IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17-3-2010 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.4453 of 2009 M.P.Nos.1 & 2 of 2009 Dr.K.Venkatraman ... Petitioner Vs 1. State of Tamil Nadu, rep. by its Secretary to Government, Health and Family Welfare Department, Fort St.George, Chennai – 9. 2. The Director, Public Health and Preventive Medicine, Chennai – 600 006. ... Respondents PRAYER : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ of Certiorari calling for the records relating to the impugned G.O.(D)No.146 dated 22.2.2008 passed by the first respondent as far as paragraphs 6 and 8 are concerned and the charge memo issued by the second respondent in R.No.68409/PHC-3/A3/2008, dated 6.9.2008 and quash the same. For petitioner : Mr.N.Vijay Narayan, Senior Counsel for Mr.A.R.Nixon For Respondents: Mrs.E.Ranganayaki Government Advocate O R D E R This writ petition is filed by the petitioner challenging the Government Order issued in G.O.(D)No.146, Health and Family Welfare Department, dated 22.2.2008, insofar as paragraphs 6 and 8 are concerned and the consequential charge memo issued by the second respondent in his proceedings dated 6.9.2008. https://hcservices.ecourts.gov.in/hcservices/ 2. The facts relating to the issuance of the impugned orders are that while the petitioner was working as Assistant Surgeon in the Primary Health Centre, Reddiarpatti, Tirunelveli District, in September, 1989, the petitioner issued a death certificate relating to one Leela Joice, certifying that the death had occurred due to heart attack. The petitioner was charge sheeted before the Additional Sessions Court, Tirunelveli, on the ground that the death certificate issued by the petitioner was a false one, as in fact, the father-in-law of the said Leela Joice murdered her. The charge sheet filed before the Criminal Court was under Section 201 IPC. Initially the petitioner was convicted and was sentenced to undergo rigorous imprisonment for two years and and a fine of Rs.2,000/- was also imposed in S.C.No.87A/91, by Judgment dated 25.11.1994. The petitioner filed criminal appeal against the said conviction and sentence in C.A.No.684 of 1994 before this Court and this Court acquitted the petitioner giving benefit of doubt by judgment dated 25.9.2001. 3. From the records it is evident that during pendency of the criminal appeal, relying upon the Judgment of the learned Additional Sessions Judge, Tirunelveli, the first respondent dismissed the petitioner from service by issuing G.O(D)No.720 dated 23.6.1997. The criminal appeal filed by the petitioner against the conviction and sentence was allowed by this Court by Judgment dated 25.9.2001, setting aside the conviction and sentence and also giving direction to refund the fine amount paid by the petitioner. On 7.11.2001, the petitioner requested the respondents to reinstate him in service in the erstwhile post and also demanded subsistence allowance payable to him. On 5.9.2003, a reminder was also sent. 4. It is the further case of the petitioner that the respondents addressed a letter to the Superintendent of Police (Commissioner of Police), Tirunelveli, through the Director of Public Health, Chennai, to ascertain whether there was any appeal preferred by the Government before the Supreme Court, against the judgment of this Court in the criminal appeal. It is averred in the affidavit that the second respondent also addressed a letter to the Public Prosecutor of this Court (High Court) seeking instructions as to whether any appeal was preferred, and if not, opinion was also sought regarding filing of appeal before the Supreme Court. Thereafter the Director of Public Health and Preventive Medicine obtained remarks from Law Department and P&AR Department. 5. On 15.8.2005, the petitioner submitted further representation and requested the respondents to reinstate him without any further delay. Since no action was taken regarding the petitioner's request for reinstatement, he filed W.P.No.11013 of 2006 https://hcservices.ecourts.gov.in/hcservices/ and challenged the dismissal order dated 23.6.1997 and prayed for reinstatement with all attendant benefits. In the said writ petition, a stand was taken by the respondents that though this Court acquitted the petitioner, he is guilty of dereliction of duty for issuing false death certificate regarding Leela Joice, without examining the body and therefore the Government decided to review the punishment of dismissal under Rule 37 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Thereafter a decision was taken to reinstate the petitioner in service, with liberty to initiate disciplinary action for dereliction of duty. The final order was passed by the Government through G.O.(D)No.146 Health and Family Department dated 22.2.2008. The said order was passed on the basis of the observation made by this Court in Criminal Appeal Nos.679 and 684 of 1994 dated 25.9.2001 i.e, ordering reinstatement pending disciplinary action contemplated under Rule 17(b) for dereliction of duty. 6. The second respondent on the basis of the above said order of the Government issued charge memo on 6.9.2008 and the said orders are challenged in this writ petition by contending that the impugned orders are passed with an intention to dismiss the petitioner from service after reinstatement of the petitioner by setting aside the earlier order of dismissal; that the allegation having taken place on 27.9.1989, the action of the respondents in initiating the disciplinary proceedings in the year 2008 i.e., after a lapse of about 19 years, that too, after this Court has given a finding in the criminal appeal acquitting the petitioner from criminal charges; that the action of the first respondent, who is the appellate authority, in directing the second respondent to issue charge memo in exercise of review power under Rule 37 of the Rules is improper; that the charge memo issued is contrary to the findings given by this Court in the criminal appeal; and that, the first respondent having reconsidered the dismissal order and ordered reinstatement, cannot reserve right to proceed further by framing charge under Rule 17(b). 7. When this writ petition was posted for admission on 25.3.2009, the learned Government Advocate, who took notice on behalf of the respondents, was directed to get instructions with regard to the delay aspect raised in the writ petition. The Government Advocate produced the instructions given by the Director of Public Health and Preventive Medicine, Chennai, addressed to the learned Special Government Pleader by letter dated 9.8.2009. 8. Heard the learned Senior Counsel appearing for the petitioner as well as learned Government Advocate for the respondents. 9. The issues to be decided in this writ petition is whether the respondents are entitled to reserve their rights to proceed https://hcservices.ecourts.gov.in/hcservices/ against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules after reviewing the earlier order of dismissal, which was passed based on the conviction and sentence in the criminal case and not after conducting the departmental proceedings, and whether the petitioner is justified in demanding to quash the charge memo on the alleged ground that the same was issued after a lapse of about 19 years and seven months. 10. The charge framed against the petitioner reads as follows: "While working as Medical Oficer in Government Primary Health Centre, Reddiarpatti, Tirunelveli Health Unit District, he had issued a certificate of death, without physically examining the patient and misguided that the patient died due to heart ailment while the fact remains that the death was due to murder, which had led to connivance to criminal misconduct of certain private parties. The above said act proves his dereliction of duty, and immoral to the moral turpitude of a Government Servant thereby leading him to unbecoming of a Government Servant as per the Tamil Nadu Government Servants' Conduct Rules, 1973." 11. It is an admitted case of the petitioner as well as the respondents that the petitioner issued a death certificate regarding one Leela Joice, certifying that she died due to heart attack. In the explanation submitted by the petitioner to the charge memo on 2.1.2009, which is filed in the typed set of papers, it is clearly stated that the petitioner believed the words of his driver, who narrated the circumstances under which the said Leela Joice died in the hospital of one Dr.Victor Durairaj on 26.9.1989, and who allegedly stated that the death was due to the heart ailment, and that, he believed the misguiding statement of the driver and issued the death certificate without examining the body of the deceased Leela Joice. Thus, the issuance of the death certificate by the petitioner, certifying that the death of the said Leela Joice is due to heart attack, is admitted. 12. An enquiry was conducted by the Revenue Divisional Officer with regard to the death of the said Leela Joice, wherein there is a clear finding against the petitioner. The petitioner was arrayed as 4th accused in S.C.No.87A of 1991 on the file of the Additional Sessions Court, Tirunelveli, for the offence punishable under Section 201 IPC and the Criminal Court, after full trial, convicted the petitioner and imposed the sentence of rigorous imprisonment for two years and also imposed a fine of Rs.2,000/-. The father-in-law of the deceased Leela Joice, the first accused in the said case was https://hcservices.ecourts.gov.in/hcservices/ tried under Sections 354, 304-I and 201 IPC and he was convicted and sentenced to undergo ten years rigorous imprisonment and a fine of Rs.3,000/- was imposed and the said punishment imposed by the Sessions Court against the said accused was confirmed in appeal filed before this Court in C.A.No.679 of 1994. Insofar as the petitioner is concerned, in the appeal preferred by him before this Court, benefit of doubt was given in his favour and he was acquitted. In paragraph 13 of the Common Judgment of this Court made in C.A.Nos.679 & 684 of 1994, the learned Judge of this Court held as follows: "13. It may be true that the appellant had given a statement during inquest before PW-10, the Revenue Divisional Officer. What the appellant had stated before the Revenue Divisional Officer is extracted in paragraph 24 of the judgment under challenge. The statement in substance is as follows: "A3, by name Victor, is a driver in his Primary Health Centre and he gave a certificate on A3 and his brother A1 coming to his office and requesting for a certificate to be issued and he issued a certificate on he being informed that Leela Joyce was suffering from an heart ailment and she died enroute when she was taken to the hospital." Therefore, at best, this admission of the appellant in this appeal before the Revenue Divisional Officer would show that there might have been dereliction of duty. But, that does not necessarily mean that the accused/appellant in this appeal was aware or even he had the slightest indication that an offence had been committed with reference to the death of Leela Joyce. This is a basic element, which the prosecution must establish to make out an offence under Section 201 IPC and since this basic element is lacking in this case, the conviction of the appellant in C.A.No.684/94 the sole accused in S.C.No.87-A/1991 on the file of the Additional Sessions Judge, Tirunelveli cannot be legally sustained. Accordingly, the judgment under challenge in the appeal is set aside and the accused is acquitted of the offence under Section 201 IPC. Fine amount, if any, paid is directed to be refunded to him. Bail bond, if https://hcservices.ecourts.gov.in/hcservices/ any, executed by him shall stand terminated forthwith. The appeal is accordingly allowed." On a perusal of the above findings given by this Court in criminal appeal filed by the petitioner, it is evident that this Court has expressed its opinion that there might have been dereliction of duty on the part of the petitioner in issuing the death certificate of Leela Joice. The said finding given by this Court insofar as the very same allegation levelled against the petitioner in the impugned charge memo dated 6.9.2008 has become final and therefore the petitioner is not justified in contending that the petitioner was absolutely exonerated in the criminal proceedings and therefore there is no cause of action for initiation of the impugned charge memo under Rule 17(b) of the Rules. Further the findings given by the criminal Court is in respect of criminal liability, where strict proof is required to sustain the conviction and in the case of the departmental proceedings, strict rule of evidence is not required and preponderance of evidence is sufficient. Having regard to the fact that the petitioner has admitted the issuance of the death certificate in his explanation to the charge memo, it has to be ascertained in the enquiry proceedings as to whether the same amounts to dereliction of duty or not. The same should be established during the enquiry and it is for the respondents to find out whether there is dereliction of duty on the part of the petitioner or not, and if there is dereliction of duty, then proceed further in the matter. It is not appropriate at this stage to express any opinion on the said aspect. 13. As regards the contention raised by the petitioner in the affidavit that the first respondent having exercised the power under Rule 37 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, by reviewing the order of punishment of dismissal and granting liberty to frame charge under Rule 17(b), the petitioner has lost his appeal remedy against the final order in the disciplinary proceedings. It is to be noted that the power of review is given under Rule 37 only to the Government and that power was exercised after disposal of the criminal appeal and after getting opinion from various departments as per the procedures. If the petitioner is aggrieved against the final order to be passed, it is open to the petitioner to challenge the said order before this Court, without availing the appeal remedy. Therefore the said contention cannot be a valid ground to quash the charge memo dated 6.9.2008. 14. Insofar as the contention of the learned Senior Counsel for the petitioner that the incident having occurred in the year 1989, the charge memo issued in the year 2008 is beyond 19½ years, the learned Government Advocate appearing for the respondents has explained the delay by producing the instructions given by the Director of Public Health and Preventive Medicine, Chennai-8, dated https://hcservices.ecourts.gov.in/hcservices/ 9.8.2007. Admittedly, the petitioner was charge sheeted and arrayed as 4th accused in S.C.No.87A of 1991 and the said criminal case was disposed of by the learned Assistant Sessions Judge, Tirunelveli, on 25.11.1994 and the petitioner was convicted. The petitioner challenged the said conviction and sentence by filing criminal appeal as stated supra and the said criminal appeal was disposed of by this Court by Judgment dated 25.9.2001, and as such there is no delay from 1989 till end of 2001. 15. In so far as the explanation for the delay from 2002 to 2008 is concerned, in the instructions given by the Director of Public Health and Preventive Medicines, Chennai, dated 9.8.2009, it is stated as follows: "....... The High Court Judgement in C.A.Number 674/94 & 684/94 dated 25/09/2001 was submitted by the individual only on 27/08/2002 to this office, the copy was only a Xerox copy. Hence as instructed by the Government in their Letter No.60634/D2/01/03, dated 17/12/2002 to obtain an official copy of the order of the High Court in Criminal Appeal No.679/94 & 684/94 from the O/o the Superintendent of Police, Tirunelveli District, the same was called for through the Deputy Director of Health Services, Tirunelveli in this office R.No.39868/PHC-3/A4/89 dated 20/01/2003. The Deputy Director of Health Services, Tirunelveli in turn has addressed the Superintendent of Police, Tirunelveli vide his Letter R.No.543/A2/2003 dated 29/01/2003 and reminded on 10/03/2003 requesting for the official copy of the Judgment. The Commissioner of Police, Tirunelveli city in his letter C.No.G5/4777/2003 dated 11/11/2003 has addressed the Government Pleader, High Court, Chennai, requesting whether Criminal appeal has been preferred in Cr.A.No.679/94 & 684/94. The Deputy Director of Health Services, Tirunelveli in his letter dated 27/02/2006 has forwarded the original Judgment copy obtained in Cr.A.No.679/94 & 684/94 and the same was retransmitted to the Government vide this office letter dated 03/04/2006. The Government vide G.O.(D)No.146 Health and Family Welfare (D2) Department, dated 22/02/2008 had issued orders reinstating him into Government service and the individual has joined duty on the forenoon of 30/05/2008 at Primary Health Centre, Thirupoondi, Nagapattinam District." https://hcservices.ecourts.gov.in/hcservices/ The above said facts clearly reveal that the delay from 2002 to 2008 is explained and the contention of the learned Senior Counsel for the petitioner is unsustainable as the delay is properly explained by the respondents. Therefore the Government order reserving rights to proceed against the petitioner for dereliction of duty under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, while ordering reinstatement and the consequential charge memo dated 6.9.2008 issued to the petitioner by the second respondent cannot be quashed. 16. (a) Similar issue was considered by the Honourable Supreme Court in the decision reported in (1995) 3 SCC 134 : 1995-I LLJ 1069 (Deputy Registrar, Co-Operative Societies, Faizabad v. Sachindran Nath Panday and others) and in paragraph 7 it is held as follows: "7. On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay. ........" (b) Again in (1996) 3 SCC 157 : (1996) 2 MLJ 54 : 1996-II LLJ 245 (Secretry to Government, Prohibition and Excise Department v. L.Srinivasan) the Supreme Court held that charges cannot be quashed only on the ground of delay. (c) In 2007 AIR SCW 1639 (Government of A.P. And Others v. V.Appala Swamy) the Supreme Court considered similar issue and held as follows: "10. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefor. Each case must be determined on its own facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) Where by reason of the delay, the employer condoned the lapses on the part of the employee. (2) Where the delay cause prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the Inquiry Officer. 11. ............................ 12. Learned counsel appearing on behalf of the respondent, however, placed strong reliance on a decision of this Court in M.V.Bijlani v. Union of India and Others (2006) 5 SCC 88 : 2006-II LLJ 800. That case was decided on its peculiar facts. https://hcservices.ecourts.gov.in/hcservices/ In that case,even the basic material on which a departmental proceedings could be initiated was absent. The departmental proceedings was initiated after 6 years and continued for period of 7 years. In that fact situation, it was held that the appellant therein was prejudiced. 13. M.V.Bijlani v. Union of India and Others (supra), therefore, is not an authority and, in fact, as would appear from the decision in P.D.Agarwal (supra), for the proposition that only on the ground of delay the entire proceedings can be quashed without considering the other relevant factors therefor." (Emphasis Supplied) (d) In the decision reported in (2008) 2 SCC 41 : 2008 AIR SCW 1241 (U.P.State Sugar Corporation Ltd. v. Kamal Swaroop Tondon) the Supreme Court held that mere delay in initiation of the proceedings or continuation of such proceedings is not enough to quash such proceedings, unless it is established that the delay was gross, inordinate and unexplained, which would cause serious prejudice to the employee and would result in miscarriage of justice. Paragraphs 29 and 30 (in SCC) read thus: "29. Strong reliance was placed by the learned counsel for the respondent on P.V. Mahadevan v. MD, T.N. Housing Board (2005) 6 SCC 636 : JT 2005 (7) SC 417. In that case, there was inordinate delay of ten years in initiating departmental proceedings against an employee. In absence of convincing explanation by the employer for such inordinate delay, this Court held that the proceedings were liable to be quashed. 30. In our opinion, Mahadevan does not help the respondent. No rigid, inflexible or invariable test can be applied as to when the proceedings should be allowed to be continued and when they should be ordered to be dropped. In such cases there is neither lower limit nor upper limit. If on the facts and in the circumstances of the case, the Court is satisfied that there was gross, inordinate and unexplained delay in initiating departmental proceedings and continuation of such proceedings would seriously prejudice the employee and would result in miscarriage of justice, it may quash them. We may, however, hasten to add that it is an exception to the general rule that once the proceedings are initiated, they must be taken to the logical end. It, therefore, cannot be laid down as a proposition of law or a rule of universal application that if there is delay in https://hcservices.ecourts.gov.in/hcservices/ initiation of proceedings for a particular period, they must necessarily be quashed." (Emphasis Supplied) (e) In the recent decision of the Supreme Court reported in AIR 2009 SC 2925 (Secretary, Forest Department v. Abdur Rasul Chowdhury) in para 17 it is held thus, "17. The next issue is with regard to delay in concluding disciplinary proceedings. In our view the delay in concluding the domestic enquiry proceedings is not fatal to the proceedings. It depends on the facts and circumstances of each case. The un-explained protracted delay on the part of the employer may be one of the circumstance in not permitting the employer to continue with the disciplinary enquiry proceedings. At the same time, if the delay is explained satisfactorily then the proceedings should be permitted to continue. ..........." In the said case the Supreme Court set aside the order of the High Court and directed the disciplinary authority to complete the domestic enquiry proceedings from the stage it was interdicted by the High Court and complete the same as expeditiously as possible and at any rate within three months from the date of receipt of the Court's order. The respondent therein was directed to participate in the enquiry without unnecessarily seeking adjournment in the enquiry proceedings. 17. Applying the above principles to the facts of this case, I find, no case is made out by the writ petitioner to allow the writ petition. Consequently the writ petition is dismissed. Since the issue relates to the incident occurred in the year 1989 and all other proceedings are over by now, the respondents are directed to complete the enquiry and pass final orders in the charge memo issued to the petitioner, within a period of six months i.e., before the end of September, 2010. No costs. Connected miscellaneous petitions are also dismissed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ vr To 1. The Secretary to Government, Health and Family Welfare Department, Fort St.George, Chennai – 9. 2. The Director, Public Health and Preventive Medicine, Chennai – 600 006. W.P.No.4453 of 2009 RSN(CO) https://hcservices.ecourts.gov.in/hcservices/