(Prayer: Writ Petition has been filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari to call for the records of the 1st respondent in its letter No.55134/CtsVI/2013-14 dated 19.08.2013 in so far as it relates and permits the enquiry to be conducted in respect of Article I to IX contained in Memorandum and to quash the same.)

1. This petition has been filed seeking for issuance of a writ of Certiorari to call for the records of the 1st respondent in its letter No.55134/CtsVI/2013-14 dated 19.08.2013 in so far as it relates and permits the enquiry to be conducted in respect of Article I to IX contained in Memorandum and to quash the same.

2.The case of the petitioner in brief is as follows:-

2(1) The petitioner joined the Tamil Nadu Subordinate Services as Assistant Public Prosecutor Grade II on 27.09.1984. He was promoted as Assistant Public Prosecutor Grade I at Coimbatore District in the year 2004. Subsequently, in the year 2010, he was promoted as Additional Public Prosecutor in the year 2010 in the Chief Judicial Magistrate Court, Thiruvallur District and in addition to this, he was also given full additional in-charge as Deputy Director of Prosecution, Kancheepuram District.

2(2) The petitioner was placed at Serial No.2 in the seniority list of Tamil Nadu State Prosecuting Officers vide., G.O.Ms.No.77 dated 28.01.2010 as on 29.12.2006. The 3rd respondent herein is junior to the petitioner in service. While such being the position, the 3rd respondent, who is junior to the petitioner in service and was due to retire in October-2013, has been appointed as Joint Director of Prosecution vide., G.O.Ms.No.618, Home Department, dated 27.08.2013, without considering the petitioners seniority. The 3rd respondent, who is much junior to the petitioner, was to be superannuated on 30.10.2013, whereas the petitioner will be attaining superannuation on 31.01.2014. As there was an apprehension on the part of the 3rd respondent that he might lose his chance of Promotion, he developed personal animosity against the petitioner and hatched a conspiracy to stall the promotional prospects of the petitioner with a mala fide intention to tarnish the image and promotional aspects of the petitioner. The 3rd respondent was holding full additional charge as Director of Prosecution in-charge.

2(3) The 3rd respondent holding full additional charge as Director of Prosecution appears to have prepared a panel by including only his name, for the post of Director of Prosecution. He deliberately omitted the name of the petitioner and one Mr.Tamizhselvan, both whom are admittedly seniors to the 3rd respondent herein. In the meanwhile, in order to usurp the post of Joint Director of Prosecution, the 3rd respondent with mala fide intention misled the 1st respondent to frame the charges against the petitioner on flimsy and frivolous grounds so as to spoil promotional prospects of the petitioner to the post of Joint Director Prosecution.

2(4)The Charge Memorandum consists of the following articles of charges which are as under:-

Charge-I_That Thiru.C.Ponnusamy, Additional Public Prosecutor, Chief Judicial Magistrate Court, Thiruvallur was holding full additional charge of the post of Deputy Director of Prosecution, Kancheepuram from 01.06.2012 to 04.06.2013. During the period, gross dereliction of duty and reprehensible conduct in not having forwarded the additional charge allowance claim petitions dated 10.09.2012 of Thiru.P.Senthilkumar, Assistant Public Prosecutor Grade II, Judicial Magistrate Court No.II, Chengalpattu for having held full additional charge of the post of Assistant Public Prosecutor Grade II, Judicial Magistrate Court No.I, Chengalpattu from 09.02.2011 to 18.06.2012, and the post of Assistant Public Prosecutor Grade II, Judicial Magistrate Court, Maduranthagam from 09.02.2011 to 18.06.2011 to the Directorate.

Charge-II_Gross dereliction of duty and reprehensible conduct in not having sanctioned medical Leave of 27 days from 14.03.2013 to 09.04.2013 to Thiru.P.Senthilkumar, Assistant Public Prosecutor Grade II, Judicial Magistrate Court No.II, Chengalapattu, and not having drawn salary for him when he is eligible for the said leave.

Charge-III_Gross dereliction of duty and reprehensible conduct in not having sanctioned Medical Leave for 23 days for 04.03.2013 to 26.03.2013 to Thiru.R.Mani, Officer Assistant (Special Grade), attached to the Additional Public Prosecutor, Chief Judicial Magistrate Court, Chengalpattu, and not having drawn salary for him when he is eligible for the said leave.

Charge-IV_Gross Dereliction of duty and reprehensible conduct in not having sanctioned Medical Leave for 25 days from 01.03.2013 to 25.03.2013 to Thiru.D.Senthil Kumar, Assistant Public Prosecutor Grade I, CCIW Cases, Kancheepuram and not having drawn salary for him when he is eligible for the said leave.

Charge-V_Gross dereliction of duty and reprehensible conduct in not having counter-signed the Tour Travelling Allowance Bills in respect of Tvl.C.Baskaran, Assistant Public Prosecutor Grade I, District Munsif-cum-Judicial Magistrate Court, Sriperumbudur; L.Pitchairajan, then Assistant Public Prosecutor Grade I, District Munsif-cum-Judicial Magistrate Court, Uthiramerur, now Additional Public Prosecutor, Chief Judicial Magistrate Court, Salem; R.Mani, Office Assistant (Special Grade) attached to Additional Public Prosecutor, Chief Judicial Magistrate Court, Chengalpattu; R.Suresh Babe, Office Assistant attached to Assistant Public Prosecutor Grade I, District Munsif-cum-Judicial Magistrate Court, Thirukazhukuindram and Tmt.M.Manju, Superintendent, Office of the Deputy Director of Prosecution, Kancheepuram during the period from September-2011 to February-2012 and thus, having surrendered the major chunk of funds allotted under sub-head 04-01 Tour Travelling Allowance for the year 2012-2013.

Charge-VI_Gross dereliction of duty and reprehensible conduct of having ordered in proceedings No.506/12 dated 03.09.2012 that Thiru.T.Arumugam, Office Assistant attached to Assistant Public Prosecutor Grade II, Judicial Magistrate Court No.II, Thiruvallur was to attend the office of the Deputy Director of prosecution, Kancheepuram, on all working days from 06.09.2012 and instructed not to claim tour Travelling Allowance for the purpose.

Charge-VII_Gross reprehensible conduct of having ordered to vacate the space used by Thiru.C.Baskaran, then Assistant Public Prosecutor Grade II, Judicial Magistrate Court-1, Kancheepuram, now Assistant Public Prosecutor Grade I, District Munsif-cum-Judicial Magistrate Court, Sri Peramburdur and another Assistant Public Prosecutor Grade II for meeting Police Officials in connection with the cases, for giving approval of draft charge sheet etc., and converted the same as his office and caused much inconvenience to the Assistant Public Prosecutors.

Charge-VIII_ Gross financial indiscipline of having got required funds under sub-heads a)Tour Travelling Allowance b)Cost of Books c)Computer and Accessories-Maintenance in R.E. and F.M.A. for the year 2012-2013, but failed to utilize the funds allotted and surrendered major portion under sub-head Tour Travelling Allowance and surrendered entire amount under sub-heads Costs of Books and Computer and Accessories-Maintenance.

Charge-IX_Gross misconduct of having instructed the office superintendent Tmt.M.Manju that only tapals asked by him should be put in file for approval and ante-dated be put in the files as insisted by him. These have also cast shadow upon his interrogation and devotion to duty. Thus, he has violated the rule 20 of the Tamil Nadu Government Servants Conduct Rules 1973.

2(5) According to the petitioner, a mere reading of the charge-memo issued by the 1st respondent would show that no misconduct whatsoever has been made out and the 1st respondent has failed to show which provision of law has been violated by the petitioner warranting action under 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

2(6) Further, while the petitioner was functioning as Deputy Director of Prosecution of Kancheeepuram District in-charge, several Assistant Public Prosecutors and other staffs were under his control and in several cases, it was noticed that they were proceeding on leave without informing the petitioner, who is the concerned authority. When the matter was brought to the notice of the then Director of Prosecution in-charge, who is the 3rd respondent herein, no action whatsoever was taken purposefully and some of the Assistant Public Prosecutors went on leave without informing the petitioner and there was an acute difficulty in functioning. Later the petitioner came to know that the 3rd respondent himself has instructed the concerned persons to apply for medical leave.

2(7) The charges levelled against the petitioner do not constitute any misconduct and it is vitiated by mala fide intention and the 3rd respondent, who had ill will against the petitioner had engineered the same. Hence, the petitioner has come forward with the present writ petitioner seeking to quash the impugned charge-memo.

3.The respondents 1 & 2 have filed a joint counter affidavit contending as follows:-

3(1) It is not correct to state that the petitioner stood at Serial No.2 in the seniority list of Tamil Nadu State Prosecuting Officers and all the other prosecutors including the 3rd respondent herein are juniors in service. A panel for the years 2006-07 and 2007-08 was prepared vide., G.O.Ms.No.77, Home (Courts VI) Department dated 28.01.2010, in which the petitioner was in 97th position in seniority. Based on the recommendation of the then Director of Prosecution (i/c), the Government have examined the proposal of the Director of Prosecution and approved the regular panel of Assistant Public Prosecutors Grade I fit for promotion as Assistant Director of Prosecution/Additional Public Prosecutor for the years 2005-2006, 2006-2007, 2007-2008 and issued the order vide G.O.(3D)No.27 Home (Courts-VI) Department dated 14.06.2010, in which the seniority of the petitioner was fixed at Serial No.21 and the same was communicated to the petitioner vide Letter No.46029/Cts.VI/2009-6 dated 14.06.2010 through the Director of Prosecution (i/c), thereby informing the petitioner that as he was awarded a punishment of censure on 12.06.2006, his name was not considered for inclusion in the panel for the year 2006-2007, and subsequently included in the panel year 2007-2008. Thereafter, the petitioner was posted as the Additional Public Prosecutor, Chief Judicial Magistrate Court, Thiruvallur vide., G.O.(2D).No.330, Home (Courts-VI) Department, dated 30.06.2010.

3(2) The petitioner has sent a representation dated 05.12.2011 addressed to the 1st respondent stating that his junior Sri.M.Dakshinamoorthy was posted as the full in-charge Deputy Director of Prosecution, Kancheepuram claiming as if he is senior to the said Sri.M.Dakshinamoorthy, but it was informed again to the petitioner that he was awarded a punishment of Censure on 12.06.2006 and his name has been included at Sl.No.21 and the name of Sri.M.Dakshinamoorthy was included at Sl.No.16 in the said panel vide letter in R.C.No.22/A1/DOP/2012, dated 23.01.2012, by the then Director of Prosecution (i/c).

3(3) The 3rd respondent herein was not included in the said panel vide G.O.(3D).No.27 Home (Courts-VI) Department dated 14.06.2010, since he was also facing charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules at the time of preparing the said panel and for the years 2005-06, 2006-07 & 2007-08, subsequently his name was included in the subsequent panel by assigning his seniority as 10B vide G.O.(2D)No.371 Home (Courts-VI) Department dated 19.10.2011 and accordingly, he was promoted and posted as the Additional Public Prosecutor, Chief Metropolitan Magistrate Court, Egmore, as such at present the 3rd respondent herein is in the Seniority No.2 and the petitioner herein stood at Serial No.3 and other persons included in the said panel vide G.O.(3D).No.27 Home (Courts-VI) Department dated 14.06.2010 have retired on their respective date of superannuation.

3(4)In fact, a number of complaints against the petitioner were received by the 3rd respondent, as he was holding full additional charge of the post of the Director of Prosecution, from the prosecutors and the staff working under the petitioner. A preliminary enquiry was ordered to be conducted by a Senior Officer of the Directorate and accordingly, Thiru.R.Vijayapandian, the then Assistant Director of Prosecution, Villupuram was directed to conduct the inquiry. During the oral enquiry, the allegations levelled against the petitioner was found to be true. The report of the Enquiry Officer was sent to the Government for further action by the 3rd respondent vide Rc.No.003/DOP/Camp/2013 dated 02.08.2013 and based on the report of the Inquiry Officer, in which the allegations against the petitioner was substantiated, the Government has framed charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, against the petitioner vide Lr.No.55134/Cts.VI/2013-4, Home Department, dated 19.08.2013.

3(5)The charge memo was served to the petitioner on 20.08.2013 through the 3rd respondent with a direction directing the petitioner to submit a written statement of his defence within 21 days of the receipt of letter, and also to state whether he desires oral inquiry or to be heard in person or both. It was also mentioned in the charge memo that if the written statement of defence is not received within the stipulated time, it will be presumed that he has nothing to offer in his defence and further auction will be pursued. Since no reply was received by the Government from the petitioner within the stipulated period, the Government has proposed to conduct inquiry on the charges against the petitioner and appointed one Thiru.S.Tamilselvan, Director of Prosecution, as the Inquiry Officer vide., G.O.(D).No.762, Home (Courts-VI) Department, dated 20.09.2013. The act of the petitioner amounts to unbecoming of a Government servant and has caused embarrassment to the Government and hence, charges have been framed. Instead of approaching the Government with proper explanation, the petitioner hurriedly approached this Court by suppressing all the facts. Thus, they prayed for dismissal of the writ petition.

4. The 3rd respondent has filed a counter denying the allegation made by the petitioner that due to personal animosity, he hatched conspiracy as against the petitioner to stall his promotional prospects. It is the contention of the 3rd respondent that only in view of the 17-B charges against the petitioner, his promotion was not considered. Only in accordance with the rules and regulations and after perusal of the qualification and services of all the candidates, the 3rd respondent was promoted. The averments made by the petitioner in the writ petition would not in any way prove the mala fide intentions on the part of the 3rd respondent. Only on receipt of the complaint against the petitioner and pursuant to the preliminary enquiry and on instructions by the Government, the charges were framed against the petitioner. Since the petitioner has not been promoted, he has made false allegations against the 3rd respondent. Thus, the 3rd respondent prayed for dismissal of the writ petition.

5. It is the contention of the learned Senior Counsel appearing for the petitioner that the charge-memo issued by the 1st respondent is the result of the personal animosity of the 3rd respondent, who had hatched a conspiracy to stall the petitioners immediate promotional prospects to become Joint Director of Prosecution. In this regard, the learned Senior Counsel for the petitioner submitted that the petitioner is ranked senior to the 3rd respondent. When the panel of Additional Public Prosecutors fit for promotion to the post of Deputy Directors of Prosecution for the year 2010-2011 was formed, the 3rd respondent himself who is the Director of Prosecution (i/c), vide., proceeding in R.C.No.241/DOP/A/2011 dated 02.08.2013 addressed to the Principal Secretary to Government, had certified that no departmental disciplinary proceeding or vigilance enquiry/cases or criminal cases or enquiry of Tribunal for Disciplinary Proceedings is pending or contemplated and also that there was no adverse remark as against the Law Officers mentioned in the said proceedings dated 02.08.2013. In the said proceedings dated 02.08.2013, the name of the petitioner also found a place at Serial No.3. But, suddenly, on 20.08.2013, a charge-memo was served on the petitioner.

6. Thus, the learned senior counsel for the petitioner submitted that when on 02.08.2013 vide proceedings in R.C.No.241/DOP/A/2011 dated 02.08.2013 it was certified that there was no adverse remarks against the petitioner, strangely within a period of 20 days, ie., on 20.08.2013, a charge-memo was issued against the petitioner on flimsy grounds, which would show that only in order to stall the promotional prospects of the petitioner, on the instigation of the 3rd respondent, the charge-memo has been issued against the petitioner. Further, all the charges levelled against the petitioner are flimsy in nature. In the charge-memo, the 1st respondent has failed to show that which provision of law has been violated by the petitioner warranting action under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

7. In this regard, the learned senior counsel for the petitioner further submitted that while the petitioner was functioning as Deputy Director of Prosecution of Kancheeepuram District in-charge, several Assistant Public Prosecutors and other staffs were under his control and in several cases, it was noticed that they were proceeding on leave without informing the petitioner. When the matter was brought to the notice of the then Director of Prosecution in-charge, who is the 3rd respondent herein, no action whatsoever was taken purposefully. The petitioner has also passed order not recommending the claims of the certain Assistant Public Prosecutors for additional charge allowance, since they are not eligible for the allowance, and the petitioner has surrendered the funds to the Government. All the charges against the petitioner deal with the rejection of certain Assistant Public Prosecutors claim of additional charge allowance by the petitioner. Absolutely, there is no allegation as misappropriation of funds by the petitioner. From a reading of the charge-memo, it would show that only in order to stall the promotional prospects of the petitioner, the impugned charge-memo has been issued against the petitioner. Thus, the learned Senior Counsel for the petitioner submitted that the charges levelled against the petitioner are vague and it does not state which provision of law has been violated by the petitioner. None of the charges discloses any misconduct as against the petitioner. In this regard, the learned senior counsel for the petitioner invited the attention of this Court to Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973 and submitted that the petitioner has discharged his duty only in accordance with the said Rule. Thus the learned Senior Counsel for the petitioner submitted that the charges levelled against the petitioner are liable to be quashed. In support of his contentions, the learned Senior Counsel for the petitioner has also relied upon the judgments reported in (1999) 7 SCC 409 [LQ/SC/1999/696] [Nunjarrao Bhikaji Nagarkar Vs. Union of India and others] and 1999-2 LW 174 [Sankaran A.M. Vs. The Registrar High Court Madras] and submitted that there must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Further, only in the case of misconduct, disciplinary proceeding can be initiated. In the instance case, there is absolutely no basis to proceed against the petitioner and there is no misconduct against the petitioner. Thus, the learned senior counsel for the petitioner prayed for quashing the impugnded charge-memo.

9. The learned Additional Government Pleader submitted that only if the charge-memo is found to be wholly without jurisdiction or otherwise wholly illegal, the same can be interfered, otherwise the interference of the Court is absolutely not necessary. In the instant case, charge-memo was issued by the competent authority and under such circumstances, the petitioner is duty bound to send an explanation to the charge-memo. Further, it is possible that after considering the reply and after holding an enquiry, the authority concerned may drop the proceedings and/or hold the charges are not established. Thus, the learned Additional Government Pleader sought for dismissal of the writ petition. In support of his contention, the leaned Additional Government Pleader relied upon the judgments reported in (2006)12 SCC 28 [LQ/SC/2006/1136] [Union of India and another Vs. Kunisetty Satyanarayana], (1994) 3 SCC 357 [LQ/SC/1994/236] [Union of India and others Vs. Upendra Singh] and (1994)4 SCC 126 [LQ/SC/1995/985] [State of Orissa Vs. Bimal Kumar Mohanty].

10.The arguments of the learned senior counsel for the petitioner are on two folds- 1)the impugned proceedings have been issued only on the instigation of the 3rd respondent with mala fide intention in order to stall the promotional prospects of the petitioner. 2)All the charges levelled against the petitioner deal with the rejection of certain Assistant Public Prosecutors claim of additional charges allowance by the petitioner. Absolutely there is no allegation as misappropriation of funds by the petitioner, warranting action under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

11. It is the submission of the learned senior counsel for the petitioner that the present charge-memo has been issued only on the instigation of the 3rd respondent in order to stall the promotional prospects of the petitioner, since there was an apprehension in the mind of the 3rd respondent that he might lose his chance of promotion, if the petitioner is promoted. Hence, according to the petitioner, the 3rd respondent developed personal animosity against the petitioner and hatched a conspiracy to stall the promotional prospects of the petitioner and in order to stall the promotion of the petitioner, he instigated the 1st respondent to issue charge-memo. Hence, the charge-memo is tainted with a mala fide intention. In support of his contention, the learned senior counsel for the petitioner has also invited the attention of this Court to the proceedings dated 02.08.2013 in R.C.No.241/DOP/A/2011 and submitted that in the said proceedings, it was certified that there was no adverse remarks as against the petitioner. When the petitioners name found a place in the said proceedings for consideration of promotion to the post of Deputy Director of Prosecution, suddenly within a period of 20 days, the impugned charge-memo has been issued against the petitioner. The impugned charge-memo has been issued only on the instigation of the 3rd respondent since he is under the apprehension that he might lose his promotion, if the petitioner is promoted.

12. But, I find from the materials available on record that even before 02.08.2013, a preliminary enquiry was ordered to be conducted by a senior officer and accordingly, the then Assistant Director of Prosecution viz., Mr.R.Vijayapandian was directed to conduct the enquiry. Therefore, it is not correct to state that only after 02.08.2013 for the first time the disciplinary action was initiated as against the petitioner. Though the learned senior counsel for the petitioner submitted that the said R.Vijayapandian, then Assistant Director of Prosecution, is not a competent officer to hold enquiry as against the petitioner, the fact remains that even before 02.08.2013 a preliminary enquiry was ordered to be conducted as against the petitioner on certain charges. Under such circumstances, I am not inclined to accept the submission made by the learned Senior Counsel for the petitioner that only in order to stall the promotional prospects of the petitioner, after 02.08.2013 the impugned charge-memo has been issued against the petitioner. Except the oral submission of the learned senior counsel for the petitioner, I do not find any tangible evidence to show that the charge-memo has been issued against the petitioner with mala fide intention only on the instigation of the 3rd respondent. Therefore, I am not inclined to accept the submission made by the learned senior counsel for the petitioner.

13. It is yet another submission of the learned senior counsel for the petitioner that all the charges levelled against the petitioner deal with the rejection of certain Assistant Public Prosecutors claim of additional charges allowance by the petitioner. Absolutely, there is no allegation of misappropriation of funds by the petitioner, warranting action under Section 17(a) or 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules. In this regard, the learned senior counsel for the petitioner invited the attention of this Court to the impugned charge-memo and submitted that though there is no misconduct levelled against the petitioner, but the charges have been framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules.

14. But, in my considered opinion, the said submission of the learned senior counsel for the petitioner cannot serve as a ground to quash the charge-memo. Mere issuance of charge-memo will not give rise to any cause of action to file a writ petition challenging the charge-memo because, after holding enquiry, there is a possibility to drop the charges by the authority concerned. Only when the charge-memo is issued without jurisdiction or for some other reason if it is wholly illegal, the same can be quashed by this Court. In this regard, a reference could be placed in the judgment of the Honble Supreme Court reported in (2006)12 SCC 28 [LQ/SC/2006/1136] [Union of India and others Vs. Kunisetty Satyanarayana], wherein it has been held as follows:-

14.The reason by 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.

The dictum laid down in the above referred judgment gives a fitting answer to the contention of the learned senior counsel for the petitioner. Therefore, I am of the opinion that the present writ petition challenging the impugned charge-memo cannot be entertained and the same is liable to be dismissed.

In fine, the writ petition fails and the same is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.