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2018 DIGILAW 3484 (MAD)

S. Balasubramanian v. District Collector, Salem

2018-10-04

S.M.SUBRAMANIAM

body2018
JUDGMENT 1. The charge memo issued against the writ petitioner in proceedings dated 24.01.2000 is under challenge in this writ petition. 2. The charges framed against the writ petitioner are extracted hereunder: xxx xxx xxx 3. Annexure-III to the Charge memo enumerated the statement of Misconduct and the imputations. Annexure-III to the charge memo provides the list of documents relied upon by the disciplinary authorities. Thus, there is no infirmity as such in respect of the charge memo framed against the writ petitioner. The writ petitioner instead of submitting his explanation/objections on the allegations set out in the charge memo has chosen to file the present writ petition merely on the ground that he has already attained the age of superannuation and therefore, the disciplinary proceedings cannot be continued. 4. The learned Government Advocate appearing on behalf of the respondents brought to the notice of this Court that the writ petitioner was allowed to retire without prejudice to the charge memo issued against him. Therefore, the competent authority are empowered to conclude the disciplinary proceedings by following the procedures contemplated under Rules. This Court is of an opinion that the writ petitioner has to submit his explanations/ objections in respect of the allegations set out in the charge memo and defend his case by availing an opportunity to be provided by the disciplinary authority at the time of conducting an enquiry under the Rules. 5. A charge memo can be challenged on the limited grounds and the judicial revenue against the charge memo is to be exercised cautiously. The writ petition against the charge memo can be entertained, if the same has been issued by an incompetent authority having no jurisdiction or an allegation of mala-fides are raised or if the same is in violation of the statutory rules in force. Even in case of raising allegation of mala-fides, the authority against whom such an allegations are raised has to be impleaded as a party in the writ proceedings in his personal capacity. In the absence of any one of these ground, no writ can be issued against the charge memo. 6. 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. In the absence of any one of these ground, no writ can be issued against the charge memo. 6. 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. 7. The Honourable Supreme Court of India in the case of Union of India and Others Vs. Upendra Singh, (1994) 3 SCC 357 and the paragraph 6 which is extracted hereunder: "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: "Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J. affirmed the principle thus: "Judicial review, it is trite, is not directed against the decision but is confined to the decision-making 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." 8. In the case of Secretary, Ministry of Defence and Others Vs. Prabhash Chandra Mirdha, Civil Appeal No. 2333 of 2007, Decided on May 29, 2012, the Apex Court of India held that normally, a Charge sheet 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 sheet 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 sheet by itself is not maintainable. However, it can be quashed on the ground that issuing authority being not competent to issue the same. 9. In the case of Union of India vs. Kunishetty Satyanarayana, (2006) 12 SCC 28 , 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 sheet. No doubt, in some very rare and exceptional cases, the High Court can quash a charge sheet if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. 10. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.