V. Andiappan vs State of Tamil Nadu

V. Dhanapalan, J.—This writ petition has been filed challenging the charge memo issued by the second respondent in Rc. No. 20381/95-A2

dated 22.11.1995 under rule 17(b) of the CCA Rules.

Brief facts leading to the filing of the writ petition are, as under:

(a) The petitioner, who was working as an Executive Officer (Selection Grade), Senthamangalam Town Panchayat, was issued a charge memo in

Proc.Rc. No. 61217/92-P3 dated 01.07.1992 under Rule 17(a) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules

challenging some irregularities in connection with the water supply. He was placed under suspension on 25.08.1992 on the ground of contemplated

enquiry into grave charges. Challenging the order of suspension, the petitioner filed an Original Application before the Tamil Nadu Administrative

Tribunal in O.A. No. 4315 of 1992 and the Tribunal stayed the order of suspension; subsequently, the petitioner was reinstated in service in Rc.

No. 61217/92-P3 dated 02.12.1992 as Executive Officer, Town Panchayat and posted to Maichery Town Panchayat and he joined duty on

08.12.1992.

(b) Since the petitioner approached the Tribunal, the District Collector, Salem as a vindictive measure issued a Charge Memo in Rc. No.

61217/92/(P3) dated 18.11.1992 under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, containing the 10

charges specified in charge memo dated 01.07.1992 under Rule 17(a) and 13 other fresh charges. The petitioner submitted his explanation on

07.07.1995 denying the charges in the charge memo dated 18.11.1992 and also stating that all audit objections have been settled and that the

charges against him may be dropped.

(c) Thereafter, to the shock and surprise of the petitioner, the Director of Town Panchayat, the second respondent issued the charge memo in Rc.

No. 20381/95-A2 dated 22.11.1995 under Rule 17(b) of the CCA Rules against the petitioner containing the same charges which were specified

in the charge memo dated 18.11.1992. Aggrieved by the second charge memo dated 22.11.1995, the petitioner has come up with the present writ

petition.

In the reply affidavit filed by the respondents, it is stated as follows:

(i) The Salem District Collector had issued a Charge Memo in Roc. No. 61217/92/F3 dated 18.11.1992 under Rule 17(b) of the Tamil Nadu

Civil Services Rules. On obtaining the delinquent''s explanation, the Assistant Director of Town Panchayats, Salem requested in his letter in Roc.

No. 61217/92 dated 21.07.1995 to appoint enquiry officer to enquire into this Disciplinary case. On verification, it was found that the charge

memo was signed by the District Town Panchayat Officer, Salem on obtaining the District Collector''s approval.

(ii) Thereafter, the Directorate issued a Charge Memo in Roc. No. 20381/95/B2 dated 22.11.1995 incorporating the charges framed by the

Salem District Collector in the earlier two charges in Roc. No. 61217/92/P3 dated 01.07.1992 (under 17(a) of the C.C.A. Rules) and in Roc.

No. 61217/92/P3 dated 18.11.1992 (under 17(b) of C.C.A. Rules). The explanation for the above charge memo has been obtained from the

delinquent officer on 14.12.1995 along with the questionnaire form. The Salem Zone, Assistant Director of Town Panchayats has been appointed

as enquiry officer vide proceedings Rc. No. 20381/95/B2 dated 25.01.1996. Finally, the Directorate has issued an order in Roc. No.

20381/95/B2 dated 23.03.1996 cancelling the earlier charge memos issued by the District Collector, Salem. 4. Heard Mr.S. Vadivelu, learned

Counsel for the petitioner and Mr.L.S.M. Hasan Fizal, learned Government Advocate for the respondents.

Learned Counsel for the petitioner has contended that the respondents have not taken any action pursuant to the explanation submitted by the

petitioner on 07.07.1995 for the charge memos issued by the District Collector, Salem on 18.11.1992; no oral enquiry was conducted and no

personal hearing was conducted as required under Rule 17(b) of the C.C.A. Rules. Further, no reason has been assigned in the third charge memo

dated 22.11.1995 under Rule 17(b) of the CCA Rules, as to why a fresh charge memo was issued by the second respondent.

Learned Counsel for the petitioner further contended that since the charges contained in the charge memos dated 18.11.1992 and 22.11.1995

are identical, unless reasons are given for the issue of the fresh charge memo dated 22.11.1995, the charge memo will suffer from the infirmity of

arbitrariness. It is also the contention of the learned Counsel for the petitioner that three charge memos have been issued by the respondent and the

charge memo dated 22.11.1995 does not supersede the charge memo issued by the Collector dated 18.11.1992.

Learned Counsel for the petitioner, in support of his contentions has relied on a Division Bench decision of this Court reported in A. Obaidhullah

Vs. The State of Tamil Nadu and The Tamil Nadu Administrative Tribunal, , wherein it is held as under:

...We have already mentioned that the second charge memo dated 05.12.1990 does not contain for cancellation of first charge memo dated

29.08.1978. It is not the case of the department that new materials have been gathered and based on the same, the second charge memo dated

05.12.1990 came to be issued. On the other hand, the very same charge based on the report of the Commission was reiterated in the fresh charge

memo dated 05.12.1990. The tribunal has overlooked the issuance of the second charge memo superseding the earlier charge memo without

adequate reason which is fatal to the disciplinary proceedings. It is useful to refer a Constitution Bench judgment of the Supreme Court in K.R.

Deb Vs. The Collector of Central Excise, Shillong, . The main contention before the Supreme Court was that in the presence of two earlier

reports, a third enquiry is not contemplated under Rule 15 of Central Civil Services (Classification, Control and Appeal) Rules, 1957. After

considering the said Rule 15, the Supreme Court has held : (para 12)

It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no

proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or

were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no

provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal

to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under

Rule 9.

In the light of the principles laid down in the Supreme Court decision, in the absence of any explanation for not pursuing the first charge memo and

issuance of fresh charge memo after a period of 12 years cannot be sustained. Though this objection was raised before the Tribunal, the same was

not properly appreciated. Though the Tribunal referred to the decision in State of Andhra Pradesh Vs. N. Radhakishan, , as rightly pointed out by

the learned Counsel for the petitioner, the Tribunal has overlooked the conclusion of the Supreme Court that the delinquent can always challenge

the second memo and rather even the first one on the ground of delay which he did. In other words, the petitioner did what the Apex Court has

opined in the above sentence and he challenged in O.A. No. 5664/1992 the issuance of the second charge memo dated 05.12.1990. We are

satisfied that the Tribunal has made the above observation, namely, ""no meaning in the applicant''s contention"" without application in mind. It is also

relevant to note that exercising statutory power in the statutory provision in General Rule 39(d) the authorities promoted the petitioner based on the

overall service record. In the light of the above discussion, we accept the first contention raised by Mr. Srinivasaraghavan.

In response, learned Counsel for the respondents has submitted that the Salem District Collector had issued a Charge Memo in Roc. No.

61217/92/F3 dated 18.11.1992 under Rule 17(b) of the Tamil Nadu Civil Services Rules; on obtaining the delinquent''s explanation, the Assistant

Director of Town Panchayats, Salem requested in his letter in Roc. No. 61217/92 dated 21.07.1995 to appoint enquiry officer to enquire into this

Disciplinary case; on verification, it was found that the charge memo was signed by the District Town Panchayat Officer, Salem on obtaining the

District Collector''s approval; hence, a fresh Charge Memo in Roc. No. 20381/95/B2 dated 22.11.1995 incorporating the charges framed by the

Salem District Collector in the earlier two charges in Roc. No. 61217/92/P3 dated 01.07.1992 (under 17(a) of the C.C.A. Rules) and in Roc.

No. 61217/92/P3 dated 18.11.1992 (under 17(b) of C.C.A. Rules) was issued. He further submitted that finally the Directorate has issued an

order in Roc. No. 20381/95/B2 dated 23.03.1996 cancelling the earlier charge memos issued by the District Collector, Salem.

Heard the learned Counsel on either side.

On a perusal of the relevant records leading to the facts and circumstances of the case, it is seen that the petitioner was working as Executive

Officer, (Selection Grade) at Senthamangalam Town Panchayat, Salem District. He was served with a charge memo dated 01.07.1992 under Rule

17(a) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, (in short ''the Rules'') alleging some irregularities in connection

with water supply. Subsequently, on 25.08.1992, he was placed under suspension on the ground of contemplating enquiry into grave charges. He

challenged the suspension order before the Tamil Nadu Administrative Tribunal (in short ''the Tribunal'') in O.A. No. 4315 of 1992. The Tribunal,

on consideration of the case, granted stay of the order of suspension and the petitioner was reinstated in service on 02.12.1992 as Executive

Officer; posted to Maichery Town Panchayat and he joined there on 08.12.1992. It is further seen that while that being the position, the third

respondent herein, the Collector, Salem District issued a Charge Memo in RC. No. 61217/92 (P3) dated 18.11.1992 under Rule 17(b) of the

Rules. It appears that the earlier Charge Memo dated 01.07.1992 was issued under Rule 17(a) and the Charge Memo dated 18.11.1992 was

issued under Rule 17(b) by the Collector, Salem District, besides 13 other charges in addition to the earlier 10 charges. The petitioner had

submitted his explanation on 07.07.1995 denying the charges and submitted his defence. However, pending those two Charge Memos, the

Director of Town Panchayat, the second respondent has issued another Charge Memo in Rc. No. 20381/95-A2 dated 22.11.1995 under Rule

17(b) containing 25 charges. Aggrieved by the identical Charge Memos, the petitioner has challenged the last Charge Memo dated 22.11.1995 in

this writ petition on various grounds, viz., (i) the first and second Charge Memos dated 01.07.1992 and 18.11.1992 are without any action even

after submitting the explanation and filing the statement of defence; (ii) neither oral enquiry was conducted nor an opportunity of personal hearing

was afforded to the petitioner; (iii) the charges in Charge Memos 2 and 3 are identical but no reasons are assigned for the issuance of the third

Charge Memo; (iv) the third Charge Memo impugned in this writ petition does not supersede the second Charge Memo and the respondents have

exercised their power arbitrarily and (v) to determine whether the Charge Memo impugned in this writ petition is in accordance with the procedure

contemplated and it can be issued without assigning any reason. It is also the case of the petitioner that there was no consideration of his earlier

explanation and the statement of defence.

To answer the above points, it would be relevant to consider the Charge Memo dated 01.07.1992 and the Charge Memo dated 18.11.1992

changing rule from 17(a) to 17(b), the second Charge Memo added with some more charges, for which the petitioner has submitted his

explanation and the defence statement. Pending the Charge Memos and instead of taking action on the same, the second respondent has now

come out with a fresh Charge Memo with 25 charges almost identical to the second Charge Memo dated 18.11.1992.

The defence taken by the Director of Town Panchayat, the second respondent appears that the Charge Memo was issued by the District

Collector on 18.11.1992; on obtaining the petitioner''s explanation, the Assistant Director of Town Panchayats, Salem requested to appoint

Enquiry Officer to enquire into the disciplinary case. Thereafter, it was found that the Charge Memo was signed by the District Town Panchayat

Officer, Salem, on obtaining the District Collector''s approval; therefore, they have issued a fresh Charge Memo. The point that arises for

consideration is that while exercising statutory power in the statutory provision with the authority concerned before issuing the Charge Memo,

whether change of one authority to another authority would be the reason for issuance of a fresh Charge Memo.

In the instant case, there are two Charge Memos with ten charges and 23 charges, respectively. The impugned Charge Memo dated

22.11.1995 containing 25 charges issued by the Director of Town Panchayat, the competent authority shows that the respondents have exercised

their power arbitrarily. The second respondent ought to have proceeded with the same set of charges made by the District Collector on

18.11.1992; instead, he has proceeded in issuing another Charge Memo on his own and it appears that it goes against the very root of the

authority, who has not applied his mind to go into the relevant provisions for conduct of the disciplinary proceedings, issuance of Charge Memos

and also not taking a decision, when the petitioner has submitted his explanation and defence statement. As far as the reliance made by the learned

Counsel for the petitioner is concerned, the aspect dealt therein is inordinate delay which is not so in the instant case and as such, I am of the view

that it is not applicable to the case on hand.

In my opinion, the second respondent herein has acted in contravention of the rules instead of proceeding with the Charge Memo dated

18.11.1992 already issued by the District Collector. In the absence of any valid reasons by the respondents in not proceeding with the Charge

Memo dated 18.11.1992, the reasons advanced by them appears to be flimsy and are not in their favour. Therefore, this Court finds that the

Charge Memo dated 22.11.1995 suffers from legal infirmity and it is against the settled principles and contrary to the rules and accordingly, it is

quashed. However, the second respondent is at liberty to pass appropriate orders based on the Charge Memo dated 18.11.1992 and the

explanation submitted by the petitioner for the same and also his defence statement, after following the due procedure contemplated under the rules

and also bearing in mind, the pendency of this case before this Court for a longer period. This exercise shall be completed by the second

respondent within a period of twelve weeks from the date of receipt of a copy of this order.

Resultantly, the writ petition is allowed with the afore-said direction. No costs.