IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 16.07.2008 Coram : THE HONOURABLE MR. JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR. JUSTICE P.P.S.JANARTHANA RAJA Writ Appeals Nos.123 and 124 of 2008 Dr.D.Muthian Appellant in both the writ appeals vs. 1. The Government of Tamilnadu, represented by its Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai 9. 2. The Director of Medical and Rural Health Services, Chennai 6 Respondents in both the writ appeals Writ Appeals under clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 22.10.2007 made in writ petitions Nos.33182 and 33183 of 2007. WP.Nos.33182 & 33183 of 2007 : Petitions under Article 226 of the Constitution of India praying for the issuance of the Writs of (1) Certiorarified Mandamus to call for the records connected with G.O(2D) No.64 Health and Family Welfare (A2) Department dated 03.11.2004 as amended in letter No.58533/A2/04-1 Health and Family Welfare Department dated 24.11.2004 of the Ist Respondent and quash the same in Respect of the column 1, 2 & 6 in paragraph 5 of G.O.2(D).No.64, alone and direct the respondents to revise the order in G.O.(2D) No.64 dated 03.11.2004 for regularization of the period of suspension from 09.08.1986 to 20.12.1987 as earned leave for 176 days from 09.08.86 to 31.01.87 in column, paragraph 5 and as extraordinary leave without pay and allowances without medical certificate from 323 days from 01.02.1987 to 20.12.1987 in column 2 paragraph 5 and to issue orders or regularization of the entire period of suspension of the petitioner from 09.08.86 to 20.12.87 as a period spent on duty for all purposes and to revise the order in G.O.2(D). No.64, dated 03.11.2004 as amended dated 24.11.2004 for regularization of the period from 01.03.89 to 14.08.89 as extraordinary leave without pay and allowances without Medical Certificate in column 6, paragraph https://hcservices.ecourts.gov.in/hcservices/ 5 and to regularise the entire period of waiting for posting from 22.10.88 to 14.08.89 as compulsory wait (in WP.No.33182/07) and (ii) Mandamus, directing the respondents to consider the claims of the petitioner for promotion as Deputy Director of Medical Services and Family Welfare (TB) on 01.09.86 later upgraded as Joint Director of Medical Services (TB) and then again upgraded as Additional Director of Medical and Rural Health Services (Thoracic Medicine) and accordingly promote the petitioner as stated above from 01.09.86 and to any other further promotion before the petitioners superannuation to which he is entitled, by virtue of the petitioners seniority and qualifications with all benefits by considering the petitioners representation dated 19.06.2007 (in WP.No.33183/2007) For appellant : Mr.P.Jayaraman, (in both cases) Senior Counsel, for Mr.G.Elanchezhian For respondents : Mr.K.Balasubramanian, Special Government Pleader JUDGMENT K.RAVIRAJA PANDIAN, J. The correctness of the order dated 22.10.2007 made in writ petition No.33182 and 3318 of 2007, whereby the relief sought for by the appellant for issuance of writ of certiorarified mandamus to call for the records connected with G.O.(2D) No.64 Health and Family Welfare (A2) Department dated 03.11.2004 as amended in letter No.58533/A2/04-1 of the same department dated 24.11.2004 and quash the same and direct the respondent to revise the said G.O. dated 03.11.2004 for regularisation of the period of suspension from 09.08.1986 to 20.12.1987 as - Earned Leave for 176 days from 09.08.1986 to 31.01.1987; and as extra ordinary leave without pay and allowance without medical certificate for 323 days from 01.02.1987 to 20.12.1987 and to issue order for regularisation of the entire period of suspension of the appellant from 09.08.1986 to 20.12.1987 as the period spent on duty for all purposes and revise the G.O. 03.11.2004 as amended on 24.11.2004 for regularisation of the period from 01.03.1989 to 14.08.1989 as Extraordinary leave without pay and allowances without medical certificate and to regularise the entire period of waiting for posting from 22.10.1986 to 14.08.1989 as compulsory wait (WP.33183 of 2007) and for issuance of mandamus directing respondents to consider the claims of the appellant for promotion as Deputy Director of Medical Services and Family Welfare (TB) from 01.09.1986, later upgraded as Joint Director of Medical Services and then again upgraded as Additional Director of Medical and Rural Health Services, and to any other further promotion before the appellant's superannuation to which he is entitled to, by virtue of appellant's seniority and qualifications with all benefits considering the representation of the appellant dated 19.06.2007 (WP.33183 of 2007), was rejected by the writ Court on the ground of latches. https://hcservices.ecourts.gov.in/hcservices/ 2. The material facts of the case necessary for the disposal of the appeals are as follows : The appellant, while working as a District Medical Officer, Ooty was placed under suspension on 09.08.1996 for the irregularities in the purchase of I.V. Fluids, syringes, etc., in the Government Head Quarters Hospital, Ooty during 1985-86. The suspension was revoked on 21.12.1987. By G.O. Ms.No.88 Health & Family Welfare Department dated 23.01.1988 the appellant was posted as District Tuberculosis officer, Sivaganaga. The said order was communicated by the letter of the second respondent dated 11.02.1988, which was received by the appellant on 20.02.1988. But the appellant without joining duty, proceeded on unearned leave on medical certificate for 60 days and for a further period of six months from 21.04.1988. The appellant was referred to the Medical Board on 24.06.1988 and on the report of the Medical Board dated 21.10.1988 that the appellant was fit for resumption of duty, he was directed to join duty on or before 21.10.1988. On his failure to join duty, he was further directed to join duty as the District Tuberculosis Officer, Sivaganga on or before 20.05.1989. As the appellant did not join duty on that day, a charge memo dated 17.09.1989 was served on the appellant and enquiry was conducted. In the meantime, for the alleged lapse in the purchase of IV fluids, a show cause notice dated 16.06.1988 was issued and on 06.04.1989 charge memo was filed against the appellant. The appellant, in the meanwhile, attained the age of retirement and was permitted to retire on 31.03.1990 without prejudice to the departmental proceedings pending against him. The first respondent, by its order in G.O. Ms.No.691 dated 25.11.1993 imposed a punishment of cut in the pension at the rate of Rs.50/- per month for a period of one year. In respect of the alleged irregularity in the purchase of IV fluids by adopting corrupt practices, the first respondent, by G.O. Ms. No.934 dated 10.07.1995 imposed a penalty of pension cut of Rs.2318/-. 3. Aggrieved by the above order, the appellant filed O.As. Nos.2013 of 1994 and 8008 of 1995 before the Administrative Tribunal. Both the applications were dismissed. The appellant filed writ petitions Nos.4162 and 4163 of 1999 before this Court and obtained an order 18.04.2002. In that writ petition, the orders of the Government dated 25.11.1993 and 10.07.1995 made in G.O.(D)No.691 and G.O. (D) No.934 imposing a cut of Rs.50/- for a period of one year and imposing a recovery of Rs.2318/- respectively were confirmed, but with the direction to the Government to recover the amount from the pension payable to the appellant and further directed the Government to pay the retirement benefit including pension and whatever arrears available forthwith with interest at 9% 31.03.1990 within four weeks from the date of receipt of the order. 4. When the respondent was processing the above orders, the appellant filed Contempt Petition No.889 of 2003 for disobedience of the order of this Court. In the meanwhile, the respondent issued G.O. Ms. No.64 Health and Family Welfare Department dated 03.11.2004 and https://hcservices.ecourts.gov.in/hcservices/ subsequently amended on 24.11.2004 after regularising the period of suspension from 09.08.1986 to 31.03.1990 paid the retiral benefits. However, the request of the appellant to treat the period of suspension from 09.08.1986 to 20.12.1987 as duty period and the period of waiting for posting to resume duty from 22.10.1988 to 14.08.1989 as compulsory wait was rejected. On that basis writ petition No.33182 of 2007 has been filed, as could be seen from the prayer extracted above. The writ Court, taking into consideration the totality of the circumstances of the case and the relief sought for, was of the opinion that the appellant shall not be allowed to agitate the matter after lapse of so many years and non suited the appellant on the ground of latches without going into the merits of the case. 5. Mr.P.Jayaraman, learned senior counsel appearing for the appellant very innocuously argued that it would suffice if the appellant's representation dated 19.06.2007 is directed to be considered. 6. Learned Government Pleader for the respondents submitted that the appellant, by filing a contempt application got almost all the benefits including the regularisation of the suspension period from 09.08.1986 to 31.03.1990 and the retirement benefit to that period has also been given to the appellant. However, the request of the appellant to treat the period of suspension from 09.08.1986 to 20.12.1987 as duty period and the period of waiting for posting to resume duty from 22.10.1988 to 14.08.1989 as compulsory wait, could be complied with as the request is against the Rules. As per FR 54B(3) only when the authority is of the opinion that the suspension is wholly unjustified, the Government servant shall be paid the full pay and allowances. In the case of the appellant, he was awarded with punishment which has been confirmed by the Tribunal as well as this Court and as such the period of suspension cannot be treated as duty. The appellant has applied for unearned leave on medical certificate from 21.02.1988 for 60 days and unearned leave on medical certificate from 21.04.1988 for six months. 7. We heard the learned counsel on either side and perused the materials available on record. 8. Though the request of the appellant is very innocuous in nature, i.e., the representation of the appellant dated 19.06.2007 may be directed to be considered, that cannot be ordered. As could be seen from the facts of the case above referred to, the appellant was paid almost all the benefits for which he was entitled to during the pendency of the contempt petition, the request of the appellant to treat the period of suspension from 09.08.1986 to 20.12.1987 as duty period and the period of waiting for posting to resume duty from 22.10.1988 to 14.08.1989 as compulsory wait cannot be acceded to as the same is against the statutory provision. FR 54B(3) of the Fundamental Rules of the Tamilnadu Government read as under : https://hcservices.ecourts.gov.in/hcservices/ "54-B(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended. Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation (within sixty days from the date on which the communication in this regard is served on him) and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine." From the above provision it is clear that only when the department is of the opinion that the suspension was wholly unjustified, the Government servant shall be paid the full pay and allowances. Further, the delay caused in conducting the enquiry should not also be attributable to the appellant directly. 9. As already stated, the appellant was awarded punishment which has been confirmed by this Court and hence, the suspension period cannot be treated as on duty. The appellant has applied for unearned leave on medical certificate from 21.02.1988 for 60 days and unearned leave on medical certificate from 21.04.1988 for six months. The appellant was permitted to join duty on and from 21.10.1988 after getting a report from the Medical Board. The appellant should have joined duty as directed on and from 21.10.1988. Hence, even on merits, we find that the appellant has not made out any case and on the ground of latches also, we are of the view that the appellant may be non suited. The appeals are dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mf To 1. The Secretary to Government, Government of Tamilnadu, Health and Family Welfare Department, Fort St. George, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/ 2. The Director of Medical and Rural Health Services, Chennai 6 2 cc To Mr.G.Elanchezhiyan, Advocate, SR.37695. 1 cc To The Government Pleader, SR.37730. W.As. Nos.123 and 124 of 2008 SS(CO) RVL 29.07.2008 https://hcservices.ecourts.gov.in/hcservices/