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2013 DIGILAW 1110 (MAD)

P. Muthiah v. Secretary To Govt of Tamilnadu Transport Dept, Chennai

2013-02-26

VINOD K.SHARMA

body2013
JUDGMENT 1. The petitioner prays for issuance of a writ in the nature of Certiorari, to quash the order of the second respondent dated 08.02.2008 imposing punishment of stoppage of one increment with cumulative effect for a period of six months. 2. It is pleaded that the petitioner while working as driver in the respondent Corporation met with an accident resulting in permanent disability. Therefore, as per the provisions of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the petitioner was provided with an alternative appointment, but the pay protection to which the petitioner was entitled, was not granted to the petitioner. 3. Being aggrieved by the action of the respondent in not considering the representation filed by the petitioner, petitioner had approached this Court by filing W.P.No.23712 of 2007. 4. The petitioner was however, issued a charge memo for having approached this Court. However, the reading of the charge memo, does not show that the petitioner was served with charge memo for having approached this Court, but charge memo issued to the petitioner was for absent from duty. When being questioned learned counsel submitted an explanation that he meant that charge memo for absence from duty was motivated for the reason of petitioner having approached this Court. 5. It is the contention of the learned counsel for the petitioner, that the charge memo is false, as there was ample evidence on record to show that the petitioner had attended duty and also marked his presence which was subsequently encircled. 6. The learned counsel for the petitioner further contended that documents in support of charge for absence from duty were not placed on record before the enquiry officer. This resulted in prejudice to petitioner to effectively defend himself in the enquiry. 7. It is not disputed that the enquiry was held against the petitioner in which charges were held to be proved. The petitioner thereafter has been issued second show cause notice regarding proposed punishment. 8. The petitioner has approached this Court to challenge the second show cause notice, even before any order of punishment is passed. 9. The learned counsel for the petitioner contends, that this writ petition against show cause notice is competent, as there is violation of principle of natural justice. 8. The petitioner has approached this Court to challenge the second show cause notice, even before any order of punishment is passed. 9. The learned counsel for the petitioner contends, that this writ petition against show cause notice is competent, as there is violation of principle of natural justice. Therefore, the petitioner instead of filing reply to the show cause notice, has come to this Court to challenge the show cause notice by invoking writ jurisdiction. 10. The second ground taken to challenge the show cause notice is that petitioner has apprehension that he will not get justice from the respondents. 11. On consideration, I find no force in the contention raised by the learned counsel for the petitioner. It is settled law that ordinarily no writ lies against charge memo or show cause notice as it does not give cause of action, unless these are issued by person having no jurisdiction to do so. Reference in this regard can be made to judgment of the Hon'ble Supreme Court in Union of India vs. Kumisethy Satyanarayana (2007(1) SCT 452). Nor the jurisdiction of this Court under Article 226 of the Constitution can be invoked on mere apprehension in absence of any material in support of such apprehension. 12. It is always open to the petitioner to reply to the show cause notice by taking all the pleas. The cause of action will only arise if any order of punishment is passed. 13. The writ petition is accordingly dismissed as premature. The petitioner is given 7 days time from the date of receipt of certified copy of this order to file reply if so advised. No costs.