Madras High Court
S.Velmurugan vs State Of Tamil Nadu on 11 January, 2016
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS CAV ON 05/08/2014 DATED: 11/01/2016 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.35907 of 2007 & M.P.Nos.1 of 2007 & 1 of 2008 S.Velmurugan Regional Transport Officer (Enforcement), Office of Deputy Transport Commissioner, Subramaniyanagar, Salem-5. ... Petitioner Vs. 1.State of Tamil Nadu, Rep. by its Secretary to Government, Home Department, Fort St. George, Chennai-600 009. 2.The Transport Commissioner, Ezhilagam, Chennai-600 005. ... Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India for a Writ of Certiorari to call for the entire records, leading to the issue of G.O.(2D)No.673, Home (Tr.II) Department, dated 10.10.2007, on the file of the first respondent and quash the same. For Petitioner : Mr.K.Sridhar For M/s.K.Sridhar Association For Respondents : Mr.M.S.Ramesh Additional Government Pleader - - - O R D E R
The short facts of the case are as follows:-
The petitioner has submitted that he passed his Diploma in Mechanical Engineering in 1973 and Post Diploma in Automobile Engineering in 1975. He was selected through TNPC in 1979 as a Motor Vehicle Inspector Grade II. The petitioner joined duty as M.V.I. Gr.II at Madurai on 10.11.1980. After serving in various places, he was promoted as Motor Vehicle Inspector Grade I on 18.11.1987 and posted at Pollachi. The petitioner had a blemishless service and known for his integrity and was promoted as Regional Transport Officer on 23.01.2002 and posted at Sivagangai. The petitioner has further submitted that on 06.05.2002, he applied for 19 days leave between 13.05.2002 and 31.05.2002 for attending to the wedding of his sister's daughter. Thereafter, he went to Thirukkadaiyur Arulmighu Amirthakadeeshwarar Temple, where he fell seriously ill. The above leave was duly sanctioned by the Deputy Transport Commissioner Madurai Zone. The petitioner became giddy and fell down and could not attend office. On 31.05.2002, the petitioner applied for 15 days leave for taking treatment as he felt that he would be cured within the leave period. However, on examination by the Doctors, he was diagnosed as suffering from cervical spondylosis and vertigo, diabetic, depressive illness with panic disorder. Therefore, along with the medical certificates, he had to extend his leave continuously. The petitioner was also advised to take treatment at Chennai. The petitioner was continuously ill and undergoing treatment between 31.05.2002 and 18.09.2003. The petitioner was treated by Dr.Krishnaswamy a Physician, Dr.Velmurugan, Neurologist, Appollo Hospital, Dr.Muthukrishnan Psychiatrist Appollo Hospital and also at the M.V.Diabetic Centre, Chennai. The petitioner has regularly, without any kind of a gap or break, forwarded through proper channel his leave applications seeking medial leave along with medical certificate by an Authorized Medical Practitioner. The Competent Authority viz., the Transport Commissioner has not passed any orders either accepting or rejecting his applications for eligible earned leave on medical grounds.
2. The petitioner has further submitted that the Transport Commissioner referred him to the Medical Board and he was asked to appear before the Medical Board at the Government General Hospital, Chennai on 19.09.2003. He was examined by the Medical Board with his previous treatment records. On examination, the Medical Board confirmed that he was under treatment since 2002 for cervical spondylosis and vertigo diabetic, depressive illness with panic disorder, hypertension and cardiac problems. The Medical Board found that he was still ill and recommended for 15 days for the period from 19.09.2003 to 03.10.2003. The petitioner has further submitted that on expiry of medical leave, he appeared before the Medical Board, Chennai on 03.10.2003 and necessary physical fitness certificate was issued and he was directed to resume duty in Government service with effect from 03.10.2003. In obedience to the above direction of the Medical Board, he joined duty on 03.10.2003 p.m., before the second respondent and placed on compulsory wait till 19.10.2003, when he was allowed to rejoin as RTO Sivagangai. The petitioner has been serving there without any break whatsoever till 17.06.2005, when he was transferred as RTO, Meenambakkam. On 23.05.2007, he was transferred and posted as RTO Enforcement, Salem, where he is presently serving. The petitioner has further submitted that the second respondent Transport Commissioner received all his leave letters along with medical certificates through proper channel and was well aware of his serious illness and inability to attend office on medical grounds. In fact, he had forwarded his case to the Medical Board also and he was called to appear before the Medical Board on 19.09.2003 and was also granted medical leave for 15 days upto 03.10.2003 and thereafter, found medically fit and directed to join duty on 03.10.2003. The petitioner also rejoined duty on 03.10.2003 as directed by the Medical Board along with his fitness certificate.
3. The petitioner has further submitted that the Medical Board, Chennai verified his records, examined him and found that he had been undergoing treatment from 2002 and had given the following clarification to the second respondent in its letter L.Dis.No.7169/RMB/GH/2005, dated 18.05.2005. (i) The leave availed from 13.05.2002 to 18.09.2003 may be regularized on other than medical leave subject to availability of leave in individuals leave account. (ii) The remaining period of leave from 19.09.2003 to 03.10.2003 which was recommended by the Medical Board may be regularized on medical grounds. The petitioner has further submitted that even while this process was going on before the Medical Board, Chennai without awaiting the examination report of the Medical Board, the second respondent hurriedly issued a charge sheet under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in his Lr.No.V3/50348/2003, dated 05.09.2003 framing the following five charges:-
Charge-I:-
That the said Thiru.S.Velmurugan while functioning as Regional Transport Officer, Sivagangai during the period from 23.01.2002 has applied for earned leave in piecemeal fashion and thereby dislocated the functioning of his office and the department.
Charge-II:-
Even though he was aware that the maximum Earned Leave available to a Government servant at a time is only six months, he has applied for extension of earned leave and thereby knowingly entered on leave and also acted in violation of Rule 18(2) of FR.
Charge-III:-
As per Rule 18(2) of FR, a Government servant can go on leave only for a continuous period of not exceeding six months. But the individual has entered on Earned Leave for more than 6 months thereby violated the fundamental Rules.
Charge-IV:-
He has not submitted any leave application for the period from 01.09.2003 and thereby absented himself unauthorizedly.
Charge-V:-
Even though the leave applied for by him has not been sanctioned he was continuing to be absent and thereby committed unauthorized absence from duty.
4. The petitioner has further submitted that the main allegation is only two fold stretched into five charges,
(a) that while he served as RTO, Sivagangai, he applied for earned leave in piecemeal fashion thereby dislocating the functioning of the office thus violating Rule 18(2) of the FR.
(b) No leave application was submitted for the period from 01.09.2003 and thereby he absented unauthorizedly from duty.
The petitioner gave his explanation dated 06.10.2003 denying all the charges and submitted inter-alia that when he took leave on 31.05.2002, he was not aware that he was seriously ill and would require further treatment and consequential medical leave. That the charges does not indicate or involve indiscipline, moral turpitude, corruption etc warranting action under Rule 17(b). That the entire period was covered by medical certificates issued by Specialist Doctors and approved by the Government Medical Board, Chennai which have directed the regularization of the entire medical leave period. In view of the medical certificates produced and the recommendation of the Medical Board, Chennai, FR 18(2) would not apply at all to his case. That he has submitted leave through telegram on 31.08.2003 and leave application through proper channel dated 01.09.2003. It is thereafter, in response to the leave letter that the second respondent had directed the petitioner vide Letter No.36831/T2/02, dated 04.09.2003 to appear before the Medical Board, Chennai for examination. The entire period of leave between 31.05.2002 to 03.10.2003 had been regularized by the Medical Board, Chennai and no cause of action survives for enquiry whatsoever.
5. The petitioner has further submitted that the Deputy Transport Commissioner Madurai was appointed as Inquiry Officer to inquire into the charges framed against the petitioner. A detailed inquiry was conducted on 05.11.2003. All the medical certificates and medical reports were submitted and carefully scrutinized by the Inquiry Officer. The Inquiry Officer found that the entire leave period had been covered by proper medical certificates and the petitioner was really ill necessitating treatment and entitled to eligible medical leave. After detailed inquiry, the Inquiry Officer submitted his report in letter No.28/DTC/2003, dated 18.11.2003 holding that the charges I to V framed against the petitioner are held as not proved. The petitioner has further submitted that after a delay of nearly three years, the first respondent issued a Letter No.13933/Tr.II/2005-4, dated 10.08.2006 along with the copy of the report of the Inquiry Officer dated 18.11.2003 indicating that he disagreed with the findings of the Inquiry Officer relating to the charges II, III and V and seeking for further representation on the findings. The petitioner has submitted that the reasons for disagreement were extracted in the Annexure as follows:-
Reasons for disagreement (Charge -II, III and V):-
As there are no medical certificates or supporting evidence for leave during March of 2002 and early part of 2003, even the Dean, Government Hospital, Chennai in her letter dated 18.05.2005 has recommended regularization of his entire leave (of 1 1/2 years (except 15 days) on leave without medical certificates. Also in his various request for leave during the 1 1/2 years period, he has always included other family reasons also, apart from medical grounds of being unwell. Therefore, he had been wantonly extending leave repeatedly for such a long time without bothering to get previous leave authorized. Hence, this charge is held as proved.
6. The petitioner has further submitted that he gave a detailed explanation dated 05.10.2006 for the above charges II, III and V. In respect of Charge No.II, he explained that he had applied for earned leave on medical grounds combined with family problems like injury sustained by his son in a motorcycle accident etc, which is not prohibited in law. The Medical Board, Chennai on clarification sought for by the Transport Commissioner had recommended sanction covering the above periods of absence. The medical treatment by three Specialists during the above period were accepted by the Medical Board Chennai and recommended for sanction. In respect of Charge No.III, he explained that FR 18(2) would not apply as he had applied for sanction of eligible medical leave enclosing medical certificates and the Specialists who have diagnosed his illness had advised further treatment at Chennai as similar treatment was not available at Sivagangai. For the entire period leave letters have been submitted to the Transport Commissioner through proper channel and pending sanction. On being found medically fit by the Medical Board Chennai, the petitioner had joined duty as RTO at the Office of the second respondent on 03.10.2003. In respect of charge No.V, the petitioner denied the charge and explained that all the leave applications were kept pending without any orders either accepting or rejecting and referred to the Medical Board, Chennai on 19.09.2003. Therefore, the Medical Board, Chennai also has recommended sanction for leave after accepting the medical certificates and records submitted by the petitioner and also thoroughly examining him.
7. The petitioner has further submitted that without considering the petitioner's explanation and the recommendation of the Medical Board, Chennai, the first respondent has passed the impugned G.O.(2D)No.673, Home (Tr.II) Department, dated 10.10.2007, which is a non-speaking order holding that charges II, III and V as proved and charges I and IV not proved. For proven charges, Government have imposed the following punishment.
"Stoppage of increment for 3 (three) years with cumulative effect. The above punishment is including of leave period and it will affect his pension."
The petitioner has further submitted that no reasons whatsoever have been given for coming to the conclusion that the charges have been proved. The explanation of the petitioner have not been considered. The petitioner has further submitted that the impugned order made in G.O.(2D)No.673, Home (Tr.II) Department dated 10.10.2007 is illegal against law and unconstitutional and liable to be quashed.
8. The learned counsel Mr.K.Sridhar appearing for the petitioner has submitted that the petitioner has passed with a Diploma in Mechanical Engineering and passed with a Post Diploma in Automobile Engineering. He has been selected through TNPSC in 1979, as a Motor Vehicle Inspector Grade II and he had joined duty on 10.11.1980. Subsequently, he was promoted as a Motor Vehicle Inspector Grade I on 18.11.1987. The promotion was given due to his integrity and promptness in service with the respondent Department. The petitioner has applied leave for 19 days between 13.05.2002 and 31.05.2002 in order to attend the wedding of his sister's daughter. Thereafter, he went to Thirukkadaiyur temple, wherein he became seriously ill, so he applied for 15 days leave for taking medical treatment. As per the advise of the doctor, his health condition was considered serious, hence, he underwent treatment at Chennai upto 18.09.2003. The petitioner underwent medical treatment as in-patient at Apollo Hospital and also underwent treatment at M.V.Diabetic Centre. At both hospitals several doctors attended on him, thereafter, the petitioner sent leave applications along with medical certificates issued by the practicing doctor and the same was not considered by the Competent Authority of the Transport Department. The learned counsel has further submitted that the second respondent herein referred him to the Medical Board and accordingly, he appeared before the Government General Hospital, Chennai on 19.09.2003. The Medical Board thoroughly checked his health and also verified previous records of the petitioner and confirmed that the petitioner was suffering from various problems, thereafter physical fitness certificate was issued by the practicing doctor and he had joined duty on 03.10.2003 before the second respondent herein and he was placed on compulsory wait till 19.10.2003, subsequently, he was allowed to rejoin at Sivagangai Regional Transport Office, subsequently he had been transferred to various places.
9. The learned counsel Mr.K.Sridhar appearing for the petitioner has further submitted that the leave availed by the petitioner from 13.05.2002 to 18.09.2003 may be regularized on medical grounds and also the remaining period may be regularized on availability of leave on individual leave account. Under the circumstances, the second respondent had issued a charge sheet under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and framed 5 charges as mentioned in the said case. The petitioner has submitted his explanation and denied all the charges. The Deputy Transport Commissioner, Madurai was appointed as an Inquiry Officer, who conducted a comprehensive inquiry and after scrutinizing the medical records of the petitioner found that the entire leave period had been covered by relevant medical certificates. Further, the Inquiry Officer had held that the 5 charges were not proved. The first respondent disagreed with the findings of the Inquiry Officer regarding charges II, III and V. The first respondent's disagreement was mentioned in the facts of the case. Without considering the entire factual position of the petitioner's case, the first respondent has passed an impugned order dated 10.10.2007 holding that charges II, III and V as proved and charges I and IV not proved. For the proven charges, the Government had imposed the punishment of stoppage of increment for 3 years with cumulative effect. The learned counsel has further submitted that the punishment imposed by the first respondent was in an arbitrary manner. Hence, the highly competent counsel has entreated the Court to allow the above writ petition since the petitioner established his case before the Inquiry Officer.
10. The learned Additional Government Pleader Mr.M.S.Ramesh appearing for the respondents has submitted that the Inquiry Officer's report was duly verified by the first respondent and also scrutinized the connected records of the petitioner. The first respondent disagreed with the findings of the Inquiry Officer with regard to charges I and IV. The first charge was that while functioning as Regional Transport Officer, Sivagangai during the period from 23.01.2002 he has applied for earned leave in a piecemeal fashion and thereby dislocated the functioning of his office and the department. The IV charge according to penal offence, indicated in the Government instructions, the substance of allegations I to V will not attract charges of indiscipline, moral turpitude, corruption etc warranting action under Rule 17(b). Therefore, for the genuine appreciation is that the present charge sheet dated 05.09.2003 is not erroneous and not in contravention of Government Rules. The learned Additional Government Pleader has further submitted that the first respondent who is the top officer attached to the Transport Department had given reason for disagreement which are as follows:-
"As there are no medical certificates or supporting evidence for leave during March of 2002 and early part of 2003. Even Dean, Government Hospital, Chennai in her letter dated 18.05.2005 has recommended regularization of his entire leave (of 1 - 1/2 years (except 15 days) on leave without medical certificates. Also in his various request for leave during the 1 1/2 years period, he has always included other family reasons also, apart from medical grounds of being unwell. Therefore, he had been wantonly extending leave repeatedly for such a long time without bothering to get previous leave authorized. Hence, this charge is held as proved. "
11. From the above discussions, this Court is of the view that:-
(i) The Inquiry Officer had conducted a comprehensive inquiry and submitted an inquiry report before the first respondent who is the presiding authority. If the first respondent is not satisfied with the findings of the Inquiry Officer, then the matter could be referred to another Inquiry Officer.
(ii) The first respondent cannot come to a conclusion that the charges II, III and V as proved without giving a second opportunity to the petitioner for his further explanation regarding disagreement. In the instant case, the first respondent had not given an opportunity of hearing to the petitioner before the implementation of the disagreement and as such principles of natural justice has been violated.
(iii) It is seen from the records that the petitioner has suffered from cervical spondylosis and vertigo, diabetic, depressive illness with panic disorder, hypertension and cardiac problems. Further, it is seen that the petitioner had undergone medical treatment at two different hospitals and as such, it is clearly apparent that the petitioner's health condition did not permit him to join duty until properly cured.
12. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the typed-set of papers and this Court's view (i) to (iii) as mentioned above, the above writ petition does possess sufficient force to allow it. Accordingly, the above writ petition is allowed. Consequently, the entire records relating to the issue of G.O.(2D)No.673, Home (Tr.II) Department, dated 10.10.2007, on the file of the first respondent is quashed. There is no order as to costs. Consequently, connected miscellaneous petitions are closed.
11/01/2016
Index : Yes.
Internet : Yes.
r n s
To
1.The Secretary to Government,
Government of Tamil Nadu,
Home Department,
Fort St. George, Chennai-600 009.
2.The Transport Commissioner,
Ezhilagam,
Chennai-600 005.
C.S.KARNAN, J.
r n s
Pre Delivery Order made in
W.P.No.35907 of 2007 &
M.P.Nos.1 of 2007 & 1 of 2008
11/01/2016