Dr.D.Sundararajan v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.12.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.652 of 2008Dr.D.Sundararajan.. PetitionerVs.1. The State of Tamil Nadu rep. by its Secretary to Government Health and Family Welfare Department Fort St.George, Chennai – 600 009.2. The Director of Public Health and Preventing Medicine Chennai – 600 006.3. The Deputy Director of Health Service (Inquiry Officer), Vellore.4. The Collector Vellore District, Vellore. .. RespondentsPRAYER: Petition under Article 226 of the Constitution of India forissue of a writ of Certiorari to call for the records of the firstrespondent in G.O.(D) No.1262, Health and Family Welfare (D2)Department, dated 12.10.2007 and quash the same.For Petitioner:Mr.G.JeremiahFor Respondents:Mrs.Dakshayini ReddyGovernment AdvocateORDERThe writ petition is directed against the impugned order of thefirst respondent dated 12.10.2007, by which the first respondent hasimposed the punishment of stoppage of increment for a period of twoyears with cumulative effect on the petitioner.2.1. The brief facts leading to the passing of the impugnedorder are that the petitioner was originally serving as a MedicalOfficer in the Primary Health Center, Pudupet and he has applied tothe department on 10.6.1994 seeking permission to purchase a readybuilt house. He has entered into an agreement on 18.4.1994 with theowner, Tmt.Indirani Ammal to purchase the ready built house for Rs.4Lakhs and paid an amount of Rs.5000/- towards advance. https://hcservices.ecourts.gov.in/hcservices/

2.2. It is the case of the petitioner that the said Tmt.IndiraniAmmal, who is well known to the petitioner, without receiving thesale consideration has agreed to execute the sale deed andaccordingly, the sale deed was registered on 15.7.1994 in the name ofthe petitioner. It is stated that the second respondent by theproceeding dated 22.7.1996 has granted permission to purchase theproperty by obtaining a loan of Rs.2 Lakhs from the Government andreceiving Rs.2 Lakhs from his father.2.3. It is to mobilise funds for payment of consideration, thepetitioner has applied on 30.12.1994 for house building loan of Rs.2Lakhs through the third respondent. Along with the application, thepetitioner has also submitted the agreement, encumbrance certificatefor a period of 15 years and other documents. He has also obtained afresh agreement renewed from the vendor on 23.1.1997 and submittedthe same. The fourth respondent has sanctioned the advance on3.3.1997, after obtaining necessary documents, including mortgagedeed, etc. and the advance amount was withdrawn on 13.3.1997 by thepetitioner.2.4. It was thereafter the fourth respondent has issued a showcause notice to the petitioner on 14.7.1997 calling upon thepetitioner to show cause as to why the entire advance amount shouldnot be recovered. After the petitioner submitted his explanation,the fourth respondent has passed an order on 11.12.1997 directing theTahsildar, Walajah to recover the entire Rs.2 Lakhs from him underthe provision of the Revenue Recovery Act. 2.5. The said recovery proceedings of the fourth respondent waschallenged by the petitioner by approaching the Tamil NaduAdministrative Tribunal and during the pendency of the case, thepetitioner has repaid Rs.1 Lakh and the remaining amount has beenrecovered as per the order of the Tribunal directing recovery at therate of Rs.3000/- per month from the salary and therefore, withinterest the entire amount has been recovered.2.6. In the meantime, the second respondent has issued a chargememo against the petitioner on 2.1.1998, framing two charges whichare as follows:"Charge – I : That the said Dr.D.Sundararajan, MedicalOfficer, Primary Health Center, Pudupet had suppressedthe fact of purchasing the house by him prior to theapplication made for the sanction of House BuildingAdvance and thereby cheated the Government.Charge – II : That the said Dr.D.Soundararajan hasprepared a forgery document by extending the time limitfrom 23.1.1997 by affixing the signature of Tmt.Indirani https://hcservices.ecourts.gov.in/hcservices/ Ammal."2.7. The petitioner has submitted his explanation reiteratingthe stand that the vendor due to the intimate relationship hasexecuted the sale deed even without receiving the sale considerationand therefore, there was no suppression and he has never forged thesignature of the vendor. 2.8. It is stated that the third respondent was appointed asInquiry Officer to conduct enquiry and the petitioner hasparticipated in the enquiry. The case of the petitioner is thatduring the enquiry the third respondent has not produced or markedany documents and no witnesses were examined and that the thirdrespondent has acted as Inquiry Officer as well as PresentingOfficer. Even though the petitioner has denied the charges that hehas fabricated the documents, the third respondent has submitted areport holding that the charges are proved and thereafter, afternearly 8 years from the date of charge memo, the first respondent haspassed the impugned order of punishment, which is challenged on thegrounds that it is opposed to the principles of natural justice; thatit is passed without application of mind; that the Inquiry Officerhas not conducted enquiry in the manner known to law; that nodocuments were marked and witnesses were examined so as to enable thepetitioner to defend himself; that the enquiry has been conductedtotally in violation of the mandatory procedure contemplated underRule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)Rules; and that the grave charges of forgery and suppression havebeen held proved against the petitioner without any evidence and onsurmises.3.1. In the counter affidavit filed by the first respondent, itis stated that the petitioner has applied to the fourth respondent on30.12.1994 for an advance of Rs.2 Lakhs for the proposed purchase ofa ready built house in S.No.668/B, Karai Village from oneTmt.Indirani Ammal by enclosing the agreement dated 18.4.1994, bywhich the said Tmt.Indirani Ammal has agreed to sell the house to thepetitioner, apart from encumbrance certificate, plan, legal opinion,valuation report, etc. The petitioner was thereafter directed toproduce the parent documents, which it is stated that the petitionerproduced and subsequently, the fourth respondent issued order on3.3.1997 sanctioning the advance amount of Rs.2 Lakhs for purchase ofthe said house and the amount was released on 10.3.1997. 3.2. As per Rule 5(3) of the House Building Advance Rules, anagreement has to be entered in Form No.5 and within two months fromthe date of receipt of advance amount, the ready built house must beacquired and the same should be mortgaged to the Government withinsix months time. It is stated that based on the said Rule, thepetitioner has submitted the sale deed No.2511 of 1994 along with theletter and the same was received by the fourth respondent on https://hcservices.ecourts.gov.in/hcservices/

14.5.1997. On scrutiny it was found that Tmt.Indirani Ammal hasalready sold the said house to the petitioner on 15.7.1994, which isbefore the date of application for advance, viz., 30.12.1994. It wasfound that in the encumbrance certificate produced by the petitionerthere was no entry about the sale deed executed in favour of thepetitioner on 15.7.1994 and the sale deed produced by the petitionerbefore the respondents was found to be with forged signature ofTmt.Indirani Ammal, while compared with the earlier agreement dated18.4.1994 and therefore, the charges of suppression as well asforgery were framed.3.3. In respect of the nature of enquiry conducted by the thirdrespondent, it is stated in paragraph (15) of the counter affidavitthat the Inquiry Officer has conducted enquiry by recording oralstatements in the presence of the petitioner and since personalhearing was opted by the petitioner, personal enquiry was conductedand the petitioner has given a written statement on 16.8.2005 statingthat he was satisfied regarding the personal hearing and therefore,on the basis of the documentary evidence and oral deposition given bythe petitioner, the Inquiry Officer has given his report concludingthat charges are proved. The said paragraph in the counter affidavitin respect of the second charge is as follows: "Further, thepetitioner has denied the second charge that he has produced forgerydocument, but he has not produced any valid points". It is furtherstated that on comparison of the signature of Tmt.Indirani Ammal inthe original sale agreement dated 18.4.1994 and the sale deedproduced by the petitioner on 15.7.1994 along with the subsequentagreement dated 23.1.1997 produced for the purpose of obtaining loanit was found that the signatures were different and therefore,presumed that the petitioner has forged the signature.3.4. It is admitted that the third respondent has completed theoral enquiry in the year 2000 and thereafter, the second respondenthas remitted the matter to the first respondent for passing finalorders in February, 2002 and the first respondent has passed theimpugned order in the year 2007. The reason given for the delay isthat certain particulars of the present stage of the OriginalApplication filed by the petitioner against the recovery order issuedby the fourth respondent and the recovery details of the petitionerwere called for and in that regard there was delay. It is also statedthat the cause for the delay was due to administrative reasons andnot wilful intention of the respondents. It is further stated thatfull opportunity has been given to the petitioner.4. The short point that is to be taken note of on the facts andcircumstances of the present case is about the nature of enquirystated to have been conducted by the third respondent/InquiryOfficer. The charges against the petitioner were under Rule 17(b) ofthe Tamil Nadu Civil Services (Discipline and Appeal) Rules, whichis as follows: https://hcservices.ecourts.gov.in/hcservices/ "Rule 17 (b) (i) Without prejudice to the provisions ofthe Public Servants' Inquiries Act, 1850, (Central ActXXXVII of 1850), in every case where it is proposed toimpose on a member of a service or on a person holding aCivil Post under the State any of the penaltiesspecified in items (iv), (vi), (vii) and (viii) in rule8, the grounds on which it is proposed to take actionshall be reduced to the form of a definite charge orcharges, which shall be communicated to the personcharged, together with a statement of the allegation, onwhich each charge is based and of any othercircumstances which it is proposed to take intoconsideration in passing orders on the case. He shall berequired, within a reasonable time to put in a writtenstatement of his defence and to state whether he desiresan oral inquiry or to be heard in person or both. Anoral inquiry shall be held if such an inquiry is desiredby the person charged or is directed by the authorityconcerned. Even if a person charged has waived an oralinquiry, such inquiry shall be held by the authorityconcerned in respect of charges which are not admittedby the person charged and which can be proved onlythrough the evidence of witnesses. At that inquiry oralevidence shall be heard as to such of the allegations asare not admitted, and the person charged shall beentitled to cross-examine the witnesses to give evidencein person and to have such witnesses called, as he maywish, provided that the officer conducting the inquirymay, for special and sufficient reason to be recorded inwriting, refuse to call a witness. Whether or not theperson charged desired or had an oral inquiry, he shallbe heard in person at any stage if he so desires beforepassing of final orders. A report of the inquiry orpersonal hearing (as the case may be) shall be preparedby the authority holding the inquiry or personal hearingwhether or not such authority is competent to impose thepenalty. Such report shall contain a sufficient recordof the evidence, if any, and a statement of the findingsand the grounds thereof. Whenever any inquiringauthority, after having heard and recorded the whole orany part of the evidence in an inquiry ceases toexercise jurisdiction therein, and is succeeded byanother inquiring authority which has, and whichexercises such jurisdiction, the inquiring authority sosucceeding may act on the evidence so recorded by itspredecessor or partly recorded by its predecessor andpartly recorded by itself;Provided that if the succeeding inquiring authority is https://hcservices.ecourts.gov.in/hcservices/ of the opinion that further examination of any of thewitnesses whose evidence has already been recorded isnecessary in the interest of justice, it may recall,examine, cross-examine and re-examine any such witnessesas hereinbefore provided:Provided further that where there is a complaint ofsexual harassment within the meaning of rule 20-B of theTamil Nadu Government Servants’ Conduct Rules, 1973, theComplaints Committee established in each GovernmentDepartment or Office for inquiring into such complaints,shall be deemed to be the inquiring authority appointedby the Disciplinary Authority for the purpose of theserules and the Complaints Committee shall hold theinquiry as far as practicable in accordance with theprocedure laid down in these Rules.Provided also that the Government Servant may take theassistance of any retired Government servant to presentthe case on his behalf but may not engage a legalpractitioner for the purpose unless the inquiringauthority is a legal practitioner or the inquiringauthority, having regard to the circumstances of thecase, so permits.Explanation .- The Government servant shall not take theassistance of any retired Government servant who has twopending disciplinary cases on hand, in which he has togive assistance. (ii) After the inquiry or personal hearing referred toin clause (i) has been completed, the authoritycompetent to impose the penalty specified in thatclause, is of the opinion, on the basis of the evidenceadduced during the inquiry, that any of the penaltiesspecified in rule 8 should be imposed on the personcharged, it shall, before making an order imposing suchpenalty, furnish to him a copy of the report of theinquiry or personal hearing or both, as the case may be,and call upon him to submit his further representation,if any, within a reasonable time, not exceeding fifteendays. Any representation received in this behalf withinthe period shall be taken into consideration beforemaking any order imposing the penalty, provided thatsuch representation shall be based on the evidenceadduced during the inquiry only. It shall not benecessary to give the person charged any opportunity ofmaking representation on the penalty proposed to beimposed; https://hcservices.ecourts.gov.in/hcservices/ Provided that in every case where it is necessary toconsult the Tamil Nadu Public Service Commission, thedisciplinary authority shall consult the Tamil NaduPublic Service Commission for its advice and such adviceshall be taken into consideration before making an orderimposing any such penalty:Provided further that in the case of a person appointedto a post in a temporary department by transfer from anyother class or by recruitment by transfer from any otherservice, the State Government may, at any time beforethe appointment of such person as a full member to thesaid post, revert him to such other class or service,either for want of vacancy or in the event of hisbecoming surplus to requirements or if the StateGovernment are satisfied that he has not got thenecessary aptitude for work in the said post, withoutobserving the formalities prescribed in this sub-rule."(emphasis supplied)5. The said Rule contemplates the manner in which the enquiry isto be conducted. As per the said Rule, it is clear that the chargesagainst the delinquent officer are to be proved by the department andthat should be by way of producing documents and bringing inwitnesses so as to enable the petitioner to cross-examine as a matterof substantial defence. 6. On the facts of the present case, it is clear that the thirdrespondent during the enquiry has not examined any witnesses and notmarked any documents, including the sale deed stated to have beenobtained by the petitioner from Tmt.Indirani Ammal on 15.7.1994produced by the petitioner at the instance of the respondents forscrutiny and the said document has also not been marked in thedisciplinary proceedings and it is not the case of the thirdrespondent that Tmt.Indirani Ammal has made any complaint aboutforgery of her signature. In the absence of any evidence, the thirdrespondent/Inquiry Officer has concluded that both the charges areproved on the basis that as per the sale deed produced by thepetitioner he has purchased the property on 15.7.1994, while he hasmade an application on 30.12.1994 for advance and observed that nofurther document or evidence is required, forgetting the fact thatthe petitioner has in fact offered explanation that the purchase waseffected on 15.7.1994 without paying the sale consideration to thevendor since she was closely associated with the petitioner and itwas for the purpose of payment of the sale consideration theapplication for loan was made on 30.12.1994. This relevant pointwould have been taken into consideration by the Inquiry Officer onlyif proper enquiry was conducted. This is relevant to show theintention of the petitioner whether it amounts to suppression or notand that would be the basis to decide the delinquency on the part of https://hcservices.ecourts.gov.in/hcservices/ the petitioner if any.7. More curiously, with regard to the second charge which isgrave, where there is an allegation of forgery, the finding has beenarrived at by the Inquiry Officer on the basis of presumptions andassumptions on comparing the sale agreement dated 18.4.1994 with thesale deed dated 15.7.1994 and the subsequent sale agreement dated23.1.1997. By such comparison of documents, the thirdrespondent/Inquiry Officer acting himself as an expert has arrived ata conclusion that there is a difference in the signatures ofTmt.Indirani Ammal from the sale deed dated 15.7.1994 and 23.1.1997and therefore, it is presumed that the petitioner has committedforgery. Such a grave charge is stated to have been proved byassumptions and presumptions without any evidence being placed beforethe Inquiry Officer, without even marking documents and putting thesame to the petitioner as evidence. On the face of it, there is nodifficulty to conclude that there is a gross violation of theprocedure for conducting enquiry as enumerated under Rule 17(b) ofthe Tamil Nadu Civil Services (Discipline and Appeal) Rules and onthis score itself the entire disciplinary proceedings is liable to beset aside.8. In the latest judgment in State of Uttaranchal and others v.Kharak Singh, [2008] 8 SCC 236, P.SATHASIVAM,J., while reiteratingthe nature of enquiry to be conducted in disciplinary proceedings,after discussing various judgments on the issue, has laid down thefollowing principles:"15. From the above decisions, the following principleswould emerge:i) The enquiries must be conducted bona fide and caremust be taken to see that the enquiries do not becomeempty formalities.ii) If an officer is a witness to any of the incidentswhich is the subject matter of the enquiry or if theenquiry was initiated on a report of an officer, then inall fairness he should not be the Enquiry Officer. Ifthe said position becomes known after the appointment ofthe Enquiry Officer, during the enquiry, steps should betaken to see that the task of holding an enquiry isassigned to some other officer.iii) In an enquiry, the employer /department should takesteps first to lead evidence against theworkman/delinquent charged, give an opportunity to himto cross-examine the witnesses of the employer. Onlythereafter, the workman/delinquent be asked whether hewants to lead any evidence and asked to give any https://hcservices.ecourts.gov.in/hcservices/ explanation about the evidence led against him. iv) On receipt of the enquiry report, before proceedingfurther, it is incumbent on the part of thedisciplinary/punishing authority to supply a copy of theenquiry report and all connected materials relied on bythe enquiry officer to enable him to offer his views, ifany."9. Under similar circumstances, a Division Bench of this Courtconsisting of D.Murugesan and K.Venkataraman,JJ. by judgment dated1.7.2009 in W.A.No.736 of 2008 (R.Padmaraj v. The Senior RegionalManager, TNCSC Ltd., Thanjavur Region, Thanjavur and 2 others) hasheld as follows:"5. Rule 1 of Chapter V of the Tamil Nadu Civil SuppliesCorporation Employees Service Regulations, 1989 relatesto the imposition of major penalty and minor penalty.Rule 1(b)(i) relating to the withholding of incrementwith cumulative effect for a specific period iscategorised as a major penalty. To this extent, thereis no dispute on either side. When once the punishmentof stoppage of increment for a period of two years withcumulative effect is a major penalty, certainly theappellant is entitled for an enquiry before suchpunishment is imposed. It is seen that though a chargememo was issued and an enquiry officer was appointed, nowitnesses were examined and no documents were marked.The delinquent employee, viz., the appellant wasquestioned by the enquiry officer and the order ofpunishment was imposed on the basis of the finding.Such an enquiry cannot be considered to be in compliancewith the procedures requiring for a detailed enquirybefore the imposition of major penalty."10. Applying the ratio laid down in the above said decisions tothe facts of the present case, the enquiry conducted by the thirdrespondent has to be held as totally opposed to principles of naturaljustice, all canons of law and more particularly, the procedurecontemplated under Rule 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. It is unfortunate that the firstrespondent has not chosen to take note of such a serious illegalitycommitted by the third respondent in conducting enquiry. It is to beremembered that when grave charges are made against the delinquentofficer, especially in this case, a Government Doctor holding aresponsible position, the respondents should have been careful inproving the case against the petitioner with proper evidenceotherwise, the prejudice that may be caused to the delinquent isenormous which cannot be compensated. The lethargic way in which thethird respondent has conducted enquiry is not only tainted with https://hcservices.ecourts.gov.in/hcservices/ illegality, but is a gross injustice to the petitioner, especiallywhen the petitioner has denied both the charges.11. There is one another aspect to be considered in this case.Admittedly, the third respondent has completed enquiry in the year2000 itself, but the first respondent has taken nearly 8 years forpassing the impugned order of punishment. The delay has not beenexplained at all. The only reason adduced is administrative reasons,which cannot be a ground at all when such unexplained delay wouldresult in gross prejudice to the delinquent officer, as it was heldin P.V.Mahadevan v. M.D., Tamil Nadu Housing Board, 2005 (4) CTC 403:"14. Under the circumstances, we are of the opinion thatallowing the respondent to proceed further with thedepartmental proceedings at this distance of time willbe very prejudicial to the appellant. Keeping a highergovernment official under charges of corruption anddisputed integrity would cause unbearable mental agonyand distress to the officer concerned. The protracteddisciplinary enquiry against a government employeeshould, therefore, be avoided not only in the interestsof the government employee but in public interest andalso in the interests of inspiring confidence in theminds of the government employees. At this stage, it isnecessary to draw the curtain and to put an end to theenquiry. The appellant had already suffered enough andmore on account of the disciplinary proceedings. As amatter of fact, the mental agony and sufferings of theappellant due to the protracted disciplinary proceedingswould be much more than the punishment. For the mistakescommitted by the department in the procedure forinitiating the disciplinary proceedings, the appellantshould not be made to suffer."12. In such circumstances, I am not inclined even to remand thematter to the respondents for fresh enquiry and this is not a casewhere such remand can serve any purpose, since the matter pertains toallegations made ten years back and it is admitted that the amount ofadvance has been repaid by the petitioner to the respondents. Thus,looking from any angle, I am of the considered view that the impugnedorder suffers from gross illegality and therefore, the impugned orderof the first respondent stands set aside. The writ petition isallowed. No costs. Consequently, M.P.No.1 of 2008 is closed.Sd/-Asst. Registrar//true copy//Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sasiTo:1. The Secretary to Government State of Tamil Nadu Health and Family Welfare Department Fort St.George, Chennai – 600 009.2. The Director of Public Health and Preventing Medicine Chennai – 600 006.3. The Deputy Director of Health Service (Inquiry Officer), Vellore.4. The Collector Vellore District, Vellore.1 cc to M/s.G.Jeremiah, Advocate, Sr.No.678462 cc to Government Pleader, Sr.No.67918,68028W.P.No.652 of 2008KK {CO}TP/17.12.2009.