charge memo dated 10th July 1976 was issued to the Petitioner containing
two charges (1) indiscriminate purchase of cot iron springs in violation of Article 124 of the Tamil Nadu Financial Code, Volume I and the
instructions contained in paragraph 1142(b) and (2) unnecessary locking up of the Government money in the shape of raw materials. As regards
the said charge-memo the Petitioner submitted his explanation on 15th April 1977. Thereafter second memo dated 26th June 1980 was issued by
the Inspector-General of Prisons asking him to show cause why the net loss of 75 percent should not be recover red from him. In the meanwhile in
August, 1980 the Petitioner''s name was recommended for promotion. At that stage he was the Chairman of the Promotion Board for selection of
Assistant Jailors from Chief Head Warders., According to the Petitioner the ranks in the list of selected candidates by the Promotion Board of
which he was the Chairman was altered by the Inspector-General of Prisons and he therefore wrote a letter to the Inspector-General of Prisons on
27th September, 1980 questioning the alteration in the ranking and this has in furriated the Inspector General of Prisons and therefore he passed
the order of suspension, dated 7th October 1980. On 29th August 1981 a fresh charge-memo was issued setting out the following charges (1)
Indiscriminate purchase of iron cot springs at various sizes at inflated rate''s and with an understanding with one Mr. P.C. Ramamoorthy of M/s.
Dhanalakshmi Trades, Salem,(2) The Purchase was in violation of the Code provisions and departmental circulars resulting in locking up of
Government money and also ultimately leading to the loss to Government to the tune of Rs. 54,953.23. On the same day the Petitioner was
informed that the charges framed against him on (sic)th July, 1976 and 26th June,1980 bad been cancelled and fresh memo of charges is enclosed
instead, Writ Petition No. 304 of 1982 was directed against the charge-memo dated 29lh August, 1981 and Writ Petition No. 39 of 1982 is
directed against the order of suspension dated 7th October, 1980. The substantial contention raised by the Petitioner in Writ Petition No. 304 of
1982 is as follows There has been a considerable delay from the date of purchase of the iron springs till the charges are framed, and therefore the
charges cannot be sustained. Even assuming that the charges, framed against him on 7th July,1975 could be sustained, since the recovery from
salary has been ordered by a memo, dated 26th June, 1980, final decision should be deemed to have been taken in relation to the transaction of
purchase of springs and therefore, no further enquiry is called for in relation to the same transaction, Since the earlier charge-memos dated 7th July,
1975 and 26th June 1980 have been cancelled by the second Respondent by a memo, dated 29th August, 1981, No. fresh charge in relation to
the same, transaction could be framed. After the issue of the order, dated 26th June. 1980 seeking o recover the loss raid to have occurred to the
Government in the purchase of iron cot springs, there is no question of any further enquiry pending or contemplated and therefore, his suspension
pending enquiry cannot legally be sustained. It is also submitted that the order of suspension passed nearly five years after the original memo of
charges, dated 7th October 1981 is a mala fide action on the part of the second Respondent. Thus the main and substantial contention in the writ
petition was that the charges framed against the Petitioner on 7th July, 1975 and 26th June, 1980 having been enquired into and a final decision
having been taken by passing an order recovery for the loss incurred by the Government, there is no question of framing of another set of fresh
charges in respect of the same transaction or 1 he conduct of the enquiry thereon. Therefore the charges framed, on 29th August, 1981 are
vitiated. For the same reasons the suspension order passed against the Petitioner pending enquiry has been challenged in Writ Petition No. 390 of
1982.
In the counter-affidavit filed on behalf of Respondents and 2, it has been stated that the Petitioner, while working as superintendent, Central
Prison, Salem from 11th November, 1965 to 31st May,1970 had purchased springs or manufacture of cots, that these springs got rusted and
therefore, they had to be auctioned and the value fetched in the auction was Rs. 3,610 that at the time of the auction it was found out that the
springs have been purchased at inflated price for an aggregate sum of Rs. 54,953-23, that after the auction amount is deducted the total loss came
to Rs. 51,343.23, that the materials gathered subsequent to the teaming of the earlier charges led to the belief that it is not a bona fide transaction
and therefore, the Government felt the need for a further probe by the Director of Vigilance and Anti-Corruption and that it is at that stage the
Petitioner was placed under suspension pending an enquiry, that after examining all facts and figures the Government directed the Vigilance and
Anti-corruption department to conduct a detailed enquiry, that the Government had applied their mind independently apart from getting a report
from the Inspector-General of Prisons and have exercised their powers under Rule 17(3) of the Tamil Nadu Civil Services (Classification, Control
and Appeal) Rules and passed the order of suspension and, therefore, the order of suspension cannot be said to be illegal or untenable. After a
detailed enquiry, the Director of Vigilances and Anti-corruption reported that there was enough evidence to show not only total indifference in the
handling of the matter by the writ Petitioner and the storekeeper, Central Prison Salem which resulted in financial loss to the Government but also
lack of good faith. He had also recommended that for the indifferent negligent and non-bonafide conduct of both the Petitioner and the store-
keeper they may be dealt with departmentally. Based oh the recommendations of the Vigilance Commissioner and after a careful consideration of
his report the Government decided that disciplinary action against them should be taken departmentally on the substantiated allegations and the
Inspector-General of Prisons was directed to initiate the necessary action. At that stage, in the place of the charges already framed, fresh charges
were framed hi the Memo, dated 29th August, 1981 after cancelling the earlier memo of charges. In the counter affidavit reference has been made
to the audit report of the Accountant General dated 30th May 1970 bringing to the notice of the Government that 10,171 numbers of iron springs
for cots valued at Rs. 40,000/ had been carried over from 1968-69 in the stock book and there had been no issue during that year and the result
was that 10,171 numbers of iron cot springs were lying idle and that these springs were likely to get rusted and lose their temper. Based on that
report the matter was further probed and records were collected. It is said that based on such probe, on 7th July, 1975 the Petitioner was asked
to explain why he made such bulk purchase without the previous orders of the Inspector-General of Prisons and without obtaining a firm order.
Since the explanation submitted by the Petitioner was not satisfactory, he was issued a charge memo dated 10th July, 1976 calling for his
explanation for imposing suitable punishment for his failure to follow the Code provisions and statutory instructions contained in Tamil Nadu Prison
and Reformatory Manual, Volume II. The Petitioner submitted his explanation on 15th April, 1977. The enquiry Officer prepared his minutes and
sent them to the Government. In the minutes the Enquiry Officer has recommended for the recovery of 75 percent of the loss amounting to a sum
of Rs. 23,166.23, and the other 25 per cent from the store-keeper. But the Government without right way accepting the recommendation directed
the assessment of the actual total loss sustained by the Government after disposing of the idle stock by public auction or otherwise. Accordingly the
total stock of idle iron cot springs of various sizes were auctioned on 30th November, 1979 for Rs. 3,610. Deducting the said auction amount, the
loss to the Government was determined as Rs. 51,343.23 (Rs. 54,953-23-3,610 - Rs. 51,343.23). It is at this stage a show-cause notice, dated
26th June, 1980 was issued to recover the proportionate loss from the Petitioner. In the mean-time the auction sale of the iron cot springs brought
to light a further fact that the purchases have been effected at inflated rates showing tint the transaction of purchase is a mala fide one. The
Government therefore felt that the Petitioner''s indiscriminate purchase of iron cot springs without any demand for the cots at a cost of Rs. 54,953-
23 is highly irregular and it is a malafide transaction locking up Government money. This charge that iron cot springs were purchased at inflated
rates being a serious matter involving the integrity of the Officer, the earlier charges were cancelled and a fresh set of charges were framed on 29th
August, 1981. As no final orders were passed in relation to the charges referred in the memo of charges dated 10th July, 1976, fresh charges can
be framed in super session of the earlier charges and the mere cancellation of the earlier charges-memo and issuing a fresh charge memo will not
amount to giving up of the charges against the Petitioner.
Sathiadev J., who heard the writ petition has taken the view that since there was been an enquiry on the charges framed on 10th July, 1976 as
contemplated by Rule 17(a) of the Tamil Nadu Civil Services (Classification, Control and Appeal), Rules and the charges have subsequently been
cancelled, fresh charges cannot be initiated in relation to the same transaction. The learned Judge proceeds on the basis that the allegations in the
first charge - memo, dated 10th July, 1976 and those in the fresh charges framed on 29th August, 1981 are the same as they flow from the same
set of facts, and therefore, once the earlier charge-memo dated 10th July 1976 has been cancelled, the decision of the Government to conduct a
fresh enquiry under Rule 17(b) on the same set of facts and circumstances cannot be legal. According to the learned Judge once a decision has
been taken not to proceed against the Petitioner under Rule 17(b) but to proceed against him only under Rule 17(a) in relation to the facts set out
in the memo, dated 10th July, 1976, it is not open to the Government at a latter stage to start an enquiry under Rule 17(b) in relation to the same
set of facts. It is in this view the learned Judge has quashed the fresh memo of charges, dated 29th August, 1981. The learned Judge has relied on
a catena of decisions to show that in a case where a delinquent facing departmental. enquiry has been exonerated after enquiry a second enquiry
on the same set of facts cannot be held. The learned Judge himself has observed that this is not a case where the entire gamut of enquiry had been
gone through and orders had been passed holding that the charges have not been established. However, the learned Judge has taken the view that
even if the matter has not gone through the entire process of disciplinary proceeding, and nothing precludes a disciplinary authority to cancel the
disciplinary proceedings at any stage of the matter, once a decision has been taken to drop or cancel the charges, such cancellation is as much an
order, of exoneration as may be passed alter a full-fledged enquiry is held.
It is not possible for us to accept the said reasoning of the learned Judge. It is no doubt true, if there is a mere, cancellation of the earlier charge-
memo without more it could be said that the Government had felt that there is necessity for continuation of the disciplinary proceedings against the
Petitioner. But in this case the memo, dated 29th August 1981 cancelling the charge. memo, dated 10th July;197o refers to and is followed up by a
fresh memo of charges. Therefore the co cancellation of the earlier memo cannot be divorced from the fresh memo. Though the fresh memo is
drawn up as a separate proceeding, it should be taken to be in suppressing of the earlier charge-memo, The power of the disciplinary authority to
reframe the charges in the place of the earlier charges, if it finds that the earlier charge-memo requires modification cannot be doubted. It is well-
established that in matters like this the form does not matter but it is the substance the counts; In this case the charge-memo, dated 10th July, 1976
has not been cancelled on the ground that no case has been made out against the Petitioner but because a fresh set of charges have been framed
instead. It is because a detailed enquiry under Rule 17(b) is contemplated on the fresh set of charges the earlier charge memo was cancelled. We
are not inclined therefore, to agree with the learned Judge that the cancellation of the charge-memo, dated 10th July, 1976 and the substitution of
the same with a fresh memo will result in the Government giving up the earlier charges on the ground that no case has been made, out against the
Petitioner and disabling themselves from conducting an enquiry on the fresh charges. The various decisions referred to by the learned Judge have
no application here as in this case there was no final orders passed on the first set of charges and therefore, it cannot be said that the Petitioner has
been exonerated of the charges. Though a notice proposing recovery was issued on 26th June, 1980 in pursuance of the Enquiry Officer''s
recommendation no final orders had been passed, as in the meanwhile the further probe revealed that the purchase of iron cot springs has been
made at inflated prices in association with certain party. Therefore the mere framing of charges earlier without resulting in any final order will not
prevent the Government refraining the charges so long as no final orders have been passed on the earlier charges. In this view of the matter, we
cannot uphold the order of the learned Judge holding that no enquiry could be conducted in relation to the fresh charges framed on 29th August,
1981.
The learned Counsel for the Petitioner relies on the decision in P.F. George Vs. The State of Tamil Nadu and Another, in support of his plea
that the in coordinate delay in the passing of final orders in relation to the earlier charge-memo should be taken to invalidate fresh disciplinary
proceedings initiated with reference to the new charges. In that decision referred to above, the inaction on the part of the authority for nearly
thirteen years was taken to constitute abandonment of the charges. In that cast the person concerned was promoted though the charges were
pending against him for a long time and the factum of promotion was also taken to indicate that the disciplinary authorities were not keen to
proceed with charges But in this case there is no such inaction on the part of the disciplinary authority though there is considerable time-lag from
the date of the audit report bringing to light the transaction of purchase of springs by the Petitioners and the fresh charges framed. The facts of this
case will clearly indicate that the matter was being probed continuously, originally by the department and later by the Vigilance and Anti-corruption
department and the materials gathered at the various stages have been taken as the basis for framing the fresh set of charges. As a matter of fact
the Respondents 1 and 2 have not kept quiet after framing of the first set of charges but they have been probing deep into the matter and have
been collecting further materials. There is no material before us from which we could conclude that the first and second Respondents did intend at
any stage to abandon the charges framed against the Petitioner. We cannot, therefore, sustain the order of the learned Judge quashing the fresh set
of charges and stating that no disciplinary enquiry could be conducted on those charges. We are of the view that the Government are at perfect
liberty to proceed with the disciplinary enquiry on the fresh set of charges.
Coming to the order of suspension passed on 7th October, 1980 pending enquiry into the charges, the learned Judge has quashed the same on
the following grounds; (1) The charges, framed against him is not that serious as to warrant an order of suspension and (2) the order of suspension
is borne of mala fides. It is however, unnecessary to go into the tenability of the reasons given by the learned Judge as we are of the view that even
other wise the order of suspension could not be sustained. From the facts stated above it will be seen that the order of suspension was passed on
7th October, 1980 pending enquiry into the charges levelled against the Petitioner on 10th July, 1976. By a communication, dated 29th August,
1981 the charge-memo, dated 10th July, 1976 has been cancelled. The result of cancellation of the said charges will automatically result in the
cancellation of the order of suspension. There is no subsequent order of suspension passed by the concerned authority based on the fresh set of
charges, dated 29th August, 1981. Unless a fresh order of suspension is passed based on the fresh set of charges, dated 29th August, 1981, the
order of suspension passed on the basis of the pendency of the charge-memo, dated 1oth July, 1976 which stands cancelled cannot automatically
be taken to continue even after the cancellation of the said charges. Since the order of suspension was passed long before the framing of the fresh
charges, the suspension order cannot be supported with reference on the fresh set of charges after the cancellation of the original charges, dated
10th July, 1976. Therefore the order of the learned Judge impugned in Writ Petition No. 390 of 1982 and quashing the order of suspension is
sustained but on a different ground and not for the reasons set out by the learned Judge.
Coming to Writ Petition No. 391 of 1982 wherein the Petitioner seeks a writ of Mandamus for promoting him to the post of Deputy Inspector-
General of Prisons. It is seen that Thiru Vidyasagar, the third Respondent in Writ petition No. 391 of 1982 was senior to the Petitioner, that he
was under order is of suspension when the proposals for filling up the vacancy of Deputy Inspector-General of Prisons arose and that therefore,
the Petitioner''s name was recommended. However, latter before the actual appointment could be made, the suspension order as against Thiru
Vidyasagar had been revoked and he had been restored to duty, Therefore, in the nature of things since he was senior to the Petitioner, he was
promoted to the post of Deputy Inspector-General of Prisons. Admittedly the Petitioner cannot have superior claim as against Thiru Vidyasagar.
Therefore the appointment of Thiru Vidyasagar as Deputy Inspector-General of Prisons in the then existing vacancy cannot be questioned. It is
also not open to the Petitioner now to claim that he should be considered for promotion to the Post of Deputy Inspector-General of Prisons which
is now being occupied by his senior. Merely because while sending the proposals his name was recommended for promotion does not mean that
he has acquired a vested. right to the promotional post. A perusal of the order of the learned Judge, does not indicate that Thiru Vidyasagar''s
seniority was kept in mind while giving directions to Respondents 1 and 2 to consider the claims of the Petitioner for promotion as Deputy
Inspector-General of Prisons. In view of the fact that a person senior to the Petitioner was available and he was not disqualified for promotion, his
appointment cannot be questioned by the Petitioner.
The result in ""Writ Appeals Nos. 6 and 8 of 1983 and Writ Appeal No. 761 of 1982 are allowed but Writ Appeal No. 7 of 1983 is
dismissed. There will, however, be no order as to coats.