IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.02.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.40863 of 2006 (T) (O.A.No.8817 of 2000) Dr.G.M.Venkatakumar .. Petitioner Vs. 1. The Director of Public Health & Preventive Medicine Chennai 6 2. The Secretary to Government of Tamilnadu Health & Family Welfare Secretariat Chennai-9. .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records on the file of the 1st respondent in connection order of punishment passed by him in his Proc.R.No.55544/DA/88/S1 dated 28.3.90 and R.No.55544-4/DA/88/S1 dated 30.5.99 and quash the same and direct the respondents to give him all the service benefits withheld because of the punishment. For Petitioner :: Mr.R.Singaravelan For Respondents :: Mr.R.Murali, G.A. O R D E R The petitioner was a Deputy Director of Health Services at Erode. He filed O.A.No.8817 of 2000 before the Tamil Nadu Administrative Tribunal challenging the charge memo dated 28.3.90 as well as the penalty order dated 30.5.99 passed by the 1st respondent. 2. The Tribunal ordered Notice of Motion on 1.12.2000. On notice from the Tribunal, the respondents have filed a reply affidavit dated 28.5.2002. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.40863 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 3. Even at the time of filing of the Original Application, the petitioner was 52 years old and in the normal circumstances, he would have reached the age of superannuation and got retired from service in the year 2006 itself. 4. By the impugned order challenged in the Writ Petition, the petitioner was imposed with the penalty of stoppage of increment for a period of one year without cumulative effect. Though the petitioner filed an appeal dated 3.5.2000 to the State Government, he did not wait for the outcome of the appeal and so as to move the Tribunal. In the present case, the petitioner while he was working as a District Health Officer at Erode was given a charge memo under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules dated 28.8.1988. He submitted his explanation on 24.11.1988. Instead of taking further action on his explanation, curiously the 1st respondent framed a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, which was subsequently renamed as Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charges relate to various commissions and omissions when he was holding the post of District Health Officer. The charge memo in respect of each charge was referred to in the evidence in the form of office files available and the petitioner was asked to give explanation. The petitioner sought for perusal of those files and the same was also given to him, which was communicated by a covering letter dated 3.3.1998. The petitioner took further time stating that the incident had taken place more than ten years before and finally he submitted his explanation dated 30.4.1998. After giving the possible explanation about the various commissions and ommissions, the petitioner in the explanation finally requested the 1st respondent to accept his explanation and to drop the charges. The 1st respondent on the basis of the explanation passed the final order dated 30.5.1999, holding the petitioner guilty of the charges. Before passing the order though it is a charge memo under Rule 17(b), no worthwhile enquiry was conducted by the 1st respondent. The 1st respondent proceeded on the assumption that the petitioner has accepted the charges. This can be seen from the final order passed by the 1st respondent, which is impugned in the Writ Petition. 5. The following statement found in the impugned order dated 30.5.1999 may be usefully extracted below: "The charge on the part of Dr.G.M.Venkatakumar his explanation to the charge memo issued to him and his further defence statement has been carefully examined with reference to the materials available in the connected records. The statements of Dr.G.M.Venkatakumar in his explanation 9th https://hcservices.ecourts.gov.in/hcservices/ cited that he had acted upon the pressures given by the people representative, he was a victim of compulsion and circumstances he was forced to take speedy action, he could devote only a very little time to see the files and the irregularities were totally negligle are not acceptable. Further his statement in his letter dated 28.7.98 that due to heavy work load and multivarious programme work he was not able to pay proper and and personal attention in this regard and he had not done the irregularities wantonly clearly shows that he accepts the lapses on his part. Under the circumstances the Director of Public Health and Preventive Medicine has decided to impose the penalty of stoppage of increment for a period of one year without cumulative effect on Dr.G.M.Venkatakumar for the lapses on his part as District Health Officer, Erode. Accordingly, the Director of Public Health and Preventive Medicine, Chennai do hereby impose the penalty of stoppage of increment for a period of one year without cumulative effect on Dr.G.M.Venkatakumar Deputy Director of Health Services, Erode." 6. The contention raised by the petitioner was that there was no scope for converting the charge memo framed under Rule 17(a) into one under Rule 17(b), especially after his explanation was obtained. Alternatively, it was contended that an enquiry in terms of charge memo under Rule 17(b) requires a proper enquiry and the same was not done in the present case. Further, it was also stated that there was inordinate delay in framing the charges. 7. Opposing the stand of the petitioner, in the reply affidavit, it was stated that his original explanation for the earlier charge memo under Rule 17(a) was not satisfactory and therefore charge memo under Rule 17(b) came to be issued. This stand can hardly be accepted by this Court. With reference to not conducting enquiry in paragraph No.6, it was averred as follows: "It is submitted that many irregularities and violation of rules have been pointed out in the inspection report. All the charges framed against the applicant are serious and grave in nature. A the head of office and appointing authority he is duty bound not only to scrutinise the file but also to apply his mind while taking decision in the matter of appointment, transfer and posting pay fixation, Disciplinary Action, D&O trade etc., and therefore he is directly responsible for all the violation of rules and https://hcservices.ecourts.gov.in/hcservices/ irregularities. Nowhere in his statement of defence he had denied the charges or disowned his responsibility." 8. This Court is not inclined to accept the stand taken by the respondents for not conducting enquiry, commensurate with the principles of natural justice and also the obligation imposed under Article 311(2) of the Constitution of India. Though in the present case, the final penalty was only an stoppage of increment for one year, but yet since charge memo was framed under Rule 17(b), it can lead to imposition of major penalty and therefore the authorities should have conducted a proper enquiry commensurate with the principles of natural justice and should have furnished reasonable opportunity. Mere allowing perusal of the file concerned will not satisfy the requirement of the Rule and they ought to have examined a responsible officer to fix the responsibility on the petitioner by referring to appropriate file, evidence and the decision taken and the records should have been marked in the formal manner in the enquiry. 9. In this context, it is necessary to refer to the judgment of the Supreme Court in Rajasthan State Transport Corporation and another vs. BAL MUKUND BAIRWA reported in (2009) 4 SCC 299. The Supreme Court in that case held that if an employee is charged with grave misconduct, he is entitled to have a fair hearing according to principles of natural justice and as per the provision of the relevant statutory Rules. 10. The Supreme Court while considering the case of a Government Servant having protection under Article 311(2) of the Constitution vide its judgment in Kamal Nayan Mishra vs. State of Madhya Pradesh and others reported in (2010) 2 SCC 169 has held that confirmed Government servant cannot be dismissed without following the principles of natural justice and the Rules requiring conduct of enquiry. 11. In the present case, the final penalty resulted in increment cut. That will not console because the question of penalty will come at the end of the enquiry. The respondents having started an enquiry under Rule 17(a) and thereafter on coming to know about the seriousness of the charges had converted the charge memo into one under Rule 17(b) ought to have followed the entire procedure because at the relevant point of time, the disciplinary authority would not be aware what was the punishment to be imposed, since the imposition of penalty depends upon the nature of proved charge and the conduct of the Government servant in that regard. https://hcservices.ecourts.gov.in/hcservices/ 12. In the circumstances, this Court has no hesitation to set aside the final order of penalty, namely the order dated 30.5.1999. Once the penalty is set aside on the ground of unfairness in the enquiry, then in the normal course is to conduct a fresh enquiry. But in the present case, even after the so called proved charges being made out, since the respondents themselves have imposed the penalty of one increment cut, it is unnecessary to remand the matter further as the petitioner has already retired from service. But the petitioner's prayer that the original charge memo framed under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules should be set aside also cannot be accepted. In the light of the facts and circumstances of the case, this Court is not remanding the matter for any fresh enquiry. 13. Hence, the Writ Petition stands allowed and the impugned order of penalty dated 30.5.1999 stands set aside without any further remand. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Director of Public Health & Preventive Medicine Chennai 6 2. The Secretary to Government of Tamilnadu Health & Family Welfare Secretariat Chennai-9. 1 cc To M/S.R.Singgaravelan, Advocate, SR.8225 1 cc To The Government Pleader, SR.8480 W.P.No.40863 of 2006 RS (CO) RH (17.2.11) https://hcservices.ecourts.gov.in/hcservices/