IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.11.2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.7567 of 2007 Dr.K.Dhanalakshmi ... Petitioner Versus 1.Government of Tamil Nadu Represented by its Secretary to Government Health and Family Welfare Department Fort St. George Chennai – 600 029 2.The Tamil Nadu Public Service Commission Represented by its Secretary Chennai – 600 002 3.The Director of Public Health and Preventive Medicine Chennai – 600 006 ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.4567 of 2002 from the file of Tamil Nadu Administrative Tribunal praying to call for the records of the first respondent relating to G.O.(D) No.433, Health and Family Welfare Department, dated 27.03.2002, quash the same and issue consequential directions to respondents 1 and 3 to reinstate the petitioner in service with all consequential benefits. For Petitioner : Mr.M.Ravi For R1 and R3 : Mr.V.Subbiah Special Government Pleader For R2 : Mr.M.Devendran https://hcservices.ecourts.gov.in/hcservices/ O R D E R The Original Application in O.A.No.4567 of 2002 before the Tamil Nadu Administrative Tribunal (hereinafter referred to as the "Tribunal") is the present Writ Petition. 2. The petitioner was recruited as Assistant Surgeon in the Tamil Nadu Medical Service on 02.04.1981 through the Tamil Nadu Public Service Commission. She was appointed as Assistant Surgeon at Government Primary Health Centre, Ariyarpalayam, Salem District and also awarded Selection Grade. The petitioner was posted at Karumandurai, which is a Hill area in Salem District, during 1989. While she was working as Medical Officer in Mobile Medical Unit, Karumandurai, she went on Medical Leave from 01.09.1994 to 27.11.1994 and the leave was subsequently extended periodically. A charge memo dated 21.02.1997 was issued by the third respondent under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules (hereinafter referred to as "the Rules"). The following two charges were framed:- " CHARGE – I That the said Dr.Dhanalakshmi while functioning as Medical Officer at the erstwhile Mobile Medical Unit, Karumanthurai has been on long leave from 01.09.1994 and unauthorised absence from 24.04.1996 to till date dislocating the normal functioning of the Mobile Medical Unit. CHARGE – II That during the aforesaid period and while functioning in the aforesaid Office, the said Dr.Dhanalakshmi has disobeyed the instructions of Superiors by her failure to rejoin duty on 28.12.1994 as per the recommendation of the Medical Board." 3. The crux of the allegation is that the petitioner remained unauthorisedly absent from 24.04.1996. 4. The petitioner submitted her explanation dated 20.05.1997, denying the charges stating that she underwent a major surgery viz., Total Abdominal Hysterectomy g Salphingo Oophorectomy g Appendisectomy on 16.02.1996. In those circumstances, she was not able to submit her Leave Application. It was further stated that she was taking treatment for illness. The petitioner also stated that the health condition did not suit to the climatic condition of karumandurai Hill station and she applied for transfer to the plain areas and enclosed her application dated 02.12.1994 in this regard. Due to her poor health condition, she requested to drop the charges and to post in any one of the following Primary Health Centres:- https://hcservices.ecourts.gov.in/hcservices/ (i) Belur Primary Health Centre, Salem District (ii) Ariyapalayam Primary Health Centre, Attur Tk., Salem District (iii) Peddanaickenpalayam Primary Health Centre, Attur Tk., Salem District (iv) Ethapur Primary Health Centre, Attur Tk., Salem District. 5. The petitioner also enclosed the Medical records relating to the surgery underwent by her. However, an enquiry was conducted by the Deputy Director of Health Services, Salem-1. In the enquiry also, she pleaded that in view of the major surgery which she had underwent, she was not able to report for duty, particularly, in the Hill station and her request for transfer to plain areas is still pending with the authorities. The Enquiry Officer recorded the findings dated 02.03.1999 holding that the charges were proved. The third respondent sent a memo dated 23.03.1999 enclosing the report of the Enquiry Officer and directed the petitioner to submit her representation thereon. The petitioner submitted her further representation dated 16.04.1999, reiterating that she was not able to attend duties due to her serious illness and the surgery which she underwent. Her representation is based on her explanation/defence statement dated 20.05.1997. 6. The first respondent ultimately passed the impugned G.O.(D). No.433, Health and Family Welfare Department, dated 27.03.2002, removing the petitioner from service based on the findings of the Enquiry Officer. The petitioner filed O.A.No.4567 of 2002 before the Tamil Nadu Administrative Tribunal, to quash the aforesaid Government Order and issue consequential directions to respondents 1 and 3 to reinstate her in service with all consequential benefits. 7. The respondents have not chosen to file any counter affidavit. 8. Heard both sides. 9. The petitioner was recruited as Assistant Surgeon in the Tamil Nadu Medical Service on 02.04.1981 through the Tamil Nadu Public Service Commission and she was appointed as such in the Government Primary Health Centre, Ariyarpalayam, Salem District. The petitioner was transferred as Medical Officer in the Mobile Medical Unit, Karumandurai, Salem District, on 07.04.1989, in which, she worked for five years. The said place is a Hill station. In the year 1994, the petitioner applied for Medical Leave from 01.09.1994 to 27.11.1994 and the same was also sanctioned and further leave was also sanctioned up to 23.04.1996, however, the leave was not sanctioned from 23.04.1996. 10. In the meantime, the petitioner underwent a major surgery viz., Total Abdominal Hysterectomy g Salphingo Oophorectomy g https://hcservices.ecourts.gov.in/hcservices/ Appendisectomy on 16.02.1996 and she made a request that her health condition did not permit her to continue to work in the Hill station. According to her, she went on Medical Leave and she gave a representation dated 02.12.1994, seeking transfer to any plain area, citing medical reasons. Thereafter, she also underwent medical surgery. 11. However, the third respondent proceeded departmentally and issued a charge memo dated 21.02.1997 under Rule 17(b) of the Rules, alleging that the petitioner was unauthorisedly absent for duty from 24.04.1996. An enquiry was conducted by the Deputy Director of Health Services, Salem-1. The petitioner gave a defence statement on 20.05.1997. The brief statement of defence as noted in the findings of the Enquiry Officer is extracted as hereunder:- " Dr.K.Dhanalakshmi has stated in her defence statement that due to prolonged Medical Treatment she has applied Medical Leave from 01.09.1994. The Medical Leave applied by her on 22.02.1996 was returned even though she has stated that she will submit the Medical Certificate while rejoining duty. Due to ill health, she could not submit leave application. Due to ill health, she could not continue in Hill Station and stayed away from duty." 12. However, the Enquiry Officer submitted a report dated 02.03.1999 holding that the charges were proved. The petitioner was asked to give further representation on the said findings. The petitioner gave a representation dated 16.04.1999, reiterating the statement that was made on 20.05.1997. However, the impugned order was passed removing the petitioner from service. 13. The petitioner has pleaded categorically in Ground 6 as follows:- " 6. The respondents failed to see that as per medical advice, the Applicant had been under disability to serve in hilly areas and in mobile units and that she had been making representations to post her in plains but her request was not considered till 21.06.1999." 14. Furthermore, the petitioner has stated in her explanation dated 20.05.1997 to the charge memo that pursuant to the medical advice, she applied for Medical Leave as she could not serve in Hill station. In these circumstances, the petitioner sought for transfer, in her application dated 02.12.1994 to post her in any one of the plain areas. The said application dated 02.12.1994 was also enclosed along with the explanation given by the petitioner. Furthermore, the petitioner also stated that she underwent the major surgery on 16.02.1996 and she also enclosed the medical records in support of the same. The petitioner requested to post her at any one of the plain areas mentioned in her explanation. The petitioner stated that she worked in the Hill areas at Karumandurai for 8 years. https://hcservices.ecourts.gov.in/hcservices/ 15. In the enquiry also, the petitioner pleaded the aforesaid facts. The brief statement of defence noted by the Enquiry Officer reveals the above said facts. In the enquiry also, the petitioner produced the Patient Record and the same is noted by the Enquiry Officer. However, the Enquiry Officer found that the charges were proved. 16. The findings of the Enquiry Officer are extracted as hereunder:- " 1. Dr.K.Dhanalakshmi while working as Medical Officer, MMU, Karumandurai has proceeded on Medical Leave from 01.09.1994 to 23.04.1996 without enclosing Medical Certificate. Being a responsible Medical Officer and Head of Institution, she should have sought permission from her immediate superior (i.e. Deputy Director of Health Services, Salem) or made alternate arrangement for the smooth running of Primary Health Centre. But, simply by applying leave continuously without prior permission or making alternate arrangements left the Primary Health Centre dislocated. Hence, the charge-I is proved beyond any doubt. 2. The leave applied by the delinquent from 01.09.1994 to 27.12.1994 was referred to the Medical Board. Even though the Chairman of the Medical Board has recommended the leave from 01.09.1994 to 27.12.1994, she has failed to rejoin duty on 28.12.1994 instead extended the leave for another 60 days without Medical Certificate. Even though the leave applied for 60 days from 28.12.1994 was rejected and instructed to rejoin duty in R.No.9723/94/E1/dated 06.03.1995 of the Deputy Director of Health Services, Salem, she had failed to rejoin duty thus disobeying the instruction of the superiors. Hence, the charge-II is proved beyond doubt." 17. While recording the findings, the Enquiry Officer failed to consider the statement of defence made by the petitioner and more particularly, her statement that she underwent the major surgery and therefore, she could not serve in the Hill station and that she served for 8 years in the Hill station. The findings of the Enquiry Officer are perverse, as the statement of defence made by the petitioner was not taken into account. The findings of the Enquiry Officer did not contain any reason except stating that the petitioner was unauthorisedly absent from 24.04.1996. It was also held that the petitioner failed to rejoin duty on 28.12.1994. The third respondent https://hcservices.ecourts.gov.in/hcservices/ simply accepted the findings of the Enquiry Officer without considering the explanation submitted by the petitioner for her absence, particularly, her health condition and the major surgery underwent by her. The petitioner was asked to submit her explanation on the findings in the memo dated 23.03.1999. The petitioner submitted her representation again on 16.04.1999, reiterating the above said facts. In these circumstances, the petitioner was given posting at the plain areas on 21.06.1999, and thereafter, she continued to serve in the plain area and while she was serving in the plain area, her services were terminated by the impugned Government Order in G.O.(D)No.433, Health and Family Welfare Department, dated 27.03.2002. The impugned Government Order also failed to take into account the health condition of the petitioner and more particularly, the major surgery underwent by her and also the fact that she served in the Hill station for 8 years and that she sought for transfer to the plain area on 02.12.1994. According to her, no order was passed on her request seeking transfer to plain area and her request was not considered till 21.06.1999 and the petitioner was not posted in the plain area up to June 1999. Hence, the impugned order dated 27.03.2002, removing the service of the petitioner on the allegation that she was unauthorisedly absent from 24.04.1996, is arbitrary and illegal. However, the petitioner is also at fault for not sending periodically the Medical Certificates. It is also relevant to note that the allegations made by the petitioner in the Original Application are not denied, as no counter affidavit is filed and Ground 6 is extracted above is not controverted. Taking into account the entirety of the circumstances, I am of the view that the petitioner's removal is liable to be interfered with. 18. The petitioner was aged 52 years when she was removed from service and now she has reached the age of superannuation. Hence, the petitioner could not be reinstated into service. The learned counsel for the petitioner has also placed reliance on the Judgment of the Supreme Court in the case of Government of Tamil Nadu and Another Vs. K.Rajaram Appasamy reported in (1997) 5 Supreme Court Cases 57, in which, the Apex Court set aside the back wages portion alone. More particularly, the relevant facts are that the petitioner served in the Hill station for 8 years and thereafter, she sought transfer to plain areas citing her health condition and that she also underwent the major surgery. I am of the view that while the removal order is liable to be set aside, the petitioner is not entitled to get any back wages. However, the period of non-employment till the date of retirement has to be treated as service for the purpose of notional fixation of pay and terminal benefits. The first respondent is directed to settle the terminal benefits within a period of twelve weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 19. With the above observations, the Writ Petition is disposed of. There shall be no order as to costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. smn To 1.The Secretary Government of Tamil Nadu Health and Family Welfare Department Fort St. George Chennai – 600 029 2.The Secretary The Tamil Nadu Public Service Commission Chennai – 600 002 3.The Director of Public Health and Preventive Medicine Chennai – 600 006 1 cc To Mr.M.Devendran, Advocate Sr 68633 1 cc To Mr.M.Ravi, Advocate Sr 67773 1 cc to The Govt. Pleader, SR 67935 W.P.No.7567 of 2007 vsn[co] gp/29.11. https://hcservices.ecourts.gov.in/hcservices/