Judgment :- 1. The petitioner prays for issuance of a Writ in the nature of certiorari to quash the charge memo issued to the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 2. The petitioner joined the service as Junior Assistant on 31.08.1977 in Transport Department. The petitioner was promoted as Assistant on 12.07.1985 and was further promoted as Superintendent on 29.08.1997. The petitioner was thereafter promoted as Motor Vehicle Inspector (Non-technical) on 21.11.2001 and then promoted as Personal Assistant to Regional Transport Officer on 16.11.2004. On 08.03.2011, the petitioner was served with a charge memo which reads as under: "Statement of charges framed against Thiru R.Rajasekaran, Personal Assistant to the Regional Transport Officer, Cuddalore It has been brought to notice that certain irregularities/lapses relating to testing of applicants for driving licenses and issue of driving licenses to them had happened in the Regional Transport Office, Cuddalore while Thiru R, Rajasekaran was functioning as Personal Assistant to the Regional Transport Officer, Cuddalore district during the period from 5.11.2009 to till date. The following charge is, therefore, framed against him for the allegations of lacking in supervision and proper control over the office administration. CHARGE: That the said Thiru R. Rajasekaran, while functioning as Personal Assistant to the Regional Transport Officer, Cuddalore during the period from 5.11.2009 to till date has failed to notice that the "log in id" of transferred officials were being misused by Thiru A.E. Gokulakrishnan, Motor Vehicles Inspector, Grade II while issuing driving licenses. Further he had failed to overcheck that the applications for issue of driving licenses are assigned with current numbers and duly accounted for, kept in safe custody and handed over to record by the Junior Assistant and the Superintendent concerned. Thus he has failed to ensure that the instructions by the Transport Commissioner in Circulars no.10/2007, no.43/2007, 50/2008 and 14/2009 are being followed by the subordinate officials concerned. Thus the said Thiru R.Rajasekaran has failed to exercise proper control and supervision in the office administration and failed to maintain absolute integrity and devotion to duty thereby contravened the provisions of Rule 20(1) and (2) of the Tamil Nadu Government Servants Conduct Rules, 1973. DEPUTY TRANSPORT COMMISSIONER, VILLUPURAM ZONE, VILLUPURAM" 3. Thus the said Thiru R.Rajasekaran has failed to exercise proper control and supervision in the office administration and failed to maintain absolute integrity and devotion to duty thereby contravened the provisions of Rule 20(1) and (2) of the Tamil Nadu Government Servants Conduct Rules, 1973. DEPUTY TRANSPORT COMMISSIONER, VILLUPURAM ZONE, VILLUPURAM" 3. The petitioner has challenged the issuance of charge memo, on the ground that the charges levelled against the petitioner read with the statement of allegations do not make out a case for initiation of enquiry under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, as the allegations against the petitioner are only of negligence in performance of duty without any allegations of dishonest motive. 4. Learned counsel for the petitioner vehemently contended, that though it is the prerogative of the employer to hold an enquiry under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules or impose punishment under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules depending upon the allegations of misconduct, however it is to be kept in mind that there is no provision to regulate as to whether the employer is to proceed under Rule 17(a) or Rule 17(b)of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 5. In order to fill up the gaps in the statutory rules, the State Government has issued an administrative instruction vide circular No.14353/Per.N/93-1 dated 11.03.1993 stipulating therein as under: "ANNEXURE - I Guidelines for deciding whether charges may be framed under Rule 17(b) Without prejudice to the generality of situations involving indiscipline, moral turpitude, corruption, etc., charges under rule 17(b) have to be framed in the following types of cases for imposing anyone of the major penalties:- (1)Cases in which there is reasonable ground to believe that a penal offence has been committed by a Government servant but the evidence forthcoming is not sufficient for prosecution in a Court of Law, eg., (a)possession of assets disproportionate to the known sources of income; (b)obtaining or attempting to obtain illegal gratification; (c)misappropriation of Government Property, money or shares; (d)obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate, etc. (12)Falsification of Government records. (13)Irregularity or negligence in the discharge of official duties with a dishonest motive. (14)Misuse of official position for personal gain. (12)Falsification of Government records. (13)Irregularity or negligence in the discharge of official duties with a dishonest motive. (14)Misuse of official position for personal gain. (15)Disclosure of secret or confidential information even though it does not fall strictly within the scope of the official Secrets Act. (16)Misappropriation of Government funds, false claims of Travelling Allowance, reimbursement of false medical bills, etc., Unless a major punishment is really warranted namely, dismissal from service, removal from service, compulsory retirement or reduction to a lower rank in the seniority list or to a lower post or time scale, framing of charges under rule 17(b) is not necessary and should be avoided. M.AHMED SECRETARY TO GOVERNMENT ANNEXURE - II Guidelines regarding show-cause notice under Rule 17(a) For the delinquencies which are not indicated in Annexure-I and in cases where moral turpitude is not involved, a simple show cause notice under rule 17(a) would be quite adequate instead of framing specific charges. In the show cause notice, no question like "why disciplinary action should not be taken against the Delinquent for the alleged/reported lapse" shall be asked. Expressions like "show cause why you should not be dealt with/proceeded against under Rule 17(a)" are unnecessary because the show cause notice is precisely dealing with/proceeding against the delinquent under Rule 17(a). Also, any expression like "show cause why you should not be awarded a punishment under Rule 17(a) for the above lapses" is also not correct as it presupposes that the irregularities have been proved. Some cases in which expressions like the above were used have been struck down by the Tribunal. It is enough that the delinquents are directed to submit their explanation to the lapses reported against them within a specified time limit. 2.) Where it is proposed (i) to withhold increment and such withholding of increment is likely to affect the pension payable to the Government Servant, or (ii) to withhold increment without cumulative effect for a period exceeding three years or (iii) to withhold increments with cumulative effect for any period, the procedure laid down in rule 17(b) should be followed (from the stage of enquiry), after receiving the explanation. 3.) Annexure - IV contains a sample form of show cause notice under Rule 17(a). 3.) Annexure - IV contains a sample form of show cause notice under Rule 17(a). M.AHMED SECRETARY TO GOVERNMENT ANNEXURE - III Common guidelines to be followed in framing charges under Rule 17(b) and issuing show cause notice under Rule 17(a) (Note: In cases falling under Rule 17(a), references to "charge sheet" and "charge" hereunder shall be deemed to be references to "show cause notice" and "the irregularity leading to the show cause notice" respectively) (1)A separate charge should be framed wherever necessary in respect of each separate transaction/ event or a series of related transactions/ events amounting to misconduct/ misbehaviour. (2)If the transaction/event amounts to more than one type of misconduct, then all the misconducts should be mentioned. (3)If a transaction/event shows that the Government servant must be guilty of one misconduct or the other depending on one or the other set of circumstances, then the charge can be in the alternative. (4)Multiplication or splitting up of charges on the basis of the same allegation should be avoided. (5)The articles of charge should first give plain facts and then mention the nature of misconduct/misbehaviour of the accused. (6)The wording of the charge should not appear to be an expression of opinion as to the guilt of the accused but should contain only statement of facts. Any statement which smacks of expression of opinion and draws some positive conclusions against the Government Servant should be strictly avoided in the charge sheet. (7)A charge should not be related to a matter which had already been the subject matter of an enquiry resulting in conviction/ punishment/ acquittal/ exoneration unless acquittal/exoneration was based on benefit of doubt by a Court or on technical consideration. (8)A charge sheet should not refer (in the list of references as well as in the body of the memo) to the report on preliminary investigation/ detailed enquiries conducted by the Directorate of Vigilance and Anti-Corruption/ Police (C.I.D.) and other agencies. (9)There is no bar to include all charges of violation of departmental rules as well as criminal offences which can be taken up departmentally, e.g., misappropriation of Government money, defalcation and theft of departmental materials, etc. In the case of departmental proceedings, reference to clauses of the Indian Penal Code should be avoided. The proceedings should be based on the failure to observe departmental rules and regulations. In the case of departmental proceedings, reference to clauses of the Indian Penal Code should be avoided. The proceedings should be based on the failure to observe departmental rules and regulations. For instance, in the case of theft of a registered or insured article, the charge against an employee may not be theft of that article but failure to account for the article entrusted to him for custody or disposal, etc. (10)All the facts, figures, dates, etc., included in the imputations should be carefully checked before the issue of the charge sheet as a lot of difficulties may crop up when some clerical error in these figures or dates later on comes to notice. (11)The practice of disciplinary authorities framing extra charges like 'this shows that he is incapable', 'this shows he is not trustworthy', etc., or their variations which were the offshoots of the main charges should be avoided. For example, if there is a charge showing or implying the dishonesty of a delinquent, there is no need for another charge that the official is dishonest. (12)There need be only a minimum number of specific provable charges directly attributable to the delinquent and not too many unwanted charges which may dilate the enquiry. (13)Once a charge is framed and fully served but no explanation is received within the stipulated time, there is no need to frame another charge for non-submission of explanation. There is no need also to send any reminder. In such cases, necessary action should be proceeded with after considering the facts and records based on which charges were framed. For this purpose, a clause is routinely added to all charge memos that if no explanation is received within the time stipulated, it will be presumed that the delinquent has no explanation to offer, and further action will be taken on the merits of the case based on available records. (14)An Officer's past record should not be taken into account in arriving at a finding as to the truth or otherwise of the charges against him. But there may be cases in which a person might have been previously punished for similar irregularity but still he has not corrected himself. (14)An Officer's past record should not be taken into account in arriving at a finding as to the truth or otherwise of the charges against him. But there may be cases in which a person might have been previously punished for similar irregularity but still he has not corrected himself. If such past bad record of a person is proposed to be taken into account in determining the penalty to be imposed, it should be made the subject matter of a specific charge in the main charge sheet issued in the first instance or in the form of an additional charge sheet issued before the commencement of an enquiry in respect of the main charge sheet and the person charged should be afforded all the facilities necessary for enabling him to meet the allegation relating to past record. M.AHMED SECRETARY TO GOVERNMENT" 1 6. Learned counsel for the petitioner, therefore, contended, that the question as to whether the guideline issued by the Government gives enforceable legal right to the employee, was considered by the Honourable Division Bench of this Court in W.P.No.19144 of 2004 [The Secretary to Government, Home Police (SC) Department, Chennai vs. S.Nithyanandam and another] decided on 07.12.2004. 7. The Honourable Division Bench of this Court upheld the circular on the ground that the circular was not contrary to the statutory rules but was to supplement and not to supplant them and therefore, was valid. It may also be noticed that the circular of the Government is in the nature of guideline giving no enforceable right to the petitioner, but at the same time, the circular is binding on the official. 8. In view of the position explained above, the contention of the learned counsel for the petitioner is that the charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules on the face of it is arbitrary and violative under Article 14 of the Constitution of India, as it has been issued with an ulterior motive to deny the right of consideration for promotion on the ground of pendency of charge memo under Rule 17(b)of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The impugned charge memo therefore is totally arbitrary, thus not sustainable in law. 9. The impugned charge memo therefore is totally arbitrary, thus not sustainable in law. 9. Learned counsel for the petitioner referred to imputations of allegation where the allegation levelled against the petitioner is only that he had failed to create 'user log in id'. According to the circular and instructions the responsibility to create 'user log in id' is that of the Regional Transport Officer as per Vahan & Sarathi Chapter II para 2.1 and therefore, this misconduct cannot be attributed to the petitioner. The charge against the petitioner at best can be that of negligence in duty in not supervising the working of the sub-ordinates without any allegation of dishonest motive. The charge if taken to be as framed, would not be covered under the charges for which major penalty can be imposed for misconduct under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules being only a irregularity or negligence in discharge of official duties without dishonest motive to attract Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 10. No counter has been filed. Learned counsel for the State prays for time to file counter. However, this prayer is declined as the respondent State has failed to file the counter in spite of availing three opportunities. 11. It may further be noted, that the contentions raised by the petitioner are based on the documents i.e., charge memo and the circular issued by the Government without any factual allegations, which need to be controverted by the counter. 12. On consideration, I find force in the submissions of the learned counsel for the petitioner. A reading of the charge memo issued against the petitioner, along with allegations of misconduct leave no manner of doubt that the allegation against him is only of negligence of duty without any allegation of dishonest motive. The allegation of integrity is based on non-creation of 'user log in id', this lapse cannot be fastened on the petitioner as it is the duty of the Regional Transport Officer to create 'user log in id'. Therefore, it is not open to the State to frame charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, so as to deny the promotion. Therefore, it is not open to the State to frame charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, so as to deny the promotion. This view finds force from the judgment of this Court in W.P.No.19144 of 2004 [The Secretary to Government, Home Police (SC) Department, Chennai vs. S.Nithyanandam and another] decided on 07.12.2004. 13. For the reasons stated above, this Writ Petition is allowed and the charge memo is quashed. 14. However, the respondent shall be at liberty to proceed against the petitioner under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules on the allegations levelled against the petitioner. This order, shall also not be a bar for initiation of proceedings for misconduct if there is any material with the department constituting major misconduct against the petitioner. No costs. Consequently, the connected miscellaneous petition is closed.