State of Tamil Nadu & Ors. v. Dr.S.Manimegalai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:02.04.2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN..WRIT APPEAL NO.239 of 2008and M.P.No.1 of 2008..1. State of Tamil Nadu rep. By the Secretary to Government, Health and Family Welfare (K1) Department, Fort St.George Chennai 600 009.2. The Director of Medical and Rural Health Services Chennai... Appellants/ Respondentsvs.Dr.S.ManimegalaiJoint Director of Health Services(Under Suspension)Ramanathapuram... Respondent/ Petitioner Writ Appeal is filed against the order of the learned singleJudge made in W.P.No.20857 of 2007 dated 22.06.2007.W.P.No.20857/07:- Petition filed u/ Art 226 of theConstitution of India to issuance of a writ of certiorarifiedmandamus to call for the records relating to the orders dated30.06.2006 in G.O.(D) No.578 No.579, Health and Family Welfare(K.1) Department on the file of the First Respondent herein quashthe same and consequently direct the First Respondent herein topermit the Petitioner to retire from service on and from30.06.2006 with all attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ For appellants: Mr.G.Sankaran Special Govt.Pleader (Edun.)For respondent : Mr.AR.L.Sundaresan,Sr.Counsel for Mrs.A.L.GandhimathiJUDGEMENTP.JYOTHIMANI,J.The writ appeal is directed against the order of the learnedJudge on the writ side, by which the learned Judge has set asidethe order impugned in the writ petition passed by the Governmentof Tamil Nadu, the first appellant herein in G.O.(D) Nos.578 and579 Health and Family Welfare Department, dated 30.06.2006.2. Under the said impugned Government Order, the respondentherein, original writ petitioner was placed under suspension onthe last date of her retirement, viz., 30.06.2006 and also notallowed to retire, since enquiry into grave charges against her iscontemplated. 3. It appears that as against the respondent there was anearlier order of suspension dated 05.08.2005 and charge memo dated26.10.2005 which was issued under Rule 17(b) of the Tamil NaduGovernment Servant (Discipline and Appeal) Rules. The allegationstherein were that the respondent demanded and accepted briberegularly every month at the rate of Rs.1,000/- per MedicalOfficer; that the respondent directed the Medical Officers tocollect and pay Rs.400/- each for male child born and Rs.300/-each for female child born in the Government Hospitals; that therespondent has collected Rs.2,000/- and Rs.5,000/- from Governmentemployees appearing before the Medical Board; and that therespondent has been instructing the patients to take X-rays fromoutside. 4. It is seen that the respondent has challenged the saidcharge memo as well as suspension order in W.P.No.2461 of 2006,and pending the said writ petition, the appellants have revokedthe order of suspension dated 05.08.2005 and the writ petitioncame to be disposed of by order dated 28.07.2006, by which thecharges were quashed on the ground that the charges are vague.The order passed in the said writ petition has admittedly becomefinal since no appeal has been filed against the same. When thesaid writ petition was pending, the present impugned order dated30.06.2006 came to be passed. https://hcservices.ecourts.gov.in/hcservices/

5. It is stated that the actual date of attainment ofsuperannuation of the respondent was 07.06.2006 and by virtue ofthe Fundamental Rules, especially Rule 56(1), the respondent wasallowed to work till the end of the said month, viz., 30.06.2006.6. The learned senior counsel appearing for the respondentwould rely upon the judgment of this Court in A.Bommusamy vs. TheGovernment of Tamil Nadu, rep. by its Secretary to Government,Co.operation, Food and Consumer Protection Department, FortSt.George, Chennai and others [2007 (3) CTC 518], to substantiatehis contention that when the actual date of retirement of therespondent was 07.06.2006, the impugned order of suspension dated30.06.2006, is not sustainable since by that time the respondenthas reached the age of superannuation and there was nothing to besuspended. It is true that this Court in the said judgment hasheld that when the date of retirement in that case was 11.03.1987,the suspension order came to be passed on 25.03.1987 by invokingG.O.173, is not valid.7. A reading of the above cited judgment makes it clear thatthis Court has not considered the Fundamental Rules, especially,Rule 56(1), which reads as under:"Rule 56(1) Retirement on Superannuation.-(a) Every Government servant in thesuperior service shall retire from service onthe afternoon of the last day of the month inwhich he attains the age of fifty-eight years.He shall not be retained in service after thatage except with the sanction of the Governmenton public grounds, which must be recorded inwriting but he shall not be retained after theage of sixty years except in very specialcircumstances.Provided that this clause shall not applyto Government servants who are treated as insuperior service for the purpose of theserules but as in the Tamil Nadu Basic Servicefor the purpose of pension. Such governmentservants as well as all basic servants shallretire on attaining the age of sixty years:Provided further that on and from the 1stJanuary 1993, a District Judge, Chief JudicialMagistrate, Subordinate Judge or DistrictMunsif-cum-Judicial Magistrate, who, in theopinion of the High Court, Madras, haspotential for continued useful service beyondthe age of fifty-eight years, shall retire https://hcservices.ecourts.gov.in/hcservices/ from service on attaining the age of sixtyyears."8. A reading of the above said Rule, which is undoubtedlybinding upon the respondent makes it clear that the respondent'sdate of retirement should be on the last day of the month in whichshe attained the age of 58 years, which was 30.06.2006. In suchview of the matter, it is not possible to accept the contention ofthe learned senior counsel that the suspension order passedagainst the respondent, should go on that ground.9. The learned Judge has set aside both the GovernmentOrders, viz., (i) order of suspension; and (ii) the order notallowing the respondent to retire on the ground that there was nocharge against the respondent at all since the charges framedearlier had been quashed. In the light of the said finding by thelearned Judge, the contention of the learned Special GovernmentPleader Mr.G.Sankaran, that fresh charges against the respondenthave been contemplated is not sustainable. A reference was madeby the learned Special Government Pleader to the proceedings ofthe Deputy Superintendent of Police, Vigilance, Pudukkottai,addressed to the Director of Medical Services, Chennai dated02.05.2006, in which there was a reference about the preliminaryenquiry conducted against the respondent at Pudukkottai on20.07.2004 and 21.07.2004 and according to him, the enquiryagainst the respondent has been pending for a long time andtherefore the contemplation of the same into disciplinary chargesagainst the respondent is well-founded. 10. The said argument cannot be accepted for the reason thatthe enquiry stated to have been conducted by the Director ofVigilance on 20th and 21st of July,2004 as it is seen in the letterdated 02.05.2006 has really culminated into the earlier suspensionas well as charge memo dated 05.08.2005 and 26.10.2005, which wasultimately revoked or set aside by this Court as stated above.Therefore, there is no point in stating as if the Vigilanceenquiry is still pending, especially in the circumstances theearlier order passed by this Court setting aside the charges hasbecome final.11. The one other submission by the learned SpecialGovernment Pleader is that, subsequent to the order of the learnedJudge which is questioned in this proceedings, the Secretary toGovernment, Department of Health in his proceedings dated10.07.2007 addressed to the Director of Medical and Rural Servicesand others has stated that certain allegations have been madeagainst the respondent, which according to the Secretary have tobe substantiated by the appropriate investigating authority. Areference to the said proceedings again makes it clear that the https://hcservices.ecourts.gov.in/hcservices/ proceedings only refers to various allegations and not to anyenquiry conducted. It is relevant to point out that in the saidletter there is a direction given to the concerned authority toenquire into the allegations against the respondent under theTamil Nadu Civil Services (Discipline and Appeal) Rules,1955 andsend its findings to the Government at an early date. This onlyshows that what is being contemplated in the letter dated10.07.2007 is at the preliminary stage while the respondentalready reached the age of superannuation by 30.06.2006. 12. Further, various allegations which are narrated in thesaid letter appears to be vague. For example, there are variousinstances mentioned to show that the respondent had receivedamounts as it was found in the earlier charge memo, but in thepresent letter, the names of the persons from whom the amounts hadbeen received are stated and the year is also mentioned. Eventhen the reading of the entire allegations makes it clear that theallegations are vague and there is absolutely no substance and itis not possible for the respondent/delinquent officer to give anyexplanation to such allegations at this point of time. In suchview of the matter, the contention of the learned SpecialGovernment Pleader that the subsequent charges are pending againstthe respondent is also not acceptable. In these circumstances, there is absolutely no ground tointerfere with the order of the learned single Judge.Accordingly, the writ appeal fails and the same is dismissed. Nocosts. Connected miscellaneous petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.khTo1.The Secretary Health and Family Welfare (K1) Department, Fort St.George Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Director of Medical and Rural Health Services Chennai.1 cc to Government Pleader, SR. 119091 cc to Mr.A.L. Gandhimathi, Advocate, SR. 12019 WRIT APPEAL NO.239 of 2008SSN (CO)kk 15/4