{"id":240695,"date":"2009-08-18T00:00:00","date_gmt":"2009-08-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-liyakath-ali-khan-vs-the-state-of-tamilnadu-on-18-august-2009"},"modified":"2019-01-31T01:34:35","modified_gmt":"2019-01-30T20:04:35","slug":"n-liyakath-ali-khan-vs-the-state-of-tamilnadu-on-18-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-liyakath-ali-khan-vs-the-state-of-tamilnadu-on-18-august-2009","title":{"rendered":"N. Liyakath Ali Khan vs The State Of Tamilnadu on 18 August, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
N. Liyakath Ali Khan vs The State Of Tamilnadu on 18 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED 18.08.2009\n\nCORAM\n\nTHE HON'BLE MR. JUSTICE M.M.SUNDRESH\n\nW.P.NoS.15402 & 23780 of 2008\n\nand\n\nM.P.No.1 of 2008 in W.P.No.15402\nM.P.No.1 of 208 in W.P.No.23780\n\n\n\n\nN. Liyakath Ali Khan,\t\t\t    \t\t.. Petitioner in both the \t\t\t\t\t\t\t\t\twrit petitions.\n- Vs -\n\n1. The State of Tamilnadu,\n    Represented by its Secretary,\n    Labour and Employment (E) Department,\n    Fort St. George,\n    Chennai  600 009.\n\n2. Commissioner of Labour,\n    Teynampet,\n    Chennai  600 006.\t\t\t\t\t.. Respondents in \n\t\t\t\t\t\t\t\tW.P.No.15402\/2008\n\n\n1. The State of Tamilnadu,\n    Represented by its Secretary,\n    Labour and Employment (E) Department,\n    Fort St. George,\n    Chennai  600 009.\n\n\n\n\n\n\n2. Tribunal for Disciplinary Proceedings \n    5\/1845\/A, Trichy Road,\n    Market Committee Complex,\n    Ramanathapuram, Coimbatore.\n \n\t\t\t\t\t\t\t\t .. Respondents in \n\t\t\t\t\t\t\t\tW.P.No.23780\/2008\n\n\nPrayer : Petition in W.P.No.15402 of 2008 is filed under Article 226 of the Constitution of India  for issuance of  a  Writ of Mandamus  directing the respondents to pass appropriate orders to relieve the petitioner from service of the respondents and to grant all monetory retirement benefits without prejudice to their rights to initiate action if so necessary against the petitioner under the pension rules expeditiously within a time frame as may be fixed.\n\n\tPetition in W.P.No.23780 of 2008 is filed under Article 226 of the constitution of India for issuance a Writ of Certiorarified  Mandamus directing to call for the records of the 2nd respondent made in proceedings No.RC.No.502\/2008\/A1 dated 11.07.08 and quash the same and consequently direct the respondent to permit the petitioner to retire from the date of his superannuation on 31.12.2006 with pension, gratuity all other attendant monetary benefits with interest. \n\n For Petitioner  in both Wps.     :   Mr.S.Silambanan, Senior Counsel\n\t\t\t\t\t\tfor M\/s S.Silambanan Associates \n\n For Respondents in both Wps.  :   Mrs. Lita Srinivasan\n\t\t\t\t\t\tGovernment Advocate\n\t\t\t\t\t\tRespondent 1 & 2 \n\n\nORDER\n<\/pre>\n
\tThe petitioner herein joined as the Labour Officer on 18.05.1985.  Thereafter, he was promoted as Assistant Commissioner of labour in the year 1990.   Further, he was promoted as the Deputy Commissioner on 02.06.1997.  By the proceedings dated 28.12.2006 and 29.12.2006, the petitioner was kept under suspension, thereby not allowed to retire eventhough he attained superannuation on 31.12.2006.\n<\/p>\n
\t2.\tThe petitioner has filed a Writ Petition in W.P.No.448 of 2007 challenging the order of suspension, which was rejected by learned single Judge and confirmed by the Division Bench of this Court.  The Division Bench, while disposing of the Writ Appeal in W.A.No.752\/07 on 08.06.2007,  has directed the respondents to complete the enquiry within a period of six months.\n<\/p>\n
\t3.\tThereafter the petitioner gave representations on 23.02.2008 and 03.03.2008 requesting the respondents for the copy of the charges and the reasons of his suspension.  The petitioner filed an application for contempt is Contempt Petition No.299\/08 contending that the order passed by the Division Bench in Writ Appeal 752\/2007 dated 08.06.2007 was violated  inasmuch as  the  proceedings have not  been completed.  By order dated 17.04.2008, the said contempt petition was closed, directing the respondents to “communicate the Charge Memo”   Thereafter, the 1st respondent has passed  G.O(D)No 191 Labour and Employment (E) Department dated 27.05.2008 stating that the enquiry the two charges were dropped.  In pursuance of the same, charges were framed by the 2nd respondent in W.P.23780\/2008 and were communicated the petitioner.\n<\/p>\n
\t4.\tThereafter the Writ petitioner filed  W.P.No.15402 of 2008 seeking the relief of mandamus, directing the respondents to relieve  him and take action on the Pension Rules.   The petitioner has also filed  a Writ petition subsequently in W.P.No.23780 of 2008 to quash with the charge memo dated 11.07.2008 and for further direction to permit the petitioner to retire from the date 13.01.2006, which was the date of superannuation,  with all consequential benefits.  The petitioner also filed M.P.No.1 of 2008 in W.P.No.15402  of 2008 seeking medical benefits.\n<\/p>\n
\t5.\tThe petitioner has filed another petition in W.P.No.13326 of 2009 seeking a copy of the basic complaint from the respondent.  The said Writ Petition was disposed of on 16.07.2009 this Court, directing the respondents to consider the representation of the petitioner within a period of 4 weeks from the date of receipt of a copy of the said order.\n<\/p>\n
\t6.\tThe  learned Senior Counsel for the petitioner submitted that the petitioner has been made to run from  pillar to post and he was also made to file a series of writ petitions due to the inaction  on the part of the respondents.  The learned Senior Counsel further submitted that inspite of orders passed by the Division Bench, at that point of time, the petitioner was not aware of the charges against him.  In fact, the charges have been subsequently framed.\n<\/p>\n
\t7.\tThe  Learned Senior Counsel further submitted that a reading of the charges, would show that all of them are quasi judicial to the functions discharged by the petitioner and in as much as the petitioner was discharging quasi judicial function, the same cannot be the basis for initiating department proceedings.  The Learned Senior Counsel further submitted that the reasonings assigned for coming to the decision are also quasi judicial and further the correctness or otherwise of such reasonings cannot form the basis for the departmental enquiry.  It is also submitted that inasmuch as no appeal has been preferred against any of the award passed by the petitioner, the respondents cannot presume anything against the petitioner.  Therefore, it has to be taken that all the decisions  are rendered correctly, in the absence of any challenge by any one of parties to the proceedings.\n<\/p>\n
\t8.\tThe Learned Senior Counsel also relied upon the judgement reported in AIR 2001 Supreme Court 2788 P.C. Joshi Vs. State of U.P. And submitted that the mere possibility to arrive at a different conclusion on the given set of facts, cannot be ground to take action against him.  The learned Senior Counsel also submitted that the 2nd respondent in W.P.No.23780 of 2008 has not obtained permission to issue the charge memo, since the said authority being the enquiry officer, has to perform as per Rules.\n<\/p>\n
\t9.\tThe learned Senior Counsel also submitted that the reasoning assigned by the respondents for  rejecting the claiming of the petitioner who is admittedly heart patient, requiring a surgery on the ground that the petitioner is not full time permanent employee, is not correct.\n<\/p>\n
\t10.\tThe learned Senior Counsel submitted that the even under the Pension Rules, the petitioner is entitled to get the medical reimbursement.  Therefore the learned Senior Counsel submitted that the denial of the request of the writ petitioner is unsustainable in law and on facts.\n<\/p>\n
\t11.\tPer contra, the learned Government Advocate appearing  for the respondents submitted that the delay in completing the proceeding is only due to the attitude of the petitioner.  According to the learned Government Advocate, when the charges were framed as early as on 11.07.2008.  It is the writ petitioner who challenged the same.  Instead of going through  the enquiry and thereafter asking for the required documents, which is relied upon the department,  the Petitioner has come to the court seeking documents at the threshhold stage.  The learned Government Advocate submitted that the charge memo has to be framed in according the Division Bench direction since the  Division Bench only stated that the enquiry has to be completed within 6 months, since the whole of the proceedings were pending with the vigilance and Anti Corruption and  therefore, the  directions had been complied with.  Therefore, the learned Government Advocate submitted that the direction of the  Division Bench in Writ Appeal 1550 of 2007 has been promptly complied with and that is the reason why the contempt petition was closed.\n<\/p>\n
\t12.\tThe learned Government  Advocate further submitted that the second  respondent in W.P.No.23780 of 2008 is the competent authority to frame charge memo and conduct disciplinary proceedings.  As far as Rule 8A(1) of the Tamil Nadu Civil Services(DPT) Rules, 1955, is concerned, it  provides that when there was charges of corruption,  coupled with other charges, then the second  respondent is the competent authority to frame the charges and proceed thereafter.\n<\/p>\n
\t13.\tThe Learned Government Advocate further submitted in asmuch as the charge framed against the petitioner is one of corruption, the judgement relied upon by the learned Senior Counsel reported in AIR 2001 Supre Court 2788 is not applicable to that the facts of the present case.  Similarly the decision relied upon by  learned Senior Counsel, reported in 2008 (8) SCC 236 State of Uttaranchal  Vs. Kharak Singh is also not applicable, since in the present the case, Rule 8 A(1) provides for the charges to be framed  by the 2nd respondent.\n<\/p>\n
\t14.\t Insofar as the request of the writ petitioner regarding medical reimbursement is concerned,  the learned Government Advocate  submitted that the said request has been rejected rightly by the respondents, in view of the Government Order passed in G.O.No.18 Finance (Allowance-I) Department, dated 09.01.1992 since the petitioner is not a full time regular (time scale) employee.  Further, inasmuch as the petitioner has superannuated and he was not allowed to retire only for continuation of the proceedings, the question of payment of medical expenses does not arise and hence  the learned  Government Advocate sought for dismissal of the writ petitions.\n<\/p>\n
\t15.\tI have heard the submissions of the learned counsel for eitherside.\n<\/p>\n
\t16.\tWith respect to the alleged corruption in discharge of the duty by the writ petitioner, the mere non filing an appeal alone cannot be ground to quash the charge memo at the present stage.  That fact has to be considered by the  2nd respondent at the time of deciding the departmental enquiry and thereafter it is for the displinary authority to decide  the same taking into consideration the above said contention.  In the present case,  the charges have been framed and about 42 witnesses have been shown in the charge memo,   The respondents also marked about  57 documents.  The above said details have been enclosed along with the charge memo and had been mentioned in charge memo furnished to the petitioner.   The charge memo was issued in pursuance of the vigilance enquiry, after having taken into consideration the materials, coupled with the statement of the witnesses mentioned therein and hence it cannot be quashed at this stage.  It is always opon for the petitioner to substantiate his case before the 2nd respondent in W.P.No.23780\/2008.\n<\/p>\n
\t17.\tInsofar as contention raised by the learned counsel regarding pendency of charge memo dated 11.07.2008  is concerned,   as stated by learned Government Advocate Rule 8a(i) of the Tamil Nadu Civil services (DPT) 1955 specifically provides for such a contingency.  Therefore, when the Rule specifically provides provides for framing of charges by the enquiry authority, the same cannot be annulled, unless the said Rule is declared as ultra  vires.\n<\/p>\n
\t18.\tTherefore this Court is of the opinion that the judgment relied upon by learned Senior Counsel reported 2008(8) SCC 236 (supra)  is not applicable to the present case on hand.\n<\/p>\n
19.\tIn so far as the decision relied upon by the learned Senior Counsel for the petitioner in reported the AIR 2001 supreme court 2788 is concerned, the same has to be considered after the final order will passed by the disciplinary authority in pursuant to the enquiry conducted by the enquiry officer.  Therefore, the said judgment has to be considered at the appropriate stage and now the same cannot be taken into account to set aside the charge memo, more so when the charge memo also refers to other charges on the ground of corruption as well.  In respect of the request made by the writ petition for the medical reimbursement towards the treatment for heart surgery is concerned this court opinion that the same has to be considered by the respondents in the light of the pension rules.\n<\/p>\n
\t20.\tTherefore, taking into consideration the above said factual and legal, this court is of the opinion that it is open for the writ petitioner to  co-operate in the enquiry initiated by the second respondent in W.P.No.23780\/2008.  In fact the main grievance of the   learned senior counsel for the petitioner is that inspite of best efforts of the writ petitioner, no finality is arrived at.\n<\/p>\n
\t21.\tIn respect of the request made by the writ petitioner for the medical reimbursement towards the treatment for heart surgery is concerned, this Court is of the opinion that the same has to be considered by the respondents in the light of the Pension Rules.  No doubt, as submitted by learned Government Advocate,  the request cannot be considered by treating him as a full regular scale of employee, in view under G.O.18, Finance (Allowances  I) dated 9the January 1992.   Admittedly, the petitioner has superannuated.   He has not been  allowed to the retire only for purpose of the pendency of disciplinary proceeding.\n<\/p>\n
\t22.\tTherefore, while rejecting the contention for treating the petitioner  as regular full time permanent employee, this court is of the opinion the that respondents will have to consider the request of the petitioner for the medical reimbursement by treating him as a petitioner and accordingly, the writ petitioner is directed to give a representation to the respondents within period of four months from he date of receipt of a copy of this order and thereafter, the respondents are directed to consider to the said request of the writ petitioner under the Pension Rules within a period of eight weeks thereafter.\n<\/p>\n
\t23.\tInsofar as the enquiry initiated by the 2nd respondent in W.P.No.23780 of 2008 concerned the said enquiry will have to be completed within period of five months from the date of receipt of a  copy of this order.\n<\/p>\n
\t24.      Hence with the above observations the writ petitions are disposed of no costs.  It is made clear that the 2nd respondent in W.P.No.23780 of 2008 shall proceed with the enquiry and give its finding without reference to the observations made by this Court in the above said writ petitions.  The Miscellaneous Petitions are closed.\n<\/p>\n
adl<\/p>\n
To<\/p>\n
1. The State of Tamilnadu,
\n    Represented by its Secretary,
\n    Labour and Employment (E) Department,
\n    Fort St. George,
\n    Chennai  600 009.\n<\/p>\n
2. Commissioner of Labour,
\n    Teynampet,
\n    Chennai  600 006.\n<\/p>\n
3. Tribunal for Disciplinary Proceedings
\n    5\/1845\/A, Trichy Road,
\n    Market Committee Complex,
\n    Ramanathapuram,
\n    Coimbatore<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court N. Liyakath Ali Khan vs The State Of Tamilnadu on 18 August, 2009 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 18.08.2009 CORAM THE HON’BLE MR. JUSTICE M.M.SUNDRESH W.P.NoS.15402 & 23780 of 2008 and M.P.No.1 of 2008 in W.P.No.15402 M.P.No.1 of 208 in W.P.No.23780 N. Liyakath Ali Khan, .. Petitioner in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-240695","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nN. 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