IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 14-07-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.27355 of 2006 (O.A.No.4744 of 1995) K.Jeyaprakasam .. Petitioner. Versus The State of Tamil Nadu rep. by the Dean, Government Rajaji Hospital, Madurai-20. .. Respondent. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, to quash the order of respondent, dated 18.6.95, in his proceedings Ref.No.12902/E3/91 and consequently direct the respondent to pay the applicant all consequential benefits. For Petitioner : Mr.Yashod Vardhan (Senior Counsel) for Mr.C.P.Prashanth Gopal For Respondent : Mr.T.Seenivasan Additional Government Pleader O R D E R Heard Mr.Yashod Vardhan, Senior Counsel, appearing for the petitioner and the learned Additional Government Pleader appearing for the respondent. 2. The petitioner has stated that he was working as a Radiographer in the Rajaji Hospital, Madurai, when he was placed under suspension by the proceedings of the respondent, dated 4.5.91, in R.C.12902/E3/91, on the ground that an enquiry into grave charges was pending against the petitioner. The petitioner was issued a charge memo in proceedings Ref.No.12902/E3/91, dated 29.7.91, with four charges. The allegation was that there were irregularities in the X-ray film and the chemical accounts of the T.B.Clinic and the alleged loss of Rs.1,02,036.05 had been caused to the Government. By proceedings, dated 2.10.91, the amount was reduced to Rs.96,848.05. https://hcservices.ecourts.gov.in/hcservices/ 3. It has been further stated that the petitioner had challenged the order of suspension by an original application in O.A.No.7103 of 1993 before the Tamilnadu Administrative Tribunal. The Tribunal, by an order, dated 4.3.94, was pleased to direct the respondent to complete the disciplinary proceedings initiated against the petitioner, within a period of four months. The petitioner had submitted an interim reply to the charges by a letter, dated 23.2.94, addressed to the respondent. However, the respondent had sent a communication, dated 20.5.94, holding the petitioner responsible for the alleged loss caused to the Government. The petitioner was asked to remit the amount said to be the loss caused, even though the enquiry had not been completed. The petitioner had attended the oral enquiry held on 27.6.94. No witness was examined on behalf of the Government. After the petitioner was asked a few questions, the Enquiry Officer had permitted the petitioner to peruse the records on the next day of hearing i.e. 1.7.94. Thereafter, the petitioner was directed to file a reply on 4.7.94. No further proceedings had taken place. 4. It has been stated that the petitioner had submitted his statement of defence, dated 4.7.94, to the enquiry officer, denying the charges and pointed out the discrepancies in them. The Enquiry Officer, without considering the explanation submitted by the petitioner had held the petitioner guilty of all the four charges, by his report forwarded to the petitioner, on 27.8.94. The Enquiry Officer had stated that all the charges against the petitioner were proved beyond doubt. However, there was no mention in the entire enquiry report about the explanation submitted by the petitioner. On receipt of the enquiry report, the petitioner had submitted his reply on 14.9.94. In the reply submitted by the petitioner, it was stated that the enquiry had been conducted in gross violation of the principles of natural justice and it was further stated that no departmental witness had been examined to prove the charges and that the Enquiry Officer had acted contrary to the rules prescribed for conducting such an enquiry. Further, the Enquiry Officer had not considered the petitioner's written submissions and it was also stated that the Enquiry Officer was biased since certain registers asked for by the petitioner had not been produced and therefore, he was highly prejudiced. 5. It has been further stated that the respondent, vide proceedings, dated 4.11.94, in R.C.No.4694/E3/91, had informed the petitioner that he would not be permitted to retire from service since disciplinary proceedings were pending against him. The Government had issued an order to that effect, in G.O.(D).No.142, dated 28.11.94. On 14.12.94, the Tahsildar, Madurai (South), issued a notice to the petitioner initiating proceedings under the Revenue https://hcservices.ecourts.gov.in/hcservices/ Recovery Act. The petitioner had sent a letter, dated 29.11.94, to the Director of Medical Education, Madras, pointing out that no proper enquiry had been held and the enquiry proceedings were held in violation of the principles of natural justice. Therefore, the petitioner had requested the Director of Medical Education to intervene and exclude the petitioner from the charges. However, by the impugned order in Ref.No.12902/E3/91, dated 18.6.95, the respondent had held the petitioner guilty of all the charges and directed the petitioner's removal from service. The said order is arbitrary and illegal and liable to be set aside. In such circumstances, the petitioner had filed an original application in O.A.No.4744 of 1995, which has been transferred to this Court and re- numbered as W.P.No.27355 of 2006. 6. In the reply affidavit filed on behalf of the respondents, it has been stated that the Accountant General's Audit Party, during their discussions in the month of February, 1991, in the Government Rajaji Hospital, Madurai, had noticed certain irregularities in the X-ray Stores of the Hospital. With a view to investigate further, the Lay Secretary and Treasurer Gr.II of the Hospital, was directed to check up the X-Ray stores. After the checking was done, it was reported that the quantity reduced from the stock is in excess of the indents furnished by the Department and there were discrepancies in the stock. Further, on checking the X-ray stores and the chemical accounts of the T.B.Clinic, a report was submitted on 29.4.91, pointing out the discrepancies in the accounts. The entries in the T.B.Clinic account did not tally with the nominal register and the figures had been manipulated in the stock register. Thus, the total receipt do not tally with the actual receipt. Further, certain arithmetical errors were also noticed in the accounts. The total loss caused to the Government was Rs.1,02,036.05. The petitioner was in charge of the T.B.Clinic for the periods from 1.4.89 to 31.5.89 and 1.7.89 to 15.2.91. The petitioner was on medical leave from 1.6.89 to 30.6.89. During the leave period P.Thiagarajan was placed in charge and thus the responsibility for the loss was fixed at Rs.96,848.05 for the petitioner and Rs.5,188/- for P.Thiagarajan. Since the matter was of a criminal nature, the police authorities were addressed and a case had been registered against the petitioner. Further, the petitioner was directed to remit a sum of Rs.96,848.05 towards the loss caused to the Government. Since the petitioner did not remit the amount, action was taken to recover the amount as Government dues by way of revenue recovery proceedings. 7. It has also been stated that a charge memo under Rule 17(b) was issued to the petitioner in the month of July 1991. The relevant records, including the audit reports, were given to the petitioner for verification. Thereafter, the petitioner had submitted his reply. https://hcservices.ecourts.gov.in/hcservices/ Since the reply submitted by the petitioner was not convincing, an enquiry officer was nominated to conduct an enquiry. After conducting the enquiry, the Enquiry Officer had submitted a report stating that all the charges were held proved. A copy of the Enquiry Officer's report was communicated to the petitioner to submit his further defence, if any, on the charges levelled against him. The petitioner had submitted his statement of defence against the Enquiry Officer's report. A copy of the defence statement submitted by the petitioner, along with the enquiry report, was forwarded to the Enquiry Officer for offering his remarks. The Enquiry Officer submitted a report on the defence statement given by the petitioner, with reference to the enquiry report. The Enquiry Officer had reported that the enquiry was conducted in a fair and judicious manner, without fear or favour. Thus, sufficient opportunity was given to the applicant to defend his case. As such, there is no violation of the principles of natural justice. In the disciplinary proceedings initiated against the petitioner, the charges against him had been proved. Thus, the petitioner was held for the loss caused to the Government due to the defalcation of X-ray films and chemicals. Since the defalcation was detected with reference to the connected accounts and records maintained by the petitioner, the question of examination of further witnesses on behalf of the department did not arise. The petitioner was given sufficient opportunity during the enquiry. Therefore, the request of the petitioner for further enquiry is frivolous. 8. As per the letter of the Director of Medical Education D.O. Letter Ref.No.120359/E5/1/93, dated 27.9.94, the petitioner was not permitted to retire from service on attaining the age of superannuation, on 30.11.94, as the disciplinary proceedings initiated against him was pending. By a letter, dated 22.8.94, from the Director of Medical Education, instructions were given to the Dean to pass final orders in the disciplinary proceedings without waiting for the conclusion of the criminal action taken against the petitioner. After analysing the entire case, independently, along with the enquiry report and the connected accounts and records, the Dean of Government Rajaji Hospital, Madurai, had concluded that all the charges framed against the petitioner were held proved beyond doubt and that he had deserved the punishment of removal from service. 9. The main contention of the learned counsel for the petitioner is that the enquiry proceedings against the petitioner was not held following the principles of natural justice and is in violation of the proceedures established for conducting such enquiries. No department witness was examined to prove the charges. The petitioner was asked a few questions at the beginning of the enquiry by the Enquiry Officer. No opportunity was given to the petitioner to let in evidence in support of his case. Some of the documents asked for by the petitioner were not given to him. https://hcservices.ecourts.gov.in/hcservices/ 10. The learned Senior counsel had also submitted that in spite of the petitioner submitting a detailed explanation, dated 4.7.94, the Enquiry Officer had not considered the same before finalising his report. The Enquiry Officer had not applied his mind in coming to his conclusion that the petitioner had caused a loss of Rs.1,02,036.05 to the Government. Later, the amount was modified as Rs.96,848.05. It has not been stated as to how the Enquiry Officer had arrived at the said amount. 11. It has also been pointed out by the learned counsel for the petitioner that on receipt of the Enquiry Officer's report, the petitioner had submitted his objections by his letters, dated 14.9.94 and 12.11.94. The petitioner had clearly pointed out that the enquiry proceedings had been conducted in violation of the principles of natural justice and that the report of the enquiry officer should not accepted. The respondent had not considered any of the objections raised by the petitioner before passing the impugned order. On the other hand, the respondent had followed a very strange procedure of sending back the report to the Enquiry Officer asking for his remarks. The respondent had stated in his impugned order, dated 18.6.95, that a copy of the defence statement submitted by the delinquent officer, along with the enquiry report, was forwarded to the Enquiry Officer for offering his remarks. It has been further mentioned that the Enquiry officer had submitted a report on the defence statement given by the delinquent officer with reference to the enquiry report. The Enquiry Officer had stated that the enquiry was conducted in a fair manner, without fear or favour. Sufficient opportunity was given to the delinquent officer to defend his case. Based on the said remarks offered by the Enquiry officer, the respondent had concluded that there was no violation of principles of natural justice. Thus, the respondent had come to a wrong conclusion, based on the remarks submitted by the Enquiry Officer. The remarks submitted by the Enquiry Officer had not been given to the petitioner. The respondent had not applied his mind, independently, in coming to his conclusion that the petitioner deserved the punishment of removal from service. No reasons have been shown by the respondent to reject the statement of defence submitted by the petitioner for the enquiry report submitted by the Enquiry Officer. The respondent had relied entirely on the remarks submitted by the Enquiry Officer without analysing the merits and the specific issues raised by the petitioner in his statement. 12. In view of the submissions made by the learned counsels appearing on behalf of petitioner, as well as the respondent and on a perusal of the records available, this Court is of the view that the respondent had not followed the procedures established by law in arriving at its conclusions. Instead of independently analysing the https://hcservices.ecourts.gov.in/hcservices/ issues raised by the petitioner through his defence statement submitted on the enquiry report, the respondent had arrived at his conclusions based entirely on the remarks submitted by the Enquiry Officer. When the petitioner had claimed that the principles of natural justice had not been followed during the enquiry conducted against him by the Enquiry Officer, the respondent ought to have given his independent findings with regard to the same instead of referring the matter back to Enquiry Officer and pass a final order based only on the remarks offered by the Enquiry Officer. No independent reasons have been given to substantiate the findings of the Enquiry Officer and for rejecting the issues raised by the petitioner in his defence statement. 13. In such view of the matter, the impugned order of the respondent, dated 18.6.95, made in Ref.No.12902/E3/91, is set aside. However, the setting aside of the order would not entail any further consequences, either in favour of or against the petitioner as it has been done only for the limited purpose of enabling the respondent to pass fresh orders based on the defence statement submitted by the petitioner. Accordingly, the respondent is directed to consider the defence statement of the petitioner, dated 29.11.94, and pass appropriate orders, on merits and in accordance with law, after giving sufficient reasons for his conclusions, without reference to the remarks submitted by the Enquiry Officer, based on which the earlier impugned order, dated 18.6.95, had been passed. The respondent is to pass orders, as directed above, within a period of twelve weeks from the date of receipt of a copy of this order. Thus, the writ petition stands partly allowed with the above directions. No costs. Sd/- Asst. Registrar /true copy/ csh Sub Asst. Registrar To 1) The Dean, Government Rajaji Hospital, Madurai-20. +1 cc to Mr.K.Kannan, Advocate, SR.No.37407 1 cc To The Government Pleader, SR.37370 Writ Petition No.27355 of 2006 TEJ (CO) SMK/08.08.08 https://hcservices.ecourts.gov.in/hcservices/