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2018 Supreme(Mad) 197
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
B. Suseel Kumar - Petitioner
Versus
The Government of Tamil Nadu, Rep. by Secretary to Government, Commercial Taxes Department, Fort St. George, Secretariat, Chennai & Another - Respondents
W.P. No. 17272 of 2014 & M.P. No. 4 of 2014
Decided On : 19-01-2018
For the Petitioner: AR.L.Sundaresan, for AL. Ganthimathi
For the Respondents: Narmadha Sampath
The guidelines issued by the Government are only instructions and these instructions cannot form any basis for quashing the very charge memo itself.
Headnote:
CHARGE MEMO - QUASHING - SUBJECT - TAMIL NADU CIVIL SERVICES (DISCIPLINE AND APPEAL) RULES - ACT SECTION LIST - RULE 17(A), RULE 17(B), RULE 8 - SUMMARY: The writ petition was filed seeking to quash the charge memo issued to the petitioner and further a direction was sought for against the first respondent to grant promotion to the petitioner to the post of Joint Commissioner (Commercial Taxes) without reference to the pendency of the charge memo. The petitioner was working as Assistant Commissioner (Commercial Taxes) and was promoted to the post of Deputy Commissioner (Commercial Taxes). The next avenue of promotion was to the post of Joint Commissioner (Commercial Taxes). The petitioner was included in the panel for promotion to the post of Joint Commissioner (Commercial Taxes). The charge memo was issued to the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The petitioner contended that the nature of the allegations framed against him were not serious, warranting an action under Rule 17(b) of the Discipline and Appeal Rules. The learned Special Government Pleader opposed the contention of the learned Senior Counsel for the petitioner by stating that the Government guidelines issued in this regard are only directory in nature and it is for the guidance of the subordinate officials. The Court held that the guidelines issued by the Government are only instructions and these instructions cannot form any basis for quashing the very charge memo itself. The Court further held that the guidelines framed by the State Government for the purpose of determining whether charges, leading to imposition of major penalties, are to be framed under Rule 17 (b) or not, is an unsustainable exercise, indulged in by the State. The Court directed the respondents to proceed with the enquiry proceedings forthwith and conclude the same by providing opportunity to the writ petitioner as per the rules and pass final orders in the disciplinary proceedings as early as possible and preferably, within a period of six months from the date of receipt of a copy of this order.
Fact of the Case:
The petitioner was working as Assistant Commissioner (Commercial Taxes) and was promoted to the post of Deputy Commissioner (Commercial Taxes). The next avenue of promotion was to the post of Joint Commissioner (Commercial Taxes). The petitioner was included in the panel for promotion to the post of Joint Commissioner (Commercial Taxes). The charge memo was issued to the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
Finding of the Court:
The Court held that the guidelines issued by the Government are only instructions and these instructions cannot form any basis for quashing the very charge memo itself. The Court further held that the guidelines framed by the State Government for the purpose of determining whether charges, leading to imposition of major penalties, are to be framed under Rule 17 (b) or not, is an unsustainable exercise, indulged in by the State.
Issues: Whether the charge memo issued to the petitioner was valid.
Ratio Decidendi: The Court held that the guidelines issued by the Government are only instructions and these instructions cannot form any basis for quashing the very charge memo itself. The Court further held that the guidelines framed by the State Government for the purpose of determining whether charges, leading to imposition of major penalties, are to be framed under Rule 17 (b) or not, is an unsustainable exercise, indulged in by the State.
Final Decision: The Court directed the respondents to proceed with the enquiry proceedings forthwith and conclude the same by providing opportunity to the writ petitioner as per the rules and pass final orders in the disciplinary proceedings as early as possible and preferably, within a period of six months from the date of receipt of a copy of this order.
The Charge Memo dated 12.06.2014 is sought to be quashed in this writ petition and further a direction is sought for against the first respondent to grant promotion to the petitioner to the post of Joint Commissioner (Commercial Taxes) without reference to the pendency of the charge memo dated 12.06.2014.
2. Thiru.AR.L.Sundaresan, learned senior counsel for M/s. AL.Ganthimathi appearing on behalf of the petitioner brought to the notice of this Court that the authorization for inspection by Joint Commissioner (Commercial Taxes), Chennai Enforcement II was issued on 15.04.2013 in respect of
1. Thiru.A.Kumar, Commercial Tax Officer (Enforcement South)
2. K.Thirupurasundari, Dy Commercial Tax Officer (Enforcement South)
3. Radha, Dy Commercial Tax Officer (Enforcement South)
3. However, the original authorization for surprise inspection was not provided to the writ petitioner. The learned senior counsel made a submission that with a view to support, an oral permission was granted to the writ petitioner to join with the surprise inspection team and complete the same effectively. The writ petitioner had gone in his official jeep with his official driver for continuing the surprise inspection along with the team authorized in letter dated 15.04.2013. Thus, there is no irregularity in respect of the search conducted by the writ petitioner in the premises of the complainant. In support of the said contention, the learned senior counsel referred certain correspondences between the department. However, there is no return authorization to join the surprise inspection team to the writ petitioner.
4. This Court is of the opinion that these all are the facts to be ascertained during the course of enquiry and at this stage of charge memo, this Court would not be in a position to consider the facts and circumstances as narrated in this writ petition. The truth behind the incident has to be find out only by conducting a full fledged enquiry and by providing an opportunity to the writ petitioner to defend his case. If any findings are made at the stage of charge memo, the same will affect the defence of the petitioner as well as to cull out the truth by the respondents. Thus, this Court is not inclined to come into the merits and demerits as narrated by the learned counsel in respect of the facts and the charges.
5. The writ petitioner states that he joined the service of the Commercial Taxes Department, Government of Tamil Nadu on 06.06.2002, as Commercial Tax Officer [now re-designated as Assistant Commissioner (Commercial Taxes)]. The petitioner was further promoted to the post of Deputy Commissioner (Commercial Taxes) on May 2010 and his next avenue of promotion is to the post of Joint Commissioner (Commercial Taxes). The crucial date for drawal of the panel for promotion to the post of Joint Commissioner (Commercial Taxes) is 01.01.2014. During the relevant point of time, there are twelve approved estimated vacancies in the post of Joint Commissioner (Commercial Taxes), out of which eight are to be filled up before 31.12.2014. The name of the petitioner was included in Serial No.7 and he was well within the zone of consideration for promotion to the post of Joint Commissioner (Commercial Taxes). Under these circumstances, the impugned charge memo dated 12.06.2014 has been issued to the petitioner by the second respondent under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The Statement of charges found in Annexure-1 of the charge memo is extracted here under:
Charge No.1:-
You, Thiru.B.Susheel Kumar, formerly DC(CT), Chennai Enforcement (South) now Administrative Deputy Commissioner (CT), Tirunelveli Division, while you were functioning as DC(CT), Chennai Enforcement (South), along with unknown person not duly authorized by the competent authority entered the business premises without establishing the identity to the dealers even on demand by the dealers have carried out inspection of the place of business of T
