(This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the impugned memorandum issued by the first respondent in his proceedings Roc.No.12378/2008/OP3-5 dated 29.08.2009 along with Annexure I to IV and quash the same as illegal.)

1. Heard both sides.

2. The petitioner who is working as an Assistant Executive Engineer in the Madurai Corporation has filed the present writ petition seeking to challenge the charge memo issued under Rule 8(2) of the Madurai Corporation (Discipline and Appeal) Rules, 1975, dated 29.08.2009. The charges against the petitioner were set out in Annexure I which reads as follows:

Charge 1: "that you Thiru A.Madhuram, Assistant Executive Engineer, Madurai Corporation had colluded with Revenue Officials of Madurai Corporation in connivance with the builders of Hotel Apartments, factories etc., had shown illegal favours in effecting water service connections and in the collection of water charges as noted in the Annexure-II".

Charge 2:"that you Thiru A.Madhuram, Assistant Executive Engineer, Madurai Corporation had failed to produce the 7 files out of 11 files relating to bulk supply of water connections to Apartments during the surprise check as noted in the Annexure-II".

3. Annexure-II appended to the charge memo contains statement of allegations, i.e. imputation of misconduct against the petitioner. In Annexure-III, serial No.14, the name of the petitioner is specifically referred to and he was also aligned along with the officials of the Corporation who are jointly responsible for the irregularities in colluding with the revenue officials in connivance with the builders of Hotel, Apartments and factories and had shown illegal favour for effecting water service connection and in the collection of water charges. In Annexure-IV, list of witnesses by whom charges are proposed to be sustained was set out.

4. The petitioner was also charge-sheeted that when he was demanded the production of files relating to illegal supplies, he failed to produce 7 files out of 11 files when a surprise check was made. The charges levelled against the petitioner was very serious and it goes to the root of integrity and conduct of the petitioner. But, however, the petitioner has come forward to challenge the said charge memo on three grounds. Firstly, the charges are vague and there is no specific allegation against the petitioner. Secondly, at the time of service connection, the petitioner was not in that post and he cannot be charged for collusion. Thirdly, since the allegations were of the year 2002, the charge memo has been issued after a period of seven years. Hence the same should be set aside on grounds of delay and laches.

5. Mr.K.M.Vijayan, learned Senior Counsel appearing for Mr.B.Saravanan, learned counsel for the petitioner, reiterated the submissions. He also referred to the judgment of the Supreme Court in P.V.Mahadevan Vs. MD, Tamil Nadu Housing Board reported in 2005 (6) SCC 636 [LQ/SC/2005/778] for contending that if there is any unexplained delay, then the charge memo can be quashed. For this purpose, he referred to the following passage found in paragraph 10 of the said judgment, which is as follows:

"10....It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings.....the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give some explanation for the delay."

6. But, in the present case, the petitioner is very much in service. In fact, after notice of motion was ordered, wherein an interim stay was granted on 21.10.2009, the respondents have filed a counter affidavit, dated Nil in justification of the charge memo. The circumstances led to initiate action are set out in paragraph 11 of the counter, which are as follows:

"11...it is submitted that even though the joint inspection taken by the District Inspection Cell and the Directorate of Vigilance & Anti-Corruption Department, was conducted much earlier, their report was examined by the Government and Vigilance Commission and the Government in G.O.(2D) No.26 MA & WS (ME4) Department, dated 04.02.2008, while enclosing a report of the Director of Vigilance & Anti Corruption Department, ordered to initiate departmental disciplinary action against Thiru K.Packiaraman, then City Engineer along with 13 others including Thiru A.Mathuram, the petitioner herein. In pursuance of the orders of the Government, Disciplinary action was initiated against Thiru A.Mathuram, presently employed as Executive Engineer, Madurai City Corporation and the petitioner herein. Charges were framed against him vide Memorandum Roc.No.12378/2008/OP3-5 dated 29.08.2009 by its office (First respondent herein)...."

7. Therefore, it is not a case where there was an unexplained delay. The ratio of P.V.Mahadevans case (cited supra) will have no bearing on the present case. The learned Senior counsel also referred to the subsequent decision of the Supreme Court in M.V. Bijlani v. Union of India reported in (2006 (5) SCC 88 [LQ/SC/2006/317] ). In that case, the Supreme Court set aside the disciplinary proceedings initiated after six years and it was further continued for another seven years and it had resulted in prejudice to the charge-sheeted officer.

8. It is surprising that the learned Senior Counsel should refer to the judgment in M.V.Bijalanis case (cited supra). The said decision came to be considered subsequently by the Supreme Court and held to be not a precedent. In this context, it is necessary to refer to the judgment of the Supreme Court in Government of A.P. and others vs. V.Appala Swamy reported in 2007 AIR SCW 1639 = (2007) 14 SCC 49 [LQ/SC/2007/97 ;] ">(2007) 14 SCC 49 [LQ/SC/2007/97 ;] [LQ/SC/2007/97 ;] , wherein, the Supreme Court laid the parameters of interfering with a charge sheet on the ground of delay in paragraphs 12, 14 and 15 which read as follows:

12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard-and-fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are:

(1) where by reason of the delay, the employer condoned the lapses on the part of the employee;

(2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the inquiry officer.

.......

14. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V. Bijlani v. Union of India(2006 (5) SCC 88 [LQ/SC/2006/317] ). That case was decided on its peculiar facts. In that case, even the basic material on which departmental proceedings could be initiated was absent. The departmental proceedings were initiated after 6 years and continued for a period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced.

15. Bijlani, therefore, is not an authority and, in fact, as would appear from the decision in P.D. Agrawal4 for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor.

9. Even earlier, the Supreme Court held that that the delay in framing the charge memo will not automatically result in setting aside the order. In this context, it is necessary to refer to the judgment of the Supreme Court in Dy. Registrar, Co-op. Societies v. Sachindra Nath Pandey reported in (1995) 3 SCC 134 [LQ/SC/1995/255] . The Supreme Court held that the delay in framing charge cannot be a ground to interfere with the charge memo and the relevant passage found in paragraph 7 of the said judgment is extracted below:

7. On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay......

10. Further, in Secretary to Government, Prohibition & Excise Department v. L. Srinivasan reported in (1996) 3 SCC 157 [LQ/SC/1996/405] , the Supreme Court has held that the charge memo cannot be quashed only on the ground of delay and any finding recorded by the Court will prejudice the enquiry. The Supreme Court has also pulled up the member of the Administrative Tribunal for having interfered with the charge memo as if the Tribunal is the appellate authority. The following passage found in paragraph 3 of the said judgment makes the position very clear:

3.....We are informed that charge-sheet was laid for prosecution for the offences of embezzlement and fabrication of false records etc. and that the offences and the trial of the case is pending. The Tribunal had set aside the departmental enquiry and quashed the charge on the ground of delay in initiation of disciplinary proceedings. In the nature of the charges, it would take a long time to detect embezzlement and fabrication of false records which should be done in secrecy. It is not necessary to go into the merits and record any finding on the charge levelled against the charged officer since any finding recorded by this Court would gravely prejudice the case of the parties at the enquiry and also at the trial. Therefore, we desist from expressing any opinion on merit or recording any of the contentions raised by the counsel on either side. Suffice it to state that the Administrative Tribunal has committed grossest error in its exercise of the judicial review. The member of the Administrative Tribunal appears to have no knowledge of the jurisprudence of the service law and exercised power as if he is an appellate forum dehors the limitation of judicial review. This is one such instance where a member had exceeded his power of judicial review in quashing the suspension order and charges even at the threshold. We are coming across such orders frequently putting heavy pressure on this Court to examine each case in detail. It is high time that it is remedied.

11. Therefore, the contention of the learned Senior Counsel must fail. In the present case, the respondents have explained the circumstances which resulted in initiation of action. There was an internal enquiry as well as vigilance and the report was finally sent to the Government for an appropriate approval. In the present case, the petitioner was specifically charged on two accounts. One was collusion with other officials in giving connection. The second was burking the files at the time of inspection made by the officials. May be service connection was effected during 2002, but inspection was taken place only in December, 2003 as per the first document provided in Annexure III to the charge. In fact, in Annexue III to the charge, item No.14 refers to the report submitted by the petitioner. The learned Senior Counsel is unable to inform as to what was the report given by his client.

12. It is stated by the respondent that there was no unexplained delay in framing the charges. As held by the Supreme Court, under the facts and circumstances, many facts would have been kept in secret and only on deeper investigation that fact may come out. This court is not persuaded to set aside the charge memo on that ground. The charge memo is a self explanatory and it is supported by documents and the list of witnesses. The contention that the charges are vague or that the petitioner was not there at the relevant time cannot be accepted, because charge No.2 relates to very conduct of the petitioner attributing specific misconduct. Even if the petitioner is innocent or that he was not a party to the service connection, at the maximum it can only be a defence and not a ground to set aside the charge memo. This court is not inclined to deal with the charge memo.

13. In this context, it is necessary to refer to the judgment of the Supreme Court in State of U.P. v. Brahm Datt Sharma reported in (1987) 2 SCC 179 [LQ/SC/1987/250] , wherein the Supreme Court dealt with the power of the Court in dealing with a charge memo at the show cause stage and the following passage found in paragraph 9 will make the position clear:

9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the court before that stage would be premature, the High Court in our opinion ought not have interfered with the show cause notice.

14. The Supreme Court vide judgment in Special Director v. Mohd. Ghulam Ghouse reported in (2004) 3 SCC 440 [LQ/SC/2004/40] in para 5 observed as follows:

5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted.

15. Further, the Supreme Court in the judgment relating to Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 [LQ/SC/2006/1136] in paras 13 to 16 held as follows:

13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh (1996) 1 SCC 327 [LQ/SC/1995/1185] , Special Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440 [LQ/SC/2004/40] , Ulagappa v. Divisional Commr., Mysore (2001) 10 SCC 639 [LQ/SC/2000/1090] , State of U.P. v. Brahm Datt Sharma(1987) 2 SCC 179 [LQ/SC/1987/250] , etc.

14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.

16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.

16. In the light of the above, there is no case made out to entertain the writ petition. Hence the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petition stands closed.