IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.04.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN .. WRIT APPEAL NO.239 of 2008 and M.P.No.1 of 2008 .. 1. State of Tamil Nadu rep. By the Secretary to Government, Health and Family Welfare (K1) Department, Fort St.George Chennai 600 009. 2. The Director of Medical and Rural Health Services Chennai. .. Appellants vs. Dr.S.Manimegalai Joint Director of Health Services (Under Suspension) Ramanathapuram. .. Respondent Writ Appeal is filed against the order of the learned single Judge made in W.P.No.20857 of 2007 dated 22.06.2007. For appellants : Mr.G.Sankaran Special Govt.Pleader (Edun.) For respondent : Mr.AR.L.Sundaresan,Sr.Counsel for Mrs.A.L.Gandhimathi .. JUDGEMENT
P.JYOTHIMANI,J.
The writ appeal is directed against the order of the learned Judge on the writ side, by which the learned Judge has set aside the order impugned in the writ petition passed by the Government of Tamil Nadu, the first appellant herein in G.O.(D) Nos.578 and 579 Health and Family Welfare Department, dated 30.06.2006.
2. Under the said impugned Government Order, the respondent herein, original writ petitioner was placed under suspension on the last date of her retirement, viz., 30.06.2006 and also not allowed to retire, since enquiry into grave charges against her is contemplated.
3. It appears that as against the respondent there was an earlier order of suspension dated 05.08.2005 and charge memo dated 26.10.2005 which was issued under Rule 17(b) of the Tamil Nadu Government Servant (Discipline and Appeal) Rules. The allegations therein were that the respondent demanded and accepted bribe regularly every month at the rate of Rs.1,000/- per Medical Officer; that the respondent directed the Medical Officers to collect and pay Rs.400/- each for male child born and Rs.300/- each for female child born in the Government Hospitals; that the respondent has collected Rs.2,000/- and Rs.5,000/- from Government employees appearing before the Medical Board; and that the respondent has been instructing the patients to take X-rays from outside.
4. It is seen that the respondent has challenged the said charge memo as well as suspension order in W.P.No.2461 of 2006, and pending the said writ petition, the appellants have revoked the order of suspension dated 05.08.2005 and the writ petition came to be disposed of by order dated 28.07.2006, by which the charges were quashed on the ground that the charges are vague. The order passed in the said writ petition has admittedly become final since no appeal has been filed against the same. When the said writ petition was pending, the present impugned order dated 30.06.2006 came to be passed.
5. It is stated that the actual date of attainment of superannuation of the respondent was 07.06.2006 and by virtue of the Fundamental Rules, especially Rule 56(1), the respondent was allowed to work till the end of the said month, viz., 30.06.2006.
6. The learned senior counsel appearing for the respondent would rely upon the judgment of this Court in A.Bommusamy vs. The Government of Tamil Nadu, rep. by its Secretary to Government, Co.operation, Food and Consumer Protection Department, Fort St.George, Chennai and others [2007 (3) CTC 518], to substantiate his contention that when the actual date of retirement of the respondent was 07.06.2006, the impugned order of suspension dated 30.06.2006, is not sustainable since by that time the respondent has reached the age of superannuation and there was nothing to be suspended. It is true that this Court in the said judgment has held that when the date of retirement in that case was 11.03.1987, the suspension order came to be passed on 25.03.1987 by invoking G.O.173, is not valid.
7. A reading of the above cited judgment makes it clear that this Court has not considered the Fundamental Rules, especially, Rule 56(1), which reads as under:
” Rule 56(1) Retirement on Superannuation.-
(a) Every Government servant in the superior service shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. He shall not be retained in service after that age except with the sanction of the Government on public grounds, which must be recorded in writing but he shall not be retained after the age of sixty years except in very special circumstances.
Provided that this clause shall not apply to Government servants who are treated as in superior service for the purpose of these rules but as in the Tamil Nadu Basic Service for the purpose of pension. Such government servants as well as all basic servants shall retire on attaining the age of sixty years:
Provided further that on and from the 1st January 1993, a District Judge, Chief Judicial Magistrate, Subordinate Judge or District Munsif-cum-Judicial Magistrate, who, in the opinion of the High Court, Madras, has potential for continued useful service beyond the age of fifty-eight years, shall retire from service on attaining the age of sixty years.”
8. A reading of the above said Rule, which is undoubtedly binding upon the respondent makes it clear that the respondent’s date of retirement should be on the last day of the month in which she attained the age of 58 years, which was 30.06.2006. In such view of the matter, it is not possible to accept the contention of the learned senior counsel that the suspension order passed against the respondent, should go on that ground.
9. The learned Judge has set aside both the Government Orders, viz., (i) order of suspension; and (ii) the order not allowing the respondent to retire on the ground that there was no charge against the respondent at all since the charges framed earlier had been quashed. In the light of the said finding by the learned Judge, the contention of the learned Special Government Pleader Mr.G.Sankaran, that fresh charges against the respondent have been contemplated is not sustainable. A reference was made by the learned Special Government Pleader to the proceedings of the Deputy Superintendent of Police, Vigilance, Pudukkottai, addressed to the Director of Medical Services, Chennai dated 02.05.2006, in which there was a reference about the preliminary enquiry conducted against the respondent at Pudukkottai on 20.07.2004 and 21.07.2004 and according to him, the enquiry against the respondent has been pending for a long time and therefore the contemplation of the same into disciplinary charges against the respondent is well-founded.
10. The said argument cannot be accepted for the simple reason that the enquiry stated to have been conducted by the Director of Vigilance on 20th and 21st of July,2004 as it is seen in the letter dated 02.05.2006 has really culminated into the earlier suspension as well as charge memo dated 05.08.2005 and 26.10.2005, which was ultimately revoked or set aside by this Court as stated above. Therefore, there is no point in stating as if the Vigilance enquiry is still pending, especially in the circumstances the earlier order passed by this Court setting aside the charges has become final.
11. The one other submission by the learned Special Government Pleader is that, subsequent to the order of the learned Judge which is questioned in this proceedings, the Secretary to Government, Department of Health in his proceedings dated 10.07.2007 addressed to the Director of Medical and Rural Services and others has stated that certain allegations have been made against the respondent, which according to the Secretary have to be substantiated by the appropriate investigating authority. A reference to the said proceedings again makes it clear that the proceedings only refers to various allegations and not to any enquiry conducted. It is relevant to point out that in the said letter there is a direction given to the concerned authority to enquire into the allegations against the respondent under the Tamil Nadu Civil Services (Discipline and Appeal) Rules,1955 and send its findings to the Government at an early date. This only shows that what is being contemplated in the letter dated 10.07.2007 is at the preliminary stage while the respondent already reached the age of superannuation by 30.06.2006.
12. Further, various allegations which are narrated in the said letter appears to be vague. For example, there are various instances mentioned to show that the respondent had received amounts as it was found in the earlier charge memo, but in the present letter, the names of the persons from whom the amounts had been received are stated and the year is also mentioned. Even then the reading of the entire allegations makes it clear that the allegations are vague and there is absolutely no substance and it is not possible for the respondent/delinquent officer to give any explanation to such allegations at this point of time. In such view of the matter, the contention of the learned Special Government Pleader that the subsequent charges are pending against the respondent is also not acceptable.
In these circumstances, there is absolutely no ground to interfere with the order of the learned single Judge. Accordingly, the writ appeal fails and the same is dismissed. No costs. Connected miscellaneous petition is closed.
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