2023 (8) TMI 465 - HC - VAT and Sales Tax

Charging employees twice on same misconduct by issuing two charge memos - Penal proceedings agaisnt the Assistant Commercial Tax Officer - HELD THAT - In the facts of the present case, the 2nd charge memo must be understood as continuation of the 1st charge memo and inasmuch as there is no hiatus between the 1st charge memo and the 2nd charge memo. As a matter of fact, the 2nd charge memo came to be issued even during the pendency of the 1st charge memo which was withdrawn only thereafter. In the circumstances, this Court is unable to agree with the submissions of the learned counsel for the petitioner that the 1st charge memo gets obliterated on being withdrawn and thus there was no charge memo pending on the crucial date. The 1st charge memo was pending on the crucial date and the 2nd charge memo was issued as a matter of continuation of the 1st charge memo which this Court was informed has ended in punishment, thus there is no merit in the submission of the learned counsel for the petitioner. There is no merit in the writ petition and the same stands dismissed.

Summary

Issues involved:
1. Validity of the charge memos dated 19.01.2009 and 18.03.2010.
2. Inclusion of the petitioner's name in the promotion panel for the year 2009.
3. Impact of the withdrawal of the first charge memo on the petitioner's eligibility for promotion.

Summary:

The petitioner sought a writ of Certiorarified Mandamus to challenge the order dated 05.05.2011, requesting the inclusion of their name in the 2009 promotion panel for Assistant Commercial Tax Officer and retrospective promotion with consequential benefits.

1. Validity of the charge memos:

The petitioner was issued a charge memo on 19.01.2009 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, alleging possession of unexplained cash and failure to maintain integrity. A second charge memo dated 18.03.2010 was issued based on the same incident, involving multiple officials. The petitioner argued that the two charge memos were based on the same allegations and the issuance of the second charge memo was procedurally improper. The court, however, found that the second charge memo was issued by a competent authority to address procedural irregularities in the first charge memo, and thus, the second charge memo was valid.

2. Inclusion in the promotion panel:

The petitioner's name was not included in the 2009 promotion panel due to the pending charge memo dated 19.01.2009. The court held that as long as disciplinary proceedings under Rule 17(b) were pending, the petitioner could not be considered for promotion, in line with Government guidelines in G.O.Ms.No.368, P&AR Department dated 18.10.1993.

3. Impact of the withdrawal of the first charge memo:

The first charge memo was withdrawn on 30.03.2011. The petitioner argued that this withdrawal should obliterate the proceedings from inception, making them eligible for promotion. However, the court found that the second charge memo, issued during the pendency of the first, was a continuation of the disciplinary proceedings. The court cited the judgment in P. Balu v. Central Administrative Tribunal, emphasizing that a charge memo withdrawn due to technical defects can be reissued, and thus, the second charge memo was valid. Consequently, the court concluded that the petitioner was not eligible for promotion on the crucial date due to the continuation of disciplinary proceedings.

In conclusion, the court dismissed the writ petition, affirming that the petitioner was not entitled to promotion due to the pending disciplinary proceedings and the validity of the second charge memo. No costs were awarded.