TaxTMI 
TaxTMI 
2023 (8) TMI 465
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....5.2000 and on the date of filing of the writ petition, the petitioner was serving as Assistant in the Office of the Assistant Commissioner (Commercial Taxes), R.S.Puram West Circle, Coimbatore. Whileso, the 2nd Respondent issued a charge memo dated 19.01.2009 vide proceedings No.A1/5812/2008, initiating disciplinary proceedings against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as the "Rules"), wherein the following charges were framed: Charge 1: "During the duty hours on KG Chavad (Incoming Check post the officers of DVAC had conducted a surprise check and found an excess amount of Rs.300/- on 20 12 2008 at the (Rupees Three Hundred Only) with the possession of TmiRadhamani, UDI apart from the one disclosed by her in the "cash in hand registrar maintained at the check post. She was not able to explain convincingly the difference of amount in her possession and hence it was seized by the DVAC of officials Charge 2: Tmt.C.Radhamani, UDI/Assistant, while performing her duty in the Commercial Taxes Checkpost, KG Chavady (Incoming) had failed to discharge her duties with exp....
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.... aside the same seeks for inclusion of her name in the panel for promotion to the post of Assistant Commercial Tax Officer for the year 2009 and wants her seniority to be kept between Serial Nos 93 and 94 4. The grounds of challenge against the charge memo was that the two charge memos were based on the same set of allegations and the earlier charge memo was not cancelled and since the respondents have not followed the principles laid down in Sambandam vs Government of Tamil Nadu a judgment rendered by this Court, the charge memos were liable to be interfered with. It is also stated that by the issuance of the charge memo, she has been denied legislative right to get promotion to the higher post 5. The 1st charge memo was issued by an authority, who is subordinate to the 1st respondent and he is not competent to frame first charge against all the persons who are manning the checkpost and perhaps that may be the reason the second charge memo came to be issued by a competent authority. Secondly, the second charge memo contains the recovery charges against the petitioner and it is not as if the charge memos were issued by an incompetent authority. There are no allega....
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....fore the withdrawal/ cancellation of 1st charge memo another charge memo dated 18.03.2010 came to be issued and thus there is a continuation of the proceeding without any hiatus and it is not as though the 1st charge memo stood obliterated but the 2nd charge memo must be understood as continuation of the 1st charge memo in view of the peculiar facts of the case. This would be evident if we keep in mind that the 2nd charge memo came to be issued in view of certain procedural irregularities, in particular, non-compliance with Rule 9A of the Tamil Nadu Service (Discipline and Appeal) Rules, and the 1st charge memo was cancelled. However, that is not to be understood as resulting in obliteration of the 1st charge memo. Thus, the submission of the learned counsel for the petitioner cannot be sustained. 4. Heard both sides, pursued the materials available on record. 5. The thrust of the petitioner's argument appears to be that it is not permissible to charge an employee with the same misconduct twice by issuing two charge memos. The above submission though well founded is not without exceptions, there are at least two well recognised exceptions to the above rule viz., ....
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....a have gone into the effect of non-observance of the instructions dated 5.7.1979 in each case based on the facts and circumstances of that case. In TA.44 of 1986, it was observed that the disciplinary authority while cancelling the memo of the charge issued earlier never indicated his intention to issue a subsequent fresh charge memo. It was, therefore, held that action of the disciplinary authority in issuing a fresh charge memo and consequently passing an order imposing a certain penalty on the applicant therein was bad in law. However, in the instant case, the intention to issue a fresh charge memo has been made abundantly clear in the memo dated 1.8.2013 itself by which the previous charge memo was treated as withdrawn." 13. If the Disciplinary Authority, for some reason or other, decided to drop the proceedings and thereafter proceeds further with an intention to issue a fresh charge memo, then the question of giving reasons would arise. In the instant case, the Disciplinary Authority has clearly stated that the first charge memo issued was treated as withdrawn with an intention to issue a fresh charge memo, which means, the Disciplinary Authority has not dropped the ....