Madras High Court
J.Amala Devi vs The Government Of Tamil Nadu on 21 November, 2024
Author: B.Pugalendhi
Bench: B.Pugalendhi
WP(MD)No.4093 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 21.11.2024
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
WP(MD)No.4093 of 2019
and
WMP(MD)NOs.3191 and 3192 of 2019
J.Amala Devi ... Petitioner
Vs
1.The Government of Tamil Nadu,
Represented its Secretary,
Department of Health and Family Welfare,
Secretariat, Chennai.
2.The Director of Medical and
Rural Health Service,
Office of the Director of
Medical and Rural Health Service,
Chennai – 6.
... Respondents
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India for issuance of writ of
certiorarified mandamus to call for the records
pertaining to the impugned charge memo in Ref.No.
27081/SC-1/1/2010 dated 04.10.2011 issued by the 2nd
respondent and the consequential impugned order in
GO(MD)No.886, Health and Family Welfare (K1)
Department dated 18.05.2018 on the file of the
respondent No.1 and quash the same as illegal and
consequently directing respondents to provide the
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https://www.mhc.tn.gov.in/judis
WP(MD)No.4093 of 2019
service benefits to the petitioner with interest,
within the time period stipulated by this Court.
For Petitioner : Mr.G.Karthik
For Respondents : Mr.K.Balasubramani
Special Govt.Pleader
ORDER
The petitioner, who joined in the Tamil Nadu Medical Services as a Woman Assistant Surgeon in the year 1972 attained the age of superannuation on 30.06.2006, was not allowed to retire pursuant to the charge memo in Ref.No.27081/SC-1/1/2010, dated 04.10.2011 and was subsequently removed from service by the government order in GO(MD)No.886 Health and Family Welfare Department dated 18.05.2018. Challenging the same, this writ petition is filed.
2.The learned Counsel for the petitioner submits that this petitioner was placed under suspension on the verge of her retirement, enquiry was conducted after her date of superannuation and she was imposed with a punishment of removal from service. He further 2/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 submits that the respondents earlier conducted enquiry as against this petitioner by issuing a charge memo in reference No.103296/SC/113/2004-1, dated 01.08.2005 and the same was challenged by this writ petitioner in WP(MD)No.11592 of 2005 and this Court by order dated 15.06.2006 disposed of the writ petition with a direction to the authorities to complete the enquiry within a period of three months from the date of receipt of the order and also directed to permit this petitioner to retire on attaining her age of superannuation. According to the learned Counsel, the respondents failed to comply with the directions of this Court and after a period of five years, the 2nd respondent has issued the charge memo dated 04.10.2011 on the very same allegations levelled in the earlier charge memo dated 01.08.2005.
3.The learned Counsel further submits that the disciplinary proceedings was initiated with an inordinate delay, which is not explained by the respondents. Multiple charge memos have been issued 3/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 by the respondents. The impugned government order has been passed in violation of Regulation No.18(a)(b) of the Tamil Nadu Public Service Commission Regulations, 1954 [in short 'TNPSC Regulations'].
4.According to the learned Counsel for the petitioner, the 1st respondent before passing the impugned order has consulted the Tamil Nadu Public Service Commission [TNPSC] and the petitioner was removed from service. The recommendation of the TNPSC is also enclosed along with the impugned government order. However the recommendation of the TNPSC has not been furnished to her before passing an order of punishment. Since the views of the TNPSC was not furnished to her, the punishment imposed based on the recommendation of the TNPSC amounts to violation of principles of natural justice.
5.The learned Counsel by referring to the order passed by this Court in WP(MD)No.4776 of 2007 (in R.Swaminathan Vs Government of Tamil Nadu) submits that the delinquent officer should be furnished with 4/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 all documents relied on by the disciplinary authority, enabling the delinquent officer to forward his explanation and non-furnishing of the relied on documents amounts to flagrant violation of principle of natural justice.
6.He further submits that this departmental proceedings initiated with a delay of more than ten years, is liable to be quashed in view of the decision of the Hon'ble Supreme Court in P.V.Mahadevan Vs.M.D.Tamil Nadu Housing Board reported in 2005 (4) CTC 403 and the orders of this Court in WP.Nos.15151 and 16090 of 2010, dated 20.03.2012.
7.The learned Special Government Pleader appearing for the respondent submits that based on the complaint received as against the petitioner that she accumulated assets, disproportionate to her known source of income, disciplinary action under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was initiated as against this 5/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 petitioner / the then Joint Director of Health Services, Dindigul. Based on the impugned charge memo dated 04.10.2011, the Additional Director of Medical and Rural Health Services, conducted an enquiry and submitted a report on 30.08.2013 holding the charges framed as against this petitioner proved. Therefore, the 1st respondent / the Secretary to Government, communicated the enquiry officer's report to the petitioner for offering her further representation and the petitioner also submitted her further representation on 16.03.2015. Considering the materials and further representation independently, the disciplinary authority took a provisional decision to impose the punishment of removal from service on the petitioner and also consulted TNPSC for its views, as per Regulation No. 18(1)(b)(iv) of the TNPSC Regulations. The TNPSC also agreed with the provisional decision of the 1st respondent. Subsequently the 1st respondent, after examining the case with connected records independently, confirmed the provisional decision and imposed the punishment of removal from service on the petitioner vide 6/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 impugned government order GO(D)No.886 Health and Family Welfare Department dated 18.05.2018.
8.He further submits that since a complaint received against the petitioner through the 1st respondent in government letter No.52750/A2/04 Health and Family Welfare Department dated 02.11.2004, a discreet inquiry was conducted by the then Additional Director of Medical Rural Health Services (Inspection) on 23.03.2005 and 24.03.2005. Based on the enquiry report, disciplinary action under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules was initiated against the petitioner and the following charges were framed in charge memo Ref.No.103269/SC2/3/2004, dated 01.08.2005;
“Charge-1:
“that Dr.J.Amaladevi, while
working as Joint Director of Health
Services, Dindigul has attended on patient Tmt.Nihal Rajwana Begum in a private Nursing Home at “Annai Perinbam Nursing Home” Dindigul in the name of her mother 7/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 and Dr.J.Amaladevi has operated on the above said patient at the “Annai Perinbam Nursing Home” on 03.03.2004 and that by her private practice she has violated Rule 8(7) of the Tamil Nadu Government Servant Conduct Rules and the provisions contained in para 646 of the Tamil Nadu Medical Code Volume-I” Charge No.2.
“That Dr.J.Amaladevi has acquired
immovable properties and has violated in
the registration of following documents
bearing Nos.1642/1988; 1226/92; 667/95;
932/95; 820/97; 821/97; 1486/97; 612/2000, 620/2001, 621/2001; and 321/96 of the Sub Registrar, Dindigul in her name and her close relatives without informing her higher authorities and there she has violated Rule 20 of the Tamil Government Servant Conduct Rules.” Charge No-3:
“That by her above acts Dr.J.Amaladevi has violated Rule 20 of the Tamil Nadu Government Servant Conduct Rules, 1973.” 8/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019
9.The petitioner submitted her defence statement to the charge memo and preferred for an enquiry and personal hearing. While so, the Directorate of Vigilance and Anti Corruption, Chennai in their letter No.DE.253/2004/MED/DL, dated 29.09.2005 requested the second respondent to stop further proceedings in respect of charge No.2 with regard to the acquisition of immovable properties by the petitioner, that an enquiry proceedings is also initiated and is pending with the appropriate investigating authority of the government as against the petitioner.
10.The learned Special Government Pleader further submits that the charge memo dated 01.08.2005 was challenged by this petitioner before this Court in WP(MD)No.11592 of 2005 and the same was disposed of by this Court by order dated 15.06.2006 with a direction to the 2nd respondent to complete the enquiry within a period of three months from date of the receipt of the order and to permit the petitioner to retire from service on attaining her age of 9/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 superannuation on 30.06.2006. Challenging the order passed in the writ petition, the respondents filed a writ appeal in WA(MD)No.335 of 2006 and the Division Bench of this Court by order dated 12.09.2006 set aside the permission granted to the petitioner to retire from service on attaining the age of superannuation. Pursuant to the order dated 12.09.2006, the enquiry officer proceeded with the charge memo dated 01.08.2005, conducted enquiry, and submitted his report dated 26.02.2007 holding the charges 1 and 3 are proved.
11.He also submits that since the Vigilance and Anti Corruption Department took cognisance of charge No.2 with regard to the accumulation of immovable properties by the petitioner, the enquiry officer did not conduct enquiry on the same. While so, the 1st respondent by his letter dated 05.05.2008 communicated the enquiry officer's report dated 26.02.2007 to the petitioner for obtaining her further representation. In the meantime based on the report of the Vigilance and Anticorruption Department 10/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 the impugned charge memo dated 04.10.2011 was issued to the petitioner for the accumulation of movable and immovable properties by her to the tune of Rs.4,85,386.91, which was disproportionate to her known source of income during the period from 01.09.1991 to 31.12.2001. The petitioner had also submitted her defence statement on 29.04.2012. Subsequently an enquiry was conducted by the Additional Director of Medical and Health Services Department and the enquiry officer submitted his report dated 30.08.2013 holding that the charges framed as against this petitioner vide charge memo dated 04.10.2011 are proved. Therefore, the 2nd respondent, remitted the disciplinary proceedings to the 1st respondent and the 1st respondent has arrived at the provisional decision to impose the punishment of removal from service on the petitioner and consulted the TNPSC for its views as per Regulation No. 18(1)(b)(iv) of the TNPSC Regulations. After receiving the views, the issue was independently considered by government and this petitioner was removed from service. 11/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019
12.With regard to the submission of the learned Counsel for the petitioner that the disciplinary proceedings was initiated as against the petitioner after retirement with an inordinate delay of ten years, the learned Special Government Pleader submits that the proceedings was initiated pursuant to discreet enquiry report of Department in the year 2005 and the writ petition filed by this petitioner in WP(MD)No.14592 of 2005 was disposed of on 15.06.2006 with a direction to the respondents to complete the enquiry within a period of three months and to permit the petitioner to retire from service. On writ appeal appeal the Division Bench of this Court in WA(MD)No.335 of 2006 by order dated 12.09.2006 has set aside the permission granted to the petitioner for retirement. Now this petitioner has filed this writ petition suppressing the subsequent order passed by the Division Bench of this Court in WA(MD)No.335 of 2006. Further the Vigilance and Anti Corruption Department has taken cognizance of the issue and submitted report and pursuant to the same the proceedings was resumed vide the impugned 12/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 charge memo. The very disciplinary action was initiated as early as in the year 2005 itself. Therefore it cannot be stated that the disciplinary action was initiated with an inordinate delay.
13.With regard to the averment of the petitioner that the views of the TNPSC has not been furnished to the petitioner before passing the impugned government order and therefore, it is violative of principle of natural of justice is concerned, the Special Government Pleader submits that the State Public Service Commission's function is purely advisory in nature and it is not an appellate authority over the disciplinary authority. The advice tendered by the Public Service Commission is not binding on the disciplinary authority. In this regard he referred to the orders of the Hon'ble Apex Court in A.N.D'Silva Vs Union of India, reported in AIR 1962 SC 1130.
14.In this case, the disciplinary authority independently examined the case and connected records and took a provisional decision to impose the 13/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 punishment of removal from service and also consulted the TNPSC and passed the order of removal from service. When the disciplinary authority has independently considered the case, took a decision and passed an order, there is no need to furnish the views of the TNPSC to the petitioner before passing the impugned order.
15.This Court considered the rival submissions and perused the materials placed on record.
16.The petitioner in this writ petition has challenged the charge memo in Ref.No. 27081/SC-1/1/2010, dated 04.10.2011 and the government order in GO(MD)No.886 Health and Family Welfare Department dated 18.05.2018 removing the petitioner from service.
17.The impugned charge memo is challenged in this writ petition that it was issued in the year 2011 for the accumulation of wealth in between 01.01.1991 to 31.12.2001. Therefore, according to the 14/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 petitioner, this charge memo dated 14.10.2011 for the alleged delinquencies said to have committed in between 01.01.1991 and 31.12.2001, is issued with a delay of ten years and without any explanation for this inordinate delay. It is seen that based on the complaint received as against the petitioner through the 1st respondent dated 02.11.2004 a discreet enquiry was conducted by the 1st respondent / then Additional Director of Medical Rural and Health Services (Inspection) on 23.03.2005 and 24.03.2005 and based on the enquiry report, the disciplinary proceedings was initiated as against this petitioner under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules, vide charge memo Ref.No.103269/SC2/3/2004, dated 01.08.2005. The accumulation of wealth by this petitioner is referred as charge No.2 as under:
“Charge No.2: that Dr.J.Amaladevi
has acquired immovable properties and has
violated in the registration of following documents bearing Nos.1642/1988; 1226/92; 667/95; 932/95; 820/97; 821/97; 1486/97; 15/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 612/2000, 620/2001, 621/2001; and 321/96 of the Sub Registrar, Dindigul in her name and her close relatives without informing her higher authorities and there she has violated Rule 20 of the Tamil Government Servant Conduct Rules.”
18.The petitioner challenged the charge memo dated 01.08.2005 before this Court in WP(MD)No.11592 of 2005. This Court by order dated 15.06.2006 disposed of the said writ petition with a direction to the 2nd respondent to complete the enquiry within a period of three months and to permit the petitioner to retire from service on her attaining the age of superannuation. As against this order, the respondents filed a writ appeal before this court in WA(MD)No.335 of 2005, wherein this Court by order dated 12.09.2006 set aside the permission granted to this petitioner to retire from service on attaining the age of superannuation and directed the respondents to complete the enquiry as against this petitioner and to pass final order within a period of six months from the date of receipt of the order. 16/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 Thereafter an enquiry officer was nominated, enquiry officer submitted his report on 30.08.2013 holding that the charges are proved. The 1st respondent communicated this enquiry officer's report to the petitioner for obtaining further representation on the findings of the enquiry officer in the year 2015 and this petitioner also offered her further representation on 16.03.2015. Based on the materials the 1st respondent has taken a provisional decision to impose the punishment of removal from service and consulted TNPSC for its views as per Regulation No.18(i)(b)(iv) of the TNPSC Regulations, 1954.
19.Based on the complaint received through the 1st respondent in the year 2004 as against this petitioner, the charge memo was issued in the year 2005 itself framing three charges, contemplating disciplinary action and subsequently enquiry was conducted for two charges, since the Vigilance and Anti-Corruption Department took cognisance of one of the charges for accumulation of wealth for the period 01.01.1991 to 31.12.2001 and submitted its report and 17/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 based on the same, the present charge memo was issued and enquiry was conducted. Therefore the ground of delay raised by this petitioner cannot be sustained.
20.Insofar as ground of non-furnishing of the views of the TNPSC to the petitioner before passing the impugned punishment order is concerned, Article 320 of the Constitution of India deals with the functions of the Public Service Commission. Clause (3) of Article 320 of Constitution of India, mandates the consultation of Union Public Service Commission or State Public Service Commission as under:
a) on all matters relating to methods of recruitment to civil services and for civil posts;
b) on the principles to be followed in making appointments to civil services and posts in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers; 18/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019
c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
d) on any claim or in respect of a person who is serving or has served under the Government of India or the Government of State or under the Crown in India or under the Government of an Indian State, in a civil capacity that any costs incurred by him in defending legal proceedings instituted against him in respect of acts or purporting to be done in the execution of his duty should be paid out of Consolidated Fund of India, or as the case may be, out of the Consolidated Fund of the State.
e)on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award and it shall be the duty of Pubic Service Commission to advise on any matter so referred to them and any other matter 19/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 which the President, or, as the case may be, the Governor of the State, may refer to them;
provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union and the Governor as respects other services and posts in connection with the affairs of a State, may make regulations specifying matters in which either generally or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
21.The disciplinary authority is expected to obtain the views of the Public Service Commission. The advice of the State Public Service Commission is only recommendatory in nature and it is not binding on the disciplinary authority in imposing the punishment. The Public Service Commission is an advisory body, which cannot insist upon the State Government to impose any kind of punishment. 20/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 The opinion of the Public Service Commission is not binding upon the State and the State can come to its own conclusion based on the available records. It can also take a different view to that of the opinion rendered by the Public Service Commission. The Hon'ble Supreme Court in a similar issue in A.N.D'Silva Vs Union of India, reported in AIR 1962 SC 1130 has discussed as under:
“4. .... ... By Art. 320(3) of the Constitution it is provided that the Union Public Service Commission shall be consulted in all disciplinary matters affecting a person serving under the Government of India in a civil capacity, but the Union Public Service Commission is not an appellate authority over the Enquiry Officer. It is unnecessary for the purpose of this case to consider whether in making their recommendations or tendering their advice the Union Public Service Commission may express a conclusion on the merits of the case as to the misdemeanour alleged to have been committed by a public servant different from the conclusion of the Enquiry Officer.”
22.The Hon'ble Supreme Court in Union of India and others Vs. R.P.Singh reported in (2014) 7 SCC 340 after following the judgment in S.N.Narula Vs. Union 21/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 of India and others reported in (2011) 4 SCC 591 in paragraph No.12 has held as follows:
“12....The said decision of S.N.Narula case is an authority for the proposition that the advice of UPSC, if sought and accepted, the same, regard being had to the principles of natural justice, is to be communicated before imposition of punishment.”
23.The Hon'ble Supreme Court in Union of India and others Vs.S.K.Kapoor reported in (2011) 4 SCC 589 in paragraph No.8 has held as follows:
“8.There may be a case where the
report of the Union Public Service
Commission is not relied upon by the
disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N.Narula vs Union of India.” 22/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019
24.The Hon'ble Supreme court made it clear that whenever the disciplinary authority relies upon the report of Public Service Commission, a copy of the same has to be furnished. If the same is not furnished to the delinquent before imposition of punishment that would be in violation of principle of natural justice. In the event if the government has imposed punishment solely based on the views of the public service commission, then it ought to have furnished the same to the delinquent officer. Whereas in this case the government independently considered the report of the enquiry officer, further representation of this petitioner and provisionally took a decision to impose the punishment of removal of service and then only obtained the views of TNPSC on the provisional decision and thereafter passed the impugned order. Therefore, on this ground the impugned order is not vitiated.
25.In view of the above discussion, this Court is not inclined to entertain this writ petition on the grounds raised by the petitioner. Accordingly, 23/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 this writ petition is dismissed. No costs. Consequently connected miscellaneous petitions are closed.
21.11.2024 DSK To
1.The Secretary, Department of Health and Family Welfare, Secretariat, Chennai.
2.The Director of Medical and Rural Health Service, Office of the Director of Medical and Rural Health Service, Chennai – 6.
24/25 https://www.mhc.tn.gov.in/judis WP(MD)No.4093 of 2019 B.PUGALENDHI, J.
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