BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31/10/2008 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P(MD)No.10742 of 2007 and M.P.(MD).Nos.1 and 2 of 2007 Dr.S.M.Thirunavukkarasu S/o.S.Muniandi, Assitant Surgeon, Theni Medical College, Theni District. ... Petitioner Vs. 1.The Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai - 600 009. 2.The Director of Medical and Rural Health Services, Chennai - 600 006. 3.The Additional Director of Medical and Rural Health Services (Administration), D.M.S.Compound, Chennai - 600 006. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, calling for the records relating to G.O.(D).No.1270 Health and Family Welfare (K-2) Department dated 12.10.2007 passed by the first respondent herein and quash the same. !For Petitioner ... Mr.A.Thirumurthy ^For Respondents ... Mr.S.C.Herold Singh Government Advocate ******** :ORDER
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An order of punishment imposed on a Government Servant is under
challenge in this Writ Petition.
2. The petitioner is a Professional Doctor and an Assistant Surgeon,
now working in Government Medical College at Theni. Previously, during the year
2002, he was serving as Assistant Surgeon in Government Head Quarters Hospital,
Periyakulam. Based on a news item in a Local Daily that the petitioner was in
the habit of disclosing the sex of foetus on conducting ultrasound scan
examination, a charge memorandum was issued to him. The said charge memorandum
contained two charges. The first charge was that the petitioner, while working
as an Assistant Surgeon at Government Hospital, Periyakulam, he was in the habit
of revealing the sex of foetus to the parents/relatives against the provisions
of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of
Selection Sex) Act, 1994 and thus, he violated Rule 20(1) of the Tamil Nadu
Government Servant Conduct Rule. The second charge was that for making such
disclosure of the sex of foetus, he was in the habit of accepting bribe.
3. The petitioner denied both the charges. One Dr.Jayashree
Muralidharan, the then Additional Director of Medical and Rural Health Services
(Administration), was appointed as Enquiry Officer. Interestingly, no witness
was examined before her. The newspaper carrying the news item that the
petitioner was in the habit of disclosing the sex of foetus was placed as
evidence. Apart from that, a written statement said to have been given by one
Gnanaselvam, who was a consultant to the department, as if the petitioner
confessed to him that he was in the habit of making such disclosure of the sex
of foetus to the parents was also placed. It was the defence of the petitioner
that he did not know as to who Mr.Gnanaselvam was and that he never had any
occasion to confess to him. Neither a copy of the written statement of
Gnanaselvam was furnished to the petitioner, nor was he examined as a witness
before the Enquiry Officer. But, without even following the basic principles of
natural justice and without having regard to the basic rule of evidence in
departmental proceedings, the Enquiry Officer held that the petitioner was
guilty of the first charge solely based on the newspaper report and the so-
called statement said to have been given by Gnanaselvam. Fortunately, the
Enquiry Officer held that the charge relating to bribe for disclosing the sex of
foetus was not proved. On the basis of the report of the Enquiry Officer to the
effect that the first charge was that the petitioner was in the habit of
disclosing the sex of foetus to the parents, a show cause notice was given to
the petitioner, for which, the petitioner duly submitted his explanation.
Despite all the above, the first respondent has passed the impugned order,
imposing punishment of stoppage of increment for a period of one year with
cumulative effect. Aggrieved over the same, the petitioner has rushed to this
Court with this Writ Petition.
4. I have to state that this order really should shock the
conscience of any common man. If newspaper reports are to be taken as true, then
there will be no meaning at all in holding any enquiry. If it is the case of the
respondents that simply based on a news item published in a newspaper, an
Officer can be punished, the result would be highly disastrous. I am very much
pained to see the way in which the whole affair has been dealt with by the
Enquiry Officer as well as by the respondents. In Lazmi Raj Shetty v. State of
Tamil Nadu reported in AIR 1988 Supreme Court 1274, the Hon’ble Supreme Court,
while dealing with an identical issue, has held as follows:
“Judicial notice cannot be taken of the facts stated in a news item being
in the nature of hearsay secondary evidence, unless proved by evidence aliunde.
A report in a newspaper is only hearsay evidence. A newspaper is not one of the
documents referred to in S.78(2) of the Evidence Act by which an allegation of
fact can be proved. The presumption of genuineness attached under S.81 of the
Evidence Act to a newspaper report cannot be treated as proved of the facts
reported therein. A statement of fact contained in a newspaper is merely hearsay
and therefore inadmissible in evidence in the absence of the maker of the
statement appearing in court and deposing to have perceived the fact reported.
AIR 1969 SC 1201, Rel. on.”
Therefore, I do not have even a semblance of hesitation to call the
impugned order as highly arbitrary and to quash the same.
5. In the result, this Writ Petition is allowed and the impugned
order of the first respondent dated 12.10.2007 is quashed. No costs.
Consequently, the connected miscellaneous petitions are closed.
SML
To
1.The Secretary to Government,
Health and Family Welfare Department,
Fort St. George,
Chennai – 600 009.
2.The Director of Medical and Rural
Health Services,
Chennai – 600 006.
3.The Additional Director of Medical
and Rural Health Services (Administration),
D.M.S.Compound,
Chennai – 600 006.