IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.7.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.18505 of 2006 (T) O.A.No.4721 of 1996 Dr.S.Manoharan .. Petitioner vs. State of Tamil Nadu rep. by its Secretary to Government Health & Family Welfare Dept., Madras-9 .. Respondent This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records pertaining to the order passed by the respondent in its G.O.(D)No.416, Health & Family Welfare Department, dated 28.3.1996, and set aside the same. For petitioner : Mr.S.Mani For Respondents : Mr.T.Seenivasan Additional Government Pleader O R D E R Heard the learned counsels appearing for the parties concerned. 2. The petitioner has stated that a charge memo, dated 29.1.1995, under Rule 17(a) of The Tamil Nadu Civil Service (Discipline and Appeal) Rules, had been issued for the alleged lapses committed by the petitioner. The petitioner had submitted his explanation for the two charges levelled against him. Without considering the explanation, properly, in the light of the order passed by the Government in G.O.Ms.No.33, Health & Family Welfare Department, dated 20.1.1995, the impugned order had been passed imposing the punishment of stoppage of increment for one year, without cumulative effect. 3. It has been further stated that the charges were framed on the ground that when the Dean was on surprise rounds at about 7.40 a.m., on 23.9.1994, the petitioner was not on duty and thereby, he had deserted his duty spot without making any entry in the movement register. The petitioner has submitted that he had been to the Head Injury ward at 7.00 a.m., on 23.9.1994, and that he had also made rounds. After the rounds when the petitioner was on the way to the office of the Resident Medical Officer a group of relatives had come https://hcservices.ecourts.gov.in/hcservices/ to the hospital and the petitioner was compelled to discuss with them. Thereafter, he had met the Dean at 8.00 a.m. 4. It has also been submitted that the duty hours start only by 8.00 a.m. The petitioner is a Neuro specialist. The speciality ward starts functioning only at 8.00 a.m. As per G.O.Ms.No.33, Health & Family Welfare Department, dated 20.1.1995, the petitioner had to be in the hospital, in the specialty ward, at 8.00 a.m. The Dean had made a surprise visit at 7.40 a.m. itself. Thereafter, the charges had been framed against the petitioner. After an enquiry had been conducted, the petitioner was imposed a punishment of stoppage of increment for one year, without cumulative effect. In such circumstances, the petitioner had filed an original application in O.A.No.4721 of 1996, which has been transferred to this Court and renumbered as W.P.No.18505 of 2006. 5. In the reply affidavit filed on behalf of the respondents, it has been stated that the Dean, Government Rajaji Hospital, Madurai, had made surprise rounds of the Hospital, on 23.9.1994. He had noticed that the petitioner, who was on duty as a Neuro Surgeon, was found absent in the injury ward at 7.40 a.m. on the said date. Since the explanation submitted by the petitioner in his letter, dated 23.9.1994, was not convincing, the Director of Medical Education had initiated a disciplinary action against the petitioner, under Rule 17 (b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules and the show cause memo had been issued in ref.No.93770/SCI/94, dated 29.1.1995. The first lapse pointed out against the petitioner is that when the Dean, Government Rajaji Hospital, Madurai, had made surprise rounds, at 7.40 a.m., on 23.9.1994, the petitioner was found to have deserted his duty, as he was absent from the Injury ward without making any entry in the movement register and that he was not traceable until he returned back on his own. On 8.3.1995, the petitioner had submitted an explanation. However, the Government, after examining the matter, had found that the lapses allegedly committed by the petitioner were substantiated by evidence on record. Therefore, the petitioner was imposed with the punishment of stoppage of increment for one year, without cumulative effect, in G.O.Ms.No.416, Health & Family Welfare, dated 28.3.1996. The order had been served on the petitioner, on 4.6.1996. However, he did not file any review petition against the said order to the Government. 6. It has also been stated that the petitioner did not deny his absence from the duty spot when the Dean had made the surprise rounds at 7.40 a.m., on 23.9.1994. Since the petitioner was on duty as a Neuro surgeon at the injury ward, he should have been present in the ward during his duty hours. To show that the speciality ward starts functioning at 8.00 a.m., the petitioner had quoted the Government Order in G.O.Ms.No.33, Health and Family Welfare Department, dated 20.1.1995. Since the absence of the petitioner from duty had occurred, on 23.9.1994, prior to the said Government order, the https://hcservices.ecourts.gov.in/hcservices/ petitioner cannot show the said Government order as a defence. Moreover, the Government Order indicates the functioning time of the speciality out patient ward and not the timing of the specialty ward. In such circumstances, the reliefs sought for by the petitioner are devoid of merits. 7. In view of the submissions made by the learned counsels appearing for the parties concerned and on a perusal of the records available before this Court, it is clear that the petitioner was absent from the specialty ward at 7.40 a.m., On 23.9.1994, when the Dean, Government Rajaji Hospital, Madurai, had made his rounds. It is further seen that the petitioner had submitted an explanation in his letter, dated 23.9.1994. Since it was found that the explanation submitted by the petitioner was not convincing, the Director of Medical Education had initiated a disciplinary action against him under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules and a show cause memo had been issued in ref.No.93770/SCI/94, dated 29.1.1995, framing two lapses, which are as follows: "Lapse 1: that when the Dean, Government Rajaji Hospital, Madurai, had made surprise rounds, he (Dr.S.Manoharan) was found to have deserted his duty on 23.9.1994, at 7.40 a.m. at Injury ward" Lapse 2: "that he had deserted from duty spot without making any entry in the movement register and thus he was not traceable until he returned back on his own." 8. The explanation, dated 8.3.1995, submitted by the petitioner was not convincing. Therefore, the petitioner was awarded the punishment of stoppage of increment for one year, without cumulative effect. G.O.Ms.No.33, Health and Family Welfare Department, dated 20.1.1995, cited by the petitioner to show that the specialty ward starts functioning only from 8.00 a.m. is not applicable to the petitioner as the incident had taken place, on 23.9.1994, whereas the said Government order had been issued only, on 20.1.1995. Further, it is clear that the petitioner has not shown sufficient cause or reason to interfere with the impugned order passed by the respondent in its G.O.(D)No.416, Health & Family Welfare Department, dated 28.3.1996. Therefore, the writ petition stands dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ lan To: The Secretary to Government Health & Family Welfare Dept., State of Tamil Nadu Madras-9 + 1 CC to the Government Pleader SR NO 39346 W.P.No.18505 of 2006 (T) O.A.No.4721 of 1996 MA(CO) SRA(11/08/2008) https://hcservices.ecourts.gov.in/hcservices/