IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.21887 of 2010 and M.P.Nos.1 and 2 of 2010 Mrs.K.Rose .. Petitioner Vs. 1.The Commissioner, Arakonam Municipality, Arakonam Town, Vellore District. 2.Mr.N.Rajkumar .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for a writ of certiorarified mandamus calling for the records connected with the charge memo in Na.Ka.No.H1/4255/2009, dated 9.4.2010 passed by the first respondent and quash the same as illegal, arbitrary and against the rules governing the services of the petitioner and consequently direct the first respondent to reinstate the petitioner into service as Maternity Assistant after revoking the order of suspension dated 25.1.2010. For petitioner : Mr. M.Venkatakrishnan For respondents : Mr.N.Senthil Kumar for R1 : No appearance for R2 O R D E R: By order dated 9.4.2010, the Commissioner of Arakonam Munnicipality, Arakonam Town, Vellore District has initiated disciplinary action by formulating certain charges. The said order is challenged in this writ petition. 2. The main contention of the writ petitioner is that she is a Maternity Assistant governed by the Tamilnadu Public Health Establishment (Disciplinary and Appeal) Regulations, 1976 and that the first respondent has no jurisdiction to suspend and initiate disciplinary proceedings, by invoking the provisions under the Tamilnadu Public Health Services (Disciplinary and Appeal) Rules, 1973, which has no application to the case of the petitioner. 3. In this context, learned counsel for the writ petitioner, has invited the attention of this Court to the provisions contained in Tamilnadu Municipal (Non-Centralised-Regular) Public Health Establishment Regulations 1976 and the Discipline and Appeal Regulations, 1977. He submitted that there is a jurisdictional error in initiating disciplinary proceedings against the writ petitioner. It is the further contention of the learned counsel for the petitioner that the lapses alleged to have been committed by the petitioner do not warrant suspension and considering the hardship caused by the petitioner, who is under prolonged suspension for nearly one year, a direction may be issued to the respondents to revoke the order of suspension pending disciplinary proceedings, if this Court is not inclined to quash the charge memorandum. 4. Learned counsel for the writ petitioner further submitted that there is no truth in the averments made in paragraph No.5 of the counter affidavit and the allegations against the petitioner had received bribe for issuing cheques to the beneficiaries under the Tamilnadu Scheme of pregnant ladies, is denied. It is also brought to the notice of this Court that the Assistant Commissioner of Arakonam Municipality has already initiated disciplinary proceedings and that the present Manager of the said Municipality, has been appointed as an enquiry officer to go into the allegations. For the above said reasons, he submitted that the impugned proceedings is liable to be set aside. 5. Per contra, based on the counter affidavit filed by the Commissioner, Arakonam Municipality, Mr.N.Senthil Kumar, learned counsel for the first respondent submitted that by invoking Section 8(1)(i) of the Tamilnadu Municipal Public Health Service (Discipline and Appeal) Regulations, 1973, the petitioner has been placed under suspension and lateron, charges were framed on 9.4.2010 and that the petitioner has been directed to submit his explanation within seven days. In response to the same, the petitioner has submitted her explanation on 15.4.2010 and thereafter sought for extension of time. He further submitted that while submitting her explanation along with the questionnaire form, the petitioner has sought for permission to cross examine the Commissioner of Arakonam Municipality, the first respondent herein and therefore, clarification was sought for from the Director of Municipal Administration, Chennai for appointment of enquiry officer. In these circumstances, the first respondent could not proceed with the enquiry and that therefore, vide letter dated 19.5.2010, extension of time was sought for. Subsequently, after exchange of correspondence between the Municipality and the higher authorities and vide letter dated 31.8.2010, the name of the first respondent was directed to be removed from the list of witnesses by the writ petitioner and thereafter, orders were issued to proceed with the enquiry. 6. Learned counsel for the first respondent further submitted that the petitioner wanted to cross examine the first respondent, who is the disciplinary authority himself and therefore, as the enquiry could not be proceeded, consequently, the suspension also continued. 7. Learned counsel for the first respondent further submitted that the erstwhile Commissioner of Arakonam Municipality had already been transferred and that the petitioner is also not interested in examining him. As on date, the 1st respondent has been appointed as enquiry officer and if there is co-operation by the petitioner, the same could be completed as expeditiously as possible, within the time fixed by this Court. He submitted that there is no jurisdictional error. For the abovesaid reasons, he prayed for dismissal of the writ petition. 8. Heard the learned counsel appearing for the parties and perused the materials available on record. 9. The constitution of Tamilnadu Municipal (Non Centralised Regular) Public Health Establishment Regulations, 1976, consists of 17 categories. The post of Maternity Assistant (Maternity and Child Health) falls in category No.1. The regulations have come into force on and from 1st August, 1973. Tamilnadu Municipal (Non Centralised Regular) Public Health Service (Discipline and Appeal) Regulations, 1973, is applicable to every member holding posts in any of the categories governed by the Tamil Nadu Municipal Public Health Service Regulations, 1973. The said regulations deal with the penalties and the procedure to be followed by the disciplinary authorities. 10. As rightly contended by the learned counsel for the writ petitioner, Tamil Nadu Municipal (Non Centralised Regular) Public Health Service (Discipline and Appeal) Regulations, 1973, is not applicable to the case of the petitioner, as the post of Maternity Assistant does not fall within the constitution of the service. 11. Though, the contention of the learned counsel for the writ petitioner is that the first respondent Commissioner of Municipality has erred in placing the petitioner under suspension in Section 8 1(i) of the Tamilnadu Municipal Public Health Service (Discipline and Appeal) Regulations, 1973 and consequently, initiated disciplinary proceedings against the petitioner under Section 9(2) of the abovesaid regulations, the fact remains that the Commissioner, Arakonam Municipality, the first respondent herein is the disciplinary authority to initiate action against the writ petitioner. Even assuming that the Tamilnadu Municipal (Non Centralised Regular) Public Health Establishment Regulations, 1976, ought to have invoked, is not disputed, inasmuch as the Commissioner of Arakonam Municipality has the competence to initiate disciplinary action against the petitioner, this Court is of the considered view that there is no jurisdictional error, in so far as placing the petitioner under suspension as, Courts have held that quoting wrong provision of law in the impugned order, would not vitiate the entire proceedings, so long as the said authority has competence to initiate disciplinary proceedings. 12. In such a view of the matter, having regard to the allegations levelled against the petitioner, this Court is not inclined to quash the proceedings. Useful reference can be extracted in N.Mani V. Sangeetha Theatres and Others, reported in (2004) 12 SCC 278, the Supreme Court at Paragraph 9, held as follows: "9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." In Ram Sunder Ram V. Union of India reported in 2007 (13) SCC 255:2007 (9) SCALE 197, it was held: "....It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law (see N.Mani V.Sangeetha Theatre and Ors. (2004) 12 SCC 278). Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the Learned Counsel for the appellant." The principles of law laid down in the abovesaid decisions have been affirmed in the recent decision of the Supreme Court in P.K.Palanisamy V. N.Arumugham reported in 2009 (9) SCC 173. 13. Though, the learned counsel for the petitioner has contended that the petitioner has been kept under suspension, since 9.4.2010 for nearly one year, pleadings and material on record disclose that since she wanted to cross examine the Commissioner of Arakonam Municipality, the first respondent herein, there were correspondence between him and the higher authorities, which had delayed the commencement of the enquiry proceedings for which, the respondent cannot be blamed. The Commissioner of Arakonam Municipality has appointed an enquiry officer and therefore, there is no impediment in concluding the disciplinary proceedings. It is also to be noted that the petitioner has also acquiesced himself to the departmental enquiry, but only wanted to cross examine the first respondent, who has since been transferred to some other stations. 14. In view of the above, the request for revocation of suspension at this juncture cannot be granted. At the same time, considering the delay as stated supra, which cannot be attributed to the first respondent, there shall be a direction to the first respondent to complete the enquiry, within a period of two months from the date of receipt of a copy of this order. The writ petitioner shall co-operate with the enquiry, for completion of the disciplinary proceedings. 15. With the above directions, the writ petition is disposed of. It is also to be noted that the prayer sought for in this writ petition is only to quash the disciplinary proceedings initiated on 9.4.2010 and that the order of suspension dated 25.1.2010 passed by the Commissioner of Arakonam Municipality was not put to challenge in this writ petition. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. aes To The Commissioner, Arakonam Municipality, Arakonam Town, Vellore District. + 1 cc to Mr.M. Venkatakrishnan, SR.9390 + 1 cc to Mr.N. Senthilkumar, Sr.9330 W.P.No.21887 of 2010 and M.P.Nos.1 and 2 of 2010 PA(CO) Eu 24.5.11