M.Nirmal v. The District Collector

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.02.2019

CORAM

THE HONOURABLE Mr.JUSTICE S.M.SUBRAMANIAM W.P.No.32022 of 2018 and W.M.P.No.37277 of 2018 Mr.M.Nirmal

...Petitioner

Vs.

1.The District Collector, Dharmapuri, Dharmapuri District.

2.The Personal Assistant (General) to the District Collector, Dharmapuri, Dharmapuri District.

3.The Special Tahsildar (S.S.S) Nallampalli Taluk, Dharmapuri District.

... Respondents PRAYER:

Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari or any other or direction in the form of writ against the respondents to call for the entire records pertaining to issuance of the impugned order of memorandum of Charges dated 19.11.2018 in Na.Ka.No.17128/2018 (A4) passed by the 2nd respondent herein and quash the same.

For Petitioner :Mr.C.Umashankar For Respondents :Mr.A.N.Thambidurai, Additional Government Pleader

O R D E R

The charge memo dated 19.11.2008 is sought to be quashed in the present Writ Petition. The allegations set out against the writ petitioner in the impugned charge memo are extracted hereunder:

Annexure II provides statement of allegations and Annexure III provides the list of documents for establishing the charges. Thus there is no infirmity, as such, in respect of charges

framed against the writ petitioner.

2.The learned counsel appearing for the petitioner states that the writ petitioner is innocent of the allegations as he was not working in the particular post during the relevant point of time. Thus, the writ petitioner is not responsible for the allegations set out in the impugned charges. However, this Court is not inclined to consider the case on merits, in view of the fact that all such complex facts and circumstances are to be adjudicated by the competent authority, with reference to the original files available and by adducing evidences, the writ petitioner is bound to be participate in the process of enquiry and prove his innocence by availing the opportunity to be provided by the disciplinary authorities.

Contrarily the charge memo cannot be quashed on merits and by appreciating the factual details, now set out in the affidavit filed in support of the writ petition. Under this circumstances, it is left open to the writ petitioner to submit his explanations/objections on the allegations by availing the opportunity to be provided. 3.This being the factum, the charge memo cannot be quashed in the routine manner.

4.Therefore, this Court is of the opinion that there is no infirmity in the charge memo framed against the writ petitioner. A charge memo can be challenged on a limited ground and a judicial review against the charge memo is certainly limited. A charge memo can be challenged on limited grounds and the Court can entertain a writ petition on exceptional circumstances. A charge memo can be challenged, if the same was issued by an incompetent authority having no jurisdiction, an allegation of mala fides is raised if the same is in violation of statutory rules. Even in case of raising the allegation of mala fides, the authority against whom such an allegation is raised, has to be impleaded as a party respondent in the writ proceedings in his personal capacity. In the absence of any such legal grounds, no charge memo can be entertained by way of writ petition.

5.Intermittent intervention in the disciplinary proceedings is not preferable. However, only on exceptional circumstances, this Court can issue a direction against the proceedings and not in a routine manner. Mere issuance of a call letter to the writ petitioner directing him to participate in the domestic enquiry will not give any cause of action to move this writ petition under Article 226 of the Constitution of India. Thus, the writ petition is absolutely misconceived and the grounds raised in this writ petition cannot be considered.

6. The Honourable Supreme Court of India in the case of Union of India and others Vs. Upendra Singh, reported in (1994)

3 SCC 357 held as follows:

"6.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 function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Kamal v. Gopi Nath & Sons. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317, para 8) "Judicial review, it is trite, is not directed against the decision but is confined to the decisionmaking process.

Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."

7.In the case of Secretary, Ministry of Defence and Others Vs. Prabhash Chandra Mirdha, reported in (2012) 11 SCC 565, the Apex Court of India held that normally, a Charge memo is not liable to be quashed as it does not adversely affect the rights of an employee and does not give rise to any cause of action. A writ lies only when some right of a party is infringed. The charge memo does not infringe the right of a party. It is only when a final order imposing punishment or otherwise, it may have

a cause of action. Hence, writ petition challenging charge memo by itself is not maintainable. However, it can be quashed on the ground that issuing authority being not competent to issue the same.

8.In the case of Union of India and another vs. Kunishetty Satyanarayana [(2006) 12 SCC 58], it was held that writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not be ordinarily exercised by quashing a charge memo. No doubt, in some very rare and exceptional cases, the High Court can quash a charge memo if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal.

9. Accordingly, this Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar av/sai To 1.The District Collector, Dharmapuri, Dharmapuri District.

2.The Personal Assistant (General) to the District Collector, Dharmapuri, Dharmapuri District.

3.The Special Tahsildar (S.S.S) Nallampalli Taluk, Dharmapuri District.

+1cc to Mr.C.Umashankar, Advocate, S.R.No.19088 +1cc to the Government Pleader, S.R.No.18923 W.P.No.32022 of 2018 SSI(CO) RRS(16/04/2019)