THE HONOURABLE MR v. The Registrar Tamilnadu Central Administrative Tribunal Chennai-104.2. Director (Administration and Vigilance) Directorate

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.01.2006CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANW.P.No.27283 of 2003S.Tamilselvan.. Petitionerversus1. The Registrar Tamilnadu Central Administrative Tribunal Chennai-104.2. Director (Administration and Vigilance) Directorate General of Health Services Nirman Bhavan New Delhi.3. Director (Disciplinary Authority) Directorate General of Health Services JIPMER, Govt. of India Pondicherry-6... RespondentsPRAYER: Writ petition filed under Article 226 of the Constitution ofIndia for the issue of a writ of Certiorarified Mandamus calling forthe records relating to the order dated 10.6.2003 passed inO.A.No.651 of 2002 on the file of the Registrar, CentralAdministrative Tribunal, Madras Bench, High Court Buildings,Chennai-104 (the first respondent herein) confirming the order dated19.6.2002 passed in C.16013/6/97-AV on the file of the Director(Administration and Vigilance) Directorate General of HealthServices, Nirman Bhavan, New Delhi (the second respondent herein)confirming the order dated 16.9.1997 passed in No.Estt.13(13)/95 onthe file of the Director (Disciplinary Authority), DirectorateGeneral of Health Services, Jawaharlal Institute of Post Graduate,Medical Education and Research, Government of India, Pondicherry-605006 (the third respondent herein) dated 10.6.2003 and to quash thesame and to direct the third respondent to reinstate the petitioner https://hcservices.ecourts.gov.in/hcservices/ as X-ray Technician with all continuity of service with all suchbenefits in the third respondent Institute. -----For petitioner:Mr.Vijay NarayanSenior Advocate forMr.S.SubbiahFor respondents-2 and 3:Mr.K.Veeraraghavan, S.C.G.S.C.-----ORDERCHITRA VENKATARAMAN,J.The petitioner in the writ petition was working as an X-rayTechnician in Jawaharlal Institute of Post Graduate, MedicalEducation and Research, Pondicherry. On the basis of a complaintgiven by one Amudha dated 10.7.1995, the third respondent in thewrit petition, issued a charge memo to the petitioner. The sum andsubstance of the memo read that:(i) the writ petitioner misbehaved with a patient in the X-ray roomand kept the Attendant accompanying the patient in another roomby locking her therein; thus had behaved in a manner unbecomingof a Government Servant; thereby violated Conduct Rules 3(1)(iii) of 1964;(ii) by intimidating the patient and forcing her to withdraw thecomplaint;(iii) by giving false information/statement during the Fact FindingEnquiry; thereby had not maintained integrity; and(iv)had not maintained devotion to duty and had not followed theinstructions of the Head of the Department.All the charges, thus violated Rule 3(1)(iii) of the Central CivilServices (Conduct) Rules, 1964.2. By order dated 16.9.1997, the third respondent dismissed thepetitioner from Government service with immediate effect. Aggrievedof the order of dismissal, the petitioner preferred an appeal beforethe Director General of Health Services, the second respondentherein. By order dated 19.6.2002, the order of dismissal wasconfirmed and the appeal dismissed. Aggrieved of the same, thepetitioner filed an Original Application in O.A.No.651 of 2002before the Central Administrative Tribunal, Madras Bench. The saidO.A. was dismissed by order dated 10th June 2003. The contention ofthe petitioner before the Tribunal rested on the footing that the https://hcservices.ecourts.gov.in/hcservices/ charges were based mainly on the complaint given by the said Amudha,who was not examined by the prosecution at all; that the findings ofthe authorities had no basis when the complaint dated 10.7.1995 waswithdrawn by the said Amudha even within a few hours of thecomplaint and the said withdrawal letter was once again reiteratedin her reply dated 20.7.1995; the order was passed on irrelevantevidence produced by the prosecution; in the circumstances, thecharges rested merely on surmises and assumptions; that if thecomplaint dated 10.7.1995 could be acted upon for initiating action,then the other letters dated 10.7.1995 and 20.7.1995 ought to havebeen given due credence to drop action. The contention of thepetitioner before the Central Administrative Tribunal was counteredby the respondents that the petitioner did call the said complainantAmudha on 9.7.1995 on a sunday for taking X-ray again for which hecould not adduce proper and satisfactory reasons; that thedisciplinary action was taken after going through the entire recordsand there was strong reason to believe that the petitioner hadprepared the withdrawal letter from the said Amudha and also usedpressure on the said Amudha to see that she did not attend thepreliminary enquiry on 10.7.1995; that the Fact Finding Authorityhad correctly arrived at the conclusion after going through therelevant facts and circumstances. The Tribunal analysed the variousfacts and ultimately rejected the prayer of the petitioner to quashthe order of dismissal. 3. Mr.Vijay Narayan, learned senior counsel appearing for thepetitioner, took us through the enquiry conducted in detail toimpress on the fact that in the context of the withdrawal letter andthe non-examination of the complainant, there was absolutely noevidence to proceed against the petitioner for a seriousconsequence. Learned senior counsel further pointed out that therewas no direct evidence for proceeding against the petitioner; thatthe presence of the petitioner on a holiday to accommodate a co-worker should not be viewed with a suspicion to draw an adverseinference against this petitioner. Learned senior counsel alsoplaced reliance on the decision reported in 2005 (4) CTC 202 in thecase of ERAJAN,P. Vs. THE DEPUTY INSPECTOR GENERAL OF POLICE and(1999) 8 SCC 582 in the case of HARDWARILAL Vs. STATE OF U.P. ANDOTHERS to support the contention that non-examination of a materialwitness made the charge baseless. Such denial of request to examinethe witness would be in clear violation of the principles of naturaljustice. Consequently, the findings of the enquiry officer and thedisciplinary authority are not sustainable in law. 4. A perusal of the order of the Tribunal shows that admittedlythere was a complaint given by the patient by name Amudha againstthe petitioner herein. The Tribunal had extracted the complaint in https://hcservices.ecourts.gov.in/hcservices/ its order and referred to the admitted fact before the enquiryofficer that the petitioner called the patient Amudha on a Sundayfor taking X-ray again, as according to him, the one taken by him on8.7.1995 was not proper. It also found as a matter of fact that thepetitioner was not on duty on 9.7.1995 being a sunday and that heexchanged duty with one Srinivasa Rao voluntarily. The Tribunalalso referred to the fact that the petitioner had admittedly keptthe sister of the complainant in a room at the time of the incident.Taking note of all these facts, the Tribunal held that thepetitioner had called Amudha on a Sunday, on a day which was notallotted to him, with an ulterior motive. Consequently, thewithdrawal of the complaint and the non-examination of thecomplainant could not be fatal to the charge which is of seriousnature concerning the employee of a public hospital. In the lightof the various facts and circumstances, the Tribunal rightly heldthat there was no infirmity in the enquiry or in the order of thedisciplinary authority. 5. A perusal of the enquiry officer's report clearly shows thatthe petitioner had admitted as a matter of fact that 9th July 1995was not his duty day and that his contention that he had taken KUB Xray on the patient instead of chest X ray was because of theconfusion that there were two patients in the name of Amudhareported on the same day for taking X-ray was also not substantiatedthrough materials. There was no satisfactory explanation from thepetitioner that when there was no urgency for taking an X-ray on aSunday, the summoning of the said patient Amudha on a Sunday afterexchanging duty from a regular technician who was supposed to be onduty was without any explanation from him. The support that hesought to derive from the evidence of one Srinivasa Rao does notappear to be too strong, particularly when the evidence of SrinivasaRao itself is not free from doubt. It is seen from the recordsthat the second respondent had opened Room Nos.3 and 4 incontravention of the orders of the Head of the Department of RadioDiagnosis. Further, in the evidence, Dr.A.K.Sharma, AssociateProfessor of Radio Diagnosis, as P.W.3, had stated that a chest X-ray was properly taken on one Amudha on 8.7.1995 case sheetNo.172497 (complainant) and that a plain X-ray abdomen (errect,supine) was also correctly taken on the person Amudha with casesheet No.172589. The evidence of Dr.A.K.Sharma, Professor, RadioDiagnosis, also shows that he had seen the report submitted. It isalso seen from the cross-examination done that there was nothing tosupport the stand of the second respondent that the X-ray originallytaken on the complainant was KUB X-ray. In the context of such anevidence from P.W.3 and in the absence of any material contra fromthe second respondent, the claim of the second respondent giving thereason for calling the complainant Amudha for a proper X-ray to be https://hcservices.ecourts.gov.in/hcservices/ taken on the next day fails as totally an excuse to cover up theallegation made on the second respondent. The statement as foundby the enquiry authority is a false statement. The enquiryauthority had correctly arrived at the findings and no fault can befound on this score which is totally substantiated by materialevidence, as stated by P.W.3. We may further state that in thebackground of these facts too, the non-examination of thecomplainant Amudha is not fatal to the disciplinary proceedingstaken. The depositions during the enquiry are good enough to provethe charge against the second respondent. The second respondentcannot take shelter under the withdrawal of the letter of complaintfrom Amudha for the simple reason that it does not clear any doubtas regards the complaint already made which is substantiated byample evidence herein. However, apart from all these, it is amatter concerning discipline of an Institution rendering a publicservice and in matters of this nature, the responsibility to takeaction as well as the responsibility to disprove the allegationsdeserves to be viewed between an employer and an employee. In thesecircumstances, rightly the Tribunal has also viewed that it is thebounden duty of the employer, namely, the Government of India, toenquire into the serious allegations of this nature as regards theconduct of a person who is expected to maintain the dignity of thejob that he does.6. On the question of violation of the principles of naturaljustice, learned senior counsel pleaded strongly that there wasserious violations of principles of natural justice in not examiningthe complainant Amudha who had later on withdrawn the complaint.Learned counsel placed reliance on the decision of this Court in2005 (4) CTC 202 in the case of ERAJAN,P. Vs. THE DEPUTY INSPECTORGENERAL OF POLICE and submitted that for the non-observance of theprinciples of natural justice, the punishment confirmed by theTribunal is arbitrary and hence, deserves to be quashed by thisCourt. 7. While dealing with a similar case wherein disciplinaryproceedings were taken against a post-graduate teacher to terminatethe services on the ground of his improper conduct with a girlstudent wherein the delinquent teacher was not given an opportunityto cross-examine and hence contended that the procedure adopted wasin violation of the said legal principles of natural justice, theSupreme Court, in the case of AVINASH NAGRA Vs. NAVODAYA VIDYALAYASAMITI AND OTHERS reported in (1997) 2 SCC 534, approved of thedecision of the High Court confirming the order of dismissal. Inthe course of its judgment, while emphasising the necessity of https://hcservices.ecourts.gov.in/hcservices/ maintaining high degree of discipline and dedication in a professionwhich is endowed with a responsibility of imparting knowledge andmoulding the calibre, character and capacity of the students tosustain them in later years of life as a responsible citizen indifferent responsibilities, the Supreme Court held: " The fallen standard of the appellant is the tipof the iceberg in the discipline of teaching, anoble and learned profession; It is for eachteacher and collectively their body to stem therot to sustain the faith of the society reposedin them. Enquiry is not a panacea but a nail inthe coffin. It is self-inspection andcorrection that is supreme. It is seen that therules wisely devised have given the power to theDirector, the highest authority in themanagement of the institution to take decision,based on the fact-situation, whether a summaryenquiry was necessary or he can dispense withthe services of the appellant by giving pay inlieu of notice. "In the context of the facts found, the Supreme Court approved of thedecision of the Director not to conduct the proceedings exposing thestudents and modesty of the girl and to terminate the services ofthe delinquent teacher, considering that the statements weresupplied to the delinquent officer and an opportunity was granted tocontrovert the correctness thereof. The Supreme Court approved ofthe termination of the services of the officer.8. Similar is the view taken by the Supreme Court in the caseof STATE OF HARYANA Vs. RATTAN SINGH reported in AIR 1977 SC 1512,wherein, the Supreme Court held that in a domestic enquiry, thestrict and sophisticated rules of evidence under the Evidence Actmay not apply. " The simple point is, was there some evidence orwas there no evidence – not in the sense of thetechnical rules governing regular Courtproceedings but in a fair commonsense way as menof understanding and worldly wisdom will accept." https://hcservices.ecourts.gov.in/hcservices/ The Supreme Court, in that case, found that the evidence of theInspector of flying squad had some force which had relevance to thecharge levelled against the delinquent Conductor, who, aftercollecting the fares from certain passengers, was guilty of notissuing the tickets. The Supreme Court held that merely becausestatement of objections was not recorded by the Inspector of flyingsquad, the order was not vitiated. The non-recording of a statementwhen the passengers declined to give a statement, the psychology ofthe passengers in such circumstances was understandable.Ultimately, the Supreme Court held that the evaluation of theevidence on the strength of the co-conductor's testimony is a matternot for the Court but for the Administrative Tribunal. Viewed inthe context of the evidence of the various witnesses examined by thedisciplinary authorities, the inference drawn thereon cannot befaulted now or re-appreciated solely on the fact that thecomplainant Amudha was not examined. As had been held by theSupreme Court, the non-examination of the said Amudha is not fatalto the case, since the evidence on the strength of the otherwitnesses clearly point to the fact that there was some evidencewhich are good enough and relevant to the charge made against thesecond respondent thus resulting in an order of dismissal. In theabove circumstances, we have no hesitation in upholding the order ofthe Tribunal. 9. We are of the view that there is no fundamental error in theorder of the Tribunal confirming the order of dismissal. It is asettled position that in departmental proceedings, the disciplinaryauthority is the sole judge of the facts. The technical rules ofevidence have no application in the case of a disciplinary enquiry.The preponderance of probabilities and the material records aresufficient to arrive at the conclusion by the disciplinaryauthority; inasmuch as the petitioner was given a fair andreasonable opportunity to make his defence and participate in theenquiry, he cannot complain of violation of the principles ofnatural justice. Support for this can be drawn from the decision ofthe Supreme Court reported in (2003) 3 SCC 583 in the case of LALITPOPLI Vs. CANARA BANK & OTHERS and (1999) 1 SCC 759 in the case ofAPPAREL EXPORT PROMOTION COUNCIL Vs. A.K.CHOPRA.10. The Tribunal is not an appellate forum nor this Court underArticle 226, to substitute its own inferences or go into thesufficiency or adequacy of evidence in support of the particularconclusion. On going through the various aspects of the matter, weare satisfied that there is no error committed, and the evidencerelied on by the disciplinary authority is sufficient enough tosupport the conclusion arrived at. There is no manifest error oflaw to interfere with the order of the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ In the light of the above, the non-examination of thecomplainant Amudha, would not, by itself, render the order of theauthorities as based on no evidence or in violation of theprinciples of natural justice. Consequently, the writ petitionfails and is accordingly dismissed and the order of the Tribunalconfirmed. There will, however, be no order as to costs.ksvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The Registrar Tamilnadu Central Administrative Tribunal Chennai-104.2. The Director (Administration and Vigilance) Directorate General of Health Services Nirman Bhavan New Delhi.3. The Director Directorate General of Health Services JIPMER, Govt. of India Pondicherry-6.+ 1 cc to Mr.M. T. Arunan, ACGSC Advocate SR No.3015+ 1 cc to Mr.M.K. Veeraraghavan, SCCG Advocate SR No.3043Order in W.P.No.27283 of 2003MS(CO)SR/3.2.2006