Dr.G.Ravi VarmanDirector,Institute of Community Medicine,Madras Medical College,Chennai 600 003. v. Government of Tamil Nadu,

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.11..2009CORAMTHE HONOURABLE MR. JUSTICE T.RAJAW.P.No.10858 of 2009andM.P.Nos.1 and 2 of 2009Dr.G.Ravi VarmanDirector, Institute of Community Medicine, Madras Medical College, Chennai 600 003.(In the cadre of Additional Director of Public Health and Preventive Medicine).... PetitionerVs.

Government of Tamil Nadu, Rep. by its Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai 600 009.

The Director of Public Health and Preventive Medicine, Chennai 600 006.

Dr.S.Elango, Director of Public Health and Preventive Medicine, Chennai 600 006.

Dr.Padmanabhan, Retired Director of Public Health and Preventive Medicine, Flat-A, Shree Apartments, 219, IV Avenue, Indira Nagar, Chenai 600 020.... RespondentsPetition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the entire records relating to (i) charge memo inR.No.108125/DA/04/S1, dated 22.04.2008 of the 2nd respondent , (ii)Letter No.24489/L2/2008-3, dated 10.07.2008 of the 1st respondent /Government and quash the same and consequently direct the respondents to include the name of the petitioner in the appropriate place in the panel for promotion as Director of PublicHealth and Preventive Medicine for the year 2007-2008 as issued by https://hcservices.ecourts.gov.in/hcservices/ the 1st respondent in G.O.(2D) No.06, Health and Family Welfare (L2)Department, dated 22.01.2008 and promote him as such with retrospective effect from the date of promotion of the 3rdrespondent.

Even while he was the senior most person eligible for promotion as Director of Public Health and Preventive Medicine and was on the verge of promotion, in order to defer his further promotion as Director, the 3rd respondent, the then AdditionalDirector, who was his junior in the cadre and was in the race of promotion as Director, in connivance with the 4th respondent, the then Director and who was making an attempt to get his services extended beyond the age of his superannuation, submitted apreliminary enquiry report causing intimation of disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (D &A) Rules. The 4th respondent, the then Director accordingly initiated disciplinary proceedings with a mala fide intention and issued the impugned charge memorandum dated 22.04.2008 thereby depriving of his promotion as Director. Thus, he was constrained to file W.P.No.12774 of 2008 seeking to quash the charge memo dated22.04.2008 and for consequential direction for promotion as Director. This court, by order dated 27.05.2008 directed the 1strespondent / Government to dispose of the representation of the petitioner dated 12.05.2008 on merits and in accordance with law taking into account Rule 39(d) of the General Rules of Tamil NaduState and Subordinate Service Rules within a period of four weeks.

The grievance of the petitioner is that without properly considering his representation dated 12.05.2008 and adverting to the contentions put forth in the representation, the 1st respondent rejected his request for promotion as Director of Public Health and Preventive Medicine. Hence, this writ petition. https://hcservices.ecourts.gov.in/hcservices/

There are two charges in respect of bogus claim levelled against the petitioner in the impugned charge memorandum dated 22.04.2008 alleging that while he was working as DeputyDirector of Health Services, Villupuram, (ii) during the year 2004he had incurred expenditure to the tune of Rs.12,500/- @ Rs.1000/-per day for 5 days to the 25 Medical Officers of the GovernmentPrimary Health Centres of Villupuram and Kallakurichi HUD for having participated in the National Surveillance for Prevention of Communicable Diseases Training , whereas it was reported that onlyRs.100/- has been paid instead of Rs.500/- to each Medical Officerfor 5 days, thereby actually incurred a total sum of Rs.2,500/-only and thus he has made a bogus claim for Rs.10,000/- in the conduct of NSPCD Training in Villpuram ; and (ii) during the year2004 he had claimed a sum of Rs.2,400/- towards remuneration for guest lectures given in the NSPCD Training for Medical Officers of Villupuram and Kallakurichi HUDs @ Rs.200/- per hour for 12 hours for having taken 12 classes from 08.03.2004 to 11.03.2004, whereas it was found that he had not taken classes actually for the said duration and thus he had made another bogus claim for Rs.2,400/- in the conduct of NSPCD Training in Villupuram.

According to the petitioner he is going to retire in the month of December 2009 and only in order to defer his promotion, the 3rd respondent, who was very much keen in getting hisservice extended even after his superannuation, in connivance with the 4th respondent, who was junior to the petitioner in the cadre of Joint Director and was in the race of promotion as Director, has issued charge memorandum levelling baseless charges on the basis of the report of the 3rd respondent.

The learned counsel appearing for the petitioner attacked the charge memorandum on the following grounds: Firstly, impugned charge memorandum has been issued without any basis with a malafide intention in order to defer the promotion due to the petitioner by the 4th respondent the thenDirector, who was interested in getting his service extended even after his superannuation, with the connivance of the 3rd respondent, who was the then Additional Director and junior of the petitioner in the cadre of Joint Director and also was in race of promotion as Director. No witness has been cited in the list annexed to the charge memorandum. Despite repeated requests the relevant documents sought for by the petitioners has not been furnished and the petitioner had to approach the State Information Commission for the purpose of getting those documents to submit his effective explanation. The delay in furnishing the relevant documents to the petitioner caused much prejudice in submitting his effective explanation to the charges levelled against him.

While concluding his submissions, the learned counsel appearing for the petitioner has drawn the attention of this Courtthat that only after having considered the charges under Rule 17(b)of the Tamil Nadu Civil Services (Discipline and Appeal) Ruleslevelled against the petitioner vide charge memorandum dated22.04.2008, the Government passed G.O.(D) 1435, Health and FamilyWelfare (12) Department, dated 23.12.2008 giving deemed promotion https://hcservices.ecourts.gov.in/hcservices/ to the petitioner as Additional Director regularly with effect from 29.01.2008 on which date, his immediate JuniorDr.R.Sornakanthimathi joined duty as Additional Director of PublicHealth and Preventive Medicine. In view of the subsequent development, the 2nd ground for rejection of the representation of the petitioner to consider his name for promotion as Director that on that date he was not Additional Director and he was only aJoint Director and as such his name was not considered in the panel for the post of Director cannot be sustained.

Further, the charge memorandum which has been issued without showing any name of the witness to substantiate the charges at the tail end of his retirement proves only the mala fideintention of the respondents in order to defer his further promotions. Even after issuing charge memorandum, the respondents2 to 4 have deliberately withheld the relevant documents and thereby prevented the petitioner from submitting his effective explanation and the petitioner had to approach the StateInformation Commission for getting those documents to defend hischarges effectively. Therefore, the impugned charge memorandum is liable to be quashed on the ground that the charges are baseless, belated and motivated. In support of his submissions, the learned counsel appearing for the petitioner relied on a judgement inP.V.Mahadevan v. The Managing Director, Tamil Nadu Housing Board2005 (4) CTC 403 wherein the Hon'ble Supreme Court while dealing with the matter involving inordinate delay in initiating the disciplinary proceedings for about 10 years has held thus: " 14. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keepinga higher Government Official under charges of corruption and dispute integrity would cause unbearable mental agony and distress to the officer concerned. Theprotracted disciplinary proceedings against agovernment employee should, therefore, be avoid not only in the interest of the Government employee, but in the public interest and also in the interest of inspiring confidence in the minds of the Governmentemployees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not bemade to suffer. "

Per contra , the learned Special Government Pleader https://hcservices.ecourts.gov.in/hcservices/ (Education) appearing for the respondents 1,2 and 3 submitted that the respondents were right in issuing the second charge memorandum dated 22.04.2008. Only upon the report of the Joint Director to the effect that the petitioner while he was working as DeputyDirector of Health Services, Villupuram made bogus claims, acharge memorandum was issued. The petitioner only protracted the proceedings without submitting his explanation to the charges.

The learned counsel appearing for the 3rd respondent submitted that the 3rd respondent was asked to conduct a discreet enquiry and despite summon the petitioner did not appear for the enquiry and therefore on completion of preliminary enquiry, hefiled his report to the disciplinary authority, and in turn the disciplinary authority issued the impugned charge memorandum and there is no other role played by the 3rd respondent as alleged by the petitioner.

I have considered the rival submissions and also perused the records.

Admittedly, the petitioner is going to retire by December 2009. He is now working as Additional Director. Eventhough the impugned order dated 10.07.2008 was passed by the 1strespondent, when he was a Joint Director later on the petitioner has been given promotion retrospectively as Additional Directorwith effect from 29.01.2008 and now the petitioner is entitled tobe promoted as Director being the senior most in the cadre of Additional Director. The only hurdle for promotion is the pendencyof charges under Rule 17(b) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules. The charges relate to bogus claim. According to the enquiry report of the Joint Director of PublicHealth and Preventive Medicine (PFA), the petitioner misused the fund allotted and made bogus claims to the tune of Rs.10,000/- in the conduct of Training Programme in the year 2004. For the misconduct committed in the year 2004, the Director issued the impugned charge memorandum in the year 2008.

Admittedly, this order of promotion was passed when acharge memo under rule 17(b) dated 22.04.2008 was pending against the petitioner. Now let me see what is that charge memo pending now, as seen from the Annexure IV to the charge memorandum, there is no witness cited in support of the charges levelled against the petitioner, nor there is a single document shown in the charge memo in support of the same. The statement of allegation in support of the charges framed against the petitioner is also vague about the alleged misconduct. When there is no statement of any witness or any document to disclose the alleged misconduct of the petitioner, the charge memo cannot sustain any legal scrutiny. According to the petitioner, despite repeated requests made to the Director, the documents listed in Annexure III to the charge memorandum has not been furnished to him and thereby he was prevented from submitting his effective explanation in time and he had to approach the State Information Commission to obtain those documents.

On going through statement of facts and the charge memorandum, the same do not disclose the alleged misconduct. Asseen from the records relating to the disciplinary proceedings produced by the learned Special Government Pleader, none of the medical officers, who were given training on NSPCD, spoke about the alleged misconduct and bogus claims of the delinquent officer. Therecords clearly reveal that charges levelled against the delinquent officer are vague and without any incriminating evidence. This would further indicate the mala fide intention of the respondents 3 and 4 in deferring the promotion of the petitioner as Director as contended by the petitioner. There is not only a delay of 4 years in initiating the disciplinary proceedings but also there is a delay of more than 1 year in completing the disciplinary proceedings despite direction from this Court on 27.05.2008 to complete the enquiry within the time frame. The respondents, particularly the respondents 3 and 4, who were then holding the office of the Director of Public Health PreventiveMedicine connived with each other and purposely refused to furnish the documents sought for by the petitioner and the petitioner had to approach the State Information Commission by way of RTI Act forgetting those documents. As per the directions of the StateInformation Commission, the petitioner was furnished copies of the relevant documents only on 03.08.2009.

As rightly pointed out by the learned counsel appearing for the petitioner and in the light of the judgement inP.V.Mahadevan's case cited supra, the protracted disciplinary proceeding cannot be allowed to proceed further and the impugned charge memorandum is liable to be quashed for the reasons (i) that the statement of allegations and the charge memorandum are vague and there is no reference about the fact that who made complaint and a vague allegation alone is found place in the statement of allegation and charge memorandum that there were complaint from Medical Officers of Villupuram Health Unit District against the petitioner regarding the misconduct of bogus claim and the report of the enquiry officer, the then Joint Director, who is the 4threspondent herein was not found on any incriminating evidence; (ii)that the 3rd respondent Dr.S.Elango is the then Additional Directorof Public health who is petitioner's Junior waiting in the race for promotion to the post of Director of public health in connivance with the 4th respondent herein the then Director of public health who also attempted to get extension of service beyond the age of https://hcservices.ecourts.gov.in/hcservices/ superannuation, have jointly devised a plan to defer the petitioner from getting the promotional post of Director of Public health by issuing very vague charge without any basis. Since the petitioner is admittedly going to retire by December 2009 if the DisciplinaryProceedings is allowed to be proceeded with further in view of short distance of time, the same would prove prejudicial to the petitioner. Therefore, this court is inclined to allow the writ petition by setting aside the charge memo holding the same is vague and motivated one.