A Writ Against the Charge Memo Can Only Be Entertained if Grounds Related to Jurisdiction or Mala Fide Intention Are Established: Kerala High Court

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Facts of the Case

The writ Petitioner was Assistant Engineer at Karur Municipality and had been currently working at Perambalur Municipality, Perambalur District under the control of the 2nd Respondent. 

 

The 2nd Respondent, Commissioner, Perambalur Municipality had instituted disciplinary proceedings against the writ Petitioner. He had framed charges and thereafter communicated the charges as well as the connected files to the 1st Respondent to continue the disciplinary proceedings following the rules in force. A perusal of the allegations set out in the charge memo revealed that 16 charges are framed. 

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The writ petition was filed challenging the memorandum of charges issued by the 2nd Respondent in the proceedings dated 27.05.2021.

 

Arguments by the Parties

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The Petitioners had relied on Rule 4 of the Tamil Nadu Municipal Service (Discipline and Appeal) Rules, 1970 and sub-Clauses which stated that the authority competent to impose penalty in respect of the Petitioner, who was working in the post of Assistant Engineer shall be the appointing authority. Therefore, the appointing authority, the 1st Respondent alone was competent to institute disciplinary proceedings and frame charges. Therefore, the impugned charge memo was liable to be set aside.

 

The Respondents had clarified that on initiation of disciplinary proceedings, the 2nd Respondent had communicated the files to the 1st Respondent for further action who was the appointing authority for further action in the disciplinary proceedings. Now, the files were under the consideration of the 1st Respondent for the continuation of the disciplinary proceedings initiated against the writ Petitioner.

 

Court’s Observation

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It was observed by the court that the charges and the allegations were serious in nature warranting an inquiry. Thus, quashing the charges could not be considered merely on the ground that the 2nd respondent had instituted disciplinary charges. 

It was also observed that initiation of disciplinary proceedings including the issuance of an order of suspension was a well-settled principle of law to be done by an immediate superior officer. Thus, it was required to be communicated to competent authority i.e. to Disciplinary Authority after framing of charges and receipt of explanation as per the Rules for further communication. 

However, it was also opined by the court that a writ against the charge memo could not be entertained by the High Court in a usual manner. It can be entertained only in the presence of a definite ground regarding the jurisdiction or mala fide intention. In a case where an allegation of mala fide intention was raised against the authority, it had to be impleaded as respondent party in his personal capacity.  

The court had observed that in the present case there was no infirmity of the charges in the memorandum issued against the petitioner. The petitioner was thus bound to defend the case by availing the opportunities under the Rules. It was stated by the petitioner raising a point of jurisdiction that the 2nd respondent who was a subordinate authority initiated the disciplinary proceedings and framed the charge memorandum. However, the court had opined that this ground had no merit as the initiation of the proceedings should be done by the immediate superior officer under whom the delinquent official had been working and the same shall be later communicated to the Disciplinary Authority to continue the proceedings and pass a final order following the procedure. Thus, there was no impediment for controlling the authority to institute the disciplinary proceedings and frame the charges.

Hence, there was no infirmity in the procedures followed, thus the charge memo challenged in the petition cant be set aside. The Petitioner had to participate in the process of disciplinary proceedings and prove his innocence or otherwise by submitting his explanation, filing documents or evidence and the authorities competent on initiation of charges, had to ensure that the disciplinary proceedings were completed and the final order was passed as expeditiously as possible since long pendency of the disciplinary proceedings would cause prejudice to the service rights of the employees. 

The court had also opined that in all cases of disciplinary proceedings, the authority had to ensure that the proceedings were concluded as early as possible. Long pendency of disciplinary proceedings would deprive an employee of getting his promotional opportunity and to get other service benefits. 

Court’s Decision

The Court had directed the Respondents to proceed with the departmental disciplinary proceedings and conclude the same as expeditiously as possible by allowing an opportunity to the Petitioner.

 

The Court had also directed the Petitioner to cooperate for the early disposal of the disciplinary proceedings. Prolongation or protraction of disciplinary proceedings, at the instance of the delinquent official, could never be encouraged. 

 

The Court also held that the Disciplinary Authority should avoid the grant of unnecessary adjournments for flimsy reasons. In the event of non-cooperation on the part of the Petitioner, the same should be recorded in the proceedings itself by the competent authority.

 

The Court with these observations and directions disposed of the writ petition. 

Case: R.K. Thandavamoorthy v. The Commissioner of Municipal Administration & another

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