IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 14-07-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.31174 of 2006 (O.A.No.3995 of 1996) R.Panner Selvam .. Petitioner. Versus 1.The Govt. of Tamilnadu rep. by the Secretary to the Government, Health and Family Welfare Department, Fort St. George, Madras-600 009. 2.The Deputy Director of Health Services, Namakkal, Salem District. .. Respondents. Prayer: This petition has been filed seeking for a writ of Mandamus, to direct the second respondent to regularise the period of suspension of the applicant from 22.3.1982 to 17.4.1984 as duty period and grant him all consequential benefits. For Petitioner : Mr.S.Mani For Respondents : Mr.T.Seenivasan Additional Government Pleader O R D E R
Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.
2. The petitioner has stated that he was working as a Pharmacist at the Government Primary Health Centre, Erumapatti, Namakkal Taluk, Salem District. In the year 1982, the petitioner was placed under suspension, with effect from 22.3.82, by the proceedings of the District Health Officer, Namakkal, in R.No.2358/H2/82, dated 22.3.82, pending enquiry into grave charges against the petitioner. After the petitioner was placed under suspension, he was arrested on 30.3.1982 by the Senthamangalam Police and a case was registered against him and two others in Crime No.50 of 1982, for an offence under Section 302 read with Section 34 of the Indian Penal Code. The case was taken up for trial by the Principal Sessions Judge in S.C.No.142 of 1982 and he was pleased to acquit the petitioner by his judgment, dated 14.7.83. Acquittal was made on the ground that the charges against the petitioner were not proved beyond all reasonable doubt. Thereafter, the order of suspension was revoked and the petitioner was reinstated in service, pending finalisation of the disciplinary proceedings against him by the proceedings of the District Health Officer, Namakkal, in R.No.2358/H2/82, dated 4.4.84.
3. It has been further stated that after the petitioner was placed under suspension, the District Health Officer, Namakkal, had issued a charge memo to the petitioner, on 29.4.82 and the petitioner had submitted his explanations, on 18.6.82 and 20.7.82. Thereafter, an oral enquiry was held and the District Health Officer, Namakkal, had passed an order in Na.Ka.2358/H2/82, dated 11.2.85, imposing the penalty of `Censure’ on the petitioner. Thereafter, the District Health Officer, Namakkal, passed an order in R.No.2358/H2/82, dated 16.3.85, regularising the period of suspension from 22.3.82 to 17.4.84 as `leave’. The applicant had submitted an appeal to the Director of Primary Health Centres, Madras, on 4.6.85, praying that the period of suspension be treated as `duty period’. The Director of Primary Health Centres, Madras, had passed an order in R.No.16555/PHC.III/A.2/85, dated 30.5.85, rejecting the said appeal. Thereafter, the petitioner had preferred an appeal to the Government. The Government had passed an order in Letter No.43617/12/92/T, Health, dated 12.3.93, directing the District Health Officer, Namakkal, to issue a show cause notice to the petitioner as required under Fundamental Rules 54(B)(5) to obtain his reply and to issue a revised order regularising the period of suspension as leave to which the petitioner was eligible. The Government had also directed the District Health Officer, Namakkal, to cancel the earlier order before issuing the show cause notice. In the place of District Health Officers, Deputy Directors of Health Services have been appointed. Therefore, the Deputy Director of Health Services, Namakkal, had to pass the necessary orders. However, no such order has been passed by the said Deputy Director of Health Services. Therefore, the petitioner had submitted a representation to the Deputy Director of Health Services, on 12.5.95, praying that the period of suspension from 22.3.82 to 17.4.84 should be treated as duty period. Since no order had been passed after the petitioner had submitted the said representation, he had filed an original application in O.A.No.3995 of 1996, which has been transferred to this Court and re-numbered as W.P.No.31174 of 2006.
4. In the reply affidavit filed on behalf of the respondents it has been stated that the petitioner who is a Pharmacist, formerly worked at the Primary Health Centre, Belukurichy and later at Erumaipatti was placed under suspension from 22.3.82, in R.No.2358/H2/82, of the District Health Officer, Namakkal, for having misbehaved with the District Health Officer, Namakkal. Subsequently, two charges had been framed against him, under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules in R.No.2358/H2/82, dated 29.4.82, of the District Health Officer, Namakkal. While he was under suspension, the petitioner was arrested by the Senthamangalam Police in connection with the murder of one Annamalai and he was in judicial custody from 13.4.82 to 29.9.82. Subsequently, he was acquitted on being given the benefit of doubt by the District Sessions Judge, Salem, vide his judgment in Sessions Case No.142 of 1982, dated 14.7.83. It has also been stated that in his explanations, dated 10.6.82 and 20.7.82, submitted as reply to the charge memo, the petitioner had denied the charges framed against him. In the oral enquiry conducted on 29.10.84, he had stated that he did not behave indecently towards the District Health Officer, Namakkal and he had also assured that he will not give any room for misbehaviour. Therefore, the District Health Officer, Namakkal, had reinstated the petitioner in service, with effect from 18.4.84, pending finalisation of the disciplinary proceedings against him, vide order in R.No.2358/H2/82, dated 4.4.84 and posted the petitioner at the Primary Health Centre, Erumaipatti. Thereafter, the disciplinary proceedings had been proceeded with under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules and it was concluded, awarding the punishment of `Censure’ to the petitioner, vide proceedings, dated 11.2.85 of the District Health Officer, Namakkal, and his suspension period has been treated as leave to which he was eligible. Thereafter, the petitioner had filed an appeal before the Director of Primary Health Centre, Chennai, to treat his suspension period as “on duty” period. However, his appeal was rejected by the Director of Primary Health Centre, Chennai, in his proceedings R.No.16555/PHCs.III/A2/85, dated 30.5.88. Thereafter, the petitioner had represented the matter to the Secretary to the Government, Health and Family Welfare Department, Chennai, on 30.7.90 and his appeal was rejected by the Government in his letter, dated 12.3.93. Further, the application of the petitioner is barred by limitation. In such circumstances, the reliefs sought for by the petitioner ought not to be granted by this Court.
5. The learned counsel appearing for the petitioner had submitted that Ruling IX under Rule 54(B) of the Fundamental Rules of the Tamil Nadu Government, reads as follows:
“9. Where a Government servant is,–
(a) Placed under suspension in view of the fact that a complaint against him of any criminal offence is under investigation or trial; or
(b) dismissed or removed from service or compulsorily retired on the ground of conduct which has led to his conviction on a criminal charge and
the Government servant is subsequently reinstated in service on his acquittal by the Court either on merits or on the ground that the charge has not been proved against him or by giving benefit of doubt or on any other technical ground, or on the ground that he has been pardoned by the Court as he turned approver based on his judicial confession, he must be regarded as having been prevented from discharging his duties and the period of his absence including the period of suspension shall be treated as duty for all purposes and he shall be paid full pay and allowances which he would have been entitled to, had he not been under suspension, dismissed or removed or compulsorily retired from service.”
Accordingly, the period of suspension of the petitioner should be treated as duty period for all purposes and he should be paid the full pay and allowances which he is entitled to.
6. The learned counsel appearing on behalf of the respondents had not refuted the claims made by the petitioner, either by oral submissions or by placing the relevant rules applicable to the petitioner. Further, nothing has been shown by the learned counsel for the respondent to disprove the claims made by the petitioner and to reject his prayer in the present writ petition as unsustainable and contrary to the Rules applicable to the petitioner. In such circumstances, the writ petition stands allowed. No costs.
csh
To
1. The Secretary to Government,
Health and Family Welfare Department,
Fort St. George, Madras-600 009.
2.The Deputy Director of Health Services,
Namakkal,
Salem District