{"id":141867,"date":"2003-06-19T00:00:00","date_gmt":"2003-06-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kausalya-vs-the-district-health-officer-on-19-june-2003"},"modified":"2015-09-25T10:12:31","modified_gmt":"2015-09-25T04:42:31","slug":"kausalya-vs-the-district-health-officer-on-19-june-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kausalya-vs-the-district-health-officer-on-19-june-2003","title":{"rendered":"Kausalya vs The District Health Officer on 19 June, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Kausalya vs The District Health Officer on 19 June, 2003<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN  THE  HIGH  COURT  OF  JUDICATURE  AT  MADRAS\n\nDated: 19\/06\/2003\n\nCoram\n\nThe Honourable Mr. Justice V.S. SIRPURKAR\nand\nThe Honourable Mr. Justice M. THANIKACHALAM\n\nW.P. No.4348 OF 1998\n\nKausalya                       .....            Petitioner\n\n-Vs-\n\n1.  The District Health Officer\n    Vellore, Vellore District\n\n2.  The Director of Public Health\n    Preventive Medicine, Madras-6\n\n3.  The Registrar\n    Tamil Nadu State Administrative\n    Tribunal, City Civil Court\n    Buildings, Chennai 104              .....           Respondents\n\n\nPetition under Art.226 of the Constitution of India\npraying for a Writ of Certiorarified Mandamus as\nstated in the petition\n\nFor Petitioner         ::      Mr.  G.  Elanchezhiyan\n\nFor Respondents ::  Mr.  S.T.S.  Murthy\n                Spl.G.P.\n\n\n:ORDER\n<\/pre>\n<p>(Order of the Court was made by V.S.  SIRPURKAR, J.)<\/p>\n<p>                In this writ petition, the  petitioner  challenges  the  order<br \/>\npassed  by  the  Tamil  Nadu  State  Administrative  Tribunal  (in  short the<br \/>\nTribunal), dismissing her original application wherein she had challenged the<br \/>\norder passed by the second respondent dated 30-7-1991.  By the instant  order,<br \/>\nthe petitioner was found guilty of all the five charges framed against her and<br \/>\nwas  ordered to be removed from the service with effect from the date of issue<br \/>\nof the order.  This matter has some peculiar facts.\n<\/p>\n<p>                2.  The petitioner was working as Health  Visitor.    She  was<br \/>\nsuspended and was served with a charge-memo for five charges in proceedings RC<br \/>\nNo.3547\/87.  She  submitted the explanation.  The District Health Officer, who<br \/>\nwas her disciplinary authority, passed the final order on the  basis  of  that<br \/>\nexplanation on 8-8-1988 and chose only to issue a warning to the petitioner.\n<\/p>\n<p>                3.   It  seems that thereafter the second respondent Director,<br \/>\nexercising his suo motu powers, has chosen to review  the  earlier  order  and<br \/>\npassed  the order dated 30-7-1991, enhancing the punishment already granted by<br \/>\nthe District Health Officer, first respondent.   Undoubtedly,  before  this  a<br \/>\nshow  cause  notice  came  to  be  issued  to  her  on 2 5-4-1990 in which the<br \/>\npetitioner was specifically asked to give reasons as to why a major penalty of<br \/>\nremoval from service should not be ordered.\n<\/p>\n<p>                4.   We  were  taken  through  the  show  cause  notice  dated<br \/>\n25-4-1990,  which suggests that the case was taken up for review by the second<br \/>\nrespondent Director as per  Rule  36  of  the  Tamil  Nadu  Civil  Services  (<br \/>\nClassification,  Control  and  Appeal) Rules, hereinafter referred to as  the<br \/>\nRules, and in pursuance of that the orders of  the  District  Health  Officer<br \/>\nissuing  a  warning  were  cancelled  and that thereafter, the Regional Deputy<br \/>\nDirector of Public Health and Preventive Medicine was appointed as the Enquiry<br \/>\nOfficer, who conducted the enquiry and had submitted  his  report,  suggesting<br \/>\ntherein  that all the five charges framed against the petitioner stood proved.<br \/>\nFor the sake of facts, we would quote those five charges:\n<\/p>\n<p>1.She is propagating against the policy of Government.\n<\/p>\n<p>2.She has violated the Government Servants Conduct Rules (i.e.  Rule 2  1)  by<br \/>\nattending to her duties after consuming liquor.\n<\/p>\n<p>3.She has used disrespectful words towards her superior officers and disobeyed<br \/>\nthe orders of the superior officers.\n<\/p>\n<p>4.She is indulging in indiscipline activities.\n<\/p>\n<p>5.She is misusing her post for her welfare.<br \/>\nBy that show cause notice, the Director of Public Health sought an explanation<br \/>\nof  the  petitioner  to show cause as to why the major penalty of removal from<br \/>\nservice should not be inflicted.  After the  explanation  was  submitted,  the<br \/>\nimpugned order  came  to  be passed on 30-7-1999.  The Tribunal has refused to<br \/>\nentertain the original application as it found that the  proceedings  were  in<br \/>\norder and the punishment was proper.\n<\/p>\n<p>                5.  Mainly  two grounds were raised before the Tribunal.  They<br \/>\nwere:\n<\/p>\n<p>(i) that the powers under Rule 36 could be exercised only  within  six  months<br \/>\nand in this case, they were exercised much later than six months; and\n<\/p>\n<p>(ii)  that the concerned authority was both the Head of the Department as also<br \/>\nthe appellate authority and as such, the concerned authority  could  not  have<br \/>\nexercised the review powers much less beyond the period of six months.<br \/>\nThe Tribunal has found against the petitioner on both counts and has chosen to<br \/>\ndismiss the original application, necessitating the present writ petition.\n<\/p>\n<p>                6.   Learned  counsel  for  the  petitioner  pointed  out that<br \/>\nfirstly the Director, who has passed the impugned order, is both the  Head  of<br \/>\nthe  Department  as  also  the  appellate authority against the original order<br \/>\npassed by the District Health Officer.   Learned  counsel,  therefore,  argues<br \/>\nthat  properly  reading  the  language  of  Rule  36 and more particularly the<br \/>\nproviso, the whole action in initiating the  review  proceedings  was  without<br \/>\njurisdiction.   He  points  out  that  the  Tribunal  has  not appreciated the<br \/>\nmandatory language of the second proviso to Rule 3 6.  Learned counsel further<br \/>\nargues that though the Head of the Department could initiate the review action<br \/>\nat any time, meaning beyond the six months time,  the  other  condition  (ii)<br \/>\napparent in  the  second proviso was breached in this matter.  As such, though<br \/>\nin the present case, the second respondent was the Head of the Department,  he<br \/>\ncould not  have  initiated the action for review.  Since the initiation of the<br \/>\naction of review itself was incorrect, the further  proceedings  must  go  and<br \/>\neventually,  the  order  of  removal  from  service would be rendered illegal.<br \/>\nLearned counsel very heavily relied on the reported decision of  the  Division<br \/>\nBench of this Court in P.  Sabesan v.  State of Tamil Nadu (1984 WLR 557).\n<\/p>\n<p>                7.   As  against this, the learned Government Pleader tried to<br \/>\njustify the action by suggesting that in this case there was  no  question  of<br \/>\nany  limitation as the opening part of Rule 36, as it stood then, does provide<br \/>\nthat the Government and the Head of  Department  can  review  any  penalty  or<br \/>\nproceeding  and  have  ample powers thereafter to deal with them in the manner<br \/>\nprovided in  the  rules.    According  to  the  learned  Government   Pleader,<br \/>\ntherefore,  there  was nothing wrong if the action of review as initiated even<br \/>\nbeyond the period of six  months  since  it  was  done  by  the  Head  of  the<br \/>\nDepartment.\n<\/p>\n<p>                8.   At  the Bar, learned Government Pleader very candidly and<br \/>\nfairly admitted that the Director who passed the impugned order  is  also  the<br \/>\nappellate  authority against the orders passed by the District Health Officer.<br \/>\nIt is also an admitted position that no notice was  given  to  the  petitioner<br \/>\nbefore deciding  to initiate the action.  We would have to, therefore, proceed<br \/>\non this factual basis.  It will be essential to quote the relevant portion  of<br \/>\nRule 36, as it stood then.  The relevant portion is as under:<br \/>\n36.  (1) Nothwithstanding anything contained in these rules-\n<\/p>\n<p>(i) the State Government; or\n<\/p>\n<p>(ii)  the  head  of the department directly under the State Government, in the<br \/>\ncase of a Government servant serving in  a  department  or  office  under  the<br \/>\ncontrol of such head of a department, or departments, or\n<\/p>\n<p>(iii)  the  appellate  authority,  within  six months of the date of the order<br \/>\nproposed to be reviewed, or\n<\/p>\n<p>(iv) any other authority specified in this behalf by the State Government by a<br \/>\ngeneral or special order, and within such time as may be  prescribed  in  such<br \/>\ngeneral or special order;\n<\/p>\n<p>        may  at  any time, either on their or its own motion or otherwise call<br \/>\nfor the records of any inquiry and review any order made  under  these  rules,<br \/>\nafter  consultation  with the Tamil Nadu Public Service Commission, where such<br \/>\nconsultation is necessary and may\n<\/p>\n<p>        (a) confirm, modify or set aside the order; or\n<\/p>\n<p>        (b) confirm, reduce, enhance or set aside the penalty imposed  by  the<br \/>\norders, or impose any penalty where no penalty has been imposed; or\n<\/p>\n<p>        (c)  remit  the  case  to the authority which made the order or to any<br \/>\nother authority directing such authority to make such further  inquiry  as  it<br \/>\nmay consider proper in the circumstances of the case; or\n<\/p>\n<p>        (d) pass such other orders as it may deem fit:\n<\/p>\n<p>        Provided that no order imposing or enhancing any penalty shall be made<br \/>\nby  any  reviewing  authority unless the Government Servant concerned has been<br \/>\ngiven a reasonable opportunity of making representation  against  the  penalty<br \/>\nproposed  and where it is proposed to impose any of the penalties specified in<br \/>\nclauses (iv), (v), (c), (vi), (vii) and ( viii) of rule 8 or  to  enhance  the<br \/>\npenalty  imposed  by  the  order sought to be reviewed to any of the penalties<br \/>\nspecified in those clauses, no such penalty shall be imposed except  after  an<br \/>\ninquiry  in  the  manner laid down in sub-rule (b) of rule 17 and except after<br \/>\nconsultation  with  the  Tamil  Nadu  Public  Service  Commission  where  such<br \/>\nconsultation is necessary:\n<\/p>\n<p>        Provided  further  that  no  power of review shall be exercised by the<br \/>\nhead of a department, unless-\n<\/p>\n<p>        (i) the authority which made the order in appeal or\n<\/p>\n<p>        (ii) the authority to which an appeal would be, where  no  appeal  has<br \/>\nbeen preferred is subordinate to him.\n<\/p>\n<p>        (2) No proceeding for review shall be commenced until after-\n<\/p>\n<p>        (i) the expiry of the period of imitation for an appeal, or\n<\/p>\n<p>        (ii)  the  disposal  of  the  appeal,  where  any such appeal has been<br \/>\npreferred.<br \/>\nIt is, therefore, clear that there lies ample powers in the  Government,  Head<br \/>\nof the Department and the appellate authority or any other authority specially<br \/>\ncreated  for  that purpose to enhance the penalty in keeping with the modality<br \/>\nfurther provided in the rules.  In case of appellate authority, however, there<br \/>\nis a limitation of six months for exercising the power of review,  which  time<br \/>\nlimit  is  not  applicable to the powers being used by the State Government or<br \/>\nthe Head of Department or any other authority specified in that behalf.\n<\/p>\n<p>                9.  In this case, there is no problem regarding the fact  that<br \/>\nthe  Head  of  Department  and  the  appellate authority were one and the same<br \/>\nperson.  It is also not disputed that after the penalty of warning  was  given<br \/>\nto  the petitioner by the District Health Officer, the petitioner did not file<br \/>\nany appeal.   The  question  is,  however,  whether  the  action  was  rightly<br \/>\ninitiated.  The  second proviso, however, creates two fetters.  It suggests in<br \/>\na very positive language that the power of review cannot be  exercised  unless<br \/>\nthe  authority  which  made  the order in appeal or the authority to which the<br \/>\nappeal could be made are subordinate to such Head of Department.   Now  it  is<br \/>\nclear  and  an  admitted position that in this case, there was no appeal made.<br \/>\nSo, the question of the application of first clause  after  proviso  does  not<br \/>\napply.  The  second  clause, however, applies with all its force.  It suggests<br \/>\nthat where no appeal has been preferred the authority to which ordinarily  the<br \/>\nappeal  could  have  been  preferred should also be subordinate to the Head of<br \/>\nDepartment and that is where precisely the defect has set in.    The  Head  of<br \/>\nDepartment who has initiated the action is himself an appellate authority.  As<br \/>\nper  the second clause of the proviso, the Head of Department could never have<br \/>\nexercised the power unless the appellate authority to whom the appeal could be<br \/>\nfiled but has actually not been  made  was  subordinate  to  such  a  Head  of<br \/>\nDepartment.   Now, unfortunately for the Government, the Head of Department as<br \/>\nwell as the appellate authority are one and the same officers and it can never<br \/>\nbe said, therefore, that the  appellate  authority,  i.e.    the  Director  is<br \/>\nsubordinate to  himself.    In  that view, the action of review could not have<br \/>\neven been initiated let apart proceeded  further  and  precisely  that  aspect<br \/>\nwhich has  been missed by the Tribunal.  The Tribunal has gone, unfortunately,<br \/>\nonly on the broad reading of the rule and has held that since  the  action  of<br \/>\nreview has been taken by the Head of Department, there would be no question of<br \/>\nany limitation  of  six  months.   It is perfectly alright and there can be no<br \/>\ndispute that the Head of Department has the power to initiate the action  even<br \/>\nafter the  six  months.   Even the learned counsel for the petitioner does not<br \/>\ndispute that.  However, the second aspect of  the  appellate  authority  being<br \/>\nrequired to be a subordinate officer of the Director of the Head of Department<br \/>\nis  obviously  breached  in  this case and, therefore, it will have to be held<br \/>\nthat the action initiating the review is bad and without any jurisdiction.\n<\/p>\n<p>                10.  Same view has been taken by the Division  Bench  of  this<br \/>\nCourt in  Sabesan case, cited supra.  There, the learned Judges were examining<br \/>\nthe language of Rule  15-A  of  the  Tamil  Nadu  Police  Subordinate  Service<br \/>\n(Discipline and Appeal)  Rules.    The  language is absolutely identical.  The<br \/>\nDivision Bench, in paragraph 3, observed as follows:<br \/>\nThe proviso says that no power of review shall be exercised by  the  Head  of<br \/>\nthe  Department unless the appellate authority, which had passed the appellate<br \/>\norder or the authority to which an  appeal  would  be  preferred  against  the<br \/>\noriginal order  is  subordinate  to  him.  The second respondent herein is the<br \/>\nHead of the Department and he also happened to be the appellate authority.  As<br \/>\nthe appellate authority in this case is not subordinate to  the  Head  of  the<br \/>\nDepartment  the  former  cannot  exercise  the  power of review under the said<br \/>\nproviso.<br \/>\nWe respectfully agree with this decision  which  is  binding  on  us  being  a<br \/>\nprevious decision of the co-ordinate Bench.\n<\/p>\n<p>                11.  In  that  view,  the petition must succeed.  The order of<br \/>\nthe Tribunal is set aside.  The original application is also  directed  to  be<br \/>\nallowed.  The  petitioner  shall  be  reinstated  with  all the benefits.  We,<br \/>\nhowever, make it clear that the Government  could  still  have  the  power  to<br \/>\nproceed under Rule 36, if it so chooses.\n<\/p>\n<p>Index:Yes<br \/>\nWebsite:Yes<\/p>\n<p>Jai<\/p>\n<p>To:\n<\/p>\n<p>1.  The District Health Officer<br \/>\nVellore, Vellore District<\/p>\n<p>2.  The Director of Public Health<br \/>\nPreventive Medicine, Madras-6<\/p>\n<p>3.  The Registrar<br \/>\nTamil Nadu State Administrative<br \/>\nTribunal, City Civil Court<br \/>\nBuildings, Chennai 104<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Kausalya vs The District Health Officer on 19 June, 2003 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 &#8230;.. Petitioner -Vs- 1. The District Health Officer Vellore, Vellore District 2. The [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-141867","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Kausalya vs The District Health Officer on 19 June, 2003 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kausalya-vs-the-district-health-officer-on-19-june-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kausalya vs The District Health Officer on 19 June, 2003 - Free Judgements of Supreme Court &amp; 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