1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.10560 of 2011 Mrs.M.Indira Assistant Medical Officer : Petitioner Vs. The Director of Public Health & Preventive Medicine, Chennai-6. : Respondent PRAYER: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Mandamus, directing the respondent to initiate forthwith and complete all the process of enquiry pertaining to the charge memorandum issued by the respondent to the petitioner, vide his proceeding No. R.No.55437/PHC-3/A.3/2006-1, dated 29.07.2009 within a time frame. For Petitioner : Mr.Ramesh Alias Ramiah For Respondent : Mr.T.S.Mohammed Mohideen Additional Government Pleader O R D E R An Assistant Medical Officer, Primary Health Centre departmentally proceeded under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, by a charge memorandum, vide proceedings in R.No.55437/PHC-3/A3/2006-1, dated 29.07.2009, alleging that she had paved the way for malpractices and misappropriation of Government money, due to lack of supervision, has approached this Court for a Mandamus, directing the Director of Public Health & Preventive Medicine, Chennai-6, the respondent herein to initiate forthwith and complete all the process of enquiry, pursuant to the above said charge memo and pass appropriate orders. 2. According to the petitioner, she had submitted her written statement of defence as early as on 14.09.2009 and she is willing to face the enquiry proceedings and in that regard, she has sent a representation to the Director of Public Health and Preventive Medicine, Chennai on 11.07.2011 and that there is no progress in the enquiry proceedings. 3. In addition to the above, Mr.Ramesh Alias Ramiah, learned counsel for the petitioner submitted that so far, no enquiry officer has been appointed. He further submitted that though prosecution was launched against others, finding that there is no prima facie culpability, the petitioner has not been implicated as an accused. He also submitted that unexplained delay in conducting the departmental enquiry has caused great hardship and pendency of the same would also affect the right of the petitioner to be considered for promotion. Hence, she has filed the present Writ Petition for the relief stated supra. https://hcservices.ecourts.gov.in/hcservices/ 2 4. Considering the limited prayer sought for, Mr.T.S.Mohammed Mohideen, learned Additional Government Pleader was put on notice and heard. He submitted that disciplinary proceedings would be conducted and appropriate orders would be passed and he sought for three months time. His submission is placed on record. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. The charges levelled against the petitioner are as follows: "That the said Dr.M.Indira while functioning as Medical Officer, Primary Health Centre, Kurivikulam, Sankarankovil HUD has paved way for the malpractices and misappropriation of Government money to the tune of Rs.2,28,180/- due to lack of her supervision in the administration of Primary Health Centre, Kurivikulam, Sankarankovil District, found out during the Special Audit taken up by the Internal Audit Party of this office during the period from 01.4.2000 to 11.4.2006. Such act has made her unbecoming of Government servant which is violation of Rule 20 (1) of the Tamil Nadu Government Servants Conduct Rules, 1973." 7. The grounds for charge are extracted hereunder: "Grounds for charge: During the Special Audit on the Accounts of Primary Health Centre, Kurivikulam, Sankarankovil Health Unit District for the period from 01.4.2000 to 31.3.2006. It was revealed that serious malpractices and misappropriation of Government money to the tune of Rs.2,28,180/- was done by way of various description detailed in the abstract below. Dr.M.Indira was entrusted with the work of Drawing and Disbursing Officer at Government Primary Health Centre, Kurivikulam from 19.1.2005 to 7.2.2005 and from 23.5.2005 to till date she had signed in the TNTC 70 register column 7 and 12 and she had also vouchsafed the receipt of the money from the Sub Treasury. She had also attested the disbursement entries in the UDPR on the same day of encashment and also issued the certificate of payment. Her lack of supervision and non control over the administration of Primary Health Centre, Kurivikulam has led to the misappropriation of Government money to the tune of Rs.2,28,180/- which is violation rule 20(1) of Tamil Nadu Government Servant Conduct Rules." 8. Perusal of the charge memorandum dated 28.07.2009 issued by the Director of Public Health and Preventive Medicine, Chennai shows that to prove the charges, the respondent has intended to mark the special audit report. No witnesses have been cited. In any event, it is always open to the disciplinary authority to let in evidence by marking relevant documents and examining witnesses during enquiry. But, at the same time, the charged official should be given adequate time and reasonable opportunity to effectively defend the charges by going through the documents sought to be relied on by the department and if permissible, she should be furnished with copies of the documents, well in advance. The charge memorandum has been framed in the year 2009. As https://hcservices.ecourts.gov.in/hcservices/ 3 rightly contended by the learned counsel for the petitioner, the respondent cannot keep a charge framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, pending, without even appointing an enquiry officer. Needless to say that pendency of disciplinary proceedings under the above said rule, would certainly be an impediment, in case the petitioner reaches the zone of consideration for promotion to any higher post. 9. Courts have consistently held that inordinate delay in passing orders on the disciplinary proceedings would cause prejudice and in some cases, Courts have also quashed the whole proceedings. In such view of the matter, when the petitioner has voluntarily come forward to face the enquiry, it is the duty of the disciplinary authority to consider the explanation and if the disciplinary authority is not satisfied with the explanation dated 14.09.2009 offered, then the said authority should appoint an enquiry officer to enquire into the charges and arrive at a finding on the basis of the evidence. As rightly contended, more than two years had lapsed since the formulation of the charges. 10. In such view of the matter, there shall be a direction to the Director of Public Health and Preventive Medicine, Chennai, the respondent herein to consider the explanation of the petitioner dated 14.09.2009 and take a decision one way or the other, as observed earlier, and if the explanation is not satisfactory, appoint an enquiry officer as expeditiously as possible and complete the enquiry proceedings, within a period of three months from the date of receipt of a copy of this order. It is made clear that a fair and reasonable opportunity should be given to the petitioner, as per the procedure contemplated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. As the petitioner herself has come forward to participate in the enquiry, if any, ordered, she shall not protract the proceedings, except for any genuine and bona fide reasons. It is also made clear that if for any bona fide reasons, the enquiry proceedings ordered could not be completed, within the time frame, then it would not clothe any right to the petitioner to contend that the above said proceedings are deemed to have been closed. 11. With the above directions, the Writ Petition is disposed of. No costs. Sd/- Assistant Registrar (Crl.side) / True Copy / Sub Assistant Registrar To The Director of Public Health & Preventive Medicine, Chennai-6. +1CC TO MR.S.RAMESH @ RAMIAH, ADVOCATE SR : 31794 Sml : SR : 28.09.2011 : 3p/3c ORDER MADE IN W.P.(MD).No.10560 of 2011 16.09.2011 https://hcservices.ecourts.gov.in/hcservices/