IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.10.2009
CORAM
THE HONOURABLE MR. H.L. GOKHALE, CHIEF JUSTICE
AND
THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR
WRIT APPEAL NO.1495 OF 2009
1. The Director of Medical and Rural
Health Services (In-charge)
Chennai 6.
2. The Joint Director of Health Services
Kancheepuram. ... Appellants
Vs.
Tmt. G.Malliga ... Respondent
Prayer :- Writ Appeal is filed under Clause 15 of Letters Patent against the order dated 28.1.2009 made in W.P.Nos.25617 and 29751 of 2008.
For Appellants : Mr. G.Sankaran,
Special Government Pleader (Edn.)
For Respondent : Mr. Elephant G. Rajendran
*****
J U D G M E N T
(By the Honourable The Chief Justice)
Heard Mr.G.Sankaran, learned Special Government Pleader (Education) in support of this appeal. Mr.Elephant G.Rajendran, learned counsel appears for the respondent.
2. The appellants seek to challenge the order passed by a learned single Judge, whereby the learned single Judge has allowed the two writ petitions filed by the respondent herein. The respondent has been working as a Staff Nurse in Kancheepuram District. A complaint was received against her and some other Staff Nurses that they were demanding certain amounts for informing the mother and the other relatives of a new born baby as to whether the baby was a female or a male one. On receiving that complaint, the Director of Vigilance, by his letter dated 28th June, 2008 informed the Director of Medical and Rural Health Services that necessary enquiry will have to be made. Subsequently, after making necessary enquiry, the matter was transferred to the Tribunal constituted for dealing with the disciplinary proceedings, and the Tribunal has framed a charge sheet on 30th October, 2008. As far as the respondent No.1 is concerned, she is reported to have demanded different amounts from five different ladies on different dates, which are 28th December, 2007, 11th February, 2008, 27th October, 2007, 1st October, 2007 and 17th December, 2007. The amounts range from Rs.400/- to Rs.600/-. Respondent No.1 was suspended in the meanwhile on 24th September, 2008. She was due to retire on 31st October, 2008. She, therefore, filed two writ petitions, one challenging the order of suspension and the other challenging the memo informing her that she will not be allowed to retire on 31st October, 2008. Both the petitions were jointly taken up by the learned single Judge who allowed those petitions by the impugned order dated 28th January, 2009. Being aggrieved by that order, this appeal has been filed.
3. Mr.G.Sankaran, learned Special Government Pleader appearing for the appellants submitted that when a complaint of this nature was received from the Director of Vigilance, the appellants had to make the enquiry and after receiving the statements from the persons concerned, the matter has been referred to the Tribunal, which is an independent authority. The respondent will have full opportunity to defend her case and therefore to interfere with these proceedings at this stage will not be proper. He also submits that the learned Judge has given findings that such a conduct was improbable, as against which, Mr.G.Sankaran, points out that there are complaints from five ladies on different dates and certainly one cannot say that there is no substance for the authorities to proceed with the enquiry.
4. Mr.Rajendran, learned counsel appearing for the respondent on the other hand submits that relatives of the concerned ladies were present at the time of delivery and such a demand would not have been made. She has put in long years of service, almost 28 years, and there has not been any such complaint so far. At the fag end of her career, this complaint has been lodged and the learned Judge was right in interfering by observing that this was one of the rare cases. That apart, the learned Judge was also unhappy in the manner in which the affidavit was filed on behalf of the appellants, which did not give him proper assistance and in that situation, the order was justified.
5. Mr. Rajendran, learned counsel for the respondent also pointed out that subsequent to the order, which has been impugned in this appeal, the respondent was expected to be made the necessary payment. Her pension was expected to be released, but that has not been done by the appellants and therefore, the respondent was required to take up the miscellaneous petition seeking for a necessary direction and on 30th June, 2009, the learned single Judge has issued a direction to settle the pensionary and monetary benefits to the respondent forthwith. He makes a grievance that this order was initially not placed before this Court.
6. Mr.Rajendran, learned counsel has also drawn our attention to a judgment of the Apex Court in the case of UNION OF INDIA AND OTHERS VS. SHANTIRANJAN SARKAR reported in 2009(3) SCC 90, involving suppression of relevant facts, where the Apex Court was constrained to impose costs of Rs.1 lakh.
7. We have noted the submissions of both the counsel. In our view, this was not a case wherein the learned Judge should have interfered. There were five complaints made by five different ladies on five different dates, wherein they have alleged that certain amounts were demanded from them to know as to whether the child was born male or a female one. Many other things might have happened, which are not recorded, but that will be for the Tribunal to look into. If these are the complaints, the authorities are expected to act on them and that is what they have done. In that process, perhaps, there was some delay in initiating necessary action and it was submitted by Mr.Rajendran that though the respondent was to retire on 31st October 2008, the suspension order was not served on her until 31st October, 2008. As against that, papers have been placed on record which show that the respondent was not available on her address and therefore on her quarters, the papers were pasted on 31.10.2008.
8. We have no reason to disbelieve the statements and the papers which have been placed on record and in any case, whatever has been the inaction on the part of the officers or of the subordinate employees of the appellants, the cause which is required to be looked into cannot be ignored by this Court. This is perhaps, one of the few cases, where such ladies had come forward and lodged their complaints. The officers of the Government were rather slow because at the end of the investigation, perhaps, there could be some stigma on the officers in-charge of the hospital also. Considering all these facts, the department must be allowed to proceed when such complaints are received from the mothers of newly born babies and the enquiry cannot be stopped on the ground that at the last moment, the enquiry has been initiated.
9. For the reasons stated above, in our view, the learned Judge has clearly erred in interfering with the orders passed by the appellants. We therefore allow this appeal, set aside the judgment and order passed by the learned single Judge dated 28th January, 2009. Consequently, the order passed by the learned single Judge on 30th June, 2009 in M.P.No.1 of 2009 will also be quashed and set aside. No costs.
10. Mr. Rajendran, learned counsel for the respondent makes a request that the proceedings in the Tribunal may be completed early. The respondent will have to co-operate in that. In all probability, these five ladies and may be, couple of officers of the appellant will have to be examined. In our view, the enquiry can surely be completed on an outer side within about four months. The appellants will make a request to the Tribunal to hear and decide the proceedings, preferably within four months from the date of receipt of a copy of this order. During the pendency of the proceedings, the respondent will be continued to be paid the subsistence allowance, which will be as per the Rules.
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