1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.07.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD).No.7265 of 2011 and M.P.(MD)No.1 of 2011 J.Amalrani, Staff Nurse (Selection Grade), Government Hospital, Karaikudi, Sivagangai District. : Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Principal Secretary, Health and Family Welfare (K2) Department, Fort.St.George, Chennai 9. 2.The Director of Medical and Rural Health Services, Chennai 6. 3.Joint Director of Health Services/ Enquiry Officer, Nagapattinam. 4.The Chief Civil Surgeon, Medical Officer, Government Hospital, Karaikudi, Sivagangai District. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari, calling for the records pertaining to the impugned G.O.(Pa).No.325, dated 28.03.2011 issued by the first respondent and quash the same. For Petitioner : Mr.R.Subramanian For Respondents : Mr.T.S.Mohammed Mohideen Additional Government Pleader O R D E R Mr.T.S.Mohammed Mohideen, learned Additional Government Pleader, takes notice on behalf of the respondents. By consent, the Writ Petition is taken up for final disposal at the stage of admission itself. 2. Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 3. The present Writ Petition is laid challenging the impugned Government Order in G.O.(Pa).No.325, dated 28.03.2011 of the first respondent, https://hcservices.ecourts.gov.in/hcservices/ 2 4. The case of the petitioner is that she has been served with a charge memo making certain allegations. She has replied for the same and after enquiry, the impugned order of punishment, viz., stoppage of increment for one year with cumulative effect was passed. Challenging the same, the petitioner has come up with the present Writ Petition. 5. It is represented by the learned counsel appearing for the petitioner that while imposing the punishment, the first respondent has not assigned any reason whatsoever. The first respondent mainly relied on the charges, the explanation offered by the petitioner, the report of the Enquiry Officer and the further explanation. Thus, according to the learned counsel appearing for the petitioner, the first respondent, while inflicting the punishment on the petitioner, has not considered any of the explanations offered by the petitioner and has not assigned any reason whatsoever to impose such punishment and hence, the impugned order is liable to be set aside. 6. However, the learned Additional Government Pleader appearing for the respondents contended that the first respondent has considered the charges, explanation, the enquiry report and the further explanation offered by the petitioner and thereafter only, has inflicted the punishment and hence, the order of the first respondent does not require any interference by this Court. 7. I have considered the submission made by the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 8. As rightly contended by the learned counsel appearing for the petitioner, no reason whatsoever has been assigned by the first respondent for inflicting such punishment on the petitioner. It would be useful to extract paragraph No.3 of the impugned order made thereunder, which is extracted hereunder: "3. jpUkjp. b$.mky;uhzp kPJ Rkj;jg;gl;l Fw;wr;rhl;Lfs;. mtuJ jd;dpiy tpsf;fk;. tprhuiz mYtyhpd; fz;lwpjy;fs; kw;Wk; Fw;wk;rhl;lg;gl;l mYtyhpd; nky; tpsf;fk; Mfpatw;iw muR chpa Mtz';fSld; ftdkhft[k;. jd;dpr;irahft[k; Ma;t[ bra;jJ. Ma;t [f;Fg;gpd; Fw;wk;rhl;lg;gl;l mYtyhpd; nky; tpsf;fj;jpid Vw;W mth;k PJ Rkj;jg;gl;l Fw;wr;rhl;Lfspy;. Fw;wr;rhl;L 1 epUgzkhftpy;iy vdt[k; Fw;wr;rhl;Lf;fs; 2 kw;Wk; 3 epUgzkhfpwJ vdt[k; muR KobtLj;J. epUgzkhd Fw;wr;rhl;Lfs; 2 kw;Wk; 3?f;F jz;lidahf md;dhuJ Cjpa cah;tpid xU tUl fhyj;jpw;F jpuz;l gaDld; epWj;jk; bra;ayhk; vdt[k; Kot[ bra;J mt;thnw muR MizapLfpwJ." 9. Thus, as rightly contended by the learned counsel appearing for the petitioner, the first respondent has merely stated that he has gone through the charges, explanation offered by the petitioner, the enquiry report of the Enquiry Officer and the further explanation offered by the petitioner and came to the conclusion that the petitioner shall be inflicted the punishment of stoppage of increment for one year with cumulative effect. https://hcservices.ecourts.gov.in/hcservices/ 3 10. The matter in issue has been considered by the Principal Bench in K.KANDASAMY Vs. DEPUTY INSPECTOR GENERAL OF POLICE, TIRUCHIRAPALLI RANGE, TIRUCHIRAPALLI AND ANOTHER reported in (2006) 4 MLJ – 1382 and paragraph Nos.7,8 and 9 of the order made thereunder are usefully extracted hereunder: "7. It is seen from the aforesaid portion of the impugned order that the Appellate Authority did not deal with any of the grounds of appeal raised by the petitioner. A departmental appeal is a continuation of the original proceedings. It is needless to point out that the last opportunity available for a delinquent, to canvass his case on merits, is at the appellate stage. After the appeal, a delinquent loses his right to challenge any disciplinary proceedings on merits, since the scope of interference on a revision or on a writ petition is very limited. Therefore, the rules themselves contemplate appellate authorities to go into the factual details and consider all the grounds of appeal before deciding an appeal. Unfortunately, the first respondent has chosen to dismiss the appeal by a non-speaking order and hence the appellate authorities order is liable to be set aside. 8. A similar question came up for consideration before this Court in Arokiadoss v. The Deputy Commissioner of Police, Law and Order (South), Madras-8 and Anr. 1989 W.L.R. 274. In the said case also, an identical order similar to the one involved in the present case was passed by the Appellate Authority. Therefore, after considering the scope of the powers conferred upon the Appellate Authority, this Court held as follows in paragraph-3: Rule 6(1) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1955 reads as follows: In the case of an appeal against an order imposing any penalty specified in Rule 2, the appellate authority shall consider-- (a) Whether the facts on which the order was based have been established; (b) Whether the facts established afford sufficient ground for taking action, and (c) Whether the penalty is excessive, adequate or inadequate, and after such consideration shall pass orders as it thanks proper. https://hcservices.ecourts.gov.in/hcservices/ 4 The rule enjoins the concerned authority to consider the three aspects set out therein specifically. Unless the appellate authority considers them it cannot be said that it has carried out its duties properly. The Supreme Court had occasion to discuss a similar question under Rule 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Dealing with the word 'consider' used in the said rule, the Supreme Court observed that the word 'consider' implies due application of mind-vide R.P. Bhatt v. Union of India MANU/SC/0193/1982. The following paragraph in the above judgment of the Supreme Court can be usefully referred to with advantage-- The word 'consider' in Rule 27(2) implies 'due application of mind'. It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) Whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) Whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc, the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the appellate authority to consider the relevant factors set forth in Clauses (a), (b) and (c)thereof. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were unwarranted by the evidence on record. It seems that he only applied his mind to the requirement of Clause (2) of Rule 27(2) viz., whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside. 9. Thus it is clear that the appellate authority's order is in violation of the rules relating to disposal of appeals and consequently, it is liable to be set aside. Therefore, the writ petition is allowed. The order passed by the first respondent dated 29.9.1995 is set aside and the matter remitted back to the first respondent for a fresh disposal on merits in accordance https://hcservices.ecourts.gov.in/hcservices/ 5 with law and the said exercise shall be completed by the first respondent within a period of four months from the date of receipt or production of a copy of this order. No costs." 11. In view of the above stated position and in view of the judgment referred to above, I am of the considered view that the impugned order of the first respondent dated 28.03.2011 is liable to be set aside and accordingly, set aside and the Writ Petition, therefore, stands allowed. It is needless to say that the first respondent is at liberty to pass orders afresh, after following due process of law, by giving reasons thereof. Consequently, the connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar (AS) /True copy/ Sub Assistant RegistrarTo 1.The Principal Secretary, Health and Family Welfare (K2) Department, Fort.St.George, Chennai 9. 2.The Director of Medical and Rural Health Services, Chennai 6. 3.Joint Director of Health Services/ Enquiry Officer, Nagapattinam. 4.The Chief Civil Surgeon, Medical Officer, Government Hospital, Karaikudi, Sivagangai District. +1cc to The Special Government Pleader, SR.No.21495 SML GH : 26.07.2011 : 5p/6c ORDER MADE IN W.P.(MD).No.7265 of 2011 Dated:- 01.07.2011 https://hcservices.ecourts.gov.in/hcservices/