Madras High Court
R. Kannan vs The Director on 20 June, 2013
Author: N.Paul Vasanthakumar
Bench: P.Devadass, N.Paul Vasanthakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/6/2013 CORAM The Hon'ble Mr.Justice N.PAUL VASANTHKUMAR and The Hon'ble Mr.Justice P.DEVADASS W.A(MD)No.1469 of 2011 and M.P(MD)No.1 of 2011 AND W.A(MD)No.1470 of 2011 AND M.P(MD)No.1 of 2011 R. Kannan .. Appellant in both writ appeals Vs 1. The Director, Medical and Rural Health Services and Family Welfare, Chennai - 6 2. The Joint Director, Medical and Rural Health Services and Family Welfare, Sivagangai District. 3. The Deputy Superintendent of Police, Vigilance and Anti Corruption, Sivagangai. .. Respondents in both writ appeals Writ Appeals filed under Clause 15 of the Letters Patent against the common order dated 11.10.2011 passed in W.P.(MD)No.11392 & 11393 of 2011. !For Appellant .. Mr.T.Lajapathy Roy ^For Respondent .. Mr.Alagadevan, Special Govt. Pleader :COMMON JUDGMENT
N.PAUL VASANTHAKUMAR, J.
These writ appeals are filed against the common order dated 11.10.2011 passed by the learned single Judge dismissing W.P(MD)Nos.11392 and 11393 of 2011.
2. The case of the appellants before the learned single Judge in W.P.No.11392 of 2011 was to quash the order dated 27.8.2010 passed by the second respondent suspending the appellant under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, and not allowing the appellant to retire from service with effect from 31.8.2010 and direct the second respondent to allow the appellant to retire on 31.8.2010 with all consequential benefits to him.
3. In W.P.No.11393 of 2011 the very same appellant challenged the charge memo issued on 26.8.2010 by the second respondent.
4. By consent of both sides the writ appeals are taken up for final disposal.
5. The brief facts necessary for disposal of these writ appeals are that the appellant was appointed as Male Nursing Assistant in the year 1972 in Government Hospital, Srivilliputhur. He worked in various hospitals and lastly worked as an Operation Theatre Assistant in the Government Hospital, Sivagangai. On 17.8.2004 the second respondent issued a memo to appear for enquiry before the Deputy Director of Medical Sciences (Leprosy), Sivagangai at 11.00 a.m. on 18.8.2004 regarding the complaint received from the Director of Vigilance and Anti Corruption. The complaint for which enquiry conducted was relating to an incident said to have taken place on 18.8.2003, based on the surprise inspection made on 18.8.2003 at 10.00 a.m. by the Vigilance and Anti Corruption in Government District Head Quarters Hospital, Sivagangai and the allegations were directed to be enquired against the appellant and another person.
6. The allegation levelled against the appellant is that the appellant demanded a sum of Rs.150/- and Rs.170/- from one Indirani, wife of Kumar, who was treated in the Hospital and a sum of Rs.50/- was demanded by one Shankar, Hospital Employee for providing bed to the said Kumar. Disciplinary action was initiated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, by framing a charge. The appellant gave his statement of defence on 25.1.2005 and denied the allegation stating that the said Indirani and the said Kumar were not known to him and he had not demanded any money, and that, he has no practice of receiving money from the patients. A further representation was given on 22.1.2005. The second respondent, without considering the explanation, passed an order in his proceedings Na.Ka.No.1896/N3/04 dated 19.8.2005 and imposed the punishment of withholding of increment for a period of six months without cumulative effect by giving a finding that the complaint given against the appellant by the said Indirani was proved.
7. The appellant filed departmental appeal before the first respondent against the said punishment order dated 19.8.2005 under Rule 22 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955. The first respondent by his proceedings in Ref.No.95192/SC-1/1/2003 dated 6.6.2006 set aside the order of punishment on the ground that enquiry was not conducted as per Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and directed the second respondent to re-start the disciplinary case from where the defects have crept in. The second respondent thereafter cancelled the order of punishment by order on 13.12.2006 with liberty to conduct enquiry. On 5.4.2007 petitioner was called upon to attend the enquiry in Government Maruthupandiar Hospital, Tirupathur. Enquiry was conducted and thereafter final order was passed through proceedings Na.Ka.No.1896/E3/04 dt.22.12.2009 and exonerated the appellant from the charge framed/allegations made.
8. According to the appellant, without reference to the order passed on 22.12.2009, the second respondent again issued a charge memo under Rule 17(b) for the same allegation of demand and acceptance of Rs.150/- and Rs.170/- from Indirani, wife of Kumar on 18.8.2003. The second respondent further placed the appellant under suspension by order dated 27.8.2010 invoking Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955. The charge memo dated 26.8.2010 and the order placing the appellant under suspension dated 27.8.2010 were challenged before this Court in the above writ petitions contending that the allegation regarding demand of bribe from the said Indirani, wife of Kumar on 18.8.2003 having been enquired into already and the appellant having been exonerated from the charge, initiation of fresh proceedings by issuing another charge memo, which was already concluded by passing final order dated 22.12.2009, is illegal as there cannot be two proceedings for the same set of charge. The suspension order passed based on the charge memo, which was issued for the second time in relation to the same set of charge is also liable to be set aside.
9. The learned single Judge dismissed the writ petition observing that the Director of Medical and Rural Health Services, Chennai, directed appropriate enquiry to be conducted, and thus, fresh charge was framed by the Joint Director, and that, merely because the appellant attained the age of superannuation, that does not take away the jurisdiction of the authorities in proceeding with enquiry as they have already expressed their intention to proceed with the enquiry and placed the appellant under suspension and retained his service and proceeded with enquiry. The said orders are challenged by the appellant in these writ appeals contending that the allegation of demand of Rs.150/- and Rs.170/- from Indirani, wife of Kumar on 18.8.2003 having been already enquired into and final order was passed exonerating the appellant from the charge, except in a suo-motu review, the said order cannot be set aside and second charge memo for the very same allegation cannot be issued ad the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 nowhere gives such right to the second respondent.
10. The learned Special Government Pleader appearing for the respondents was unable to find any difference in respect of charge memo issued on 7.1.2005 as well as the charge memo issued on 26.8.2010. The learned counsel submitted that the second respondent issued second charge memo on the request made by the third respondent. The learned counsel submitted that the allegations made in both the charge memos are one and the same i.e, demand and acceptance of Rs.150/- and 170/- on 18.8.2003 from Indiarani, wife of Kumar, while the appellant served as Operation Theatre Assistant.
11. We have considered the rival submissions and the records available in the typed set of papers.
12. The point arises for consideration in these writ appeals is as to whether the second charge memo issued against the appellant on 26.8.2010 by the second respondent for the very same set of allegation and placing the appellant under suspension on the basis of the said charge memo is justified or not.
13. For proper appreciation, it is better to extract the allegation contained in charge memo, on which final order was passed on 22.12.2009, as well as the charge memo issued on 26.8.2010. The final order passed on 22.12.2009 was for the following charge (translated version of the charge), "When one Kumar was getting treatment in the Male Operation Ward, R. Kannan, Operation Theatre Asssitant, forcibly demanded and accepted a sum of Rs.150/- and Rs.170/- from Indirani, w/o.Kumar."
The charge memo dated 26.8.2010 states as follows (translated version):
"On 18.8.2003, R.Kannan, Operation Theatre Assistant, while on duty, demanded and accepted a sum of Rs.150/- and Rs.170/- from Indirani, wife of Kumar, which fact was reported by the patient himself to the Vigilance and Anti Corruption Unit during surprise inspection."
The incident of demand and acceptance of amount referred in both the charge memos are one and the same. The party from whom the appellant allegedly demanded and accepted the amount, the date and time, were also one and the same. Thus, the appellant is justified in contending that the charge memo issued on 26.8.2010 by the second respondent was already enquired and the appellant was exonerated.
14. It is not the case of the respondents that the Head of the Department suo-motu reviewed the order of exoneration of the appellant from 17(b) charge and ordered re-enquiry invoking powers under Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. In the counter affidavit dated 10.8.2012, filed in these writ appeals, the second respondent in paragraph 6 stated as follows:
"6. It is humbly stated that the Vigilance and Anti Corruption has expressed their view that the enquiry conducted earlier dated 22.12.2009 was not in consonance with them and they requested this respondent to conduct a re- enquiry on the above issue. Hence this respondent is justified in conducting re-enquiry, which cannot be questioned by the appellant."
15. (a) The Hon'ble Supreme Court in the decision reported in (2006) 12 SCC 28 (Union of India v. Kunisetty Satyanarayana) considered the said issue and in para 18 held thus, "18. ..... if the charge which has been levelled under the memo dated 23.12.2003 had earlier been enquired into in a regular enquiry by a competent authority, and if the respondent had been exonerated on that very charge, a second enquiry would not be maintainable. .........."
(b) The above said judgment was rendered following the earlier decision of the Supreme Court reported in (2004) 13 SCC 342 (Lt.Governor, Delhi v. HC Narinder Singh). The Hon'ble Supreme Court in the said case held that second penalty based on the same cause of action would amount to double jeopardy and upheld the order of the Tribunal in annulling the punishment imposed.
(c) A Division Bench of this Court in 2009 (4) CTC 209 (Mohammed Sadique v. Union of India) quashed the second charge memo issued based on the same set of materials which were available for framing first charge memo. In the said case for the charge memo enquiry was conducted and fine was imposed. In the second charge memo framed on the very same set of materials, petitioner therein was removed from service. The said order was set aside on the ground that second enquiry is not maintainable.
16. In the light of the above settled proposition of law that no second charge memo can be issued based on the very same set of allegations, which were already enquired into and final order was passed, the second charge memo issued against the appellant on 26.8.2010 cannot be sustained. The suspension order dated 27.8.2010 passed solely on the basis of the said charge memo also cannot be sustained. The appellant having attained the age of superannuation on 31.8.2010 by virtue of the order passed herein viz., quashing the charge memo as well as the order of suspension, the appellant shall be treated to be retired on superannuation with effect from 31.8.2010 with all consequential benefits.
17. In fine, the order of the learned single Judge is set aside and the writ appeals are allowed. The respondents are directed to settle the retirement benefits including pension from 1.9.2010 to the appellant within a period of three months from the date of receipt of copy of this order. No costs. Connected miscellaneous petitions are closed.
Vr To
1. The Director, Medical and Rural Health Services and Family Welfare, Chennai - 6
2. The Joint Director, Medical and Rural Health Services and Family Welfare, Sivagangai District.
3. The Deputy Superintendent of Police, Vigilance and Anti Corruption, Sivagangai.