1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.12.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD).Nos.11722 and 11723 of 2011 Dr.T.Alagesan ... Petitioner both petitions Vs. 1.The Director of Medical & Rural Health Services, Teynampet, Chennai – 6. 2.The Joint Director of Health Services, 166, North Beach Road, Thoothukudi – 1. .... Respondents in both petitions The Director of Public Health and Preventive Medicine, Chennai – 6. .... Respondent in W.P.(MD)No.11723/2011 PRAYER IN W.P.(MD)No.11722/2011: Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned proceedings of the first respondent in his Ref.No.78000/E6/1/09, dated 23.08.2011, and Ref.No.190/E3/1/10, dated 06.09.2011, and the impugned order of the second respondent issued in his Ref.No.82/E2/11, dated 16.09.2011, and quash the same and direct the respondents not to disturb the petitioner from functioning as Chief Civil Surgeon / Hospital Superintendent and to pay the salary to the petitioner accordingly as it has been paid hitherto and granting such other and further relief. PRAYER IN W.P.(MD)No.11723/2011: Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari to call for the records relating to the impugned charge memo dated 04.08.2009 of the first respondent in Ref.No.55437/PHC-3/A3/2006-3 and quash the same. For Petitioner in both petitions : Mr.K.Vellaichamy For Respondents in both petitions : Mr.T.R.Janarthanan, AGP COMMON ORDER There are two writ petitions filed by the petitioner. Writ petition in W.P.(MD).No.11722 of 2011, is directed against the impugned orders passed by the first respondent, vide Ref.No.78000/E6/1/09, dated 23.08.2011, cancelling the refitment order in the cadre of Chief Civil Surgeon (Common/Special), and another order passed in Ref.No.190/E3/1/10, dated 06.09.2011, issuing posting order in the cadre of Senior Civil Surgeon (reversion), as well as against the impugned order passed by the second respondent, vide Ref.No.82/E2/11, dated 16.09.2011, recovering monetary benefits paid to him with effect from 23.10.2009. Writ petition in W.P. (MD).No.11723 of 2011, is directed against the charge memo issued by the first respondent in his Ref.No.55437/PHC-3/A3/2006-3, dated 04.08.2009. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Learned counsel appearing for the petitioner submitted that the petitioner was appointed as Assistant Surgeon in the year 1981 and his services were also regularized from 04.09.1981. On regularization of his service, on 04.09.1981, he became permanent staff and thereafter, he was promoted as Civil Surgeon, Senior Civil Surgeon, Residential Medical Officer and Superintendent. Now, the grievance of the petitioner is that when he was promoted to the post of Chief Civil Surgeon / Hospital Superintendent with effect from 23.10.2009, by order dated 12.02.2010, he cannot be reverted by order dated 06.09.2011, that too after two years. 3. He further submitted that the petitioner was promoted to the post of Chief Civil Surgeon / Hospital Superintendent, after verification of all the records by the higher authorities, therefore, it is not legally permissible for the respondents to say that the petitioner was promoted without knowledge of the pendency of disciplinary proceedings, for, the respondents, by using discretionary powers, can promote Government employee, even during pendency of disciplinary proceedings. Hence, the order of reversion cannot be effected without notice. Therefore, the order of recovery based on reversion cannot be legally sustainable, because no notice was given, either before the order of recovery is passed or before the order of reversion was issued to the petitioner. 4. Adding his further submission, he pleaded that earlier, based on the Audit Report for the period from 2003-2005, when the order of recovery was issued by Director of Public Health and Preventive Medicine, Chennai, in his proceedings dated 27.07.2006, without issuing any prior notice, the same was challenged by the petitioner by filing a writ petition in W.P.No.8870 of 2006, on the ground of violation of principles of natural justice. This Court, by order dated 27.09.2006, set aside the recovery dated 27.07.2006, with a liberty to the respondent to pass fresh orders, after complying with the principles of natural justice, if it is so warranted. When the order dated 27.09.2006, passed in W.P.No.8870 of 2006, made it clear that fresh orders has to be passed, only if it is so warranted, the respondent has to pass an order by issuing prior notice to the petitioner. But, without following the issuance of prior notice, merely on the basis that the petitioner was given promotion inadvertently by the respondents during the pendency of the 17(b) charges, the first respondent straight away passed the impugned order dated 23.08.2011, cancelling his promotion with retrospective effect from 23.10.2009 and demote him to the earlier post along with order of recovery to recover with effect from 23.10.2009. On that basis, he prayed for setting aside the impugned orders passed by the respondents 1 and 2. 5. Per contra, learned counsel appearing for the respondents submitted that while the petitioner was working as Medical Officer, Primary Health Centre, Kuruvikulam, Sankarankovil, he has paved way for the malpractices and misappropriation of General Provident Fund of the staff to a sum of Rs.62,040/-, due to lack of supervision, that was found out during the Special Audit undertook by the Internal Audit Party for the period from 01.04.2000 to 31.03.2006. The petitioner, being a Pay Drawing Officer, failed to check the non payment of GPF amount encashed to the staff members working under him. Without verification, he signed in the MTC 70 Register, Undisbursed Pay Register and Cash Book and also issued the certificate of payment, that was led to the misappropriation of Government fund to a sum https://hcservices.ecourts.gov.in/hcservices/ 3 of Rs.62,040/-. As a result, an order dated 27.07.2006, was passed by the Director of Public Health and Preventive Medicine, ordering recovery of the above said amount from the petitioner. Aggrieved by the said recovery order dated 27.07.2006, the petitioner has filed a writ petition in W.P. (MD).No.8870 of 2006, on the ground of violation of principles of natural justice, for not issuing any prior notice calling upon the petitioner to submit his explanations to the recovery order. This Court, by order dated 27.09.2006, set aside the order of recovery, with a liberty to the respondents to pass fresh orders, after complying with the principles of natural justice, if it is so warranted. In the light of the order passed by this Court, the recovery proceedings were ordered to be stopped by proceedings dated 30.10.2006. Subsequently, the petitioner was issued with a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, by the first respondent, in his proceedings dated 04.08.2009, and the same was also served upon him on 22.09.2009. When the charge memo issued under Rule 17(b) was pending, the Director of Medical and Rural Health Services, Chennai, in his proceedings dated 12.02.2010, has approved the list of 355 medical officers for refitment with effect from 23.10.2009 to the post of Chief Civil Surgeon. The petitioner's name was also found in Sl.No.78, among the list of 355 Senior Civil Surgeon refitted as Chief Civil Surgeons. Pursuant to the said proceedings, the petitioner was also refitted to the post of Chief Civil Surgeon (Common) with effect from 23.10.2009, in the same Government Headquarters Hospital, Kovilpatti. As he was given promotion erroneously during the pendency of 17(b) charges, the said fact was brought to the notice of the first respondent. As it is settled law that pendency of 17(b) charges is an embargo for promotion, the first respondent, by proceedings dated 23.08.2011, passed an order cancelling the promotion, that was wrongly given to the petitioner, for the reason that he was ineligible for promotion in view of 17(b) charges. On that basis, learned counsel for the respondents contended that when the petitioner was admittedly facing 17(b) charges, it was not brought to the notice of the respondents by the petitioner. However, on coming to know that the petitioner was erroneously given promotion, ignoring the pendency of 17(b) charges, the present impugned order dated 23.08.2011, was passed, cancelling promotion is absolutely in order and the same cannot be found fault with by the petitioner. It is also open to the petitioner to reclaim the benefit of promotion as and when 17(b) charges are vindicated on completion of the enquiry proceedings. With the aforesaid submissions, he prayed for dismissal of the present writ petitions. 6. Heard the learned counsel appearing on either side and perused the materials available on record. 7. Admittedly, the petitioner was issued with a charge memo dated 04.08.2009, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. On an earlier occasion, when the petitioner challenged the previous order of recover dated 27.07.2006, before this Court, this Court, by order dated 27.09.2006, passed in W.P.(MD).No.8870 of 2006, set aside the recovery order dated 27.07.2006, with a liberty to the respondents to pass fresh orders, after complying with the principles of natural justice, if it is so warranted. Resultantly, the first respondent, after ordering stoppage of recovery proceedings, in his order dated 30.10.2006, issued a charge memo dated 04.08.2009, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. When the 17(b) https://hcservices.ecourts.gov.in/hcservices/ 4 was pending, it has been repeatedly held by this Court as well as Apex Court that no Government servant, against whom 17(b) charges are pending, shall be given promotion, till the completion of the disciplinary proceedings, followed by the completion of punishment period, if any. Therefore, when it is not disputed by both sides that the petitioner was facing 17(b) charges, it is clear that the first respondent has inadvertently ignored the name of the petitioner and found the name of the petitioner at Sl.No.78, among the list of 355 Senior Civil Surgeons refitted as Chief Civil Surgeons. However, on coming to know that the petitioner was given the benefit of refitment to the post of Chief Civil Surgeon with effect from 23.10.2009, the first respondent, by order dated 23.08.2011, has recalled that order, by reverting him back to the same position i.e., Senior Civil Surgeon. 8. At this juncture, it is relevant to recall the submission made by the learned counsel for the petitioner, that the order of de-promotion posting the petitioner back to Senior Civil Surgeon, should have been passed after giving prior notice calling upon the petitioner as to why he should not reverted to the post of Senior Civil Surgeon. Though this argument appears to be a reasonable one, giving a formal notice to the petitioner as to why he should not be reverted to the post of Senior Civil Surgeon, as he was given promotion erroneously ignoring the 17(b) charges, could not improve the case of the petitioner, for, this is going to be a mere formality. After receipt of the notice, if he submits any explanation, that explanation is not going to help the petitioner to get over his disqualification, in view of undisputed pendency of 17(b) charges, which is disqualification for any incumbent to get promotion to higher post. Therefore, the argument advanced that prior notice has not been given before he was reverted to the post of Senior Civil Surgeon, is hardly carry any merits. 9. Further, in respect of the argument that the charge memo dated 04.08.2009 does not mention the list of witnesses examined against the petitioner also cannot be a ground for the petitioner to challenge the correctness of the issuance of charge memo, as the petitioner has to submit his detailed explanations and if the authority concerned thinks fit to drop the proceedings, it is for them to take a decision whether to proceed with 17(b) charges or not, inasmuch as it has been well settled by this Court as well as Apex Court in Union of India and another vs. Kunisetty Satyanarayana ((2006) 12 SCC 28) that a mere charge-sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order, which affects the right of any party, unless the same has been issued by a person having no jurisdiction to do so, for, it is always possible for the disciplinary authority to drop the proceedings, if the explanation of the petitioner is satisfactory. Further, the show cause notice is not a final order imposing any punishment. 10. In this context, it is relevant to extract the relevant portion of the judgment, which is as follows:- "A mere charge-sheet or show-cause notice does not give rise to any cause of actin, because it does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no https://hcservices.ecourts.gov.in/hcservices/ 5 jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry, the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or form some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter." 11. In view of the above, this Court is not inclined to interfere with the charge memo. Accordingly, the writ petition filed by the petitioner challenging the charge memo in W.P.(MD).No.11723 of 2011, fails and it is dismissed. However, in respect of W.P.(MD).No.11722 of 2011, this Court, for the reasons mentioned above, cannot interfere with the impugned orders dated 23.08.2011 and 06.09.2011, passed by the first respondent. However, in respect of recovery order dated 16.09.2011, as this Court has already set aside the previous order of recovery in W.P.(MD).No.8870 of 2006, with a liberty to the respondents to pass fresh orders after complying with the principles of natural justice and pursuant to the order of this Court, when a charge memo dated 04.08.2009, has been issued under Rule 17(b), the respondents cannot proceed to recover any amount from the salary of the petitioner, till the completion of the enquiry. Accordingly, writ petition No.11722 of 2011 is disposed of. No Costs. Consequently, connected miscellaneous petitions are closed. SD DEPUTY REGISTRAR ( WRITS ) /TRUE COPY/ ASST REGISTRAR rkm To 1.The Director of Medical & Rural Health Services, Teynampet, Chennai – 6. 2.The Joint Director of Health Services, 166, North Beach Road, Thoothukudi – 1. 3. The Director of Public Health and Preventive Medicine, Chennai – 6. 1CC TO THE SPL. GOVT PLEADER SR: 43221: D.M.::2012 :: JANUARY :: 02 Order in W.P.(MD).Nos.11722 and 11723 of 2011 5P:4C:: 10.12.2011 https://hcservices.ecourts.gov.in/hcservices/