IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19/06/2003
Coram
The Honourable Mr. Justice V.S. SIRPURKAR
and
The Honourable Mr. Justice M. THANIKACHALAM
W.P. No.4348 OF 1998
Kausalya ..... Petitioner
-Vs-
1. The District Health Officer
Vellore, Vellore District
2. The Director of Public Health
Preventive Medicine, Madras-6
3. The Registrar
Tamil Nadu State Administrative
Tribunal, City Civil Court
Buildings, Chennai 104 ..... Respondents
Petition under Art.226 of the Constitution of India
praying for a Writ of Certiorarified Mandamus as
stated in the petition
For Petitioner :: Mr. G. Elanchezhiyan
For Respondents :: Mr. S.T.S. Murthy
Spl.G.P.
:ORDER
(Order of the Court was made by V.S. SIRPURKAR, J.)
In this writ petition, the petitioner challenges the order
passed by the Tamil Nadu State Administrative Tribunal (in short the
Tribunal), dismissing her original application wherein she had challenged the
order passed by the second respondent dated 30-7-1991. By the instant order,
the petitioner was found guilty of all the five charges framed against her and
was ordered to be removed from the service with effect from the date of issue
of the order. This matter has some peculiar facts.
2. The petitioner was working as Health Visitor. She was
suspended and was served with a charge-memo for five charges in proceedings RC
No.3547/87. She submitted the explanation. The District Health Officer, who
was her disciplinary authority, passed the final order on the basis of that
explanation on 8-8-1988 and chose only to issue a warning to the petitioner.
3. It seems that thereafter the second respondent Director,
exercising his suo motu powers, has chosen to review the earlier order and
passed the order dated 30-7-1991, enhancing the punishment already granted by
the District Health Officer, first respondent. Undoubtedly, before this a
show cause notice came to be issued to her on 2 5-4-1990 in which the
petitioner was specifically asked to give reasons as to why a major penalty of
removal from service should not be ordered.
4. We were taken through the show cause notice dated
25-4-1990, which suggests that the case was taken up for review by the second
respondent Director as per Rule 36 of the Tamil Nadu Civil Services (
Classification, Control and Appeal) Rules, hereinafter referred to as the
Rules, and in pursuance of that the orders of the District Health Officer
issuing a warning were cancelled and that thereafter, the Regional Deputy
Director of Public Health and Preventive Medicine was appointed as the Enquiry
Officer, who conducted the enquiry and had submitted his report, suggesting
therein that all the five charges framed against the petitioner stood proved.
For the sake of facts, we would quote those five charges:
1.She is propagating against the policy of Government.
2.She has violated the Government Servants Conduct Rules (i.e. Rule 2 1) by
attending to her duties after consuming liquor.
3.She has used disrespectful words towards her superior officers and disobeyed
the orders of the superior officers.
4.She is indulging in indiscipline activities.
5.She is misusing her post for her welfare.
By that show cause notice, the Director of Public Health sought an explanation
of the petitioner to show cause as to why the major penalty of removal from
service should not be inflicted. After the explanation was submitted, the
impugned order came to be passed on 30-7-1999. The Tribunal has refused to
entertain the original application as it found that the proceedings were in
order and the punishment was proper.
5. Mainly two grounds were raised before the Tribunal. They
were:
(i) that the powers under Rule 36 could be exercised only within six months
and in this case, they were exercised much later than six months; and
(ii) that the concerned authority was both the Head of the Department as also
the appellate authority and as such, the concerned authority could not have
exercised the review powers much less beyond the period of six months.
The Tribunal has found against the petitioner on both counts and has chosen to
dismiss the original application, necessitating the present writ petition.
6. Learned counsel for the petitioner pointed out that
firstly the Director, who has passed the impugned order, is both the Head of
the Department as also the appellate authority against the original order
passed by the District Health Officer. Learned counsel, therefore, argues
that properly reading the language of Rule 36 and more particularly the
proviso, the whole action in initiating the review proceedings was without
jurisdiction. He points out that the Tribunal has not appreciated the
mandatory language of the second proviso to Rule 3 6. Learned counsel further
argues that though the Head of the Department could initiate the review action
at any time, meaning beyond the six months time, the other condition (ii)
apparent in the second proviso was breached in this matter. As such, though
in the present case, the second respondent was the Head of the Department, he
could not have initiated the action for review. Since the initiation of the
action of review itself was incorrect, the further proceedings must go and
eventually, the order of removal from service would be rendered illegal.
Learned counsel very heavily relied on the reported decision of the Division
Bench of this Court in P. Sabesan v. State of Tamil Nadu (1984 WLR 557).
7. As against this, the learned Government Pleader tried to
justify the action by suggesting that in this case there was no question of
any limitation as the opening part of Rule 36, as it stood then, does provide
that the Government and the Head of Department can review any penalty or
proceeding and have ample powers thereafter to deal with them in the manner
provided in the rules. According to the learned Government Pleader,
therefore, there was nothing wrong if the action of review as initiated even
beyond the period of six months since it was done by the Head of the
Department.
8. At the Bar, learned Government Pleader very candidly and
fairly admitted that the Director who passed the impugned order is also the
appellate authority against the orders passed by the District Health Officer.
It is also an admitted position that no notice was given to the petitioner
before deciding to initiate the action. We would have to, therefore, proceed
on this factual basis. It will be essential to quote the relevant portion of
Rule 36, as it stood then. The relevant portion is as under:
36. (1) Nothwithstanding anything contained in these rules-
(i) the State Government; or
(ii) the head of the department directly under the State Government, in the
case of a Government servant serving in a department or office under the
control of such head of a department, or departments, or
(iii) the appellate authority, within six months of the date of the order
proposed to be reviewed, or
(iv) any other authority specified in this behalf by the State Government by a
general or special order, and within such time as may be prescribed in such
general or special order;
may at any time, either on their or its own motion or otherwise call
for the records of any inquiry and review any order made under these rules,
after consultation with the Tamil Nadu Public Service Commission, where such
consultation is necessary and may
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the
orders, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order or to any
other authority directing such authority to make such further inquiry as it
may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall be made
by any reviewing authority unless the Government Servant concerned has been
given a reasonable opportunity of making representation against the penalty
proposed and where it is proposed to impose any of the penalties specified in
clauses (iv), (v), (c), (vi), (vii) and ( viii) of rule 8 or to enhance the
penalty imposed by the order sought to be reviewed to any of the penalties
specified in those clauses, no such penalty shall be imposed except after an
inquiry in the manner laid down in sub-rule (b) of rule 17 and except after
consultation with the Tamil Nadu Public Service Commission where such
consultation is necessary:
Provided further that no power of review shall be exercised by the
head of a department, unless-
(i) the authority which made the order in appeal or
(ii) the authority to which an appeal would be, where no appeal has
been preferred is subordinate to him.
(2) No proceeding for review shall be commenced until after-
(i) the expiry of the period of imitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been
preferred.
It is, therefore, clear that there lies ample powers in the Government, Head
of the Department and the appellate authority or any other authority specially
created for that purpose to enhance the penalty in keeping with the modality
further provided in the rules. In case of appellate authority, however, there
is a limitation of six months for exercising the power of review, which time
limit is not applicable to the powers being used by the State Government or
the Head of Department or any other authority specified in that behalf.
9. In this case, there is no problem regarding the fact that
the Head of Department and the appellate authority were one and the same
person. It is also not disputed that after the penalty of warning was given
to the petitioner by the District Health Officer, the petitioner did not file
any appeal. The question is, however, whether the action was rightly
initiated. The second proviso, however, creates two fetters. It suggests in
a very positive language that the power of review cannot be exercised unless
the authority which made the order in appeal or the authority to which the
appeal could be made are subordinate to such Head of Department. Now it is
clear and an admitted position that in this case, there was no appeal made.
So, the question of the application of first clause after proviso does not
apply. The second clause, however, applies with all its force. It suggests
that where no appeal has been preferred the authority to which ordinarily the
appeal could have been preferred should also be subordinate to the Head of
Department and that is where precisely the defect has set in. The Head of
Department who has initiated the action is himself an appellate authority. As
per the second clause of the proviso, the Head of Department could never have
exercised the power unless the appellate authority to whom the appeal could be
filed but has actually not been made was subordinate to such a Head of
Department. Now, unfortunately for the Government, the Head of Department as
well as the appellate authority are one and the same officers and it can never
be said, therefore, that the appellate authority, i.e. the Director is
subordinate to himself. In that view, the action of review could not have
even been initiated let apart proceeded further and precisely that aspect
which has been missed by the Tribunal. The Tribunal has gone, unfortunately,
only on the broad reading of the rule and has held that since the action of
review has been taken by the Head of Department, there would be no question of
any limitation of six months. It is perfectly alright and there can be no
dispute that the Head of Department has the power to initiate the action even
after the six months. Even the learned counsel for the petitioner does not
dispute that. However, the second aspect of the appellate authority being
required to be a subordinate officer of the Director of the Head of Department
is obviously breached in this case and, therefore, it will have to be held
that the action initiating the review is bad and without any jurisdiction.
10. Same view has been taken by the Division Bench of this
Court in Sabesan case, cited supra. There, the learned Judges were examining
the language of Rule 15-A of the Tamil Nadu Police Subordinate Service
(Discipline and Appeal) Rules. The language is absolutely identical. The
Division Bench, in paragraph 3, observed as follows:
The proviso says that no power of review shall be exercised by the Head of
the Department unless the appellate authority, which had passed the appellate
order or the authority to which an appeal would be preferred against the
original order is subordinate to him. The second respondent herein is the
Head of the Department and he also happened to be the appellate authority. As
the appellate authority in this case is not subordinate to the Head of the
Department the former cannot exercise the power of review under the said
proviso.
We respectfully agree with this decision which is binding on us being a
previous decision of the co-ordinate Bench.
11. In that view, the petition must succeed. The order of
the Tribunal is set aside. The original application is also directed to be
allowed. The petitioner shall be reinstated with all the benefits. We,
however, make it clear that the Government could still have the power to
proceed under Rule 36, if it so chooses.
Index:Yes
Website:Yes
Jai
To:
1. The District Health Officer
Vellore, Vellore District
2. The Director of Public Health
Preventive Medicine, Madras-6
3. The Registrar
Tamil Nadu State Administrative
Tribunal, City Civil Court
Buildings, Chennai 104