IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.04.2010 CORAM: THE HON'BLE MR.JUSTICE B.RAJENDRAN W.P.No.33043 of 2006 (OA.No.5131/98) E.S.Mariappan ... Petitioner Vs. 1. The Director of Medical Education, Chepauk, Chennai – 600 005. 2. The Principal, Chengalpattu Medical College, Chengalpattu. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.5131 of 1998 from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records in connection with the order of Compulsory Retirement passed by the first respondent in his proceedings Na.Ka.No.120238/CMaP 2(2) / 93 dated 11.06.98 and set aside the same. For Petitioner : Mr.G.Dhamodharan For Respondents : Mrs.Lita Srinivasan Government Advocate O R D E R The petitioner, who was an Ex-service man, was given the post of Sergeant by the Government of Tamil Nadu and he was appointed as Sergeant in Government Kasturba Gandhi Hospital for Women and Children, Chennai on 03.09.1990. He was served with a Charge Sheet on 18.07.1991 stating that he had handed over a body of one Smt. Selvi to her husband, which is a Medical legal case, without observing the required formalities and without obtaining permission from higher authorities. Further, the petitioner has added a word 'No' in the column 'Police Case', which is a serious in nature. Consequent to the Charge memo, he was served with suspension order along with Thiru.Musalaya, Sanitary Maistry, who was in charge of the mortuary ward at that time. Based on the Charge Memo, enquiry was conducted by the Superintendent of Government Kasturba Gandhi Hospital for Women and Children. On completion of the enquiry, the petitioner's suspension order was revoked by the authorities. The Enquiry Officer concluded the enquiry and passed a punishment order dated 09.04.1992 stating that the period of suspension would be treated as Punishment and further suspension/punishment period would not be considered for computation of his pension after retirement. However, the petitioner did not prefer any appeal against the order https://hcservices.ecourts.gov.in/hcservices/ of the Disciplinary authority. Thereafter, after a period of two years, the first respondent issued a show cause notice dated 31.05.1994 under Rule 36 read with 14 of the Tamil Nadu Civil Service (Classification, Control and Appeal) Rules as to why the punishment should not be increased . The petitioner sent a reply dated 04.07.1994 seeking to furnish certain documents namely Police Report, Station Medical Officers' Report and Assistant Surgeons' Report so as to enable him to submit a detailed explanation. Since the documents were not furnished, the petitioner has filed an Original Application before the Tribunal and the same was disposed of with an observation that all the necessary documents should be furnished to the petitioner in accordance with law. Thereafter, after a lapse of three years from the date of show cause notice, a second enquiry officer was appointed and who conducted enquiry. Even then, the documents sought for by the petitioner were not furnished and ultimately, based on the enquiry officer report dated 19.11.1997, the first respondent passed the impugned order dated 11.06.1998 compulsorily retiring the petitioner from service. Aggrieved against the same, the petitioner has come forward with this application before the Tribunal. 2.a) The respondents have filed a reply affidavit. In the reply affidavit, it was stated that the charge against the petitioner was very serious in nature. On 01.06.1991, the petitioner had handed over the body (Medico-legal case) to her husband without obtaining clearance from the Police and without specific orders of the Resident Medical Officer and Assistant Resident Medical Officer who were on duty at that time. After knowing the fact, the Resident Medical Officer of Government Kasturba Gandhi Hospital for Women and Children, Chennai, immediately proceeded to Kilpauk Medical College Hospital, Chennai, for investigation wherein it was reported that the body of deceased Tmt.Selvi has been confiscated by Police authority (T.B.Chattram Police) at her residence and kept in the Kilpauk Medical College Hospital, Mortuary for post-mortem. It has been reported that the petitioner had made the following malpractices and falsificating the Government records. (i) He by altering the death certificate of Tmt. Selvi by adding the word 'No' and released the body to her husband by earmarking 'No Police case'. (ii) Later he went to the residence of the deceased, obtained the death certificate and scored out the word 'No'. (iii) Due to his guilty conscience he visited the police station at T.P.Chattram, Anna Nagar, Chennai, and residence of the deceased lady Selvi with ulterior motive to falsificate the death certificate/Government Records. b) Therefore, charge were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules vide charge memo No.2691/E3/91, dated 18.07.1991. After the punishment was imposed, the Inspection cell of this Directorate has examined the disciplinary proceedings initiated against the petitioner and others. Based on the report of the Inspection Cell, the Director of Medical Education being the appellate authority, has decided to review the case under Rule 36 of Tamil Nadu Civil Services (Discipline and Appeal) Rules, and decided for enhancing the penalty. Accordingly, a show cause notice was issued and for the show cause notice, he did not submit https://hcservices.ecourts.gov.in/hcservices/ his explanation, instead approached the Tamil Nadu Administrative Tribunal and filed O.A.No.3711 of 1994 and it was dismissed. In that order, it was further observed that the requirement under Rule 17(b) of Tamil Nadu Civil Service (Discipline and Appeal) Rules should be complied with for awarding any specified penalty thereon. After the said dismissal of the original application, the petitioner filed another O.A.No.5882 of 1994 before the Tamil Nadu Administrative Tribunal, with a prayer to quash the disciplinary proceedings initiated against him. While dismissing the O.A.No.5882 of 1994 on 16.12.1994, the Tribunal held that the initiation of penalty proceedings is not irregular and when the petitioner has not appealed against the punishment award, he is in effect deemed to have accepted the findings on the charges. It was further observed that the documents and statement of witnesses in support of the charges should be furnished to the petitioner to enable him to put forward his defence and accordingly copies of document were served to the petitioner during May 1995 itself. He was also given a reasonable opportunity to peruse the available records and he perused the records on 12.12.1996. The another enquiry officer was nominated and he conducted enquiry and personal hearing was given to the petitioner and on 20.08.1997 the enquiry officer submitted his report and concluded that all the three charges levelled against the petitioner are proved and that was communicated to the petitioner vide letter dated 10.12.1996 and his further representation sought. Even in the further representation submitted by the petitioner on 03.01.1998, he did not putforth any fresh points for consideration. Therefore, the Director of Medical Education who is the appellate authority has carefully and independently examined the relevant case under Rule 36 of Tamil Nadu Civil Services (Discipline and Appeal) Rules and awarded the enhanced penalty. It is submitted that imputations made against the petitioner were extremely serious. While handling the Medico-legal case, the petitioner had acted in a careless and high handed manner by overlooking the Resident Medical Officer and Police authorities and he had handed over the body of Tmt. Selvi to her husband on 01.06.1991. Being an Ex-serviceman, he failed to discharge his duty honestly. He has deliberately violated the well- settled procedure and code rules. Therefore, the appellate authority imposed the penalty of "Compulsory Retirement" and accordingly, he was retired from service on the afternoon on 18.06.1998. Furthermore, the petitioner was placed under suspension with effect from 02.06.1991 and followed all the formalities. In so far as the enquiry is concerned the enquiry officer has scrupulously followed all the procedures and the petitioner was given sufficient opportunity. The petitioner also did not prefer any appeal against the punishment order and he accepted the same therefore, it is not open now for the petitioner to challenge this order, especially, he failed to challenge the disciplinary proceedings. Under those circumstances, the order passed by the appellate authority is valid. 3. Heard both parties. Learned counsel appearing for the petitioner specifically argued three points. 1) He would contend that the second enquiry ordered by the first respondent is illegal and against Rule 36 therefore the entire proceedings are vitiated. https://hcservices.ecourts.gov.in/hcservices/ 2) The first respondent namely Director of Medical Education is a appellate authority who has got no power of review. Therefore, the order passed by him is illegal. 3) Even if it is a revision, the order passed by the disciplinary authority has to be reviewed within a six months period but the same was not done in this case, hence, the order passed by the first respondent is illegal. 4. It is an admitted case that the petitioner, who was an Ex- service man and appointed as Sargent, has handed over a body, which is a Medico legal case, to her husband without observing the formalities and without getting necessary permission from the Resident Medical Officer or the Medical Officer and Assistant Medical Officer and also without obtaining necessary permission from the Police authorities. The charge against the petitioner was that he has indulged in falsificating the Government records by inserting the word "No Medical legal case" and gone to the house of the said person and corrected the death certificate by scoring out the word 'No'. The petitioner also visited the police station and residence of the deceased lady Selvi with ulterior motive to falsificate the death certificate/Government Records. Taking into consideration of the charge levelled against the petitioner, which is very serious in nature, an enquiry was conducted by the superintendent of Hospital and he had only given a lenient punishment of treating the suspension period as Punishment. But it is also admitted that the petitioner did not prefer any appeal, thereby accepted the findings and also the penalty. Thereafter, when the inspection cell of the Directorate examined the Disciplinary Proceedings, it was found the punishment was totally disproportionate to the offence made out. Hence, it was recommended for a review. In this regard, a report was submitted and based on the report, the Director of Medical Education, being the appellate authority, decided to take up the revision of the matter. In this connection, a show cause notice was issuedas per Rule 36 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Therefore, the first respondent intended to revise the order passed by the disciplinary authority on the basis of a report, under Rule 36. Rule 36 relates to suo motu revision of an order passed by the appellate authority or higher authority, when no appeal is preferred. Rule 36 reads as follows:- "Revision. Notwithstanding anything contained in these Rule- i) The State Government or ii) The Head of the Department directly under the State Government, in the case of Government servant serving in a Department or office under the department, or department iii) the appellate authority other than the State Government within six months from the date of the order proposed to be revised or iv) any other authority specified in this behalf by the State Government by general as such special order, and within such time as may be prescribed in such general or special order, may https://hcservices.ecourts.gov.in/hcservices/ at any time either on their or its own motion or otherwise call for the records of any inquiry and after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary and revise any order made under these rules, may (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case or (d) pass such other orders as they or it may deem fit. 5. Therefore, as per Rule 36, it is very clear that the revision can be done by the State Government or the Head of the Department or by the appellate authority other than state Government within 6 months from the date of the order to be revised. It is also stipulated that " any other authority specified in this behalf by the State Government by general as such special order, and within such time as may be prescribed in such general or special order, may at any time either on their or its own motion or otherwise call for the records of any inquiry and after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary and revise any order made under these rules, may confirm, modify or set aside the order; or confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or remit the case to the authority which made the order or to any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case or pass such other orders as they or it may deem fit. The revisional authority was also given power to confirm, reduce, enhance or set aside the penalty imposed by the disciplinary authority. The power is vested with the Government as well as the department or any other authorities specified by the Government to review an order and the time limitation is restricted only to the appellate authority, when there is an appeal pending and in the case where there is no appeal pending, the authority has got power to revise the order at any time either at his discretion or otherwise. 6. In this case, on the basis of the inspection report, the first respondent thought it fit to enhance the punishment imposed on the petitioner by invoking Rule 36 of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules for which the first respondent is definitely having power by virtue of Clause 2 of Rule 36 which says "Head of the Department directly under the State Government, in the case of Government servant serving in a Department or office under the department, or department". As far as the period of six months specified therein is concerned, it will be applicable only if there is an appeal filed against the order of punishment imposed by the disciplinary authority. In this case, admittedly, the petitioner has https://hcservices.ecourts.gov.in/hcservices/ not filed any appeal as against the order passed by the disciplinary authority and accepted that the period of suspension shall be treated as punishment. 7. It is seen from the records that while invoking the Rule 36, the first respondent has complied with all the formalities required and imposed the punishment of compulsory retirement. In any view of the matter, taking into consideration the gravity of the charge, especially the petitioner, an Ex-service man had handed over the body relating to a Medicol Legal case and altering the Government records, the punishment imposed is commensurate with the offence made and this Court is of the view that interference is not warranted. Moreover, the petitioner is already more than 62 years old, therefore, the prayer sought for in this writ petition cannot be granted. 8. In the result, the writ petition is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ogy/rsh To 1. The Director of Medical Education, Chepauk, Chennai – 600 005. 2. The Principal, Chengalpattu Medical College, Chengalpattu. 1 cc To The Government Pleader, SR.23883. 1 cc To Mr.Dhamodhiran, Advocate, SR.24058. W.P.No.33043 of 2006 NG(CO) RVL 16.09.2010 https://hcservices.ecourts.gov.in/hcservices/