IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.03.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.5747 of 2010 and M.P.NOs.1 and 2 of 2010 A.Govindaraj .. Petitioner Vs. 1.State of Tamil Nadu, rep. By Secretary to Government, Commercial Taxes and Registration (H1) Dept., Fort St. George, Chennai-600 009. 2.The Inspector General of Registration, Santhome High Road, Chennai-600 028. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records comprised in the proceedings of the first respondent in G.O.Ms.(2D)No.148, Commercial Taxes & Registration (H1) Department, dated 30th June, 2009 and that of the second respondent in his Memo No.31265/V3/2009 dated 15.7.2009 and Memo No.34540/V3/2009 dated 15.7.2009 as communicated to the petitioner on 1st of March 2010 and to quash the proceedings of the first and second respondents dated 30th June, 2009 and 15th July, 2009 respectively and consequently forbearing the respondents from proceeding against the petitioner departmentally and directing the respondents to settle the pension and terminal benefits of the petitioner. For Petitioner : Mr.V.Ramajegadeesan For Respondents : Mr.P.Subramanian, AGP - - - - ORDER
The petitioner who was working as a District Registrar, has filed the present writ petition represented through his Power of Agent, who is none other than his daughter. The Power of Agent has filed an affidavit in support of the writ petition. The prayer in the writ petition is to set aside the order in G.O.(2D)No.148, Commercial Taxes and Registration Department, dated 30.6.2009 and the charge memo, dated 15.7.2009 framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and seeks to prevent the respondents from proceeding with the departmental action and also to settle his terminal benefits.
2.It is claimed by the petitioner that he left the Country on 21.11.2009 to New Zealand along with his wife to help his eldest daughter in connection with her delivery of second child. The petitioner was placed under suspension on 17.6.2009 by G.O.(2D)No.143, Commercial Taxes and Registration Department, dated 17.6.2009 under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. As the petitioner was about to reach the age of superannuation on 30.6.2009, he was prevented from retiring from service by exercise of power under FR 56(1)(c) by G.O.(2D)No.148, CT&R Department, dated 30.6.2009.
3.It is at this stage, the petitioner filed a writ petition being W.P.No.11695 of 2009 seeking to challenge the order of suspension. When the matter came up for hearing, the petitioner did not inform this court on 22.7.2009 that already an order was issued by the State Government retaining him in service under FR 56(1)(c) by G.O.(2D)No.148, dated 30.6.2009. He tried to make it appear as if he was not in receipt of the said order and therefore, he informed this court that without an order under FR 56(1)(c) to retain him in service, an order of suspension pending enquiry may not arise and that the petitioner had completed 58 years on 30.6.2009.
4.Aggrieved by the order passed by the learned Judge, the State has filed an appeal in W.A.No.131 of 2010. As the petitioner had filed a caveat, it was informed to this court that since the petitioner was not allowed to retire, the question of passing further orders is unnecessary. The matter was directed to be posted on 11.2.2010 and the order of the learned single Judge was also stayed. Thereafter, when the matter came up on 11.2.2010, this court directed that interim order granted will continue. It was also observed as follows:
“Mr.V.Rama Jagadeesan makes a request that the pending enquiries be finalised at the earliest. The learned Government Pleader states that the respondent ought to co-operate in early completion of the enquiry. The State will see to it that the enquiries are completed, on an outer side, within six weeks from today.”
5.Therefore, in the normal circumstances, the petitioner must face the enquiry in the light of the stand taken by him. It is the case of the petitioner that after he left the country on 21.11.2009, the matter came to be disposed of and he never instructed his counsel to inform this court about his intention to participate in the enquiry and it was a wrongful concession given by his counsel. In any event, he had stated that inasmuch as his services were not extended before 30.6.2009, any order served on him thereafter has no value. Even as per the postal endorsement, it was received by his Head of the Department only on 6.7.2009, i.e. after six days after the date of his superannuation. The order not permitting him to retire was not served on him and the covering letter will show that the order was not served on him before his date of retirement. Since he had already reached the age of superannuation, any proceedings taken was not binding on him.
6.Mr.V.Ramajegadeesan, learned counsel appearing for the petitioner relied upon a judgment of the Supreme Court in Municipal Corporation of Delhi Vs. Qimat Rai Gupta and others reported in 2007 (7) SCC 309. This is for the purpose of holding that mere passing of the order is not enough, but it should be communicated.
7.However, this court is not persuaded to entertain the writ petition for more than one reasons. First of all, the writ is not maintainable as it is filed by the power of agent. Since the issue related to a service matter and the petitioner not suffering any disablement, the question of allowing his daughter that too as a power agent cannot be permitted. The affidavit filed in support of the writ petition must contain a sworn statement and it will be an affidavit of facts. Therefore, only facts within the knowledge of the petitioner cannot be made to be affirmed with by his daughter and she is not personally conversed with the case.
8.Secondly, the contentions raised by the petitioner that the order retaining him in service was not served on him when the charge memo came to be issued subsequently, is also not valid.
9.In this context, it is necessary to refer to the judgment of the Supreme Court in U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Tondon reported in (2008) 2 SCC 41. The following passage found in paragraph 40 may be usefully referred below:
40. Considering the facts and circumstances in their entirety, in our considered opinion, the High Court was wrong in holding that the proceedings were initiated after the respondent retired and there was no power, authority or jurisdiction with the Corporation to take any action against the writ petitioner and in setting aside the orders passed against him. In our judgment, proceedings could have been taken for the recovery of financial loss suffered by the Corporation due to negligence and carelessness attributable to the respondent employee. The impugned action, therefore, cannot be said to be illegal or without jurisdiction and the High Court was not right in quashing the proceedings as also the orders issued by the Corporation. The appeal, therefore, deserves to be allowed by setting aside the order of the High Court.
10.A similar view was taken by the Supreme Court in Secretary, Forest Department and others Vs. Abdur Rasul Chowdhury reported in 2009 (7) SCC 305. The following passage found in paragraph 15 may be usefully extracted below:
“15.In the present case, while the delinquent employee was in service, the departmental enquiry proceedings had been instituted by the employer by issuing the charge memo and the proceedings could not be completed before the government servant retired from service on attaining the age of superannuation and in view of Rule 10(1) of the 1971 Rules, the employer can proceed with the departmental enquiry proceedings though the government servant has retired from service for imposing only punishment contemplated under the Rules.”
11.The Supreme Court in National Textile Corpn. (M.P.) Ltd. v. M.R. Jadhav reported in (2008) 7 SCC 29 has categorically stated that communication of an order of suspension is not necessary if the order goes our of control of the appointing authority. The following passage found in paragraphs 23 and 24 may be usefully extracted below:
23. In MCD v. Qimat Rai Gupta9 this Court opined: (SCC p. 319, para 27)
27. An order passed by a competent authority dismissing a government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika6 but an order placing a government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram.)
24. Therefore, there cannot be any doubt whatsoever that communication of the acceptance of offer was necessary. An internal noting does not constitute a communication. Even in a case of order of suspension, only when the case goes out of the control of the appropriate authority, actual communication may not be necessary.
12.The Supreme Court in its decision in State of U.P. v. Brahm Datt Sharma reported in (1987) 2 SCC 179 dealt with the power of the Court in dealing with a charge memo at the show cause stage and the following passage found in paragraph 9 will make the position clear:
9. The High Court was not justified in quashing the show cause notice. 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.
13.The Supreme Court vide judgment in Special Director v. Mohd. Ghulam Ghouse reported in (2004) 3 SCC 440 in para 5 observed as follows:
5. 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.
14.Further, the Supreme Court in the judgment relating to Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 in paras 13 to 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 Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440, Ulagappa v. Divisional Commr., Mysore (2001) 10 SCC 639, State of U.P. v. Brahm Datt Sharma(1987) 2 SCC 179, etc.
14. 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 petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. 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.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16. 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.
15.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
23.03.2010
Index : Yes
Internet : Yes
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To
1.The Secretary to Government,
State of Tamil Nadu,
Commercial Taxes and Registration (H1) Dept.,
Fort St. George,
Chennai-600 009.
2.The Inspector General of Registration,
Santhome High Road,
Chennai-600 028.
K.CHANDRU, J.
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W.P.NO.5747 of 2010
23.03.2010