Madras High Court
Dr. P. Elangovan vs The Commissioner And Secretary, Health ... on 24 January, 2008
Equivalent citations: (2008)4MLJ670
Author: F.M. Ibrahim Kalifulla
Bench: F.M. Ibrahim Kalifulla
ORDER F.M. Ibrahim Kalifulla, J.
1. The petitioner seeks to challenge the charge memorandum in R. No. 119797/PHC3/A2/2005-1, dated 23.1.2006 issued to him by the third respondent herein. The petitioner is a Senior Civil Surgeon. In the impugned charge memo, it has been alleged that while the petitioner was working in the Tamil Nadu Medical Service, he engaged himself in a business with one Thiru. Chellapandian, who is a Transport Operator in Vilangudi area, Perambalur District and thereby violated Rule 8 of the Tamil Nadu Government Servants' Conduct Rules, 1973, which prohibits such engagement in any trade or business either directly or indirectly, except with the previous sanction of the Government. Under Annexure III, it is shown as evidence of Charge, a communication, dated 13.9.2005 of one Thiru. Elavazhagan, M.L.A. of Ariyalur Constituency, Perambalur District along with a copy of O.A. No. 159 of 2003 (wrongly mentioned as O.A. instead of O.S. No. 159 of 2003). Challenging the above charge memo, the writ petition has been preferred by the petitioner.
2. Mr. N.G.R. Prasad, learned Counsel for the petitioner contended that the petitioner joined service in the year 1970 and that in the year 1997, when he was transferred from his place of posting, viz., Poyyur Village to Kalavai Village, he approached the Tamil Nadu Administrative Tribunal by filing O.A. No. 9263 of 1997 and as a result, the petitioner was immediately again transferred to Polur, which resulted in the filing of another application in O.A. No. 9970 of 1997 by the petitioner, wherein he was granted an order of stay. While the stay was in force, on 10.5.1998, the petitioner was retransferred to Sivakasi and the same was challenged by filing O.A. No. 4515 of 1998. While so, the petitioner was issued with a Charge memo under Section 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules-cum-transfer order, dated 12.12.1997, which was questioned by the petitioner by filing O.A. No. 6361 of 1998. Apart from the above, the petitioner also filed an application in O.A. No. 3541 of 2000 claiming promotion as Senior Civil Surgeon. The Tribunal, by a common order, dated 12.10.2000, allowed all the applications and set aside the impugned orders of transfer therein and also directed the respondents to promote the petitioner. Thereafter, the petitioner was stated to have been promoted as Senior Civil Surgeon and posted at Government Primary Health Centre, Kadugur Village, Perambalur District, by order dated, 8.5.2002. Once again, the petitioner was said to have been transferred to Virudhunagar, by order dated 20.11.2002 which was also challenged by the petitioner in O.A. No. 154 of 2003.
3. After referring to the above proceedings and the order of the Tribunal, dated 21.3.2003, passed in O.A. No. 154 of 2003 the learned Counsel contended that as the filing of the above applications irked the respondents as well as Mr. Elavazhagan, M.L.A. of Ariyalur constituency, the present charge memo came to be issued at the instance of the M.L.A.
4. The learned Counsel also advanced his arguments over the dispute between the petitioner and the said M.L.A. It is stated that on 16.11.2002, a polio campaign was arranged by the petitioner in Ariyalur and the said M.L.A. asked the petitioner to conduct the Polio campaign again on 17.11.2002 also, to which the petitioner was not inclined for the reason that even on 16.11.2002 itself , the campaign covered the entire area with mass participation and that apart, the required medicine was not enough for continuing the campaign on 17.11.2002.
5. It is stated that the M.L.A., who wanted to gain popularity by holding the polio campaign on 17.11.2002 pressurised the petitioner through the Health Minister. By pointing out the scathing remarks made by the State Administrative Tribunal in its order, dated 21.3.2003 as against the M.L.A. as well as the Minister, the learned Counsel contended that the present move of the M.L.A. by forwarding his complaint based on some insignificant statement made by the petitioner in the course of his cross examination as a witness in O.S. No. 159 of 2003, was solely with a view to victimise the petitioner at the fag end of his career and therefore, interference is called for in this writ petition.
6. The learned Counsel relied upon the decisions (S. Partap Singh v. State of Punjab), (Sita Ram Bhau Patil v. Ramachandra Nago Patil (dead) by LRs. and Anr.) AIR 1980 Madras 212 (M. Manoharan Chetti and Ors. v. C. Coomaraswamy Naidu and Sons, Madras) and an unreported judgment, dated 2.6.1988 in W.P. Nos. 10999, 11000, 11279 & 11280 of 1998, in support of his arguments.
7. As against the above submission, Mr. Lita Srinivasan, learned Government Advocate appearing for the respondents contended that the allegation in the charge memo, namely, the involvement of the petitioner in a transport business with one Chellapandian, has been admitted by the petitioner in court proceedings, and even in the affidavit filed in support of the writ petition, nowhere the petitioner denied the said allegation and in the circumstances, merely because the said fact was brought to the notice of the respondents, by the M.L.A. with whom the petitioner had some tussle earlier, at this stage, that cannot be a ground for interfering with the charge memo.
8. The learned Government Advocate further contended that the petitioner was issued with a copy of the deposition which contained the cross examination of the petitioner in O.S. No. 159 of 2003 on the file of the Sub Court, Ariyalur and that if the said allegation contained in the impugned charge memo is proved that will certainly amount to violation of Rule 8 of the Tamil Nadu Government Servants' Conduct Rules which called for necessary punishment and therefore, the petitioner will have to face an enquiry and vindicate his stand only in the enquiry. The learned Government Advocate relied upon the decision reported in 1994 (I) L.L.J 808 (Union of India v. Upendra Singh) in support of her submissions.
9. Having heard the learned Counsel for the respective parties, at the outset, it will have to be held that though, normally, this Court will not interfere at the stage of the issuance of the charge memo, it is not an invariable rule that in no case this Court should keep off its hands.
10. As rightly contended by Mr. N.G.R. Prasad, learned Counsel for the petitioner by referring to the decision of the Hon'ble Supreme Court (S. Partap Singh v. State of Punjab) if the dominant purpose of the issuance of the charge memo has a hidden agenda to victimise a Government servant at the instance of certain disgruntled elements, certainly, this Court will and can always extend its untrammelled power of this Court to set right any injustice that is likely to be caused. But in Partap Singh's case, the Hon'ble Supreme Court dealt with a case, where a Government doctor was issued with a charge memo on the ground that he refused to examine a woman patient who had come to the hospital with an out-door chit and that the husband of the woman was forced to pay Rs. 16 for her examination at his residence. The Hon'ble Supreme Court has noted in paragraph 11 that the allegations against the concerned doctor, which broadly disclosed that prior to the issuance of the charge memo, the doctor was in the good books of the then Chief Minister of Punjab and his family members, namely, wife, son and other relatives, who were all availing the services of the doctor in the form of treatment, supply of medicines as well as certain other service unconnected to the field of medicine.
11. While so, when the Chief Minister himself was interested in a criminal case for which, he needed a favourable statement of the doctor, to which also, the doctor was stated to have given some assurance, but the ultimate verdict in the criminal case was not in favour of the Chief Minister which created a rift between the Chief Minister and the doctor, coupled with certain other actions of the doctor, vis-a-vis, the kith and kin of the Chief Minister created a hostile atmosphere between the Chief Minister and the Doctor in which background, the charge sheet was stated to have been, ultimately, issued to the doctor. The Hon'ble Supreme Court, therefore, concluded that the very issuance of the charge sheet in the said background to the doctor must have been only at the instance of the Chief Minister and therefore, it took the view that the dominant purpose in the issuance of the charge sheet was not in cleansing the administration but with a view to victimise the doctor for his failure to fulfil the wishes of the Chief Minister and that the charge sheet issued was, therefore, vitiated.
12. Mr. N.G.R. Prasad, however, contended that even in the case on hand considering the role played by the M.L.A. Mr. Elavazhagan with whom the petitioner had to face a confrontation while he was working at Ariyalur, which had a long standing grudge against the petitioner and therefore, the dominant purpose in the issuance of the impugned charge memo was not bona fide but was only to victimise the petitioner at the fag-end of his career. 13. When the above stand of the petitioner is examined, I find that in the deposition of the petitioner in O.S. No. 159 of 2003 on the file of the Sub Court, Ariyalur, the petitioner has deposed as under:
The said admission, as regards the involvement of the petitioner in a transport business with the said Chellapandian, is unequivocal. It is not the case of the petitioner that he involved himself in the said transport business, after getting the necessary permission of the respondents as prescribed under Rule 8 of the Conduct Rules. It is also not the case of the petitioner that such involvement of the petitioner cannot be considered as one not covered by Rule 8 of the Conduct Rules.
14. The specific grievance of the petitioner as against the M.L.A. was that when the petitioner arranged for the polio campaign on 16.11.2002, the M.L.A. wanted to take advantage of the programme to gain popularity and political stability by calling upon the petitioner to continue the polio campaign for the next day, viz., on 17.11.2002 and when the petitioner rejected his demand on certain valid reasons, the M.L.A. insisted for holding the programme on the next day also applied pressure through the Health Minister for holding the same. As against the circumstances referred to by the Hon'ble Supreme Court in the judgment reported in 1964 AIR SC 72, the case on hand (viz.) that the M.L.A. wanted the polio campaign to be extended for one more day, cannot be said to be for his personal gains. The M.L.A., representing the voters of his constituency, naturally was interested in getting his reputation enhanced by involving himself in as many welfare and health programmes for the public in his constituency. It may be that when the demand of the M.L.A. for conducting the polio campaign on the next day was not agreed to the petitioner, the M.L.A. might have applied pressure on the petitioner through the Health Minister. Even assuming that on that score, the M.L.A., wanted to wreak vengeance against the petitioner, when the impugned charge memo is perused, it cannot be held that the allegations referred to in the impugned charge memo should not be allowed to be probed into any further and to be directed to be closed even without calling for any explanation from the petitioner.
15. The learned Counsel for the petitioner by referring to the guidelines issued by the Government in respect of Rule 17(b) of the Tamil Nadu Government Servants (Disciplinary & Appeals) Rules, contended that the State Government itself has issued guidelines, wherein, it is stated that unless a major punishment of dismissal or removal from service or compulsory retirement or reduction to a lower rank in the seniority list or to a lower post or time scale, framing of charges under Rule 17(b) and should be avoided and therefore, before the issuance of the charge memo, the petitioner should have been asked for an explanation or the respondents should have called for a report from their vigilance department to find out the truth of the allegations and should not have straight away resorted to the issuance of the charge memo to the petitioner.
16. In the first place, the guidelines nowhere states that any prescribed procedure should be followed before the issuance of the charge memo under Rule 17(b). Secondly, guidelines only states that unless the imposition of major punishment is called for, the issuance of charge memo under Rule 17(b) should be avoided. Thirdly, Rule 17(b) does not also contemplate any preliminary enquiry as a matter of routine for the issuance of the charge memo. Therefore, the said contention of the learned Counsel for the petitioner is too wide a proposition to be accepted in the absence of any specific statutory rule or regulation providing for such a procedure to be followed.
17. In the charge memo issued to the petitioner, the petitioner has been called upon to submit his written statement and also his desire for holding an oral enquiry. Therefore, there is time enough for the petitioner to put forth his submissions as regards the correctness or otherwise of the allegations levelled against him in the impugned charge memo, dated 23.1.2006. If the allegations are serious in nature questioning his conduct, which the petitioner was supposed to maintain as a public servant which should be impeccable throughout, the petitioner cannot be heard, to say, that since the said allegations came to be brought to the notice of the respondents at the instance of the M.L.A. with whom the petitioner had a tussle earlier in the course of discharge of his official duties, the charge sheet should be set aside.
18. As far as the contention of the petitioner that he is going to retire on 31.1.2008 on superannuation and that at the fag-end of his career, he should not be harassed, it is relevant to note that the charge memo was issued as early as on 23.1.2006 viz., nearly two years before the date of his retirement. The petitioner could have very well brought to the notice of the respondents as to the correctness or otherwise of mala fide of the allegations levelled against him and got rid of the same unscathed. It is the petitioner, who got the impugned charge memo stayed by this Court till this date, and therefore, on this score also there is no scope for countenancing the claim of the petitioner.
19. The contention of the petitioner as regards the principles to be applied in regard to an admission which form the basis for the framing of the charges by relying upon the decisions (Sita Ram Bhau Patil v. Ramachandra Nago Patil (dead) by LRs. and Anr.), AIR 1980 Madras 212 (M. Manoharan Chetti and Ors. v. C. Coomaraswamy Naidu and Sons, Madras) those are all aspects which have to be examined in the inquiry or in the event of any adverse orders being passed against the petitioner and while working out any remedy as against any such order, if so advised by the petitioner. It is highly premature at this stage to express any opinion as regards the so-called admission that will not also be in the interest of the petitioner, who has to submit his explanation and face further proceedings.
20. As far as the unreported decision relied upon by the learned Counsel for the petitioner is concerned, in the light of my conclusions in the facts and circumstances of this case, the allegation of victimisation or mala fide motive are not satisfactorily established. The said judgment has therefore, no application to the case of the petitioner. On the other hand, the decision relied upon by the learned Government Advocate reported in 1994 (I) L.L.J 808 (Union of India v. Upendra Singh fully supports her stand. The Hon'ble Supreme Court has made it clear that while exercising the jurisdiction under Article 226 of the Constitution in matters of this kind, where the issuance of writs like certiorari, prohibition etc., for interfering with any charge memo, such interference can be made only if no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law.
21. The Supreme Court also made it clear that the Court has no jurisdiction to go into the correctness or the truth of the charges by taking over the functions of the disciplinary authority. In paragraphs 6 and 7 of the said judgment, the Hon'ble Supreme Court has set out the legal position, which reads as under:
6. In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. The Tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the Court/Tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal and Ors. v. Gopi Nath & Sons and Ors. 1992 Supp. (2) SCC 312. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahamadi, J., affirmed the principle thus:
Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the matter in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself.
Now, if a Court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is un-understandable how can that be done by the Tribunal at the stage of framing of charges? In this case, the Tribunal has held that the charges are not sustainable ( the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of the imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate.
22. Having regard to the above settled legal position, I do not find any merits in the case of the petitioner in seeking to challenge the impugned charge memo. Since the petitioner is going to retire on 31.1.2008 on superannuation, at best the respondents can only be directed to conclude the disciplinary proceedings as expeditiously as possible, preferably within two months from the date the petitioner submits his explanation to the impugned charge memo. It is also made clear that the disciplinary authority shall conduct the disciplinary proceedings and decide the issue on its own merits uninfluenced by whatever stated by me in this order. The Writ Petition is, therefore, dismissed. No order as to costs. Connected W.P.M.P. is also dismissed.